On January 21, 2021, after a 12-year wait, the Grand Chamber of the European Court of Human Rights issued a very important judgment for Georgia in the case of Georgia v. Russia (II). The ruling refers to serious human rights violations committed against Georgian citizens during and after the August 2008 war.

On 11 August 2008, the Government of Georgia lodged an inter-state complaint with the European Court of Human Rights against the Russian Federation, alleging that the Russian Federation had violated Article 2 (right to life), Article 3 (prohibition of torture), Article 5 (right to liberty and security), Article 8 (right to respect for private and family life) and Article 13 (right to an effective remedy) of the European Convention on Human Rights, as well as Article 1 (protection of property) and Article 2 (right to education) of the Optional Protocol No. 1 to the Convention and Article 2 (freedom of movement) of Protocol No. 4 to the Convention.

In the 21 January judgment, the European Court found the Russian Federation responsible for the violation of the rights enshrined in all of the above articles, except for the right to education enshrined in Article 2 of Protocol No. 1 to the Convention (found no violation of Article 2 of Protocol No. 1 to the Convention) and Article 13 of the Convention (right to an effective remedy), as the Court considered that there was no need to examine Article 13.

In particular, the European Court of Human Rights held that:

• there had been an administrative practice contrary to Article 2 (right to life), Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life) of the Convention and Article 1 (protection of property) of Protocol No. 1 to the Convention;
• there had been an administrative practice contrary to Article 3 as regards the conditions of detention of some 160 Georgian civilians in the basement of the de facto “Ministry of Internal Affairs of South Ossetia” between approximately 10 and 27 August 2008. In particular, the Court assessed the conditions as inhuman and degrading treatment;
• there had been an administrative practice contrary to Article 5 (right to liberty and security) as regards the arbitrary detention of Georgian civilians in August 2008;
• 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;
• there had been an administrative practice contrary to Article 2 of Protocol No. 4 (freedom of movement) as regards the inability of Georgian nationals to return to their homes in South Ossetia and Abkhazia. The court noted that the de-facto authorities of South Ossetia and Abkhazia had not allowed the ethnic Georgians to return to their homes.
• there had been systematic burning and looting of homes in Georgian villages after the cessation of hostilities, inhuman and degrading treatment of Georgian citizens, and violation of their right to life due to their ethnicity.

The Grand Chamber also unanimously held that the Russian Federation had had a procedural obligation under Article 2 of the Convention to carry out an adequate and effective investigation not only into the deprivation of lives of Georgians citizens, which had occurred after the cessation of hostilities (following the ceasefire agreement of 12 August 2008) but also into the events which had occurred during the active phase of hostilities (8 to 12 August 2008); However, the Russian Federation had not carried out such an investigation.

The European Court also found the violation of Article 38, as the respondent Government had refused to cooperate with the investigation and submit necessary documents.

The Grand Chamber notes in its ruling that during the active phases of hostilities (8-12 August), the Russian Federation tried to take control over the Georgian territory through aviation and artillery bombing. However, the active fighting between enemy military forces seeking to establish control over an area in a context of chaos meant that there was no “effective control” over that area. At the same time, the Court concluded that the events occurring during the active phase of hostilities (8 to 12 August 2008) had not fallen within the jurisdiction of the Russian Federation, as they had to be assessed as dominant not on the basis of the European Convention but on the basis of the norms of international humanitarian law.

The Court concluded that the events occurring after the cessation of hostilities (following the ceasefire of 12 August 2008) had fallen within the jurisdiction of the Russian Federation and held Russia responsible for the violations committed in the mentioned period.

The Court held that the question of the application of Article 41 was not ready for decision and consequently reserved it in full. The Court invitedtheapplicantGovernment and the respondent Government to make an agreement on compensation within twelve months.

The above ruling of the European Court of Human Rights is of great legal and historic importance for Georgia. By this decision, the Court confirmed that the Russian Federation had exercised “effective control” over the territories of Abkhazia, South Ossetia and the buffer zone from 12 August to 10 October 2008. After this period, Russia's strong presence on the territories of South Ossetia and Abkhazia, as well as the South Ossetian and Abkhazian de facto authorities’ dependence on and subordination to the Russian Federation, confirms that the Russian Federation continues to have "effective control" over these territories. At the same time, based on the court ruling, the Russian Federation has a legal obligation to ensure the safe return of internally displaced persons to their homes.

We would also like to remind the public that since 2016 the Office of the Prosecutor of the International Criminal Court (ICC) has been investigating the alleged war crimes and crimes against humanity committed during the August 2008 war. We believe that the judgment of the European Court will have an impact on this process, especially on the part referring to the ​​torture of Georgian prisoners of war. The European Court unanimously ruled that there had been the torture of Georgian prisoners of war and found the Russian Federation responsible for the above. Identifying high officials responsible for the torture of Georgian prisoners of war and imposing individual liabilities on them should be one of the main tasks of the International Criminal Court.

© Photo by Council of Europe