PAR TLY DISSENTING OPINION OF JUDGE LÓPEZ GUERRA JOINED BY JUDGES BRATZA AND KALAYDJIEVA

My partly dissenting opinion relates to the Grand Chamber ’ s finding of a violation of Article 13 of the Convention taken in conjunction with Article 5 § 1 (point 10 of the operative part of the judgment), as well as to its reasoning in support of that finding (see paragraphs 210-14).

As is apparent from an examination of the Convention provisions themselves, as well as from the Court ’ s case-law, once it is established that there has been a violation of Article 5 § 4, there is no need to examine a further complaint of a violation of Article 13 in conjunction with Article 5 § 1, since that complaint is subsumed in the previous finding.

Article 13 requires that an effective remedy be provided in respect of violations of the Convention. Where a violation of Article 5 § 1 is in issue, Article 5 § 4 lays down more stringent procedural requirements as to the provision of a remedy, since it requires that there be some form of judicial proceedings which an arrested or detained person is entitled to take by which a court can examine the lawfulness of the arrest or detention (the Convention ’ s equivalent of habeas corpus ). In that connection Article 5 § 4 constitutes the lex specialis concerning arrest or detention and lays down the “effective remedy” which is required in cases of violations of Article 5 § 1. Having found a violation of the Convention based on that lex specialis , re ‑ examination of the same matter by the Grand Chamber under the lex generalis of Article 13 is therefore redundant. This is the position already well established in the Court ’ s case-law (see, for example, De Wilde , Ooms and Versyp v. Belgium , 18 June 1971, § 95, Series A no. 12 , and Khadisov and Tsechoyev v. Russia , no. 21519/02, § 162, 5 February 2009).

PARTLY DISSENTING OPINION OF JUDGE TSOTSORIA

I regret that I cannot subscribe to some of the conclusions of the majority. I particularly disagree, first of all, with the Court ’ s finding that it was not necessary to examine the complaints under Article 18 taken in conjunction with Article 5 of the Convention [1] , under Article 14 of the Convention taken in conjunction with Article 4 of Protocol No. 4 and Article 5 §§ 1 and 4 of the Convention or to examine the discriminatory nature of the arrests, detentions and expulsion of Georgians under Article 3 of the Convention, and, secondly, that there h as been no violation of Article 1 of Protocol No. 7 to the Convention. Although I fully endorse the conclusion that there was an administrativ e practice in breach of Article 3 based on the conditions of detention, I am unable to agree with the majority ’ s decision not to examine the condit ions of expulsion under Article 3 of the Convention and subsequently not to establish a breach of Article 13 in relation to the same complaint.

I wish to set out my own views here on some of the significant issues in order to clarify the grounds for my dissent. Th e point of departure is Article 18 of the Convention, as this provision relates to the pivotal question raised in the present case – the prohibition of détournement de pouvoir .

I. Violation of Article 18 taken in conjunction with Article 5 of the Convention

This inter-State case is probably the most vivid example of the use of restrictions permitted under the Convention for purposes other than those for which they have been prescribed.

The case-law regarding Article 18 makes it clear that the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. However, any public policy or an individual measure may have a “hidden agenda”, and therefore the presumption of good faith is rebuttable ( see, among others, Khodorkovsky v. Russia , no. 5829/04, § 255, 31 May 2011, and Lutsenko v. Ukraine , no. 6492/11, § 106, 3 July 2012). In individual applications the Court has established that an applicant alleging a limitation of his or her rights and freedoms for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed (or as can be reasonably inferred from the context) (see Lutsenko , cited above, § 106). Therefore, when an allegation under Article 18 is made the Court applies a very exacting standard of proof (see Tymoshenko v. Ukraine, no. 49872/11, § 295, 30 April 2013).

The Court finds a violation of Article 18 of the Convention when it concludes that the whole legal machinery of a State is misused ab initio , which is an indication that from beginning to end the authorities have acted in bad faith and in blatant disregard of the Convention (see Khodorkovskiy , cited above, § 260). In most cases the “purpose” referred to in Article 18 is not documented (compare Gusinskiy v. Russia , no. 7 0276/01, §§ 75-78, 19 May 2004). As was correctly noted in the joint concurring opinion of Judges Jungwiert, Nußberger and Potocki in Tymoshenko, cited above, knowledge about a “hidden agenda” is within the sphere of the authorities and is thus not accessible to an applicant, so the Court should accept evidence of the authorities ’ improper motives which relies on inferences drawn from the concrete circumstances and the context of the case. Otherwise the protection granted by Article 18 would be ineffective in practice.

In a democracy a State may limit an individual freedom in the interests of the freedom of all. [2] An abuse of rights occurs whenever a State avails itself of its rights in such a way as to inflict an injury on another State which cannot be justified by a legitimate consideration, that is to say, when its actions, although strictly speaking “ legal”, are coloured by bad faith. [3]

In the present case the Court established that the arrest and detention of Georgians under Article 5 § 1 (f) had been arbitrary owing to the collective nature of the expulsions (see paragraph 186). Further, the absence of effective and accessible remedies available to Georgians gave rise to a breach of Article 5 § 4 (see paragraph 188). The question arises whether, despite the arbitrariness, the arrests and detentions were nevertheless ordered in good faith or whether the real aim of the authorities was different from that stated and was motivated by an ulterior intention which can be proved according to the standards required by the Convention (see the joint concurring opinion of Judges Jungwiert, Nußberger and Potocki in Tymoshenko, cited above).

