Contents - Constitutional Court of Georgia

The European Courtof Human Rights is Fifty. Recent trends in the Court’s jurisprudence
INDIVIDUAL MEASURES
The Court is moving towards a practice of indicating to the State concerned specific
measures aimed at remedying a violation both in a particular case and in other identical
cases which are pending before it 127 . In some judgments, the Court, in addition to finding a
violation of Article 6 § 1, has indicated that the most appropriate means of remedying the
violation would be to have the case retried. 128 In other cases, such as Assanidze v. Georgia,
the Court requested the immediate release of the applicant in the operative part of its
judgment 129 . Requests of this kind which, in a sense, “push against the boundaries of the
declaratory model of relief” 130 , are often addressed, at least indirectly, to the domestic
courts, as they entail the adoption by the latter of certain measures.
In the Assanidze v. Georgia judgment of 8 April 2004, the applicant complained that he
was still being held by the authorities of the Adjarian Autonomous Republic despite having
received a presidential pardon in 1999 for an offence and having been acquitted of another
by the Supreme Court of Georgia in 2001. Having concluded that there had been violations
of Articles 5 and 6 of the Convention on account of the failure of the authorities of the Adjarian
Autonomous Republic to release the applicant despite his acquittal by the Georgian
Supreme Court, the Court held in the operative part of the judgment that “the respondent
State must secure the applicant’s release at the earliest possible date” 131 . While reiterating
that it is primarily for the State to choose the means of discharging its obligation to execute
a judgment, the Court took the view that “by its very nature, the violation found in the
instant case does not leave any real choice as to the measures required to remedy it” 132 .
Ilaşcu and Others v. Moldova and Russia concerned the responsibility of Moldova and
Russia under Article 1 of the Convention and in particular the positive obligations of the
State with regard to parts of its territory over which it has no control, i.e. the “Moldovan
Republic of Transdniestria”. The case was about ill-treatment of detainees and conditions
of detention. In its judgment of 8 July 2004, the Grand Chamber of the Court held that the
applicants came within the jurisdiction of Moldova within the meaning of Article 1 of the
Convention (State jurisdiction) as regards its positive obligations; and that the applicants
came within the jurisdiction of Russia within the meaning of Article 1 of the Convention.
Without going into details the Court found violations of both Articles 3 and 5 of the Con-
127 ECtHR, Tekin Yildiz v.Turkey, judgment of 10 November 2005, §§ 91 et seq., and Xenides-Arestis v. Turkey, judgment of 22 December
2005, § 40 and point 5 of the operative provisions.
128 ECtHR (GC), Öcalan v. Turkey, judgment of 12 May 2005, and Claes and Others v. Belgium, judgment of 2 June 2005, § 53 and point 5
of the operative provisions.
129 ECtHR (GC), Assanidze v. Georgia, judgment of 8 April 2004.
130 Ph. Leach, “Beyond the Bug River – A new dawn for redress before the European Court of Human Rights”, European Human Rights
Law Review, 2005, no. 2, p. 159.
131 ECtHR (GC), Assanidze v. Georgia, judgment of 8 April 2004, § 203.
132 Ibid., § 202 in fine.
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