DISSENTING OPINION OF JUDGE DEDOV

I regret that I cannot share the opinion of the majority, who have found a violation of various Articles of the Convention in the present case. In my view, the Court has taken a controversial approach to the establishment of the facts, assessment of the evidence and application of its own case-law which is hardly acceptable in a situation of strong political opposition between the high authorities of the applicant and respondent States. In such a situation the Court has to carefully examine all the materials and make well ‑ founded conclusions in order to avoid any concerns being raised about its impartiality. This task would be much easier if the hearings and deliberations in any inter-State case were held by the Court only after peaceful negotiations had been conducted between the parties to mitigate political and emotional tensions. Without such measures a rational analysis of cases like this can never be successful.

Establishment of facts

Generally, international reports are very helpful in extradition cases in establishing the risk of ill-treatment. They are considered as a reliable source of information if they are of a neutral or official character, up to date and contain information about concrete facts without allegations and value judgments which may impair the impartiality of the Court. In the present case the Court has established the facts on the basis of various reports by international organisations, quoting from them at length throughout the judgment, in particular in paragraphs 40, 63-71, 114, 148, 172 and 173, notwithstanding the fact that the international organisations have already made their own assessments and conclusions but expressed these in the form of allegations and value judgments such as: “mass expulsion”, “mass arrests”, “a campaign conducted in such an ostensible manner”, “repressive orders targeting Georgians”, “arrestees have no right to a lawyer”, “production line ... without those concerned by the expulsion orders being present”, “collusion between the police and the judicial authorities”, “selective and intentional persecution campaign based on ethnic grounds”, “visas and registration papers legally obtained were cancelled, people were illegally detained and expelled”, “organized persecution of Georgian nationals”, “harassment of a specific group of people was a form of inadmissible discrimination”, “mass miscarriage of justice”, “evidence of collusion between the police and the courts”, “[Georgians] were presented as a group before the courts”, “deliberate policy of detention and expulsion”, “people are being illegally detained and expelled”, “flagrant denial of justice and circumvention of the procedures”, “arbitrary and illegal detention and expulsion”, “many were effectively denied the right to appeal”, and so on.

The international organisations made their overall legal assessment of the events in their reports without providing any documentary evidence to support their conclusions, and the Court has accepted their approach without verifying the actual facts. It appears that the Court has accepted the results of their legal assessment and established the facts on the basis of the reports (see paragraphs 136-39, 152, 153, 159, 185 and 196 of the judgment).

In particular, the statement of the PACE Monitoring Committee about “the complexity of the procedures for obtaining ... permits, which put migrants in an insecure position” (see paragraph 76) was made without any analysis of Russian law and the Court was not in a position to make such an analysis either. The witness statements of Georgian citizens are expressed in similar terms, such as “summarily imposed administrative penalties” (see paragraph 45). The Court has followed all these statements and reproduced them in its own judgment. Furthermore, the Court has concluded that the Georgian witnesses made “contradictory statements” which were at the same time “consistent and correspond[ed] to those of the international organisations” (see paragraph 196).

I understand that such organisations, serving as human-rights activists, are committed to doing everything possible to protect human rights and are not limited by any instruments in the achievement of their goals, so such reports may exaggerate the gravity of violations. However, if the Court is to be guided and limited by universal principles of fair trial, it should not allow its impartiality to be called into question because of emotional statements made in the reports.

The above-mentioned procedural deficiencies lead to problems with application of the Court ’ s own case-law in relation to administrative practice and collective expulsion.

Administrative practice

Although the existence of an administrative practice was established by the Court in paragraphs 159 and 178, it is difficult to understand why the issue of an administrative practice was raised in this case since collective expulsion was allegedly exercised over a very short period of time and no complaints were raised before or after the impugned events. I presume that the status of an inter-State case does not in itself lead to a finding of the existence of an administrative practice.

The Court established the existence of an administrative practice in two inter-State cases which differ substantially from this case. In Ireland v. the United Kingdom the events related to the years between 1971 and 1975, and in France, Norway, Denmark, Sweden, Netherlands v. Turkey there were actual violations of Article 6 over three years, from 1980 to 1982. In the present case the action in question was organised within the space of one or two months and never occurred before or afterwards. The measure was applied not to all Georgian citizens, but to those who had illegally stayed in Russia, and many officials were punished for their mistakes.

An administrative practice consists of a repetition of violent acts and their official tolerance. This means that the Court should first find a violation as a result of one act or a short series of acts and then establish their repetition and official tolerance. In this case the Court has departed from that approach by establishing the existence of an administrative practice without finding even one concrete example of a violation based on documentary evidence. It has wrongly applied the concept of an administrative practice to collective expulsion, as in the latter case the Court should verify the existence of the collective nature of an action but not the repetition of isolated acts.

As regards tolerance in the sense of an administrative practice, this has not been confirmed by the Court. The “secret” instructions were very problematic in the eyes of the Court. However, the police orders to search for unlawful residents cannot themselves be regarded as violent acts. To overcome this obvious obstacle the Court – at the cost of objectivity – has established the existence of an administrative practice which involves not just the police but all other authorities, including supervising prosecutors and judges. Furthermore, the Court has accepted in paragraph 159 that it was a “coordinated policy of arresting, detaining and expelling Georgian nationals” and that conclusion is based on value judgments with no factual basis.

The instructions and circulars “to identify all citizens of the Republic of Georgia” were mitigated by the prosecutors, who were instructed to intensify their supervision of the actions of internal-affairs officials with a view to guaranteeing respect for the rights and freedoms of CIS nationals, including the right to be protected against discrimination, and disciplining officials (see paragraphs 37-38). Thus the task of the Russian authorities was to concentrate on those who were unlawfully resident in Russia.

Accordingly, I cannot accept that the assessment made by the Court in paragraphs 171-76 of the judgment is well-founded. The Court refers to “a production line”, “collusion between the police and the judicial authorities”, “thousands of expulsion orders”, although the number does not matter; a “coordinated policy” with no factual basis other than the wording of the Instruction of 2 October 2006 ordering that “decisions be initiated before the Russian courts” which itself merely means that the administrative authorities are obliged to apply to the courts because the latter are empowered to make decisions on expulsion, so demonstrates that the procedure was conducted in accordance with domestic law.

Ultimately, in paragraphs 175 and 178 of the judgment, the Court has concluded that there was no “reasonable and objective examination of the particular case of each individual”, but there is no indication of any individual circumstances being established by the Court in the judgment and no assessment was made as to whether or not any of those circumstances were properly considered by the Russian judges and police officers. On the contrary, the Court is in possession of the expulsion files of Georgian witnesses provided by the respondent Government, but remains reluctant to take them into account.

I believe that the Instruction of 2 October 2006, which orders that “decisions be initiated before the courts”, does not in itself mean that there was an organised and coordinated action against Georgians by Russian courts and prosecutors and thus that the courts were not impartial and independent, as was stated in various reports and easily accepted by the Court without verifying the facts. This Instruction merely obliges the authorities to bring actions in the courts as the judges alone are authorised to expel unlawful residents from Russia.

Collective expulsion

The “collective expulsion of aliens” within the meaning of Article 4 of Protocol No. 4 is defined by the Court as “any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group” (see Henning Becker v. Denmark; Andric v. Croatia; and Čonka v. Belgium ). It means at the very least that the expulsion of a group of persons as a result of internal procedures does not automatically lead to the conclusion that there has been a “collective expulsion of aliens” (see M.A. v Greece; Berisha and Haljiti v. “the former Yugoslav Republic of Macedonia”; and Dritsas v. Italy ).

It is clear, for example, from the case of Hirsi Jamaa and Others v. Italy that the removal of aliens to a third State was carried out without any examination of their cases by the competent (migration or judicial) authorities. As regards the particular circumstances of the individuals concerned, in the ÄŒonka v Belgium case the authorities made no reference to the applications for asylum and concentrated only on the expiry of the three ‑ month permit (see ÄŒonka , cited above, §§ 61-63) issued to the four applicants. In the present case the applicant Government have not provided proof of any such claims or applications. By contrast, the expulsion decisions are evidence that the case of each Georgian citizen was reasonably and objectively examined by the Russian courts.

Establishment of the individual circumstances is vital for a reasonable judgment. This general approach has always been taken by the Court, in particular in the following manner: “the Court would not require evidence of individual circumstances only in the most extreme cases where the general situation of violence in the country of destination is of such intensity as to create a real risk that any removal to that country would necessarily violate Article 3 (see Savriddin Dzhurayev v. Russia , no. 71386/10, § 153, 25 April 2013; N.A. v. the United Kingdom , no. 25904/07 , §§ 115-16, 17 July 2008; and Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07, § 217, 28 June 2011). In previous cases the Court has preferred to establish the individual circumstances, but that approach was not taken in this case.

The applicant Government stated that four persons had valid visas which had expired in 2007, without attaching any copies of those visas and expulsion decisions or any other documents to their application. It seems unrealistic that the Russian court would conclude that a person was illegally resident if he or she had a valid visa, especially as the respondent State presumably acted in good faith (according to the Court ’ s case-law) and there is a very strong presumption that Russian judges abide by their oaths and duties. By contrast, all documents provided to the Court by the Russian Government prove that the police officers and judges carefully examined all the individual circumstances of each person.

Moreover, according to the judgments of the Russian courts eligible for examination by the Court, the Russian judges reviewed and assessed the particular circumstances of each person. However, in my view, the Court failed to examine the relevant documentation or to assess it impartially.

I cannot believe that the Russian judges (when issuing the expulsion orders) said that the only reason was because the persons concerned were Georgians or that they advised them not to appeal. That would undermine the independence, impartiality and professional aptitude of all judges in Russia. I understand that in such a politically sensitive case it is not easy to remain within the judicial terminology used in the Convention (collective expulsion) and avoid using politically loaded terms and value judgments such as “mass expulsion”, “collusion” between authorities, “coordinated policy”, “reprisal”. However, the international reports containing such politically loaded value judgments cannot be used as evidence before the Court.

I do not doubt the capacity of Russian courts or the professional ethics of Russian judges. I would need to see proof that a Russian judge could expel a trainee who was lawfully registered in a Russian university or any other high-ranking professional who worked with Russian specialists. Neither the reports, nor the applicant Government, nor their witnesses, nor ultimately the judgment itself, provide any examples or concrete evidence to support their statements about a miscarriage of justice. But anyone can find thousands of examples of Georgians who lawfully stay in Russia and make successful professional careers for themselves there.

Noting that more than 58,000 persons in total were expelled in 2006, the expulsion of 4,500 Georgian citizens cannot be a basis for concluding that the procedure did not afford sufficient guarantees that the personal circumstances of each of those concerned had been genuinely and individually taken into account (see Čonka , cited above, § 63). Even if it could, the Court also needs to state concrete examples and concrete personal circumstances to support that conclusion. The reference to thousands of orders issued by the courts (with a huge capacity of more than 30,000 judges) or to “a coordinated policy” (which implies a lack of impartiality of the judges) in paragraph 176 does not satisfy the criteria established in the Court ’ s case-law.

Assessment of evidence

The above-mentioned deficiencies have led to a one-sided assessment of the evidence by the Court. In particular, the Court has accepted allegations and value judgments regarding alleged summary procedures and mass expulsions without considering any decisions of the Russian courts and ignoring the judgments of the appellate courts evidencing numerous successful appeals. According to the appeal judgments, all applicants were represented by lawyers or relatives. Expulsion decisions were quashed on the basis of the individual circumstances of each applicant: lawful residence of relatives, ownership of immovable property, age and poor state of health, medical treatment and status of Abkhazian refugees.

