JOINT PARTLY DISSENTING OPINION OF JUDGES BOŠNJAK, PASTOR VILANOVA, WOJTYCZEK, SERGHIDES, CHANTURIA, JELIĆ, SABATO AND SCHEMBRI ORLAND

1. We voted with the majority as regards points 1-9 of the operative part of the judgment.

2. The majority’s views and ours differ in relation to point 10 of the operative part of the judgment, where the majority decided to dismiss the applicant Government’s request concerning the award of just satisfaction with respect to the 1,408 alleged victims of the administrative practice of torching and looting of houses in the “buffer zone”. We disagree with this finding for the following reasons.

3. In the principal judgment the Court concluded that it had “ sufficient evidence in its possession to enable it to conclude beyond reasonable doubt that there was an administrative practice contrary to Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1 as regards the killing of civilians and the torching and looting of houses in Georgian villages in South Ossetia and in the ‘buffer zone’ ” (see Georgia v. Russia (II) [GC], no. 38263/08, § 220, 21 January 2021, emphasis added). The Court considered that this administrative practice was also contrary to Article 3 of the Convention (ibid.).

4. The Court came to that conclusion having observed that “the information appearing in the various reports by international organisations and the EU Fact-Finding Mission, and in the decision of the International Criminal Court is consistent as regards the existence, after the cessation of active hostilities, of a systematic campaign of burning and looting of homes in Georgian villages in South Ossetia and in the ‘buffer zone’. Such information also corresponds to the satellite images appearing in the AAAS report, which show that the houses in question had been burnt” (ibid., § 205).

5. The only obligation for the applicant Government, since the principal judgment had established the violations of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, was to submit a list of the persons identified as victims of these violations.

6. Within the just satisfaction proceedings the applicant Government submitted to the Court a list of 1,960 individual victims of the following categories: first , individual victims of violations of Article 3 and 8 of the Convention and Article 1 of Protocol No. 1 in the ‘buffer zone’ (1,408 persons); and second , individual victims of violations of Article 8 and Article 1 of Protocol No. 1 who did not hold the status of internally displaced persons (552 persons). The list contains surnames, names, dates of birth, identity numbers, as well as an indication of the Convention rights that had been violated (Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1). Additionally, the applicant Government submitted numerous statements of witnesses, who confirmed the facts of torching and looting of the houses of some of the persons on the list.

7. In Georgia v. Russia (I) ((just satisfaction) [GC], no. 13255/07, 29 January 2019) the Court proceeded on the assumption that the people named in the applicant Government’s list could be considered victims of the violations of the Convention for which the respondent Government had been held responsible. Furthermore, the Court considered that in the particular circumstances of that case the burden of proof was on the respondent Government to convincingly show that the individuals appearing in the applicant Government’s list did not have victim status (ibid., § 69).

8. Of further significance is the fact that the circumstances of the present case are similar to those of the case of Cyprus v. Turkey ((just satisfaction) [GC], no. 25781/94, ECHR 2014), as both concern violations of the Convention which resulted from military operations conducted by foreign occupying powers. It is to be recalled in this connection that whenever the origin of human rights violations lies in the fact of the military occupation as such, the Court normally accepts the list of residents of the relevant occupied regions as a sufficient basis for awarding just satisfaction, including with respect to violations of property rights under Article 1 of Protocol No. 1, even without seeking any additional evidence from the parties (compare Cyprus v. Turkey , cited above, §§ 46-47, 51 and 57-59, and Georgia v. Russia (I) , cited above, §§ 56 and 69).

9. In the present case, in the absence of an objection from the respondent Government to the list of victims presented by the applicant Government, the persons appearing in the list should have been considered a “sufficiently precise and objectively identifiable” group of people for the purpose of awarding compensation for the non-pecuniary damage suffered. While the majority accepted this approach concerning the list of 23,000 forcibly displaced Georgian nationals and awarded a lump sum in respect of non-pecuniary damage (see paragraph 44 of the judgment), the same approach was found to be inapplicable to the list of victims of torching and looting of houses (see paragraph 41). We regret that the majority’s decision worked to the advantage of the respondent Government despite the fact that the latter have fallen short of their obligation to furnish all necessary facilities to the Court, as required under Article 38 of the Convention. This obstructive attitude should not benefit the party which voluntarily withdraws from the adversarial debate.

10. The approach of the majority results in over-penalising the victims, because if the respondent Government had formally challenged the applicant Government’s evidence (or lack of it), the applicant Government would have had the opportunity to reply. In the present case, the applicant Government were not even given the opportunity to challenge the alleged lack of evidence. Therefore, it is the Grand Chamber which firstly, of its own motion, asserts the absence of evidence and secondly, does not give the applicant Government any opportunity to prove their claims, despite the fact that in paragraph 15 of their observations, the applicant Government stated:

“Thus, the Government of Georgia ask the Court to request the Russian Federation to fully furnish any and all relevant information/material at their disposal and respectfully reserve the right to update/clarify the tables of victims as well as the evidence after analysing the position ... by the Russian Federation, in the course of written proceedings on just satisfaction.”

It should also be borne in mind that if the respondent Government had pleaded the case but without discussing the question of the victims’ ownership of the destroyed houses, the Court would probably not have become involved in examining the issue of proof of ownership of the same houses. To conclude, it is sad and unusual that victims are penalised more in a default procedure than in an ordinary adversarial procedure.

11. Lastly, we would argue that, regrettably, it seems to have escaped the attention of the majority that the right of the 1,408 victims to respect for their home under Article 8 of the Convention, as well as their right to peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 to the Convention, would not be practical and effective but only theoretical and illusory if they were not granted just satisfaction. In any event, it would not be fair and equitable for the victims if the respondent State were to be able to benefit from the administrative practice of torching and looting their houses and from any possible consequential difficulty or uncertainty of proof, by not being ordered to pay any award of just satisfaction to the victims.

[1] The term “South Ossetia” refers to a region of Georgia which is currently outside the de facto control of the Georgian Government, but under the “effective control” of the Russian Federation (see §§ 174-75 of the principal judgment).

[2] The term “Abkhazia” refers to a region of Georgia which is currently outside the de facto control of the Georgian Government, but under the “effective control” of the Russian Federation (see §§ 174-75 of the principal judgment).