Condemnation of Russia for practices during the conflict with Georgia. Award of 129,827,500 euros for moral damages of victims!
JUGDMENT
Georgia v. Russia (II) 28.04.2023 (application no. 38263/08)
SUMMARY
The case concerned allegations by the Georgian Government of administrative practices on the part
of the Russian Federation entailing various breaches of the Convention, in connection with the
armed conflict between Georgia and the Russian Federation in August 2008.
The Court held, unanimously:
– that it had jurisdiction under Article 58 of the Convention to deal with the applicant Government’s
claims for just satisfaction under Article 41 of the Convention notwithstanding the cessation of the
Russian Federation’s membership of the Council of Europe, and that the respondent Government’s
failure to cooperate did not present an obstacle to their examination;
– that Article 41 of the Convention was applicable to the present case in respect of the victims of the
administrative practice of killing of civilians in Georgian villages in South Ossetia and in the “buffer
zone”, the victims of the administrative practice of torching and looting of houses in the “buffer
zone”, the victims of the administrative practice of inhuman and degrading treatment and arbitrary
detention of Georgian civilians held 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, the
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, the victims of the administrative
practice of preventing the return of Georgian nationals to their respective homes in South Ossetia
and Abkhazia, and the 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 had
occurred during the active phase of the hostilities or after the cessation of hostilities;
– that the respondent State was to pay the applicant Government, within three months,
EUR 3,250,000 (three million two hundred and fifty thousand euros) in respect of non-pecuniary
damage suffered by a group of at least 50 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;
– that the respondent State was to pay the applicant Government, within three months,
EUR 2,697,500 (two million six hundred and ninety-seven thousand five hundred euros) 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 held 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;
– that the respondent State was to pay the applicant Government, within three months, EUR 640,000
(six hundred and forty thousand euros) in respect of non-pecuniary damage suffered by a group of at least 16 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;
– that the respondent State was to pay the applicant Government, within three months, EUR 115,000,000 (one hundred and fifteen million euros) 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
– that the respondent State was to pay the applicant Government, within three months,
EUR 8,240,000 (eight million two hundred and forty thousand euros) 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 had occurred during the active phase of the hostilities.
The Court also dismissed, by nine votes to eight, the remainder of the applicant Government’s
claims for just satisfaction.
PRINCIPAL FACTS
The principal judgment in the present case was delivered on 21 January 2021. Since the question of
the application of Article 41 of the Convention was not ready for decision, the Court reserved it and
invited the applicant Government and the respondent Government to submit their observations on
the matter.
In its Georgia v. Russia (II) Grand Chamber judgment, delivered on 21 January 2021, the Court held:
(a) that there had been an administrative practice contrary to Articles 2 (right to life) and 8 (right to
respect for private and family life) of the Convention and Article 1 of Protocol No. 1 (protection of
property) as regards the killing of civilians and the torching and looting of houses in Georgian villages
in South Ossetia and in the “buffer zone” and that this administrative practice had also been
contrary to Article 3 of the Convention (prohibition of torture and inhuman and degrading
treatment) having regard to the seriousness of the abuses committed, which could be classified as
“inhuman and degrading treatment” owing to the feelings of anguish and distress suffered by the
victims, who, moreover, had been targeted as an ethnic group;
(b) that there had been an administrative practice contrary to Article 3 as regards the conditions in
which Georgian civilians had been 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 and the humiliating acts to which they had been exposed;
(c) that there had been an administrative practice contrary to Article 5 (right to liberty and security)
as regards the arbitrary detention of Georgian civilians 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;
(d) that there had been an administrative practice contrary to Article 3 as regards the torture of
Georgian prisoners of war detained by the South Ossetian forces in Tskhinvali between 8 and
17 August 2008;
(e) that 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 respective homes in
South Ossetia and Abkhazia;
(f) that the Russian Federation had failed to comply with its procedural obligation under Article 2 of
the Convention to carry out an adequate and effective investigation into the events which had occurred after the cessation of hostilities (from the date of the ceasefire agreement of 12 August 2008) and during the active phase of the hostilities (8 to 12 August 2008); and
(g) that the Russian Federation had failed to comply with its obligations under Article 38 of the
Convention.
PROVISIONS
Article 41
THE DECISION OF THE COURT…
As to the Court’s jurisdiction to deal with the case, the Court observed that the respondent State
had ceased to be a member of the Council of Europe on 16 March 2022 and had also ceased to be a
Party to the Convention on 16 September 2022.
