Freedom of movement<\/strong><\/p>\nAdministrative practice as regards the inability of Georgian nationals to return to their respective homes in Abkhazia and South Ossetia: violation<\/p>\n
Facts \u2013 As in the case of Georgia v. Russia (I), the application was lodged in the context of the armed conflict between Georgia and the Russian Federation in August 2008 following an extended period of ever-mounting tensions, provocations and incidents that opposed the two countries.<\/p>\n
The applicant Government submitted that, in the course of indiscriminate and disproportionate attacks by Russian forces and\/or by the separatist forces under their control, hundreds of civilians were injured, killed, detained or went missing, thousands of civilians had their property and homes destroyed, and over 300,000 people were forced to leave Abkhazia and South Ossetia. In their submission, these consequences and the subsequent lack of any investigation engaged Russia\u2019s responsibility under Articles 2, 3, 5, 8 and 13 of the Convention, Articles 1 and 2 of Protocol No. 1 and Article 2 of Protocol No. 4.<\/p>\n
Law<\/p>\n
Article 1- Jurisdiction<\/p>\n
The Court made a distinction between the military operations carried out during the active phase of hostilities and the other events which require examining in the context of the present international armed conflict, including those that occurred during the \u201coccupation\u201d phase after the active phase of hostilities had ceased, and the detention and treatment of civilians and prisoners of war, freedom of movement of displaced persons, the right to education and the obligation to investigate.<\/p>\n
Active phase of hostilities during the five-day war (from 8 to 12 August 2008)<\/p>\n
The present case marked the first time since the decision in Bankovi\u0107 and Others (concerning the NATO bombing of the Radio\u2011Television Serbia headquarters in Belgrade) that the Court had been required to examine the question of jurisdiction in relation to military operations (armed attacks, bombing, shelling) in the context of an international armed conflict. However, the Court\u2019s case-law on the concept of extraterritorial jurisdiction had evolved since that decision, in that the Court had, inter alia, established a number of criteria for the exercise of extraterritorial jurisdiction by a State, which had to remain exceptional, the two main criteria being that of \u201ceffective control\u201d by the State over an area (spatial concept of jurisdiction) and that of \u201cState agent authority and control\u201d over individuals (personal concept of jurisdiction). Subsequently, in Medvedyev and Others the Court had explicitly reiterated, with reference to the Bankovi\u0107 and Others decision, that a State\u2019s responsibility could not be engaged in respect of \u201can instantaneous extraterritorial act, as the provisions of Article 1 did not admit a \u2018cause and effect\u2019 notion of \u2018jurisdiction\u2019\u201d (see also also M.N. and Others v. Belgium (dec.) [GC]).<\/p>\n
In that connection it could be considered from the outset that, in the event of military operations \u2013 including, for example, armed attacks, bombing or shelling \u2013 carried out during an international armed conflict, one could not generally speak of \u201ceffective control\u201d over an area. The very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos meant that there was no control over an area. It also excluded any form of \u201cState agent authority and control\u201d over individuals. This was also true in the present case, given that the majority of the fighting had taken place in areas that had previously been under Georgian control. This conclusion was confirmed by the practice of the High Contracting Parties in not derogating under Article 15 of the Convention in situations where they had engaged in an international armed conflict outside their own territory. In the Court\u2019s view, this might be interpreted as the High Contracting Parties considering that, in such situations, they did not exercise jurisdiction within the meaning of Article 1.<\/p>\n
However, having regard in particular to the large number of alleged victims and contested incidents, the magnitude of the evidence produced, the difficulty in establishing the relevant circumstances and the fact that such situations were predominantly regulated by legal norms other than those of the Convention (specifically, international humanitarian law or the law of armed conflict), the Court was not in a position to develop its case-law beyond the understanding of the notion of \u201cjurisdiction\u201d as established to date. If, as in the present case, the Court was to be entrusted with the task of assessing acts of war and active hostilities in the context of an international armed conflict outside the territory of a respondent State, it had to be for the Contracting Parties to provide the necessary legal basis for such a task. This did not mean that States could act outside any legal framework; they were obliged to comply with the very detailed rules of international humanitarian law in such a context.<\/p>\n
Conclusion: The events that had occurred during the active phase of the hostilities did not fall within the jurisdiction of the Russian Federation for the purposes of Article 1; inadmissible (eleven votes to six).<\/p>\n
Occupation phase after the cessation of hostilities (ceasefire agreement of 12 August 2008)<\/p>\n
