Information Note on the Court’s case-law 255
October 2021
Shavlokhova and Others v. Georgia (dec.) - 45431/08, 50669/08, 55291/08 et al.
Decision 5.10.2021 [Section II]
Article 1
Jurisdiction of States
Jurisdiction of Georgia in South Ossetia during active phase of hostilities: inadmissible
Facts – The applicants are Russian nationals. They complained of violations under various Convention articles in relation to the military actions undertaken by the Georgian armed forces, during the active phase of international armed conflict between Georgia and the Russian Federation in August 2008.
Law – Article 1:
The acts allegedly constitutive of violations of the applicants’ various Convention rights had taken place in and around Tskhinvali, the administrative capital of South Ossetia, on 8 and 9 August 2008. Those two days fell within the five-day international armed conflict that took place between the military forces of Georgia and the Russian Federation mostly in South Ossetia, but also in Abkhazia, as well as in undisputed Georgian territory, between 8 and 12 August 2008 (see Georgia v. Russia (II) [GC]). Consequently, whilst those regions clearly fell within the respondent State’s internationally recognised borders and thus were covered by the notion of its territorial jurisdiction under Article 1, the Court had to answer the question of whether or not there had existed a valid limitation of the normal exercise of that jurisdiction. That major question had to be addressed against the reality of the “acts of war” that had taken place in South Ossetia on the above-mentioned days.
The Court had already comprehensively examined the active phase of the hostilities (from 8 to 12 August 2008) between Georgia and the Russian Federation in Georgia v. Russia (II). It considered that the same considerations, which excluded an “element of proximity” between military actions and the alleged violations of individual victims’ various rights under the Convention, applied equally to the presumption of the “normal exercise” by the respondent State of its territorial jurisdiction over Tskhinvali and other conflict-stricken areas of South Ossetia. Indeed, having regard to the exceptionally large scale nature of the international armed conflict which had taken place between the armed forces of the two States between 8 and 12 August 2008, and the fact that both sides, the Russian and Georgian armed forces, had resorted to massive bombing and shelling of the territories within the same period of time, it would be impossible to track either direct and immediate cause or even sufficiently close proximity between the actions of the Georgian army proper and the effects produced on the applicants. The possible contradictions and inconsistencies between the military actions which had actually occurred in the conflict zone and the effects of those actions on individual victims could be explained by such complexities as the exceptionally large number of alleged victims and contested incidents, the magnitude of the evidence produced, the difficulty in establishing the relevant circumstances and the fact that such situations were predominantly regulated by legal norms other than those of the Convention, notably international humanitarian law and/or the law of armed conflict.
The Court therefore concluded that the events that had unfolded in South Ossetia and other areas of Georgia, including in the so-called “buffer zone”, where the massive fighting between the armed forces of the Russian Federation and the respondent State had taken place between 8 and 12 August 2008, had been “acts of war”, in a context of chaos, effectively preventing the respondent State from exercising its authority over the areas in question for the duration of the armed conflict. In the same way as those “acts of war”, or the “active phase of the hostilities”, had not fallen within the extra-territorial jurisdiction of the Russian Federation, one side of the international armed conflict, the same events could not be considered as attracting the normal exercise of the territorial jurisdiction of Georgia, the other side of the conflict, merely because the territory in which the hostilities had taken place were formally Georgian. Any other conclusion would go against the spirit of the Grand Chamber’s ruling in Georgia v. Russia (II), where the international armed conflict between the two Contracting States, as well as the repercussions of that conflict for the overall jurisdictional test contained in Article 1, had already been comprehensively examined.
Following the logic of the Ilaşcu approach, Georgia’s inability to exercise State authority over the relevant territories during the active phase of the hostilities was to be understood as a limitation of the normal exercise of the respondent State’s territorial jurisdiction over the war-stricken territories. Thus, as matter of principle, the respondent State had still been expected under the Convention to take diplomatic, economic, judicial or other measures. However, it would have been unrealistic to expect the respondent State to have taken any such measures during the active phase of the hostilities, in a context of chaos and confusion. Given the ongoing massive armed conflict, such positive measures of a public order nature had been, on the one hand, impossible to implement and, on the other, of no real value, as they could not have meaningfully contributed to the protection of the applicants’ rights in times of war.
Conclusion: inadmissible (ratione materiae).
(See also Ilaşcu and Others v. Moldova and Russia [GC], 48787/99, 8 July 2004, Legal Summary; Georgia v. Russia (II) ([GC] (merits), 38263/08, 21 January 2021, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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