CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 12 mars 2024

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Its chronology was described in the Court’s judgment in the inter-State case of Georgia v.   Russia (II) ([GC] (merits), no.   38263/08, §§   32-44, 21   January 2021).   All the applicants reside in the undisputed territory of Georgia. Application no. 16053/10 2.     Relying on Articles 3, 8, and 13 of the Convention the applicant complained that she was raped on 13   August 2008 by two South Ossetian fighters and two armed individuals of unknown origin, and that no effective investigation had been carried out in this respect. Relying on Article 1 of the Convention and Article 1 of Protocol No. 1, the applicant also complained that her property had been destroyed during the IAC. 3 .     On 16   February 2009 the applicant applied to Empathy (the Psycho ‑ Rehabilitation Centre for Victims of Torture, Violence and Pronounced Stress Impact) for an outpatient medical and psychological examination and treatment. A medical certificate was issued on 21   April 2009. She was diagnosed with post-traumatic stress disorder, residual elements of a head injury, chronic pelvic/vaginal inflammation, and eyesight issues. 4.     On 5 May 2009 the organisation representing the applicant sent a letter to the Georgian authorities with a request to open a criminal investigation. The request does not appear to have been accompanied by an authority form authorising the organisation to represent the applicant’s interests, an identity document, or the medical report obtained by the applicant. The letter was left without a reply. On 27 May, 15 June and 25   September 2009 the organisation in question sent identically-worded letters to the authorities. The one sent on the latter date noted having received some reply (allegedly in respect of the letter of 15   June 2009) on 8   September 2009. No copy of any such response was submitted to the Court. No complaint was submitted to the Russian authorities. The remaining applications 5 .     The applicants relied on Article   1, Article   2, Article   3 and Article   13 of the Convention, Article   1 of Protocol No. 1, and/or Article 1 of Protocol No.   12 to the Convention. The applicants in applications nos. 42646/10 and 42651/10 complained that their relatives had been killed on 18 and 19 August 2008, respectively. The remaining applicants complained that the military actions undertaken by the Russian armed forces in South Ossetia [1] in the period ranging from the night of 7 to 8 August until and including 12 August 2008, and the failure of the Georgian authorities to avoid these developments or minimise their impact, had resulted in their injuries, death of their relatives, and/or had put their lives under real and immediate danger, led to their anxiety, and damaged their properties. The applicants complained that the respondent Governments failed to carry out an effective investigation into the events. 6.     On different dates in August and September 2008, the majority of the applicants were questioned and granted the procedural status of a victim as part of the criminal investigation opened by the Georgian authorities. 7 .     On 22   June 2009 the organisation which represented all the applicants (including the applicant in application no. 16053/10) at domestic level inquired about the progress of the ongoing investigation and asked whether the Georgian authorities had been cooperating with their Russian counterparts within the context of that investigation. 8 .     On 30   June 2009 the Georgian prosecuting authority replied to the query of 22   June 2009 that the victims had been questioned. As for information regarding any other investigative activities and facts established by such measures, this had not been public information. The letter also stated that transnational cooperation in criminal matters with the Russian Federation had been “complicated” following the hostilities of August 2008. No reply was provided to the follow-up queries as to what the term “complicated” had meant. 9 .     In April and May   2010 the applicants’ representatives sent brief letters to the Investigative Committee of the General Prosecutor’s Office of the Russian Federation. These were worded as queries as to whether a criminal investigation had been opened in respect of the applicants’ cases. They were not accompanied by authority forms, identity documents, death certificates or other documents. Various replies were received on different dates. THE COURT’S ASSESSMENT Joinder of the applications 10.