State Liability for Damage Caused by a Terrorist Act

On the international level, despite the global scale and spread of terrorism, terrorism does not represent a major problem in Georgia. However, despite this, there may still be individual supporters of "Daesh"—the so-called "Islamic State"—in Georgia, who, if necessary, would act according to the orders received from the organization. A challenge for the country remains Georgian citizens fighting in the ranks of Daesh, who are present in Syria and Iraq.
Although a law on combating terrorism has been in effect in Georgia since 2007, which addresses compensation for damage caused by terrorist acts and their prevention, the question still arises as to why a public entity should be held responsible for circumstances it did not create.
The government possesses enormous power over its citizens and acts in accordance with legal norms. It must protect human dignity, which is the foundation of all fundamental rights, and accordingly ensure the protection of rights guaranteed by positive law such as the rights to life, physical integrity, free personal development, and security. Precisely because the state’s obligations include ensuring a safe environment and taking all possible measures within reason. An authorized public entity is obliged to investigate suspicious circumstances that pose a threat on its own initiative, and if necessary, take appropriate measures. The state must compensate for damage caused by a terrorist act, both property (material) and non-property (moral) damage, and apply all possible measures to reduce the extent of the damage.
When speaking about compensation for damage caused by a terrorist act, the compensation for non-property (moral) damage is especially important. The Administrative Chamber of the Tbilisi Court of Appeal in its decision dated 11 December 2019, case N3ბ/2146-19, explained that "compensation for moral damage should be based on the degree of physical and moral suffering caused in each specific case. Accordingly, the defining criterion for individuals entitled to receive moral damage compensation is the infliction of physical or moral suffering on the person. Damage is recognized where there is a negative change in the person’s mental state, expressed in physical and moral suffering. In awarding compensation, the severity of the damage plays a decisive role. Mild mental distress, similar to mild physical pain, is not considered, whereas when there is damage where severe mental distress or spiritual suffering is usually expected, such as the death of a close person (spouse, child, mother, father, sister, brother), a so-called presumption of moral damage applies, and until proven otherwise by the inflicting party, it is presumed that the person experienced severe mental pain." The decision also clarifies the scope of compensation: "The amount of non-property (moral) damage compensation is determined both by the degree of established damage and the degree of fault. At the same time, the amount of compensation should not be excessively increased or disconnected from the economic capacities of the specific country." This decision was not appealed and has become final and legally binding.
During the fight and management of terrorism, state administrative bodies are equipped with a wide range of discretionary powers in their actions. It is also important that the evaluation area of an administrative body is its internal domain, which not everyone is entitled to interfere with. Accordingly, assessments regarding the course a terrorist act will take, the consequences it will entail, and what preventive measures will be most effective in counteracting it are tightly linked to the real-time information held by relevant services. The state is obliged to make the risks of terrorist acts absolutely safe. When developing and implementing anti-terrorism strategies and plans, the public entity is obliged to correctly and harmoniously define the budget expenses and the legal interests vulnerable to potential threats, as well as the hypothetical statistical probability of such threats.

Author: Maka Buighlishvili

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