FIRST SECTION
\nDECISION<\/p>\n
This version was rectified on 29 January 2019<\/em> Applications nos.2256\/09 and 2260\/09 The European Court of Human Rights (First Section), sitting on 20\u00a0November 2018 as a Chamber composed of:<\/p>\n Linos-Alexandre Sicilianos, President, Having regard to the above applications lodged on 15 September 2008,<\/p>\n Having deliberated, decides as follows:<\/p>\n THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant in the first case, Klara FedorovnaNaniyeva, born in\u00a01952 in Nakrepa, is a wife of the applicant in the second case, Umar YestateyevichBagayev, born in 1946 in Rustavi.<\/p>\n 2.\u00a0\u00a0Both applicants are Russian nationals and live together in Tskhinvali, the capital of Tskhinvali Region (South Ossetia[1])[2]. They are represented before the Court by Dmitry Matveev and Partners, a law firm based in Moscow.<\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the applicants, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0On 4 August 2008 the first applicant, together with the second applicant and their son, noticed that hostilities had started on the territory of Tskhinvali Region (South Ossetia).<\/p>\n 5.\u00a0\u00a0On 7 August 2008 around midnight, when the applicants were resting in their apartment, they suddenly heard a heavy noise, caused by almost uninterrupted explosions.<\/p>\n 6.\u00a0\u00a0They took shelter in the basement of the house they lived in. They had no water, food or electricity. Small children were crying and there were a number of injured people without access to any medication, whom the applicants could not help.<\/p>\n 7.\u00a0\u00a0Later in the night, when the shootings were less heavy, the applicants moved to their house, where they were hiding in the basement until 10\u00a0August 2008. Georgian soldiers approached the basement several times threatening to kill those who want to \u201clive with the Russians\u201d. The first applicant lost consciousness due to the fear and stress.<\/p>\n 8.\u00a0\u00a0On 10 August 2008 they were taken to the bus station, from which they travelled by bus to Vladikavkaz (Russian Federation) and further to a camp in Alagir. Later they were transferred to Rostov on Don (Russian Federation).<\/p>\n 9.\u00a0\u00a0When the applicants returned to Tskhinvali, they learned that both their apartment and the house were completely destroyed together with all furniture, household appliances, documents and personal belongings.<\/p>\n RELEVANT INTERNATIONAL MATERIAL<\/strong><\/p>\n 10.\u00a0\u00a0The 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):<\/p>\n \u201cOn 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\u2019s main east-west road, reaching the port of Poti and stopping short of Georgia\u2019s 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.\u201d<\/p>\n COMPLAINTS<\/strong><\/p>\n 11.\u00a0\u00a0The applicants primarily argue that the activities of the Georgian army, namely the indiscriminate shelling of civilian areas in Tskhinvali, put their lives at immediate danger, and therefore violated Article 2 of the Convention. Theseactivities also caused them serious moral and physical suffering in breach of Article 3 of the Convention.<\/p>\n 12.\u00a0\u00a0The 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 and house were destroyed as a result of the bombing of Tskhinvali.<\/p>\n 13.\u00a0\u00a0The applicants also invoke Article 13 of the Convention in conjunction with Article 3 of the Convention, alleging that there was no effective remedy for the violations of their rights. They allege that the court system stopped functioning in Tskhinvali Region (South Ossetia) as a result of the hostilities, and Georgian authorities could not have been deemed to be capable of providing effective investigation into the activities of their own army.<\/p>\n 14.\u00a0\u00a0Under Article 14 of the Convention in conjunction with Articles 3 and 13 of the Convention the applicants claim 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.<\/p>\n 15.\u00a0\u00a0Finally, they allege a violation of Article 8 of the Convention complaining, in substance, of having to leave their home behind.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Joinder of the applications<\/strong><\/p>\n 16.\u00a0\u00a0Given their similar factual and legal background, the Court decides that the applications should be joined under Rule 42 \u00a7 1 of the Rules of the Court.<\/p>\n B.\u00a0\u00a0The applicants\u2019 complaints<\/strong><\/p>\n 17.\u00a0\u00a0The applicants raised various complaints under Articles 2, 3, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.<\/p>\n 18.\u00a0\u00a0To support their claims, the applicants provided the Court with the following documents: the first and second applicant\u2019s passports; a list of property items damaged or destroyed in the conflict, supported by witness signatures; witness statements confirming their refuge in the basement and the course of the conflict events; photos of the basement the applicants were hiding in; a confirmation from the authorities of the Russian Federation that the applicants crossed the border to the Russian Federation; medical documents of both applicants; the House book and the technical passport to the apartment registered in the second applicant\u2019s name; a purchase contract to the house in the second applicant\u2019s name from 2006; and various documents relating to house appliances and paid bills for restoration of the apartment.<\/p>\n C.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 1.\u00a0\u00a0General considerations<\/em><\/p>\n 19.\u00a0\u00a0The Court notes that pursuant to Article 35 \u00a7 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.<\/p>\n 20.