CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 avril 2024

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font-size:6.67pt; vertical-align:super; color:#0069d6 } .fixListIndent { list-style-position: inside } SECOND SECTION CASE OF GEORGIA v. RUSSIA (IV) (Application no. 39611/18)   JUDGMENT (Merits)   Art 33 • Inter-State application • Administrative practices by Russia stemming from “borderisation” between breakaway regions of Abkhazia and South Ossetia and the Georgian government-controlled territory and resulting in multiple Convention violations Art 2 (substantive and procedural) • Life • Administrative practice of using lethal force, which was not “absolutely necessary”, against ethnic Georgian civilians attempting to enter or exit Abkhazia or South Ossetia • In exceptional case circumstances conditions for examination under Art 2 met in relation to victims who survived • Respondent State’s responsibility also engaged for deaths of ethnic Georgians trying to cross the administrative boundary line (ABL) by alternative dangerous routes due to unlawful restrictions on freedom of movement imposed by de facto authorities of Abkhazia or South Ossetia • Administrative practice of failing to conduct an effective investigation Art 3 (substantive and procedural) • Inhuman and degrading treatment • Administrative practice as regards the conditions of detention of ethnic Georgians and their ill-treatment in detention in Abkhazia and South Ossetia • Administrative practice of failing to conduct an effective investigation Art 5 § 1 • Lawful arrest or detention • Administrative practice of unlawful arrests and detention of ethnic Georgians in Abkhazia and South Ossetia for “illegally crossing” the ABL • Findings in Mamasakhlisi and Others v.   Georgia and Russia concerning Abkahzia’s de facto authorities and courts applicable in respect of both regions Art 2 P4 • Administrative practice of unlawfully restricting the freedom of movement of ethnic Georgians between Georgia and Abkhazia and South Ossetia resulting from the de facto transformation of the ABL into State borders Art 8 • Family life • Home • Art 1 P1 • Peaceful enjoyment of possessions • Administrative practice of unlawfully restricting ethnic Georgians’ access to their homes, land and other property as well as to cemeteries in Abkhazia and South Ossetia Art 2 P1 • Right to education • Administrative practice of denying right to education in the Georgian language to ethnic Georgians living in Abkhazia and South Ossetia • Regions recognised by the overwhelming majority of the international community as an integral part of Georgia; Georgian thus considered to be one of the official languages in both of them • No indication impugned measures pursued a legitimate aim • Very essence of right impaired depriving it of its effectiveness   Prepared by the Registry. Does not bind the Court. STRASBOURG 9 April 2024 FINAL   09/07/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Georgia v. Russia (IV), The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Egidijus Kūris,   Pauliine Koskelo,   Lado Chanturia,   Lorraine Schembri Orland,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having deliberated in private on 12 March 2024, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 39611/18) against the Russian Federation lodged with the Court under Article   33 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Georgia (“the applicant Government”) on 22   August 2018. The applicant Government were represented before the Court by their Agent, Mr B. Dzamashvili. 2.     The Russian Government (“the respondent Government”) were represented by the General Prosecutor’s Office of the Russian Federation. 3.     After the Russian Federation had ceased to be a member of the Council of Europe and a High Contracting Party to the Convention, the President of the Chamber decided to appoint an ad   hoc judge from among the members of the composition, applying by analogy Rule   29 §   2 (b) of the Rules of Court (see Kutayev v. Russia , no. 17912/15, §§ 5-9, 24 January 2023). 4.     By a decision of 28   March 2023, the Court declared the application admissible. 5 .     The applicant Government, but not the respondent Government, filed written observations on the merits (Rule   58 §   1). 6.     The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule   58 §   2). THE FACTS THE CIRCUMSTANCES OF THE CASE 7 .     In the context of an armed conflict that occurred between Georgia and Russia in August 2008, the Russian armed forces invaded all of Abkhazia and South Ossetia [1] (for more details about that conflict, see Georgia v. Russia   (II) [GC], no. 38263/08, §§ 32-44, 21 January 2021). Russia recognised those two Georgian regions as independent States on 26 August 2008. That recognition was not followed by the international community [2] . On the basis of “friendship and cooperation” agreements with Abkhazia and South Ossetia, Russia then established military bases and stationed up to 3,800 Russian soldiers in each of those two regions. Subsequent agreements set up a joint military command between Russia and Abkhazia and incorporated the South Ossetian “military” into the Russian armed forces [3] . 8 .     