Ulterior motives and a hidden agenda of the respondent State authorities are barely below the surface here. The Court has established an administrative practice – that is, the repetition of acts contrary to the Convention and official tolerance of those acts – of arrests and detentions in breach of Article 5 § 1 of the Convention (see paragraph 187). Official tolerance of such acts in itself implies the existence of “improper motives”. The Court ’ s finding of an administrative practice of collective expulsion of Georgians is a crucial consideration as the latter is inseparable from the preceding arbitrary arrests and detentions. The respondent State authorities kept Georgians in detention on purpose, in order to cause distress and suffering, and did not allow their voluntary return [4] , contrary to the Court ’ s established case-law that an arrest and detention under Article 5 must be carried out in good faith. All the above-mentioned factors lead to the conclusion that mass expulsion was clearly employed for ulterior motives and should thus per se constitute an abus de droit . [5] This finding should be read in line with the Court ’ s statement that problems with managing migratory flows cannot justify a State ’ s having recourse to practices which are not compatible with its obligations unde r the Convention (see paragraph 177).

Moreover, the Court did not overlook the political context of the case. As emphasised in the judgment, political tensions between the two States reached their climax at the time of the arrest of four Russ ian servicemen in Tbilisi on 27 September 2006 (see paragraph 22). Subsequently the same date is used for calculating the six-month time-limit (see paragraph 162). The Russian State Duma did not conceal in its Resolution of 4 October 2006 on the Anti-Russian and undemocratic policy of the Government of Georgia that the rapid deterioration of the relationship between the two States was a consequence of the arrest of Russian military servicemen by Georgia. [6]

The Russian response to the arrest of its servicemen instigated the unprecedented and massive harassment of Georgians in the Russian Federation, resulting in particular in interference with the rights and freedoms guaranteed under the Convention. That policy was intended as – and has in fact been – a basis for illegitimate, arbitrary and disproportionate reprisal measures. It was implemented through a series of related steps that occurred simultaneously and which included, but were not limited to, the adoption and implementation of circulars and instructions aimed at the identification, mass arrest, detention and expulsion of Georgians in geographically distant areas of Russia, the closure of land, air and maritime communications between the two States immediately following the political tensions in late September 2006, and the unilateral imposition of an economic embargo on Georgia, including the interruption of all postal communications (see paragraphs 22 and 136).

I appreciate that the Court requires concrete evidence to establish a violation of Article 18 of the Convention and that the standard of proof is high. However, in this case the Court was acting as a first-instance tribunal “being a master of its own procedure and its own rules” and had “complete freedom in assessing not only the admissibility and relevance but also the probative value of each item of evidence before it” (see paragraphs 104 and 138). The Court had proof that followed from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact, emanating from various sources. As a consequence, despite conflicting accounts of the events and the lack of cooperation by the respondent State, which had exclusive access to the information, the Court established the existence of an administrative practice (see paragraphs 129 and 159).

The illegal anti-Georgian policy should be viewed in the light, and as a direct result, of the political statements made by leading members of the Russian Government, including the President, Foreign Minister, Deputy Head of the Federal Migration Service, Speaker of the State Duma and Defence Minister. [7] The law-enforcement agencies often accused the entire Georgian diaspora of being criminals. [8] In addition, the above-mentioned Resolution of Russia ’ s State Duma urged and authorised the Russian Government to take all necessary measures, including financial and economic sanctions, against Georgia and threatened to apply stricter measures in the future. Those pronouncements, supplemented by an extensive media campaign, were immediately regarded as an instruction “to wage an organized persecution of Georgian nationals.” [9] According to Human Rights Watch, “ this was a coordinated campaign orchestrated at senior levels of government that singled out Georgians for a specific period. ... It suggests that Russia will interrupt peoples ’ lives in order to serve foreign policy interests .” [10]

The whole anti-Georgian campaign was retaliation, employed for ulterior motives contrary to the rules of international law [11] rather than a legitimate migration control measure as claimed by the respondent State. It is equally difficult to accept the respondent State ’ s arguments that the measures were aimed, inter alia, at fighting criminality and organised crime in Russia, as there was no indication regarding the arrest of any Georgian criminal, influential or otherwise, at that time. As witnessed, during the campaign the Russian authorities targeted those who were the most vulnerable. The Georgian witnesses before the Court recalled that they had been systematically told about the political motivation for the arrests, detentions and expulsion (see paragraphs 48 and 49). In paragraph 52 of its Report, the Monitoring Committee of the Council of Europe (hereafter “the PACE report”) concluded that “the massive campaign launched as from the end of September against Georgian citizens and persons of Georgian ethnicity ... was a political campaign”. [12]

Regretfully, the present case has not been the only instance when the respondent State has used migration control for political purposes. The case of the mass deportation of Tajik migrants in 2011 after the conviction of two pilots (one of them being a Russian citizen) by the Tajik authorities, [13] which bears a striking resemblance to the present case, as well as the expulsion of Moldovan nationals weeks before the Eastern Partnership Summit in 2013 when the Association Agreement between Moldova and the European Union was due to be initialled, [14] should have been instructive to the Court.

The respondent State ’ s practice of abusing the migration system, in breach of fundamental rights, in furtherance of its foreign-policy agenda represents a serious instance of détournement de pouvoir and should not therefore go without an adequate assessment. The Court should have expressed its firm position that mass violations of human rights can never be the means of achieving political goals or solving political problems. Failure to do so is tantamount to overlooking a serious misuse of the Convention system, especially in the context of inter-State applications and when establishing the existence of an administrative practice. As correctly stated in the joint concurring opinion of Judges Jungwiert, Nußberger and Potocki in the case of Tymoshenko v. Ukraine , cited above, “in interpreting Article 18 of the Convention the direct link between human rights protection and democracy must be taken into account”. This is true, since the Convention was designed to maintain and promote the ideals and values of a democratic society (see Refah Partisi (The Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 86, 13 February, 2003). Moreover i t is obvious that “ when governments resolve their problems by dumping helpless individuals across the border, they are acting at the vanishing point of common sense and good faith. Where dialogue and cooperation disappear, compliance with international law is at high risk ” . [15] As observed, the arbitrary arrests and detentions of Georgians were intrinsically linked to their collective expulsion, which in itself “is a danger for the peaceful co-existence of countries” posing a threat to democracy, and may even be a “prelude to war” [16] , as evidenced by a recent concrete example.