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. As regards the events that allegedly took place from the night of 7   to 8   August until and including 12 August 2008 11.     In so far as the present applications relate to the events which took place in the period ranging from the night of 7 to 8 August until and including 12   August 2008, that is during the active phase of the hostilities, the Court has already ruled that such events did not fall within the jurisdiction of the respondent Governments for the purposes of Article   1 of the Convention (see Georgia v.   Russia (II) , cited above, §§   125-44; Bekoyeva and Others v.   Georgia (dec.), nos. 48347/08 and 3 others, §§ 32-40, 5 October 2021; Shavlokhova and Others v.   Georgia (dec.), nos.   45431/08 and 4 others, §§   27-35, 5   October 2021; and Jioshvili and Others v. Russia (dec.), nos.   8090/09 and 58 others, §   18,   19   October 2021). This part of the applications must therefore be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention. As regards the remainder of the applicants’ complaints 12.     The Court observes that applications nos.   16053/10, 42646/10 and 42651/10 relate to incidents which allegedly occurred after the above-noted period of active hostilities. Additionally, all applications raise a complaint concerning the ineffectiveness of the investigation into the deaths and injuries, including those which had allegedly taken place during the active phase of the hostilities (compare Georgia v.   Russia (II) , cited above, §   330). 13.     However, the Court observes that all of these applications were submitted to it with considerable delay following the contested events. It must, therefore, examine whether they were lodged with the requisite diligence and in compliance with the six-month time‑limit set out in Article   35 § 1 of the Convention. General principles regarding the six-month time-limit 14.     The six-month time-limit provided for by Article   35 §   1 of the Convention has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Sabri Güneş v.   Turkey [GC], no.   27396/06, §   39, 29   June 2012, and El Masri v.   “the former Yugoslav Republic of Macedonia” [GC], no.   39630/09, § 135, ECHR 2012). 15.     Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v.   Turkey [GC], nos.   16064/90 and 8   others, §   157, ECHR 2009). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article   35 §   1 of the Convention to take the start of the six-month period from the date on which the applicant first became or ought to have become aware of those circumstances (see Keenan v.   the United Kingdom (dec.), no.   27229/95, 22   May 1998, and Mocanu and Others v.   Romania [GC], nos.   10865/09, 45886/07 and 32431/08, §§ 259-60, ECHR 2014 (extracts)). 16 .     Where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before both the relevant domestic authorities and the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (see, amongst others, Bulut and Yavuz v.   Turkey (dec.), no.   73065/01, 28   May 2002; Aydin and Others v. Turkey (dec.), no.   46231/99, 26 May 2005; and Akhvlediani and Others v.   Georgia (dec.), no. 22026/10, §   24, 9   April 2013). Indeed, with the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish, and the Court’s own examination and judgment may be deprived of meaningfulness and effectiveness (see Varnava and Others , cited above, §   161). Compliance with the six-month time-limit (a)    Application no.   16053/10 17.     At the outset, the Court observes that the applicant never submitted a criminal complaint to the Russian authorities. Had she believed that no effective remedy was available to her in Russia, she should have applied to the Court within six months of the alleged incident, that is on 13   February 2009 at the latest. 18.     The Court takes note of the fact that the applicant applied to the Georgian authorities with a request to have a criminal investigation opened. Considering that the request did not contain any grievance directed against Georgian authorities or any individuals present on the territory controlled by Georgia, the applicant appears to have believed that such a request would have provided her with adequate redress in respect of the complaints directed against the Russian Federation. 