The Court is in possession of files of the Georgian witnesses containing documents which prove that they were not lawfully resident in Russian territory. Their statements to the Court contradict the expulsion decisions, police enquiries, their own written explanations and other documents. According to the decisions, the witnesses appeared before the Russian judges and made their statements and gave explanations which were reasonably assessed by the national courts. These facts refute allegations of a summary procedure.

Moreover, the Court states in paragraph 85 (iv) of the judgment that only 42 appeal decisions concern Georgian nationals expelled in the period in question, which is not correct as all 86 appeals refer to the impugned events if the date of the first-instance court ’ s decision is taken into account. I presume there were hundreds of unsuccessful appeals. The Court did not mention that the Russian Government had submitted examples of successful appeals and it gave no reasons why the appeals were not relevant to conclude that this was not a coordinated action or a miscarriage of justice. In my view, in paragraph 158 of the judgment the Court has misconstrued the number of appeal decisions by failing to regard them as examples of successful appeals but interpreting them as an exhaustive and minimal number. That approach, which allows the Court to ignore the documentary evidence and to make one-sided conclusions, is, in my view, incompatible with the principle of a fair trial.

The Court also stated that only a small percentage of appeal decisions were delivered in Moscow and St Petersburg, yet it has established that expulsion orders were issued in other regions of Russia and that the total number of expelled persons – amounting to thousands – concerned the whole country, whereas in Moscow and St Petersburg the number amounts to several hundred. This raises doubts about allegations of persistent and intolerable overcrowding in cells.

I am very sorry about those who died while in detention, and this fact should be subjected to the Court ’ s scrutiny in order to obtain a legal assessment in terms of adequate medical assistance, but the Court has simply referred to a “large number of cases” where “it has consistently found a violation” (see paragraph 201). The Court has not given any detailed description of the conditions; nor has it considered whether there was distress or hardship of an intensity actually exceeding the unavoidable level of suffering inherent in detention as was done in both the principal cases of Ananyev v. Russia and Idalov v. Russia cited in § 192 of the judgment (see also Shishkov v. Russia , §§ 89-94, as an example of the general approach). In the case of Idalov, where the parties disagreed on most aspects of the conditions of detention, the Court noted that it had recently found a violation of Article 3 on account of overcrowding in the same remand prison (see Skachkov v. Russia and Sudarkov v. Russia ) at around the same time as the facts in issue in that case (see Idalov , § 97). By contrast, in all extradition cases concerning the same period or following the impugned events, the applicants never complained about poor conditions of detention (see Muminov v. Russia , no. 42502/06 , 11 December 2008; Karimov v. Russia; Sidikovy v. Russia ; Bakoyev v. Russia; Zokhidov v. Russia; and Azimov v. Russia).

The Court did not find that any requests had been made by the Russian Ombudsman, the Consul of Georgia in the Russian Federation, prosecutors or other officials after their numerous inspections of the detention centres. All this information was provided by the Russian Government but again ignored by the Court. By contrast, in paragraphs 184-86 the Court has concluded that there was a violation of these rights on the basis of previous statements (collective expulsion, administrative practice and absence of effective remedies which I criticised above). It is interesting to note that the Court ’ s case-law requires that an arrested person should be promptly brought before a judge who should speedily decide the lawfulness of his detention. This was done promptly and speedily, but again, in paragraphs 204 and 205 of the judgment, the Court has cl early refused to adopt its well ‑ established approach in the present case and take into account the short period of detention.

The Russian Government have confirmed and proved that there were appeals and that those who voluntarily left the country were not prevented from appealing or hiring a lawyer, and had the time and oppo rtunity to do so (see paragraph 85). However, the Court (as the master of its own procedure) has come to the exact opposite conclusion (see paragraphs 152-54).

The Court specifically noted the Russian Government ’ s failure to provide it with monthly statistics. However, the Court has established a “sharp increase” in the number of expulsions (see paragraphs 131 and 135) without taking into account annual statistics and the fact that the total number of expelled persons in 2006 was ten times higher. It did not observe that the successful appeals were on grounds of personal circumstances and not just procedural ones (see paragraph 85 (iv)) and also diminished the significance of the appeal decisions by reducing the territory of action to the cities of Moscow and St Petersburg as if all the expelled persons lived in those two cities.

The Court has attached decisive weight to the absence of monthly statistics, concluding that the statistics provided by the Russian Government were not credible for the purpose of determining whether there was an administrative practice (see paragraph 134). At the same time the Court has considered irrelevant the figures in relation to the expulsion of immigrants from other States and, more importantly, has not mentioned the statistics produced by the Russian Supreme Court which prove that in 2005 the total number of expelled persons (about 79,000) was much higher than in 2006 (about 58,000), the year of the impugned events. In the following years the number of expulsions fell to 29,000 in 2007 and to 23,000 in 2008, but remained very high. Such a large number of expulsions cannot in themselves be considered as collective expulsions since such statistics are quite normal for the situation in Russia, where mass unlawful immigration has a strong historical and economic background, and therefore the impugned events do not look extraordinary. Moreover, according to the official statistics of the Federal Migration Service, in the “new Russia” period (1992-2006) more than 150,000 Georgian nationals were granted Russian citizenship, and more than 73,000 of them enjoyed that right within the five years preceding the impugned events.

Considering the situation as a whole, owing to the inter-State tensions and the suspension of all links between the two States (see paragraph 22), friendly relations between the authorities (but not between ordinary people) came to an end, which meant that the Russian authorities stopped tolerating the unlawful residence of many Georgians in Russian territory for many years. The message was so clear and evident that half the unlawful residents preferred to leave Russia voluntarily. That fact was mentioned in the judgment, but not properly assessed in a ccordance with the Court ’ s case ‑ law. For example, in the case of De Bruin v. the Netherlands ( no. 9765/09, 27 July 2013, inadmissibility decision) the Court confirmed the State ’ s authority to withdraw previous official tolerance, stating: “it cannot follow, however, that a “right” to commit acts prohibited by law can arise from the absence of sanctions, not even if public authority renounces the right to prosecute. Such renunciation, even if delivered in writing to a particular individual, is not to be equated with a license granted in accordance with the law” (ibid., § 58).

Lastly, the Court found no violation of Article 1 of Protocol 7, confirming in paragraph 229 of the judgment that, “having regard to all the material in its possession, it has not been established that there were ... arrests and expulsions of Georgian nationals lawfully resident in the territory of the Russian Federation”. This position of the Court can be interpreted as follows: although the Russian authorities expelled only unlawful residents, they violated the Convention prohibition on collective expulsion. This is a self-contradictory position. The Georgian Government had their own logic, persuading the Court that there had been a collective expulsion and that the expelled persons had valid permits to stay in Russian territory. This is why the Georgian Government complained under Article 1 of Protocol 7. However, the Court (as a master of its own procedure) preferred to take a completely different approach, which creates fresh doubts as to the justification, in terms of the rule of law, of the findings of violations.

ANNEX

L ist of witnesses heard by the Court at the Witness hearing conducted in Strasbourg from 31 January to 4 February 2011

A. Witnesses proposed by the applicant Government

1. witness no. 1 [61]

2. witness no. 2

3. witness no. 3

4. witness no. 4

5. witness no. 5

6. witness no. 6

7. witness no. 7

8. witness no. 8

9. Mr PATARIDZE Zurab,

Consul of Georgia in the Russian Federation at the material time

B. Witnesses proposed by the respondent Government

1. Mr AZAROV Nikolay Petrovich,

Head of the Department of Immigration Control, Federal Migration Service, Moscow, at the time of the witness hearing; Deputy Head of the same department at the material time

2. Mr Karmolin Aleksey Aleksandrovich,

Without employment at the time of the witness hearing; Inspector of the Group for Execution of the Administrative Legislation, Directorate of Internal Affairs for the District of “Khamovniki”, Moscow, at the material time

3. Mr Kondratyev Vladislav Yurevich,

Head of the Division of Checkout Measures No. 2, Department of Immigration Control, Federal Migration Service, Moscow, at the time of the witness hearing; Inspector in the same department at the material time

4. Mr Kormyshov Yevgeniy Ivanovich,

Deputy Head of the Division for Navigation, Federal Marine and River Transport Agency at the time of the witness hearing as well as at the material time

5. Ms Kulagina Tatiyana Vasiliyevna,

Senior Inspector, Department for the organisation of activities of the District Police Officers and District Supervision Officers in respect of Minors, Main Division of the Interior, Samara Region, at the time of the witness hearing; Inspector in the same department at the material time

6. Mr Manerkin Yevgeniy Nikolayevich,

Head of the Division for Supervision of the Execution of Federal Legislation, Prosecutor ’ s Office, Moscow, at the time of the witness hearing as well as at the material time

7. Mr Nikishkin Konstantin Sergeyevich,

Deputy Head of the Legal Department, Ministry of the Interior, Moscow, at the time of the witness hearing; member of another department at the material time

8. Mr Shabas Sergey Mikhaylovich,

Deputy Head of the Department of the Interior, North-Eastern Administrative District, Moscow, at the time of the witness hearing; Deputy Head of the Civil Security Force in the same department at the material time

9. Mr Shevchenko Kirill Dmitryevich,

Expert from the Russian representation with the International Organisation for Migration at the time of the witness hearing; Deputy Head of the Department of Immigration Control of the Federal Migration Service at the material time

10 . Mr Vasilyev Valeriy Anatolyevich,

Adviser (Head of Department) to the Ministry of Foreign Affairs, Moscow, at the time of the witness hearing; Consul of the Russian Federation in Georgia at the material time

C. Witnesses chosen by the Court

1. Mr Tugushi George,

Public Defender (Ombudsman) in Georgia and member of the European Committee for the Prevention of Torture (CPT) at the time of the witness hearing, Human Rights Officer with the OSCE mission to Georgia at the material time

2. Mr Eörsi Mátyás,

Rapporteur of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) at the material time

Witness hearing summary

241 . A delegation of five Grand Chamber judges composed of Josep Casadevall, Anatoly Kovler, Mark Villiger, Isabelle Berro-Lefèvre and Nona Tsotsoria held a witness hearing in camera in the Human Rights Building in Strasbourg from 31 January to 4 February 2011 in the presence of the parties ’ representatives.

242 . The delegates heard twenty-one witnesses in total, nine of whom were proposed by the applicant Government, ten by the respondent Government and two chosen by the Court.

243 . The witness statements can be summarised as follows.

A. Witnesses proposed by the applicant Government

244 . The first nine witnesses (except for witness no. 8, wife of the late Mr Togonidze and who was an “indirect” witness to the events, and Mr Pataridze, Consul of Georgia in the Russian Federation at the material time) are Georgian nationals who were arrested, detained and expelled by the Russian authorities. Their statements concerned the conditions of arrest, detention and expulsion in the autumn of 2006.

1. Witness no. 1, born in 1967, married, mother of two adult sons

245 . She said that she had arrived in the Russian Federation in September 2006, that she was an “internally displaced person” from Abkhazia and that she had been arres ted at her home in Moscow on 11 October 2006 with her two sons, then aged 18 and 20 respectively, by police officers from the Kuzminki District (Moscow). When she asked why she was being arrested, the police officers replied that an order had been issued for the arrest and detention of all Georgians. She had then been taken to a police station in the Kuzminki District in a cell called a “monkey cage” and had remained in police custody for two days and two nights, together with other male detainees whom she described as common criminals; she had been the only woman and the only Georgian amongst the detainees.

