Communicated on 13 July 2016
FIFTH SECTION
Application no. 48656/06
Galina Alekseevna TAGANOVA and Tariel Apolonovich ESARTIA
against Russia
lodged on 11 November 2006
STATEMENT OF FACTS
1. The first applicant, Mrs Galina Alekseevna Taganova, is a Russian national of Russian ethnic origin, who was born in 1943 and lives in Gagra, Autonomous Republic of Abkhazia, Georgia (“the Abkhazian AR” or “Abkhazia”). The second applicant, Mr Tariel Apolonovich Esartia, having been a Soviet national of Georgian ethnicity prior to the war of secession of the Abkhazian AR, took Russian nationality in 2000. He died on 29 May 2012. His wife, the first applicant, informed the Court that she wanted to pursue the proceedings also on his behalf. She is represented before the Court by Mr P. Beria and Ms N. Katsitadze, lawyers practising in Tbilisi.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. After the Second World War, the second applicant’s parents were sent by the Soviet State to Abkhazia, where the population was suffering from an outbreak of malaria. His father was ethnic Georgian and his mother Russian. They were doctors and opened a medical post in the Gagra district. In the same district, they built a house on the Sukhumi Road (no. 185) in the village of Kolkhida (currently Psakhara). According to an extract from the land register, included in the case file and dated 8 December 1989, the second applicant was owner of half of this house, and his father owned the other half.
4. From 1973 the second applicant held the post of head doctor in hospitals situated in the Abkhazian AR. With his first wife and their three sons he initially lived in the above-mentioned house and subsequently in a new house (no. 185a) that they had constructed alongside it, on the same land. In 1992, following the outbreak of the war of secession in the Abkhazian AR, the second applicant sent his sons outside the conflict zone. His parents also fled the region and settled in Poti.
5. In 1992 the second applicant married the first applicant who worked as a nurse at the Gagra Hospital; their marriage was registered on 15 January 1998.
6. During the armed conflict in 1992-1993 the second applicant was reassigned to the Gagra Hospital as head of the emergency department, where he looked after the injured. He worked there despite the fact that Chechen combatants who were involved in the war took him out to the courtyard on several occasions with the intention of shooting him. Unlike several hundred thousand residents of Georgian ethnic origin in the Abkhazian AR, the applicants refused to leave the region of their birth and kept an eye on the family possessions. In 1992, both of the second applicant’s houses were looted by Abkhaz and Chechen combatants and the new house was burnt down. The applicants then lived in the old house on the same land. Later they were evicted by Abkhazian combatants and had to live in the house of the second applicant’s son located at 2 Podgornaya Street in Gagra. The vacated house at 185 Sukhumi Road was allocated to a certain N.B., an ethnic Abkhazian. According to a certificate dated 4 August 2003, sent by the directorate of municipal affairs to the Gagra court of first instance, the house and the adjoining land were at the disposal of the village administration.
7. On an undetermined date in 1993, having received a telegram announcing the death of his mother, the second applicant was obliged to leave Abkhazia to attend the funeral in another region of Georgia. A permit was issued for this purpose by the Abkhaz General Headquarters. However he was then not permitted to return to Abkhazia, contrary to the terms of the permit.
8. During his absence, on 22 July 1994, the first applicant received a visit at her work from Abkhazian combatants who asked her to leave the house of the second applicant’s son. She refused, complaining to no avail to the prosecutor’s office. On 2 August 1994 the first applicant received a visit from the representatives of the Gagra housing department, ordering her to leave the house. She was threatened with death and given until 6 p.m. on that day to comply.
9. On 3 August 1994 the first applicant filed a complaint with the department of the Interior Ministry in Gagra, setting out the above events and indicating the names of the individuals who had threatened her with death. No action was taken on this complaint. She was then forced to take refuge in the hospital and lived there.
10. Having finally obtained authorisation from the security forces to return to Abkhazia, the second applicant arrived in Gagra and learned that he could no longer live in his son’s house, which had been transferred to a person of Abkhaz origin. He also learned that he had been dismissed on 22 June 1993 following a decision by the hospital director, who did not have that power. That decision was part of a general wave of dismissals of medical staff of Georgian origin.
11. The applicants contacted the Gagra City administration about their house at 185 Sukhumi Road in Kolkhida. The administration replied that, since the house was not occupied, it was lawful for them to return. However, once the applicants had settled in the house, individuals of Abkhaz origin, claiming to be the new owners, came to evict them. The local administration and the police refused to intervene and advised the applicants to apply to the courts.
12. Since 1994 the applicants have submitted their complaints to the Gagra court of first instance (“the Gagra court”) and various Abkhaz administrative bodies, requesting restitution of the house and the second applicant’s reinstatement in post and asserting that they were victims of Abkhazian nationalism. The complaints were not dealt with and the applicants were referred back and forth between the courts and the administrative authorities.