Furthermore, pursuant to agreements on “joint efforts in protecting the border” [4] , Russian border guards (under the Federal Security Service of the Russian Federation) secure the administrative boundary line (“ABL”) between those breakaway regions and the territory controlled by the Georgian government. It has been reported that there are around 900 Russian border guards in South Ossetia and around 1,500 in Abkhazia [5] . Since 2009, physical barriers and other measures have gradually been established to block people from crossing the ABL freely. As described by the European Union Monitoring Mission (EUMM) in Georgia [6] , this process – often called “borderisation” – includes three main elements: (1) the establishment of physical infrastructure, such as fencing, barbed wire, guard towers, signs informing people that they are approaching the “borders” and advanced surveillance equipment, to force commuters, vehicles and goods to use controlled crossing points established at the ABL; (2) surveillance and patrolling by either Russian border guards or security actors from the breakaway regions who monitor the situation and detain people if they are in violation of established rules; and (3) a crossing regime requiring commuters to have specific documents and only use “official” crossing points [7] . Reportedly, this process intensified in 2013 [8] . Uncontrolled crossings have been a frequent occurrence, with people taking backdoor paths across the conflict divide to bypass the controlled crossing points. Many of those who cross outside controlled crossing points have no crossing documents. Others cross via uncontrolled paths because travel to the crossing points is too inconvenient [9] . Another reason is that it is not always clear where the ABL lies (only parts of the ABL have been marked so far) [10] . 9 .     Georgia and the overwhelming majority of the international community consider the process of “borderisation” illegal under international law. The Georgian authorities refer to the ABL as the occupation line. In contrast, the Russian and the de facto Abkhaz and South Ossetian authorities treat the ABL as an international border on the grounds that Russia has recognised the two breakaway entities as independent States. 10 .     The relevant legal framework was set out in the admissibility decision in the present case (see Georgia v. Russia   (IV) (dec.), no. 39611/18, §§   14 ‑ 19, 28 March 2023). The applicant Government referred to numerous other international materials. The most relevant of them are cited in paragraphs 30 ‑ 31, 40-41, 61, 70 and 78 below. 11.     Amnesty International described the situation as follows (see “Behind barbed wire: Human rights toll of ‘borderisation’ in Georgia”, 2018, pp.   5-6): “In 2013 85-year-old Davit Vanishvili from Khurvaleti in Georgia was given a stark choice by Russian servicemen who were physically reinforcing a boundary between the breakaway region of South Ossetia/Tskhinvali Region and the rest of Georgian territory, a line they said ran through his village. He could stay in the family home on one side of the fence, regarded as part of South Ossetia/Tskhinvali Region, or move to the other side on Georgian-controlled territory, and live the rest of his life displaced. Davit chose to stay, but is now separated from the rest of his family and friends by the barbed wire which cuts through his village. Risking detention if he tries to cross, he and his wife survive through relatives and neighbours who pass his pension, medicine and other goods through the fence under cover of darkness. As thanks, he tends the graves of their deceased they can no longer reach, on his side of the wire. Davit remains caught in one of the most painful legacies of the August 2008 Georgia-Russia conflict which continues to take a heavy toll on those in affected areas even after a cease-fire ended armed hostilities later that same month. He is among those divided or displaced by increasing securitization of what is known as the Administrative Boundary Line (ABL) running between Georgia’s breakaway territories of South Ossetia/Tskhinvali Region and Abkhazia on the one hand, and Georgian-controlled territory on the other. Communities are separated from each other and the land that supports them. Villagers – some living in the poorest parts of the country - have lost access to pastures, farmland and orchards, to sources of water in summer, and firewood for winter. They are cut off from relatives, sources of income and cultural and social life. Each year hundreds are detained arbitrarily while trying to cross. Many of these violations arise directly from moves to further entrench lines of separation arising from the 2008 – and previous – conflicts, turning what were once often just dotted lines on a map into a physical barrier. Known as ‘borderization’, it is a process spearheaded since 2009 by Russian forces seeking to transform the ABL into an ‘international border’ after Moscow’s recognition of Abkhazia and South Ossetia/Tskhinvali Region as independent states. It entails the installation of physical barriers such as barbed wire, metal or wooden fences, trenches, anti-fire ditches or raked earth, together with ‘border’ signs and surveillance equipment to further mark – and securitize - the ABL. ... Ensuring the rights to freedom of movement and liberty of those who live near the ABL remains a major challenge. People on both sides seek to cross the ABL for various reasons, such as to tend agricultural lands, see relatives, trade, access medical care, education or social benefits, and visit graveyards or religious buildings. However, crossings outside the limited number of designated crossing points and without proper documentation, which is often hard to secure, are considered illegal by the Russian and local de-facto authorities. This results in hundreds of people being arbitrarily detained every year, including, in the case of South Ossetia/Tskhinvali Region, both ethnic Georgians and ethnic Ossetians. Some of those held have alleged ill-treatment while detained. Constraints on rights to liberty and freedom of movement are compounded by uncertainty with, and lack of information about, policies regarding the crossing of the ABL and its location in unmarked parts. So, for example, residents may be detained by Russian servicemen for allegedly crossing the ‘state border’, or solely for being in the vicinity of the ABL, even though they often do not know where it actually lies.” 12 .     According to EUMM, the hotline set up by it in Georgia was activated 2,741 times in respect of detentions for ABL crossings in the period from 2011 to September 2018 (see EUMM Monitor , Issue 7, October 2018, p. 4). THE LAW   SUBJECT-MATTER of the Case 13 .     The applicant Government outlined their case as follows: “The first administrative practice of the Russian authorities, and the ‘authorities’ of Russia’s subordinate local administrations ( de facto ‘organs’ of the Russian Federation in the occupied Georgian territories), of harassing, unlawfully ‘arresting’ and ‘detaining’ Georgians attempting to ‘cross’ the occupation lines, or living adjacent to them, restricting their freedom of movement, ‘detaining’ them against their will, and subjecting them to physical ill-treatment (sometimes amounting to torture or leading to death) – this administrative practice involves a systematic pattern of action which violates the Convention rights of the Georgian population living close to the occupation lines on both sides – Article 2 (the right to life); Article 3 (the protection from torture and inhuman or degrading treatment or punishment); Article 5 (the right to be protected against arbitrary deprivation of liberty) and Article 8 (the right to respect for one’s home, and one’s private and family life – lack of access to home and the graves of relatives) of the Convention; Article 2 of Protocol No. 4 (the right to freedom of movement); Article 1 of Protocol No. 1 (the right to property) and Article 2 of Protocol No. 1 (the right to education). The Government also rely on Article 14 (the prohibition on discrimination) and Article 18 (limitation on the use of restrictions on Convention rights) of the Convention; The second administrative practice of the Russian authorities, and the ‘authorities’ of the subordinate local administrations, to shield perpetrators from justice for serious crimes of violence (including fatal violence) committed by ‘border guards’ or ‘officials’ for whose actions the Russian Federation is accountable under the Convention, as confirmed by Georgia v. Russia (II) , which amounts to a practice of impunity for public officials and others committing those crimes – this violates the procedural obligation inherent in Articles 2 and 3 of the Convention (the duty to conduct a prompt, independent and impartial investigation capable of leading to the identification, accountability, and punishment of the perpetrator); and Article 13 (the right to an effective remedy).” 14.     In addition, the applicant Government complained that the respondent Government had violated Article 38 of the Convention by failing to provide all necessary facilities to the Court in its task of establishing the facts of the case. 15 .     At the request of the Court, the applicant Government submitted lists of the alleged victims of administrative practices contrary to Articles 2 and 3 of the Convention. Those lists contained thirty-three and seventy-six names, respectively, and a detailed account of each case. In respect of each case, the Government also provided different pieces of evidence, such as testimonies, forensic reports and, where relevant, death certificates. A reference to various media reports and/or materials originating from international organisations and independent international human rights protection associations was also provided in respect of most of the cases. The applicant Government further submitted a list of more than 2,800 alleged cases of arrest and detention for “illegally crossing” the ABL, including the names of the alleged victims, their dates of birth and places of residence, as well as the dates and places of their detention. As regards the other alleged administrative practices contrary to the Convention, the applicant Government provided photos of physical infrastructure erected at the ABL and a reference to numerous media reports and materials originating from international organisations and independent international human rights protection associations (see paragraph 10 above).   