Published: 2 Oct 2019 | By Başak Küçük
Georgia v. Russia (I) [GC]
Forum: ECtHR (GC)
Case No.: 13255/07
Judgment date: 31 January 2019
This case concerns the expulsion orders issued against more than 4,600 Georgian nationals and the detention and forcible removal of at least 2,380 Georgian nationals by Russia in autumn 2006. In its judgment on the merits on 3.7.14, the Grand Chamber held that the Russian Federation’s “coordinated policy of arresting, detaining and expelling Georgian nationals” was an administrative practice in violation of Art. 3 (prohibition of inhuman or degrading treatment), Art. 5(1) (right to liberty and security), and Art. 4 of Protocol No. 4 (prohibition of collective expulsion of aliens). It further found breaches of Art. 5(4) (right to take proceedings to determine lawfulness of detention), Art. 13 (right to an effective remedy) in conjunction with Arts. 3 and 5(1), and Art. 38 (obligation to furnish all necessary facilities). The Court postponed its decision on the Georgian Government’s claim for just satisfaction (Art. 41) pending negotiations between the parties and their respective submissions to the Court.
The Court found that Art. 41 allows it to award reparations to State parties in inter-State cases, in line with its 2014 judgment in Cyprus v. Turkey (No. 25781/94, 12.05.14), in which it laid out three factors to be considered: “(1) the type of complaint made by the applicant Government, which must concern the violation of basic human rights of its nationals (or other victims), (2) whether the victims could be identified and (3) the main purpose of bringing the proceedings”. The Court found that Georgia’s claim met the three criteria: it concerned Russia’s practice of “arresting, detaining and collectively expelling Georgian nationals” in violation of its obligations under the ECHR; Georgia was also able to provide a “detailed list” identifying the victims; and Georgia brought the claim to provide compensation for the identified victims, not “with a view to compensating the State”. The Court noted that an inter-State case for just satisfaction was distinguishable from individual applications (such as in Berdzenishvili and others v Russia, Nos. 14594/07 and 6 others, 20.12.16) which related to an inter-State case.
Basing itself on a list of at least 1500 Georgian nationals who were victims of at least a violation of Art. 4 of Protocol 4 and the principles derived from and Cyprus v Turkey, Varnava and others v Turkey [GC] (Nos. 16064/90 and 8 others, 18.9.09), Sargsyan v Azerbaijan (just satisfaction) [GC] (No. 40167/06, 12.12.17) and Chiragov v Armenia (just satisfaction) [GC] (No. 13216/05, 12.12.17), the Court awarded Georgia €10,000,000 in non-pecuniary damages (for trauma, distress, anxiety and humiliation). The Georgian Government is responsible for putting in place a mechanism, under the supervision of the Committee of Ministers, for distributing the award to the 1,500 identified Georgian nationals (€2,000 to victims only of a violation of Art. 4 of Protocol 4, €10,000-15,000 to victims also of violations of Arts. 5(1) and 3).
With this case the Court confirms its precedent of awarding compensation for non-pecuniary damages in interstate cases. In general, the proportion of just satisfaction payments being made by states within the applicable deadline was 84% in 2012, but has been on a worrying downward trend since then, at 77% in 2015 and 68% in 2018. The execution of the judgment on just satisfaction in Cyprus v. Turkey is still pending before the Committee of Ministers following Turkey’s refusal to pay (CM/Del/Dec(2019)1340/H46-23). In relation to the Georgia v Russia (I) case, in September 2019, the Committee of Ministers (CM) issued a decision noting that the deadline for Russia to pay the damages awarded expired on 30 April 2019 and that no payment has yet been made. It underlined that there is an unconditional obligation under Article 46(1) of the Convention to pay the just satisfaction awarded and called upon the Russian authorities to pay without delay the sums awarded together with the default interest accrued. The CM will reconsider the case at its December 2019 meeting.
The Court ordered Georgia to set up an effective mechanism to distribute the sums awarded to the individual victims, under the supervision of the Committee of Ministers. This was criticised by Judge Dedov in his dissenting opinion who regretted that the Court did not allow the award to be distributed directly by the Russian Government in co-operation with the Georgian Government which, he argued, undermined the status of the Russian Federation as a member of the Council of Europe.