Referring to the circumstances of the case as explained above , the Court should have examined Article 18 in conjunction with Article 5 and should have come to the conclusion that the whole legal machinery of the respondent State was misused and that from beginning to end the Russian authorities had acted with bad faith and in blatant disregard of the Convention that amounted to an administrative practice in breach of the above-mentioned provisions.

II. Violation of Article 14 of the Convention taken in conjunction with Article 4 of Protocol No. 4 and Article 5 §§ 1 and 4 of the Convention

The Court concluded that from October 2006 until the end of January 2007, a coordinated policy of arresting, detaining and expelling of Georgian nationals, amounting to an administrative practice, was implemented in the Russian Federation (see paragraph 159). It is obvious that Georgians, as a specific group, were targeted and discriminated against on the basis of their ethnic and national origin as a result of the respondent State ’ s policy. While I fully subscribe to the discriminatory context of the present inter-State application duly highlighted in the judgmen t (see, for example, paragraphs 140-41, 152, 175-76, and 185), I regret that the majority did not address the issue of a violation of Article 14 taken in conjunction with Article 4 of Protocol No. 4 and Article 5 §§ 1 and 4 of the Convention separately (the discrimination complaints under Article 3 of the Convection will be discussed in the following section).

In these proceedings the ethnic and national aspects are so closely intertwined that they should be examined together . For the purposes of this opinion, the term “Georgian” covers both ethnicity and nationality. “Ethnic Georgians”, “Georgian nationals” and “Georgians” are used interchangeably by the applicant State. The term “Georgians” used by the respondent State authorities in the context of expulsion, such as “all Georgians shall go”, “you Georgians shall leave Russia” implied more ethnicity than nationality. Official documents that were released by the respondent State during the anti-Georgian campaign denoted ethnicity (for example the enquiries sent to various schools using “ национальность ” see paragraph 36 of the judgment) and citizenship (such as instructions and circulars, using “ гражданство ” – see paragraph 31 of the judgment). [17] Similarly, the international governmental and non ‑ governmental organisations indicated that this campaign was based on ethnic and national origin (see paragraphs 63-67 the judgment).

The principle of respect for and protection of human rights on a non-discriminatory basis is recognised as an international legal standard. [18] Prohibition of discrimination has crystallised into a jus cogens norm. It is established in the Court ’ s case-law that ethnicity and race are related and overlapping concepts (see, among other authorities, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06 , § 43, 22 December 2009, and Timishev v. Russia , no 55762/00 and 5597/00, § 55, 13 March 2006) and that discrimination on account of one ’ s actual or perceived ethnicity, as a form of racial discrimination, requires special vigilance and a vigorous reaction from the authorities (see Timishev , cited above, §§ 55- 56 ).

Furthermore, the Court has developed the approach that “where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case” (see, among others, Timishev v. Russia , cited above, § 53; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, 29 April 1999; Dudgeon v. the United Kingdom , no. 7525/76, § 67, 22 October; see also the partly dissenting opinion of Judge Keller in Sukran Aydin and Others v. Turkey , nos. 49197/06, 23196/07, 50242/08, 60912/08 and 14871/09, 22 January 2013).

The violation of the rights of Georgians based on their nationality and ethnic origin was deeply rooted in discrimination, which is the fundamental aspect of the present case. Accordingly, failure to examine Article 14 artificially reduces the scope of the non-discrimination provision of the Convention and disregards the very core feature of this inter-State application, especially considering that the Court ’ s practice regarding Article 14 has already been the subject of criticism. [19]

The principle of non-discrimination imposes distinct limitations on the liberty of States in their treatment of aliens [20] and should be read together with the guarantees of procedural rights in expulsion proceedings. [21] A common standard is that expulsions must not discriminate in purpose or effect on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This is particularly relevant to cases of collective expulsion of aliens as they carry the risk of discrimination and often involve expulsion on the very ground of membership of a specific group. [22]

The State ’ s discretionary power of expulsion is also limited by an obligation to take account of the legal context in which it is exercised. [23] In the present case, ethnic and national origins were determining factors for the actions of the Russian authorities in their detention, treatment and collective expulsion of Georgians.

The general problem of racial discrimination, xenophobia and intolerance in the Russian Federation is well-documented. [24] It is recognised that vulnerable groups (including peoples from the Caucasus) suffer from aggravated discrimination and are subject to racial/ethnic profiling, racially targeted inspections and unlawful practices by law-enforcement bodies. [25] The e xistence of institutionalised discrimination, especially in the field of migration, has been considered particularly acute. [26] As confirmed by a Russian NGO , Memorial , a “repressive mechanism” against foreign citizens was created in the Russian Federation well before the anti-Georgian campaign to be used to pursue political goals. [27] The PACE report, in § 54, also notes the existence of “ repressive mechanisms [directed] against foreign citizens ” created by Russian legislation. The statement of the Deputy Director of the Federal Migration Service of the Russian Federation that “for the citizens of Georgia [these] quotas will not be provided - neither for residency, nor for work” is additional proof that at the material time the authorities directed the existing discriminatory mechanism against Georgians . [28]

The Court, while establishing the existence of an administrative practice of collective expulsion under Article 4 of Protocol No. 4, reiterated the importance of the background to the expulsion ( see paragraph 167) having regard to the general context of the selective, organised and intentional persecution campaign of the Russian authorities vis-à-vis Georgians (see, for example, paragraphs 63-71 and 171-76). It is also noted that domestic remedies, otherwise in place in the respondent State, were ineffective and inaccessible for Georgians against arbitrary arrests, detentions and expulsions (see paragraphs 150-58 and 188).

