FIRST SECTION
DECISION
This version was rectified on 29 January 2019
under Rule 81 of the Rules of Court.
Application no. 24964/09
Khadizat Sergeyevna DZHIOYEVA against Georgia
and 2 other applications
(see list appended)
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 the various dates indicated in the appended table,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, (no. 24964/09), Khadizat Sergeyevna Dzhioyeva, born in 1948 in Teregvan, is the mother of the applicant in the second case (no. 20548/09), Irina Ushangovna Kachmazova, born in 1990 in Tskhinvali, and of the applicant in the third case (no. 22469/09), Alina Ushangovna Kachmazova, born in 1987 in Tskhinvali.
2. All applicants are Russian nationals and live in the same apartment in Tskhinvali, the capital of Tskhinvali Region (South Ossetia[1])[2]. They are represented before the Court by lawyers with Klishin and Partners, a law firm based in Moscow.
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. On 1 August 2008 at around 10 pm. the applicants noticed that hostilities had started on the territory of Tskhinvali region (South Ossetia). All three applicants, together with their neighbours, took shelter in the basement of their house.
5. On 3 August 2008 the second and third applicants decided to leave Tskhinvali to stay in Mschleb village. The first applicant, together with the second and third applicants’ older sister, stayed in their apartment in Tskhinvali.
6. On 7 August 2008 the first applicant was at home together with her older daughter, when the Georgian president announced that there will be no war in South Ossetia. The announcement ensured the first applicant that no danger was coming and she therefore went to sleep.
7. On 7 August 2008, at approximately 11 pm., the first applicant heard the sounds of shootings, including the shots from heavy artillery. She again took shelter in the basement of their house, fearing for her life. She did not manage to take food or water with her, and the basement was cold and damp.
8. On 8 August 2008 the first applicant left the basement for her apartment to bring some warmer clothes and food. She saw Georgian soldiers in her street carrying out weaponry and other equipment.
9. When she came to her apartment to take some supplies, a shell hit the side of the bedroom wall. The wall was torn down and the shell destroyed everything in the room. In shock and panic the applicant returned back to the basement.
10. Shortly afterwards, the first applicant was warned by a neighbour about the smell of burn around the house. Upon returning to her apartment, she saw that it was on fire. She tried to put the fire out with their supplies of water.
11. On 9 August 2008 the first applicant left the basement of her house with the help of South Ossetian militia men who transferred her to another basement, where she stayed until the evening, and returned for the basement in her house later on for the night.
12. On 10 August 2008 the South Ossetian militia men again transferred the first applicant together with other civilians to the basement where she had been earlier. At approximately 3 pm. they took them to Chvtse village. Later on, the first applicant arrived in Vladikavkaz (the Russian Federation) to reunite with the second and third applicant.
13. On 1 September 2008 the three applicants returned home and saw that Tskhinvali was heavily damaged. Their apartment, including the furniture, home appliances and their personal belongings, was damaged.
RELEVANT INTERNATIONAL MATERIAL
14. 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
15. The applicants assert that the activities of the Georgian army put their lives at serious risk and was in violation of Article 2 of the Convention. These activities also caused them serious moral and physical damage in breach of Article 3 of the Convention.
16. 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, because their apartment was burnt down as a result of the bombing of Tskhinvali,
17. The applicants also invoke Article 13 of the Convention in conjunction with Article 3 of the Convention, alleging that there was no effective investigation into the events complained of.
18. Lastly, the applicants claim under Article 14 of the Convention in conjunction with Articles 3 and 13 of the Convention that the activities of the Georgian army were directed deliberately against South Ossetian civilians and that as South Ossetians, they do not enjoy effective access to the protection of their rights through Georgian authorities.
19. The applicants also allege a violation of Article 8 of the Convention, complaining, in substance, of having to leave their home behind and flee the country as a result of the conflict.
THE LAW
A. Joinder of the applications nos. 20548/09 and 22469/09
20. Given their similar factual and legal background, the Court decides that the applications nos. 20548/09 and 22469/09 should be joined under Rule 42 § 1 of the Rules of the Court.
B. The applicants’ complaints
21. Referring to Articles 2, 3, 8, 13, 14 of the Convention and Article 1 of Protocol No. 1, the applicants raised various complaints.