She described the conditions of detention in the “monkey cage” as inhuman, horrible and unbearable: there had been insufficient seating room for the 20 detainees, who had had to take turns sitting down, and when they had asked for water, they had been told they could drink the toilet water. On the second day her husband had visited her and brought her medicines (including an ointment).

She and 15 other Georgians had then been taken to a court, where they had gone before the judge one by one. She had been asked to sit down on a chair, and the judge had said: “you are going to be expelled, aren ’ t you?” and when she had asked why she was going to be expelled the judge had answered: “it ’ s because you have Saakashvili as President, you ought to talk to him” and she had not been allowed to speak. A police officer had then asked her to sign the court decision and the only thing she had understood was that she had 10 days in which to leave Russian territory; she had had neither a lawyer nor an interpreter, but had been so frightened for herself and her children that she had been ready to sign anything at all to be able to return to Georgia. The whole episode had lasted approximately 10 minutes. She stated that she had said she was ready to leave the territory of the Russian Federation by her own means, but that she had been told that she was going to be forcibly expelled as a detainee. She said she had signed a document saying that she had no financial means, and explained that another Russian police officer had advised her to make a statement to that effect.

She had subsequently been separated from her sons, gone back into the “monkey cage” and been subjected to a medical examination that had included a blood test.

She had then been detained for 4 days in a detention centre for women in Butyrskaya Prison in Moscow city centre (where there had been many other Georgian women, and the centre was so overcrowded that they had found it hard to find a space for her) in a cell with 7 other women in unbearable conditions. The cell was very small, there was one bunk bed with very thin mattresses, no water, blankets or toilets (just a bucket). She had a cut on her hand, was feverish and was not given any medical assistance. Her husband had visited her on her second day in the detention centre.

Subsequently, on 17 October 2006, she and some other Georgian nationals had been taken to Domodedovo Airport in Moscow by officers of the special police force (OMON) and flown back to Georgia. Her sons, of whom she had had no further news, had remained in detention for a further 18 days and had joined her in Georgia afterwards. As the Russian consulate in Georgia had been closed, she had been unable to seek a remedy.

With regard to her legal situation in the Russian Federation, she had had a one-year business visa that had been issued by the Russian consulate in Georgia for her stay in the Russian Federation, but an invalid registration certificate (issued by a private agency, of which there were many in Moscow, and with a discrepancy between the address indicated on the certificate and the address where she had been living at the time of her arrest). She said that she had lived in Moscow for a number of years before returning there in September 2006, had already had her papers checked in the past but without this having led to any consequences.

2. Witness no. 2, born in 1942, married

246 . He said that he had lived in the Russian Federation for 13 years and that he had been arrested by officers from the Federal Migration Service on 6 October 2006 at 5.25 p.m. in the flat where he had been living and where he had had a painting job, and taken to the police station. He had not been allowed to take his belongings on the grounds that he would be questioned for only 20 minutes. When he had asked why he was being arrested, he had been told that it was because he was Georgian and because of Saakashvili.

He had been held for one night in a police cell. The next day he and approximately 150 other Georgians had been taken to a court by bus, but – like all the other Georgians – he had not been allowed to get off the bus. Only two of them, who had signed the court decisions in the corridors of the court, had been allowed off. He had had to wait approximately 40 minutes in the bus and had been forced to sign the court decision under the threat of “be happy you ’ re still alive”. He had then been given a blood test, during which a large quantity of blood had been taken from him; he claimed that it had been almost half a litre because he had seen the plastic bottle entirely filled, and that the needles had not been disinfected.

The bus had then taken all the Georgians to prison, and he had been detained for 5 days in a detention centre, where all the detainees had been Georgians, before being expelled to Georgia by aeroplane.

With regard to the conditions of detention, there had been 12 bunk beds for 25 people, with only iron bars “as could be seen in certain films about the Gestapo”: no mattresses or blankets, and they had had to take it in turns to lie down. Three days later they had been provided with some very thin mattresses, but too few. The prisoners had always taken it in turns to sleep, there had been one toilet in the cell that was not partitioned off from the rest of the cell and from which a trickle of water ran that was drunk by the detainees; the food had been so bad that he had drunk only tea for 5 days.

Compared to those conditions of detention, the conditions of the flight back to Georgia on 11 October 2006 had, in his words, been “heavenly”.

With regard to his legal situation in the Russian Federation, he said that when he had returned there in October 2005 he had had a business visa that had expired in April 2006, and stated that he had applied for it to be extended. That information had been marked in his passport at the time, which he had carried with him at all times, but which had since expired.

3. Witness no. 3, born in 1977

247 . He stated that he had lived in Moscow from 2004 to 2006 and was a trained doctor. On 6 October 2006, while he was on his way to a Moscow hospital where he was finishing his training as a house doctor, he had been arrested by two police officers who had asked him to show them his papers.

As he had not had his passport with him, but just a temporary document, he had been arrested and taken to the police station where he had been put in a cell with 3 other Georgians. When he had asked why he was being arrested, the police officers had replied that an order had been issued for the expulsion of all Georgians.

A few hours later he had been grouped together with approximately 110 other Georgian detainees. They had all been taken in several cars to a court, and then to a court hearing room where they had been summoned to appear one by one before a judge. During the interview, which had lasted 5 minutes, the judge had asked him to give his name and particulars. When he had tried to explain his situation, the judge had told him that he should just ask Mr Saakashvili. When he had asked whether he could appeal he had been told that this would serve no purpose because an order had been received from above.

He had then been taken by bus to a special detention centre in Dmitrovskaya where he had remained for 5 days before being expelled by plane to Georgia on 10 October 2006.

With regard to the conditions of detention in the detention centre, he stated that he had been held with approximately 100 other people of various nationalities (Georgians, Uzbeks, Tajiks and others) in a large room measuring 40 to 50 m 2 , with no tables, chairs or anything. He spent the first night there and the next day 28 Georgians were asked to come out, their fingerprints were taken and they were then put into different cells. The conditions in the new cell were slightly better: there were about 23 detainees in a room measuring between 22 and 25 m 2 and there were 10 beds. There was a bad smell in the toilets; they were not partitioned off from the rest of the cell; and the tap water was yellow. The food was disgusting, but they had paid the guards for reasonably decent food. One person had fallen ill, so the detainees had banged on the doors and the Consul of Georgia had arrived and the person in question had been able to leave the cell.

On the departure date, 10 October 2006, a group of approximately 23 Georgians had been taken to the airport, where some other buses had also brought Georgian nationals. In each bus there were three police officers in the front and two in the back. In the bus they had had to pay for everything, for example some police officers had demanded 200 roubles, others 500, to make a telephone call. The Georgians had subsequently been expelled like cattle, as they had had to run with their hands behind their back along human corridors formed by the OMON officers. The conditions of transport in the Ministry of Emergency Situations plane had been acceptable.

With regard to his legal situation in the Russian Federation, this appeared confused. During the hearing the representative of the respondent Government submitted a document stating that he had already been sentenced on 19 May 2005 by the Regional Court of Tverskoy (Moscow) to a fine of 1,000 roubles and administrative expulsion because he had been in possession of neither a visa nor a valid registration certificate. The representative of the respondent Government also submitted a document of 20 September 2006 from Moscow Hospital indicating that he had been expelled from the university for failing to pay the enrolment fees. Both documents had been sent to the Agent of the applicant Government.

The witness said that he had already been subjected to checks in the past but that there had never been any consequences.

4. Witness no. 4, born in 1982, married

248 . He stated that he had been arrested in Moscow by officers from the Federal Migration Service while he was visiting his father, who was a taxi/mini-bus driver, and where he was working as an apprentice. The officers confiscated his identity papers and asked him to report to the police station.

The third time he reported there, he was taken by car to a building he had identified as a court from the plaque outside. Four other people, three of whom were Georgians, had been waiting outside a room. During his interview with someone he thought was a judge, which lasted two minutes, she had asked him whether he understood Russian. After that, he had been peremptorily ordered to sign a court decision that he had not had time to read and was not given to him. When he asked why he had been detained, one of the officers had told him that there had been an order from above to expel all Georgians and that it was pointless to appeal. He had mentioned operation “Gazelle” and operation “Crocodile”.

He had then been taken back to the police station and put in a cell called the “monkey cage” for 8 to 9 hours. From his cell he could see the Georgian President on television, and he was told that he had been detained because of that man. He could see that the other cells were overcrowded.

He was then taken to a detention centre for foreigners where he and 17 other people had had to wait many hours outside before being placed in a cell. It had been nearly midnight by then and he had remained in detention in that centre for about 8 hours. There had been about 30 detainees of Georgian nationality, one of Uzbek nationality and three of Tajik nationality in a cell measuring 6 by 8 steps. There had been 6 beds in all, with no mattresses or blankets, just metal frames. The toilets had not been partitioned off from the rest of the cell and there had been no water. He had neither eaten nor drunk anything throughout his period of detention.

On 6 October 2006 a number of vans with about 7 people inside accompanied by OMON officers had taken the detainees to the airport. Inside these vans the detainees were ordered not to open the windows and they had had to pay for everything: for example 200 roubles to be allowed to smoke; 300 roubles to urinate. After walking along human corridors formed by the OMON officers, they had been put onto a cargo plane. There had been two rows of seats in the plane with about twenty women and children sitting on them, the men had been sitting on the floor and there had been a sort of tub which had served as a toilet and had circulated between the rows. There had been about 80-90 Georgians in the plane. With regard to his legal situation in the Russian Federation, he had a business visa but no work permit. During the hearing the representative of the respondent Government maintained that the residential block referred to in his registration certificate as his place of residence had been made the subject of a demolition order and that the address of the company where he worked did not exist. The witness said that he had lived at the address given in his registration certificate and that his papers had been checked in the past but that there had never been any consequences.

5. Witness no. 5, born in 1964, married to witness no. 6

249 . He stated that he had arrived in the Russian Federation in 2003 and had first worked on a market stall and then as a driver. He stated that his papers had been checked on 30 September 2006 in the Moscow underground and that the police officers had taken his passport away. He had been told to go to the Migration Service to retrieve his passport and had gone there several times.

On 3 October 2006 he had been taken, handcuffed, to another building, without realising that it was a court. There were three other Georgians and they had been asked to sign an initial document in a corridor before being taken into the corridor of another building where they had also been made to sign a document. He had not had time to read them and had not received a copy.

He had subsequently been placed in police custody in a police station, where he had remained for a whole night. The next day he had been given a blood test. He had been beaten with a truncheon because he had been scared of the blood test and had not wanted to go into the room. When he asked why he had been arrested he was told that there had been an order from the Russian President that all Georgians had to leave the Russian Federation.

He had then been taken to a detention centre for foreigners in Dimitrovskoe Chaussée Street where he had been undressed and examined. He had then been placed in detention in a small cell in which there were 40 to 45 detainees, 43 of whom were Georgian and 2 Tajik. There were 6 beds and they had had to take turns sitting down; it had been impossible to lie down.

On 5 October 2006, the day before he was expelled, he had been taken to another cell containing mattresses and blankets and where there had been NTV journalists interviewing the detainees. Once the journalists had left, however, they had had to go back to their former cell.