13. Unemployed and faced with a denial of justice, on 29 October 2003 the second applicant contacted the head doctor at the Gagra Hospital, asking that he be taken on as a simple worker. That request was refused.
14. According to the applicants, following their numerous complaints to various authorities, the Gagra court finally registered their complaint.
15. On 26 September 2003 the first applicant received a telephone call from the court registry assistant, asking her to come and collect a copy of an order that the assistant was typing up on a typewriter. This order, issued in the name of the Abkhazian Republic on 18 July 2003, stated that the Gagra court had ruled as a single-judge formation on the admissibility of the complaint “lodged against the Psakhara local administration with a view to recovery of the right to housing”. On the basis of Article 134 of the Code of Civil Procedure of the Abkhazian Republic, the court concluded that the action was inadmissible, on the ground that the applicants had not indicated the name and address of the defendant party.
16. An ordinary appeal lay against this order with the Abkhazian Supreme Court within 14 days. As this deadline had expired when the order was notified to the applicants, they filed an application for supervisory review with the Abkhazian Supreme Court. On 1 December 2003 the acting President of that court issued an objection under the supervisory review procedure (“supervisory protest”, which had been abolished in Georgian territory following the entry into force of the new Code of Civil Procedure on 15 May 1999). This document showed that, before issuing its order of 18 July 2003, the Gagra court had postponed the hearing on ten occasions on account of “the parties’ absence”, although the case had in fact never been prepared for a hearing and the parties had never been summoned. The President indicated that, given the applicants’ ownership rights over the disputed properties, the Gagra court ought to have examined their complaint in contentious proceedings, by summoning to the hearing as defending parties the individuals who held the properties, alongside the Psakhara administration.
17. On 4 December 2003, ruling on the application for supervisory review in the applicants’ presence, the Abkhazian Supreme Court took note, in the light of the case file, of the applicants’ right of ownership to the disputed properties and observed that the local administration had authorised their eviction. Apart from the grounds mentioned by the president in his protest, the court noted that the applicants had instituted proceedings against the Psakhara administration, and found that it was not at all clear what other information the Gagra court had criticised them for failing to provide. The court indicated that if, during its examination of the merits of the case, the participation of other persons proved necessary in determining the applicants’ right to the disputed properties, the Gagra court should summon those persons to the hearing as defending parties on its own motion (Article 26 of the Abkhazian Code of Civil Procedure). For those reasons, quashing the order of 18 July 2003, the Abkhazian Supreme Court remitted the case to the Gagra court for examination on the merits.
18. The case was assigned to judge B., who warned the applicants that, although he had a Georgian surname, he was Abkhazian and could do nothing for them. On several occasions he asked the applicants orally to divide their complaint into several different actions and to pay the State tax, amounting to 3,500 Russian roubles (RUR), for each of those actions (the Georgian currency being the lari). As the first applicant’s salary was RUR 500 and the second applicant had no income, the applicants replied that they were unable to meet those requirements. They also complained about the judge’s lack of impartiality.
19. Ruling by an order of 9 February 2004, the judge decided not to examine the applicants’ case. The text of the order indicates that the judge ruled on the applicants’ application as it was referred for examination on the merits by the Abkhazian Supreme Court. However, the judge criticised the applicants for the fact that the case file contained other complaints, lodged against other individuals and against the Ministry of Health. He stated that “in spite of several oral warnings, the applicants did not lodge their various complaints separately, and did not pay the State tax for three of them, the action alleging unlawful dismissal not being subject to payment of this tax.” The judge concluded that the application had been lodged in violation of Article 137 of the Abkhazian Code of Civil Procedure and that no further action should be taken on it. The applicants were given 15 days to remedy the flaws. An ordinary appeal and a request for supervisory review were open to be filed against this order with the Abkhazian Supreme Court within 14 days.
20. On 12 February 2004 the applicants contacted the Abkhazian Ministry of Justice and the Abkhazian Supreme Court, criticising the amount of the State tax which they had been asked to pay for each part of their complaint. They emphasised that the first applicant received only RUR 500 per month and that the second applicant was unemployed. The applicants asked for a valid explanation as to why they had been evicted from their own house, and for the fact that their complaints had not been examined for ten years.
21. On 25 March 2004 they turned to the Public Defender of the Abkhazian AR, charged with protecting the rights of internally displaced persons.
22. On 13 May 2004 the second applicant again submitted a complaint to the Gagra court, alleging that his dismissal had been unlawful and calling for reinstatement in his post and compensation for the pecuniary damage sustained since 1992. Drawing the court’s attention to the fact that he was unemployed and had no income, the applicant asked that the State tax be waived in his case. On 5 June 2004 the second applicant contacted the Abkhazian President and the mayor of the Gagra municipality, complaining that his house had been put up for sale by the municipality and requesting its restitution.
23. On 17 May 2004 the first applicant contacted the Ministry of Justice and the Abkhazian Supreme Court, complaining that she had gone to see Judge B. to discover why her action had not been examined, and that he had chased her out of his office, shouting and throwing documents in the air.