22. To support their claims, they submitted before the Court the following documents: the applicants’ passports; witness statements of the second and third applicants’ older sister confirming the account of the events; a list of property items damaged or destroyed in the conflict, supported by witness signatures; a House book, showing the registration of the first and third applicants at the relevant address; photos showing a damaged house and the apartment, including a heavily damaged bedroom; and a confirmation of the Tskhinvali municipality housing office that the first applicant lives in a communal apartment no. 9 on Gafeza street no. 17, with hand-written note that the apartment was partly destroyed during the conflict.
C. The Court’s assessment
1. General considerations
23. 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.
24. Furthermore, according to paragraph 3, 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.
25. 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 capable of providing effective investigation into the activities of their own army.
26. However, the Court does not consider it necessary to decide whether the applicants satisfied the condition of exhaustion of domestic remedies, because the major part of their complaints is inadmissible for the reasons specified below. In respect of the remaining part, the Court will not decide on the merits.
27. 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.
28. 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).
29. 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; Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001-VII). 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. 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 of the Convention, 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).
30. 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). 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 (see paragraph 44 below).
2. The three applicants’ complaints under Article 1 of Protocol No. 1
31. The applicants complain that in violation of Article 1 of Protocol No. 1, they were deprived of the possibility to peacefully enjoy the property in which they lived, because their apartment was burn down as a result of the bombing of Tskhinvali.
Article 1 of Protocol No. 1
“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
...”
32. Referring to its aforementioned general considerations, the Court observes that it was for the present applicants to submit documents showing that the property, whose destruction they complain of, was their possession within the meaning of Article 1 of Protocol No. 1 and, at the same time, that the property suffered damage as a result of the relevant events.
33. The applicants provided the Court with evidence of the third and first applicants’ residence in a communal apartment owned by the municipal authorities and rented by them. The applicants also submitted prima facie evidence of the damage caused to the apartment in the course of the hostilities. They also provided a witness statement, confirming the second applicant’s account of events.
34. The Court is aware of certain specificities in relation to the ownership of housing property in the post-Soviet countries, in which, after the reform, a rule often applied that the communal housing could be automatically transferred to private ownership of the tenant only upon the tenant’s request and payment of a fee. There could, therefore, be an arguable case for the applicants under the applicable national law to the effect that they had a legitimate expectation to acquire the property in question, and that such property could therefore be deemed as possessions within the autonomous meaning under Article 1 of Protocol No. 1 (see, mutatis mutandis, Akimova v. Azerbaijan, no. 19853/03, §§ 39-41, 27 September 2007 ; for a description of some housing regimes in former socialist countries, see also Berger-Krall and Others v. Slovenia, no. 14717/04, where, however, the applicability of Article 1 of Protocol No. 1 ratione materiae was left open, §§ 107-115 and 135).
35. In the present case, however, the Court must note that the applicants did not put forward any such claim. At the same time, they did not take any steps to acquire the ownership of the apartment in question, and their decision to remain mere tenants, and not owners, appears to have been deliberate. The Court therefore concludes that the apartment, of whose destruction the applicants complain, did not belong to them as a possession within the meaning of Article 1 of Protocol No. 1.
36. The applicants also complain of the destruction of movable property, for which they provide a list with calculation of damage, supported by witness signatures. The Court, however, recalls that its role is not to be a tribunal of first instance and it is not able to judge the probative value of such documents or to adjudicate on complaints which would require it to assess and make findings of primary facts relating to the ownership of the property in question or the existence and extent of the damage caused to it. In the absence of other evidence, the Court cannot but decide that the applicants did not submit sufficient prima facie evidence as far as these particular complaints are concerned.
37. Consequently, the Court considers that the three applicants’ complaint under Article 1 of Protocol No. 1 must be dismissed as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.
3. The second and third applicants’ complaints under Articles 2 and 3 of the Convention and the three applicants’ complaints under Article 8 of the Convention
38. Regarding the second and third applicants’ complaints under Articles 2 and 3 of the Convention, the Court notes that both applicants fled their home before the outburst of the conflict (see paragraph 5 above) and were not present in the area during the fighting. Being in a situation of an armed conflict, in particular the presence in the area during bombing and concurrent danger to the applicant’s life, can raise issues under the afore-mentioned provisions (see, for example, Abuyeva and Others v. Russia, no. 27065/05, 2 December 2010; Esmukhambetov and Others v. Russia, no. 23445/03, 29 March 2011). However, the applicants left their home prior to the hostilities, and therefore were not exposed to any such danger.
