Last Updated on May 9, 2019 by LawEuro
FIRST SECTION
DECISION
This version was rectified on 29 January 2019
under Rule 81 of the Rules of Court.
Applications nos.8274/09 and 8275/09
Izolda Bagratovna KUDUKHOVA against Georgia
and Nino Giviyevna KUDUKHOVA against Georgia
The European Court of Human Rights (First Section), sitting on 20 November 2018 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Ksenija Turković,
Krzysztof Wojtyczek,
Pauliine Koskelo,
Tim Eicke,
Lado Chanturia,
Gilberto Felici, judges,
and Abel Campos, Section Registrar,
Having regard to the above applications lodged on 11 September 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, IzoldaBagratovnaKudukhova, born in 1950 in Tskhinvali, is the mother of the applicant in the second case, Nino Giviyevna Kudukhova, born in 1988 in Tsinagar. Both applicants are Russian nationals. They live in the same house in Tskhinvali, the capital of Tskhinvali Region (South Ossetia[1])[2], and are represented before the Court by Dmitry Matveev and Partners, a law firm practising in Moscow.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. At the beginning of August 2008 the applicants started to regularly hear sounds of shootings and explosions, which were gradually intensifying.
4. The applicants understood that hostilities had started on the territory of Tskhinvali Region (South Ossetia)and therefore took the decision to leave Tskhinvali.
5. On 5 August 2008 they travelled to Beslan (Russian Federation) to stay with the first applicant’s brother.
6. On 9 August 2008 the first applicant’s cousin was killed by the Georgian troops in Tskhinvali in the course of fights.
7. On 10 August 2008 the applicants left for Vladikavkaz (Russian Federation) to stay with other persons displaced by the hostilities in South Ossetia.
8. On 12 August 2008 they were transferred to Rostov-on-Don (Russian Federation).
9. On 30 August 2008 the applicants returned home. They saw that their apartment had been damaged as a result of an explosion which had hit the roof of the balcony. The windows had been blown up, the doors had been blown out and the furniture in the apartment had been damaged. The applicants partly repaired the apartment and continued living there.
10. In 2009 the first applicant’s husband and second applicant’s father died as a result of the stress suffered during the conflict.
RELEVANT INTERNATIONAL MATERIAL
11. The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia (Volume I) established in December 2008 by the Council of the European Union, states, inter alia, that (p. 10):
“On the night of 7 to 8 August 2008, a sustained Georgian artillery attack struck the town of Tskhinvali. Other movements of the Georgian armed forces targeting Tskhinvali and the surrounding areas were under way, and soon the fighting involved Russian, South Ossetian and Abkhaz military units and armed elements. It did not take long, however, before the Georgian advance into South Ossetia was stopped. In a counter-movement, Russian armed forces, covered by air strikes and by elements of its Black Sea fleet, penetrated deep into Georgia, cutting across the country’s main east-west road, reaching the port of Poti and stopping short of Georgia’s capital city, Tbilisi. The confrontation developed into a combined inter-state and intra-state conflict, opposing Georgian and Russian forces at one level of confrontation as well as South Ossetians together with Abkhaz fighters and the Georgians at another. Such a combination of conflicts going on at different levels is particularly prone to violations of International Humanitarian Law and Human Rights Law. This is indeed what happened, and many of these instances were due to the action of irregular armed groups on the South Ossetian side that would not or could not be adequately controlled by regular Russian armed forces.”
COMPLAINTS
12. The applicants argue that the activities of the Georgian army put their lives in immediate danger in breach of Article 2 of the Convention. Theseactivities also caused them serious moral and physical damage contrary to Article 3 of the Convention.
13. The applicants further complain that in breach of Article 1 of Protocol No. 1 they were deprived of the possibility to peacefully enjoy the property in which they lived and which they were forced to leave, because their apartment was burnt down as a result of the bombing of Tskhinvali.
14. The applicants also invoke Article 13 of the Convention in conjunction with Article 3 of the Convention, alleging there was no effective investigation into the events complained of.