24. On 26 October 2004 the president of the Gagra court replied to a request by the Ministry of Justice, arguing that it had been decided on 9 February 2004 not to examine the applicants’ complaint, in accordance with the law, and that they were legally entitled to resubmit their complaint to the Gagra court, this time complying with the conditions set out in Articles 134 and 135 of the Abkhazian Code of Civil Procedure.
25. On 27 October 2004 the applicants submitted a complaint to the head of the Gagra municipal administration and to the Gagra court, emphasising the denial of justice to which they considered they had been subjected, and requesting that the Abkhazian authorities cease from making a mockery of them on account of their ethnic origins.
26. In addition to the steps set out above, in 2004 the applicants contacted the President of the Russian Federation, the Russian Ministry of Foreign Affairs and the General Procurator’s Office of the Russian Federation, to no avail.
27. On 19 May 2005 the second applicant contacted the Abkhazian Supreme Court, criticising the failure to examine his complaint and reiterating his grievances about his unlawful dismissal and the hospital’s failure to pay the sums due to him.
28. In August 2006, the applicants were given back the house situated at 180 Sukhumi Road, allegedly as a result of termination of the lease agreement concluded in 1996 with N.B. According to the applicant, the house was completely robbed off and unsuitable for living.
29. In their letter of 19 April 2010 the applicants informed the Court that they had still not received any response to their numerous complaints addressed to the authorities of the Russian Federation and the Abkhazian AR.
B. Submissions of the applicants concerning the responsibility of Russia
1. Historical facts relating to the war of secession and the consequences thereof
30. On 9 March 1990, the Supreme Soviet of the Georgian Soviet Socialist Republic (“SSR”) adopted a decision condemning the occupation and the factual annexation of Georgia made by the Soviet Russia in February 1921. The 1921-1922 agreements creating the USSR were declared illegal and annulled.
31. As a reaction, on 25 August 1990, the Autonomous Soviet Republic of Abkhazia in the Georgian SSR declared independence on the basis of a decision taken by this autonomous republic’s Supreme Soviet. It adopted the title “SSR of Abkhazia”. That decision was annulled on 26 August 1990 by the Supreme Soviet of the Georgian SSR, the multipartite legislative body which had just been elected by direct universal suffrage.
32. On 26 February 1991 the Supreme Council of Georgia boycotted the referendum scheduled by Moscow for 17 March 1991, geared to securing the opinion of the USSR population on the retention of the USSR. On 28 February 1991 the Supreme Soviet of the SSR of Abkhazia decided that Abkhazia would participate in the referendum.
33. On 22 March 1991 the Supreme Council of Georgia annulled the results of the referendum held in the AR of Abkhazia.
34. On 31 March 1991 the referendum held in Georgia confirmed its population’s desire to break away from the USSR. On 9 April 1991 the Supreme Council of Georgia adopted the Georgian Act of Independence.
35. On 27 September 1991 the Abkhaz Supreme Soviet declared that the Soviet commercial and industrial enterprises and organisations located in the territory of the AR of Abkhazia now belonged to the independent Abkhaz State. That decision was annulled on 24 October 1991 by the Georgian President.
36. On 29 December 1991 the Abkhaz Supreme Soviet decided to set up a “provisional council” responsible for coordinating the action of the Soviet armed forces and police services which had not yet withdrawn from the territory of the AR of Abkhazia. Various Soviet weapons and munitions were accordingly seized by the Abkhaz authorities with the agreement of the Russian federal authorities, according to the applicants.
37. On 23 July 1992 the Abkhaz Supreme Soviet decided to change the name and coat of arms of “the SSR of Abkhazia”, which would henceforth be known as “the Republic of Abkhazia”. On the same day the Abkhaz Supreme Soviet repealed the 1978 Constitution of the AR of Abkhazia and restored the 1925 Constitution of the SSR of Abkhazia. According to the applicants, this 1925 Constitution had never previously been in force.
38. On 25 July 1992 the Supreme Council of Georgia annulled all these decisions.
39. On 31 July 1992 Georgia, including the AR of Abkhazia, became a member of the UN.
40. Between February and August 1992, all transport communications were halted all over the territory of the AR of Abkhazia because of attacks carried out by Abkhaz separatist forces, making Georgia face an economic disaster. Therefore, on 10 August 1992 the Georgian State Council (the legislature) declared a state of emergency along the railways and roads in the AR of Abkhazia, which had been targeted by armed attacks and looting. The armed forces of the Ministries of Defence and the Interior were tasked with implementing the requisite security measures along these routes. They were also ordered to prevent further armed attacks and to restore law and order.
41. On 14 August 1992 the aforementioned central armed forces were sent into the AR of Abkhazia and positioned along the said routes (with the prior agreement of the Abkhaz authorities, according to the applicants). The illegal Abkhaz armed forces opened fire on the armed forces dispatched by the central State when they moved from Gali to Ochamchire. On the same day the Presidium of the Abkhaz Supreme Soviet declared war on the Georgian occupying forces.
