June 13, 2023
By Dr. Júlia Miklasová
The judgment rendered by the Second Section of the Court in Mamasakhlisi and Others v. Georgia and Russia relates to the allegations of human rights violations by the de facto Abkhaz authorities in Abkhazia before the 2008 Russia-Georgia War and Russia’s recognition of Abkhazia. In this case, filed against Russia and Georgia, the Court found both States exercising jurisdiction in the relevant period; ultimately, only Russia was held responsible for violating Article 3 ECHR, Article 5 (1)(a)(c) ECHR and Article 6 (1) and 6 (3)(c) ECHR. Unfortunately, it took almost 20 years for the Court to deliver the judgment – two out of three original applicants have passed away since filing the application. Moreover, in light of Russia’s expulsion from the Council of Europe following Russia’s aggression against Ukraine and its lack of communication with the Court since March 2022, the prospect of compliance with the judgment is rather illusory.
Central to the case is the preliminary question of the applicability of the ECHR in this de facto entity from 2001 until 2007. Previously, the Grand Chamber’s Georgia v Russia (II) established Russia’s effective control over this territory in the period subsequent to five days of active hostilities between Russia and Georgia in 2008 (Georgia v Russia (II), para. 174). Mamasakhlisi largely builds on the Court’s jurisprudence concerning extra-territorial spatial model of jurisdiction. However, given the case’s temporal scope, the Court faced a challenging factual context, characterised, among others, by the hybrid elements of Russia’s control. This blogpost examines the Court’s approach to establishing Russia’s jurisdiction in this period in light of its previous jurisprudence.
Abkhazia declared independence from Georgia in 1992 (para. 26). The Georgian-Abkhaz conflict ensued between 1992 and 1994. In the 1994 Ceasefire Agreement, the parties agreed to establish a security zone where no troops or heavy military equipment were allowed. They also agreed that the Commonwealth of Independent States Collective Peacekeeping Force (CIS CPF) would monitor the ceasefire. A protocol to the agreement defined its mandate, including the freedom of movement within the security zone (para. 33). The 1994 Decision of the Council of the CIS Heads of State decided that the peacekeeping troops would be mainly staffed from the Russian troops (para. 34). In 1996, CIS adopted a decision prohibiting the member States from supporting Abkhazia in a variety of spheres (para. 35).
A Georgian national, Mr Mamasakhlisi (the first applicant), claimed that in 2001 a hand-made grenade intended for fishing accidentally exploded in his hands at his mother’s apartment in Abkhazia and caused, among others, his right hand and three fingers of his left hand to be blown off. He alleged that five days after the explosion, he was moved to the de facto Security Service of Abkhazia’s detention facility where he was questioned about his intention to blow up targets in the region (which he denied) and subjected to mock executions by the de facto authorities. After several months, he confessed to the acts he was questioned about. In 2002, the de facto Abkhazia Military Court sentenced him to twelve years’ imprisonment. The first two years, he spent in the cell of the de facto Ministry of Interior’s building. After that he was transferred to a prison in Abkhazia. He was released in 2007.
In 2003, the de facto Abkhaz authorities arrested the third applicant (born in 1922) for illegally crossing the de facto Georgia-Abkhaz border and accused him of wearing an explosive belt. The de facto Abkhazia Military Court found him guilty and sentenced him to six years’ imprisonment. He was released in 2005.
Regarding extraterritorial jurisdiction, in light of the applicants’ submissions, the Court first had to establish whether Russia exercised ‘effective control or at the very least a decisive influence over Abkhazia as a whole’ between 2001 and 2007 (paras. 320-321). It also considered the elements before and after this period if relevant to the jurisdiction (para. 240, para. 321).
The Court examined the scope of ‘military involvement’ of Russia in Abkhazia. First, regarding the Georgian-Abkhaz conflict in the 1990s, it established that the separatist victory ‘would not have been possible without the involvement of at least certain forces and military equipment emanating from the territory of the Russian Federation’ (para. 323). Second, the statements of high-level Russian officials in connection with the fact that the majority of the population and peacekeepers held Russian nationality ‘sent a strong signal of dissuasion against actions of the Georgian government to regain its control over Abkhazia’ (para. 324). Third, the CIS CPF amounted to between 1.500 and 3.000 Russian troops; their area of responsibility constituted about a third of the whole of Abkhaz’s territory (para. 325). The Court also considered the EU Fact-Finding Mission report, according to which the ‘peace process in Abkhazia was left largely in the hands of Russia’ (para. 326). Moreover, the Russian military base’s infrastructure in Gudauta was taken over by ‘the CIS CPF (in fact, Russian) peacekeeping force’ (para. 327). Russia stated that ‘aircraft crews, operating personnel and security units had been stationed there’ (para. 190). Among others, the subsequent opening of the Russian military base stationing up to 3.800 soldiers in Abkhazia was also relevant.
