Strasbourg Observers

Human Rights at (Disputed) International Borders: Preliminary Remarks After the ECtHR’s Admissibility Decision in Georgia v. Russia (IV)

May 24, 2023

Veronica Botticelli

On 20th April 2023, the European Court on Human Rights (‘the Court’ or ‘the ECtHR’) published its unanimous admissibility decision in the Georgia v. Russia (IV) case, adding another ‘brick’ to its ever-growing case law concerning inter-State proceedings. The present inter-State application stems from a set of facts and events whose (il)legality vis-à-vis the European Convention on Human Rights (ECHR or ‘the Convention’) has already been addressed by the Court in its much-criticized (see here, here and here) judgment on the merits issued in Georgia v. Russia (II). Nonetheless, the case at stake significantly differs from its ‘predecessor’, as it does not address the human rights implications of the hostilities that occurred during the Russo-Georgian armed conflict of 2008 but, rather, considers the human rights consequences of its aftermath.

The applicant Government alleged the existence of two administrative practices which violated several provisions of the Convention (Articles 2, 3, 5 and 8 ECHR; Articles 1 and 2 Protocol 1; Article 2 Protocol 4). Setting any future consideration of the merits to one side, with this decision the Court has further unravelled various admissibility questions, relating not only to the present case brought by Georgia but to inter-State applications more generally. In view of this, the following analysis will try to shed further light on questions such as the (extra)territorial jurisdiction of States under the Convention, the rule of prior exhaustion of domestic remedies and its application to inter-State cases, and the standard of proof of an administrative practice, among others.

Factual Background

On 22nd August 2018, the Government of Georgia filed an inter-State application pursuant to Article 33 ECHR, alleging a deterioration of the human rights situation along the ‘administrative boundary lines’ (ABLs) between Georgian-controlled territory and the breakaway regions of Abkhazia and South Ossetia. Both of these regions, while being formally part of the territory of Georgia, had been invaded by the Russian Federation’s armed forces during the 2008 war. After that, with the support of the Russian-backed separatists, Russia had recognized Abkhazia and South Ossetia as independent States, establishing several military bases therein and exercising effective control over the territories.

Georgia contended that Russia had engaged in a first administrative practice of harassing, unlawfully arresting and detaining, assaulting, torturing, murdering and intimidating ethnic Georgian civilians attempting to cross, or living next, to the ABLs. Moreover, Russia had engaged in another separate but closely related administrative practice by failing to conduct Convention-compliant investigations into the alleged violations.

Georgia also alleged that Archil Tatunashvili, a Georgian who was abducted while trying to enter South Ossetia, was unlawfully deprived of his liberty, tortured and murdered by persons for whom Russia bears responsibility and that Russia has failed to conduct proper investigations into his unlawful arrest and murders of Davit Basharuli and Giga Otkhozoria, two other ethnic Georgians civilians who were arrested and killed by the de facto authorities in separate circumstances.

Summary of the Decision

The ECtHR has unanimously declared the present application admissible. First, it established that it had jurisdiction to deal with the case, as the facts giving rise to the alleged violations of the Convention took place before Russia ceased to be a party to the ECHR. As for the existence of the respondent State’s (extra)territorial jurisdiction under Article 1 ECHR, the Court had held that the strong Russian presence and the survival dependency of the separatist authorities on the Russian Federation were unmistakable indications of the existence of Russia’s ‘effective control’ over the victims of the alleged violations.

As concerns the admissibility of the application, the ECtHR noted that the prior exhaustion domestic remedies rule does not apply insofar as the administrative practices alleged by the applicant State are corroborated by sufficient prima facie evidence. At this stage of the proceedings, the evidence submitted by Georgia was sufficient to satisfy the Court that the ‘repetition of acts’ and the ‘official tolerance’ requirements necessary to illustrate the existence of an administrative practice (see France, Norway, Denmark, Sweden and the Netherlands v. Turkey, Commission Decision, paras. 19-22) were present.

Analysis of the Decision

Albeit less thorough than some of the ‘mega-admissibility’ decisions issued by the ECtHR in recent inter-State cases (see for example Ukraine v. Russia (Re Crimea), Ukraine and The Netherlands v. Russia), the present ruling reasserts and further clarifies the Court’s reasoning on fundamental points of law. The following analysis will focus on several admissibility questions addressed by the Court in the present case in light of its recent case law.

