By Radu Mirza
Centuries before the creation of the modern human rights system, humanitarian law had postulated that human beings deserve protection from the cruelty and abuses in the time of war. However, this principle is neglected in almost all the conflicts, violating so plenty of the universally recognized human rights. The conflict between Georgia and Russian Federation seems to be one of these numerous cases, but it differs from many others by the fact that its resolution with respect to human rights violations pursue, inter alia, a decision of the European Court of Human Rights.
On 23rd of May 2018 a Grand Chamber hearing of ECtHR was held in the case of Georgia v. Russian Federation (II)[1]. According to the Convention, the Court provides for both individual petitions (Article 34) and inter-state complaints (Article 33). The latter is rare and have been used very sparingly, but continues to be significant. Since 1956, 23 applications were made under the article 33 of the Convention[2]. In nine of the last ten applications submitted the respondent government is the Russian Federation on accusations brought by the governments of Georgia and of Ukraine and all of them are related to the armed conflicts between the latter and the former.
This is not the first case between Georgia and Russian Federation brought to the ECtHR. In 2007 Georgia applied to the Court accusing Russian Federation of a wide range of Convention violations in the context of an incident that took place in September 2006 and its aftermath. Georgia alleged that after the arrest of four Russian officers in Tbilisi on spying charges, the Russian Federation had permitted or caused to exist an administrative practice of arresting, detaining, and collectively expelling Georgian nationals from the Russian Federation in the autumn of 2006, resulting in a violation of Articles 3, 5, 8, 13, 14 and 18 of the Convention, and of Articles 1 and 2 of Protocol 1, Article 4 of Protocol 4, and Article 1 of Protocol 7. Georgia alleged that the harassment of the Georgian immigrant population in the Russian Federation led to interferences with the respect for private and family life, home and correspondence, the peaceful enjoyment of possessions and the right to education. Also, the widespread arrests and detention generated threat to security of the person and multiple interferences with the right to liberty on arbitrary grounds[3]. In 2014 the Grand Chamber rendered its judgement holding that Russian Federation violated several provisions of the Convention, specifically of Article 4 of Protocol 4 (prohibition of collective expulsion)[4]. Moreover, Georgia lodged another application against Russian Federation in November 2009 demanding Russia to comply with its obligations under the Convention and release four Georgian minors in custody in South Ossetia. After their release in December of the same year, the Government of Georgia informed the Court that they no longer wished to maintain their application[5].
The hearing hold on 23rd of May concerns the case of the armed conflict between Georgia and Russian Federation in August 2008 and its aftermath. Georgia’s application was lodged to the Court on 11th of August 2008. It grounded on the right to inter-State application set in the article 33 ECHR[6] and was accompanied by a request for an interim measure under the rule 39 of the Rules of Court[7]. The day after, the President of the Court, acting as President of the Chamber, decided to apply Rule 39 and called upon both Parties concerned to comply with their engagements under the Convention, particularly in respect of Articles 2 and 3. The application of Rule 39 has since been prolonged several times and is still in force. The case was allocated to the 5th section of the Court pursuant to the rule of paragraph 51.1 of the Rules of the Court[8]. Following a hearing on 22nd of September 2011, a Chamber constituted within that section declared the application admissible in December 2011. Several months later, on 3rd of April 2012, the Chamber relinquished jurisdiction in favour of the Grand Chamber[9]. The Grand Chamber is formed on seventeen judges and may decide to hear a case where the Chamber relinquishes jurisdiction or where a party requests referral following a Chamber judgement[10]. In this case, the Chamber relinquished jurisdiction and none of the Parties have objected to the relinquishment. In June 2016 a delegation of Judges of the Court took evidence from witnesses of both sides. The Court heard 33 witnesses in total: 15 of the Georgian Government, 12 of the Government of the Russian Federation, and 6 summoned directly by the Court.
