European Court of Human Rights: review of the Grand Chamber judgment of 21 January 2021 in the case of Georgia v. Russia (II) (application no. 38263/08)

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DOI: 10.21128/2226-2059-2021-2-15-24

Keywords: actions of armed forces abroad, administrative practice, detention treatment, effective investigation, exterritorial jurisdiction, freedom of movement, torture

Abstract

In the judgment in Georgia v. Russia (application no. 38263/08), the European Court of Human Rights examined the existence of effective control over the territory where the armed conflict between the Russian Federation and Georgia took place. Applying the concept formulated in the case Bankovich and Others v. Belgium (application no. 522207/99), the Grand Chamber determined that Russia had not exercised jurisdiction in the affected territory during the period of active hostilities. However, after the ceasefire, the Chamber found an exercise of extraterritorial jurisdiction by the Russian Federation. In light of the evidence’s full weight, the Chamber found an administrative practice for which the Russian Federation was responsible. As the European Court found, the administrative practice in question contravened several articles of the Convention and its Protocols in terms of the killing of civilians, torching and looting of houses in Georgian villages in South Ossetia and the “buffer zone” (violation of Articles 2, 3 and 8 of the Convention, Article 1 of Protocol No. 1 of the Convention); Conditions of detention of Georgian citizens and the humiliating acts to which they were exposed (violation of Article 5 of the Convention); torture of Georgian prisoners of war detained by South Ossetian forces (violation of Article 3 of the Convention); and the inability of Georgian nationals to return to their respective homes (violation of Article 2 of Protocol No. 4 of the Convention). The Chamber also found a violation of Article 2 of the Convention regarding the Russian Federation’s failure to effectively investigate the alleged crimes committed in the affected territory. The argument of a violation of Article 2 of Protocol No. 1 of the Convention was rejected.

Citation: (2021) Evropeyskiy Sud po pravam cheloveka: obzor postanovleniya Bol'shoy Palaty ot 21 yanvarya 2021 goda po delu Gruziya protiv Rossii (II) (zhaloba No. 38263/08) [European Court of Human Rights: review of the Grand Chamber judgment of 21 January 2021 in the case of Georgia v. Russia (II) (application no. 38263/08)]. Mezhdunarodnoe pravosudie, vol. 11, no. 2, pp. 15–24. (In Russian).