The detainees had then been grouped together and taken in buses containing about thirty seats to the airport escorted by three guards before being expelled in a cargo plane. They had been made to pay 200 roubles in those buses for permission to smoke or 300 roubles to urinate. He saw one fellow detainee being beaten by the guards because he had smoked a cigarette without having paid the 200 roubles.

There had been no seats or other amenities in the cargo plane; it had been overcrowded and the Georgians had either been standing up or sitting on suitcases. A tub had served as a toilet and had been skidding around the floor before being stabilised. The flight had lasted 2 hours and 15 minutes, and a ration of dry biscuits had been distributed just before take-off. He stated that he had left practically all his belongings behind and had been able to take only a few personal effects that had been brought to him by a Russian colleague.

With regard to his legal situation in the Russian Federation, he had a business visa but no work permit. The representative of the respondent Government said that in 2003 he had been sentenced to a fine for fraud. The witness confirmed that he had had to pay a fine at the time.

6. Witness no. 6, born in 1969, married to witness no. 5

250 . She stated that she had arrived in the Russian Federation in 2003 and had worked on a market stall selling fruit and vegetables. When her husband was arrested, she had contacted a lawyer with a view to obtaining her husband ’ s release from detention but the lawyer had discouraged her from doing so saying that it would be a waste of money because Georgians were now being hunted down in the Russian Federation.

Someone had given her an address to go to in order to avoid being forcibly expelled. She had gone there on 10 October 2006 with two children of friends, aged 14 and 16, from whom she had been separated (it had taken the parents 2 days to find the children, despite help from the Consul).

She and 3 other people had then been taken to another building where she had been asked whether she spoke Russian and, when she said she did, even though she had specified that she did not understand legal terms in Russian, she had been asked to sign some papers that she had not been given time to read. She could see a judge some distance away through a door and then realised that she was in a court. She did not receive a copy of the court decision and when she asked why she had been arrested she was told that it was because she was Georgian. She was also told that she could appeal against the expulsion order, but that there was no point because she would in any case be unsuccessful.

She had subsequently been placed in a temporary cell in a small building in which the cells were divided by iron bars, where she had remained fo r 4 hours with 4 Russians and 6 Georgians (7 men and 3 women). She had then been given a blood test.

She had then been taken to a detention centre for women and put in a cell where there were 8 women altogether. There were two beds with metal frames, very thin mattresses on which they could not lie down; the food was disgusting and there was no drinking water, just water from the toilets (a bucket). One person had fallen ill and there was no medical assistance. There had been mainly Georgian women in the cell.

She had remained in the cell for 7 days before being expelled to Georgia on 17 October 2006 in an airliner. She had not known that she could appeal against the expulsion order. Once back in Georgia, there had been many people waiting in front of the Russian consulate and she had abandoned any idea of bringing proceedings in respect of the case.

With regard to her legal situation in the Russian Federation, she had a business visa and a registration certificate (issued by a private agency of which there were many in Moscow).

7. Witness no. 7, born in 1956

251 . He stated that he had arrived in the Russian Federation in July 2006 and had been arrested on 5 October 2006 in the street in Moscow as he was getting ready to go and visit some relatives. He is a qualified engineer but was unemployed at the relevant time. He referred to the political tensions that had existed between Russia and Georgia when he had returned to the Russian Federation in July 2006.

He had been taken to a building at the Federal Migration Office and then to a court, where he had been able to see a judge but had not been able to talk to her directly. It was the police officers who had asked the questions and had presented him with pre-printed documents on which he had had to write his name and quickly sign various papers prepared in advance. The whole episode had lasted between 30 and 40 minutes for 4 people.

He had subsequently been taken back to the police station before being driven away with 2 other people in a black car to a clinic for a blood test. He had then been put in a cell in a detention centre for foreigners in Dimitrovskoe Chaussée Street for a day and a night with no food. The cell measured approximately 25 m 2 , with 15 beds that had no mattresses or blankets and there had been 40 detainees in all. The toilets were not separated from the rest of the cell. Five of the detainees were from Central Asia (Uzbeks, Tajiks) and the others were Georgians.

He and some other detainees had then been taken by bus to the airport; there had been 4 OMON officers in each bus and the detainees had been made to pay 100 roubles for permission to smoke, 200 roubles to telephone, 500 roubles to urinate and 300 roubles to have their personal effects brought to the airport.

He had then boarded a military plane bound for Georgia. There had been between 150 and 200 passengers on board. Some detainees had managed to get a seat but many had remained standing. Once back in Georgia, he had not envisaged appealing because he never wanted to return to the Russian Federation.

With regard to his legal situation in the Russian Federation, he had a business visa but, according to the representative of the respondent Government, an invalid registration certificate (issued by a private agency and with a discrepancy between the address of his place of residence and the one appearing on the certificate). The representative of the respondent Government maintained that this witness had been held in the same cell as other witnesses who had all described the conditions of detention in different ways. The witness disputed having been held in the same cell as those witnesses. He reaffirmed that he had been living at the same address as the one indicated on his registration certificate and that he had been arrested while he was unemployed. Furthermore, he confirmed that his papers had been checked in the past but that there had been no consequences.

8. Witness no. 8, born in 1959, wife of the late Mr T ogonidze , who had died while being expelled from the Russian Federation

252 . She stated that she had arrived in St Petersburg with her husband on 17 November 2004 on a three-month visa. They had sold lemons on a stand near an underground station and had remained in the Russian Federation for 2 years without a valid visa. She had returned to Georgia in May 2006.

She had learnt of the conditions of detention and the death of her husband from other Georgians who had been detained with him. In addition to that, he had managed to obtain a mobile telephone and had called her on 14 October 2006 to tell her that he was going to be expelled to Georgia on 16 October 2006 and that he hoped he would survive until then because there was no air in the cell and he was dying. He had been held in a detention centre in St Petersburg since 2 October 2006 and had told her that the conditions of detention were horrible, that there had been no medical assistance or food or water and that they had been treated like animals, with men and women being held together. He had asked to see a doctor but had been insulted. She explained that her husband had suffered from asthma but had been able to lead a normal life thanks to the sprays that he had always carried with him and to his treatment. The autopsy indicated that he had died of tuberculosis, but she was surprised by that because he had never had tuberculosis. She then explained that her husband had been taken to the airport by bus, had asked for a window to be opened so that he could breathe but that as he had been unable to pay, the police officers had fired at him with a laser pistol. When she had learnt of her husband ’ s detention, she had asked a friend there to contact a lawyer but the lawyer had not been allowed to go to the detention centre.

9. PATARIDZE Zurab, Consul of Georgia in the Russian Federation at the material time

253 . He stated that he had been Consul in the Russian Federation from 2004 to May 2009. At the material time 6 people had been working at the only office of the Georgian consulate in Moscow and about 200,000 Georgians had been resident in the Russian Federation.

He described a major change in the situation between the beginning and the end of September 2006, saying that it was then that the massive ethnic persecutions against Georgians had started. The consulate had been inundated with telephone calls and requests for assistance from relatives of persons detained, and between 200 and 300 Georgian nationals had gone to the consulate every day. There had been a real climate of panic and Georgians had not dared go out into the street any more. Even Russian citizens of Georgian origin who had been working for Georgian businesses had contacted the consulate. In his view, the procedures followed were unlawful because Georgian nationals had been arrested without any court decision and even people aged under 18 had been placed in detention. He gave the example of a woman who had been detained with her five-month-old baby. During that period Georgian nationals were being arrested everywhere: in the street, near the consulate and near the Georgian Orthodox Church. The existence of a massive campaign was also evidenced by the fact that before the end of September 2006 the consulate had issued between 10 and 15 travel documents per day whereas after that date, some 150 documents were being issued per day. Those documents were necessary to secure the expulsion of Georgian nationals and the Federal Migration Service of the Russian Federation had co-operated with the consulate to that end.

The Consul and his team had visited more than a dozen detention centres in different regions of the Russian Federation, including those in St Petersburg and Moscow. It was mainly Georgian nationals who had been held in all these centres, and even the prison governors had privately acknowledged that they had never had so many people of the same nationality at the same time. The cells had been overcrowded, the conditions of detention very difficult, the hygiene appalling and there had been too few beds and mattresses etc. Only detention centre no. 1 of Moscow (a model centre shown to journalists) had provided better conditions, though it was also overcrowded.

In private, Russian officials had told him that they had received instructions to expel Georgian nationals and he referred to the letters sent to schools asking for the names of Georgian children. In his view, it had clearly been an ethnic campaign directed against Georgians, irrespective of the question whether they were lawfully or unlawfully resident in the Russian Federation. The fact that their papers had been invalid had merely been a pretext. In any event, as the official administrative steps had often been difficult to carry out in practice many foreign nationals had been tricked by private agencies, many of which acted illegally and had provided them with forged visas and registration certificates. Recourse was commonly had to these private agencies, which advertised in all public places in the big cities. He also said that the Georgian consulate provided information on immigration laws in the Russian Federation to Georgian nationals.

With regard to the expulsion procedures, he had never seen them applied so rapidly. He had personally attended a hearing where there had been 7 people in the room and a single pre-printed decision had been delivered against them indicating that they had all been detained in the same centre, whereas in fact they had all been detained in different centres.

He had also gone to a number of airports where Georgian nationals, who had not been allowed to take their personal effects, had been taken away in busloads. The first flight to Georgia at the beginning of October had been in a cargo plane from a military airport; other flights had been effected by airliners from other airports.

He concluded that he and his team had done what they could to help their compatriots in this emergency situation and that they had been working practically round the clock. He had provided all the information necessary to Georgian nationals seeking to appeal against expulsion orders, but, given their terrible conditions of detention, they had wanted to go back to Georgia as quickly as possible. In any case, Russian officials had told him in private that appeals of that nature would be futile because the decision to expel all Georgians from the Russian Federation was a political one. He also said that he had sent letters of protest to the Russian authorities but also a letter of thanks to the head of the Federal Migration Service of the town of Derbent (Dagestan [62] ) who had done all he could to assist expelled Georgian nationals to leave the country.

With regard to Mr Togonidze, the Consul had met him for the first time on 13 or 14 October 2006 in the St Petersburg detention centre, where the conditions had been particularly awful. Given his very poor state of health, he had requested that he be seen by a doctor and given treatment. The Russian authorities ha d subsequently told him that Mr Togonidze ’ s condition had improved. He had me t him for the second time on 17 October 2006 at Domodedovo Airport in Moscow after he had been travelling in a very dirty and airless bus for about 12 hours during which the passengers had complained of being given electric shocks. Mr Togonidze had told him that nothing had changed in St Petersburg, and that a guard had just given him a spray as a humane gesture. Mr Togonidze had then asked to get out of the bus so that he could breathe, and the Consul had asked the police officers to let him out. He had got out of the bus, taken a few steps and then collapsed, before dying. Subsequently the Russian authorities had replied to the Consul that the police had never administered electric shocks to Georgian nationals in buses taking them to the various airports. The autopsy report in respect of Mr Togonidze also mentioned methadone poisoning, but, according to the Consul, he had not been drugged. The Consul added that he had not been present during the autopsy (he had not been asked to attend, moreover) and that the results of that autopsy had been sent to him very late.

B. Witnesses proposed by the respondent Government

254 . The following nine witnesses are civil servants of the Russian Federation, whose evidence concerned in particular the conditions of arrest, detention and expulsion of Georgian nationals, statistical data and the authenticity of the instructions issued by the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region.

