SECOND SECTION
CASE OF MAMASAKHLISI AND OTHERS
v. GEORGIA AND RUSSIA
(Application nos. 29999/04 and 41424/04)
 
JUDGMENT
Art 1 • Jurisdiction of Russia and Georgia over Abkhazia • Effective control and decisive influence exercised by Russia over Abkhaz territory in view of political, economic and financial support as well as dissuasive military involvement • Responsibility of Russia for acts of Abkhaz authorities in relation to detained applicants • Positive obligations of Georgia with regard to Abkhazia, a part of its territory over which at the time it had no control • No responsibility on the part of Georgia for acts as positive obligations discharged 
Art 3 (substantive) • Inhuman or degrading treatment • Ill-treatment during interrogation, inadequate conditions of detention and lack of adequate medical treatment
Art 5 § 1 (a) and (c) • Unlawful arrest and detention • No information as to applicable laws and scarcity of official sources of information concerning legal and court system in Abkhazia • Court not in a position to verify whether de facto Abkhaz authorities and courts fulfilled Art 5 requirements • No basis for assuming existence of system in the region reflecting a judicial tradition compatible with the Convention
Art 6 § 1 (criminal) and 6 § 3 (c) • Lack of fair hearing by an independent and impartial tribunal established by law • De facto Abkhaz courts could not qualify as a “tribunal established by law” • No real opportunity to organise defence and effectively benefit from the assistance of a lawyer throughout proceedings

 
STRASBOURG
7 March 2023
 
FINAL
 
07/06/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. Table of contents
INTRODUCTION
THE FACTS
I. Background
II. The events relating to the first applicant, Mr L. Mamasakhlisi
A. The explosion and related detention according to the applicant
B. The judgment sentencing the applicant
C. Subsequent developments
D. The first applicant’s release
E. Subsequent medical examination
F. Investigation carried out by the Georgian authorities into the first applicant’s detention
III. The events relating to the second applicant, Ms D. Mamasashkili
IV. The events relating to the third applicant, Mr G. Nanava
V. Relations between the respondent Governments and the Abkhaz de facto authorities
A. Relations between the Russian Federation and the Abkhaz de facto authorities
1. Submissions by the applicants and the Government of Georgia
(a) Military aspects
(i) General military involvement
(ii) Gudauta military base
(iii) Official statements in support of Russian citizens worldwide
(iv) Further information from international sources
(v) Events subsequent to the military conflict of August 2008 between Georgia and Russia
(b) Political connections and economic support
2. Submissions by the Government of Russia
(a) Military aspects
(b) Political connections and economic support
B. Relations between Georgia and the Abkhaz de facto authorities
1. Submissions by the applicants
2. Submissions by the Georgian Government
(a) Measures aimed at resolving the conflict and observing human rights in Abkhazia
(b) Individual measures taken by Georgia in order to ensure the first and third applicants’ rights under the Convention
(i) In respect of the first applicant
(ii) In respect of the third applicant
3. Submissions by the Russian Government
RELEVANT LEGAL FRAMEWORK
Documents of international organisations
Council of Europe
1. Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Georgia, 13 July 2000 (CommDH(2000)3)
2. Third General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)
3. Report [CPT/Inf (2009) 38] on the visit to the region of Abkhazia, Georgia, carried out by the CPT from 27 April until 4 May 2009
THE LAW
I. PRELIMINARY ISSUES
A. The Court’s assessment of the facts
B. Temporal scope of the case
C. Right to pursue the application in the stead of the third applicant
II. JOINDER OF THE APPLICATIONS
III. Admissibility issues
A. Exhaustion of domestic remedies and compliance with the six-month time-limit
1. The parties’ positions
(a) Submissions by the Russian Federation
(b) Submissions by Georgia
(c) Submissions by the applicants
2. The Court’s assessment
(a) The Court’s case-law
(b) Application of the above principles to the present case
(i) Exhaustion of domestic remedies
(ii) Compliance with the six-month time-limit
B. Lack of “victim” status of the applicants as regards their complaint under Article 8
1. The parties’ positions
(a) Submissions by the Russian Federation
(b) Submissions by the applicants
(c) Submissions by Georgia
2. The Court’s assessment
C. Lack of substantiation of the remaining complaints of the first and third applicants under Articles 3, 5 § 1, 5 § 3, 5 § 4, 6 § 1, 6 § 3 (c) and 13
1. The parties’ positions
2. The Court’s assessment
D. Incompatibility ratione temporis and ratione materiae of the complaints with the Convention provisions
1. The parties’ positions
2. The Court’s assessment
E. Jurisdiction (ratione personae and ratione loci)
1. The parties’ positions
(a) The applicants
(i) The jurisdiction of Georgia
(ii) The jurisdiction of the Russian Federation
(b) The Georgian Government
(i) The jurisdiction of Georgia
(ii) The jurisdiction of the Russian Federation
(c) The Russian Government
(i) Jurisdiction of the Republic of Georgia
(ii) Jurisdiction of the Russian Federation
2. The Court’s assessment
(a) General principles relating to the concept of jurisdiction under Article 1 of the Convention
(b) Application of these principles to the facts of the case
(i) The jurisdiction of Georgia
(ii) The jurisdiction of the Russian Federation
(α) Military involvement
(β) Political, economic and financial support
() Conclusion
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. Admissibility
B. Merits
1. Submissions by the parties
(a) The Georgian Government
(b) The Russian Government
(c) The applicants
(i) In respect of Georgia’s responsibility
(ii) In respect of Russia’s responsibility
2. The Court’s assessment
(a) General principles
(b) Application of these principles to the present case
(i) As regards the first applicant
(α) Lack of adequate medical treatment in detention
(β) Inadequate conditions of detention
Ill-treatment during the interrogation
(i) As regards the third applicant
3. Responsibility of the respondent States
(a) As regards Georgia
Conclusion
(b) As regards the Russian Federation
V. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
A. Admissibility
B. Merits
1. Submissions by the parties
(a) The applicants
(b) The Russian Government
(c) The Georgian Government
2. The Court’s assessment
3. Responsibility of the respondent States
VI. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 3 and 4 OF THE CONVENTION
VII. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION
A. Submissions by the parties
B. The Court’s assessment
C. Responsibility of the respondent States
VIII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
B. Costs and expenses
C. Default interest

Article of the Convention at issue: Article 5
Outcome: violation