\u00a0\u00a0Furthermore, under the third paragraph, letter a) of the same 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.<\/p>\n 21.\u00a0\u00a0The 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.<\/p>\n 22.\u00a0\u00a0However, 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.<\/p>\n 23.\u00a0\u00a0The 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.\u00a0Russia, nos. 2944\/06 and 4 others, \u00a7 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.<\/p>\n 24.\u00a0\u00a0The 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, \u00a7 161, Series A no. 25; Lisnyy and Others v.\u00a0Ukraine and Russia (dec.), nos. 5355\/15, 44913\/15 and 50853\/15, \u00a7 25, 5\u00a0July 2016).<\/p>\n 25.\u00a0\u00a0At 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.\u00a0Austria, 4 December 1995, \u00a7 32, Series A no. 336, and Av\u015far v. Turkey, no. 25657\/94, \u00a7 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.\u00a021894\/93, \u00a7 211, ECHR 2005-II (extracts); To\u011fcu v. Turkey, no.\u00a027601\/95, \u00a7 95, 31 May 2005; Makhauri v. Russia, no. 58701\/00, \u00a7 123, 4 October 2007).<\/p>\n 26.\u00a0\u00a0Indeed, 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, \u00a7 147, ECHR 2005-VII).\u00a0Even 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, \u00a7\u00a7\u00a027\u201130; Creang\u0103 v. Romania [GC], no. 29226\/03, \u00a7 88, 23 February 2012).<\/p>\n 2.\u00a0\u00a0Complaints under Article 1 of Protocol No. 1<\/em><\/p>\n 27.\u00a0\u00a0In 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 that the property suffered damage as a result of the relevant conflict events.<\/p>\n 28.\u00a0\u00a0The applicants provided the Court with a number of documents proving the second applicant\u2019s ownership of the house and their registration at the apartment they lived in, witness testimonies that the applicants had been present and hiding in the basement during the shelling of Tskhinvali, a document confirming that they fled Tskhinvali shortly after the bombing, various documents relating to the purchase of home appliances as well as bills for restoration of the apartment.<\/p>\n 29.\u00a0\u00a0In general, the Court requires a standard of proof \u201cbeyond reasonable doubt\u201d in its assessment of evidence (see Av\u015far v. Turkey, no.\u00a025657\/94, \u00a7\u00a0282, ECHR 2001-VII). 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 Tani\u015f and Others v. Turkey, no.\u00a065899\/01, \u00a7 160, ECHR 2005-VIII). No such presumptions, however, arise in the present case regarding the alleged destruction of the applicants\u2019 property.<\/p>\n 30.\u00a0\u00a0The Court did not obtain any prima facie evidence relating to the alleged destruction of or damage to the relevant property. As regards the copies of bills submitted by the applicants concerning home appliances bought in the period after the conflict, the Court cannot accept such documents as even prima facie evidence of the existence and extent of the alleged destruction or damage, or the causes thereof.<\/p>\n 31.\u00a0\u00a0The 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, \u00a7\u00a7 27-30; Dzhioyeva and Others v.\u00a0Georgia, nos. 24964\/09<\/a>, 20548\/09 and 22469\/09 (dec.), \u00a7 44, 20\u00a0November 2018).<\/p>\n 32.\u00a0\u00a0As noted above, neither the circumstances of the case nor the applicants\u2019 claims suggest that it was impossible for them to obtain any official statement from the local Ossetianauthorities confirming the extent of the damage actually suffered. 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.<\/p>\n 3.\u00a0\u00a0Complaints under Articles 2, 3 and 8 of the Convention<\/em><\/p>\n 33.\u00a0\u00a0In relation to the applicants\u2019 complaints under Articles 2, 3, and 8 of the Convention, the Court notes that both applicants claim that they were forced to seek shelter in the basement of their house and spend several days without water or food, together with a number of other persons, some of whom were injured. Subsequently, the applicants had to flee their homes and seek refuge in the Russian Federation. They were, after a few weeks, able to return to their home.<\/p>\n 34.\u00a0\u00a0The Court recognizes that the applicants\u2019 allegations are of a serious nature and that such grievances may, under certain circumstances, raise issues under the afore-listed provisions.<\/p>\n 35.\u00a0\u00a0According to the Court\u2019s jurisprudence, an immediate danger to lifecaused by the conduct of the State agents, can engage Article 2 of the Convention even in situations, when no death occurred (see Makaratzis v.\u00a0Greece [GC], no. 50385\/99, \u00a7 55, ECHR 2004\u2011XI; Soare v. Romania, no.\u00a072439\/01, \u00a7 109, 16June 2009; Tr\u00e9valec v. Belgium, no. 30812\/07, \u00a7\u00a055-61, 14 June 2011). Thesameapplies to situations of indiscriminate use of lethal force against civilian population, if the level of danger the applicant was exposed to was sufficiently immediate and severe (see Abuyeva and Others v. Russia, no. 27065\/05, 2 December 2010, \u00a7\u00a7 200 and 203).<\/p>\n 36.\u00a0\u00a0Assuming that Article 2 of the Convention were applicable under the circumstances of the case, a prima facie claim on part of the applicant is sufficient to shift the burden of proof to the respondent Government to provide a convincing explanation as to how the events in question occurred (see Varnava and Others v. Turkey, [GC], nos. 16064\/90 and 8 others, \u00a7\u00a0184, ECHR 2009).<\/p>\n
\nunder Rule 81 of the Rules of Court.<\/em><\/p>\n
\nKlara Fedorovna NANIYEVA against Georgia
\nand Umar Yestateyevich BAGAYEV against Georgia<\/p>\n
\nKsenija Turkovi\u0107,
\nKrzysztof Wojtyczek,
\nPauliine Koskelo,
\nTim Eicke,
\nLado Chanturia,
\nGilberto Felici, judges,
\nand Abel Campos, Section Registrar,<\/p>\n