In their observations the respondent Government had acknowledged a substantial Russian military presence after hostilities had ceased, and provided numerous indications showing the extent of the economic and financial support that the Russian Federation had provided and continued to provide to South Ossetia and to Abkhazia. The EU\u2019s Fact-Finding Mission had also pointed to the relationship of dependency not only in economic and financial terms, but also in military and political ones; the information provided by it was also revealing as to the pre-existing relationship of subordination between the separatist entities and the Russian Federation, which had lasted throughout the active phase of the hostilities and after their cessation. \u00a0In its report, the EU Fact-Finding Mission had referred to \u201ccreeping annexation\u201d of South Ossetia and Abkhazia by the Russian Federation.<\/p>\n
The Russian Federation had therefore exercised \u201ceffective control\u201d, within the meaning of the Court\u2019s case-law, over South Ossetia, Abkhazia and the \u201cbuffer zone\u201d from 12 August to 10 October 2008, the date of the official withdrawal of the Russian troops. Even after that period, the strong Russian presence and the South Ossetian and Abkhazian authorities\u2019 dependency on the Russian Federation, on whom their survival depended, as was shown particularly by the cooperation and assistance agreements signed with the latter, indicated that there had been continued \u201ceffective control\u201d over South Ossetia and Abkhazia.<\/p>\n
Conclusion: The events that had occurred after the cessation of hostilities fell within the jurisdiction of the Russian Federation for the purposes of Article 1 (sixteen votes to one).<\/p>\n
Interrelation between the provisions of the Convention and the rules of international humanitarian law (IHL)<\/p>\n
The Court examined the interrelation between the two legal regimes with regard to each aspect of the case and each Convention Article alleged to have been breached. In doing so, it ascertained each time whether there was a conflict between the two legal regimes.<\/p>\n
Definition of the concept of \u201cadministrative practice\u201d<\/p>\n
While the criteria set out in Georgia v. Russia (I) [GC] defined a general framework, they did not indicate the number of incidents required to establish the existence of an administrative practice: that was a question left for the Court to assess having regard to the particular circumstances of each case.<\/p>\n
Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1<\/p>\n
Generally speaking, IHL applied in a situation of \u201coccupation\u201d. In the Court\u2019s view, the concept of \u201coccupation\u201d for the purposes of IHL included a requirement of \u201ceffective control\u201d. If there was \u201coccupation\u201d for the purposes of IHL there would also be \u201ceffective control\u201d within the meaning of the Court\u2019s case-law, although the term \u201ceffective control\u201d was broader and covered situations that did not necessarily amount to a situation of \u201coccupation\u201d for the purposes of IHL. Having regard to the complaints raised in the present case, there was no conflict between Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1 and the rules of IHL applicable in a situation of occupation.<\/p>\n
From the time when the Russian Federation had exercised \u201ceffective control\u201d over the territories of South Ossetia and the \u201cbuffer zone\u201d after the active conduct of hostilities had ceased, it was also responsible for the actions of the South Ossetian forces, including an array of irregular militias, in those territories, without it being necessary to provide proof of \u201cdetailed control\u201d of each of those actions. The Court had sufficient evidence in its possession to enable it to conclude beyond reasonable doubt that there had been an administrative practice contrary to Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1 as regards the killing of civilians and the torching and looting of houses in Georgian villages in South Ossetia and in the \u201cbuffer zone\u201d. Having regard to the seriousness of the abuses committed, which could be classified as \u201cinhuman and degrading treatment\u201d owing to the feelings of anguish and distress suffered by the victims, who, furthermore, had been targeted as an ethnic group, this administrative practice was also contrary to Article 3.<\/p>\n
Conclusion: violation (sixteen votes to one).<\/p>\n
Articles 3 and 5 (treatment of civilian detainees and lawfulness of their detention)<\/p>\n
There was no conflict between Article 3 and the provisions of IHL, which provided in a general way that detainees were to be treated humanely and detained in decent conditions. As for Article 5, there might be such a conflict (see Hassan v. the United Kingdom [GC], \u00a7\u00a7 97-98); however, there was none in the present case since the justification for detaining civilians put forward by the respondent Government was not permitted under either set of rules.<\/p>\n
Some 160 Georgian civilians detained by the South Ossetian forces in the basement of the \u201cMinistry of Internal Affairs of South Ossetia\u201d in Tskhinvali between approximately 10 and 27 August 2008 fell within the jurisdiction of the Russian Federation for the purposes of Article 1. There had been an administrative practice contrary to Article 3 as regards their conditions of detention and the humiliating acts to which they had been exposed, which had to be regarded as inhuman and degrading treatment. There had also been an administrative practice contrary to Article 5 as regards their arbitrary detention.<\/p>\n
Conclusion: violation (unanimously).<\/p>\n
Article 3 (treatment of prisoners of war)<\/p>\n