The Georgian witnesses heard by the Court confirmed that the underlying reason for the abuse of their rights, unlike other nationalities at the material time, was their ethnicity. Witnesses recalled being insulted, threatened and told: “ you have to leave Russia, there is no room for you ” and “ you ’ re being deported because you ’ re Georgians ”, [29] “ be happy you ’ re still alive ” (see paragraph 46, and Annex, § 6 ). There was an overwhelming public perception that the expulsion campaign was directed particularly against ethnic Georgians. In the case of G.V., cited by the respondent State as an example of a successful appeal at national level, the claimant argued that he should not have been expelled because, among other reasons, he was not ethnic Georgian, despite his Georgian citizenship. [30]

The policy of discrimination is further evident from various circulars and instructions (for example ordering the expulsion specifically of Georgian citizens, letters sent to schools requesting information about Georgian children and their parents (see paragraphs 31, 36, 140-44) issued by the authorities in a short period of time in different regions of the respondent State. Expelled persons were subjected to ethnic profiling, were searched, stopped and arrested in streets, at their workplaces, homes, schools and outside churches, primarily on account of their appearance/perceived membership of a particular ethnic group, without even checking the relevant documents, followed by formal acknowledgement of their Georgian nationality ( see, by compar ison, Timishev , cited above, in which freedom of movement of an applicant of Chechen origin was restricted owing to his ethnicity and the absence of the relevant record in the identity documents did not create any problem).

It would be arduous to depict all the discriminatory aspects of the campaign targeting Georgians, with which the entire judgment is imbued, on account of their range and scale. It is increasingly clear that the arrests, detentions and collective expulsion of Georgians from the Russian Federation were carried out on account of their ethnic and national origin. However, no difference in treatment which is based exclusively or to a decisive extent on a person ’ s ethnic origin is capable of being objectively justified even in the context of the fight against illegal migration (see, mutatis mutandis , Timishev , cited above, § 58, and D.H. and others v. the Czech Republic [GC] no.57325/00, § 176, 13 November 2007).

The circumstances surrounding the coordinated policy of arrest, detention and expulsion of Georgians in the respondent State between October 2006 and January 2007 should have led the Court to find an administrative practice in breach of Article 14 in conjunction with Article 4 of Protocol No. 4 and Article 5 §§ 1 and 4 of the Convention as Georgians, targeted as a group, were deliberately removed from the protection of the Russian legal system and became victims of racial discrimination unlike other foreign nationals in the same situation at the material time.

III. Violation of Article 3 of the Convention, taken separately, on account of the seriousness of the discriminatory treatment suffered by Georgians

In the present case the Court should also have examined the applicant State ’ s allegation regarding the discriminatory nature of the arrests, detentions and expulsions of Georgians under Article 3 of the Convention since in some circumstances discrimination may be so serious as to constitute in itself degrading treatment within the meaning of Article 3. In the East African Asians case, the Commission opined that “ a special importance should be attached to discrimination based on race, and publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; whereas, therefore, differential treatment of a group of persons on the basis of race might be capable of constituting degrading treatment in circumstances where differential treatment on some other ground, such as language, would raise no such question ” ( see East African Asians v. the United Kingdom , nos. 4403/70-4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4476/70-4478/70, 4486/70, 4501/70 and 4526/70-4530/70 (joined), Commission decision of 14 December 1970, Decisions and Reports (DR), p. 62).

In its case-law the Court/Commission has considered the ethnic/racial factor in relation to a breach of Article 3, noting that by virtue of Article 3 “the State ’ s discretion in immigration matters is not of an unfettered character, for a State may not implement policies of a purely racist nature, such as a policy prohibiting the entry of any person of a particular skin colour” (see Abdulaziz, Cabales, and Balkandali v. the United Kingdom , nos. 9214/80, 9473/81 and 9474/81, § 84, 28 May 1985). Moreover, the State ’ s treatment of a particular group of persons for the very reason that they belong to the specific community in question has been established as amounting to discrimination motivated by ethnic origin, race and religion (see Cyprus v. Turkey [GC], no. 25781/94, § 309, ECHR 2001-IV). Prolonged deplorable living conditions caused by discriminatory treatment are considered to cause considerable mental suffering, diminishing human dignity and amounting to degrading treatment (see Moldovan and Others v. Romania (2) , nos. 41138/98 and 64320/01, §§ 110-11, 30 November 2005). Furthermore, segregating Roma children in educational institutions on the basis of their ethnic origin creates, in the Court ’ s opinion, a rebuttable presumption of discrimination of a type which of itself may amount to degrading treatment (see Horvath and Vadászi v. Hungary (dec.), no. 2351/06 , 9 November 2010). The standard applied in the East African Asians case has most recently been reaffirmed in Abdu v. Bulgaria, no. 26827/08, § 38, 11 March 2014 .

In the present proceedings the Court should have attached special importance to the existence of an administrative practice in the respondent State vis-à-vis Georgians from the standpoint of discrimination under Article 3. The Court has established, among other reasons, a climate of intimidation at the material time (see paragraph 154) and psychological factors (see paragraph 156) as circumstances influencing the ability of Georgians to exhaust domestic remedies in the respondent State. It has been emphasized that many detained Georgians had been so stressed at the idea of remaining in detention any longer and so eager to return to Georgia that they would have signed “anything at all” (see paragraph 48).

