Legal summary

April 2023

Georgia v. Russia (II) (just satisfaction) [GC] - 38263/08

Judgment 28.4.2023 [GC]

Article 41

Just satisfaction

Award of non-pecuniary damages to applicant Government, for benefit of identified victims, based only on evidence submitted by it in view of respondent Government’s failure to participate in proceedings

Facts – By principal judgment of 21 January 2021 (see Legal summary ), the Court found that there had been administrative practices on the part of the Russian Federation, in the context of the armed conflict between Georgia and the Russian Federation in August 2008, in violation of Articles 2, 3, 5 and 8 of the Convention and Article 2 of Protocol No. 4. The Court also held that the Russian Federation had failed to comply with its obligations under Article 38 of the Convention. The question of the application of Article 41 was reserved.

Law –

(1) Preliminary issues:

(a) Whether the Court has jurisdiction to deal with the case – As the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the application. Consequently, Articles 38, 41 and 46 of the Convention, as well as the corresponding provisions of the Rules of Court, continued to be applicable after 17 September 2022.

(b) Consequences of the respondent Government’s failure to participate in the proceedings – By failing to submit written observations when requested to do so, the respondent Government had demonstrated their intention to abstain from further participation in the examination of the application. However, the Convention obliged the States to furnish all necessary facilities to make possible a proper and effective examination of applications. Rule 44A of the Rules of Court provided that the parties had a duty to cooperate with the Court. The evidential standard of proof was “beyond reasonable doubt”, the Court’s conclusions being supported by free evaluation of all the evidence and the distribution of the burden of proof remaining intrinsically linked to the specificity of the facts, the nature of the allegations made and the Convention right at stake, as well as the conduct of the parties. Pursuant to Rule 44C § 2 of the Rules of Court, “[f]ailure or refusal by a respondent Contracting Party to participate effectively in the proceedings shall not, in itself, be a reason for the Chamber to discontinue the examination of an application”. This provision acted as an enabling clause for the Court, making it impossible for a party unilaterally to delay or obstruct the conduct of proceedings. A situation where a State had not participated in at least some stages of the proceedings did not prevent the Court from conducting the examination of an application in the past. In such cases the respondent Government’s failure to submit their memorials or participate in a hearing in the absence of sufficient cause could be considered a waiver of their right to participate Proceeding with examination of the case in the face of such a waiver was consistent with the proper administration of justice with inferences being drawn as appropriate from a party’s failure or refusal to participate effectively in the proceedings (Rule 44C § 1). At the same time, the respondent State’s failure to participate effectively in the proceedings should not automatically lead to acceptance of the applicants’ claims. The Court must be satisfied on the basis of the available evidence that the claim was well founded in fact and in law.

The cessation of a Contracting Party’s membership of the Council of Europe did not release it from its duty to cooperate with the Convention bodies. This duty continued for as long as the Court remained competent to deal with applications arising out of acts or omissions capable of constituting a violation of the Convention, provided that they had taken place prior to the date on which the respondent State had ceased to be a Contracting Party to the Convention.

(2) Article 41:

According to the methodology applied by the Court in Georgia v. Russia (I) (just satisfaction) [GC], which was specific to just satisfaction claims in inter-State cases, the question whether granting just satisfaction to an applicant State was justified had to be assessed and decided by the Court on a case‑by-case basis, taking into account, inter alia , the type of complaint made by the applicant Government, whether the victims of violations could be identified, as well as the main purpose of bringing the proceedings. The key point of that assessment was that the Court had to satisfy itself that the applicant State had submitted just-satisfaction claims in respect of violations of the Convention rights of “sufficiently precise and objectively identifiable” groups of people who had been victims of those violations.

The Court examined only the applicant Government’s claims relating to the operative part of the principal judgment. Indeed, that Government had submitted a detailed list of alleged victims of the violations found in that judgment. Just satisfaction had thus not been sought with a view to compensating the State for a violation of its rights but for the benefit of individual victims. That being the case, and in so far as those alleged victims were concerned, the applicant Government were entitled to make a claim under Article 41 and granting just satisfaction in the present case would be justified.

In accordance with the principles concerning the High Contracting Parties’ duty to cooperate (Article 38 of the Convention and Rule 44A of the Rules of Court) and the methodology applied in Georgia v. Russia (I) (just satisfaction), the Court examined the lists of alleged victims of the violations found in the principal judgment in order to satisfy itself that the applicant Government’s factual submissions were plausible and that their claims were sufficiently substantiated. It based its findings on the documents submitted by that Government, considering their content as unchallenged in the absence of any documents or comments submitted in response by the respondent Government. The Court thus drew inferences from the latter’s failure to participate in the proceedings.