42. On 3 September 1992 the President of the Russian Federation, the President of the Georgian State Council (who was also head of State prior to the adoption of the 1995 Constitution), the Abkhaz authorities and the leaders of the Chechen Republic and other republics and peoples in the Northern Caucasus region of the Russian Federation met in Moscow. They signed agreements recognising the territorial integrity of Georgia and imposing a ceasefire on the warring parties. The parties agreed that the Parliament of the AR of Abkhazia would resume its sessions. The Russian Federation undertook to no longer authorise the mobilisation and recruitment of mercenaries in its territory and their transportation across the border.
43. By a decree of 25 September 1992 the Council of the Russian Federation recommended to the President and the Government to use the Russian contingent as peace-keeping forces to obtain peace and security in the demilitarized conflict zone.
44. From 1993 onwards the Georgian Government issued statements to the effect that efforts to settle the conflict and return displaced persons to the AR of Abkhazia were being hampered by the presence of Russian armed forces in the region.
45. On 25 February 1993 the Georgian Parliament adopted a resolution demanding the withdrawal from the territory of the AR of Abkhazia of the Russian armed forces which were actively assisting the illegal Abkhaz armed groups.
46. In a resolution of 1 April 1993 the Georgian Parliament contacted the UN, CSCE and other international organisations to request their intervention in order to protect the lives of the Georgian ethnic population in the AR of Abkhazia and put an end to the ethnic cleansing in this region, which was under the control of the separatists, assisted by the Russian armed forces.
47. On 4 April 1993 the Georgian Parliament adopted another resolution stating that the Russian armed forces, having helped the separatists to take control of the AR of Abkhazia, were facilitating the ethnic cleansing of persons of Georgian ethnic origin and of ethnic origins other than Abkhaz in that region.
48. In a resolution adopted on 27 April 1993 the Georgian Parliament demanded the withdrawal of the Russian armed forces from the conflict zone, contending that the Russian Federation was attempting to annex this stretch of Georgian territory. It emphasised that Russia had flouted the Moscow Agreements of 3 September 1992 and that acts of ethnic cleansing had been committed against the Georgian population in the presence of Russian troops. The Georgian Parliament declared that should its demand for the withdrawal of the Russian troops from the region be ignored, the AR of Abkhazia would be considered to be under Russian occupation.
49. In a resolution adopted on 24 June 1993 the Georgian Parliament appealed to the UN and the Russian Federation accusing the latter of playing an active role in the war against Georgia. It called on Russia to honour its international legal obligations.
50. In the summer of 1993 the UN Secretary General appointed a special representative to oversee the negotiations on a political settlement of the Abkhaz conflict and to prepare proposals for a peace-keeping operation in the zone.
51. On 27 July 1993 a second ceasefire agreement was signed. The Russian Federation stood surety for its implementation. The parties undertook to demilitarise the zone.
52. In August 1993, in the light of Russia’s guarantee on the implementation of the ceasefire, instead of sending in a peace-keeping force, the UN dispatched the United Nations Observer Mission in Georgia (“UNOMIG”) to Abkhazia in order to verify compliance with the 27 July 1993 agreements and investigate reports of violations of the ceasefire (Resolution 858).
53. On 16 September 1993 the ceasefire was violated by the Abkhaz side. Assisted by the Russian armed forces and various groups made up of Cossacks and different confederated peoples of the Northern Caucasus, including Chechens, the Abkhaz armed forces attacked the cities of Sukhumi and Ochamchire. Some 300,000 persons belonging to non-Abkhaz ethnic groups were forced to flee Abkhazia and, travelling along the dangerous roads through the Greater Caucasus, to seek refuge in various other Georgian regions. During this episode the Abkhaz special forces allegedly massacred thousands of civilians.
54. In his report of 7 October 1993 the UN Secretary General noted that the Abkhaz side had broken the ceasefire and, assisted by the armed forces from outside Georgia, had stormed the city of Sukhumi. The same document noted that thousands of civilians had been killed and that acts of ethnic cleansing had been reported. The armed fighting had been continuing despite the Security Council’s demand for a ceasefire (Resolution 876) and its condemnation of attempts to change the demographic composition of Abkhazia (Resolution 896).
55. On 4 April 1994 the Georgian and Abkhaz authorities, the Russian Federation and the UN High Commissioner for Refugees (“UNHCR”) signed an agreement guaranteeing the return of displaced persons to Abkhazia.
56. In 1994 Georgia joined the Commonwealth of Independent States (“CIS”) comprising all former members of the USSR apart from the three Baltic States. A protocol on peacekeeping operations was adopted by the CIS Heads of State on 15 April 1994.