19 .     In this respect, the Court reiterates that the Georgian authorities faced certain challenges in carrying out an effective investigation where potential suspects were located in South Ossetia, a territory remaining under the effective control of the Russian Federation (see Georgia v. Russia (II) , cited above, §   331 in fine ; see also Bekoyeva and Others , cited above, §   45). 20.     Even assuming, despite the above-noted apparent limitation, that the applicant may have reasonably believed, at least initially, that the Georgian authorities could have conducted an effective investigation into her grievances, including through possible cooperation with their Russian counterparts, the Court notes that by the time the applicant contacted the Georgian authorities, by means of a letter rather than a substantiated criminal complaint, almost nine months had passed since the incident, undermining the effectiveness of any investigation which could be undertaken in the future (see paragraph   16 above). The applicant did not account for the delay. In this regard, the applicant has not suggested that the authorities ought to have been aware of her circumstances in the absence of a complaint to that effect (compare Mamasakhlisi and Others v.   Georgia and Russia , nos.   29999/04 and 41424/04, §   261, 7   March 2023). 21.     At any rate, however, the Court cannot overlook the fact that the applicant received no reply to her letter of 5   May 2009. More importantly, on 30   June 2009 – over ten months after the alleged incident and the clear lack of any investigation into it – the Georgian authorities informed the organisation representing the applicant that no information about investigative activities implemented by them was amenable to being given to any of the victims, and that cooperation with the Russian authorities had been problematic in view of the armed conflict (see paragraph   8 above). The Court considers that by that date the lack of any prospect of an effective investigation being launched into the applicant’s complaint must have become readily apparent. 22.     Yet, the application was introduced on 10   March 2010. While the applicant may have been in a somewhat vulnerable situation in view of the nature of her complaints, she was located on the Georgian territory with access to legal services. The Court does not find that there existed any exceptional circumstances to justify the delay (compare Mamasakhlisi and Others , cited above, §§   271-277). 23.     In the light of the foregoing, the Court concludes that the present application was submitted out of time. It must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. (b)    The remaining applications 24.     The Court observes that the very first time the applicants contacted the Russian authorities – by means of queries as to whether a criminal investigation had been opened rather than through substantiated criminal complaints – was almost two years after the incidents complained of had taken place (see paragraph   9 above) and just some months before submitting the present applications to the Court. Within this context, had the applicants believed that no effective remedy was available to them in Russia, they should have applied to the Court within six months of the alleged incidents, that is between 8 and 19 February 2009 at the latest, depending on the dates of the incidents complained of (see paragraph   5 above). 25 .     As regards the criminal investigation opened by Georgia, the Court reiterates that the Georgian authorities faced certain challenges in carrying out an effective investigation where potential suspects were located in South Ossetia, a territory remaining under the effective control of the Russian Federation (see paragraph   19 above). 26.     