M.K. AND OTHERS v. GEORGIA AND RUSSIA

SECOND SECTION

DECISION

Application no. 16053/10
M.K. and Others against Georgia and Russia
and 19 other applications
(see list appended)

The European Court of Human Rights (Second Section), sitting on 12 March 2024 as a Committee composed of:

 Jovan Ilievski, President,
 Lorraine Schembri Orland,
 Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications against Georgia and the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision not to have the applicant’s name disclosed in application no. 16053/10;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASES

1.  The applications listed in the appendix concern an international armed conflict (“the IAC”) that occurred between Georgia and the Russian Federation in August 2008. Its chronology was described in the Court’s judgment in the inter-State case of Georgia v. Russia (II) ([GC] (merits), no. 38263/08, §§ 32-44, 21 January 2021). All the applicants reside in the undisputed territory of Georgia.

2.  Relying on Articles 3, 8, and 13 of the Convention the applicant complained that she was raped on 13 August 2008 by two South Ossetian fighters and two armed individuals of unknown origin, and that no effective investigation had been carried out in this respect. Relying on Article 1 of the Convention and Article 1 of Protocol No. 1, the applicant also complained that her property had been destroyed during the IAC.

3.  On 16 February 2009 the applicant applied to Empathy (the Psycho‑Rehabilitation Centre for Victims of Torture, Violence and Pronounced Stress Impact) for an outpatient medical and psychological examination and treatment. A medical certificate was issued on 21 April 2009. She was diagnosed with post-traumatic stress disorder, residual elements of a head injury, chronic pelvic/vaginal inflammation, and eyesight issues.

4.  On 5 May 2009 the organisation representing the applicant sent a letter to the Georgian authorities with a request to open a criminal investigation. The request does not appear to have been accompanied by an authority form authorising the organisation to represent the applicant’s interests, an identity document, or the medical report obtained by the applicant. The letter was left without a reply. On 27 May, 15 June and 25 September 2009 the organisation in question sent identically-worded letters to the authorities. The one sent on the latter date noted having received some reply (allegedly in respect of the letter of 15 June 2009) on 8 September 2009. No copy of any such response was submitted to the Court. No complaint was submitted to the Russian authorities.

5.  The applicants relied on Article 1, Article 2, Article 3 and Article 13 of the Convention, Article 1 of Protocol No. 1, and/or Article 1 of Protocol No. 12 to the Convention. The applicants in applications nos. 42646/10 and 42651/10 complained that their relatives had been killed on 18 and 19 August 2008, respectively. The remaining applicants complained that the military actions undertaken by the Russian armed forces in South Ossetia[1] in the period ranging from the night of 7 to 8 August until and including 12 August 2008, and the failure of the Georgian authorities to avoid these developments or minimise their impact, had resulted in their injuries, death of their relatives, and/or had put their lives under real and immediate danger, led to their anxiety, and damaged their properties. The applicants complained that the respondent Governments failed to carry out an effective investigation into the events.

6.  On different dates in August and September 2008, the majority of the applicants were questioned and granted the procedural status of a victim as part of the criminal investigation opened by the Georgian authorities.

7.  On 22 June 2009 the organisation which represented all the applicants (including the applicant in application no. 16053/10) at domestic level inquired about the progress of the ongoing investigation and asked whether the Georgian authorities had been cooperating with their Russian counterparts within the context of that investigation.

8.  On 30 June 2009 the Georgian prosecuting authority replied to the query of 22 June 2009 that the victims had been questioned. As for information regarding any other investigative activities and facts established by such measures, this had not been public information. The letter also stated that transnational cooperation in criminal matters with the Russian Federation had been “complicated” following the hostilities of August 2008. No reply was provided to the follow-up queries as to what the term “complicated” had meant.