temporal scope of the case 16 .     The Court notes that the applicant Government complained in essence about various human rights consequences of the process of “borderisation” outlined in paragraph 8 above. That process started in 2009. Accordingly, no events which occurred before 2009 will be considered as illustrations of the administrative practices alleged. 17 .     In view of the fact that the Russian Federation ceased to be a Party to the Convention on 16 September 2022, the Court has jurisdiction to deal with the applicant Government’s complaints in so far as they relate to facts that took place before that date (see Georgia v. Russia   (IV) (dec.), cited above, §   23, and the authorities cited therein).    respondent Government’s failure to participate in the proceedings 18.     The Court notes that, by failing to submit written observations on the merits when requested to do so (see paragraph 5 above), the respondent Government manifested their intention to abstain from participating further in the examination of the present application. The Court has already held that the cessation of a Contracting Party’s membership of the Council of Europe does not release it from its duty to cooperate with the Convention bodies. This duty continues for as long as the Court remains competent to deal with applications arising out of acts or omissions capable of constituting a violation of the Convention, provided that they took place prior to the date on which the respondent State ceased to be a Contracting Party to the Convention (see Svetova and Others v. Russia , no. 54714/17, §§ 29-31, 24 January 2023). Since the present case relates to facts that took place before 16 September 2022 and the Court has jurisdiction to deal with it (see paragraph 17 above), the respondent Government’s failure to engage with the proceedings cannot be an obstacle to its examination.   Concept of “administrative Practice” 19 .     In the present case, the Court is called upon to examine whether or not there existed “administrative practices” in breach of Articles 2 (substantive and procedural limbs), 3 (substantive and procedural limbs), 5 § 1, 8, 13, 14 and 18 of the Convention, Articles 1 and 2 of Protocol No. 1 and Article 2 of Protocol No. 4 (see Georgia v. Russia   (IV) (dec.), cited above, §   69). It refers in this connection to the definition of the concept of “administrative practice” outlined in Georgia v. Russia (I) ([GC], no. 13255/07, §§   122-24, ECHR   2014 (extracts)): “122.     The Court reiterates that an administrative practice comprises two elements: the ‘repetition of acts’ and ‘official tolerance’ (see France, Norway, Denmark, Sweden and the Netherlands v. Turkey , nos. 9940-9944/82, Commission decision of 6   December 1983, Decisions and Reports 35, p. 163, § 19, and Cyprus v. Turkey , cited above, § 99). 123.     As to the ‘repetition of acts’, the Court describes these as ‘an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system’ (see Ireland v. the United Kingdom , cited above, § 159, and Cyprus v. Turkey , cited above, §   115). 124.     By ‘official tolerance’ is meant that illegal acts ‘are tolerated in the sense that the superiors of those immediately responsible, though cognisant of such acts, take no action to punish them or to prevent their repetition; or that a higher authority, in face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied’. To this latter element, the Commission added that ‘any action taken by the higher authority must be on a scale which is sufficient to put an end to the repetition of acts or to interrupt the pattern or system’ (see France, Norway, Denmark, Sweden and the Netherlands v. Turkey , cited above, pp. 163-64, § 19). In that connection, the Court has observed that ‘it is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice. Furthermore, under the Convention those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected’ (see Ireland v. the United Kingdom , cited above, § 159).” Questions of Proof     Burden of proof 20.     The Court’s approach, first set out in Ireland v. the United Kingdom (18 January 1978, §§ 160-61, Series A no. 25) and more recently confirmed in Cyprus v. Turkey ([GC], no. 25781/94, §§ 112-13 and 115, ECHR 2001 ‑ IV) and in Georgia v.   Russia   (I) (cited above, § 95), is that, as a general rule, the burden of proof is not borne by one or the other party, because the Court examines all material before it irrespective of its origin, and because it can, if necessary, obtain material of its own motion. It has since then relied on the concept of burden of proof in certain particular contexts. On a number of occasions, it has recognised that a strict application of the principle affirmanti incumbit probatio – that is, that the burden of proof in relation to an allegation lies on the party which makes it – is not possible, notably in instances when this has been justified by the specific evidentiary difficulties faced by the applicants (see Baka v. Hungary [GC], no. 20261/12, §§ 143 and 149, 23 June 2016, with further references, in relation to various substantive Articles of   the Convention when only the respondent Government have access to information capable of corroborating or refuting the applicant’s allegations). 