It was apparent from the wording of Article 58 (denunciation) of the Convention (in particular the
second and third paragraphs) that a State which ceased to be a Party to the Convention by virtue of
the fact that it had ceased to be a member of the Council of Europe was not released from its
obligations under the Convention in respect of any act performed before the date on which it had
ceased to be a Party to the Convention. In the present case, the facts giving rise to the violations
found in the principal judgment had occurred before 16 September 2022. The Court therefore had
jurisdiction to deal with the claims for just satisfaction under Article 41 of the Convention in this
case.
Regarding the consequences of the respondent Government’s failure to participate in the
proceedings, the Court observed that 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; this 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 had taken place prior to the date on which the respondent State had ceased to be a Contracting Party to the
Convention.
Just satisfaction (Article 41)
The applicant Government submitted claims for just satisfaction for the following individuals in
respect of non-pecuniary damage:
(a) 116 alleged victims of the administrative practice of killing of civilians in Georgian villages in
South Ossetia and in the “buffer zone” (EUR 120,000 per victim);
(b) 26 alleged victims of rape or other forms of inhuman or degrading treatment (EUR 70,000 or
EUR 30,000 per victim, respectively);
(c) 1,408 alleged victims of the administrative practice of torching and looting of houses in the
“buffer zone” (EUR 40,000 per victim);
(d) 552 individuals who had allegedly lost their property “as a result of the armed conflict and
subsequent occupation of Georgian territory” through undefined acts, not as a result of torching and
looting (EUR 45,000 per victim);
(e) 179 alleged victims of the administrative practice of inhuman and degrading treatment and
arbitrary detention of Georgian civilians held 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 (EUR 30,000 per victim);
(f) 91 alleged victims of inhuman or degrading treatment and arbitrary detention in other places of
detention (EUR 26,000 per victim);
(g) 44 alleged 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 100,000 or
EUR 180,000 per victim, depending on whether they had survived their detention or not);
(h) 31,105 alleged victims of the administrative practice of preventing the return of Georgian
nationals to their respective homes in South Ossetia and Abkhazia (between EUR 10,000 and
EUR 35,000 per victim, depending on whether their homes had been destroyed during the armed
conflict or not); and
(i) 723 alleged victims of the respondent State’s failure to comply with its procedural obligation to
carry out an adequate and effective investigation into the deaths which had taken place during the
active phase of the hostilities or after the cessation of hostilities (EUR 35,000 per victim).
The Court first noted that the applicant Government’s just-satisfaction claims under points (b), (d)
and (f) above did not relate to any of the violations found in the principal judgment. Whereas the
Court had held in the principal judgment that the feelings of anguish and distress suffered by the
victims of the killing of civilians and the torching and looting of houses in Georgian villages in South
Ossetia and the “buffer zone” after the cessation of hostilities had amounted to “inhuman and
degrading treatment” contrary to Article 3 of the Convention, it had not found that there had been
an administrative practice contrary to Article 3 as regards any of the alleged acts of rape or other illtreatment of civilians in those villages to which the applicant Government had referred in their claim
under point (b). As regards the claim under point (d), the Court had not found in the principal
judgment that there had been an administrative practice contrary to Article 8 of the Convention
and/or Article 1 of Protocol No. 1 as regards any acts involving destruction of property other than
the torching and looting of houses after the cessation of hostilities. Lastly, as regards the claim under
point (f), the Court had not found that there had been an administrative practice contrary to
Articles 3 and/or 5 of the Convention as to the detention of civilians in any places other than the basement of the “Ministry of Internal Affairs of South Ossetia” in Tskhinvali between approximately 10 and 27 August 2008. Accordingly, in so far as those alleged victims were concerned, the applicant Government were not entitled to make a claim under Article 41 of the Convention.
By contrast, the claims under points (a), (c), (e), (g), (h) and (i) related to the operative part of the
principal judgment
In accordance with the methodology applied in Georgia v. Russia (I) (just satisfaction) (§§ 68-71), the
Court examined the lists submitted by the applicant Government of the alleged victims of the
violations found in the principal judgment in order to satisfy itself that the applicant Government’s
factual submissions were plausible and that their claims were sufficiently substantiated. In the
context of that examination the Court based its findings on the documents submitted to it by the
applicant Government only, the content of which was to be considered unchallenged in the absence
of any documents or comments submitted in response by the respondent Government.