15. The applicants claim under Article 14 in conjunction with Articles 3 and 13 of the Convention that the activities of the Georgian army were directed against South Ossetian civilians and that as South Ossetians, they do not enjoy effective access to protection of their rights through Georgian authorities.
16. The applicants also claim they lost a close relative, the first applicant’s cousin, in the hostilities, which violated their right to personal and family life under Article 8 of the Convention.
17. Without further details, they allege a violation of Article 5 of the Convention.
THE LAW
A. Joinder of the applications
18. Given their similar factual and legal background, the Court decides that the applications should be joined under Rule 42 § 1 of the Rules of the Court.
B. The applicants’ complaints and submissions
19. The applicants raised various complaints under Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.
20. To support their claims, they have submitted before the Court the following documents: the first and second applicants’ passports; a list of property items damaged or destroyed in the conflict, supported by witness signatures; a House book, including the technical passport to the apartment, showing the registration of the second applicant at the relevant address; and the purchase contract to the apartment in the name of the second applicant concluded in 2007. The applicants also enclosed the confirmation of death of their relative (cousin of the first applicant) and a confirmation of the first applicant’s hospitalization in 2011.
C. The Court’s assessment
1. General considerations
21. The Court notes that pursuant to Article 35 § 1 of the Convention, it may only deal with applications after all effective domestic remedies have been exhausted, and within a period of six months from the date on which the final decision was taken.
22. Furthermore, under the third paragraph, letter a) of this provision, the Court shall declare inadmissible any individual application if it considers that the application is incompatible with the provisions of the Convention or the Protocols thereto, or manifestly ill-founded.
23. The Court observes that the present applications were filed only a few weeks after the events complained of had taken place. The applicants did not attempt to exhaust domestic remedies as, according to them, such attempt would be obviously futile. They claim that the court system stopped functioning in South Ossetia as a result of the hostilities, and the Georgian authorities could not have been deemed to be capable of providing effective investigation into the activities of their own army.
24. However, the Court does not consider it necessary to decide whether the applicants satisfied the condition of exhaustion of domestic remedies, because their complaints are in any event inadmissible for the following reasons.
25. The Court recalls that its role is subsidiary and that it must be cautious in taking on the role of a first-instance tribunal of fact, unless it is unavoidable by the circumstances of the case (see Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, § 96, 18 December 2012). Consequently, the fact that no domestic investigation and fact-finding has been initiated places the Court in a rather difficult situation as regards the establishment of facts.
26. The Court reiterates that it is for the parties to substantiate their factual arguments by providing the Court with the necessary evidence. Whereas the Court is responsible for establishing the facts, it is up to the parties to provide active assistance by supplying it with all the relevant information. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Lisnyy and Others v. Ukraine and Russia (dec.), nos. 5355/15, 44913/15 and 50853/15, § 25, 5 July 2016).
27. At the same time, the Court acknowledges that cases concerning armed conflicts may raise particular difficulties and require evidence which may only be at the disposal of the Government. Especially when it comes to allegations made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001-VII). Without prejudice to possible issues of jurisdiction raised by the present case, the Court recalls that it has held that in areas under the exclusive control of the authorities and with prima facie evidence that the State agents could have been involved in the alleged treatment contrary to Article 2 and Article 3, the State bears the burden of providing a plausible explanation (see Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II (extracts); Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005; Makhauri v. Russia, no. 58701/00, § 123, 4 October 2007).
28. Indeed, in specific circumstances, the distribution of the burden of proof must be adjusted to the specificity of the facts of the case (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII). Even though it is for the applicants to provide evidence in support of their claims, in exceptional cases, the requirement will also be satisfied if the applicants give the Court a convincing explanation as to why it was not possible to submit the evidence (see Lisnyy, cited above, §§ 27‑30; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012).
2. Complaints under Article 1 of Protocol No. 1
29. In the light of the above, the Court considers that it was for the present applicants to submit documents showing that the property allegedly destroyed or damaged was part of their possessions and the property suffered damage as a result of the relevant hostilities.
30. The applicants provided the Court with a number of documents showing their residence in the apartment and the first applicant’s ownership thereof.
31. In general, the Court requires a standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar, cited above, § 282). At the same time, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII). No such presumptions, however, arise in the present case regarding the alleged destruction of the applicant’s property.