Preliminary Issues

a) The Court’s ‘New Normal’ in Dealing with Russian Cases

Since the Russian Federation ceased to be a Party to the Convention from 16th September 2022, the Court applied what has become its routine approach in cases against Russia and first determined whether it had jurisdiction to examine the complaints raised by Georgia, concerning facts which allegedly occurred prior to Russia’s withdrawal from the Convention system. The ECtHR observed that Georgia’s complaints related to alleged violations arising from the ‘borderization’ process which started in 2009 and continued until 2013 at least. As the alleged administrative practices occurred before Russia’s ‘departure’ from the Council of Europe and its denunciation of the ECHR, the Court declared that it had jurisdiction ratione temporis to deal with the case (paras. 22-23).

b) ‘The Smoke Comes from a Fire’: Individual Applications as Evidence of the Existence of an Administrative Practice Alleged in an Inter-State Case

Georgia then asked the Court to consider the above-mentioned individual cases concerning the abduction and murder of three people not only as ‘case studies’ of the administrative practices, but also as individual violations of the Convention. The ECtHR observed that these incidents had already been the subject of three pending individual applications, one of which had already been communicated to the respondent State (Matkava and Others v. Russia, no. 3963/18; Tatunashvili v. Russia, no. 41776/18; N.G. and N.B. v, Russia, no. 44677/21). To avoid examining them twice, the Court found it appropriate to follow an approach it had already developed in Georgia v. Russia (I) and consider these cases only as evidence of a possible practice (para. 21), without ruling on the merits of the claims.

c) Judicial Complaints v. Political Complaints before the ECtHR: Two Sides of the Same (Inter-State) Coin

Russia raised a preliminary objection, alleging that Georgia’s application did not concern issues relating to the protection of human rights under the ECHR. They suggested that the case was lodged to obtain a decision on general questions of international law instead, on issues such as territorial sovereignty and the legitimacy of armed conflicts (para. 24). Recalling its case law on the admissibility requirements for inter-State cases, the Court first noted that there is no ‘good faith’ requirement in relation to their admissibility. This is because the ‘abuse of right’ provision under Article 35(3)(a) ECHR applies only to individual applications. As for the admissibility of inter-State complaints, the only general criterion provided for in the Court’s case law is that they have to be based on a ‘genuine application’ (para. 26).

In the present case, the ECtHR found that this criterion was fulfilled. Indeed, it had been asked to rule on the human rights consequences of the ‘borderisation’ process on the ethnic Georgian civilians’ rights and freedoms. To do so, it would need to verify whether the individuals concerned were under the ‘effective control’ of Russian authorities so as to determine the existence of the respondent State’s extraterritorial jurisdiction vis-à-vis Article 1 ECHR (para. 27). Moreover, while acknowledging the (unavoidable) political implications of the submitted claims, the Court observed that it cannot, for this reason alone, refuse to exercise its adjudicatory functions, also in the light of the actual legal questions raised by Georgia (para. 28). Accordingly, the Court dismissed any objections raised by the respondent Government.

(Extra)Territorial Jurisdiction v. Rules of Attribution and State Responsibility

The Court had to verify whether the alleged violations fell within the jurisdiction of the respondent State. Article 1 ECHR provides that the engagement undertaken by a High Contracting State to secure rights and freedoms enshrined in the Convention is confined to persons within its own territory. Therefore, as a general rule and as also highlighted by the Russian Federation in the present proceeding, the State’s jurisdiction under the ECHR should be primarily conceived as limited to the national territory of a State party. However, the Court has progressively recognized exceptions capable of giving rise to the exercise of jurisdiction outside States’ sovereign borders. In these situations, a State’s extraterritorial jurisdiction can be established: a) on the basis of the power or ‘effective’ control it exercises over the person of the applicant (personal model); or b) on the basis of the effective control exercised over a foreign territory (spatial model) (Al-Skeini and Others v. The United Kingdom [GC], paras. 133-139).

As for the existence of the respondent State’s extraterritorial jurisdiction over Abkhazia and South Ossetia, the Court, recalling its dictum in the Jaloud case, noted that the test for establishing jurisdiction pursuant to Article 1 ECHR has never been equated to the test for assessing State responsibility for internationally wrongful acts. Moreover, as regards the present situation, the Court had already held in its merits judgment in Georgia v. Russia (II) that the strong Russian military presence and the Abkhazian and South Ossetian authorities’ dependence on the Russian Federation indicated that there had been ‘effective control’ over the two breakaway regions, at least until 23 May 2018 (para. 44). As a consequence, the victims of the alleged Convention violations fell within the respondent State’s jurisdiction.

Admissibility Issues: The Rule of the Prior Exhaustion of Domestic Remedies as (Not) Applied to Inter-State Cases Concerning Administrative Practices

Moving on to the analysis of the requirement of prior exhaustion of domestic (or local) remedies in accordance with Article 35(1) ECHR, the Court considered it appropriate not to depart from its established case law as regards its applicability, albeit with significant exceptions, to inter-State applications.

