Communicated on 6 January 2009, 23 March 2010 and 22 May 2018
FIRST SECTION
Application no. 45431/08
Ariana Zakharyevna SHAVLOKHOVA against Georgia
and 8 other applications – see appended list
The facts and complaints in these applications have been summarised in the Court’s Statements of facts and Questions to the parties of 6 January 2009 and 31 March 2010, which are available in HUDOC.
ADDITIONAL QUESTIONS AND REQUESTS FOR FACTUAL INFORMATION TO THE RESPONDENT GOVERNMENT
A. On the exhaustion of domestic remedies
In view of your Government’s allegation that the investigations opened by the Chief Prosecutor’s Office of Georgia into the violations of International Humanitarian Law committed during the conflict in South Ossetia of August 2008 constituted an effective domestic remedy, and bearing in mind that 1,734 cases similar to the present ones are currently pending before the Court, the respondent Government are invited to indicate the progresses reached in the said investigations since August 2008 both in general terms and with specific regard to each of the applicants’ individual cases. This would include indication of:
- the total number of complaints received related to the use of force by the Georgian army;
- the investigative steps taken in these investigations;
- the total number of persons which have been granted victim status;
- the total number of investigation files opened and of incidents being investigated;
- the conclusions reached in respect of the weapons used by the Georgian army in general and at specific locations;
- the number and nature of conducted trials and convictions pronounced by the Georgian courts in connection with the conflict in South Ossetia of August 2008 (apart from the judgment rendered in May 2009 against four Georgian servicemen for looting, referred to in the Georgian Government’s observations in the case of Sipols – no. 8336/09);
- the number and nature of requests for legal assistance addressed to or received from the investigative authorities of the Russian Federation, as well as of the concrete results obtained through these requests.
With reference to the Clause 4(2) of the 23 October 2008 Law on Occupied Territories of Georgia and Articles 322.1 and 344 of the Criminal Code of Georgia, the Government are invited to submit information as to whether or not these provisions put Russian citizens, who have travelled through the border between the so-called Republic of South Ossetia and Russia, in danger of criminal prosecution in Georgia and if so, how many people have been convicted based on these provisions since 9 August 2008.
In relation to this question, the Government is requested to provide information on whether and what kind of support and protection is provided to victims of the conflict residing in Russia, in order to enable them to safely file complaints before the Georgian authorities and participate in the proceedings.
The above information should be based on the relevant domestic documents, a copy of which should be submitted to the Court.
B. On the type of weapons used
1. Having regard to the conclusion reached, in its report of September 2009 (page 340), by the Independent International Fact‑Finding Mission on the Conflict in Georgia established by the Council of the European Union, according to which during the offensive on Tskhinvali of 7-8 August 2008 the shelling in general, and the use of GRAD multiple launch rocket system (MLRS) in particular, amounted to indiscriminate attacks by Georgian forces, does the respondent Government consider that the recourse to this kind of heavy artillery and the way in which it might have been used on Tskhinvali was compatible with the obligations stemming from the Convention and/or from International Humanitarian Law to avoid or minimise, as far as practicable in the circumstances, injuries to civilian population and damages to private property?
2. The respondent Government are invited to produce all available evidence, including documentation from the military archives capable of supporting their allegation that in Tskhinvali and in other populated areas the Georgian army had employed the precise artillery system “DANA” and not, as alleged by the applicants, the GRAD multiple launch rocket system (MLRS) (see the Government’s observations in the following cases: Bekoyeva – no. 48347/08; Tekhova – no. 50669/08; Sipols – no. 8336/09; Tedeyeva – no. 13508/09; Kulumbegov – no. 15213/09; and Bekoyev – no. 20517/09).
3. The respondent Government are invited to produce opinions from independent experts on the precision of the above weapons and of the other weapons allegedly used during the August 2008 conflict (notably, 122mm and 152mm howitzers), indicating their circular error range.
C. On the planning of the military operation
1. Were private premises targets of artillery systems of the Georgian army, especially the GRAD multiple launch rocket system (MLRS)?
2. When was the military operation in South Ossetia launched by the Georgian army? Were there any Georgian soldiers present in the territory of South Ossetia carrying out military tasks prior to the launch of the operation?