1. AZAROV Nikolay Petrovich, Head of the Department of Immigration Control, Federal Migration Service, Moscow, at the time of the witness hearing; Deputy Head of the same department at the material time

255 . He said that at the material time he had been Deputy Head of the Department of Immigration Control of the City of Moscow, a department of the Federal Migration Service. The employees in his department were responsible for checking whether foreigners residing in Moscow or their employers had complied with the immigration laws of the Russian Federation, drawing up records and bringing foreigners before the courts. He confirmed that he had never received any instructions from the Federal Migration Service to specifically expel Georgian nationals, but merely to combat illegal immigration, and that concerned all foreigners in the Russian Federation.

With regard to private agencies, these often acted illegally. Whilst they were sometimes authorised to assist foreigners in their administrative dealings, they were not in any circumstances authorised to register anyone or issue official papers. He confirmed that criminal proceedings had been brought against these agencies, but did not know the details. Besides that, the Federal Migration Service had also published information in different languages on the legal procedures applicable to foreigners on its Internet site, in the media and in public places.

Generally speaking, his department had regularly informed the consulate concerned of the expulsion of foreign nationals once the courts had issued their decisions. With regard to the procedures followed before the courts, foreigners had a 10-day period in which to appeal against court decisions and some of them had made use of that possibility. That was why they were not expelled until 10 days had elapsed. Furthermore, they could contact their consulate at any time.

He was in charge of the 8 detention centres for foreigners in Moscow and had visited all of them. The conditions of detention there were the same for all foreigners: large cells of approximately 50 m 2 , with beds, separate toilets, running water and hot meals served 3 times per day. The detainees were also allowed out to take exercise once a day.

He also said that, before working at the Federal Migration Service in Moscow, he had been a police officer at the airport. The description of her cell by Mrs Nato Shavshishvili [63] , who stated that she had been detained in an airport police cell, was inaccurate. In fact, the cells had wooden, not concrete floors, and no one could be detained there without having been registered. Moreover, she had said that she had worked in a café in Petrovsky Park, whereas there was no café in the park.

The witness then said that he had been present at Zhukovskoe and Domodedovo Airports and had boarded two aeroplanes carrying Georgian nationals who had been expelled to Georgia: one had been carrying 450 passengers and the other 420. He had himself boarded these aeroplanes, which had been equipped with seats and benches, and safety belts, and water and dry biscuits had been served on board. He stated that the practice was not limited to Georgians; thus in 2003, 170 Tajik nationals had been expelled by plane and approximately 700 Chinese nationals.

The expulsions of Georgian nationals had already started in 2002, and in 2006, 4,000 Georgian nationals had been expelled. In the course of 2006, 6,000 Uzbek and 4,000 Tajik nationals had also been expelled.

2. KARMOLIN Aleksey Aleksandrovich, unemployed at the time of the witness hearing; Inspector of the Group for Execution of the Administrative Legislation, Directorate of Internal Affairs for the District of “Khamovniki”, Moscow, at the material time

256 . He stated that he was unemployed for the time being and that at the relevant time he had been a young officer in the police rapid intervention force under the authority of the Ministry of Internal Affairs.

During the autumn of 2006 he had been on patrol duty outside the Georgian embassy in Moscow for the purposes of ensuring public order and, in particular, allowing Georgian nationals to freely access the embassy. With regard to the videotape submitted by the applicant Government recording a raid carried out in the autumn of 2006 on the Tbilisi Guest House (which is part of the complex of buildings making up the Georgian embassy in Moscow), he stated that this was in fact a fabrication showing two events that had occurred on two different dates and did not in any way correspond to the allegations of the applicant Government. In the first part he could be seen as an ordinary police officer in his summer uniform taking part in an intervention carried out during demonstrations that had taken place in the summer of 2005 in front of the Tbilisi Guest House, and in the second part he could be seen in his blue winter uniform monitoring an authorised demonstration that had taken place in front of the Georgian embassy in the autumn of 2006.

He confirmed that he had never received written instructions regarding the selective arrest of Georgian nationals. During the month of October 2006 he had been present every day in the area of the Georgian embassy but did not remember any anti-Georgian demonstrations and the embassy had never called on his services on the grounds that people were blocking access to the embassy.

He also indicated that his unit was responsible for conveying foreigners sentenced to expulsion from the courts to detention centres for foreigners: if one person were being driven they used a vehicle called a “Zhiguli 21-10”, and if several people had to be driven they used multi-seater vehicles called “gazelles”. Before arriving at the detention centres, the foreigners were given a medical examination in a public clinic. After an interview with a doctor, they were given a blood test (approximately 15 ml) with sterilised and disposable needles. He was certain of this because the doctors were often women who were afraid to stay alone with foreigners and asked the police officers to be present.

In the detention centres for foreigners, men and women were of course separated; it was only in police stations that they could, exceptionally, be placed in police custody together, but for a maximum period of 3 hours. In any event, unlawfully resident foreign nationals were not in any circumstances detained with ordinary criminals.

3. KONDRATYEV Vladislav Yuryevich, Head of the Division of Checkout Measures No. 2, Department of Immigration Control, Federal Migration Service, Moscow, at the time of the witness hearing; Inspector in the same department at the material time

257 . He stated that at the material time he had be en inspector of check out measures and that his duties had consisted of checking the identity papers of foreigners suspected of breaking the immigration rules, on the basis of information received by his departments, drawing up administrative reports and being present at hearings before the courts. These had been conducted as follows: the defendant was brought before a judge, who informed him of his rights and obligations, asked him whether he required the presence of an interpreter and a lawyer, and, if he did, that request was taken into account. The judge then put questions to the defendant regarding the details of his situation, left the room and came back with the decision. If it was an expulsion order, the defendant received a copy of the order and was taken to the detention centre for foreigners before being expelled. He had 10 days in which to appeal, even once expelled from the Russian Federation and that period could be extended.

He himself had known of cases of foreigners who had appealed and been successful.

He also confirmed that at the time he had not received any order from his superiors to specifically expel persons of a particular nationality. He had not observed an increase in the number of Georgian nationals expelled in 2006 and there had been a higher number of Uzbeks expelled during that year.

He also said that he had been present at 2 flights on 6 and 10 October 2006 carrying Georgian nationals expelled to Georgia. He specified that the Georgian nationals had the court decisions on them and a note in their passport to say that they were being expelled pursuant to a court decision. The first flight by cargo plane (IL76) had taken off from the Military Airport of Zhukovsky with about 150 passengers on board. The plane had resembled an airliner albeit slightly less comfortable; it had been equipped with seats or benches and safety belts; water and food had been served on board and there were toilets fixed to the ground. The flight had lasted about 3 hours. The passengers had not complained about the transport conditions; on the contrary, they had thanked the members of his department who had accompanied them. Had there been a complaint, it would have been transmitted to his superiors, but the aircraft could not be changed. On the way back the same plane had transported Russian nationals wanting to leave Georgia for the Russian Federation. The Consul of Georgia had also been present at Zhukovsky Airport, but had not made any complaints about the administrative procedures followed or the conditions of transport. The airliner (IL62) which had taken off on 10 October 2006 had also had about 150 passengers on board.

He added that, to his knowledge, there had been no such flights to Georgia before or after October 2006.

He also said that his department had sent information to the Ministry of Internal Affairs about private agencies that were operating illegally, but that he did not have any precise information regarding the criminal proceedings instituted against them. In any event, all foreigners had to go to the Federal Migration Service to obtain their residence permits and there were information points everywhere about the legal procedures that had to be followed. He explained that in 2006 registration, for example, had to be done within 3 working days, the foreigner in question had to go to the relevant department in person with a passport, a visa and accompanied by the owner of his or her place of residence.

4. KORMYSHOV Yevgeniy Ivanovich, Deputy Head of the Division for Navigation, Federal Marine and River Transport Agency at the time of the witness hearing as well as at the material time

258 . He stated that he had had the same duties at the relevant time as those he carried out today: his role was to oversee the safety of Russian ports and inspect ships arriving there. The Russian Federation, like other States signatory to the Memorandum of Paris, which contained certain recommendations regarding ship security, regularly inspected ships flying the flag of various countries and published the results in annual bulletins. The States were entered on black, grey or white lists according to the level of safety of their ships. Georgia was one of the States on the black list.

From October to December 2006, more than one hundred ships flying the Georgian flag had sailed into Russian ports (104, to be precise), of which 33 had been inspected and 6 stopped; ships flying the flag of other countries had also been inspected and stopped during that period. At the beginning of October 2006 two letters had been sent to the port managers reminding them of their obligation to monitor the entry of ships flying the flag of countries on the black list, including Georgian ships. In 2005 and 2007 there had been no letters referring to Georgian ships.

In 2006, 20% of Georgian ships had been stopped in ports of States signatory to the Memorandum of Paris, with 15% in the Russian Federation, and in 2007 the figure had been 19% for all States signatories and 12% for the Russian Federation. The Russian Federation had therefore stopped substantially fewer Georgian ships than the other States signatory to the Memorandum of Paris.

He added that if a ship was stopped, the members of the crew in charge of security had to remain on board, while the rest of the crew could go on land.

5. KULAGINA Tatiyana Vasiliyevna, Senior Inspector, Department for the organisation of activities of the District Police Officers and District Supervision Officers in respect of Minors, Main Division of the Interior, Samara Region, at the time of the witness hearing; Inspector in the same department at the material time

259 . She stated that she had already been working in that department at the material time, but had since been promoted.

In 2006, after an article had appeared in the press, she had carried out an investigation into the conduct of Mrs Volkova, Head of the Juvenile Department of the Togliatti District, who had requested schools to provide lists of Georgian pupils. She had interviewed Mrs Volkova, who had said that she had been given information about Georgian parents unlawfully resident in the Russian Federation who had paid bribes in order to be able to enrol their children at school. Mrs Volkova had acted on her own initiative without informing her superiors, and had intended to check with the Federal Migration Service whether the persons on these lists were unlawfully resident in the Russian Federation. She had specifically requested to be given the list of Georgian pupils after receiving the information about Georgian parents, but had intended to then also ask for a list of pupils from other countries. In the course of her investigations the witness had also heard two inspectors who were the subordinates of Mrs Volkova, but had been unsuccessful in contacting Mrs Grigoryeva, the journalist who had written the press article. She had not considered it necessary to speak to the school principals concerned or to the parents of Georgian pupils, as the lists in question had never been used and had subsequently been destroyed.

Mrs Volkova had not subsequently been reprimanded, but had been disciplined: during a meeting in Togliatti on 2 November 2006 she had been summoned to explain her actions openly in the presence of a number of responsible officers and reminded of her obligation of strict compliance with the legislation in force particularly regarding the rights and freedoms of citizens. She had apologised and said she regretted having acted in that way. Her immediate superior, Mr Shapovalov, had also been disciplined and reminded that he was personally responsible for the organisation of his subordinates ’ work. Subsequently, all the heads of the Juvenile Department in the region of Samara had been informed that such actions were unacceptable.

She had no knowledge of any similar requests sent to schools in other regions.

6. MANERKIN Yevgeniy Nikolayevich, Head of the Division for Supervision of the Execution of Federal Legislation, Prosecutor ’ s Office, Moscow, at the time of the witness hearing as well as at the material time

260 . He stated that he had occupied this post since 1999. His division was in charge of ensuring that federal legislation was executed while respecting the rights of persons who were the subject of administrative or criminal proceedings, be they Russian or foreign citizens.