21.     Indeed, although it relies on the evidence which the parties adduce spontaneously, the Court routinely of its own motion asks them to provide material which can corroborate or refute the allegations made before it. If the respondent Government in question do not heed such a request, the Court cannot force the latter to comply with it, but can – if the respondent Government do not duly account for their failure or refusal – draw inferences (see, mutatis mutandis , Janowiec and Others v. Russia [GC], nos.   55508/07 and 29520/09, §   202, ECHR 2013, with further references). It can also combine such inferences with contextual factors. Rule 44C § 1 of the Rules of Court gives it considerable leeway on that point. At the same time, the failure of the respondent State to participate effectively in the proceedings should not automatically lead to acceptance of the applicant’s claims. The Court must be satisfied on the basis of the available evidence that the claim is well founded in fact and in law (see Svetova and Others , cited above, § 30). 22.     The possibility for the Court to draw inferences from the respondent Government’s conduct in the proceedings before it is especially pertinent in situations – for instance, those concerning people in the custody of the authorities or those where a State restricts the access of independent human rights monitoring bodies to an area in which it exercises “jurisdiction” within the meaning of Article 1 of the Convention – in which the respondent State alone has access to information capable of corroborating or refuting the applicant’s allegations (see, among other authorities, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 152, ECHR   2012, and Georgia v. Russia   (IV) (dec.), cited above, § 67).     Standard of proof 23.     The standard of proof before the Court is “beyond reasonable doubt” (see Georgia v. Russia (I) [GC], no. 13255/07, § 93, ECHR 2014 (extracts), and the authorities cited therein). That standard, however, is not co-extensive with that of the national legal systems which employ it. First, such proof can follow from the coexistence of sufficiently strong, clear and concordant inferences or similar unrebutted presumptions of fact. Secondly, the level of persuasion required to reach a conclusion is intrinsically linked to the specificity of the facts, the nature of the allegation made, and the Convention right at stake. The Court has consistently reiterated those points (see, for instance, Merabishvili v. Georgia [GC], no. 72508/13, § 314, 28 November 2017, with further references).     Assessment of the evidence 24 .     The Court’s approach concerning the assessment of the evidence, also set out as early as in Ireland v. the United Kingdom (cited above, § 210) and confirmed more recently in Georgia v.   Russia   (I) (cited above, § 138), is that the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it. In Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII), the Court further clarified that point, saying that when assessing evidence it is not bound by formulae and adopts the conclusions supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions (see also Georgia v.   Russia   (I) , cited above, § 94). It has also stated that it is sensitive to any potential evidentiary difficulties encountered by a party. The Court has consistently adhered to that position, applying it to complaints under various Articles of the Convention (see Baka , cited above, § 143, with further references). Since it is ultimately for the Court to make its own findings and reach its own conclusions on the applicant’s allegations, it will draw on all the material available, including the factual findings of the relevant domestic and international human rights observers (see Kukhalashvili and Others v. Georgia , nos. 8938/07 and 41891/07, § 148, 2 April 2020).   ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 25.     The applicant Government relied on Article 2, which reads as follows: “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.”     The parties’ submissions 26 .     The applicant Government complained of a pattern of killing of ethnic Georgian civilians attempting to enter or exit Abkhazia or South Ossetia, and a lack of an appropriate investigation into such allegations, in violation of the substantive and procedural aspects of Article 2. In that regard, they referred to three illustrative cases: namely, the deaths of Davit Basharuli (an ethnic Georgian resident of South Ossetia who had been arrested by the de facto authorities of South Ossetia on 4 June 2014 on suspicion of having committed a burglary and had not been seen again until 4 January 2015, when his body had been found hanging from a tree in a forest in South Ossetia; according to an expert report submitted by the applicant Government, his body bore signs of beating); Giga Otkhozoria (an ethnic Georgian who had been refused entry into Abkhazia and had then been chased and killed by a “border guard” of the de facto authorities of Abkhazia in the territory controlled by the Georgian government on 19 May 2016); and Archil Tatunashvili (an ethnic Georgian who had been arrested by the de facto authorities of South Ossetia while trying to enter that breakaway region, interrogated about his involvement in the 2008 conflict and, according to an expert report submitted by the applicant Government, tortured to death). The applicant Government also submitted a list of thirty other alleged victims together with evidential material. 