Legal summary

April 2023

Georgia v. Russia (IV) (dec.) - 39611/18

Decision 28.3.2023 [Section II]

Article 1

Jurisdiction of States

Responsibility of States

Jurisdiction of Russia over Abkhazia and South Ossetia in relation to alleged administrative practices against ethnic Georgians stemming from “borderisation” process

Article 33

Inter-State application

Alleged administrative practices by Russia stemming from “borderisation” between breakaway regions and Georgian government-controlled territory and resulting in multiple Convention violations: admissible: admissible

Facts – After the Russian armed forces invaded Abkhazia and South Ossetia in August 2008, Russia recognised those two Georgian regions as independent States and established military bases with Russian soldiers in each one. Furthermore, pursuant to agreements on “joint efforts in protecting the border”, Russian border guards (under the Federal Security Service of the Russian Federation) secure the administrative boundary line (“ABL”) between those breakaway regions and the territory controlled by the Georgian government. Since 2009, physical barriers (fencing, barbed wire, guard wires, advanced surveillance equipment etc) and other measures (surveillance, patrolling, introduction of a crossing regime etc) have gradually been established to block people from crossing the ABL freely (process called “borderisation”).

Georgia and the overwhelming majority of the international community consider the process of “borderisation” illegal under international law. In contrast, the Russian and the de facto Abkhaz and South Ossetian authorities treat the ABL as an international border on the grounds that Russia has recognised the two breakaway entities as independent States.

The applicant Government complain of administrative practices by Russia stemming from the “borderisation” process and resulting in multiple Convention violations of the rights of ethnic Georgians attempting to cross the ABLs or living adjacent to them on both sides.

Law –

Preliminary issues – The Court had jurisdiction to deal with the applicant Government’s complaints in so far as they related to facts that had taken place prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention.

Requirement of a genuine application – The issues before the Court were legal ones and raised genuine questions under the Convention. The respondent Government’s preliminary objection was dismissed.

Article 1 – Jurisdiction – There was no reason for the Court to depart from its relevant case-law. In particular, in respect of Abkhazia and South Ossetia, the Court had held in its judgment in Georgia v. Russia (II) [GC] that the strong Russian presence and the dependency of the de facto Abkhazian and South Ossetian authorities on the Russian Federation, on whom their survival depended, had indicated that there had been continued “effective control” over those two breakaway regions at least until 23 May 2018. Given the absence of any relevant new information to the contrary, that conclusion continued to be valid. Accordingly, the victims of the alleged Convention violations in the present case fell within the respondent State’s jurisdiction. The respondent Government’s objection was dismissed.

Article 35 § 1 (exhaustion of domestic remedies) – The Court’s examination of the case was confined to allegations of administrative practices. Accordingly, the rule on exhaustion of domestic remedies did not apply in the circumstances of the present case. The respondent Government’s objection was dismissed.

Approach to the evidence – In line with the Court’s relevant principles the applicant Government bore the initial burden of proof and the applicable standard of proof for the purposes of admissibility, as applied recently in Ukraine and the Netherlands v. Russia [GC], was that of “sufficiently substantiated prima facie evidence” to the allegations of an administrative practice of human rights violations. That standard applied to each of the two component elements of the alleged “administrative practice”, namely the “repetition of acts” and the “official tolerance”.

Admissibility of the complaints of administrative practices – The applicant Government had submitted, in support of their complaints, a detailed list of the alleged victims set up by the State Security Service of Georgia which referred to many incidents. It appeared from the materials originating from international organisations and independent international human rights protection associations submitted by the applicant Government and those obtained by the Court proprio motu that many human rights incidents had indeed taken place since the onset of the process of “borderisation”. The available material was therefore sufficient to amount to prima facie evidence of the “repetition of acts” during the period under consideration which had been sufficiently numerous and interconnected to amount to a “pattern or system” in breach of Articles 2 (substantive and procedural limbs), 3 (substantive and procedural limbs), 5 § 1, 8, 13, 14 and 18 of the Convention, Articles 1 and 2 of Protocol No. 1 and Article 2 of Protocol No. 4.

In addition, the available evidence was sufficient to satisfy the Court that the “official tolerance” element at the level of direct supervisors of the aforementioned regions was established to the appropriate standard. In particular, Russian border guards secured the ABL. The Court further noted the regulatory nature of some of the measures at issue (notably, restrictions on freedom of movement into and out of Abkhazia and South Ossetia resulting from the de facto transformation of the ABL into State borders) and their general application to all people concerned.

Conclusion : admissible (unanimously).

(See also Georgia v. Russia (I) [GC], 13255/07, 3 July 2014, Legal Summary ; Ukraine v. Russia (re Crimea) (dec.) [GC], 20958/14 and 38334/18, 16 December 2020, Legal Summary ; Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal Summary ; Ukraine and the Netherlands v. Russia (dec.) [GC], 8019/16 et al, 30 November 2022, Legal Summary ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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