This case raises issues under several articles of the ECHR and its Protocols, that is, article 2 (right to life), 3 (prohibition of torture, inhuman and degrading treatment), 5 (right to liberty and security), 8 (right to respect for private and family life) and 13 (right to an effective remedy) of the Convention, and articles 1 and 2 of Protocol 1 (protection of property and right to education), as well as article 2 of Protocol 4 (freedom of movement) of the European Convention. The core points of the dispute relate on the ECtHR jurisdiction for this case, on the responsibility of the Russian Federation for the alleged violations, and on the trustworthiness of the evidence. Georgia asserts that Russian forces and/or the separatist forces they controlled carried out indiscriminate and disproportionate attacks against civilians and their property in different parts of Georgia, including Abkhazia and South Ossetia. It considers many of these attacks as ethnic cleansing as they were focused on villages inhabited by ethnic Georgians. Georgia sustain that the violations fall into the Russian jurisdiction because it had effective control over the territories where the violations occurred. In affirming it Georgia relies, inter alia, on 2009 UN Human Rights Committee conclusions that state the de facto control at the relevant time of an organized military operation by the Russian Federation over the territories of South Ossetia and on the CoE Parliamentary Assembly description of Russian operations as a belligerent occupation. Both the Committee and the Assembly expressed the view that Russian Federation bears responsibility for the violations in the areas of its de facto control. Russian Federation denies these allegations, describing them as baseless, ill-founded, unjustified, and not confirmed by admissible evidence. Russia maintain it had no effective control in that territories. The armed forces of the Russian Federation did not launched attacks but defended its peace-keepers and the civilian population of South Ossetia and Abkhazia against Georgian offensives. More, Russia accuses Georgia of attacks on its own villages to the scope of producing false based evidence propaganda to put Russia as an invader. It considers Georgia’s application as merely political and outside the Court’s jurisdiction. In addition to the present inter-State case, the Court received a large number of individual applications in connection with the same armed conflict. According to the Court, at the time of the hearings of September 2011, 1,712 individual applications were pending against Georgia, 208 individual applications were lodged against the Russian Federation, and 20 individual applications were pending against both Parties[11].
The 23rd of May hearing had been the last one and a decision of the Court will soon follow. After the Court’s deliberation on the merits, the Parties will be informed about the judgement on the day of its delivery.
[1] Georgia v. Russia (II) hearing, application n. 38263/08, https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=3826308_23052018&language=en.
[2] Inter-State Applications under the article 33 of the ECHR, https://www.echr.coe.int/Documents/InterStates_applications_ENG.pdf
[3] Alston P., Goodman R., International Human Rights. The successor to international human rights in context: law, politics and morals, Oxford University Press, Oxford, 2013, p. 903.
[4] Arp B., ‘Georgia v. Russia (I)’, The American Journal of International Law, American Society of International Law, Vol. 109, N. 1, 2015, pp. 167-173.
[5] Georgia v. Russian Federation (III), application n. 61186/09, http://hudoc.echr.coe.int/eng?i=001-98167
[6] Under article 33 of the ECHR, ‘Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party’.
[7] According to Rule 39 of the Rules of Court, following a request from a State or a person who has an application pending before it, the ECtHR can ask the respondent Government on a temporary basis to take or refrain from taking certain measures. The Court will only make an order under Rule 39 where there is an imminent risk of serious and irreversible harm.
[8] Rule 51.1 of the Rules of the Court states that ‘When an application is made under Article 33 of the Convention, the President of the Court shall immediately give notice of the application to the respondent Contracting Party and shall assign the application to one of the Sections’.
[9] Under Article 30 of the ECHR, ‘Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects’.
[10] Bantekas I., Oette L., International Human Rights Law and Practice, Cambridge University Press, Cambridge, 2013, p. 225.
[11] Registar of the Court Press Release, Hearing in the Inter-State case Georgia v. Russia (II) concerning the 2008 armed conflict between the two countries, ECHR 150, 22/09/2011,
https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-3680177-4186693&filename=003-3680177-4186693.pdf
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