27.     The respondent Government did not submit any observations on the merits.     The Court’s assessment      General principles 28.     Article 2 contains two substantive obligations: the general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life, delimited by a list of exceptions. The exceptions delineated in paragraph 2 indicate that Article 2 extends to, but is not concerned exclusively with, intentional killing. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted to kill an individual intentionally, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 175, ECHR 2011 (extracts)). Having regard to its fundamental character, Article 2 of the Convention also contains a procedural obligation to carry out an effective investigation into alleged breaches of its substantive limb ( see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 229, 30 March 2016).      Application of the above-mentioned principles to the facts of the case 29 .     The Court has carefully analysed the list of the alleged victims and all other evidence submitted by the applicant Government (see paragraph 15 above). Some of the incidents included in that list fall outside the temporal scope of this case (see paragraphs 16-17 above). Furthermore, some other incidents included in the list have no apparent link to the process of “borderisation” since they did not take place at the ABL or after an arrest for a “border violation”. Nevertheless, the Court considers that at least twenty incidents from that list fall within the scope of the present case, including the deaths of seven ethnic Georgian residents of Abkhazia while trying to cross the ABL by alternative routes with the intention of collecting their pension or medication from the territory controlled by the Georgian government. The respondent Government did not argue, let alone substantiate, that those incidents had not taken place. 30 .     The international materials submitted by the applicant Government also refer to instances of use of lethal force or incidental loss of life (see paragraph 24 above). For example, the relevant part of the consolidated report of the Secretary General of the Council of Europe on the conflict in Georgia of 1 April 2021 (SG/Inf(2021)10) reads as follows: “34.     In general, through the course of the past year, it was reported that the closure of the ‘crossing points’ had increased the number of attempted crossings of the ABL outside the ‘crossing points’ in insecure conditions creating occurrences of risk for life and health and bringing about instances of illegal detentions and fines.” The relevant part of the consolidated report of the Secretary General of the Council of Europe on the conflict in Georgia of 3   November 2022 (SG/Inf(2022)38) reads as follows: “36.     The delegation was in particular informed that no progress had been achieved on the investigation demanded by the Georgian authorities into the deaths of Giga Otkhozoria, David Basharuli and Archil Tatunashvili, nor regarding the deaths of Irakli Kvaratskhelia and Inal Jabiev.” 31 .     The Court finds that the incidents under consideration are sufficiently numerous and interconnected to amount not merely to isolated incidents or exceptions but to a pattern or system (see paragraph 19 above). Moreover, taking into account the apparent lack of an effective investigation into the incidents in question, the Court considers that the “official tolerance” element of the administrative practice (see paragraph 19 above) has also been established beyond reasonable doubt. 32.     Turning to the compatibility of that practice with Article 2, the Court has first examined the incidents in which the victims were beaten to death or shot at by Russian or de facto Abkhaz and South Ossetian agents. While it is true that a number of those who were shot at by Russian agents at the ABL survived, the Court has held that in exceptional circumstances, depending on considerations such as the degree and type of force used and the nature of the injuries, use of force by State agents which does not result in death may disclose a violation of Article 2 if the behaviour of the State agents, by its very nature, puts the applicant’s life at serious risk even though the latter survives (see Makaratzis v. Greece [GC], no. 50385/99, § 55, ECHR   2004 ‑ XI). The Court considers that those conditions are met in this case. It further considers that the respondent State did not argue, let alone substantiate, that the use of force had been no more than “absolutely necessary” for the achievement of one of the purposes set out in Article 2 § 2 of the Convention. As regards those who died while trying to cross the ABL by alternative routes (see paragraph 29 above), the Court reiterates that Article 2 of the Convention cannot be interpreted as guaranteeing to every individual an absolute level of security in any activity in which the right to life may be at stake, in particular when the person concerned bears a degree of responsibility for the accident having exposed himself or herself to unjustified danger (see, for example, Çakmak v.   