57. In the so-called Moscow agreement signed on 14 May 1994, which was recognised in the UN Security Council Resolution 934, the parties to the conflict agreed to a cease fire and the creation of a security zone clear of heavy weapons separating the parties. A peacekeeping force of the CIS was to monitor compliance of the agreement, with the assistance of the UNOMIG; the mandate had been regularly extended since. The so-called “Group of Friends of Georgia”, with representatives from France, the UK, the USA, Germany and Russia was also set up to aid the UN Secretary General in the peace process.
58. On 22 August 1994 the Council of CIS Heads of State adopted a protocol for the implementation of a collective peace-keeping operation in Abkhazia. The main aims pursued by these peace-keeping forces (“PKFs”) , comprising between 2,000 and 3,000 soldiers each, were to prevent the resumption of hostilities, preserve law and order, defend human rights and ensure the return of displaced persons to Abkhazia.
59. In summer 1994 the Russian armed forces were deployed as PKFs in Abkhazia under the auspices of the CIS, as mentioned above.
60. Meeting in Almaty on 10 February 1995, the CIS Heads of State signed a memorandum setting out a mutual undertaking not to support separatist regimes in their respective territories and not to establish political, economic or other relations with such regimes.
61. On 17 April 1996 the Georgian Parliament adopted a resolution noting that the Russian PKFs were incapable of guaranteeing the requisite security conditions for returning displaced persons to Abkhazia. The ethnic Georgian population described the events in Abkhazia as genocide and as an assault on the sovereignty and territorial integrity of the Georgian State by the separatists, aided by a number of Russian reactionary and anti-democratic forces. The Georgian Parliament stated that it was a case not of an Abkhaz‑Georgian ethnic conflict but of a political conflict unfolding in Abkhazia.
62. The same resolution declared the Abkhaz separatist institutions, the Constitution and the regime’s legislative and regulatory acts contrary to Georgian legislation and devoid of legal force.
63. The mandates of the CIS PKFs and UNOMIG have been extended many times over.
64. In a declaration adopted at the OSCE Summit in Lisbon on 2 and 3 December 1996 the member States condemned the ethnic cleansing which had taken place in Abkhazia against the Georgian population, involving the mass destruction of houses in order to evict from the region the ethnic Georgians who had constituted the majority of the population of Abkhazia.
65. On 30 May 1997 the Georgian Parliament adopted Resolution no. 738 stating that the only role played by the Russian PKFs was to guard the border between Abkhazia and the rest of Georgia, thus helping ipso facto to strengthen the separatist regime and reinforce the Abkhaz authorities’ refusal to engage in bona fide negotiations.
66. In its Resolution of 30 July 1998 (no. 1187) the Security Council condemned the deliberate destruction of houses by the Abkhaz side with a view to expelling their inhabitants from the territory, and declared unacceptable the change in the demographic make-up of Abkhazia in the wake of the conflict.
67. On 30 July 1999 the Security Council considered the elections held in Abkhazia as being unacceptable and illegal.
68. On 12 October 1999 “the Republic of Abkhazia” officially declared independence.
69. At the OSCE summit in Istanbul on 17 November 1999 Member States reiterated their condemnation of the ethnic cleansing and of the violent acts of May 1998 in the Gali region. The Russian Federation committed itself to withdrawing its military base at Gudauta, Abkhazia by 1 July 2001.
70. On 5 December 2000 Russia introduced a visa system for the whole territory of Georgia apart from Abkhazia and the Tskhinvali region.
71. On 18 January 2001 the European Parliament called on Russia to reconsider that system, pointing out that such decisions could be seen as constituting de facto annexation of the Georgian territories in question. It also invited the Russian Government to honour the commitment entered into at the Istanbul Summit concerning the withdrawal of its military base.
72. In March 2001, the Georgian Ministry of Foreign Affairs stated that the fact that the Russian Government had created an association for social and economic cooperation between States of Northern Caucasus, Abkhazia and South Ossetia being full members thereof, breached the agreement signed by the CIS Heads of State on 19 January 1996[1].
73. On 24 April 2001 the Abkhaz and Georgian sides held negotiations in the sole presence of the Special Representative of the UN Secretary General. The aim was to prepare a draft document apportioning constitutional powers between Tbilisi and Sukhumi, thus defining the political status of Abkhazia within the Georgian State.
74. In May 2001, in the presence of the same Special Representative and representatives of the Russian Federation, the Abkhaz side declared that it was impossible to continue the negotiations as the issue of Abkhazia’s political status had already been decided under its 1999 Act of Independence.
75. At its third meeting on 18-19 June 2001 in Brussels, the EU-Georgia Parliamentary Cooperation Committee adopted its Declarations and Recommendations, according to which the exemption from the Russian visa regime of residents who are Georgian citizens in the secessionist Georgian regions of Tskhinvali/South Ossetia and Abkhazia is a challenge to the territorial integrity and sovereignty of Georgia, which could be considered as a de facto annexation of those regions, annexation confirmed by the circulation of the Russian rouble as the official currency for exchange in the secessionist regions.