The Court should have given careful consideration to the evidence that the arrest of Georgians, their placement in detention centres, denial of their voluntary return and their consequent expulsion and harassment and humiliation during transport was a deliberate policy of the respondent State. Many Georgians were forced to go through the whole cycle. The witness statements and the findings of the int ernational governmental and non ‑ governmental organisations unequivocally indicate that arrested persons were placed in deplorable conditions, which exceeded the already notorious situation in the detention facilities of the respondent State. In her testimony witness no.1, describing the treatment in the detention facility, said: “ [w]hen we said that we wanted some water, we wanted to drink, we were told that “there ’ s some water in the toilet, you can drink from the toilet ... They did everything to strip away our dignity” . [31]

Police and judges systematically humiliated Georgians because of their origin. For instance, witness no.1 recalled her treatment in a court: “ I insisted that I would be prepared to go back to Georgia at my own expense and under my own steam and I was told no, you will be sent to Georgia as a prisoner, as a detainee. And if you have any problems with that, go ask your President Saakashvili ”, [32] witness no.7 testified: “ we were told all the time “don ’ t say anything, don ’ t do anything, you are Georgians .” [33] Those awaiting deportation in the Moscow airports were exposed to the public in a humiliating manner and made to run through a human corridor composed of Special Purpose Police Officers (OMON ) with their hands behind their back (see paragraph 57). Witness no. 3 said that following their arrival at Domodedovo Airport a “ ... corridor ... was formed by the officers. We had to put our hands on our heads and we were told to run, and those who didn ’ t run, who walked slowly, were actually even hit by the officers and asked to go faster. ” [34]

The Court considers such behaviour and attitude of officials and judges as an aggravating factor in the examination of an applicant ’ s complaints about discrimination under Article 3 of the Convention (see Moldovan v. Romania (2), cited above, §§110-11). What else can the above-described behaviour of the officials be if not discrimination amounting to degrading treatment under Article 3 of the Convention?

Georgians were thus subjected to disrespect for their personality throughout the entire process starting from illegal ethnic profiling and ending with their expulsion and the methods used that caused them considerable mental suffering, diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement (see, by contrast, Sejdić and Finci v. Bosnia and Herzegovina, cited above , § 58). This is why the trauma experienced by the victims was still visible more than five years following the events, during the witness hearing in Strasbourg.

It is undisputed that the State ’ s obligations under Article 3 comprise the duty not only to prohibit certain misconduct, but also to investigate the existence of a possible link between racist attitudes and an act of violence if an inference of discrimination is to be rebutted (see Abdu v. Bulgaria, cited above, and B.S. v. Spain , no 47159/08 , §§ 58-60, 24 July 2012 ) . [35] The respondent State, however has not undertaken any effective investigation into the specific allegations. The only investigation conducted by the relevant authorities concerning the enquiries sent to various schools for the purpose of identifying Georgian pupils was illusory, as illustrated by the imposition of purely nominal penalties (see paragraphs 37 and 145). This, among other factors, allowed the Court to conclude that “ evidence submitted by the respondent Government ... . is not capable of refuting the allegations of “official tolerance” of such illegal acts by the Russian authorities” (see paragraph 146)”. This situation is further aggravated in the light of the fact that impunity for hate crimes against members of ethnic, religious and national minorities has been a particularly acute problem in the respondent State. [36]

Having regard to all the above-mentioned factors, it is evident that at the material time Georgians – being the victims of racial discrimination – were singled out for differential treatment publicly and with the aim, among other things, of causing humiliation and debasement that represents an administrative practice of degrading treatment for the purposes of Article 3 of the Convention.

IV. Violation of Article 3 of the Convention based on the conditions of expulsion

Torture and inhuman and degrading treatment are prohibited in all circumstances. Inhuman treatment includes such treatment as deliberately causing severe mental and physical suffering. While examining the violation of Article 3, account should be taken of the cumulative effects of the conditions, and specific allegations (see, mutatis mutandis, Idalov, [GC], no. 5826/03, § 94, 22 May 2012 ).

The Court has never been seized with an application regarding transport conditions during expulsion; it has, however, found a breach of Article 3 in cases involving poor transport conditions of regular detainees (see, among others, Khudoyorov v. Russia , no. 6847/02, §§ 116-20, ECHR 2005 ‑ X, and Yakovenko v. Ukraine (no. 15825/06, § 113, 25 October 2007) . In Pantea v. Romania ( no. 33343/96, §§ 186-87, 3 September 2003 ) , the Court held that transport conditions might constitute either an independent or an aggravating issue, and combined with other aspects, could lead to a violation of Article 3 of the Convention. The Court should have used the opportunity, as it usually does, to develop its jurisprudence in relation to transport conditions during expulsion procedures with regard to Article 3, especially given that there are no detailed regulations regarding methods of expulsion of aliens in international and regional human-rights instruments as such cases are covered by general provisions emanating from States ’ international obligations. [37]

The European Committee for the Prevention of Torture (CPT) has developed special guidelines on deportation procedures by air. When assessing the compatibility of the process with the relevant European standards, the CPT monitors the whole period from detention to deportation, since “deportation operations by air entail a manifest risk of inhuman and degrading treatment. This risk exists both throughout preparations for deportation and during the actual flight.” [38] The Parliamentary Assembly also voiced its concern with regard to protecting safety and dignity during expulsions. [39] Furthermore, the Committee of Ministers, in its Guidelines for Forced Return, emphasises the need to ensure that an alien is “fit to fly” especially in cases of removal by air. [40]