At the material time, whilst he was carrying out a number of inspections in Moscow, his division had identified procedural irregularities in the manner in which the Federal Migration Service had been drawing up reports against foreign nationals from a number of countries. The reports were not the result of complaints by foreigners, because none was ever filed, but his division had come to these conclusions on their own initiative and that had led to the decisions against these foreign nationals being set aside. There had been 22 cases of that type in all. Foreign nationals never filed complaints, because on signing court decisions they acknowledged the facts as established in those decisions and that they had broken the laws of the Russian Federation.

He added that the General Prosecutor in charge of the Moscow Region had requested all his divisions to ensure that the rights of all foreign nationals were duly respected. There had never been any instructions restricting the rights of Georgian nationals, as this would be against the law and even a crime under Russian law.

Furthermore, regional and district prosecutors regularly visited temporary detention centres for foreigners, often by surprise, and outside working hours. They wore uniform during their visits and gathered information from the detainees. They had never received any complaints. He did not know why six out of the eight detention centres for foreigners in Moscow had been closed.

Lastly, foreign consuls could also contact them directly or contact the Office of the General Prosecutor of the Russian Federation in order to protect the rights of their nationals, but the Consul of Georgia had never done so.

He concluded by saying that he had heard of three cases in Moscow in which requests for information about Georgian pupils had been sent to schools, but that in those isolated cases the officials in question had been duly punished.

7. NIKISHKIN Konstantin Sergeyevich, Deputy Head of the Legal Department, Ministry of the Interior, Moscow, at the time of the witness hearing; member of another department at the material time

261 . He stated that at the material time he had been working in another department and that he had held his current position since 2008. His role was to examine draft texts from a legal angle and he also directed a working group at the Ministry of Internal Affairs on co-operation with the European Court of Human Rights.

He confirmed that there had never been orders, instructions or recommendations telling the departments of the Ministry of Internal Affairs to restrict the rights of foreign nationals and Georgians in particular; that would be against the law and in any event he had never heard of any. Moreover, Georgian nationals liable to expulsion from the Russian Federation had not lodged any complaints with the Ministry of Internal Affairs, and the Consul of Georgia had not filed a request for information or assistance with the Department for International Co-operation: if such a request was made the reply was given at a very high level of the Ministry of Internal Affairs, and where allegations of violations of the rights of foreign nationals were concerned the Legal Department was necessarily informed.

He also confirmed the existence of two telegrams, nos. 0215 and 849, which were both classified “State secret”, the first being an order ( приказ ) classified “secret” and the second classified “top secret”. He added that these documents contained “a reference to certain criminal groups. Criminality in the Russian Federation [was] multi-ethnic, so there [was] a reference to various national criminal groups. But any selective reference to Georgian nationals could not be found in these documents”. They could not be disclosed because this was prohibited under Russian law.

With regard to the alleged instruction ( указание ) purportedly issued by the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region and appearing in the HRW report, this was also a telegram, which was unsigned, and the presentation of which did not correspond to that of a document from the Ministry of Internal Affairs. The contents were incomprehensible and it was unclear what the term “OPR GUVD” meant. Like anywhere else in the world, the courts of the Russian Federation were independent and there could be no interference. Any civil servant writing such things would be creating trouble for him or herself. It w as clearly a forged document.

8. SHABAS Sergey Mikhaylovich, Deputy Head of the Department of the Interior, North-Eastern Administrative District, Moscow, at the time of the witness hearing; Deputy Head of the Civil Security Force in the same department at the material time

262 . He stated that at the material time he had been working in the same department as deputy head of the civil security force, and that his role consisted in co-ordinating the actions of police units with a view to fighting crime and protecting public security. Where it was suspected that an administrative offence had been committed or the police officers witnessed such acts, it was their duty to check the papers of the persons concerned.

At the beginning of October 2006 he had carried out an official investigation into the conduct of Mrs Markova, Head of the Juvenile Department of the Department of Internal Affairs of the Butyrskiy District, who had requested school no. 230 to provide her with a list of pupils who were nationals of countries of the CIS and particularly Georgia. Having learnt of this, his department had immediately informed the school principal that such information could not be disclosed. An investigation had been commenced and he had himself had an interview with Mrs Markova, the principal of school no. 230 and with the Head of the School Superintendent Office of the Directorate of Education. When he had interviewed Mrs Markova, she had said that on 3 October 2006 she had gone to the school and left a note for the attention of the school principal. She said she had done so on her own initiative, without having received any particular instructions, her objective being to more easily identify children of illegal immigrants who were living in insalubrious conditions.

In his conclusions of 6 October 2006, following the investigation, the witness, as head of the investigative commission, had proposed that Mrs Markova and two of her superiors, who were unaware of her misconduct, be disciplined (by means of a reprimand ( выговор ) for her and Mr Muradov, Head of the Department of Internal Affairs, and a warning for her immediate superior, Mr Matveyev). On the same day an order ( приказ ) signed by the General Trutnev provided that Mr Muradov should be punitively admonished on the ground that he had not been in his post very long and that Mrs Markova should be disciplined, but made no further mention whatsoever of Mr Matveyev.

The witness said that this could be explained by the fact that only certain types of punishment appeared in an order; regarding Mr Matveyev, it was sufficient for the punishment (warning) to appear in a separate document, called “conclusions”. In any event, at an official meeting of the Department of Internal Affairs of the district, about fifty high-ranking police officials had been informed of all the penalties that had been pronounced. The General Trutnev had also pointed out that conduct of that sort was unacceptable and that there had been no further incidents of that type.

The witness added that generally speaking a reprimand entailed a delay in career advancement for one year, and that Mrs Markova had no longer been working in the police force since 2007 because she had reached the age of 45 and had not obtained the necessary certificate to continue in her post.

He ended his statement by saying that he did not know the details of incidents of this type that might have occurred in other districts of Moscow, but that during a meeting organised at the end of October 2006 by the Head of Internal Affairs of Moscow, Mr Pronin, the measures taken rapidly in his district to solve the problem had been cited by way of example.

9. SHEVCHENKO Kirill Dmitreyevich, Expert from the Russian representation with the International Organisation for Migration at the time of the witness hearing; Deputy Head of the Department of Immigration Control of the Federal Migration Service at the material time

263 . He stated that at the material time he had been deputy head of the Department of Immigration Control of the Federal Migration Service. His role had been to participate in controlling immigration in co-ordination with other entities of the Federal Government, checking legal texts relating to immigration matters and making proposals for improving the relevant federal legislation.

In 2006, between 110,000 and 120,000 Georgian nationals had arrived in the Russian Federation and remained there for differing periods of time. In order to reach the Russian Federation, many Georgians had passed through third countries, and in particular Belarus because there were no border controls between the Russian Federation and Belarus and no visa requirement between Georgia and Belarus.

From 2002 to 2006 there had been a steady rise in the number of administrative expulsion orders issued against Georgian nationals, but also against nationals of other countries. The highest rise in the number of expulsions of Georgian nationals had been between 2003 and 2004 (+ 60%), and there had then been a sharp decline in 2007. That had mainly been due to the simplification of immigration rules and particularly the procedure for obtaining a registration certificate; from that date onwards it was sufficient to specify the place of residence to comply with the immigration rules.

In 2006 there had been 4,022 administrative expulsions of Georgian nationals, some of whom had been forcibly expelled and others who had left the Russian Federation by their own means. In October and November 2006, 4 planes chartered by the Russian Federation (on 6 October 2006 a cargo plane by the Ministry of Emergency Situations (IL 76), and on 10, 11 and 17 October 2006, an airliner (IL 62 M)), and 2 planes chartered by Georgia (on 28 October 2006 and 6 December 2006) had flown Georgian nationals from Moscow to Tbilisi. Even though he had not been in the cargo plane himself, he knew the transport conditions in that type of plane which complied with international standards, even if they were less comfortable than in an airliner. In October and November 2006 about 400 Georgian nationals had been forcibly expelled by plane. As communications between the two States had been cut off, there had been an agreement between them to organise direct charter flights from Moscow to Tbilisi. In organising these joint flights the Russian authorities had been guided by the directive adopted in 2004 by the European Council of the European Union.

He had himself been present at the airport when the Georgian nationals had been expelled and said that there had been no baggage restrictions; on the contrary, they had had a lot of luggage and the media had been present, particularly at Domodedovo Airport. They might have obtained the luggage between their arrest and their expulsion. Moreover, he had been in contact with the Consul of Georgia and members of his team who had also been present at the airports for all the flights to Tbilisi. In a letter of thanks sent later by the Consul of Georgia to the Head of the Federal Migration Service of the town of Derbent (Dagestan), the Consul had congratulated the Russian authorities for their good co-operation during the expulsion procedures and had not filed any complaints.

He also confirmed that the time-limit for appealing against expulsion decisions was 10 days, but that many Georgians had signed documents indicating that they accepted these decisions and did not wish to appeal.

He concluded by explaining that the Russian Federation had become more and more open to the flow of migrants and that the purpose of the Law of 2002 on the Legal Status of Foreigners in the Russian Federation was to regulate the conditions of residence of foreigners on its territory and that, since it had come into force, it had been constantly improved and amended.

10. VASILYEV Valeriy Anatolyevich, Adviser (Head of Department) to the Ministry of Foreign Affairs, Moscow, at the time of the witness hearing, Consul of the Russian Federation in Georgia at the material time

264 . He stated that at the material time he had been Consul at the embassy of the Russian Federation in Georgia in Tbilisi.

He stated that the Russian Federation appealed to Georgian nationals as a country into which they could immigrate: accordingly, in 2004, 70,000 visas had been issued to Georgian nationals wishing to travel to the Russian Federation; in 2005, 90,000; and in the first half of 2006, 75,000. He added that Georgia had always refused to sign bilateral agreements with the Russian Federation to fight illegal immigration.

He then explained the difference between a short-term business visa ( деловая ) issued to a foreign national wanting to take part in a seminar or who had business contacts in the Russian Federation, and a work visa accompanied by a migrant worker ’ s card which allowed the holder to work legally in the Russian Federation. All that information was available to Georgian nationals, both inside and outside the consulate and could also be obtained over the telephone. When issuing visas and other documents, the consulate examined the documents submitted by the applicant and, in the event of doubt, could carry out checks on the website of the Federal Migration Service in the Russian Federation.

He added that after the repatriation of some of the diplomatic staff of the Tbilisi embassy and consulate to the Russian Federation at the end of September 2006, both had continued operating normally, during the usual opening hours (9 a.m. – 4 p.m.), with a reduced workforce of 15 people (diplomats and administrative staff) at the embassy and 3 diplomats at the consulate [64] . Georgian nationals could thus file claims or complaints, personally or through the Ministry of Foreign Affairs of Georgia and which would have been transmitted to the appropriate authorities in the Russian Federation, but no claim or complaint had been filed. After diplomatic relations between the two countries had been broken off, from March 2009, the Russian Federation had kept an office open at the Swiss embassy in Georgia and Georgia had also kept one open at the Swiss embassy in the Russian Federation. The respective diplomats of both count ries could be contacted there.

He also stated that he had been present at Tbilisi Airport on 6 October 2006 when the plane carrying Georgian nationals from Moscow had arrived. He had taken charge of the repatriation of Russian nationals to the Russian Federation, and his wife and their 2 children had also been on that return flight. The conditions of transport had been acceptable, his wife had not complained; furthermore, the flight had lasted barely 2 hours. In all 526 Russian nationals had left Georgia during September and October 2006, some of whom were employees of the consulate and their families.

