CEDH · CASELAW;CLIN;ENG — 9 avril 2024

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s2D3BC823 { font-family:Arial; font-style:italic; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary April 2024 Georgia v. Russia (IV) - 39611/18 Judgment 9.4.2024 [Section II] Article 33 Inter-State application Administrative practices by Russia stemming from “borderisation” between breakaway regions (Abkhazia and South Ossetia) and the Georgian government-controlled territory and resulting in multiple Convention violations Facts – After the Russian armed forces invaded Abkhazia and South Ossetia in August 2008, Russia recognised those two Georgian regions as independent States and established military bases with Russian soldiers in each one. Furthermore, pursuant to agreements on “joint efforts in protecting the border”, 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. Since 2009, physical barriers (fencing, barbed wire, guard wires, advanced surveillance equipment etc) and other measures (surveillance, patrolling, introduction of a crossing regime etc) have gradually been established to block people from crossing the ABL freely (process called “borderisation”). Georgia and the overwhelming majority of the international community consider the process of “borderisation” illegal under international law. 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. The applicant Government complain of administrative practices by Russia stemming from the “borderisation” process and resulting in multiple Convention violations of the rights of ethnic Georgians attempting to cross the ABLs or living adjacent to them on both sides. Law – Temporal scope of the case – The Court had jurisdiction to deal with the applicant Government’s complaints in so far as they related to facts that had taken place prior to 16   September 2022, the date on which the Russian Federation ceased to be a party to the Convention. Respondent Government’s failure to participate in the proceedings – The respondent Government by failing to submit the written observations when requested to do so had manifested their intention to abstain from further participating in the examination of the application. The Court had already held the cessation of a Contracting Party’s membership of the Council of Europe did not release it from its duty to cooperate with the Convention bodies. That duty continued for as long as the Court remained 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 had ceased to be a Contracting Party to the Convention. Since the present case related to facts that had taken place before 16   September 2022 and the Court had jurisdiction to deal with it, the respondent Government’s failure to engage with the proceedings could not be an obstacle for its examination. Merits – The respondent Government had not argued, let alone substantiated, that the various incidents put forward by the applicant Government had not taken place nor had they disputed that Government’s allegations. The incidents and allegations had also been confirmed by the international materials submitted by the applicant Government. The Court found, unanimously, based on the evidence before it, that that there had been administrative practices on the part of the Russian Federation in violation of both the substantive and procedural limbs of Articles 2 and 3, Articles 5 §   1 and 8, Articles 1 and 2 of Protocol No.   1 and Article   2 of Protocol No.   4. In particular, the incidents under consideration had been sufficiently numerous and interconnected to amount not merely to isolated incidents or exceptions but to a pattern or system. Furthermore, the “official tolerance” element of the administrative practices had been established beyond reasonable doubt. More specifically: Article   2 (substantive and procedural): At least twenty incidents from the list of alleged victims of submitted by the applicant Government fell 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 international materials submitted by the applicant Government referred to instances of use of lethal force or incidental loss of life.As regards the incidents in which the victims had been beaten to death or shot at by Russian or de facto Abkhaz and South Ossetian agents, although a number of those who had been shot at by Russian agents at the ABL had survived, the exceptional circumstances of the present case met the conditions for examination under Article   2. Further, the respondent State had not argued, let alone substantiated 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 had died while trying to cross the ABL by alternative routes, since they had had to use dangerous routes because of unlawful restrictions on freedom of movement imposed by the de facto authorities of Abkhazia and South Ossetia, the Court considered that the respondent State’s responsibility for those deaths was engaged. Conclusion : violation (unanimously). Article   3 (substantive and procedural): At least fifty incidents from the list of alleged victims submitted by the applicant Government fell within the scope of the present case (at least twenty of them concerned Abkhazia and at least thirty South Ossetia). The international materials submitted by the applicant Government also referred to instances of ill‑treatment. Moreover, the material conditions in places of detention in Abkhazia had been described in the 2017 report “ Human Rights in Abkhazia Today ” as “bad to the extent that they may well cause severe health problems”. The respondent Government had not denied the applicant