Turkey (dec.), no. 34872/09, § 35, 21 November 2017). However, since in the present case the victims had to use dangerous routes because of unlawful restrictions on freedom of movement imposed by the de facto authorities of Abkhazia and South Ossetia (see paragraph 63 below), the Court considers that the respondent State’s responsibility for those deaths is engaged. 33.     Having regard to the above, the Court considers that it has sufficient evidence in its possession to conclude that there was an administrative practice contrary to the substantive limb of Article 2 of the Convention. 34.     The Court further considers that it has sufficient evidence to conclude that there has not been an effective investigation into the incidents at issue and, accordingly, that there was also an administrative practice contrary to the procedural limb of Article 2 of the Convention.    ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 35.     The applicant Government relied on Article 3, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”     The parties’ submissions 36.     The applicant Government complained under the substantive limb of Article 3 that a number of ethnic Georgians, who had been detained by the Russian or the de facto authorities of Abkhazia or South Ossetia for “illegally crossing” the ABL, had later complained of ill-treatment in detention and/or inhumane conditions of detention. In that regard, they submitted a list of the alleged victims together with evidential material (see paragraph 15 above). 37.     The respondent Government did not submit any observations on the merits.     The Court’s assessment      General principles 38.     The Court reiterates its recent case-law on Article 3 of the Convention that it has summarised in its pilot judgment Ananyev and Others v.   Russia (nos. 42525/07 and 60800/08, §   139 ‑ 42, 10 January 2012) and reproduced in its judgment Idalov v. Russia ([GC], no. 5826/03, §§   91 ‑ 94, 22 May 2012): “... Article 3 enshrines one of the most fundamental values of democratic societies. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see, for example Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom , 18   January 1978, § 162, Series A no. 25). Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see, among other authorities, Vasyukov v. Russia , no. 2974/05, § 59, 5 April 2011). In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no.   30210/96, §§ 92-94, ECHR 2000‑XI, and Popov v.   Russia, no. 26853/04, § 208, 13   July 2006). When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece , no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia , no. 64812/01, § 50, 8   November 2005).”      Application of the above-mentioned principles to the facts of the case 39.     The Court has carefully analysed the list of the alleged victims and all other evidence submitted by the applicant Government (see paragraph 15 above). Some of the incidents included in that list fall outside the temporal scope of this case (see paragraphs 16-17 above). Furthermore, some other incidents included in that list have no apparent link to the process of “borderisation” since the alleged ill-treatment did not take place at the ABL or following an arrest for a “border violation”. Nevertheless, the Court considers that at least fifty incidents from that list fall within the scope of the present case (at least twenty of them concern Abkhazia and at least thirty South Ossetia). The respondent Government did not argue, let alone substantiate, that those incidents had not taken place. 40 .     The international materials submitted by the applicant Government also refer to instances of ill ‑ treatment (see paragraph 24 above). For example, the relevant part of the consolidated report of the Secretary General of the Council of Europe on the conflict in Georgia of 11   April 2017 (SG/Inf(2017)18) reads as follows: “44.     It is anticipated that the reduction in the number of crossing points will inevitably lead to an increased number of detentions, which continue to occur regularly in case of crossings in ‘unauthorised’ points and/or due to lack of valid documents. According to the Georgian Security Service, 190 detention cases were reported in the course of 2016 across the ABL with Abkhazia. While as a rule those apprehended are released after being shortly detained and paying a ‘fine’, the delegation continued to receive reports about instances of ill-treatment. ...” The relevant part of the consolidated report of the Secretary General of the Council of Europe of 11 April 2018 (SG/Inf(2018)15) reads: “54.     ... in the meeting with the delegation, the Georgian Public Defender expressed concerns about the allegations of ill-treatment in Tskhinvali detention facilities.” The 2022 report of the United Nations High Commissioner for Human Rights on cooperation with Georgia (A/HRC/51/64, 12 July 2022) reads, in so far as relevant, as follows: “48.     OHCHR continued to receive reports of arbitrary deprivations of liberty and ill-treatment in both Abkhazia and South Ossetia.” 41 .     Lastly, the material conditions in places