NINIASHVILI v. RUSSIA

SECOND SECTION

DECISION

Application no. 8381/09
Giorgi NINIASHVILI
against Russia

The European Court of Human Rights (Second Section), sitting on 9 September 2025 as a Chamber composed of:

 Arnfinn Bårdsen, President,
 Saadet Yüksel,
 Tim Eicke,
 Jovan Ilievski,
 Oddný Mjöll Arnardóttir,
 Gediminas Sagatys,
 Stéphane Pisani, judges,
and Hasan Bakırcı, Section Registrar,

Having regard to the above application lodged on 7 February 2009,

Having regard to the decision to give notice to the Russian Government (“the Government”) of the application;

Having regard to the observations submitted by the applicant,

Having regard to the comments submitted by the Georgian Government,

Having regard to the decision of the President of the Section to appoint one of the sitting judges of the Court to act as an ad hoc judge, applying by analogy Rule 29 § 2 of the Rules of Court (see Kutayev v. Russia, no. 17912/15, §§ 5-8, 24 January 2023)

Having deliberated, decides as follows:

INTRODUCTION

1.  The present case relates to an international armed conflict that occurred between Georgia and the Russian Federation in August 2008, the chronology of which was described in the Court’s judgment in the inter‑State case of Georgia v. Russia (II) ((merits) [GC], no. 38263/08, §§ 32-44, 21 January 2021). In particular, the applicant alleged that on 9 August 2008 his property had been burnt down.

THE FACTS

2.  The applicant, Mr Giorgi Niniashvili, was a Georgian national who was born in 1950 and lived in Georgia. He was represented before the Court, most recently, by Ms K. Shubashvili of the Georgian Young Lawyers’ Association, a non-governmental organisation based in Tbilisi, and by Mr T. Collis of the European Human Rights Advocacy Centre (EHRAC), a non-governmental organisation based in London.

3.  The applicant died on 8 October 2012 when the proceedings were pending before the Court. The applicant’s son, Mr Aleksi Niniashvili, expressed his wish to continue the proceedings in the applicant’s stead.

4.  The facts of the case may be summarised as follows.

5.  During the night of 7 to 8 August 2008, after an extended period of mounting tensions and incidents, heavy fighting erupted in and around Tskhinvali, the administrative capital of South Ossetia.[1] On 8 August 2008 Russian ground forces penetrated into Georgia by crossing through Abkhazia and South Ossetia before entering the neighbouring regions in undisputed Georgian territory. They were assisted by the Russian air force and the Black Sea fleet. Armed fighting between the enemy forces took place essentially in South Ossetia, as well as in the area of Gori, situated in the “buffer zone” in undisputed Georgian territory, to the south of South Ossetia. From 10 August 2008 Georgian armed forces withdrew first from Tskhinvali and then from the Gori area, while Russian armed forces progressively invaded all of Abkhazia and South Ossetia as well as the “buffer zone”. A ceasefire agreement between the Russian Federation and Georgia was concluded on 12 August 2008. Part of the invaded areas of Georgia, notably the “buffer zone”, was vacated by Russian troops by 10 October 2008 (see Georgia v. Russia (II), cited above, §§ 32-44).

6.  When hostilities broke out in August 2008 the applicant lived in the village of Avlevi, situated in the “buffer zone” in undisputed Georgian territory, to the south of South Ossetia.

7.  The applicant left the village on 9 August 2008 as it became the target of military attacks.

8.  According to a statement available in the case file, which was allegedly made by the applicant’s neighbour and recorded by the applicant’s representatives before the Court, following shelling of the village on 9 August 2008 and after the applicant had left the village, uniformed and non‑uniformed individuals had entered the village on military and non‑military vehicles. The uniformed individuals had been wearing white armbands. As they passed the applicant’s house, which was allegedly located approximately 30 metres from the neighbour’s house, one of the vehicles had unsuccessfully attempted to break the fence around the applicant’s house. Following this incident, sixteen to eighteen individuals had entered the house. The neighbour stated that he could hear people speaking in Russian, Ossetian and Georgian (spoken with an Ossetian accent). The neighbour had then hidden to avoid being seen and had only come out after the noise had subsided and the vehicles had left the area. He had entered the applicant’s house and found a fire in one of the rooms which he had been unable to put out. The house had eventually burnt down.

9.  The applicant received a handwritten note made by the Georgian municipal authorities stating that his house and all his belongings had been destroyed as a result of “the Russian aggression”. The case file contains photos of the destroyed house, which shows signs of fire damage.