32. The Court did not obtain any prima facie evidence relating to the alleged destruction of or damage to the relevant property. It cannot accept a list of property damaged or destroyed in the conflict drafted by the applicants and supported by the signatures of some witnesses as even prima facie evidence of the existence and extent of the material damage allegedly suffered by the applicants.
33. The Court admits that situations arising from an armed conflict imply specific circumstances which may create obstacles for adducing evidence. The Court is, however, aware that many applicants before the Court, whose complaints stem from the particular context of the hostilities in the Tskhinvali Region during the same period of time and who raise similar issues, have been able to submit documentary evidence from the local authorities attesting to the damage suffered and its extent. Regarding the present case, the Court cannot but note that the applicants did not provide any specific explanation as to why no documentation confirming the damage or destruction of their property could have been adduced (see, mutatis mutandis, Lisnyy, cited above, §§ 27-30; Dzhioyeva and Others v. Georgia, nos. 24964/09, 20548/09 and 22469/09 (dec.), § 44, 20 November 2018).
34. As noted above, neither the circumstances of the case nor the applicants’ claims suggest that it was impossible for them to obtain any official statement from the local Ossetian authorities confirming the existence and extent of the damage actuallysuffered. The Court therefore finds that the applicants failed to produce appropriate prima facie evidence in support of their complaints under Article 1 of Protocol No. 1, and that this part of the application is therefore manifestly ill-founded.
3. Complaints under Articles 2, 3 and 8 of the Convention
35. In relation to the complaints raised under Articles 2, 3, and 8 of the Convention, the Court notes that the applicants fled their home before the outburst of the conflict and were not, therefore, present in the area during the heavy fights and were not forced to seek shelter in the basement.
36. Situation of an armed conflict, in particular the presence of the applicant in the area during heavy bombing and concurrent danger to his or her life, can raise issues under the afore-mentioned provisions, assuming that particularly Article 2 of the Convention were applicable under the circumstances of the case (see, for example, Abuyeva and Others v. Russia, no. 27065/05, 2 December 2010, §§ 200 and 203; Benzer and Others v. Turkey, no. 23502/06, § 212, 12 November 2013). However, the applicants left their home prior to the hostilities, and therefore were not exposed to such danger. This part of the application is therefore manifestly ill-founded.
37. In respect of the applicants’ complaints raised under Article 8 of the Convention, the Court acknowledges that forced flight from the hostilities or destruction of the applicants’ home in the conflict can, under certain circumstances, engage this provision. In respect of the present case the Court notes, however, that although the applicants left their homein reaction to the hostilities, they were able to return after a few weeks and continue living in their home, which was allegedly partly damaged, but not destroyed (see, in contrast, Chiragov and Others v. Armenia [GC], no. 13216/05, §§ 206-207, ECHR 2015; Sargsyan v. Azerbaijan [GC], no. 40167/06, 256-257, ECHR 2015).
38. Although it is reasonable to assume that taking refuge in another country for a relatively short period of time due to the hostilities caused the applicants some level of stress and discomfort, the Court concludes that such discomfort does not amount to an interference with private and family life of the applicants protected by Article 8 of the Convention. The complaint under this provision is therefore manifestly ill-founded.
4. Remaining complaints
39. In relation to complaint under Article 5 § 1 of the Convention, the Court notes that the applicants did not submit any relevant claim suggesting that they were unlawfully deprived of their personal liberty, nor does such claim arise from the factual account. The complaint is therefore manifestly ill-founded.
40. Moreover, taking into account that the Court finds the complaints under Articles 2, 3, 5 § 1 and 8 of the Convention to be manifestly ill-founded, it follows that the complaints raised under Articles 13 and 14 of the Convention are also manifestly ill-founded.
D. Conclusion
41. In the light of these circumstances, the Court declares the applications inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 13 December 2018.
Abel Campos Linos-Alexandre Sicilianos
Registrar President
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[1] The term ‘South-Ossetia’ refers to the region of Georgia which is beyond de facto control of the Georgian Government.
[2] Rectified on 29 January 2019: footnote added (see above).
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