76. In a resolution adopted on 18 July 2001 the Georgian Parliament regretted Russia’s failure to honour the commitments entered into at the Istanbul Summit. The decision to suspend the closing of the military base in Gudauta was described as infringing the sovereignty of the Georgian State, supporting the Abkhaz separatist regime and legalising the Russian annexation of this Georgian territory following the ethnic cleansing from 1992 to 1994. Furthermore, the Georgian Parliament declared that this breach of obligations jeopardised the generally recognised principles of international law.
77. On 27 September 2001 the Georgian Parliament denounced the holding of parliamentary elections in Abkhazia, at a time when two-thirds of Abkhazia’s population were living outside the region and could not participate.
78. In its Resolution no. 1094 of 11 October 2001 the Georgian Parliament called for the withdrawal of the Russian PKFs from Abkhazia. It affirmed that these forces were incapable of ensuring the security of the non-Abkhaz population and that despite their arrival in the zone in July 1994 the ethnic cleansing had continued. Moreover, the PKFs were in no way promoting the peaceful settlement of the conflict; on the contrary, they were sometimes actually committing crimes against the civilian population. Abkhazia had become a crime zone with rampant trafficking in drugs and arms. The Georgian Parliament considered that the Russian Federation was playing a negative role by hampering the negotiations between the Georgian and Abkhaz sides, which were organised with the assistance of the Group of Friends of Georgia.
79. The Georgian Government never in fact passed on the Georgian Parliament’s repeated demands, and the President agreed to all the successive extensions of the PKFs’ mandate.
80. In December 2001 the Abkhaz and Georgian sides adopted a document on “basic principles for apportioning powers between Tbilisi and Sukhumi”.
81. In its Resolution no. 1331 of 20 March 2002 the Georgian Parliament noted that the Abkhaz authorities were illegally transferring the property of displaced persons, particularly ethnic Georgians, and protested against such acts. It declared unlawful any contract concluded with the Abkhaz authorities after 14 August 1992 transferring property belonging to displaced persons. It requested that the UN, OSCE and other international organisations should record all cases of such interference with private property and propose solutions. It invited the Government to cooperate with the UN, OSCE, the Council of Europe and other international organisations in taking the requisite action to protect the property rights of displaced persons in Abkhazia.
82. On the same day the Georgian Parliament adopted a declaration (no. 1332) protesting against “the intensive anti-Georgian propaganda from the Russian Federation” and condemning the current turn taken by relations between two neighbouring countries. In particular, it condemned the 6 March 2002 declaration of the Russian Duma on “the situation in Georgia: the US military presence in Georgian territory”[2], and affirmed that such declarations constituted open threats to Georgia’s territorial integrity, illustrated the support provided to the separatist regimes in Georgian territory and foreshadowed an attack against Georgia.
83. On 12 April 2002 the Georgian Parliament appealed to the UN, OSCE, the Council of Europe, the EU and the CIS, denouncing the military operations conducted by the Russian Federation in the Kodori valley in Abkhazia and repeating that Georgia itself had demilitarised that zone in line with the international recommendations.
84. On 18 July 2002 the Georgian Parliament deplored the persistent human rights violations in Abkhazia based on ethnicity, reiterated that the Russian armed forces had to withdraw from the region and condemned the transmission of heavy munitions from the Russian Federation to Abkhazia. The Georgian Parliament considered that the fact of exempting only the separatist regions from the visa requirement, while upholding it for all other parts of Georgia, and the introduction of the Russian rouble in Abkhazia violated the principles of international law.
85. In communiqués issued on 19 August and 18 September 2002 the Georgian Ministry of Foreign Affairs (“MFA”) denounced the discriminatory visa requirements introduced by the Russian Federation vis‑à‑vis Georgia, and condemned the mass granting by that State of Russian nationality to the inhabitants of Abkhazia.
86. On 26 August 2002 the Georgian Parliament denounced the bombing of Georgian territory by the Russian air force and demanded that the President initiate the procedure for Georgia’s withdrawal from the CIS. It transmitted to OSCE a declaration to the effect that the lack of visa requirements in Abkhazia constituted de facto annexation of this territory by the Russian Federation.
87. On 25 December 2002 the railway connection was restored between the cities of Sukhumi, the capital of Abkhazia, and Sochi in the Russian Federation.
88. On 13 January 2003, the UN Secretary General reported that, due to the refusal on the Abkhaz side, it was impossible to discuss the 2001 document on distribution of competencies (see paragraph 80 above).
89. In January 2003 the Georgian side expressed indignation at the close relations established between Russia and Abkhazia and at the lack of progress on the settlement of the conflict.
90. In April and May 2003 the Russian President’s representatives visited Tbilisi and Sukhumi.
91. Meeting in September 2003, the CIS Heads of State reiterated their determination expressed in 1995 and 1996 and adopted a fresh declaration undertaking not to establish relations with the Abkhaz separatist regime, including economic links, without the agreement of the Georgian Government.