10.  On 12 October 2008 the applicant regained access to the village.

RELEVANT INTERNATIONAL MATERIAL

11.  The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia (Volume I) established in December 2008 by the Council of the European Union, stated, inter alia (p. 10):

“On the night of 7 to 8 August 2008, a sustained Georgian artillery attack struck the town of Tskhinvali. Other movements of the Georgian armed forces targeting Tskhinvali and the surrounding areas were under way, and soon the fighting involved Russian, South Ossetian and Abkhaz military units and armed elements. It did not take long, however, before the Georgian advance into South Ossetia was stopped. In a counter-movement, Russian armed forces, covered by air strikes and by elements of its Black Sea fleet, penetrated deep into Georgia, cutting across the country’s main east-west road, reaching the port of Poti and stopping short of Georgia’s capital city, Tbilisi. The confrontation developed into a combined inter-state and intra-state conflict, opposing Georgian and Russian forces at one level of confrontation as well as South Ossetians together with Abkhaz fighters and the Georgians at another. Such a combination of conflicts going on at different levels is particularly prone to violations of International Humanitarian Law and Human Rights Law. This is indeed what happened, and many of these instances were due to the action of irregular armed groups on the South Ossetian side that would not or could not be adequately controlled by regular Russian armed forces.”

COMPLAINTS

12.  The applicant complained under Article 8 of the Convention and Article 1 of Protocol No. 1 thereto that his property had been looted and burnt during the active phase of the hostilities.

13.  The applicant also complained, under Articles 13 and 14 of the Convention, of a lack of effective remedies in respect of his complaints and of discrimination in the exercise of his rights under the Convention.

THE LAW

14.  The Court notes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a Party to the Convention. The Court therefore finds that it has temporal jurisdiction to deal with the applicant’s complaints (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023, and Ukraine and the Netherlands v. Russia (dec.) [GC], nos. 8019/16 and 2 others, § 389, 30 November 2022).

15.  The Court takes note of the death of Mr Giorgi Niniashvili after the introduction of the present application, and of the wish expressed by his son to pursue the application before the Court in his stead (see paragraph 3 above).

16.  The Court accepts that the late applicant’s son has a legitimate interest in pursuing the application (see, inter alia, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references). For practical purposes, reference will still be made to the applicant throughout the present text.

17.  The applicant complained, relying on Articles 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, that his property had been looted and burnt during the active phase of the hostilities, on 9 August 2008. The relevant parts of those provisions read as follows:

Article 8 § 1

“Everyone has the right to respect for his private and family life [and] his home ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... association with a national minority ...”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. ...”

18.  The respondent Government did not make submissions.

19.  The applicant submitted that a campaign involving torching and looting of homes had taken place during the active phase of the hostilities, which had a “sufficient nexus” with the respondent State to establish its jurisdiction under Article 1 of the Convention, despite the “context of chaos” of the armed confrontation, as such acts could not be regarded as military operations. Since the Grand Chamber had found jurisdiction to exist in respect of the detention and treatment of civilians and prisoners of war even during the “five-day war” (see Georgia v. Russia (II) (merits) [GC], no. 38263/08, §§ 238-39 and 268-69, 21 January 2021), the applicant contended that jurisdiction could be found to exist also in respect of the facts of which he complained. The applicant also referred in that connection to the Court’s admissibility decision in the case of Ukraine and the Netherlands v. Russia ((dec.) [GC], nos. 8019/16 and 2 others, § 558, 30 November 2022) to argue that the Georgia v. Russia (II) judgment could not be seen as authority for excluding a specific temporal phase of an international armed conflict from a State’s Article 1 jurisdiction entirely.

20.  In their third-party submissions the Government of Georgia also referred to the Grand Chamber’s Ukraine and the Netherlands v. Russia admissibility decision (cited above, § 558). They argued that the Court’s judgment in the case of Georgia v. Russia (II) (cited above) could not be understood to exclude the respondent Government’s jurisdiction in respect of civilians’ homes which had been looted and destroyed during the active phase of the hostilities.

21.  At the outset, the Court notes that the present case raises an issue under Article 1 of the Convention concerning the respondent State’s jurisdiction in the context of the armed conflict that gave rise to the incident complained of.

22.  The relevant general principles regarding extraterritorial jurisdiction were summarised in Georgia v. Russia (II) (cited above, §§ 116-24), the Court’s admissibility decision in Ukraine and the Netherlands v. Russia ((dec.) [GC], cited above, §§ 552-75), and, subsequently, in the judgment of Ukraine and the Netherlands v. Russia ((merits) [GC], nos. 8019/16 and 3 others, §§ 350-55, 9 July 2025).