Regarding political support, the Court found evidence of ‘a strong degree of political dependence of Abkhazia on Russia’ (para. 330), highlighting the policy of passportisation, staffing of key positions in Abkhazia by Russia’s ‘former civilian and military leaders’, expressions of support of Abkhazia by the Russian officials, and statements of Abkhaz leaders regarding ‘Abkhazia’s strong reliance on Russia’ (paras. 330-331). The Court also considered that ‘the Abkhaz economy was heavily reliant on that of Russia’ (para. 332). The Court concluded that ‘Abkhazia’s high level of dependency on Russian support during the period in question allows the Court to conclude that Russia exercised effective control and decisive influence over Abkhaz territory’ (para. 339).
On the merits, the Court, in line with its case law, held that given Russia’s effective control over Abkhazia, ‘it is not necessary to determine whether or not Russia exercised detailed control over the policies and actions of the subordinate local administration’ (para. 411). It then found a violation of Article 3 ECHR by Russia in respect of the first and third applicants. Regarding the violation of Article 5 (1) ECHR, the Court had to examine whether ‘each of the applicants’ respective detention can be regarded as “lawful”’ as they were ordered by the de facto authorities (para. 422). The Court followed its previous case law (Ilașcu, para. 460). Given, among others, the scarcity of information regarding the Abkhaz legal system, the Court was ‘not in a position to verify’ the fulfilment of the relevant conditions (para. 425). It noted that there ‘is also no basis for assuming that there is a system reflecting a judicial tradition compatible with the Convention’ (para. 426). Ultimately, there was a violation by Russia of Article 5 (1)(a)(c) in respect of both applicants, as well as of Article 6 (1) and (3)(c).
Under public international law, Abkhazia is recognised as part of Georgia, and according to the Court this ‘gives rise to a positive obligation’ for Georgia, relating to the measures to ‘re-establish its control over Abkhaz territory, as an expression of its jurisdiction, and to measures needed to ensure respect for the individual applicants’ rights’ (para. 319). On the merits, the Court found no violations of this obligation by Georgia.
Compared to Georgia v Russia (II), the context of Russia’s influence over Abkhazia in the relevant period was more challenging. First, Russia still formally recognised Georgia’s sovereignty over Abkhazia. Russia also claimed to have complied with the 1996 CIS-mandated blockade of Abkhazia (para. 206). Thus, apart from openly supporting Abkhazia during this period (see, for example, para. 297), Russia also used covert or hybrid tools or actions below the governmental level. Second, unlike in other cases, in the period covered by the judgment the Russian troops in Abkhazia were the CIS CPF (Russian) peacekeepers, stationed there with the initial consent of Georgia. However, the closure of the Russian military base in Gudauta was never internationally confirmed despite Russia’s commitments made at the 1999 OSCE summit, and its infrastructure was effectively transferred to the CIS CPF. Third, even the EU Fact-Finding Report on the conflict in Georgia noted the Abkhazia’s elite’s will for independence not only from Georgia, but also from Russia – unlike, for example, South Ossetia (Report, 134). Lastly, while the so-called secession of the Donetsk and Luhansk People’s Republics in eastern Ukraine was characterised by the Court as ‘managed and coordinated by the Russian Federation’ (Ukraine and the Netherlands v Russia, para. 693), the Russia’s government support of the Abkhaz forces in the secessionist conflict with Georgia in the 1990s was described by the EU Fact-Finding Mission as ‘inconsistent’ (Report, 6). Against this background, the question of how the different facets of the Russian influence and support translated into its jurisdiction requires further scrutiny.
Initially, the Court reiterated the standard formulas to define the effective control test according to which the Court ‘will primarily have reference to the strength of the State’s military presence in the area’ (para. 311, emphasis added). However, when applying the principles to the facts of the case, it used a different formulation. It stated that ‘[t]he assessment will primarily depend on military involvement’ (para. 320, emphasis added), echoing the terminology used in Chiragov (para. 169). This is significant since, arguably, military involvement is a less stringent criterion than military presence. The Court took several factors into account.
First, to establish effective control, the Court normally considers the third State’s military support of the separatists during the conflict with a territorial State (direct participation of soldiers and supply of weapons and military equipment) and thereafter. In the present case, the Court was unable, based on the available evidence, to conclude as to ‘the composition of the armed forces that secured control over Abkhazia in September 1993, or the precise type and level of support that they received from external sources, or who exactly the latter were’ (para. 323). This echoes a similar statement concerning Armenia’s support of Nagorno-Karabakh in Chiragov (para. 173). However, in Chiragov, the Court ultimately stated that ‘it is hardly conceivable that Nagorno-Karabakh’ would win against Azerbaijan ‘without the substantial military support of Armenia’ (Chiragov, para. 174, emphasis added). In the present case, the separatist victory in the early 1990s ‘would not have been possible without the involvement of at least certain forces and military equipment emanating from the territory of the Russian Federation’ (para. 323, emphasis added). Thus, given this lack of direct attribution to Russia, the level of Russia’s military support of separatists in the conflict remained unclear, especially in comparison to that of Armenia in Chiragov or even of Russia in Ilașcu (compare para. 380, especially the Court’s reliance on the rules of State responsibility for ‘abuses of authority’).
