Last Updated on May 11, 2019 by LawEuro
Information Note on the Court’s case-law 224
December 2018
Naniyeva and Bagayev v. Georgia (dec.) – 2256/09 and 2260/09
Decision 20.11.2018 [Section I]
Article 35
Article 35-3-a
Manifestly ill-founded
Failure to provide prima facie evidence about destruction of property, life endangerment and ill-treatment in the context of armed conflict in South Ossetia: inadmissible
Facts – The applicants are Russian nationals living in South Ossetia. As a result of the Georgian army’s shelling of their town in August 2008, the applicants submit that they had to take shelter in the basement of their property and remain there for three days without access to water, food or electricity. They then fled to Russia and upon returning to their town a few weeks later, they learned that their property and belongings had been completely destroyed.
Law – Article 35 § 3 (a): Regarding the applicants’ complaint under Article 1 of Protocol No. 1, it was for the applicants to submit documents showing that the property allegedly destroyed or damaged had been part of their possessions and that it had suffered damage as a result of the conflict. However, the Court had not received any evidence relating to the alleged destruction of or damage to the relevant property. As regards the copies of bills that had been submitted by the applicants concerning home appliances that had been bought in the period after the conflict, these documents could not be accepted even as prima facie evidence of the existence and extent of the alleged destruction or damage, or the causes thereof. Furthermore, nothing in the circumstances of the case or in the applicants’ claims suggested that it had been impossible for them to obtain an official statement from the local authorities confirming the extent of the damage actually suffered. The applicants had therefore failed to produce appropriate prima facie evidence in support of their complaints under Article 1 of Protocol No. 1.
Assessing their Article 2 complaint, it was noted that, although the applicants had provided witness statements confirming that they had taken shelter in the basement, they had failed to produce convincing prima facie evidence showing that the conflict affected the area where they were present in such a manner that it had directly and immediately endangered their lives. Under Article 3 it was noted that the applicants had not provided evidence that the activities of the Georgian army had been aimed at humiliating them or causing them mental suffering, nor that they had had to witness the destruction of their home, which could have caused them severe psychological suffering.
While forced flight from hostilities or destruction of the applicants’ home in the conflict could, under certain circumstances, have engaged Article 8 of the Convention, it was noted that the applicants in the present case had been able to return and continue living in their home after a few weeks. Although taking refuge in another country, even for a relatively short period of time, due to hostilities had presumably caused the applicants some level of stress and discomfort, this did not amount to an interference with their private and family life.
In the light of the foregoing, the applicants’ complaints under Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1 were manifestly ill-founded.
Conclusion: inadmissible (manifestly ill-founded).
(See also Lisnyy and Others v. Ukraine and Russia (dec.), 5355/15 et al., 5 July 2016, Information Note 198; Sargsyan v. Azerbaijan [GC], 40167/06, 16 June 2015, Information Note 186; Georgia v. Russia (II), 38263/08, 13 December 2011, Information Note 151 (summary on relinquishment); and the Factsheet on Armed conflicts)
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