Government’s claims that many ethnic Georgians who had been detained for a “border violation” in Abkhazia had been held in such conditions and that the material conditions of detention were no better in South Ossetia. The administrative practice had clearly attained the minimum level of severity required to fall within the scope of Article   3. Lastly, there had been sufficient evidence to conclude that there had not been an effective investigation into the incidents at issue. Conclusion : violation (unanimously). Article   5 §   1: The applicant Government had submitted a list of 2,800 incidents of arrest and detention for “illegally crossing” the ABL. The large-scale nature of such arrests was apparent from the international materials they had submitted. As regards the “official tolerance” element of the administrative practice, the Court noted that the practice of arrests and detentions for “illegally crossing” the ABL was a direct consequence of the official position of the Russian Federation and the breakaway regions according to which the ABL was treated as an international border. The Court had already held in its judgment in Mamasakhlisi and Others v.   Georgia and Russia that the de facto Abkhaz authorities could not order “lawful arrest or detention” within the meaning of Article   5 §   1 (a) and (c). In sum, no information had been provided as to the applicable laws; there was a scarcity of official sources of information concerning the legal and court system in Abkhazia and thus the Court had not been in a position to verify whether the de facto   Abkhaz authorities and courts, and the practices they followed fulfilled the requirements of Article   5; there was no basis for assuming the existence of system in the region reflecting a judicial tradition compatible with the Convention. Given the absence of any relevant new information to the contrary, that conclusion continued to be valid with respect to Abkhazia and there was no reason to decide otherwise with respect to South Ossetia. Conclusion : violation (unanimously). Article   2 of Protocol No.   4, Article 8 of the Convention and Article 1 of Protocol No.   1: For the same reasons for its conclusions under Article   5 §   1, the Court found as unlawful the restrictions on the freedom of movement of ethnic Georgians between Georgia and Abkhazia and South Ossetia and on access to their homes, land and other property as well as to cemeteries in those regions. Conclusion : violations (unanimously). Article   2 of Protocol No.   1: It was not disputed that, according to the “legislation” of the two breakaway regions, only Abkhaz and Russian were the official languages in Abkhazia and Ossetian and Russian in South Ossetia. However, it was also evident that the overwhelming majority of the international community (including all members of the Council of Europe) recognised Abkhazia and South Ossetia as an integral part of Georgia and supported its territorial integrity according to the principles of international law. Therefore, Georgian, as the official language of Georgia, could be considered to be one of the official languages in both those regions for the purposes of Article   2 of Protocol No.   1 and the impugned measures had amounted to an interference with the right to be educated in one of the national languages guaranteed by that Article. There was no evidence suggesting that the impugned measures pursued a legitimate aim. Even if the provision of education in Georgian in schools situated in the Georgian‑controlled territory could suffice to fulfil the obligation laid down in Article   2 of Protocol No.   1, that option was unrealistic and would subject the children concerned to long and perilous journeys. The Court had already held in a similar context in the case of Catan and Others v.   the Republic of Moldova and Russia that given the fundamental importance of primary and secondary education for each child’s personal development and future success, it was impermissible to force children and their parents to make such difficult choices with the sole purpose of entrenching the separatist ideology. Accordingly, the right in question in the instant case had been curtailed to such an extent as to impair its very essence and deprive it of its effectiveness. Conclusion : violation (unanimously). Lastly, the Court held, unanimously, that it was not necessary to examine whether there had been a violation of Articles 13, 14, 18 and 38 of the Convention as those complaints amounted in effect to the same complaints, albeit seen from a different angle, as those in which the Court had already considered and found violations. Article   41: just satisfaction reserved. (See also Cyprus v.   Turkey [GC], 25781/94, 10   May 2001; Catan and Others v.   the Republic of Moldova and Russia [GC], 43370/04 et al., 19   October 2012, Legal Summary ; Georgia v.   Russia (I) [GC], 13255/07, 3   July 2014, Legal Summary ; Ukraine v.   Russia (re Crimea) (dec.) [GC], 20958/14 and 38334/18, 16   December 2020, Legal Summary ; Georgia v.   Russia (II) [GC], 38263/08, 21   January 2021, Legal Summary ; Ukraine and the Netherlands v.   Russia (dec.) [GC], 8019/16 et al, 30   November 2022, Legal Summary ; Svetova and Others v.   Russia , 54714/17, 24   January 2023, Legal Summary ; Mamasakhlisi and Others v.   Georgia and Russia , 29999/04 and 41424/04, 7   March 2023; Georgia v.   Russia (IV) (dec.) [GC], 39611/18, 28   March 2023, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . 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