92. On 8 October 2003 the Special Representative of the UN Secretary General convened an extraordinary meeting on security issues in the region. At this meeting the Georgian authorities once again voiced their indignation at the mass granting by Russia of Russian nationality to the inhabitants of Abkhazia, the reopening of road and rail links with the Russian Federation and the conclusion of cooperation agreements between Abkhazia and various Russian administrative regions.
93. By a resolution of 18 July 2006 the Georgian Parliament called for the withdrawal of the Russian military forces from the whole territory of Georgia and for putting an end to the peacekeeping mission in Abkhazia and South Ossetia. The applicants claim that according to the resolution, instead of a demilitarization of the conflict zones, more military equipment are mobilized, number of terrorist acts increases, mass violations of human rights occur and the ethnic cleansing of Georgian population remains unpunished.
94. On 6 March 2008 the Russian party unilaterally lifted economic, financial and transport sanctions imposed on Abkhazia by the decision of the Council of CIS Heads in 1996, which was denounced by the Parliament and the Ministry of Foreign Affairs of Georgia, as well as by the OSCE, EU, NATO and Council of Europe representatives.
95. In a resolution of 15 April 2008 (No. 1808) the UN Security Council inter alia called on both the Georgian and Abkhaz sides to “finalize without delay” the document on the return of refugees and internally displaced persons. It reiterated as “fundamentally important” the right of return for all the refugees and internally displaced persons to Abkhazia, Georgia, and required that individual property rights had not been affected by the fact that owners had had to flee during the conflict.
96. By a decree of 16 April 2008 the Russian President V. Putin instructed the Government to intensify direct cooperation and to establish official relations with the de facto Abkhazian authorities and announced that Russia would recognize the legality of those authorities’ acts and decisions. According to the Government of Georgia, which urged for a reversal of the decree, such act directly undermined the territorial integrity of Georgia and violated basic norms of international law.
97. On 20 April 2008 a Russian MIG-29 which had taken off from Gudauta shot down a Georgian unmanned aerial vehicle, fact which was strongly condemned by the Georgian Government.
98. On 29 April 2008, the Russian authorities decided to increase the number of their peacekeepers in Abkhazia.
99. On 30 April 2008, the OSCE Chairman-in-office expressed his concerns about the decision of the Russian Federation to establish official ties with Georgia’s breakaway regions, the shooting down of a Georgian unmanned aerial vehicle over Abkhazia on 20 April and the recent military build-up, which have according to him considerably increased tension in the region.
2. Applicants’ submissions regarding Russian assistance to the Abkhaz separatists
100. The applicants cited many examples to illustrate the support which the Russian Federation provided, contrary to the principle of non-intervention, during and after the war of secession to the Abkhaz authorities (direct military and political participation, economic cooperation, logistical assistance, mobilisation of mercenaries, recruitment of combatants from Northern Caucasus, etc.). Without such support, Abkhaz separatists would be unable to accomplish any military operations. According to the applicants, the Russian Federation also failed to take measures preventing illegal crossing of Georgian-Russian borders by Cossacks and other North Caucasus volunteers and mercenaries who fought against territorial integrity of the Georgian State.
101. In connection with the beginning of the war, they stated that on the date of commencement of the armed conflict, namely 14 August 1992, the 5482nd Russian regiment stationed in Abkhazia had sent the separatists a consignment of 984 machine guns, 267 handguns, 18 submachine guns, over 500 grenades, over 500,000 cartridges, military vehicles, uniforms and food supplies. Military equipment was provided in particular through the military bases located on the Abkhaz territory, in Gudauta and Eshera. A Russian tanker had delivered 420 tonnes of diesel and petrol to the separatists in Gudauta. The applicants also allege that on 2-3 October 1992 Russian and North Caucasian troops joined the Abkhaz separatists in order to attack the town of Gagra, using the newest military techniques and equipment.
102. According to the applicants, the Russian 345th Airborne Regiment, the 643rd Air Attack Regiment and the 5482nd Military Regiment, as well Russian naval and air resources fought on the side of the separatists. Military plans were approved by the General Headquarter in Moscow.
3. Responsibility of the Russian Federation, according to the applicants
103. According to the applicants, the Russian Federation only officially declares that it is acting as a mediator and facilitator in the Abkhaz conflict. The reality is that Russia is an interested party to the conflict, which was recognized at the international level (see paragraph 71 above) and that it provides active military, economic and political support to the existing separatist regime, in violation of its international undertakings (Moscow agreement of 3 September 1992, the CIS agreements, etc.). Referring to the Court’s line of reasoning in Loizidou v. Turkey (18 December 1996, § 52, Reports of Judgments and Decisions 1996‑VI) and Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001‑IV), the applicants are convinced that the Russian Federation has been exercising an overall and effective control over Abkhazia since 1992 and that it is responsible for violations of the Convention occurring on that territory, including those of their rights.