9.  In April and May 2010 the applicants’ representatives sent brief letters to the Investigative Committee of the General Prosecutor’s Office of the Russian Federation. These were worded as queries as to whether a criminal investigation had been opened in respect of the applicants’ cases. They were not accompanied by authority forms, identity documents, death certificates or other documents. Various replies were received on different dates.

THE COURT’S ASSESSMENT

10.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

11.  In so far as the present applications relate to the events which took place in the period ranging from the night of 7 to 8 August until and including 12 August 2008, that is during the active phase of the hostilities, the Court has already ruled that such events did not fall within the jurisdiction of the respondent Governments for the purposes of Article 1 of the Convention (see Georgia v. Russia (II), cited above, §§ 125-44; Bekoyeva and Others v. Georgia (dec.), nos. 48347/08 and 3 others, §§ 32-40, 5 October 2021; Shavlokhova and Others v. Georgia (dec.), nos. 45431/08 and 4 others, §§ 27-35, 5 October 2021; and Jioshvili and Others v. Russia (dec.), nos. 8090/09 and 58 others, § 18, 19 October 2021). This part of the applications must therefore be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

12.  The Court observes that applications nos. 16053/10, 42646/10 and 42651/10 relate to incidents which allegedly occurred after the above-noted period of active hostilities. Additionally, all applications raise a complaint concerning the ineffectiveness of the investigation into the deaths and injuries, including those which had allegedly taken place during the active phase of the hostilities (compare Georgia v. Russia (II), cited above, § 330).

13.  However, the Court observes that all of these applications were submitted to it with considerable delay following the contested events. It must, therefore, examine whether they were lodged with the requisite diligence and in compliance with the six-month time‑limit set out in Article 35 § 1 of the Convention.

14.  The six-month time-limit provided for by Article 35 § 1 of the Convention has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29 June 2012, and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 135, ECHR 2012).

15.  Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 of the Convention to take the start of the six-month period from the date on which the applicant first became or ought to have become aware of those circumstances (see Keenan v. the United Kingdom (dec.), no. 27229/95, 22 May 1998, and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 259-60, ECHR 2014 (extracts)).

16.  Where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before both the relevant domestic authorities and the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (see, amongst others, Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Aydin and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; and Akhvlediani and Others v. Georgia (dec.), no. 22026/10, § 24, 9 April 2013). Indeed, with the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish, and the Court’s own examination and judgment may be deprived of meaningfulness and effectiveness (see Varnava and Others, cited above, § 161).

(a)   Application no. 16053/10

17.  At the outset, the Court observes that the applicant never submitted a criminal complaint to the Russian authorities. Had she believed that no effective remedy was available to her in Russia, she should have applied to the Court within six months of the alleged incident, that is on 13 February 2009 at the latest.

18.  The Court takes note of the fact that the applicant applied to the Georgian authorities with a request to have a criminal investigation opened. Considering that the request did not contain any grievance directed against Georgian authorities or any individuals present on the territory controlled by Georgia, the applicant appears to have believed that such a request would have provided her with adequate redress in respect of the complaints directed against the Russian Federation.

19.  In this respect, the Court reiterates that the Georgian authorities faced certain challenges in carrying out an effective investigation where potential suspects were located in South Ossetia, a territory remaining under the effective control of the Russian Federation (see Georgia v. Russia (II), cited above, § 331 in fine; see also Bekoyeva and Others, cited above, § 45).

20.  Even assuming, despite the above-noted apparent limitation, that the applicant may have reasonably believed, at least initially, that the Georgian authorities could have conducted an effective investigation into her grievances, including through possible cooperation with their Russian counterparts, the Court notes that by the time the applicant contacted the Georgian authorities, by means of a letter rather than a substantiated criminal complaint, almost nine months had passed since the incident, undermining the effectiveness of any investigation which could be undertaken in the future (see paragraph 16 above). The applicant did not account for the delay. In this regard, the applicant has not suggested that the authorities ought to have been aware of her circumstances in the absence of a complaint to that effect (compare Mamasakhlisi and Others v. Georgia and Russia, nos. 29999/04 and 41424/04, § 261, 7 March 2023).