According to the UN Human Rights Committee, States are obliged to ensure deportation without infringement of the rights and dignity of deportees especially if during the expulsion such provisions as respect for the right to life and prohibition of torture, inhuman or degrading treatment are triggered. [41] The requirement to implement deportation having due regard to the human rights and dignity of aliens was voiced by the UNHCR, deploring practices of return that endanger physical safety and reiterating that “irrespective of the status of the persons concerned, returns should be undertaken in a humane manner and in full respect for their human rights and dignity and without resort to excessive force”. [42]

There is a consensus among migration-law experts that expulsion has to be carried out in accordance with the general standards of international law on the treatment of aliens, with due regard being paid to dignity and basic human rights [43] and should not be implemented “at all costs”. [44] It is particularly important to ensure that the conditions surrounding the expulsion are humane, expulsion is well prepared and coordinated, no bodily harm is caused to expellees and they are granted with sufficient time to prepare their departure . Adequate precautions have to be taken to ensure that the expulsion does not cause additional, unnecessary hardship.” [45]

In the particular circumstances of the case, the Court should have examined the whole period from detention to deportation in the light of Article 3 as a “continuing situation” (see, mutatis mutandis, among other authorities, Ananyev and Others v. Russia , nos. 42525/07 and 60800/08 , § 75, 10 January 2012; Lutokhin v. Russia , no. 12008/03, §§ 40-42, 8 April 2010; Seleznev v. Russia, no. 15591/03, § 36, 26 June 2008; and Guliyev v. Russia , no. 24650/02, § 33, 19 June 2008). It is apparent from the witness statements and the reports by the int ernational governmental and non ‑ governmental organisations that Article 3 was violated in detention facilities (rightly found by the Court to be contrary to Article 3, see paragraph 205 ), as well as during the transport of deportees from detention centres to airports and in the process of their removal by air (see paragraphs 57, 72-74, and Annex, §§ 5-13).

While I accept that where conditions of detention are in dispute, there is no need to establish the veracity of each and every disputed or contentious point if there has been a violation of Article 3 on the basis of any serious allegation which the respondent Government do not dispute (see paragraph 194), such an approach cannot, however, rectify inhuman treatment that was inflicted on expellees outside the actual places of detention. W here specific allegations regarding a breach of Article 3 are made ( see , mutatis mutandis, Idalov, cited above , § 94) that go well beyond the long ‑ recognised problems of detention conditions in the respondent State, the Convention protection should extend to and not cease outside the detention facilities.

The majority of Georgians were arrested and detained in Moscow and St Petersburg – two cities with the highest rates of congestion – and were expelled from Moscow airports. Transport from the detention facilities to the airports took an excessively long time: sometimes as much as 9-12 hours. These facts cannot be disregarded, especially in conjunction with the conditions and treatment that the expellees were subjected to first in the detention facilities and subsequently in the buses/vans. Specifically, harsh transport conditions became a tool for the relevant authorities to inflict excessive humiliation on the deportees. Witnesses noted that the buses transporting them to the airport were very dirty; there was no fresh air; deportees were not given access to a toilet; in some cases electric shocks were applied them; and police officers extorted money for various needs (see Annex, §§ 7-9, 11 ). For example, witness no. 4 indicated that “ vans were driving slowly and every time we wanted to have a smoke or wanted to go to the toilet we had to pay for it”. [46] Many witnesses stressed that during the slow journey to the airports they were not allowed to open windows. Allegedly, this was a reason for the death of a Georgian national, Mr Tengiz Togonidze, who suffered from acute asthma. He was detained in t he St Petersburg detention centre for foreign nationals and died during transport, immediately after he had left a bus following a long drive to Moscow airport ( see paragraph 72). Two other Georgians died in detention centres owing to lack of medical assistance.

The Court should also have attached particular importance to the fact that, according to the witness statements, between three and five OMON officers were present during every means of transport, whether by bus or van (see Annex, §§ 5, 7, 8, 11 ). Under the Russian legislation, the OMON is used in cases of security concerns, including during mass disturbances. Its officers undergo special training and are more heavily armed than the ordinary police. The presence of these officers in buses/vans represented an additional factor of emotional/psychological distress for the expellees and was clearly not dictated by circumstances of necessity. The witness testimonies also indicate that the Russian authorities treated the expellees as criminals. Such an approach contravenes internationally accepted expulsion procedures according to which an expelling State should “ensure the expelled persons are not considered criminals”. [47]

The Court should also have examined the conditions of Georgian nationals in the cargo plane of the Ministry of Emergency Situations (IL 76) used to deport up to 150 passengers on 6 October 2006. Witnesses and the international governmental and non-governmental organisations give concordant descriptions to the effect that the flight conditions in the cargo plane were particularly alarming (see paragraphs 57, 72, 74). Witness no. 5 described the flight conditions as follows: “ [W]e were packed like sardines, I couldn ’ t imagine that so many people could fit in one plane... I would not believe that I would come home alive and I think that was a general feeling ”. [48] Unbearable conditions in the cargo plane were assessed by the PACE in § 57 of its report in the following terms “ [transportation by cargo plane] was done in violation of the norms of the International Civil Aviation Organization as such transportation of passengers is life-threatening. ” Although States can choose the means of transport for expulsion, they have an obligation to ensure adequate conditions so that the life, health and dignity of deportees are respected.

Due to the absolute character of Article 3 enshrining fundamental values of democratic society, its requirements should be respected at every phase of expulsion. On the basis of all the above-mentioned factors, the question arises as to whether it was acceptable for the Court to examine a violation of Article 3 exclusively with regard to the detention conditions and without an assessment of a “continuing situation”, including the transport conditions and the method of expulsion of Georgians, especially in the light of the particularly vulnerable situation in which these individuals found themselves.

In the specific circumstances of the present case the Court should have found that the expulsion conditions also caused undeniable suffering to Georgians that should be regarded as both inhuman and degrading treatment amounting to an administrative practice in breach of Article 3 of the Convention. It also follows that there was a breach of Article 13 in conjunction with Article 3 in relation to the conditions of expulsion.