23.  In this regard, the Court notes that on 21 January 2021 it delivered the judgment in the case of Georgia v. Russia (II) in which it was required to examine whether the conditions for the exercise of extraterritorial jurisdiction by a State under the Court’s case-law could be regarded as fulfilled in the context of military operations carried out during the “five‑day war” in Georgia of 8-12 August 2008. It found that Russia did not have Article 1 jurisdiction in respect of the military operations which it had conducted during that five-day period. The Court explained:

“126. ... [I]t can be considered from the outset that in the event of military operations – including, for example, armed attacks, bombing or shelling – carried out during an international armed conflict, one cannot generally speak of ‘effective control’ over an area. The very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area. This is also true in the present case, given that the majority of the fighting took place in areas which were previously under Georgian control ...

...

136. ... The obligation which Article 1 imposes on the Contracting States to secure to everyone within their jurisdiction the rights and freedoms guaranteed by the Convention is, as indicated above, closely linked to the notion of ‘control’, whether it be ‘State agent authority and control’ over individuals or ‘effective control’ by a State over a territory.

137. In this connection, the Court attaches decisive weight to the fact that the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos not only means that there is no ‘effective control’ over an area as indicated above (see paragraph 126), but also excludes any form of ‘State agent authority and control’ over individuals.”

24.  Subsequently, in its admissibility decision in Ukraine and the Netherlands v. Russia, referred to by the applicant and the Georgian Government, the Court joined to the merits the objection raised by the respondent Government in respect of the applicant Ukrainian Government’s complaints concerning an administrative practice of bombing and shelling (see Ukraine and the Netherlands v. Russia (dec.) [GC], cited above, § 700). In doing so, it acknowledged the need for a careful examination, with reference to the specific facts of the incidents alleged, of how its findings in the Georgia v. Russia (II) judgment might apply to the allegations before it (Ukraine and the Netherlands v. Russia (dec.) [GC], cited above, §§ 558 and 700).

25.  The Court additionally notes that less than one month after the admissibility hearing in Ukraine and the Netherlands v. Russia, the Russian Federation invaded Ukraine. The full-scale invasion of Ukraine, a High Contracting Party, by Russia, another High Contracting Party, which commenced on 24 February 2022 therefore marked a clear watershed moment in the history of the Council of Europe and the Convention (see Ukraine and the Netherlands v. Russia (merits) [GC], cited above, §§ 343 and 349). In the face of such an unprecedented and flagrant attack on the fundamental values of the Council of Europe and the object and purpose of the Convention, the Court decided that it ought to reflect anew on the exercise of its own jurisdiction under Article 32 to interpret and apply the Convention and its Protocols with a view to contributing to the preservation of peace and security in Europe through the effective protection and enforcement of the human rights of those whom the Convention is intended to protect (ibid.).

26.  In the Ukraine and the Netherlands v. Russia judgment, the Court reiterated that in applying the relevant general principles relating to extraterritorial jurisdiction to the facts in Georgia v. Russia (II), it had attached decisive weight to the reality of the armed confrontation and fighting between enemy military forces seeking to establish control in a context of chaos over the areas concerned in that case, and found that Russia did not have jurisdiction in respect of the military operations in Georgia during the five-day active phase of the hostilities (see Ukraine and the Netherlands v. Russia (merits) [GC], cited above, § 355). In so far as the military attacks in 2014-2022 in Ukraine and the Netherlands v. Russia were concerned (ibid., §§ 360-61), the Court, having examined a substantial body of evidence on the matter, concluded as follows:

“360. The start of the Russian invasion of Ukraine on 24 February 2022 represented the continuation and escalation of the strategy pursued by Russia since 2014. The lengthy preparation phase, involving the prior deployment of troops and military material, and the scale of the invasion are clearly indicative of the degree of planning on the part of the Russian Federation. The move from covert to overt operations brought transparency and clarity as to the views and intentions of the Russian leadership and, in consequence, the underlying, long-term objectives of the Russian operations in Ukraine. These objectives were no less than the destruction of Ukraine as an independent sovereign State through the annexation of Ukrainian territory and the subjugation of the rest of Ukraine to Russian influence and control ... These objectives, as already explained above, are wholly at odds with the Council of Europe peace project based on democracy, human rights and the rule of law ...

