Communicated on 10 March 2016

FIFTH SECTION

Applications nos. 42126/15 and 42127/15 O.J. against Georgia and Russia J.O. against Georgia and Russia lodged both on 21 August 2015

STATEMENT OF FACTS

The events described in the present applications took place in Abkhazia, a region of Georgia which has been allegedly beyond the control of the Georgian Government since the conflict of 1991-1992 (hereinafter referred to as “Abkhazia”).

The facts of the case, as submitted by the applicants, may be summarised as follows.

A. The circumstances of the case O.J. v. Georgia and Russia (no. 42126/15, lodged on 21 August 2015)

The applicant, Mr O.J., is a Georgian national, who was born in 1977. He is represented before the Court by Mr D. Khachidze , a lawyer practising in Tbilisi.

1. Allegations against the applicant

According to the version of the events as established by the Supreme Court of Abkhazia, in early 2011 the applicant and his neighbour J.O. (the applicant in the case no. 47127/15), acting on the instructions of K.T. – a high ranking official at the Department of Military Intelligence of the Ministry of Defence of Georgia (“the DMI”), recruited D.K. – a soldier at the Russian military unit of the border guards based in the Tagiloni village of the Gali district of Abkhazia, as an informant of the DMI. In exchange of remuneration, D.K. agreed to provide the DMI with information about the Russian military units stationed in different villages of Abkhazia, including the Tagiloni village.

On several occasions between March and June 2011, D.K. provided the DMI with information about the structure and composition of the Russian military units, about the presence and composition of the staff of the Federal Security Bureau (“the FSB”) among the Russian military personnel, about the rotation, weaponry, military equipment and combat vehicles as well as the time-table and routes of their movement. Apart from the information provided in writing, on one occasion D.K. , using a special jacket with a built-in camera provided by the DMI, also produced footage of the Russian military base in the Tagiloni village. The footage depicted the inside yard, the fencing, the watch towers, the exterior of the military barracks and of the building where combat vehicles were stationed.

The applicant, together with J.O., served as one of the two intermediaries between the DMI and D.K. for transmitting the information as well as D.K. ’ s remuneration in cash. After three months D.K. withdrew from the arrangement and stopped providing any further information to the DMI.

Later, the exact dates being unknown, D.K. was arrested and charged with high treason in Russia. During the criminal proceedings he confessed that he had served as an informant of the DMI, also incriminating the applicant.

2. The applicant ’ s arrest and alleged torture and inhuman treatment

On 15 March 2012, the applicant was in J.O. ’ s house in the Tagiloni village. At around 5.00 p.m. a team of Special Forces of the Security Services of Abkhazia (“the Abkhaz Security Services”) raided the house and apprehended the applicant. He was handcuffed, brought to the yard of the house and put on the ground. Immediately after, the members of the Abkhaz Security Services started beating the applicant and asking him questions about his ties with the DMI and D.K. The Abkhaz Security Services also conducted the search of J.O. ’ s house during which time the applicant remained in the yard laying on the ground in mud, while his beating continued. The whole process lasted until around 11.00 p.m.

Afterwards the applicant was put in a car and taken to the administration building of the Abkhaz Security Services in the Gali town. The applicant claims that on the way to Gali , they made a short stop at the Russian military base in the Tagiloni village although he remained in the car during the whole stop. After the arrival in Gali , the applicant ’s beating resumed. He was again questioned about his conne ctions with the DMI and D.K. At a certain point the applicant asked for water and after drinking a glass of water he had been given, he passed out.

When the applicant regained consciousness, he allegedly found himself in the administration building of the Abkhaz Security Services in Sokhumi, the capital of Abkhazia. While the aim was still to extract information from him about his ties with the DMI, the applicant ’ s beating continued. Allegedly, the applicant was handcuffed to a chair while being beaten; he was subjected to imitation of drowning (by repeatedly having his head dipped in a bucket of water); his teeth were loosen, but not removed, by tooth extraction forceps; he was threatened that he would be raped and that the footage of his rape would then be uploaded to the Internet.

According to the applicant, he was remanded in pre-trial detention two days after the arrest.

On 19 March 2012 the applicant was assigned a lawyer. The lawyer advised him to confess to stop the beating. The applicant thus confessed about his ties with the DMI and D.K. as described above.

On 23 March 2012 the applicant was charged with espionage endangering the constitutional order of Abkhazia.

According to the applicant, after the confession, although the frequency of beatings dropped, he was still subjected t o reg ular ill-treatment twice a week: on Tuesdays and Fridays he was taken for “questioning” during which he was beaten both by officers of the Abkhaz Security Services and the Russian militaries presumably working for the FSB. During these “sessions” he was repeatedly asked questions about other possible informants of the DMI among general population as well as among the staff of the Abkhaz Security Services or the Russian military personnel.

The applicant spent six months in detention in the administration building of the Abkhaz Security Services in Sokhumi. Then he was transferred to the isolator of the Ministry of the Interior, where he spent three months. During this time his detention on remand was extended twice. After nine months of detention, he was transferred to a prison in the town of Dranda (“the Dranda prison”). His trial was allegedly also held in that prison.