V. Violation of Article 1 of Protocol No. 7 to the Convention

The present case has revealed that there may be situations where aliens are not “lawful residents” for the purposes of Article 1 of Protocol No.7 only or primarily on account of legislative, structural or other problems in a receiving State. In these circumstances such persons should be considered as de facto lawfully resident aliens and hence should fully benefit from the guarantees of Article 1 of Protocol No.7. [49] In recent years there has been a marked trend towards human rights based regulations in Europe [50] in the area of migration and the extension of the principle of procedural (minimum) safeguards to “unlawful” aliens in European and international law. [51]

While I agree that States have a sovereign right to establish their own immigration policies (see paragraph 177 of the judgment), sovereignty should not be a negative concept by which States barricade themselves against international scrutiny and involvement, but rather as a positive one entailing responsibility for the protection and general welfare of everyone under their jurisdiction. [52] Appreciating modern-day challenges of migration control and the standards established by the Convention, the problem at stake is the implementation of a discretionary power of a State, which by its nature cannot be unlimited, given that abuse thereof may lead to violation of the Convention and general international law (see, among others , Chahal v. the United Kingdom [GC], no. 22414/93 , § 73, 15 November 1996, and Ahmed v. Austria no. 25964/94 , § 38, 17 December 1996) . That power must be exercised in such a way as not to infringe rights under the Convention and an individual should be expelled only “in pursuance of a decision reached in accordance with law” and subject to the exercise of certain procedural guarantees (see Nolan and K. v. Russia, no. 2512/04, § 114, 12 February 2009) .

According to the Court ’ s case-law, the notion of “expulsion” under Article 1 of Protocol No. 7 of the Convention, which provides protection to aliens lawfully residing in a Contracting State, is an autonomous concept. The Court has shown flexibility in applying Article 1 of Protocol No. 7 despite the absence of the formal legal status of the applicant (see, for example, Nolan and K. , cited above, § 111).

In the present case, the majority considered that there had been no violation of Article 1 of Protocol No. 7 because all the Georgians arrested and expelled from the respondent State were unlawful residents (see paragraphs 229 and 231). I cannot agree with this conclusion since it is not supported by the available evidence and even contradicts the Court ’ s own finding in paragraph 42, as will be explained below. While some of the expellees were indeed illegally present in the respondent State, this circumstance should not have led the Court to make such an absolute assertion. This consideration also finds resonance in the position of the respondent State, which does not deny that there were exceptions when legally present Georgian nationals were expelled (see paragraph 227). The expulsion of Georgians legally present in the respondent State was also corroborated by the international governmental and non-governmental organisations (see paragraphs 65 and 172).

Furthermore, it is noteworthy that owing to the peculiarities of inter-State applications the Court was neither required to nor technically capable of establishing the legal status of each and every deportee (see paragraph 128). The Court had difficulty even defining the legal status of seven witnesses interviewed during the witness hearing, emphasizing that “their legal situation in the Russian Federation often appeared confused” and came to conclusion that “the majority” ( but not all ) of Georgian nationals who gave evidence at the witness hearing were formally unlawfully resident in the Russian Federation (see paragraph 42). In the light of all the above ‑ mentioned factors, and without thoroughly analysing the main aspects and the reasons connected to the legal status of the expellees, the general conclusion regarding the illegal nature of the presence of Georgians on the territory of the respondent State is not accurate.

Russian migration legislation and practices made it impossible for most migrants to “legalise” their presence in the respondent State. This problem affected the status of expelled Georgians as well. The Court notes the international governmental and non-governmental organisations ’ assessment of the Russian migration legislation and practice as “complex” and placing migrants in an insecure position (see paragraph 76). While “complexity” is a common feature in such an extensive and intricate field as migration policy, in the present case the structural problems triggered by corruption, discrimination, xenophobia, mismanagement and arbitrariness lie at the very heart of this “complexity” and increase the vulnerability of migrants as illustrated below.

The reform of the residence registration system, being a part of the general migration policy, was among the Russian Federation ’ s obligations on accession to the Council of Europe and the country has subsequently been repeatedly reminded of this commitment (see Bolat v. Russia , no. 14139/03, § 50, 5 October 2006 ). [53] The internal registration system, known as propiska , is one of the sources of the problems. In addition, a large number of citizens of the former Soviet Union (Russia being the successor of the Soviet Union), despite having lived for a long time or permanently in Russia, have been considered as illegal migrants since the entry into force of the 2002 Federal Laws on 1) Citizenship and 2) the Legal Status of Foreign Nationals. Systemic problems related to overwhelming bureaucracy in obtaining registration and work permits, regular labour inspections, arbitrary refusal or unlawful additional requirements imposed by police, as well as concerns regarding the use of residence registration as a means of discrimination against certain ethnic groups and the existence of a mechanism of extortion have been voiced by many international bodies. [54] The PACE report (§ 54) concludes that it is beyond doubt that irregularities in the legal status of many Georgians residing in Russia at the material time were caused by a “ structural problem of Russia ’ s immigration policies” .

The complexity of the immigration process and the difficulty in communicating with the Federal Migration Services – the entity officially in charge of registration issues – was such that migrants, including Georgians, constantly applied for assistance to many private agencies operating widely in the respondent State, some of them apparently illegally (see paragraph 42) [55] . The Russian authorities were not able to provide any example of making such companies accountable for their illegal actions (see paragraph 44). Under these conditions, it is obvious that Georgians, acting in good faith, had a legitimate expectation that their registration would be carried out in compliance with the law in force and never questioned the legality of the services provided by these agencies (see, mutatis mutandis , Lelas v. Croatia, no. 55555/08, § 74, 20 May 2010) while their registration documents created no serious problems over the years (payment of a sum of money – see paragraph 42 , which actually amounted to a bribe, was not an indication that the document was fraudulent).