Second, the Court also considered the element of the Russian dissuasion against a potential Georgian attempt at retaking control in Abkhazia (para. 324, see above). This element already featured in the case law on Transnistria as a factor compensating for the decrease of the Russian troops on the ground (Ilașcu, para. 387; Catan, para. 118.).
Third, the Court took the CIS CPF into account for Russia’s ‘military involvement’ with Abkhazia (para. 320). Notably, the Court did not rule on the applicants’ claims of the lack of neutrality of the CIS (Russian) peacekeepers or their direct support of Abkhazia (para. 296; compare Ilașcu, paras. 100 and 391). It was unable to conclusively rule on the allegations of several offences committed by them, ‘supporting Abkhaz fighters and acting at times outside the security zone’ (para. 325). It, however, considered the mission’s objective elements, including the staffing of the Russian troops, the size of the troops, the scope of the territory under their responsibility and their presence in Gudauta and Sukhumi, which are located outside of the security zone. In addition, it considered a broader context of the peace process (‘left largely in the hands of Russia’; ‘[t]he conflict was in effect frozen’) and Russia’s position that Georgia’s demand to replace the CIS CPF with the international police force was ‘a provocation’ (para. 326). Moreover, the infrastructure of the Russian military base – the closure of which was never verified – was effectively transferred to the peacekeepers. The Court also considered later events – including the opening of Russia’s military base in Abkhazia in 2009.
The Court’s analysis of this aspect is noteworthy since it is the first time that the presence of the peacekeeping forces (i.e. with the original consent of a territorial State) featured so prominently in the assessment of extraterritorial spatial jurisdiction. For example, in Ilașcu, the Court referred to the Russian contingent of the peacekeeping forces only tangentially; the key military factor was the presence and conduct of the ex-Soviet 14th Army in the region (Ilașcu, paras. 380 and 391). Importantly, in the present case, even without the pronouncement on the CIS CPF’s neutrality, its objective criteria, the larger context of the peace process, and additional contextual elements were sufficient for the Court. These elements arguably also distinguish this case, for example, from the current context of the Russian peacekeepers in Nagorno-Karabakh.
Ultimately, the Court concluded that ‘Russia’s sustained military connection to the region’ during, prior and after the relevant period ‘enables it to conclude that the Russian State wielded sufficient military influence over Abkhaz territory for it to be considered “dissuasive” and as such decisive in practice’ (para. 329, emphasis added). This terminology is especially revealing as, for example, the reference to ‘sustained military connection’ has not been used in the previous case law and arguably showcases a lower threshold of the military aspect of the jurisdictional test (compare Chiragov, para. 180), ultimately referred to as ‘effective control and decisive influence’ (see below).
The passportisation – a hybrid element of Russia’s influence at the time – played out in three ways. First, the Court considered it in the context of Russian dissuasion (para. 324, see above). Second, it informed the Court’s assessment of Russia’s political support of the entity (para. 330). Third, the payment of pensions to the Russian citizens in the region, equivalent to half of Abkhazia’s annual budgets, was considered a factor of Russia’s financial support (para. 335).
Regarding other relevant indicators – political, economic and financial support – the Court considered diverse elements – among others, the numerous agreements of cooperation between Abkhazia and different Russian entities (private, local, controlled by the State, para. 332), the scope of Abkhazia’s de facto integration into the Russian economy in several fields (paras. 333-334) and significant investments (para. 336; compare Catan, para. 120; Chiragov, para. 184). This showcases the malleability of the effective control test (regarding economic and financial support), where the attribution rules do not seem decisive for certain factors to be taken into account. In the present case, the benefit of hindsight also played a role. Specifically, the Court considered that in 2009 the agreement was concluded between Russia and the entity on the reciprocal protection of investments since 1994 (paras. 333, 336 and para. 140).
Compared to Georgia v Russia II, it follows from Mamasakhlisi that the level of Russia’s military influence over the de facto Abkhaz territory in the relevant period was lower. The Court’s terminology is especially revealing – avoiding the reference to ‘military presence’, analysing ‘military involvement’, and highlighting Russia’s ‘military connection’ to and ‘influence’ over the region. The Court seems to have adjusted the military aspect of the jurisdictional test, arguably lowering it even by comparison with Chiragov. Ultimately, the Court established that ‘de facto Abkhazia was only able to survive because of Russia’s sustained and substantial political and economic support, and dissuasive military involvement’ (para. 339, note the order of these elements). Thus, ‘Russia exercised effective control and decisive influence over Abkhaz territory’ (para. 339, emphasis added, note the compounded test; compare Catan, para. 122 referring to control and influence over the de facto authorities). Therefore, Mamasakhlisi will be important for future cases relating to the extraterritorial spatial jurisdiction concerning de facto territories characterised by a significant third State’s support and its contested military presence (for example, Nagorno-Karabakh).