21.  At any rate, however, the Court cannot overlook the fact that the applicant received no reply to her letter of 5 May 2009. More importantly, on 30 June 2009 – over ten months after the alleged incident and the clear lack of any investigation into it – the Georgian authorities informed the organisation representing the applicant that no information about investigative activities implemented by them was amenable to being given to any of the victims, and that cooperation with the Russian authorities had been problematic in view of the armed conflict (see paragraph 8 above). The Court considers that by that date the lack of any prospect of an effective investigation being launched into the applicant’s complaint must have become readily apparent.

22.  Yet, the application was introduced on 10 March 2010. While the applicant may have been in a somewhat vulnerable situation in view of the nature of her complaints, she was located on the Georgian territory with access to legal services. The Court does not find that there existed any exceptional circumstances to justify the delay (compare Mamasakhlisi and Others, cited above, §§ 271-277).

23.  In the light of the foregoing, the Court concludes that the present application was submitted out of time. It must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b)   The remaining applications

24.  The Court observes that the very first time the applicants contacted the Russian authorities – by means of queries as to whether a criminal investigation had been opened rather than through substantiated criminal complaints – was almost two years after the incidents complained of had taken place (see paragraph 9 above) and just some months before submitting the present applications to the Court. Within this context, had the applicants believed that no effective remedy was available to them in Russia, they should have applied to the Court within six months of the alleged incidents, that is between 8 and 19 February 2009 at the latest, depending on the dates of the incidents complained of (see paragraph 5 above).

25.  As regards the criminal investigation opened by Georgia, the Court reiterates that the Georgian authorities faced certain challenges in carrying out an effective investigation where potential suspects were located in South Ossetia, a territory remaining under the effective control of the Russian Federation (see paragraph 19 above).

26.  Even supposing, despite the above-noted apparent limitation, that the applicants’ initial assumption about the effectiveness of the investigation opened by Georgia may have been reasonable, including with respect to a possibility of cooperation between the respondent Governments (see paragraph 7 above), all the applicants must have become aware of its ineffectiveness, through the organisation representing them, by 30 June 2009. Namely, on that date the Georgian authorities informed the organisation in question that cooperation with the Russian Federation in criminal matters had been complicated in view of the armed conflict of August 2008. Moreover, by then, that is over ten months after the contested events, there had been no developments other than the initial gathering of evidence from the victims located on the territory controlled by Georgia. In fact, the authorities had explicitly excluded any developments regarding other investigative activities being notified to the applicants in the future on account of such information not having been public (see paragraph 8 above). The Court considers that by that date the lack of any prospect of an effective investigation being launched into the applicants’ complaints must have become readily apparent.

27.  Yet, the applicants waited another year, and in several applications much longer, before lodging the present applications. The Court does not find that there existed any exceptional circumstances to justify the delay (compare Mamasakhlisi and Others, cited above, §§ 271-77).

28.  In the light of the foregoing, the Court concludes that the applications were submitted out of time. They must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 11 April 2024.

 Dorothee von Arnim Jovan Ilievski
 Deputy Registrar President

Appendix

List of cases:

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Place of Residence
Nationality

Represented by

1.

16053/10

M.K. v. Georgia and Russia

10/03/2010

M.K.

1959
Georgian

Ms L. MUKHASHAVRIA

2.

42630/10

Gogidze v. Georgia and Russia

19/06/2010

Lia GOGIDZE
1973
Gori
Georgian

Ms L. MUKHASHAVRIA

3.

42646/10

Razmadzeebi v. Georgia and Russia

19/06/2010

Eliko RAZMADZE
1948
Gori
Georgian

Akaki RAZMADZE
1950
Gori
Georgian

Manana RAZMADZE
1957
Gori
Georgian

Ms L. MUKHASHAVRIA

4.