39. In respect of the three applicants’ complaints raised under Article 8 of the Convention, the Court notes that it transpires from the facts of the case that the applicants returned home several weeks after the events and continued living in their apartment, despite the damage that it has suffered.
40. Forced flight from the hostilities or destruction of the applicants’ home in the conflict can, under certain circumstances, engage the application of Article 8 of the Convention. In respect of the present case the Court notes, however, that although the applicants left their home in reaction to the hostilities, they were able to return after a few weeks and continue living in their home, which was 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).
41. Although it is reasonable to assume that taking refuge in another country for a relatively short period of time allegedly due to the hostilities would have caused the applicants some level of stress and discomfort, the Court concludes that such discomfort alone does not amount to an interference with private and family life of the applicants protected by Article 8 of the Convention.
42. Accordingly, the second and third applicants’ complaints under Articles 2, 3 and 8 of the Convention, and the first applicant’s complaint under Article 8 of the Convention are manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
4. The first applicant’s complaints under Articles 2 and 3 of the Convention
43. The first applicant argues that the activities of the Georgian army put her life at serious risk and was in violation of Article 2 of the Convention. These activities also caused her serious moral and physical damage in breach of Article 3 of the Convention.
44. In support of her claims the applicant provided the Court with prima facie evidence that during the intensive phase of the hostilities in Tskhinvali, she took shelter in the basement of her house, which was damaged by the attack of heavy weaponry. The applicant submitted photos of the house, carrying the signs of damage by bullets and explosions, and her apartment, which also shows signs of damage as described by her. The applicant also provided a confirmation by the local Ossetian authorities that the house in which she lived was damaged during the conflict.
Article 2 § 1 of the Convention
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”
Article 3 of the Convention
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
45. Assuming that Article 2 of the Convention were applicable under the circumstances of the present case, the Court can therefore accept, on the basis of such prima facie evidence, that the applicant’s life could have been put in immediate danger by the activities of the Georgian army. Such a situation may, according to the Court´s case law, engage Article 2 of the Convention (see Makaratzis v. Greece [GC], no. 50385/99, § 55, ECHR 2004‑XI; Soare v. Romania, no. 72439/01, § 109, 16 June 2009; Trévalec v. Belgium, no. 30812/07, § 55-61, 14 June 2011; Abuyeva and Others, cited above, §§ 200 and 203). In such a 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, § 184, ECHR 2009).
46. Moreover, the level of anguish and distress the applicant may have endured during such a situation is potentially capable of engaging Article 3 of the Convention (see Benzer and Others v. Turkey, no. 23502/06, § 212, 12 November 2013).
47. Finding that the first applicant’s situation is different to that of the second and third applicants (see paragraphs 37-41 above), the Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
5. The applicants’ remaining complaints
48. All the three applicants also raised complaints under Article 13 of the Convention in conjunction with Article 3 of the Convention, and under Article 14 of the Convention in conjunction with Articles 3 and 13 of the Convention.
Article 13 of the Convention
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
49. Considering that the second and third applicants’ complaints under Articles 2 and 3 of the Convention were found manifestly ill-founded (see paragraph 41 above), the complaints under Articles 13 and 14 of the Convention must also be considered manifestly ill-founded and, therefore, rejected under Article 35 § 3 (a) and 4 of the Convention.
50. In relation of the first applicant’s complaints raised under Articles 13 and 14 of the Convention, the Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints (see paragraphs 42-44 above) and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court, unanimously,
Decides to join applications nos. 20548/09 and 22469/09 and declares them inadmissible;
Decides to adjourn the examination of the complaints of Khadizat Sergeyevna Dzhioyeva (application no. 24964/09) concerning the alleged violation of Articles 2, 3, 13 and 14 of the Convention;
Declares the remainder of application no. 24964/09 inadmissible.
Done in English and notified in writing on 13 December 2018.
Abel CamposLinos-Alexandre Sicilianos
RegistrarPresident
Appendix
1. Khadizat Sergeyevna Dzhioyeva, no. 24964/09, lodged on 22 September 2008
2. Irina Ushangovna Kachmazova, no. 20548/09, lodged on 27 September 2008
3. Alina Ushangovna Kachmazova, no. 22469/09, lodged on 27 September 2008
[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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