104. As to the military support, it is realised through the peacekeeping forces as well as through the Russian military base in Gudauta. The PKFs consist of three thousand Russian soldiers who had been present in Abkhazia and who have been deployed there since October 1994 under the mandate of the CIS. However, the so-called peacekeepers do not perform their obligations, do not maintain peace in the zone of conflict and do not guarantee a secure environment for the local population (see paragraph 93 above). Indeed, after their deployment in security zone, more than 1,700 civilians were killed and many crimes committed, even by the members of the PKFs. The only actual task of the PKFs is to fix the border between Abkhazia and the rest of Georgia. Concerning the military base in Gudauta, it has still not been closed, despite Russia’s undertaking at the Istanbul Summit in 1999 and contrary to what is claimed by the Russian authorities. None of the international observers, including the French delegation which visited the area under the Treaty on Conventional Armed Forces in Europe and the OSCE inspection in 2002, has confirmed its closure. The fact that the Russian authorities claim that the Gudauta base is used to provide material and technical assistance to the PKFs, reveals according to the applicants that a considerable military contingent is still present. The failure of the Russian Federation to honour its commitments entered into at the Istanbul Summit has been repeatedly qualified by the Government of Georgia as an infringement of the Georgian sovereignty and as an attempt to legalize a factual occupation of Abkhazia following the armed conflict of 1992-1994.
105. The applicants assert that, besides an overall military control, the Russian Federation exercises also an effective political control of the territory of the Abkhazian AR. In order to demonstrate it, they observe that the Russian rouble is the currency used in Abkhazia, that Russia introduced a unilateral visa regime for the citizens of Georgia, which however has never been applied to the inhabitants of Abkhazia, that the latter are granted Russian citizenship. Such actions were denounced by the Georgian Government (see paragraph 85 above) since they amount to a violation of the agreement signed by the CIS Heads of State on 19 January 1996. The applicants also assert that a majority of de facto public officials of Abkhazia are Russian citizens who implement the policy within the interest of the Russian Federation. Also, railway, sea and road connections between Russia and Abkhazia were resumed, and numerous illegal agreements on cooperation, financial assistance and investments concluded.
COMPLAINTS
106. The applicants complain under Article 8 of the Convention and Article 1 of Protocol No. 1 that they have been since 1992-1994 arbitrarily deprived of their rights to home and to a peaceful enjoyment of their property by Abkhaz secessionists, which obliges them to change dwellings. This is motivated by the second applicant’s ethnic origin, the purpose being the ethnic cleansing of the Georgian population, and amounts to a discrimination in breach of Article 14 of the Convention taken in conjunction with the above provisions. The applicants claim that the above situation of homelessness, together with the threats received, the permanent moral stress and despair, reached the level of ill-treatment prohibited by Article 3 of the Convention. Lastly, they do not dispose of any effective remedy within the meaning of Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. In respect of the matters complained of, do the applicants fall within the jurisdiction of Russia, within the meaning of Article 1 of the Convention?
2. Do the complaints lodged by the applicants against Russia comply ratione personae, ratione temporis and ratione loci with the provisions of the Convention as regards the alleged actions and/or omissions of the Abkhaz authorities?
3. Did the applicants have at their disposal effective remedies in respect of each of their complaints, and were these remedies exhausted by the applicants, as required by Article 35 § 1 of the Convention? In particular, what were the effective remedies available to the applicants according to the Russian law and were the applicants able to use them in practice?
4. Did the applicants lodge their complaints within the six-month period prescribed by Article 35 § 1 of the Convention?
5. Have the applicants been deprived of their possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that deprivation carried out in accordance with the conditions provided for by law and in accordance with the requirements of Article 1 of Protocol No. 1?
6. Has there been a violation of the applicants’ right to respect for their family and home, contrary to Article 8 of the Convention?
7. Were the applicants subjected to treatment contrary to Article 3 of the Convention?
8. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of the second applicant’s ethnic origin, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1?
9. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?
[1] Article 6: “Confirming that Abkhazia is an integral part of Georgia, the Commonwealth States members shall not, without the consent of the Government of Georgia:
(a) Conduct trade, economic, financial, transport or other operations with the authorities of the Abkhaz side, or
(b) Enter into official contacts with representatives or officials of the structures which exist in the territory of Abkhazia or members of armed units set up by them.
[2] “… The Duma welcomes the expression of interest from the leaders and peoples of Abkhazia and South Ossetia in establishing close relations with the Russian Federation, and considers that the development of such relations, including in matters of security, does not compromise the Russian Federation’s firm stance on Georgia’s territorial integrity. On the contrary, [these relations] will only expedite the emergence of a constructive settlement of the conflict between Abkhazia … and Georgia in the framework of peaceful negotiations …. Should the said development be hindered, the Duma is prepared to envisage other means of developing the State systems of Abkhazia and South Ossetia, in accordance with democratic values and the wishes of their peoples …”
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