GYLA: ECHR decision sets major precedent, as European Court established jurisdiction and responsibility of Russia in phase of war over which it had previously excluded existence of control

The European Court of Human Rights (ECHR) has found Russia in violation of Articles 2 (right to life) and 3 (prohibition of torture) of the European Convention on Human Rights in cases brought by the family of Georgian officer Giorgi Antsukhelidze and other Georgian military personnel, according to the Georgian Young Lawyers’ Association (GYLA).

As GYLA reports, the Strasbourg Court’s ruling is considered precedent-setting, as it addressed broader patterns of conduct by the Russian Federation prior to the outbreak of hostilities, including what the Court described as a process of so-called “creeping annexation” of South Ossetia. The Court reportedly referred to evidence of “passportisation,” along with its political and economic consequences, and noted that the separatist authorities and security structures were composed of Russian officials and were effectively under their control. The decision underscores the Court’s assessment of Russia’s responsibility in relation to grave human rights violations committed in the context of the conflict, including those involving Georgian servicemen.

“The European Court of Human Rights found a violation of Articles 2 (right to life) and 3 (prohibition of torture) of the European Convention on Human Rights in the cases of Giorgi Antsukhelidze’s family members and other Georgian military personnel against Russia (Malachini and Others v. Russia, nos. 9184/09 and 22580/10, 23.06.2026).

It was found that the Russian Federation was responsible for the murder of Giorgi Antsukhelidze, Kakhaber Khubuluri and Ushangi Sopromadze; the torture of Giorgi Antsukhelidze, Ushangi Sopromadze, Kakhaber Khubuluri, Davit Malachin, Zaza Kavtiashvili, Imeda Kutashvili, Malkhaz Meladze and Kakhaber Zirakashvili and the ineffective investigation into these facts. The European Court ordered the Russian Federation to pay a total of 395,000 euros in just satisfaction to all applicants.

This is the first case since the resolution of the interstate case (Georgia v. Russia II) in 2021, when the Court considered the issue of the jurisdiction of the Russian Federation in relation to prisoners of war during the active phase of the war in individual cases and found a violation [We would like to inform the public that in the interstate case, the Court did not establish the issue of jurisdiction in relation to the substantive violation of the articles of the Convention during the active phase of the conflict (08.08.2008-12.08.2008). For more information, see the GYLA 2021 Review].

It should be emphasized that GYLA has been actively defending the interests of persons affected by the August 2008 war in the Strasbourg Court for 18 years and will continue to assist them in the future. GYLA has filed 53 complaints with the Strasbourg Court regarding violations committed during the August 2008 Russia-Georgia war, where GYLA is defending the interests of about 400 persons.

This decision combines two appeals. Namely:

– Chikviladze and Antsukhelidze v. Russia (no. 22580/10)

In August 2008, representatives of the South Ossetian armed forces detained a Georgian soldier, Giorgi Antsukhelidze. During and after his detention, he was subjected to torture, inhuman and degrading treatment by representatives of the South Ossetian and Russian armed forces. Giorgi Antsukhelidze was missing for several months, but in December 2008 it was established that Giorgi Antsukhelidze had been deliberately and especially cruelly killed, in violation of Article 2 of the Convention. The cruelty of the actions taken against him is confirmed by direct video evidence, but the perpetrators have not been punished to date. The applicants in the case are Giorgi Antsukhelidze’s wife and two children, whose rights were violated by the disappearance of their family member and subsequent execution with particular cruelty.

– Malachin and Others v. Russia (no. 9184/09)

In August 2008, during the ongoing armed operations in Tskhinvali, the armed forces of South Ossetia, in violation of Article 5 of the Convention, detained seven Georgian military personnel. The aforementioned military personnel were held in captivity by the armed forces of South Ossetia and Russia until August 19, 2008. During this period, representatives of the armed forces of South Ossetia, who were carrying out operations under Russian control and in the presence of Russian military personnel or persons of ethnic origin, in violation of Article 3 of the Convention,

The Strasbourg Court ruled as follows:

– The right to life

The Strasbourg Court clearly explained that the respondent state (Russia) was responsible for the persons who were taken into custody. This responsibility extended to acts committed against the persons in custody over whom Russia exercised extraterritorial jurisdiction and, therefore, had an obligation to protect their lives.

The Court emphasized that the Georgian prisoners of war were held in Tskhinvali by the forces of “South Ossetia.” Although this territory is an integral part of Georgia, during the 2008 war the Georgian authorities were unable to exercise control there. Due to the control and influence exercised by the Russian Federation over the region, Russia was held accountable for the atrocities committed against the persons taken into custody.

