ECtHR - Georgia v Russia, Application no 13255/07, 3 July 2014

Firstly, the court considers the allegation of the applicant that the Russian Government has not given a sufficient explanation for the refusal to provide necessary documentation, thus violating Article 38. The Court cites case law (Janoweic v Others, Imakayeva v Russia, Nolan and K v Russia) to determine that a failure to submit evidence without reasonable explanation  could mean that the applicants allegations are well-founded. The Court declares that the Russian government has fallen short of this obligation by attempting to justify their failure to submit on the importance of preserving ‘state secrets’ without giving a specific explanation for this secrecy. Thus there is a violation of Article 38.

Secondly the Court determines whether there was an administrative practice implemented by the Russian Government to target and collectively expel Georgian nationals . On establishing the existence of such a practice the Court then considers the allegation of the applicant that there had been a violation of Article 4 of Protocol 4, the prohibition of collective expulsion of aliens. Here, case law (Conka v Belgium) is used to establish that subjection to similar decisions does not constitute collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis, rather on the facts, it is the implementation of a coordinated policy with a specific aim and which does not reasonably and objectively examine the particular case of each individual which determines the collective nature of the expulsion. The Court also highlights that the documentation proceeding the expulsions and the procedures of the expulsions themselves meant that a reasonable and objective examination could not take place and that such procedures cannot be justified as a necessary immigration policy as it is incompatible with the obligations under the Convention. Therefore, the Court declares the administrative practice by the Russian authorities a breach of Article 4 of Protocol 4.

Regarding the arrest and detention of Georgian nationals and an inability to challenge the lawfulness of their detention, the applicant alleges that Russia is in violation of Article 5 (1) and (4) of the Convention. It is emphasised that any deprivation of liberty must be in keeping with Article 5 in order to protect the individual from arbitrariness. The court uses the case law of Chahal v UK to illustrate that the term of ‘lawfulness’ regarding deprivation of liberty must be compatible with both national law and Convention.  On the facts, although Russia argues lawfulness in compatibility with national law, the Court declares that the detention and arrest and subsequent deprivation of liberty of the applicants cannot be lawful under Article 5 due to the collective nature of the arrests, which renders them arbitrary.

Concerning Article 3 of the Convention (prohibition of inhuman or degrading treatment or punishment), Georgia submits witness statements showing the conditions of detention, transport conditions and general treatment of Georgian nations to be a violation of the Convention. The Court cites Anayev and others v Russia to outline the ways in which a violation could occur noting the absolute nature of the right; the presence of physical or mental suffering, humiliation and the possibility of considering the cumulative effects of detention on the individual. On the facts, the Court determines that the witness statements, though sometimes contradictory, are more credible than the accounts of Russian officials who stress ‘good’ conditions of detention and that the ill-treatment aspect of the Article has been established. The described conditions which satisfied the ‘degrading’ element of the Article, are those of the prison cells within the detention centres. The Court also cites the CPT report on the Russian federation to highlight the degrading nature of the detention conditions. The Court therefore reasons that there is violation of Article 3 due to the undeniable suffering of the Georgian nationals.

On establishing a violation of Article 3 and the previous discussion of an established violation of Article 5 and Article 4 of Protocol 4, the court considers the alleged violation of Article 13 which it confirms does not need to be examined independently. This is due to the automatic violation of Article 13 on establishing that there was a lack of effective remedy under the previously violated Articles.

Similarly the applicants allegation of an Article 14 violation is considered by the Court to be taken in conjunction with Article 4 of Protocol 4 and Article 5(1) and (4) to be the same as those that it has already examined under those two Articles. Given the finding that those Articles had been breached the Court finds it unnecessary to find a violation of Article 14 read in conjunction with Article 4 Protocol 4 and Article 5(1) and (4).. Additionally, the Court declares it unnecessary to consider an Article 14 violation in conjunction with Article 3 due to the fact that the difficult conditions in the detention centres were for all the detainees, irrespective of their nationality.

Moreover, the Court declares that on establishing a breach of Article 4 of Protocol 4 and Articles 5 and 3 it is not necessary to consider an alleged Article 18 breach because the administrative practice was clearly applied for a purpose which was not prescribed.

Finally, the Court does not establish a breach of Article 1 of Protocol 7 which expressly refers to aliens ‘lawfully residing in the territory’. On the facts, the Court declares that it is not clear whether there was the unlawful detention of Georgian nationals who were lawfully residing in Russia thus the applicant claim is deemed as unsubstantiated. Similarly, the Court declares that there has not been a violation of Article 8 of the Convention nor Articles 1 and 2 of Protocol 1. This lack of violation is established due to insufficient and unsubstantiated evidence on the family life of the Georgian nationals and specific deprivation of their right to property and enjoyment of property.