It held unanimously as follows –

– List of 116 alleged victims of the administrative practice of deliberate killing of civilians in Georgian villages in South Ossetia and in the “buffer zone” in the weeks following the cessation of active hostilities on 12 August 2008: it transpired from the evidence submitted by the applicant Government that only fifty persons had been killed in such circumstances. The remaining sixty-six persons on the list had died in aerial or artillery attacks by Russian forces during the five-day armed conflict (8-12 August 2008), or from landmines after the cessation of hostilities. Therefore, for the purposes of awarding just satisfaction at least fifty Georgian nationals could be considered as victims of that administrative practice. The Court had also found that the respondent Government had failed to comply with their procedural obligation under Article 2 to carry out an adequate and effective investigation into those killings. It awarded the applicant Government a lump sum of EUR 3,250,000 in respect of non-pecuniary damage suffered by those victims.

– List of 1,408 alleged victims of the administrative practice of torching and looting of houses in the “buffer zone”: the Court’s case-law had developed a flexible approach regarding the evidence to be provided by applicants who claimed to have lost their property and home in situations of international or internal armed conflict; however, if an applicant did not produce any evidence of title to property or of residence, his or her complaints were bound to fail. In the present case, the evidence submitted by the applicant Government did not permit the Court to establish that the houses allegedly torched or looted had belonged to the persons on the list or had constituted their home or dwelling within the meaning of Article 8. Accordingly, the Court was not in a position to make an award in this respect.

– List of 179 alleged victims of the administrative practice of inhuman and degrading treatment and arbitrary detention of Georgian civilians held by the South Ossetian forces in the basement of the “Ministry of Internal Affairs of South Ossetia” in Tskhinvali between approximately 10 and 27 August 2008: it appeared from the evidence submitted by the applicant Government that only 166 of them had been indeed detained at those premises. The Court awarded the applicant Government a lump sum of EUR 2,697,500 in respect of non-pecuniary damage suffered by at least those 166 victims

– Forty-four alleged victims of the administrative practice of torture of Georgian prisoners of war detained by the South Ossetian forces in Tskhinvali between 8 and 17 August 2008: it appeared from the evidence submitted by the applicant Government that only thirteen of them had been mentioned in the record of the exchange of prisoners of war and that another three persons had died in custody. The Court had not found the existence of an administrative practice contrary to Article 3 as regards the torture of Georgian prisoners of war held by the Abkhazian forces. The Court awarded the applicant Government a lump sum of EUR 640,000 in respect of non-pecuniary damage suffered by at least those sixteen victims.

–List of 31,105 alleged victims of the administrative practice of preventing the return of Georgian nationals to their respective homes in South Ossetia and Abkhazia: according to the figures submitted by the applicant Government, some which had been confirmed by the representatives of the de facto authorities of South Ossetia and accepted by other international organisations, at least 23,000 Georgian nationals had been victims of this administrative practice. The Court awarded the applicant Government a lump sum of EUR 115,000,000 in respect of non-pecuniary damage suffered by them.

– List of 723 alleged victims of the respondent State’s failure to comply with its procedural obligation to carry out an adequate and effective investigation into the deaths which had taken place during the active phase or after the cessation of the hostilities; the victims of this procedural obligation which had occurred after the cessation of hostilities had been dealt with under the applicant Government’s first claim (see above). As to the deaths which had occurred during the active phase of the hostilities, according to the official figures presented shortly after the end of the armed conflict and had not been challenged by the respondent Government, the Georgian side had lost 412 persons in total. The Court awarded the applicant Government a lump sum of EUR 8,240,000 in respect of non-pecuniary damage suffered by at least those 412 victims.

The Court observed that the Committee of Ministers continued to supervise the execution of the Court’s judgments against the Russian Federation, which was required, pursuant to Article 46 § 1 of the Convention, to implement them, despite the cessation of its membership of the Council of Europe (see Interim Resolution CM/ResDH(2022)254 of the Committee of Ministers of the Council of Europe, adopted on 22 September 2022, on the execution of the Court’s judgment in Georgia v. Russia (I) ).

As in Cyprus v. Turkey (just satisfaction) and Georgia v. Russia (I) (just satisfaction), it must be left to the applicant Government, under the supervision of the Committee of Ministers, to set up an effective mechanism to distribute the above-mentioned sums to the individual victims while having regard to the indications given by the Court, within eighteen months from the date of the payment by the respondent Government (or any other time-limit considered appropriate by the Committee of Ministers).

(See also Georgia v. Russia (I) [GC], 13255/07, 3 July 2014, Legal summary ; Cyprus v. Turkey (just satisfaction) [GC], 25781/94, 12 May 2014, Legal summary ; Lisnyy and Others v. Ukraine and Russia (dec.), 5355/15 et al., 5 July 2016, Legal summary ; Georgia v. Russia (I) (just satisfaction) [GC], 13255/07, 29 January 2019, Legal summary ; Ukraine and the Netherlands v. Russia (dec.) [GC], 8019/16 et al., 25 January 2023, Legal summary )

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

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