C . Witnesses chosen by the Court

1. TUGUSHI George, Public Defender (Ombudsman) in Georgia and member of the European Committee for the Prevention of Torture (CPT) at the time of the witness hearing; Human Rights Officer with the OSCE mission to Georgia at the material time

265 . At the material time he had been a human-rights civil servant with the OSCE mission in Georgia and had maintained close contacts with the Geo rgian Ombudsman at the time, Mr Subari, whom the Court had originally wanted to hear as a witness. He had accompanied the latter to an OSCE conference in Warsaw where the Georgian Ombudsman had conveyed his concern about the expulsion of Georgian nationals from the Russian Federation and he had assisted him in drafting a speech on this subject.

He stated that a large number of Georgian nationals who had been expelled had contacted the Georgian Ombudsman ’ s office in October, November and December 2006 and that the relevant documents were available. In his view, it had been an entirely unusual situation as it had been the first time that so many people had contacted the Georgian Ombudsman to complain about a collective expulsion. The Georgian Ombudsman had published a report on these events during the second half of 2006 and to his knowledge, this had been the only time that expulsions had been addressed in such a report. At the time the Georgian Ombudsman had also had contacts with his Russian counterpart, Mr Lukin, Commissioner for Human Rights for the Russian Federation, who had referred to the situation of Georgian nationals expelled from the Russian Federation in his annual report of 2006.

He said that he had seen the instructions of the beginning of October 2006 by the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region appearing in the various reports including the HRW one and the one by the Russian Ombudsman. In his view, the measures taken by the Russian authorities had been specifically directed against Georgian nationals and several hundred of them had had to leave the Russian Federation in a very short space of time: about two months. The measures had been preceded by anti-Georgian statements by the Russian authorities which had fuelled tensions. Those who had contacted the Georgian Ombudsman had said that they had not been brought before a judge and that they had signed court decisions under threat of imprisonment, which showed that they had clearly been unable to defend their rights before the administrative or judicial bodies.

More than 2,000 Georgians had been expelled and he had had knowledge of 2 cargo flights, one of which had been carrying about 150 passengers, which led him to conclude that there had been a collective expulsion of Georgian nationals. He also considered that they had not had any real chance of appealing either through the consulate of the Russian Federation in Georgia or through the Georgian consulate in the Russian Federation, as many of them had not been in possession of papers or court decisions. Others had simply not wished to appeal because they thought it was pointless.

He then referred to the statements made to the Georgian Ombudsman at the time about the inhuman and degrading conditions of detention both in the police stations and in the detention centres for foreign nationals: the cells were overcrowded, there was neither food, nor water nor medical assistance, and the detainees could not contact their families or a lawyer. He considered that in any event both in the former Soviet Union and in the majority of the countries of the Council of Europe it would have been impossible to detain in decent conditions such a large number of people arrested overnight with a view to their expulsion.

2. EÖRSI Mátyás, rapporteur of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) at the material time

266 . He maintained the very decisive conclusions contained in the PACE report (he explained that it was in fact an information note), which refer to a “massive campaign launched as from the end of September against Georgian citizens and persons of Georgian ethnicity” that was “from its outset a selective and intentional persecution campaign based on ethnic grounds” and “well co-ordinated between the executive and legal branches of power” and to “a routine of expulsions” [which] followed a recurrent pattern all over the country” (§§ 52, 53, 55 and 59 of the PACE report).

He explained to the Court the methodology of the rapporteurs of the Monitoring Committee, who had met official and representatives of civil society in both countries, and in particular representatives of the Georgian Orthodox Church in Moscow, and members of non-governmental human rights organisations that they considered to be impartial. The members of the secretariat of the delegation had also questioned about ten Georgian nationals who had been expelled from the Russian Federation, in Tbilisi. The rapporteurs based themselves on that information and on the documents appearing in the Annex to their report (instructions from the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region and requests for information sent to various schools).

In his view, the expulsion of such a large number of Georgian nationals within such a short space of time could not have been done without the knowledge and instructions of high-ranking persons among the Russian authorities. Furthermore, these documents were proof that the measures taken by the Russian authorities specifically targeted Georgian nationals, even if the introduction of the Law of 2002 on the Legal Status of Foreign Nationals and the lack of transitional provisions had created a structural problem of immigration for all citizens of the Community of Independent States (CIS).

He also indicated that, according to the statements of the Georgian nationals and those of the members of NGOs who had been heard, there had not been a fair trial for the Georgian nationals subject to expulsion orders before the courts of the Russian Federation: the persons concerned had waited in a court room, had not been admitted into the hearing room and had been threatened with years of imprisonment if they did not sign the decisions delivered. Neither prior to their expulsion (owing to these threats), nor afterwards (for practical reasons due to the recalling of the Russian ambassador from Tbilisi), had the Georgian nationals had an opportunity to bring proceedings in the Russian courts.

Lastly, with regard to the conditions of detention, he indicated that the Monitoring Committee had not itself visited the premises and that the description of the conditions of detention and the terms used reflected the statements of the Georgian nationals who had been heard (§ 60 of the PACE report).

He also stressed the political tensions existing between the two countries since the war of 1992 in Abkhazia, which had continued to deteriorate and had come to a head in September 2006, because the Russian Federation had felt humiliated by the expulsion in front of the television cameras of four Russian officers from Georgia.

[1] . In the light of the scope of the applicant State’s complaints (see heading IX of the judgment), Article 18, which provision has no autonomous role, could be invoked only in conjunction with Article 5, as a violation of the former can only arise where the right or freedom concerned is subject to restrictions permitted under the Convention (see Gusinskiy v. Russia , no. 70276/01, §73, 19 May 2004).

[2] . Collected edition of the "Travaux préparatoires" of the European Convention on Human Rights. Vol. 5/Council of Europe . The Hague; Boston; London; Dordrecht; Lancaster: Martinus Nijhoff, 1979, p. 290.

[4] . It should be noted that some of the Georgians against whom expulsion orders were issued left Russia by their own means (see paragraph 45 of the judgment).

[5] . Jean-Marie Henckaerts , “Mass Expulsion in Modern International law and Practice”, 1995, Martinus Nijhoff Publishers, The Hague/Boston/London, p. 17.

[6] . Resolution of State Duma No. 3536-4 ГД , see Annex to Georgia v. Russia (no. I) (dec.), no. 13255/07, 30 June 2009, pp. 12-13.

[7] . Ibid, Annex pp. 8-11 and 117-22; The Report by Human Rights Watch (HRW) “Singled Out. Russia’s detention and expulsion of Georgians”, Volume 19 No.5 (D), October 2007, pp. 2, 22, 30-33.

[8] . Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) of the Parliamentary Assembly of the Council of Europe, “Current Tensions between Russia and Georgia,” AS/Mon(2006)40 rev, 22 January 2007, § 63;  HRW, “Singled Out”, cited above, p. 32.

[9] . See Svetlana Gannushkina , Human Rights in Russia: Year 2006, European Parliament, Directorate General External Policies of the Union, p.4, available at:

http://www.europarl.europa.eu/RegData/etudes/note/join/2006/348611/EXPO-DROI_NT(2006)348611_EN.pdf , p. 4, accessed on 10.03.2014.

[10] . Russia Targets Georgians for Expulsion, Human Rights Watch, 1 October 2007, available at: http://www.hrw.org/news/2007/09/30/russia-targets-georgians-expulsion , accessed on 05.06.2012.

[11] . See James Crawford, “The International Law Commission’s Articles on State Responsibility”, Introduction, Text and Commentaries, Cambridge University Press, 2007, pp. 281-305; James Crawford, Alain Pellet, and Simon Olleso,.”The Law of International Responsibility”, Oxford University Press 2010, pp. 470-73; Jean ‑ Ma rie Henck a e rts, “Mass Expulsion in Modern International law and Practice”, cited above, p. 46.

[12] . For the causes of the conflict between the two States see the PACE report.

[13] . The European Commission against Racism and Intolerance (ECRI), Fourth report on the Russian Federation adopted on 16 December 2005, §167; See also” Tajikistan ready for talks, Moscow threatens deportations over jailed pilot”, available at: http://en.rian.ru/world/20111111/168596798.html accessed on 25 .04. 2012; “Mass deportation of Tajiks as pilot row escalates” by Tom Washington, at 11/11/2011 13:10, available at: http://www.themoscownews.com/politics/20111111/189196644.html , accessed on 25 April 2012; “ Russia to deport Tajik immigrants over jailed pilot case” available at: http://rt.com/news/prime-time/tajikistan-russia-pilots-swap-105/ , accessed on 25.04.2012.

[14] . See European Parliament Resolution on the Pressure Exerted by Russia on Eastern Partnership Countries (in the context of the upcoming Eastern Partnership Summit in Vilnius), No. 2013/2826(RSP) , September 10, 2013; “ Russia Pressures Former Soviet Republics to Join his Economic Union”, by Editorial Board, September 29, 2013, available at http://www.washingtonpost.com/opinions/putin-pressures-former-soviet-republics-to-join-his-economic-union/2013/09/29/d169d736-2610-11e3-b75d-5b7f66349852_story.html , accessed on 02.03.2014; Россия начала депортацию молдавских гастарбайтеров на родину , 17 September 2013 , available at: http://www.grenada.md/post/rossiea_na4ala_deport_v_md , accessed  on 07.10.2013.

[15] . Jean-Marie Henckaerts , “Mass Expulsion in Modern International law and Practice”, cited above, p. 47.

[16] . Klaus Dieter Deumeland, “Das Verbot der Xenelasie bei Ausweisung von Ausländern in der Bundesrepublik Deutschland”, 22 AWR 182, 186 (1984) in Jean-Marie Henckaerts , “Mass Expulsion in Modern International law and Practice”, cited above, p. 25.

[17] . Nationality is defined in formal terms of State membership in the West, but increasingly in terms of ethnicity and culture as one moves East. In the Russian Federation the terms “nation” and “nationality” ( национальность ) denote an ethnic concept rather than State membership – citizenship in Russian ( гражданство) ; hence the divergence in the terms. See Eric Lohr, “Russian Citizenship from Empire to Soviet Union”, Harvard University Press, 2012, p. 3, Azar Gat with Alexander Yakobson, “Nations : The Long History and Deep Roots of Political Ethnicity and Nationalism”, Cambridge University Press, 2013, pp. 359-60; Şener Aktürk, “Regimes of Ethnicity and Nationhood in Germany, Russia and Turkey”, Cambridge University Press 2012.

[18] . See Dissenting opinion of Judge Tanaka in South West Africa case, ICJ, Judgment of 18 July 1966 Judgment, pp. 284-317, James Crawford, “Brownie’s Principles of Public International Law”, 8 th edition, Oxford University Press, 2012, pp. 644-46.

[19] . Harris, O’Boyle & Warbrick, “Law of the European Convention on Human Rights”, 2nd edition, Oxford University Press, 2009, p 578; Samantha Knights, “Freedom of Religion, Minorities, and the Law”, Oxford University Press, 2007, pp. 56-57, Janneke Gerards, “The Discrimination Grounds of Article 14 of the European Convention on Human Rights”, Human Rights Law Review Vol. 13 no.1, 2013, pp. 99-124; Ivana Radacic, “Gender Equality Jurisprudence of the European Court of Human Rights”, The European Journal of International Law Vol. 19 no. 4, 2008, pp. 841-57; Dissenting opinion of Judge Bonnello in Anguelova v. Bulgaria , no. 38361/97, ECHR 2002 ‑ IV.

