MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-32

7 December 2023

1483rd meeting, 5-7 December 2023 (DH) Human rights   H46-32 Georgia v. Russia (II) (Application No. 38263/08) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2022)194, CM/ResDH(2022)355, CM/Del/Dec(2023)1468/H46-28

 

Application	Case	Judgment of	Final on	Indicator for the classification
38263/08	GEORGIA v. RUSSIA (II)	21/01/2021 28/04/2023	Grand Chamber	Inter-State case

Case description

This case concerns various violations of the Convention in the context of the armed conflict between the Russian Federation and Georgia in August 2008. The Court distinguished between the military operations carried out during the active phase of hostilities (from 8 to 12 August 2008), which did not fall within the jurisdiction of the Russian Federation under Article 1 of the Convention, and events occurring after the cessation of the active phase of hostilities – that is, following the ceasefire agreement of 12 August 2008 – which did fall within Russia’s jurisdiction.

The Court found violations of:

-     Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1, as regards the killing of civilians and the burning and looting of houses in Georgian villages in South Ossetia and in the “buffer zone”;

-     Article 2 of the Convention in its procedural aspect, as regards the failure to carry out prompt, thorough and independent investigations into both the crimes allegedly committed during the active phase of the hostilities and the violations which occurred during the period of occupation of South Ossetia and the buffer zone;

-     Article 3 of the Convention, as regards the conditions of detention of some 160 Georgian civilians by South Ossetian forces in the basement of the “Ministry of Internal Affairs of South Ossetia” and the humiliating acts to which they were exposed, which constituted inhuman and degrading treatment;

-     Article 5 of the Convention, as regards the arbitrary detention of the above Georgian civilians in August 2008;

-     Article 3 of the Convention, as regards acts of torture in South Ossetia against Georgian prisoners of war;

-     Article 2 of Protocol No. 4, as regards the inability of Georgian nationals to return to their homes. In this context, the Court noted that negotiations were underway with a view to finding a political solution, and that “in the meantime the de facto South Ossetian and Abkhazian authorities, and the Russian Federation, which has ‘effective control” over those regions, have a duty to enable inhabitants of Georgian origin to return to their respective homes, pursuant to their obligations under the Convention” (§ 298);

-     Article 38 of the Convention because of the failure to furnish all necessary facilities to the Court in its task of establishing the facts of the case.

In its just satisfaction judgment of 28 April 2023, the Grand Chamber held that the Russian Federation was to pay the Government of Georgia within three months:

-       EUR 3,250,000 in respect of non-pecuniary damage suffered by a group of at least fifty victims of the administrative practice of killing of civilians in Georgian villages in South Ossetia and in the “buffer zone” and of the respondent Government’s failure to comply with their procedural obligation to carry out an adequate and effective investigation into those killings;

-       EUR 2,697,500 in respect of non-pecuniary damage suffered by a group of at least 166 victims of the administrative practice of inhuman and degrading treatment and arbitrary detention of Georgian civilians detained by the South Ossetian forces in the basement of the “Ministry of Internal Affairs of South Ossetia” in Tskhinvali between approximately 10 and 27 August 2008;

-       640,000 in respect of non-pecuniary damage suffered by a group of at least sixteen victims of the administrative practice of torture of Georgian prisoners of war detained by the South Ossetian forces in Tskhinvali between 8 and 17 August 2008;

-       EUR 115,000,000 in respect of non-pecuniary damage suffered by a group of at least 23,000 victims of the administrative practice of preventing the return of Georgian nationals to their respective homes in South Ossetia and Abkhazia; and

-       EUR 8,240,000 in respect of non-pecuniary damage suffered by a group of at least 412 victims of the respondent government’s failure to comply with their procedural obligation to carry out an adequate and effective investigation into the deaths which occurred during the active phase of the hostilities.

The Court indicated that the above amounts shall be distributed by the Government of Georgia to the individual victims under the supervision of the Committee of Ministers within eighteen months from the date of the payment or within any other period considered appropriate by the Committee of Ministers.

Status of Execution:

In their initial action plan dated 12 October 2021 (DH-DD(2021)1041), the Russian authorities indicated that the European Court’s principal judgment has been translated and published in their legal reference systems. It was furthermore disseminated to the Constitutional Court and the competent state bodies, in order for them to take measures necessary for the execution of the Court’s judgment.

In their subsequent action plan dated 8 February 2022 (DH-DD(2022)194), the Russian authorities highlighted that the adoption of individual measures in response to the violations established by the Court (with the exception of a procedural violation of Article 2) would be possible only once the Court issued an appropriate judgment on just satisfaction. In that regard, they stressed that the violations found by the Court were closely related to its consideration of the issue under Article 41 of the Convention on the award of just satisfaction and the determination of a specific list of victims. In response to the procedural violation of Article 2, a copy of the present judgment was sent to the Investigative Committee of the Russian Federation to take measures in terms of its competence to eliminate and prevent further violations.

The Committee of Ministers examined this case at every Human Rights meeting from June 2022 until June 2023, adopting an interim resolution at its 1451^st meeting (December 2022) (DH). During its most recent examination of this case, at the 1468^th meeting (June 2023) (DH), the Committee called upon the Russian authorities to timely pay the sums awarded by the European Court and strongly urged again the authorities to submit a thorough and comprehensive action plan on the execution of this judgment. It further exhorted the Russian authorities to thoroughly, independently, effectively and promptly investigate the serious crimes committed during the active phase of hostilities as well as during the period of occupation, so as to identify all those responsible for the purposes of bringing the perpetrators to justice. It also firmly reiterated once again its profound concern about the inability of Georgian nationals to return to their homes in South Ossetia and Abkhazia and its insistence that the Russian Federation, which has effective control over these regions, ensure without delay safe return of persons wishing to return to their homes. It called upon the authorities to provide information on the measures put in place to ensure that similar violations of Article 38 do not occur in the future. Finally, it decided to resume consideration of this case at the present DH meeting and, in the absence of any progress, to consider new action.