On 16 April 2013 the Supreme Court of Abkhazia found the applicant guilty as charged and sentenced him to eleven years and six months ’ imprisonment to be served under a strict regime. Although the applicant stated before the court that his confession had been extracted by means of torture and inhuman treatment, the court relied on his confession, among other evidence, when upholding his conviction. The conviction was subject to a cassation appeal at the same court within ten days after serving the reasoned decision on the applicant. Claiming that this would be a futile effort, the applicant did not appeal.

3. Actions taken to seek the applicant ’ s release

According to the applicant, the Georgian authorities were informed of his detention and ill-treatment from the early days of his detention. His wife and sister repeatedly sought assistance from the Georgian authorities to secure his release; among others, they reached out to the officials at the Ministry of Defence who allegedly kept assuring them that all measures were taken to secure the applicant ’ s release.

On 6 February 2015 the applicant ’ s wife wrote a letter addressed to the President, the Prime Minister and the State Minister on Reconciliation and Civic Equality (“the State Minister”) in which she complained about the applicant ’ s detention and ill-treatment in Abkhazia and once again requested assistance of the Georgian authorities to secure the applicant ’ s release. Her letter was subsequently passed on to the Chief Public Prosecutor, the Ministry of Foreign Affairs and the DMI.

On 20 February 2015 the applicant ’ s wife received a reply from the State Minister ’ s office informing her that consultations were underway concerning the applicant and that she would be informed of any developments. Later in 2015 the applicant ’ s sister wrote another letter to the State Minister. On 4 August 2015 the State Minister ’ s office replied, informing her that there were some “positive indications” concerning the applicant ’ s case and again assuring her that the family would be informed in due course about further developments.

On 4 March 2015, in response to her letter, the delegation of the International Committee of the Red Cross in Georgia informed the applicant ’ s sister that, while the organization lacked competence to seek the applicant ’ s release, it could offer assistance with transmitting letters or legal documents to/from the applicant.

To date the applicant is detained in the Dranda prison.

B. The circumstances of the case J.O. v. Georgia and Russia (no. 42127/15, lodged on 21 August 2015)

The applicant, Mr J.O., is a Georgian nat ional, who was born in 1964. He is represented before the Court by Mr D. Khachidze , a lawyer practising in Tbilisi.

1. Allegations against the applicant

According to the version of the events as established by the Supreme Court of Abkhazia, in early 2011 the applicant and his neighbour O.J. (the applicant in the case no. 42126/15), acting on the instructions of K.T. – a high ranking official at the Department of Military Intelligence of the Ministry of Defence of Georgia (“the DMI”), recruited D.K. – a soldier at the Russian military unit of the border guards based in the Tagiloni village of the Gali district of Abkhazia, as an informant of the DMI. In exchange of remuneration, D.K. agreed to provide the DMI with information about the Russian military units stationed in different villages of Abkhazia, including the Tagiloni village.

On several occasion between March and June 2011, D.K. provided the DMI with information about the structure and composition of the Russian military units, about the presence and composition of the staff of the Federal Security Bureau (“the FSB”) among the Russian military personnel, about the rotation, weaponry, military equipment and combat vehicles as well as the time-table and routes of their movement. Apart from the information provided in writing, on one occasion D.K. , using a special jacket with a built-in camera provided by the DMI, also produced footage of the Russian military base in the Tagiloni village. The footage depicted the inside yard, the fencing, the watch towers, the exterior of the military barracks and of the building where combat vehicles were stationed.

The applicant, together with O.J., served as one of the two intermediaries between the DMI and D.K. for transmitting the information as well as D.K. ’ s remuneration in cash. After three months D.K. withdrew from the arrangement and stopped providing any further information to the DMI.

Later, the exact dates being unknown, D.K. was arrested and charged with high treason in Russia. During the criminal proceedings he confessed that he had served as an informant of the DMI, also incriminating the applicant.

2. The applicant ’ s arrest and alleged torture and inhuman treatment

On 15 March 2012, the applicant, together with O.J., was in his own house in the Tagiloni village. At around 5.00 p.m. a team of Special Forces of the Security Services of Abkhazia (“the Abkhaz Security Services”) raided the house and apprehended the applicant. He was handcuffed, brought to the yard of the house and put on the ground. Immediately after, the members of the Abkhaz Security Services started beating the applicant and asking him questions about his ties with the DMI and D.K. The Abkhaz Security Services also conducted the search of the house during which time the applicant remained in the yard laying on the ground in mud, while his beating continued. As a result of the search, two hand grenades and a “hunter ’ s knife” were found in his house. The whole process lasted until around 11.00 p.m.

Afterwards the applicant was put in a car and taken to the administration building of the Abkhaz Security Services in Sokhumi, the capital of Abkhazia. While the aim was still to extract information from him about his ties with the DMI, the applicant ’ s beating continued. Allegedly, the applicant was handcuffed to a chair while being beaten; he was subjected to imitation of drowning (by repeatedly having his head dipped in a bucket of water); a rope was also tied around his neck to imitate suffocation.

According to the applicant, he was remanded in pre-trial detention two days after the arrest.