[20] . Guy S. Goodwin-Gill, “The Limits of the Power of Expulsion in Public International Law”, cited above, p.75.

[21] . “Migration and International Human Rights Law”. Practitioners guide no. 6; International Commission of Jurists, 2011, p.128 with further references; See Henckaerts , “Mass Expulsion in Modern International law and Practice”, cited above, pp. 21-28.

[22] . Ibid, Henckaerts , “Mass Expulsion in Modern International law and Practice”, p. 21.

[23] . Guy S. Goodwin-Gill, “The Limits of the Power of Expulsion in Public International Law”, cited above, p. 154.

[24] . See, among others, Concluding Observations of the United Nations Human Rights Committee : Russian Federation , UN Doc. CCPR/C/79/Add.54, 26 July 1995; Concluding Observations of the United Nations Human Rights Committee : Russian Federation , UN Doc. CCPR/CP/79/RUS 6 November 2003; Concluding observations of the Committee on the Elimination of Racial Discrimination: Russian Federation, 21 March 2003. CERD/C/62/CO/7; The European Commission against Racism and Intolerance (ECRI), Third report on the Russian Federation Adopted on 16 December 2005, ECRI Fourth Report on the Russian Federation, cited above; Annual Reports of the Commissioner for Human Rights of the Russian Federation are available in Russian at: http://ombudsmanrf.org/doklady ; Amnesty International, Dokumenty! Discrimination on Grounds of Race in the Russian Federation, at 11 (AI Index EUR 46/001/2003), available at: http://www.amnesty.org/fr/library/asset/EUR46/001/2003/en/70300437-d760-11dd-b024-21932cd2170d/eur460012003en.pdf , accessed on 20.05.2012.

[25] . Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled “Human Rights Council” Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène Addendum Mission to the Russian Federation, A/HRC/4/19/Add.3, 30 May 2007 §76; Open Society Justice Initiative, “Ethnic Profiling in the Moscow Metro,” Open Society Institute Justice Initiative, 2006 available at

http://www.opensocietyfoundations.org/sites/default/files/metro_20060613.pdf , p. 15 ‑ 17, accessed on 19.05.2012.

[26] . Ibid, Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Addendum Mission to the Russian Federation, §76 .

[27] . Memorial Human Rights Center. The Civic Assistance Committee. On anti-Georgian campaign launched on the territory of Russia, p. 3, available at:

http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/memorial_/memorial_en.pdf , accessed on 24.02.2014.

[28] . Russia Cancels Employment Quotas for Georgians, Civil Georgia, 5 October, 2006, available at: http://www.civil.ge/eng/article.php?id=13783 , accessed 24.02.2014.

[29] . Witness Statement no.2, Verbatim Record of the oral evidence given by the witnesses before the delegation of judges of the Grand Chamber from 31 January to 4 February 2011 (hereafter “Verbatim Record”), pp. 35, 37.

[30] . Materials submitted by the respondent State on 16.03.2009 for the hearing on admissibility of the application, pp. 199-200 (in Russian), an English translation of the same document was provided on 06.04.2009, pp. 215-16.

[31] . Witness statement no. 1, Verbatim Record, p. 20.

[32] . Witness statement no. 1, Verbatim Record, p. 22.

[33] . Witness statement no. 7, Verbatim Record, p. 112.

[34] . Witness statement no. 3, Verbatim Record, p. 57.

[35] . James A. Goldston, “Race Discrimination in Europe: Problems and Prospects” EHRLR, Issue 5, Sweet & Maxwell LDT, 1999, pp. 463-83.

[36] . See ECRI Third report on the Russian Federation, §§50 and 54; ECRI Fourth report on the Russian Federation §§80-81; Human Rights First, Violent Hate Crime in the Russian Federation p. 2. Available at: https://www.humanrightsfirst.org/wp-content/uploads/pdf/080908-FD-individual-upr-russian-fed.pdf , accessed 24.02.2014; Amnesty International Russian Federation. Violent Racism Out of Control , EUR 46/022/2006, 3 May 2006, available at:

http://www.amnesty.org/en/library/asset/EUR46/022/2006/en/35a59479-d432-11dd-8743-d305bea2b2c7/eur460222006en.html#0.3.3.2.Citizenship%20issues|outline , accessed on 14.05.2013.

[37] . Catherine Phuong, “Minimum Standards for Return Procedures and International Human Rights Law”, European Journal of Migration and Law 9 (2007), p. 120; Walter Kälin, “Aliens, Expulsion and Deportation”, 2013 Max Planck Institution for Comparative Public Law and International law, Heidelberg and Oxford University Press, Max Planck online dictionary, as of October 2010, §21.

[38] . “Deportation Procedures by Air”, Extract from the 13th General Report on the CPT’s Activities, CPT/Inf (2003) 35, 10 September 2003, §§ 28, 31.

[39] . Parliamentary Assembly of the Council of Europe Recommendation 1547 (2002), “Expulsion Procedures in Conformity with Human Rights and Enforced with Respect for Safety and Dignity”.

[40] . Council of Europe: Committee of Ministers, Twenty Guidelines on Forced Return , 4 May 2005, Guideline 16.

[41] . See UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, Switzerland, UN Doc CCPR/CO/73/CH, 12 November 2001, §13, UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations on Belgium, CCPR/C/79/Add.99, 19 November 1998, § 15.

[42] . Executive Committee Conclusion on International Protection, Conclusion No. 85 (XLIX), 9 October 1998, lit. bb.

[43] . Guy S. Goodwin-Gill, “The Limits of the Power of Expulsion in Public International Law”, cited above, p. 155.

[44] . See “ Twenty Guidelines on Forced Return”, cited above, Guideline 17.

[45] . Jean-Marie Henckaerts , “Mass Expulsion in Modern International law and Practice” , cited above, pp. 40-41.

[46] . Witness Statement no. 4, Verbatim Record, p. 65

[47] . Parliamentary Assembly Recommendation 1547 (2002), cited above, §h(vii); See also François Crépeau , “ Migrants Rights are Human Rights ” . Interigh ts Bulletin, Volume17, No. 1, 2012, p.4.

[48] . Witness Statement no. 5, Verbatim Record, p. 89.

[49] . For criticism associated with the legal framework of Article 1 of Protocol No. 7 and the need for flexibility in applying it, see Jean-Marie Henkaerts “Mass Expulsion in Modern International law”, cited above, pp. 37-39.

[50] . Albert Kraler, “Fixing, Adjusting, Regulating, Protecting Human Rights – The Shifting Uses of Regularizations on the European Union”, European Journal of Migration and Law 13, Issue 3, 2011, p. 303.

[51] . See Twenty Guidelines on Forced Return, cited above , Guideline 2; Report of the International Law Commission on the work of its fifty-second session, 1 May - 9 June and 10 July - 18 August 2000 , Syllabuses on Topics Recommended for Inclusion in the Long ‑ term Program of Work of The Commission, 4. Expulsion of Aliens (Emmanuel A. Addo), pp. 142-3; Sean D. Murphy, The Expulsion of Aliens and Other Topics: The Sixty ‑ Fourth Session of the International Law Commission, George Washington School of Law Faculty Publications & Other Works, 2013, pp. 4-7 available at:

http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1910&context=faculty_publications , accessed on 22.02.2014; Draft Articles on the Expulsion of Aliens, Art. 1(1). Report of the International Law Commission on the Work of its Sixty-Fourth Session, A/CN.4/L.797.

[52] . Francis Madding Deng, “The Global Challenge of Internal Displacement”, Journal of Law & Policy , Vol. 5, 2001, p. 144, cited in Satvinder S. Juss, International Migration and Global Justice (Law and Migration), Ashgate Publishing Company, 2006, p. 48; See also Satvinder S. Juss. “Free movement and the World Order”, International Journal of Refugee Law, Vol.16, No.3. Oxford University Press 2004, pp. 289-335, Third report on the E xpulsion of Aliens, By Mr Maurice Kamto, Special Rapporteur A/CN.4/581, International Law Commission Fifty-ninth session, Geneva, 7 May-8 June and 9 July-10 August 2007, pp. 8-10.

[53] . Parliamentary Assembly , Opinion No 193 (1996) on Russia’s Request for Membership of the Council of Europe, §7 viii; Parliamentary Assembly Resolution 1277 (2002) Honouring of obligations and commitments by the Russian Federation, §8 xii, Committee of Ministers . Propiska system applied to migrants, asylum-seekers and refugees in Council of Europe member states: effects and remedies 
 Parliamentary Assembly Recommendation 1544 (2001) (Reply adopted by the Committee of Ministers on 27 February 2003 at the 829th meeting of the Ministers' Deputies), CM/AS(2003)Rec1544 final 28 February 2003, Resolution CM/ResCMN(2007)7 on the implementation of the Framework Convention for the Protection of National Minorities by the Russian Federation; Guidelines on the Treatment of Chechen Internally Displaced Persons (IDPs), Asylum Seekers and Re f ugees in Europe, European Council on Refugees and Exiles , PP1/03/2007/EXT/CR, available at: http://www.unhcr.org/refworld/pdfid/4603bb602.pdf .

[54] . Among others, see Concluding Observations of the Committee on Elimination of All forms of Discrimination to Russian Federation 2003, cited above,  §§13-14 ; see also Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, cited above, §§39-40, 74, 76, ECRI, Third Report cited above, pp.16, 19, 37-40, ECRI’s Fourth Report, cited above, pp. 10-11, 20-21, 32-33 ; HRW, Singled Out, cited above, p. 26.

[55] . Andrei Yakimov, “ Legal Lawlessness ” , Bullet in No 30, 16 May 2011, The Anti ‑ discrimination Center “Memorial”, available at:

http://adcmemorial.org/www/218.html?lang=en , accessed on 28.05.2012, “ Tajikistan: Exporting the Workforce – At What Price? Tajik Migrant Workers Need Increased Protection ” , Preliminary Conclusions of an FIDH Investigative Mission, May 2011, available at: http://www2.ohchr.org/english/bodies/cmw/docs/ngos/FIDH_Tajikistan15.pdf , accessed on 22.05. 2012.

[56] . See Gannushkina , “Human Rights in Russia”, cited above, p.4; “ On anti-Georgian Campaign Launched on the Territory of Russia ” , Memorial Human Rights Center, cited above, p.1; HRW, “Singled Out”, cited above, pp. 63 ‑ 65; PACE report, § 62.

[57] . HRW, “Singled Out”, cited above, see pp. 55-57.

[58] . ECRI, Fourth Report, cited above, pp. 32-33.

[59] . Report of the Commissioner for Human Rights in the Russian Federation for the Year 2007, available in Russian at: http://ombudsmanrf.org/doklady , pp. 90-91.

[60] . See, HRW, “ Singled Out”, cited above , p. 2.

[61] . The names of the Georgian witnesses who do n o t have an official function have been anonymised.

[62] . Province of the Russian Federation situated to the north of Azerbaijan and the east of Georgia.

[63] . A Georgian national whose statement had been recorded on a videotape submitted by the applicant Government.

[64] . In their letter of 15 April 2011 the respondent Government confirmed that following the evacuation of some of the diplomatic staff at the end of September 2006, 10 members of the diplomatic staff had continued working at the Russian embassy in Tbilisi and 3 at the consulate.