361. The reality of the extensive, strategically planned military attacks perpetrated by Russian forces across Ukrainian sovereign territory between 2014 and 2022, carried out with the deliberate intention and indisputable effect of assuming authority and control, falling short of effective control, over areas, infrastructure and people in Ukraine, is wholly at odds with any notion of chaos (compare Georgia v. Russia (II), cited above, §§ 137‑38 ...). The Court concludes that in planning and in executing, directly or via the armed forces of the ‘DPR’ and ‘LPR’, its military attacks across Ukrainian territory with a view to acquiring and retaining effective control over areas of sovereign Ukrainian territory and thereby removing those areas from the effective control of Ukraine, the Russian Federation assumed a degree of responsibility over those individuals affected by its attacks ... In these circumstances, the Russian Federation exercised, through its de jure and de facto armed forces, authority and control over individuals affected by its military attacks up until 16 September 2022. ...”

27.  Against this background, and turning to the circumstances of the present case, the Court reiterates that it has previously addressed, on more than one occasion, the specific circumstances relating to the armed conflict, and the five-day active phase of hostilities, giving rise to the applicant’s complaints, including as regards the difficulty in establishing the relevant circumstances. It has found that the events which took place during the armed confrontation and fighting between enemy military forces seeking to establish control over an area, in a context of chaos, in the period from the night of 7 to 8 August to 12 August 2008, that is during the active phase of the hostilities, did not fall within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention (see Georgia v. Russia (II), cited above, §§ 125-44; see also Jioshvili and Others v. Russia (dec.), nos. 8090/09 and 58 others, § 18, 19 October 2021; see also, mutatis mutandis, Bekoyeva and Others v. Georgia (dec.), nos. 48347/08 and 3 others, §§ 32-40, 5 October 2021; and Shavlokhova and Others v. Georgia (dec.), nos. 45431/08 and 4 others, §§ 27-35, 5 October 2021). By contrast, the Court found that the events which occurred after the cessation of hostilities, including the torching and looting of homes in South Ossetia and in the adjacent “buffer zone”, fell within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention (see Georgia v. Russia (II), cited above, §§ 174-75).

28.  Importantly, the Court’s findings in Georgia v. Russia (II) were made in the light of the particular circumstances of the armed conflict from which the various issues arose, including the allegations of torching and looting. In this regard, the Court assessed the applicant Government’s claim that the burning of property had taken place before and after the cessation of hostilities (see Georgia v. Russia (II), cited above, § 177), and had regard to the relevant evidence (ibid., §§ 182-93). It thus found the evidence consistent as regards the existence of a systematic campaign of burning and looting of homes in Georgian villages in South Ossetia and in the “buffer zone” after the cessation of active hostilities (ibid., § 205) and concluded that there was an administrative practice contrary, inter alia, to Article 8 of the Convention and Article 1 of Protocol No. 1 in that respect (ibid., § 220).

29.  As regards the applicant’s claim that the Court ought to reach similar findings of fact and law with respect to the active phase of the hostilities, the Court observes, without prejudice to possible issues of jurisdiction raised by the present case, that it is placed in a rather difficult situation as regards the establishment of facts given that no domestic investigation or fact-finding was initiated (see Dzhioyeva and Others v. Georgia (dec.), nos. 24964/09 and 2 others, § 27, 20 November 2018, with further references). The evidence regarding the circumstances in which the applicant’s property may have been destroyed is an unverified statement by an individual who, even assuming the statement’s authenticity and the author’s credibility, could not have had a full and unimpeded view of the alleged incident (see paragraph 8 above). Furthermore, the Court cannot overlook the undisputed fact that the applicant’s property is alleged to have been burned on the very day that the village in question became the target of military strikes (see paragraphs 7‑8 above), in a context of chaos, when the territory in question was not under the respondent Government’s control (see Georgia v. Russia (II), cited above, § 137).

30.  In the light of the foregoing, the Court is unable to establish the specific circumstances surrounding the incident on the basis of the limited material before it. Having regard to the varying accounts concerning the role of the Russian military in the alleged incidents of torching and looting of property during the active phase of the hostilities (see paragraph 11 above; see also the relevant evidence summarised in Georgia v. Russia (II), cited above, §§ 180-93), and even supposing that the incident took place, the Court is not in a position to conclude that the alleged burning of the applicant’s property during the active phase of hostilities took place within the respondent State’s jurisdiction or, even assuming that that was the case, that it was attributable to that State so as to engage its responsibility under the Convention and the Additional Protocols.

31.  It follows that the applicant’s complaints under Articles 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 October 2025.

 {signature_p_1}  {signature_p_2}

 Hasan Bakırcı Arnfinn Bårdsen
 Registrar President

[1] The terms “Abkhazia” and “South Ossetia” refer to the regions of Georgia which are currently outside the de facto control of the Georgian Government.