On 3 July, the European Court of Human Rights (ECtHR) reached a decision in the case of Georgia vs Russia. The case seems quite remarkable. The majority of complaints to the ECtHR are submitted by individuals (for example Kalashnikov vs Russia), but this case is of an intergovernmental nature: the government of Georgia against the government of the Russian Federation. In its more than six-decade history, the ECtHR has ruled on a total of three intergovernmental complaints. (1)
In March 2007, Georgia filed a lawsuit against Russia in which Georgia alleged that Russia had violated a number of articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms with regard to Georgian citizens. Georgia argued that Russia was pursuing a policy of discrimination with regard to ethnic Georgians and on political grounds was expelling them from the country en masse.
So after seven years spent considering the case, the Grand Chamber of the ECtHR, made up of 17 judges (2), reached its decision. The court ruled that Russia had violated Article 38 of the European Convention on Human Rights (ECHR), and that in the autumn of 2006, a coordinated policy of arresting, detaining and expelling Georgian nationals from the country was put in place in the Russian Federation. (3)
Georgia called for the Court to not only declare that the Convention had, indeed, been violated, but also award reparations and compensation. This request was rejected by a majority vote, however. The judges stated that both sides should initially discuss the issue themselves, and only in the event that they could not reach an agreement within a year would the ECtHR return to its consideration.
Five of the judges – from Spain, Britain, Bulgaria and Russia – stated their own separate or dissenting opinion. The dissenting opinion of Russian judge Dmitry Dedov deserves the most attention. He pointed out a number of serious flaws in the court’s reasoning, and added that such «mistakes» call into question the impartiality of the court!
In assessing the ECtHR ruling, one should pay attention to a number of important circumstances.
Firstly, the court found no violation of Articles 14 and 18 of the European Convention on Human Rights (prohibiting discrimination on any grounds and setting the limits of the possible restrictions of human rights), Article 8 of the Convention (the right to respect for private and family life), as well as Article 1 (protection of property) and Article 2 (right to education) of Protocol No.1 to the Convention. Nor did it find any violation of Article 1 of Protocol No.7 to the Convention. The court also did not find any evidence that Georgian citizens living in Russia legally had been expelled from the Russian Federation. Nor did it find any evidence of the expulsion of ethnic Georgians who are citizens of Russia or any infringement of their rights.
Secondly, although the ECtHR did find that the Russian Federation had violated the provisions of a number of articles of the European Convention on Human Rights related to the mass expulsion of foreigners, it is important to look at how this was done.
This reveals something interesting. Any findings must be based on established facts. The establishment of facts is the primary responsibility of the court. So what did the European Court of Human rights do? It simply quoted the reports of «non-governmental human rights organisations». The content of these reports is amazing: the majority of them do not contain any names or any kind of concrete information. Thus the non-governmental organisations acting as public prosecutors against Russia were accepted by the court as witnesses. Also, their evidence was accepted without any kind of critical analysis whatsoever.
Another astonishing fact is the judges’ refusal to analyse the evidence submitted by Russia. In response to allegations that Russian courts had implemented the mass expulsion of Georgians, the Russian government submitted hundreds of court rulings, where the initial decisions on expulsions had been revoked on appeal. And what did the fairest court in Europe do? It simply ignored the evidence! It is not even mentioned in the court’s decision.
While on the subject of the European Court’s decision with all of its legal flaws, it is impossible not to mention the reaction of the Russian authorities. Typically, decisions by the European Court that declare Russia has violated some right or other receive harsh, objective criticism from Russia. This applies to a number of ECtHR decisions, including in the cases of Ilaşcu and Kononov. This time, however, Russia’s reaction proved to be quite different. First to react was the Russian Ministry of Justice, which made a special statement in which the whole court ruling was basically narrowed down to the fact that the ECtHR had not found that Russia had violated many of the articles mentioned by Georgia. Ninety percent of the Ministry’s statement was devoted to this non-discovery. With regard to the main part of the ECtHR’s decision, the Ministry of Justice said only that the violations identified by the European Court «concern only those actions related to the procedure of making deportation decisions and the conditions in which illegal migrants and people who have violated the rules of their stay in Russia as stipulated by Russian legislation are being kept at temporary centres.» (4)Those who have not read the text of the court’s decision may have the impression that the ECtHR, like a mountain, stood up to defend Russia from Georgia’s scheming.
The Russian media virtually refused to comment on the court’s decision, referring to the fact that the Ministry of Justice had already done so. The deputy minister only commented on the circumstances of the Saakashvili regime’s complaint. Thus, responding to a question from RIA Novosti, the Deputy Foreign Minister of Russia said: «We must remember that the Georgian complaint was submitted to the ECHR in March 2007, when another anti-Russian hysteria campaign was ongoing: it was one of those that Mikhail Saakashvili frequently organised, methodically attempting to achieve his main goal – the disruption of the historical friendship between the two peoples. It was clear from the very beginning that by turning to the Court, the Tbilisi leaders at that time did not care about the establishment of truth or the re-establishment of allegedly usurped justice, but aimed to inflict the most possible political harm to Russia. This is where the unsubstantiated accusations that have nothing to do with reality come from. They were obviously rejected by the Court. Many important events have taken place while this complaint was being considered in Strasbourg. The anti-Russian campaign of Tbilisi reached its zenith in August 2008, when Russian peacekeepers were treacherously murdered and several hundred civilians died in South Ossetia. The criminal military mission by Mikhail Saakashvili had the most severe consequences for Georgia. During the elections of 2012-2013, the Georgian people were able to get rid of this leader, having supported forces, which, among other things, spoke in favour of the recovery of relations with Russia. I hope that the fate of the politicised anti-Russian complaint to the ECtHR, as well as all the events in recent years, will serve as a warning against the harmful attempts to disrupt good-neighbourliness between our two countries. At the same time, we would like to remind you about the historical failures of such attempts.» (5)
Such a restrained reaction to a clearly political, as well as legally skewed, ECtHR decision becomes clearer following the statements made by Georgian Interior Minister Alexander Chikaidze. The Georgian minister said that whilst the European Court’s decision was «fair», «relations between Georgia and Russia should start with a clean slate». He noted that what had happened regarding the expulsion of Georgians from Russia was «very sad», but that it «belonged in the past».
In this regard, the question arises: rather than a peacemaker, did the European Court of Human Rights (represented by those governments whose judges drafted the verdict) not act more like an instigator of the intergovernmental problems encountered in relations between Russia and Georgia? One could say that the ECtHR is not a political body, and therefore should not get involved in peacekeeping, but rather «pure law». But this would be profoundly wrong, since the ECtHR has, at its disposal, a number of opportunities precisely for peacekeeping, including the right to settle a dispute peacefully, for example, which is explicitly specified in the European Convention for the Protection of Human Rights and Fundamental Freedoms. And the ECtHR has made extremely good use of this right in other cases.
The court did not use its peacekeeping functions in this case, however, but quite deliberately poured oil on the fire. The intent can be seen from the legal flaws that are just too evident to be passed off as mistakes. And if there were no mistakes, then there was intent.
Russia and Georgia have shown that they are ready to throw off the problems of the past, taking advantage of all the benefits of settling disputes diplomatically (6), in comparison with the settlement of disputes through the use of a not entirely impartial international system of justice.