As regards the list of 116 alleged victims of the administrative practice of killing of civilians in
Georgian villages in South Ossetia and in the “buffer zone” (see point (a) above), that practice had
been described in the principal judgment as a consistent pattern of deliberate killing of civilians
(mainly ethnic Georgian) in Georgian villages in South Ossetia and in the “buffer zone” in the weeks
following the cessation of active hostilities on 12 August 2008. The main perpetrators had been
South Ossetian forces, including an array of irregular militias, who had followed the Russian forces’
advance. It appeared from the evidence submitted by the applicant Government that only 50 of the
116 persons listed had been killed in such circumstances. The remaining 66 persons had died in
aerial or artillery attacks by Russian forces during the five-day armed conflict (8-12 August 2008), or
from landmines after the cessation of hostilities. For the purposes of just satisfaction, the Court
considered that at least 50 Georgian nationals had been victims of this administrative practice, for
which the Russian Federation had been found to be responsible. The Court had also found in the
principal judgment that the Russian Federation had failed to comply with its procedural obligation
under Article 2 of the Convention to carry out an adequate and effective investigation into those
killings. Making its assessment on an equitable basis, the Court deemed it reasonable to award the
applicant Government a lump sum of EUR 3,250,000 (three million two hundred and fifty thousand
euros) in respect of any non-pecuniary damage sustained by this category of victims.
The applicant Government also sought just satisfaction with a view to compensating 1,408 alleged
victims of the administrative practice of torching and looting of houses in the “buffer zone” (see
point (c) above). In the present case, the Court noted that the material submitted by the applicant
Government did not permit it to establish that the houses allegedly torched or looted belonged to
the persons on the list or constituted their home or dwelling within the meaning of Article 8. As the
Court had already indicated in Georgia v. Russia (I) (just satisfaction) (§§ 55 and 57), the application
of Article 41 of the Convention required the identification of the individual victims concerned and
the provision by the applicant Government of all relevant information.
As regards the list of 179 alleged victims of the administrative practice of inhuman and degrading
treatment and arbitrary detention of Georgian civilians held 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 (see point (e) above), the Court considered, for the purposes of just
satisfaction, that at least 166 Georgian nationals had been victims of this administrative practice, for
which the Russian Federation had been found to be responsible. Ruling on an equitable basis, it
deemed it reasonable to award the applicant Government a lump sum of EUR 2,697,500 (two million
six hundred and ninety-seven thousand five hundred euros) in respect of non-pecuniary damage
sustained by this category of victims.
As regards the 44 alleged 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 (see point (g)
above), the Court considered, for the purposes of just satisfaction, that at least 16 Georgian nationals had been victims of this administrative practice, for which the Russian Federation had been found to be responsible. Making its assessment on an equitable basis, the Court deemed it reasonable to award the applicant Government a lump sum of EUR 640,000 (six hundred and forty
thousand euros) in respect of non-pecuniary damage sustained by this category of victims.
Turning to the list of 31,105 alleged victims of the administrative practice of preventing the return of
Georgian nationals to their respective homes in South Ossetia and Abkhazia (see point (h) above),
the Court noted that, for the purposes of just satisfaction, at least 23,000 Georgian nationals had
been victims of this administrative practice, for which the Russian Federation had been found to be
responsible. The Court, making its assessment on an equitable basis, deemed it reasonable to award
the applicant Government a lump sum of EUR 115,000,000 (one hundred and fifteen million euros)
in respect of non-pecuniary damage.
Lastly, as regards the list of 723 alleged victims of the respondent State’s failure to comply with its
procedural obligation to carry out an adequate and effective investigation into the deaths which had
taken place during the active phase or after the cessation of the hostilities (see point (i) above), the
Court considered that at least 412 Georgian nationals had been victims of this administrative
practice, for which the Russian Federation had been found to be responsible. The Court, making its
assessment on an equitable basis, deemed it reasonable to award the applicant Government a lump
sum of EUR 8,240,000 (eight million two hundred and forty thousand euros) in respect of nonpecuniary damage sustained by this category of victims.
Article 46
The Court noted that Article 46 required the Committee of Ministers to put in place an effective
mechanism for the implementation of the Court’s judgments, including in cases against a State
which had ceased to be a Party to the Convention. It observed in that connection that the
Committee of Ministers continued to supervise the execution of the Court’s judgments against the
Russian Federation, and that the Russian Federation was required, pursuant to Article 46 § 1 of the
Convention, to implement them, despite the cessation of its membership of the Council of Europe.
Separate opinions
Judges Bošnjak, Pastor Vilanova, Wojtyczek, Serghides, Chanturia, Jelić, Sabato and Schembri
Orland expressed a joint partly dissenting opinion, which is annexed to the judgment.