Various aspects of the deficiencies related to Russian migration legislation and practice, such as the creation of artificial impediments in granting or extending registration (see Bolat v. Russia, cited above), problems associated with the status of citizens of the former USSR (see Tatishvili v. Russia, no. 1509/02, 22 February 2007), the practice of arbitrary cancellation of visas (see Nolan and K. v. Russia, cited above ) and the discriminatory application of domestic procedures (see Timishev, cited above), have been examined by the Court and found to be contrary to the Convention.

The manner in which expulsion procedures were conducted against Georgians at the material time made it impossible to carry out a reasonable and objective assessment of each individual case leading to a violation of Article 4 of Protocol No. 4 to the Convention (see paragraphs 175 and 178). This, among other things, implies that the domestic courts ’ examination of these cases excluded any determination of the individual status of the deportees (especially in the absence of relevant databases), including whether the case concerned former USSR citizens, stateless persons, or refugees, or whether visa/and or registration documents were indeed forged as often claimed by the authorities purely on the basis of a visual inspection of documents (instances of passports containing a visa and a registration card being destroyed by law-enforcement officials were also reported). In fact, many of the victims referred to in the case file are refugees from Abkhazia, Georgia. It is widely acknowledged that former inhabitants of Abkhazia, who came to Russia as a result of the 1992-93 armed conflict, were largely affected by the persecution campaign. [56] The case of Manana Jabelia, a Georgian refugee who died in the detention facility, is self ‑ evident. She was held in detention contrary to the Moscow City Court ’ s decision overturning her expulsion order. [57] Furthermore, the information note of the Federal Migration Service dated 18 October 2006 indicates the measures taken to reinforce supervision of the lawfulness of Georgian citizens ’ residence, including “suspension of the issuing of certain documents to Georgian citizens (acquisition of Russian nationality, registration documents, temporary and permanent residence permits)” (see paragraph 31). Hence it follows that in the preceding period the authorities, among other actions, artificially caused the conversion of many Georgians into irregular migrants thus creating the pre conditions for their expulsion .

The vast majority of Georgians had valid long-term business visas. According to statistical data, the Consular Office of the Russian Federation in Georgia issued 70,000 business visas to Georgians in 2004, 90,000 in 2005, and 75,000 in the first half of 2006 (see Annex, § 24) while business activities and the exchange of scientific information between the two countries were already hindered a long time ago. It is acknowledged that the system of migration and employment for foreigners not only fails to eliminate irregular immigration, but actually encourages it [58] and the authorities benefit from the bureaucratic procedures. [59] In fact, in the Russian context possession of a valid long-term business visa creates a legitimate expectation of legal residence and admittance of an individual to seek work. The Russian authorities were, or should have been, aware of this situation . Therefore, the respondent State should bear responsibility for creating and maintaining a system which on the one hand allowed Georgians to receive long-term business visas and on the other made it practically impossible for them to fully legalise their presence and work in the country.

State policies and ambiguity of the rules regarding migration status and expulsion of aliens represent only part of the defective system which carries the risk of being used against minorities “should political disputes emerge between Russia and the migrants ’ home country”. [60] The present case is an example of the materialisation of this risk, in which the system was fully directed against Georgians in the light of intensive political and media encouragement. This is particularly striking when is recalled that the vast majority of Georgians lived in the Russian Federation for several years, were frequently stopped and checked but were never subject to forcible expulsion (see paragraph 42).

The finding of no violation of Article 1 of Protocol No. 7 in the present case l eaves the respondent State unaccountable for its actions, thus excluding any guarantee that a similar practice of misuse of the registration system by disregarding the safeguards enshrined in Article 1 of Protocol No. 7 of the Convention will not persist. The risk of a restrictive interpretation of Article 1 of Protocol No. 7 was recognised by the Court in the case of Nolan and K. (cited above, § 111). In the latter case the Court considered that cancellation of a visa by the border police “[could not] deprive the applicant of his status of “lawful resident”, given that “were it otherwise, a decision to expel would in itself remove the individual from the protecti on of Article 1 of Protocol No. 7 with the result that its guarantees would have no sphere of application at all”. The threat of removing procedural protection from aliens is further aggravated by the special scope of Article 4 of Protocol No. 4 to the Convention and the inapplicability of Article 6 of the Convention to migration claims (see, for example, Maaouia v. France , no. 39652/98, § 40, 5 October 2000) ultimately limiting the safeguards provided for by Article 13 of the Convention (see Kuric and Others v. Slovenia, §§ 369-72 cited above, and Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI) .

The respondent State manipulates the existing deficient migration legislation and practices and shows no political will to resolve long-standing problems; at the same time, it never hesitates to grant citizenship, through simplified procedures, to the residents of former Soviet Republics when this is politically advantageous. In the light of this situation, the Court should have extended the protection of Article 1 of Protocol No. 7 to those aliens who were not capable of regulating their stay in the respondent State owing to the defective migration system. To do otherwise is tantamount to depriving those most vulnerable of certain fundamental guarantees provided for by the Convention. In addition, it should also be borne in mind that among the expellees were Georgians residing perfectly legally in the Russian Federation and those who artificially became “unlawful” migrants by the actions of the authorities themselves .

Having regard to the above-mentioned factors and considering that neither interests of public order nor reasons of national security justifying expulsions existed, I consider that during the period in question the respondent State also arrested, detained and expelled Georgians lawfully resident in the territory of the Russian Federation and that this amounted to an administrative practice in breach of Article 1 of Protocol No. 7 to the Convention.