A missing piece in the European Court of Human Rights’ judgment Georgia v. Russia (I)

On 3 July 2014 the Grand Chamber of the European Court of Human Rights delivered its judgment in the first of the three cases brought by Georgia against Russia.[1] This inter-state case originated from facts which took place between September 2006 and January 2007, when a considerable number of Georgians were arrested, detained, and expelled from Russian territory.

The Strasbourg Court found a violation of a number of fundamental rights by the respondent State. For instance, the Court ascertained the existence of an “administrative practice” in breach of article 4 of Protocol IV (which prohibits the collective expulsions of aliens), and articles 5(1) and 5(4) ECHR (which concern the right not to be subjected to unlawful detention and the right to an effective remedy against a judicial decision in this regard). However, the Court considered it unnecessary to determine whether the respondent State also violated article 14 ECHR (prohibition of discrimination) taken in conjunction with article 4 Protocol IV and articles 5 (1) and 5 (4) ECHR. Indeed, it held that the complaints lodged by the applicant Government were the same – although submitted under a different angle – as those that had already examined with reference to those provisions taken alone.

The Court’s arguments to justify its refusal to pronounce itself on article 14 appear to be particularly weak, especially if one considers that both the witnesses and the reports of International organisations which the Court had greatly relied upon underlined the discriminatory behaviour of Russian authorities.[2] Moreover, in its case law the Court has constantly held that article 14 complements the other substantive provisions of the Convention and the Protocols.[3] This means that the complaints lodged by the applicant in relation to the provisions at issue must be the same – although submitted under the different angle of discrimination– as the ones lodged with reference to their violation tout court. Hence, as the Georgian Judge Tsotsoria pointed out in her Separate Opinion,

[t]he violation of the rights of Georgians based on their nationality and ethnic origin was deeply rooted in discrimination, which is the fundamental aspect of the present case. Accordingly, failure to examine Article 14 artificially reduces the scope of the non-discrimination provision of the Convention and disregards the very core feature of this inter-State application, especially considering that the Court’s practice regarding Article 14 has already been the subject of criticism.

By refusing to pronounce itself on article 14 ECHR, the Court has not only failed to consider the crucial element of discrimination in itself, but has also missed the opportunity for its decision to have an impact on other branches of international law. Indeed, the recognition by the Strasbourg Court of the existence of a discriminatory “administrative practice” by Russian authorities against Georgian nationals could be used for the purpose of national criminal proceedings based upon customary international criminal law. In particular, such a pronouncement by the Court could have been relevant for the crime against humanity of persecution.

While article 7(1)(h) of the Rome Statute limits the substantive acts capable to amount to persecution to other acts specifically contemplated by article 7 or crimes within the jurisdiction of the International Criminal Court, under customary international law, persecution extends beyond this. Indeed, any grave violation of fundamental human rights, which is part of a widespread and systematic practice, and is committed with discriminatory intent, can constitute persecution.[4]

In this respect, it is noteworthy that in the present case the Court has reiterated what had been previously established in its case law; that is, that an administrative practice comprises two elements, ‘the repetition of acts’ and ‘official tolerance’. With regard to the former, in Ireland vs the United Kingdom and Cyprus vs Turkey the Court described ‘the repetition of acts’ as ‘an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected not to amount to merely isolated incidents or exceptions but to a pattern or system’. [5] As far as ‘official tolerance’ is concerned, the Commission in France, Norway, Denmark, Sweden and the Netherlands v. Turkey held that

illegal acts are tolerated in that the superiors of those immediately responsible, though cognisant of such acts, take no action to punish them or to prevent their repetition; or that a higher authority, in face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied. [6]

It also determined that to constitute a preventative or punitive act, the ‘action taken by the higher authority must be on a scale which is sufficient to put an end to the repetition of acts or to interrupt the pattern or system’. [7]

Therefore, in the current case, having ascertained the existence of a systematic violation of fundamental rights, the discrimination of the victims on the ground that they belong to a certain national group might have been particularly relevant to any future triggering of criminal proceedings concerning the crime of persecution under customary international law.

This is not of course, automatic. Indeed, one should not underestimate the fact that the standard of evidence upon which the Court has relied in the case at issue might not be comparable with those standards which are required in a criminal case. In such cases, the accused is notably entitled to the right to remain silent and, since the burden of proof rests on the prosecution, negative inferences cannot be drawn from the defendant’s failure to provide evidence. The Court itself has indeed specified that although in assessing evidence it has adopted the standard of proof “beyond reasonable doubt”, ‘it has never been its purpose to borrow the approach of the national legal systems that use that standard in criminal cases.’ [8]

That being said, the Court’s reluctance to consider article 14 might be seen as an implicit acknowledgement that any pronouncement on its part might have had some sort of relevance with regard to crimes against humanity. In particular, apart from the possibility of triggering a criminal proceeding, any ruling by the Court would have had huge repercussions on the already troublesome international relations of the countries involved.

Thus, if it is true that the different judicial systems dealing with violations of human rights are increasingly intertwined and integrated, in this case the Strasbourg Court has a priori renounced to the possibility to have a say on issues which might pertain to the sphere of international criminal law.

[1] Georgia v Russia (I) App no 13255/07 (ECtHR, 3 July 2014).

[2] Ibid Annex. See also Russia Targets Georgians for Expulsion, Human Rights Watch, 1 October 2007, available at: http://www.hrw.org/news/2007/09/30/russia-targets-georgians-expulsion accessed on 26 October 2014.

[3] See e.g. Case of Karlheinz Schmidt v. Germany App no 13580/88 (ECtHR, 18 July 1994) para 22.

[4] A. Cassese, Lineamenti di diritto internazionale penale – I diritto sostanziale (Il Mulino 2005) 118.

[5] Ireland v the United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 159 and Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001) para 115 (as cited in Georgia v Russia (I) App no 13255/07 (ECtHR, 3 July 2014) para 123).

[6] Georgia v Russia (I) App no 13255/07 (ECtHR, 3 July 2014) para 124.

[7] Ibid para 94.

[8] Ibid para 124.

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