42651/10

Midodashvili v. Georgia and Russia

19/06/2010

Lali MIDODASHVILI
1975
Gori
Georgian

Ms L. MUKHASHAVRIA

5.

42653/10

Melitauri v. Georgia and Russia

19/06/2010

Lavrenti MELITAURI
1968
Gori
Georgian

Ms L. MUKHASHAVRIA

6.

42656/10

Kopadze v. Georgia and Russia

01/07/2010

Vardo KOPADZE
1929
Gori
Georgian

Ms L. MUKHASHAVRIA

7.

42664/10

Melitaurebi v. Georgia and Russia

19/06/2010

Gulnara MELITAURI
1934
Gori
Georgian

Bagrat MELITAURI
1959
Gori
Georgian

Eka MELITAURI
1966
Gori
Georgian

Gulnara MELITAURI
1934
Gori
Georgian

Tamila MELITAURI
1956
Tbilisi
Georgian

Ms L. MUKHASHAVRIA

8.

42668/10

Aniashvili v. Georgia and Russia

09/07/2010

Mediko ANIASHVILI
1945
Gori
Georgian

Ms L. MUKHASHAVRIA

9.

70344/10

Mikheil Khizanishvili v. Georgia and Russia

18/11/2010

Mikheil KHIZANISHVILI
1962
Variani Village
Georgian

Ms L. MUKHASHAVRIA

10.

70350/10

Aduashvilebi v. Georgia and Russia

18/11/2010

Ilia ADUASHVILI
1977
Variani Village
Georgian

Teimuraz ADUASHVILI
1981
Gori
Georgian

Ms L. MUKHASHAVRIA

11.

70366/10

Giorgishvilebi v. Georgia and Russia

18/11/2010

Davit GIORGISHVILI
1970
Variani Village
Georgian

Khatuna GIORGISHVILI
1972
Variani Village
Georgian

Ms L. MUKHASHAVRIA

12.

70376/10

Urjumelashvili and Aduashvili v. Georgia and Russia

18/11/2010

Dimitri URJUMELASHVILI
1977
Variani Village
Georgian

Natia ADUASHVILI
1977
Variani Village
Georgian

Ms L. MUKHASHAVRIA

13.

70396/10

Kakhaber Aduashvili v. Georgia and Russia

18/11/2010

Kakhaber ADUASHVILI
1965
Variani Village
Georgian

Ms L. MUKHASHAVRIA

14.

70404/10

Nikoloz Khizanishvili v. Georgia and Russia

18/11/2010

Nikoloz KHIZANISHVILI
1965
Variani Village
Georgian

Ms L. MUKHASHAVRIA

15.

70411/10

Akopov v. Georgia and Russia

18/11/2010

Davit AKOPOV
1977
Variani Village
Georgian

Ms L. MUKHASHAVRIA

16.

70416/10

Ivane Khizanishvili v. Georgia and Russia

18/11/2010

Ivane KHIZANISHVILI
1944
Variani Village
Georgian

Ms L. MUKHASHAVRIA

17.

10338/11

Bidzinashvili v. Georgia and Russia

11/02/2011

Gaioz (Piruz) BIDZINASHVILI
1944
Karbi Village
Georgian

Ms L. MUKHASHAVRIA

18.

28628/11

Tevdorashvili v. Georgia and Russia

11/02/2011

Tengiz TEVDORASHVILI
1939
Karbi Village
Georgian

Ms L. MUKHASHAVRIA

19.

28679/11

Guram Tevdorashvili v. Georgia and Russia

10/12/2010

Guram TEVDORASHVILI
1961
Gori
Georgian

Ms L. MUKHASHAVRIA

20.

28700/11

Tsimakuridze v. Georgia and Russia

10/12/2010

Avtandil TSIMAKURIDZE
1952
Gori
Georgian

Ms L. MUKHASHAVRIA

[1] The term “South Ossetia” refers to a region of Georgia which is currently outside the de facto control of the Georgian Government.