Indeed, in accordance with a basic typology first suggested in 2014, two distinct categories of inter-State complaints can be envisaged, even though they can converge or overlap, resulting in ‘mixed’ claims. The first category concerns those complaints where the applicant State pursues an interest of its own, acting on behalf of the direct victims of a human rights violation. These types of cases are referred to as a ‘surrogate’ of diplomatic protection (see, e.g., Austria v. Italy and Liechtenstein v. The Czech Republic). A second, less common, category covers claims implying une action désintéressée, lodged by one or more States seeking to uphold human rights within the framework of collective responsibility under the Convention (see, e.g., Greece v. The United Kingdom (I) and Denmark, Norway, Sweden and The Netherlands v. Greece). According to the then-in-force-European Commission on Human Rights and the ECtHR, the rule of the prior exhaustion of domestic remedies applies to inter-State complaints only if they fall into the first category. As regards inter-State cases classified among the second category, the requirement of the prior exhaustion of domestic remedies does not apply, since in these proceedings the applicant State denounces a systemic pattern of violations, referred to as ‘administrative practices’, with the main aim of preventing their continuation or recurrence and without asking the Court to give a ruling on each of the individual cases alleged as evidence of those practices (see Ireland v. United Kingdom, Judgment of the Merits, para. 159; Cyprus v. Turkey (IV), Report of the Commission, paras. 83-86; Denmark v. Turkey, Admissibility Decision, p. 34).

An administrative practice is characterized by two constitutive elements. The first objective element is described as a ‘repetition of acts’, i.e. an accumulation of identical breaches which are sufficiently numerous and inter-connected, not to amount to merely isolated incidents of exceptions, but to a pattern or system of violations. The second subjective element is represented by the ‘official tolerance’, meaning that the illegal acts are tolerated insofar as the higher authority of those immediately responsible, albeit cognisant of such acts, takes no action to punish them or to prevent their repetition, or refuses any adequate investigations of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied (see Ireland v. United Kingdom, cited above, para. 159; France, Norway, Denmark, Sweden and The Netherlands v. Turkey, cited above, Decision of the Commission, para. 19; Cyprus v. Turkey (IV), cited above, Judgment on the Merits, para. 99)

In the case at hand, Georgia alleged the existence of two administrative practices with the aim of preventing their continuation or recurrence, without asking the Court to deliver a ruling on individual violations of rights. Rather, these cases have been brought to its attention as proof or illustrations of those practices. Thus, dismissing any objection raised by Russia on this point, the ECtHR found that the exhaustion rule does not apply to the present case (paras. 49-50).

Finally, in order to exclude the application of the rule of the prior exhaustion of local remedies, the Court had to verify if the administrative practices alleged by the applicant State were supported by the necessary evidence. According to the general principles of international adjudication, ‘onus probandi actori incumbit’: it is for the claimant (State) to bear the initial burden of proof. Nonetheless, in demonstrating the existence of an administrative practice, the Court prefers not to give weight to the concept that the burden of proof is borne by one or other of the two Governments concerned. Rather, it will study the material before it, from whatever source it originates. In addition, the conduct of the parties vis-à-vis the general duty to cooperate set out in Article 38(1) ECHR may constitute an important element to be considered. The applicable standard of proof in the admissibility phase of inter-State complaints alleging the existence of an administrative practice, as recently restated in Ukraine and the Netherlands v. Russia, is that of ‘sufficiently prima facie evidence’, which must be applied to both constituent elements of an administrative practice.

In the present case, Georgia had submitted a comprehensive list of the alleged victims provided by the Governmental State Security Service, reporting several human rights incidents. Moreover, the evidentiary materials submitted by the applicant State, as well as that obtained proprio motu by the Court, proved that a ‘repetition of acts’ had occurred since the onset of the borderisation process (para. 69). Moreover, the Court was satisfied that the available evidence established that there was an ‘official tolerance’ for the impugned acts at the level of supervisors of the breakaway regions. Thus, Russian border guards secured the ABLs by means of regulatory measures generally applied to all people concerned in Abkhazia and South Ossetia, resulting from the de facto transformation of the ABLs into State borders (para. 70). Therefore, the ECtHR concluded that the applicant State had provided sufficient prima facie evidence as to the existence of both ‘repetition of acts’ and ‘official tolerance’, and unanimously declared the inter-State application admissible.


The decision issued by the ECtHR in the Georgia v. Russia (IV) case represents an important confirmation of the Court’s developing case law on the admissibility of a particular sub-category of inter-State applications: i.e., those cases that, together with ‘ordinary’ human rights violations, also touch upon, inter alia, questions of public international law such as State’s sovereignty over disputed or separatist territories. It is also interesting to observe that, in the case under consideration, the Court, for the first time in the context of an inter-State application lodged against Russia, decided on the admissibility of the complaint unanimously. This is relevant as the complaints raised by the applicant state share the same factual background of those adjudicated by the ECtHR in Georgia v. Russia (II). Thus, the unanimous decision shows a progressively more consistent approach towards key issues such as the treatment of evidence and the non-applicability of the exhaustion of domestic remedies rule to administrative practices. As for the (extra)territorial jurisdiction of the respondent State pursuant to Article 1 ECHR, it remains to be seen how, in the merits phase of the proceeding, the Court will conceptualize its approach to the relationship between the State’s exercise of spatial jurisdiction and the attribution rules of State responsibility. In any case, the final outcome of Georgia v. Russia (IV) will certainly have important implications not only for the future of inter-State cases before the ECtHR but also for its significant contribution to the development of general issues of international law.

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