In its just satisfaction judgment of 28 April 2023, the Court awarded non-pecuniary damages to different groups of victims in relation to several breaches of the Convention as indicated above. The Grand Chamber highlighted that, in accordance with Article 46 § 2 of the Convention, it falls to the Committee of Ministers to supervise the execution of the Court’s judgments. In this context, the Court noted that Article 46 requires that the Committee of Ministers sets forth an effective mechanism for the implementation of the Court’s judgments also in cases against a State which has ceased to be party to the Convention. The Court observed in this connection that the Committee of Ministers continued to supervise the execution of the Court’s judgments against the Russian Federation, and the Russian Federation is required, pursuant to Article 46 § 1 of the Convention, to implement them, despite the cessation of its membership of the Council of Europe (§ 46).

Analysis of the Secretariat

At the outset it is recalled that the Russian Federation ceased to be a High Contracting Party to the European Convention on Human Rights on 16 September 2022, and that the Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022. The Committee of Ministers will continue to supervise the execution of the judgments and friendly settlements concerned and the Russian Federation is required to implement them.

Furthermore, it is recalled that the above-mentioned Court’s judgment on just satisfaction awarded the applicant Government over EUR 129 million for non-pecuniary damages to different groups of victims in relation to several breaches of the Convention. The deadline for the payment expired on 28 July 2023 and no information has been submitted. The Committee might wish to underline that there is an unconditional obligation under Article 46, paragraph 1, of the Convention to pay the just satisfaction awarded by the Court and urge the Russian authorities to pay the just satisfaction, together with the default interest accrued, without any further delay. The Committee might also wish to underline that the default interest accrues on the amount awarded by the Court. As long as the European Central Bank exchange rate does not change in the meantime, on 5 December 2023, the total amount owed by the Russian Federation will be EUR 133 358 630,15, a figure which is also reflected in the public register of just satisfaction owing in all inter-state cases against the Russian Federation, which will continue to be regularly updated.

Given the absence of information from the Russian authorities on the root causes and the underlying problems that have led to the violations found by the Court as well as the concrete measures envisaged and taken to ensure their cessation and to avoid their repetition, during the previous examinations of this case it is recalled that the Secretariat has identified a number of key issues that should be addressed by the authorities. In addition, the Secretariat listed certain measures that might be taken to ensure the non-repetition of similar violations, such as imposing effective civilian control of security forces,^[1] the improvement of professional training for members of the security forces and enhancement of their accountability,^[2] clear messages of zero tolerance of similar unlawful acts by State agents, parliamentary or other public inquiries, ombudspersons’ actions, independent commissions or mediation^[3], the measures to ensure non-repetition of similar procedural violations of Article 2 (for more details see CM/Notes/1436/H46-23 and CM/Notes/1443/H46-25).

At its December 2022 meeting the Committee invited the Secretary General to send a letter after each of the Committee’s Human Rights meetings to the Minister of Foreign Affairs of the Russian Federation.^[4] On 9 December 2022, 9 March 2023 and 7 June 2023 the Secretary General did so, informing the Minister of the decisions and resolutions adopted by the Committee at these meetings in cases where the Russian Federation is the respondent State (including the present case) and urging the authorities to comply with their obligations under international law and the Convention to fully abide by the judgments of the European Court. Despite this, at the time of the preparation of these Notes, no information has been provided by the authorities in response to the above-mentioned interim resolution and the decisions adopted.

The Committee may wish to reiterate its profoundest concerns expressed in the last decisionsand firmly reiterate once again, having regard to the scale and nature of the grave violations found, the necessity for the respondent State to take urgent and tangible measures to ensure cessation as well as elimination of the root cause of these violations and to avoid their repetition.

The authorities should be exhorted again to thoroughly, independently, effectively and promptly investigate the serious crimes committed during the active phase of hostilities as well as during the period of occupation, so as to identify all those responsible for the purposes of bringing the perpetrators to justice.

The Committee might also wish to firmly reiterate again its profound concern about the inability of Georgian nationals to return to their homes in South Ossetia and Abkhazia and its insistence that the Russian Federation, which has effective control over these regions, ensure without delay safe return of persons wishing to return to their homes.

In the repeated absence of any progress or response from the Russian authorities, the Committee may wish to, in line with its previous decision, take new action to ensure the execution of the present case. To this end, the Committee might wish to adopt an interim resolution at the present meeting.

Lastly, it is recalled that in September 2023 the Committee adopted its decision CM/Del/Dec(2023)1475/A2a concerning cases pending against the Russian Federation. The Committee in particular took note of the proposals set out by the Secretariat in information document CM/Inf/DH(2023)22 regarding the means to ensure implementation of judgments of the Court with respect to the Russian Federation. It decided to keep under review strategies to ensure the implementation of the Court’s judgments including with regards to the unconditional obligation on the Russian Federation to pay just satisfaction. It is proposed to the Committee to resume its examination of the present case at the December 2024 DH meeting, once further strategies have been elaborated.

Financing assured: YES