On 19 March 2012 the applicant was assigned a lawyer. The lawyer advised him to confess to stop the beating. The applicant thus confessed about his ties with the DMI and D.K. as described above.

On 23 March 2012 the applicant was charged with espionage endangering the constitutional order of Abkhazia and illicit possession of ammunitions and a cold weapon.

According to the applicant, after the confession, although the frequency of beatings dropped, he was still subjected t o regular ill-treatment twice a week: on Tuesdays and Fridays he was taken for “questioning” during which he was beaten both by officers of the Abkhaz Security Services and the Russian militaries working for the FSB. During these “sessions” he was repeatedly asked questions about other possible informants of the DMI among general population as well as among the staff of the Abkhaz Security Services or the Russian military personnel.

The applicant spent six months in detention in the administration building of the Abkhaz Security Services in Sokhumi. Then he was transferred to the isolator of the Ministry of the Interior, where he spent three months. During this time his detention on remand was extended twice. After nine months of detention, he was transferred to a prison in the town of Dranda (“the Dranda prison”). His trial was allegedly also held in that prison.

On 16 April 2013 the Supreme Court of Abkhazia found the applicant guilty as charged and sentenced him to thirteen years ’ imprisonment to be served under a strict regime. Although the applicant stated before the court that his confession had been extracted by means of torture and inhuman treatment, the court relied on his confession, among other evidence, when upholding his conviction. The conviction was subject to a cassation appeal at the same court within ten days after serving the reasoned decision on the applicant. Claiming that this would be a futile effort, the applicant did not appeal.

3. Actions taken to seek the applicant ’ s release

According to the applicant, the Georgian authorities were informed of his detention and ill-treatment from the early days of his detention. Namely, he claims that his family members repeatedly sought assistance from the Georgian authorities to secure his release; among others, they reached out to the officials at the Ministry of Defence who, in their verbal communication, allegedly kept assuring them that all measures were taken to secure the applicant ’ s release.

In addition, when complaining about the detention of O.J. (the applicant in the case no. 42126/15), O.J. ’ s wife and sister also repeatedly raised the issue of the applicant ’ s release with the Georgian authorities. They wrote letters to the President, the Prime Minister and the State Minister on Reconciliation and Civic Equality (“the State Minister”). The information was subsequently passed on to the Chief Public Prosecutor, the Ministry of Foreign Affairs, and the DMI (see the case no. 42126/15).

To date the applicant is detained in the Dranda prison.

COMPLAINTS

1. Under Article 1 of the Convention, the applicants claim that both Georgia and Russia are responsible for the acts committed in Abkhazia. According to the applicants, while under the international law Abkhazia is an inseparable part of Georgia, Russia exercises its extraterritorial jurisdiction over Abkhazia through effective control of the territory; apart from its direct military presence, it also provides political and economic support to the separatist authorities in Abkhazia.

The applicants also assert that the Russian militaries based in Abkhazia were directly involved in multiple episodes of their ill-treatment.

2. The applicants complain under Article 3 of the Convention about their repeated torture and inhuman treatment at the time of their arrest and during subsequent detention.

3. Relying on Article 5 § 1 of the Convention, the applicants complain that they were unlawfully arrested and still remain in unlawful detention in Abkhazia.

4. Under Article 6 §§ 1 and 3 of the Convention the applicants complain that they did not have a fair trial in Abkhazia.

5. Relying on Article 13 of the Convention the applicants allege that, while the separatist authorities in Abkhazia do not constitute legitimate State organs, they had no effective remedies at their disposal either in Georgia or in Russia to redress their grievances. They claim that for this reason they should also be absolved of the obligation to exhaust domestic remedies.

QUESTIONS TO THE PARTIES

1. In respect of the matters complained of, do the applicants fall within the jurisdiction of either or both of the respondent States, within the meaning of Article 1 of the Convention?

2. Do the complaints lodged by the applicants against Georgia and Russia comply ratione personae and ratione loci with the provisions of the Convention as regards the alleged actions and/or omissions of the Abkhazian authorities?

3. Did the applicants have at their disposal effective remedies in respect of each of their complaints, and were these remedies exhausted by the applicants, as required by Article 35 § 1 of the Convention? In particular, what were the effective remedies available to the applicants in respect of each of their complaints and were the applicants able to use them in practice?

4. Did the applicants lodge their complaints within the six-month period prescribed by Article 35 § 1 of the Convention?

5. Were the applicants subjected to treatment contrary to Article 3 of the Convention during their arrest and subsequent detention?

6. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention?

In particular, was the applicants ’ detention during the period between 15 March 2012 and 16 April 2013 ordered “in accordance with a procedure prescribed by law”?

Furthermore, does the applicants ’ prison sentence represent a deprivation of liberty justified under Article 5 § 1 (a) of the Convention? In particular, has it been imposed by a “competent” court?

7. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, was the court which dealt with the applicants ’ cases independent, impartial and established by law , as required by Article 6 § 1 of the Convention?

Did the applicants enjoy defense rights as guaranteed by Article 6 § 3 of the Convention?

8. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention? In particular, did they have a possibility to appeal the judgment given by the Supreme Court of Abkhazia ?