3. What were the precise targets, in the city of Tskhinvali, of the rocket launches and what was their distance from civilian premises? The Government are invited to produce all relevant evidence in this respect.
4. How did the Georgian military proceed with identification of movable targets?
5. Given the nature of the GRAD multiple launch rocket system (MLRS), was it possible to direct the launches with a precision sufficient to avoid hitting civilian premises?
6. Was the Georgian military aware of the presence of civilians in Tskhinvali? What precautions were taken by the Georgian army during and prior to the military operation in and around Tskhinvali to prevent civilian injury and/or property damage?
7. Having regard to the description of the material events given in the relevant parts of the report of the Independent International Fact‑Finding Mission, cited above (see, in particular, pages 320-351), do the respondent Government consider that the offensive on Tskhinvali of 7-8 August 2008 was planned and organised in such a way as to avoid or minimise as far as practicable in the circumstances, injuries to civilian population and damages to private property? In particular, in choosing the targets of the shelling on Tskhinvali, did the Georgian military authorities accurately assess the proportionality of the anticipated military gain vis-à-vis the expected loss of civilian life or destruction of civilian property?
The respondent Government are invited to provide all available relevant examples and/or information on this latter point. They are moreover invited to produce all available relevant information, documents or evidence concerning:
- the list of the pre-determined targets of the artillery shots mentioned in the observations of the Georgian Government in the cases of Sipols (no. 8336/09), Tedeyeva (no. 13508/09), Kulumbegov (no. 15213/09) and Bekoyev (no. 20517/09);
- the planning of the military operations of August 2008 in and around Tskhinvali.
8. The respondent Government are moreover invited to produce:
- for the cases of Shavlokhova (no. 45431/08) and Kulumbegov (no. 15213/09), an indication of the precise location of the applicants’ houses and of their proximity to military targets at the time of the shooting and/or bombing complained of by the applicants;
- for the case of Alborova (no. 55291/08), documentation certifying the movements of the Georgian troops in and around the village of Sarabuk on 8 August 2008, with the indication of the military targets aimed at in that location;
- for the case of Bekoyeva (no. 48347/08), all relevant evidence indicating where were the Georgian troops located at the time of the applicant’s daughter’s killing;
- for the case Tekhova (no. 50669/08), evidence showing that at the relevant time School no. 5 had been used for military purposes by the South Ossetian militia, that the applicant’s building in Gapez (or “Gafez”) street had been used for combat purposes by the military unit composed of approximately 100 men called “Gafez company”, and that some Russian armoured vehicles were concentrated and firing in the Southern direction at a crossroad located at approximately 200 meters from the applicant’s building;
- for the case of Sipols (no. 8336/09), evidence showing that the applicant’s relatives’ house was located in the range of about 100-150 meters from School no. 6, and that at the relevant time the said school had been used by the Ossetian combatants as an “improvised military basis”;
- for the case of Tedeyeva (no. 13508/09), evidence showing the precise location of the applicant’s flat and capable of corroborating the Georgian Government’s allegation that the applicant’s husband might have lost his civilian status given his presence in the close proximity of members of the Ossetian militia;
- for the case of Bekoyev (no. 20517/09), evidence showing that the South Ossetian militia had its headquarters at the entrance of Tskhinvali, in Shanghai District, and that the so-called “Shanghai company” of the militia included 60 soldiers on a regular basis, plus 250-300 others in case of mobilization and that they had several armaments;
- for the case of Shmyganovskaya (no. 34945/09), evidence showing that the forces located in the base of Verkhy Gorodok had shelled the Georgian Central Front Forces moving through the village of Zemo Nikozi and approaching the entrance of Tskhinvali. Moreover, the respondent Government are invited to indicate at which moment the Georgian army decided that, by reason of their involvement in the hostilities, the Russian peacekeepers had lost their international protection.
APPENDIX
45431/08
Shavlokhova v. Georgia
48347/08
Bekoyeva v. Georgia
50669/08
Tekhova v. Georgia
55291/08
Alborova v. Georgia
8336/09
Sipols v. Georgia
13508/09
Tedeyeva v. Georgia
15213/09
Kulumbegov v. Georgia
20517/09
Bekoyev v. Georgia
34945/09
Shmyganovskaya v. Georgia
Full & Egal Universal Law Academy