There was no conflict between Article 3 and the provisions of IHL, which provided that prisoners of war had to be treated humanely and held in decent conditions.<\/p>\n
The Georgian prisoners of war who had been detained in Tskhinvali between 8 and 17 August 2008 by the South Ossetian forces fell within the jurisdiction of the Russian Federation for the purposes of Article 1. There had been an administrative practice contrary to Article 3 as regards the acts of torture of which they had been victims.<\/p>\n
Conclusion: violation (sixteen votes to one).<\/p>\n
Article 2 of Protocol No. 4 (freedom of movement of displaced persons)<\/p>\n
There was no conflict between Article 2 of Protocol No. 4 and the relevant provisions of IHL concerning a situation of occupation.<\/p>\n
A large number of Georgian nationals who had fled the conflict no longer resided in South Ossetia, but in undisputed Georgian territory. However, in the Court\u2019s view, the fact that their respective homes, to which they had been prevented from returning, were situated in areas under the \u201ceffective control\u201d of the Russian Federation, and the fact that the Russian Federation exercised \u201ceffective control\u201d over the administrative borders, were sufficient to establish a jurisdictional link for the purposes of Article 1 between the Russian Federation and the Georgian nationals in question. There had been an administrative practice contrary to Article 2 of Protocol No. 4 as regards the inability of Georgian nationals to return to their respective homes.<\/p>\n
Conclusion: violation (sixteen votes to one).<\/p>\n
Article 2 of Protocol No. 1 (alleged looting and destruction of public schools and libraries and intimidation of ethnic Georgian pupils and teachers)<\/p>\n
There was no conflict between Article 2 of Protocol No. 1 and the relevant provisions of IHL concerning a situation of occupation.<\/p>\n
The Court did not have sufficient evidence in its possession to conclude beyond reasonable doubt that there had been incidents contrary to Article 2 of Protocol No. 1.<\/p>\n
Conclusion: violation (unanimously).<\/p>\n
Article 2 (obligation to investigate)<\/p>\n
In general, the obligation to carry out an effective investigation under Article 2 was broader than the corresponding obligation in IHL. Otherwise, there was no conflict between the applicable standards in this regard under Article 2 and the relevant provisions of IHL.<\/p>\n
In the present case, in view of the allegations that it had committed war crimes during the active phase of the hostilities, the Russian Federation had an obligation to investigate the events in issue, in accordance with the relevant rules of IHL and domestic law. Indeed, the prosecuting authorities of the Russian Federation had taken steps to investigate those allegations. Furthermore, although the events that had occurred during the active phase of the hostilities did not fall within the jurisdiction of the Russian Federation, it had established \u201ceffective control\u201d over the territories in question shortly afterwards. Lastly, given that all the potential suspects among the Russian service personnel were located either in the Russian Federation or in territories under the control of the Russian Federation, Georgia had been prevented from carrying out an adequate and effective investigation into the allegations. Accordingly, having regard to the \u201cspecial features\u201d of the case, the Russian Federation\u2019s jurisdiction within the meaning of Article 1 was established in respect of this complaint (see, mutatis mutandis, G\u00fczelyurtlu and Others [GC]).<\/p>\n
The Russian Federation had therefore a procedural obligation under Article 2 to carry out an adequate and effective investigation not only into the events that occurred after the cessation of hostilities but also into the events that occurred during the active phase of the hostilities. Having regard to the seriousness of the crimes allegedly committed during the active phase of the hostilities, and the scale and nature of the violations found during the period of occupation, the investigations carried out by the Russian authorities had been neither prompt nor effective nor independent, and accordingly had not satisfied the requirements of Article 2.<\/p>\n
Conclusion: violation (sixteen votes to one).<\/p>\n
Article 38<\/p>\n
The respondent Government had refused to submit the \u201ccombat reports\u201d, on the grounds that the documents in question constituted a \u201cState secret\u201d, despite the practical arrangements proposed by the Court to submit non-confidential extracts. Nor had they submitted any practical proposals of their own to the Court that would have allowed them to satisfy their obligation to cooperate while preserving the secret nature of certain items of information.<\/p>\n
Conclusion: violation (sixteen votes to one).<\/p>\n
The Court also held, unanimously, that there was no need to examine separately the applicant Government\u2019s complaint under Article 13 in conjunction with Articles 3, 5 and 8 and with Articles 1 and 2 of Protocol No. 1 and Article 2 of Protocol No. 4.<\/p>\n
Article 41: reserved.<\/p>\n
(See also Georgia v. Russia (I) [GC], no. 13255\/07, ECHR 2014 (extracts), Legal summary; Hassan v. the United Kingdom [GC], no. 29750\/09, ECHR 2014, Legal summary; G\u00fczelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925\/07, 29 January 2019, Legal summary; Medvedyev and Others v. France [GC], no. 3394\/03, ECHR 2010, Legal summary; Bankovi\u0107 and Others (dec), no. 52207\/99, 12 December 2001, Legal summary;\u00a0 M.N. and Others v. Belgium (dec.) [GC], no. 3599\/18, 5 May 2020, Legal summary)<\/p>\n