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

This post analyses the 2014 ECtHR Grand Chamber's judgment in the first of the three cases brought by Georgia against Russia. The post argues that 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’s reluctance to consider article 14 ECHR might however 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.