European Court Verdict into Georgia vs. Russia Case over 2008 War

European Court of Human Rights (ECHR) said today that Russia was responsible for the breach of six articles of the European Convention of Human Rights, as well as for failure to conduct an effective investigation into the alleged breach of the right to life, in the aftermath of the Russo-Georgian War of August 2008.

The judgment, delivered by the Strasbourg-based court into the inter-state complaint lodged by Georgia against Russia, also said events following the ceasefire agreement of 12 August 2008, that ended the active phase of the war, fell within the Russian jurisdiction for the purposes of the European Convention on Human Rights.

The Court asserted that since August 12, 2008, “strong Russian presence and the South Ossetian and Abkhazian authorities’ dependency on the Russian Federation indicated that there had been continued “effective control” over South Ossetia and Abkhazia.”

Besides, the ECHR stated Russian exercised “effective control” over the “buffer zone” during the period from 12 August to 10 October 2008, the date of the official withdrawal of the Russian troops from those areas.

The Court stated, however, that during the active phase of hostilities from 8 to 12 August 2008, Russia could not be considered as exercising “effective control”, since that control was apparently contested through military means. It has thus declared inadmissible the part of Georgia’s application which claimed that Russia was legally responsible for the acts committed on 8-12 August.

The ECHR has also established numerous violations of the Convention by Russia and ruled:

• by sixteen votes to one, that there had been an administrative practice contrary to Articles 2, 3, and 8 of the Convention, involving the right to life, prohibition of torture and respect for private and family life, respectively, and Article 1 of Protocol No. 1 to the Convention, involving the protection of property.
• unanimously that the Georgian civilians detained by the S. Ossetian forces in Tskhinvali between approximately 10 and 27 August 2008 had fallen within the Russian jurisdiction for the purposes of Article 1, and that there had been a breach of Article 3, the prohibition of torture “as regards the conditions of detention of some 160 Georgian civilians and the humiliating acts which had caused them suffering and had to be regarded as inhuman and degrading treatment.”
• unanimously that there had been an administrative practice contrary to Article 5, involving the right to liberty and security as regards the arbitrary detention of Georgian civilians in August 2008.
• unanimously, that the Georgian prisoners of war detained in Tskhinvali between 8 and 17 August 2008 by the S. Ossetian forces had fallen within the Russian legal responsibility for the purposes of the Convention; and by sixteen votes to one, that there had been an administrative practice contrary to Article 3 (prohibition of torture) as regards the acts of torture of which the Georgian prisoners of war had been victims.
• by sixteen votes to one, that preventing of the Georgian nationals from returning to S. Ossetia or Abkhazia had fallen within the Russian jurisdiction; and by sixteen to one that there had been an administrative practice contrary to Article 2 of Protocol No. 4, freedom of movement, linked to the inability of Georgian nationals to return to their homes;
• unanimously that Russia had a procedural obligation under Article 2 to carry out “an adequate and effective investigation” not only into the events which had occurred after the end of hostilities (after the August 12, 2008 ceasefire ) but also into the events during the active phase of hostilities (8 to 12 August 2008);
• and by sixteen votes to 1, that in this regard there had been a violation of Article 2 in its procedural aspect, meaning the breach of the obligation to conduct an effective probe into alleged breaches of the Article’s substantive limb.
• by sixteen votes to 1, that Russia failed to meet its obligations under Article 38, by failing to examine the case.
• unanimously, that the question regarding Article 41, involving just satisfaction “was not ready for decision and should therefore be reserved in full.”

The Court Decision

Regarding the killing of civilians and the torching and looting
of houses in Georgian villages in Tskhinvali Region/South Ossetia and the “buffer zone,” the Court stated that although Russian troops had intervened to stop abuses being committed against civilians, in many cases “Russian troops had been passively present during scenes of looting” committed by the S. Ossetian forces.

“Despite the order given to the Russian armed forces to protect the population and carry out peacekeeping and law-enforcement operations on the ground, the measures taken by the Russian authorities had proved insufficient to prevent the alleged violations,” ECHR remarked, adding that “this could be deemed to be “official tolerance” by the Russian authorities, as was also shown by the fact that the latter had not carried out effective investigations into the alleged violations.”

Holding Russia accountable for the detention of 160 Georgian civilians in the aftermath of conflict, the Court said that although the Russian forces’ direct involvement had not been clearly demonstrated, the fact that the Georgian civilians fell within the Russian jurisdiction meant that the latter had also been responsible for the actions of the S. Ossetian authorities.

The Court added that the conditions of the said the detention of Georgian civilians and “the humiliating acts to which they had been exposed, which had caused them undeniable suffering [..] had to be regarded as inhuman and degrading treatment.”

Speaking of war prisoners, it found that even though the direct involvement of the Russian forces had not been clearly demonstrated in all cases, the fact that the prisoners of war fell within the Russian jurisdiction meant that the latter had also been responsible for the actions of the South Ossetian forces.

“Although they had been present at the scene, the Russian forces had not intervened to prevent the treatment complained of,” the Court asserted.

The Court also highlighted, that “the de facto South Ossetian and Abkhazian authorities, and the Russian Federation, which had effective control over those regions, had a duty under the Convention to enable inhabitants of Georgian origin to return to their respective homes.”

Background

Georgia appealed ECHR on August 11, 2008, a day before the EU-mediated six-point ceasefire agreement was signed with Russia. The formal inter-state application was filed in February 2009, alleging Russian military and/or separatist forces under their control carried out indiscriminate and disproportionate attacks against civilians and their property in different parts of Georgia, including the now-occupied Abkhazia and Tskhinvali regions.

Georgia claimed Russia violated eight articles of the European Convention on Human Rights, involving the right to life, the prohibition of torture, the right to liberty and security, the right to respect for private and family life, right to an effective remedy, protection of property, and the right to education and the freedom of movement.

Russia on its part dismissed allegations as unjustified and unconfirmed by “admissible evidence,” claiming its military forces did not attack and instead defended Tskhinvali region’s civilian population against the Georgian offensive. ECHR declared the application admissible in December 2011, relinquishing the case to the Grand Chamber, which consists of 17 justices.

Seven ECHR judges completed hearing 33 witness testimonies in the inter-state case in June 2016. Of the witnesses, the Court summoned six directly,16 through the Georgian government and 11 through the Russian government.

In the final stage before the ruling, ECHR Grand Chamber completed the oral hearing of the application in May 2018.

This was the second inter-state case of the total three against Russia in the Strasbourg-based court. Georgia won the first in 2014 when ECHR ruled that the arrest, detention, and collective expulsion of Georgians from Russia in 2006 violated the Convention. In a follow-up decision in 2019, the Court ruled Russia had to pay EUR 10 million in compensation for damages related to the mass deportation.

Georgia lodged its third complaint against Russia in 2018, over the death of Archil Tatunashvili, a Georgian citizen, at the hands of Kremlin-backed authorities in Tskhinvali.

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