Legal summary
June 2026
Malachini and Others v. Russia - 9184/09 and 22580/10
Judgment 23.6.2026 [Section II]
Article 1
Jurisdiction of States
Jurisdiction of Russia for complaints of alleged torture and killing of Georgian prisoners of war in the administrative capital of South Ossetia during the five-day active phase of hostilities of the 2008 armed conflict
Article 2
Article 2-1
Life
Effective investigation
Death of three Georgian prisoners of war during their detention in the administrative capital of South Ossetia during the active phase of the hostilities: violation
Article 3
Torture
Effective investigation
Torture of Georgian prisoners of war during their detention in the administrative capital of South Ossetia during and after the active phase of the hostilities: violation
Article 41
Just satisfaction
Award for non-pecuniary damages payable only with respect to damage not already compensated under Georgia v. Russia (II) [GC]
Facts – The applications relate to the armed conflict between Georgia and the Russian Federation in August 2008 following an extended period of ever-mounting tensions, provocations and incidents that opposed the two countries.
The applicants complained under Articles 2 and 3 of the Convention in relation to the alleged torture and killing of three Georgian prisoners of war between 9 and 11 August 2008, that is during the five-day active phase of the hostilities of 8 -12 August 2008, and the alleged torture of the surviving prisoners of war between 9 and 19 August 2008.
Law –
Preliminary remark – As the facts giving rise to the alleged violations of the Convention had occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the applicants’ complaints.
Article 2 (substantive and procedural):
(1) Admissibility – Article 1 (Jurisdiction):
The relevant general principles regarding extraterritorial jurisdiction had been summarised in Georgia v. Russia (II) [GC], Ukraine and the Netherlands v. Russia (dec.) [GC], and in Ukraine and the Netherlands v. Russia [GC].
On the basis of the evidence before the Court, the alleged torture and killing of three Georgian servicemen during their detention between 9 and 11 August 2008 could not, by their very nature, be regarded as “acts of war” or “military operations” carried out during the active phase of the hostilities in a context of chaos or confusion, in respect of which the Court had found that Russia had not had jurisdiction under Article 1. There could therefore be no doubt that the respondent State might have extraterritorial jurisdiction in respect of the incidents complained of, which had taken place not while the servicemen had been fighting but while they had been held in custody, even if they had occurred while active hostilities had been ongoing.
Georgian prisoners of war, including those concerned in the present case, had been detained in the town of Tskhinvali, the administrative capital of South Ossetia, by the South Ossetian forces. Except for several ethnic Georgian villages around Tskhinvali referred to in Georgia v. Russia (II) [GC], the Georgian government had been prevented from exercising its authority and control over the remaining parts of the region, including the town of Tskhinvali, prior to the outbreak of the hostilities in 2008. Accordingly, the question regarding the nature of the control exercised by the Russian Federation in South Ossetia before the start of the active phase of the hostilities, as well as during the five-day war, was relevant to the assessment of whether Russia had been responsible for the actions of the South Ossetian forces in respect of the detained individuals in the territory concerned.
The Court had already established that prior to the hostilities Russia had exercised effective control and decisive influence over the territory of Abkhazia, which had only been able to survive as a de facto entity because of Russia’s sustained and substantial political and economic support, and dissuasive military involvement. Within that context, ties between Russia and South Ossetia appeared to have been comparable, if not stronger.
In particular, and specifically within the context of the well-documented detention of Georgian prisoners of war in Tskhinvali by the South Ossetian forces, the Court took into account a number of elements, including the report of the Independent International Fact‑Finding Mission on the Conflict in Georgia, also noted in Georgia v. Russia (II) [GC], to conclude that the pre-existing relationship of subordination between South Ossetia and the Russian Federation had lasted throughout the active phase of the hostilities and after the cessation of hostilities. As regards the five-day period of hostilities, and in particular the town of Tskhinvali, the relevant material indicated not only assistance by the respondent State’s aerial forces but also by its ground troops. It indicated a significant Russian military presence on the ground at least as of 9 August 2008 and Russia’s military and logistical support to the forces of the de facto authorities on the ground, including at the sites where the Georgian prisoners of war had been held.