Even supposing, despite the above-noted apparent limitation, that the applicants’ initial assumption about the effectiveness of the investigation opened by Georgia may have been reasonable, including with respect to a possibility of cooperation between the respondent Governments (see paragraph   7 above), all the applicants must have become aware of its ineffectiveness, through the organisation representing them, by 30   June 2009. Namely, on that date the Georgian authorities informed the organisation in question that cooperation with the Russian Federation in criminal matters had been complicated in view of the armed conflict of August 2008. Moreover, by then, that is over ten months after the contested events, there had been no developments other than the initial gathering of evidence from the victims located on the territory controlled by Georgia. In fact, the authorities had explicitly excluded any developments regarding other investigative activities being notified to the applicants in the future on account of such information not having been public (see paragraph   8 above). The Court considers that by that date the lack of any prospect of an effective investigation being launched into the applicants’ complaints must have become readily apparent. 27.     Yet, the applicants waited another year, and in several applications much longer, before lodging the present applications. The Court does not find that there existed any exceptional circumstances to justify the delay (compare Mamasakhlisi and Others , cited above, §§   271-77). 28.     In the light of the foregoing, the Court concludes that the applications were submitted out of time. They must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 11 April 2024.     Dorothee von Arnim   Jovan Ilievski   Deputy Registrar   President Appendix       List of cases: No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 16053/10 M.K. v. Georgia and Russia 10/03/2010 M.K. 1959 Georgian Ms L. MUKHASHAVRIA 2. 42630/10 Gogidze v. Georgia and Russia 19/06/2010 Lia GOGIDZE 1973 Gori Georgian Ms L. MUKHASHAVRIA 3. 42646/10 Razmadzeebi v. Georgia and Russia 19/06/2010 Eliko RAZMADZE 1948 Gori Georgian Akaki RAZMADZE 1950 Gori Georgian Manana RAZMADZE 1957 Gori Georgian Ms L. MUKHASHAVRIA 4. 42651/10 Midodashvili v. Georgia and Russia 19/06/2010 Lali MIDODASHVILI 1975 Gori Georgian Ms L. MUKHASHAVRIA 5. 42653/10 Melitauri v. Georgia and Russia 19/06/2010 Lavrenti MELITAURI 1968 Gori Georgian Ms L. MUKHASHAVRIA 6. 42656/10 Kopadze v. Georgia and Russia 01/07/2010 Vardo KOPADZE 1929 Gori Georgian Ms L. MUKHASHAVRIA 7. 42664/10 Melitaurebi v. Georgia and Russia 19/06/2010 Gulnara MELITAURI 1934 Gori Georgian Bagrat MELITAURI 1959 Gori Georgian Eka MELITAURI 1966 Gori Georgian Gulnara MELITAURI 1934 Gori Georgian Tamila MELITAURI 1956 Tbilisi Georgian Ms L. MUKHASHAVRIA 8. 42668/10 Aniashvili v. Georgia and Russia 09/07/2010 Mediko ANIASHVILI 1945 Gori Georgian Ms L. MUKHASHAVRIA 9. 70344/10 Mikheil Khizanishvili v. Georgia and Russia 18/11/2010 Mikheil KHIZANISHVILI 1962 Variani Village Georgian Ms L. MUKHASHAVRIA 10. 70350/10 Aduashvilebi v. Georgia and Russia 18/11/2010 Ilia ADUASHVILI 1977 Variani Village Georgian Teimuraz ADUASHVILI 1981 Gori Georgian Ms L. MUKHASHAVRIA 11. 70366/10 Giorgishvilebi v. Georgia and Russia 18/11/2010 Davit GIORGISHVILI 1970 Variani Village Georgian Khatuna GIORGISHVILI 1972 Variani Village Georgian Ms L. MUKHASHAVRIA 12. 70376/10 Urjumelashvili and Aduashvili v. Georgia and Russia 18/11/2010 Dimitri URJUMELASHVILI 1977 Variani Village Georgian Natia ADUASHVILI 1977 Variani Village Georgian Ms L. MUKHASHAVRIA 13. 70396/10 Kakhaber Aduashvili v. Georgia and Russia 18/11/2010 Kakhaber ADUASHVILI 1965 Variani Village Georgian Ms L. MUKHASHAVRIA 14. 70404/10 Nikoloz Khizanishvili v. Georgia and Russia 18/11/2010 Nikoloz KHIZANISHVILI 1965 Variani Village Georgian Ms L. MUKHASHAVRIA 15. 70411/10 Akopov v. Georgia and Russia 18/11/2010 Davit AKOPOV 1977 Variani Village Georgian Ms L. MUKHASHAVRIA 16. 70416/10 Ivane Khizanishvili v. Georgia and Russia 18/11/2010 Ivane KHIZANISHVILI 1944 Variani Village Georgian Ms L. MUKHASHAVRIA 17. 10338/11 Bidzinashvili v. Georgia and Russia 11/02/2011 Gaioz (Piruz) BIDZINASHVILI 1944 Karbi Village Georgian Ms L. MUKHASHAVRIA 18. 28628/11 Tevdorashvili v. Georgia and Russia 11/02/2011 Tengiz TEVDORASHVILI 1939 Karbi Village Georgian Ms L. MUKHASHAVRIA 19. 28679/11 Guram Tevdorashvili v. Georgia and Russia 10/12/2010 Guram TEVDORASHVILI 1961 Gori Georgian Ms L. MUKHASHAVRIA 20. 28700/11 Tsimakuridze v. Georgia and Russia 10/12/2010 Avtandil TSIMAKURIDZE 1952 Gori Georgian Ms L. MUKHASHAVRIA       [1] The term “South Ossetia” refers to a region of Georgia which is currently outside the de facto control of the Georgian Government.