Accordingly, the European Court found that the three Georgian prisoners of war were held in territory where Russia exercised “effective control.” Based on the case file, the European Court noted that Kakhaber Khubuluri and Ushangi Sopromadze were killed in captivity. In relation to Giorgi Antsukhelidze, the Strasbourg Court highlighted the fact that his body was handed over to the Georgian authorities in November 2008, more than three months after his capture. The Court also noted that, although the exact cause and circumstances of Giorgi Antsukhelidze’s death remain unclear, it can be said with certainty that he was last seen in the custody of the “South Ossetian” forces, subjected to torture and death threats, and the Court concluded that his death was caused by violence. Even if the direct involvement of Russian troops is not fully apparent in all episodes, Russia is still responsible because these individuals were under its jurisdiction. The Court shared this reasoning in relation to the other applicants.

The aforementioned acts are particularly serious given that they were committed against prisoners of war, who enjoy special protection under international humanitarian law.

The Court also found that Russia had failed to provide an adequate explanation for the deaths, as required by the procedural aspect of Article 2 of the European Convention. In particular, although the evidence in the applicants’ complaints indicated that the persons concerned had been executed, the Russian Government had not provided any evidence or argument refuting this version of events. Accordingly, there was a violation of both the substantive and procedural aspects of Article 2 of the Convention in this case.

– Prohibition of torture

The European Court also highlighted the systemic cruelty perpetrated by Russia. It found that the torture of Georgian soldiers was not an isolated incident but a deliberate administrative practice, in flagrant violation of Article 3 of the Convention.

Having regard to the applicants’ testimonies concerning the extreme acts of violence inflicted on them during their captivity, and having regard to the extensive material corroborating their testimonies, the Court found that the Georgian soldiers involved in the case were victims of treatment contrary to Article 3 of the Convention. The Court considered that the ill-treatment inflicted on the Georgian prisoners of war had caused them “severe” pain and suffering, which must be regarded as torture within the meaning of Article 3 of the Convention.

Since the Court found that the prisoners of war were under the jurisdiction of the Russian Federation, the latter was also responsible for the actions of the South Ossetian forces, without it being necessary to adduce evidence of “detailed control” over each of those actions.

The Court also found that Russia had failed to conduct an effective investigation into the applicants’ complaints, as required by the procedural limb of Article 3 of the Convention.

Accordingly, there had been a violation of the substantive and procedural limbs of Article 3 of the Convention in the present case.

– Precedent significance of the case

The decision published today sets a major precedent, as the European Court of Human Rights has established the jurisdiction and responsibility of the Russian Federation in a phase of the war over which it had previously excluded the existence of control. In particular, while in the case of Georgia v. Russia (II) (no. 38263/08), the Court considered that the period of active armed confrontation from 8 to 12 August did not fall under Russia’s territorial jurisdiction due to the context of “chaos”, the new decision has changed this approach based on the factual circumstances. The Court explained that, despite the fact that hostilities were continuing in other locations, the Court unequivocally established Russia’s effective control and, consequently, international legal responsibility under Article 1 of the European Convention for the crimes committed against the Georgian military personnel detained in the city of Tskhinvali. The Strasbourg Court drew attention to “the so-called ‘creeping annexation’ of South Ossetia by the Russian Federation before the outbreak of hostilities, as evidenced by the so-called ‘passportisation’ process and its economic and political consequences, as well as by the fact that the separatist government and security forces were staffed by high-ranking Russian officials and were de facto controlled by them” (Malachini and Others v. Russia, nos. 9184/09 and 22580/10, 23/06/2026, §57).

– The importance of creating a compensation fund

Despite the fact that Russia was expelled from the Council of Europe in March 2022 due to military aggression in Ukraine and has not been a party to the Convention since September of the same year, it is still obliged to enforce decisions in cases initiated before that date. This principle was confirmed by the Grand Chamber of the Strasbourg Court in April 2023, when in the second interstate case Russia v. Georgia (no. 38263/08) it ordered Russia to pay compensation in the amount of 130 million euros in favor of Georgia. Based on this, GYLA applied to the Strasbourg Court and requested the creation of an international compensation mechanism to ensure justice for those affected by the August 2008 war.

In addition, on January 26, 2024, GYLA applied to the Ministry of Foreign Affairs of Georgia with a proposal on the use of international measures for the effective protection of the rights of the affected population by the Russian Federation. The Compensation Fund should ensure the accumulation of material assets belonging to the Russian Federation and located outside its borders and their transfer to those individuals whose rights and freedoms guaranteed by the European Convention on Human Rights have been violated by the Russian Federation, including, in this particular case, against citizens of Georgia.

GYLA will continue to protect the interests of citizens affected by the war in international mechanisms, and, among other things, will actively work on appropriate advocacy on the issue of compensation,” the GYLA stated.