Lastly, and in line with the methodology applied in earlier cases, the Court also took into account the developments that had occurred just days after the detention and alleged killing of the prisoners of war concerned in the present case. Specifically, the events had resulted, following the ceasefire agreement of 12 August 2008, in the exercise by the respondent State of “effective control”, within the meaning of the Court’s case-law, over the entire region of South Ossetia, including the areas previously controlled by Georgia and the Georgian “buffer zone” adjacent to it. Even after 10 October 2008, the date of the official withdrawal of the Russian troops from the “buffer zone”, the strong Russian presence and the South Ossetian authorities’ dependency on the Russian Federation, on whom their survival was contingent, as was shown particularly by the cooperation and assistance agreements signed with the latter, indicated that there had been continued “effective control” over South Ossetia.
The foregoing elements demonstrated beyond reasonable doubt that the three Georgian prisoners of war had been detained in territory over which Russia exercised “effective control”, within the meaning of the Court’s case-law.
The above finding of spatial jurisdiction did not, however, bring within the respondent State’s jurisdiction events which had taken place outside that area, or those involving “military operations carried out during the active phase of hostilities”, in the sense of “armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos”, as identified by the Court in Georgia v. Russia (II) [GC]. It was also without prejudice to any question of personal jurisdiction.
(2) Merits – The evidence showed that the three prisoners of war had been subjected to extreme acts of violence while in detention. There was credible evidence demonstrating beyond reasonable doubt that two of them had been killed while in detention. While the exact cause and circumstances of the death of the third prisoner remained unclear, it was certain that he had last been seen in the custody of the South Ossetian forces while being subjected to violence and death threats and he could be presumed to have met a violent death sometime afterwards.
Against that background and having regard to the material before it, the Court considered it established that the three prisoners of war in question had died in circumstances engaging the respondent State’s responsibility.
The Court further found that the respondent State had not accounted for their deaths, as required under the procedural aspect of Article 2.
Conclusion: violation (unanimously) (substantive and procedural).
Article 3 (substantive and procedural):
(1) Admissibility – Article 1 (Jurisdiction):
The Court’s findings regarding Russia’s jurisdiction in respect of the complaints under Article 2 applied equally to the complaints under Article 3.
(2) Merits – In Georgia v. Russia (II) [GC] the Court had found that there had been an administrative practice contrary to Article 3 as regards the acts of torture of which the Georgian prisoners of war, detained in Tskhinvali between 8 and 17 August 2008, had been victims.
On the basis of the relevant material before it, the Court found that the Georgian prisoners of war in the present case had all been victims of treatment contrary to Article 3 which must be regarded as torture. The Russian Federation had been responsible for the actions of the South Ossetian forces.
The respondent State had also failed to carry out an effective investigation into the applicants’ complaints, as required under the procedural aspect of Article 3.
Conclusion: violation (unanimously) (substantive and procedural).
Article 41: no award in respect of pecuniary damage; sums of EUR 40,000 or EUR 65,000 awarded either jointly or to each applicant in respect of non-pecuniary damage.
The Court noted that the Grand Chamber had already awarded just satisfaction in the case of Georgia v. Russia (II) for the benefit of individual victims of administrative practices in breach of the Convention. In so far as the applicants might also be individual victims covered by the just satisfaction judgment in that case, the sums awarded in the present judgment should be payable only with respect to damage not already compensated under the Grand Chamber judgment, so as to avoid double compensation for the same damage.
(See Georgia v. Russia (I) [GC], 13255/07, 3 July 2014, Legal Summary; Georgia v. Russia (I) (just satisfaction) [GC], 13255/07, 29 January 2019, Legal Summary; Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal Summary; Ukraine and the Netherlands v. Russia (dec.) [GC], 8019/16 et al., 30 November 2022, Legal Summary; Mamasakhlisi and Others v. Georgia and Russia, 29999/04 and 41424/04, 7 March 2023; Georgia v. Russia (II) (just satisfaction) [GC], 38263/08, 28 April 2023, Legal Summary; Ukraine and the Netherlands v. Russia [GC], 8019/16 et al., 9 July 2025, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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