FIRST SECTION
DECISION
Application no. 19879/09
Makvala ELBAKIDZE
against Russia
The European Court of Human Rights (First Section), sitting on 15 September 2020 as a Committee composed of:
Aleš Pejchal, President,
Pauliine Koskelo,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 8 February 2009,
Having regard to the decision of 24 August 2011 to give notice of the application to the Russian Government (“the Government”) for information,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Makvala Elbakidze, is a Georgian national, who was born in 1929 and lives in Tbilisi. She was represented before the Court by Mr B. Botchorishvili and Mr I. Khatiashvili, lawyers practising in Tbilisi.
2. The applicant submitted various complaints in the context of events relating to the conflict in August 2008 (see Dzhioyeva and Others v. Georgia (dec.), nos. 24964/09, 20548/09 and 22469/09, § 14, 20 November 2018).
COMPLAINTS
3. Relying on Article 3 of the Convention the applicant, allegedly a resident of the village of Kekhvi, complained of the shelling of that village and the resulting bodily harm caused to her (burns to a limb). She also complained under Article 8 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention of the destruction of her property and her inability to return to her village. Relying on Articles 13 and 14 of the Convention, the applicant complained of the absence of an effective remedy for her complaints and of having suffered discrimination in the enjoyment of her rights.
4. To support her claims, the applicant submitted to the Court a medical note dated 4 February 2009 issued by a Tbilisi-based doctor apparently employed by the Organisation representing her. That document referred to the applicant’s own account of events, including the alleged injury, based on which she had been diagnosed with post-traumatic stress disorder. The applicant also submitted a letter received from the Office of the Chief Prosecutor of Georgia on 6 February 2009 stating, in general terms, that an investigation into crimes allegedly committed in respect of the applicant was ongoing, and various documents generally relating to the events of August 2008.
THE LAWGeneral considerations
5. The Court has already dealt with similar complaints and made findings regarding the issue of non-exhaustion of domestic remedies under Article 35 § 1 of the Convention and a duty incumbent on applicants to substantiate their grievances by supplying evidence in support of their claims in the previous cases against Georgia which concerned events relating to the conflict of August 2008 (see Dzhioyeva and Others v. Georgia (dec.), nos. 24964/09, 20548/09 and 22469/09, §§ 23-30, 20 November 2018; Naniyeva and Bagayev v. Georgia (dec.), nos. 2256/09 and 2260/09, §§ 19‑26, 20 November 2018; and Kudukhova v. Georgia (dec.), nos. 8274/09 and 8275/09, §§ 21-28, 20 November 2018). These considerations also apply in the present case.
6. In particular, the Court would reiterate that it is not a tribunal of facts and cannot, without appropriate assistance on the part of the applicants, establish the factual account of complex events, such as situations of armed conflict (see Naniyeva and Bagayev, cited above, § 39).Complaint under Article 3 of the Convention
7. The Court recognises that the applicant’s allegations are of a serious nature. However, in support of her complaint about the shelling of her village and the resulting injury to her limb the applicant submitted a medical document issued by a Tbilisi-based doctor apparently employed by the Organisation representing her interests before the Court. It was issued several months after the alleged events and merely repeated the applicant’s account, without the doctor having had the possibility of observing the alleged injury first-hand or otherwise objectively confirming whether the applicant had been present at the site of the events of the conflict at the material time. A generic note issued by a Georgian prosecutor to the effect that a criminal investigation into the crimes allegedly committed in respect of the applicant was ongoing cannot make up for the applicant’s failure to present prima facie evidence in respect of her whereabouts during the conflict.
8. The applicant failed to provide the Court with convincing prima facie evidence that the hostilities took place in her proximity with such intensity and in a manner that would have raised an issue under Article 3 of the Convention. Moreover, there is no sufficient indication that the diagnosis described in the relevant medical note had been related to the events of the conflict. That being so, the Court finds her complaint to be unsubstantiated.
9. Accordingly, this part of the application must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Complaints under Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4
10. The Court reiterates that it was for the applicant to provide sufficient prima facie evidence in support of her complaints under Article 8 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention about the alleged destruction of property and her inability to return to her village in the context of the events related to the conflict. However, no evidence to demonstrate ownership of property, its destruction, or any link with the relevant village was submitted.
11. The Court accepts that situations arising from an armed conflict imply specific circumstances which may create obstacles for adducing evidence. It 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 various items of documentary evidence, including documents from the local authorities attesting to their residence in the relevant villages, the damage suffered and its extent. Regarding the present case, the Court cannot but note that the applicant did not provide any specific explanation as to why no documentation at all could be adduced (see, mutatis mutandis, Lisnyy and Others v. Ukraine and Russia (dec.), nos. 5355/15, 44913/15 and 50853/15, §§ 27-30, 5 July 2016; and Dzhioyeva and Others, cited above, § 30).
12. The Court therefore finds that these complaints are unsubstantiated and must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Complaints under Articles 13 and 14 of the Convention
13. Having regard to the fact that Article 14 is not autonomous (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 (extracts)) and the conclusion that the above complaints under Articles 3 and 8 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 are manifestly ill-founded (see paragraphs 9 and 12 above), the applicant’s claims under Article 14 of the Convention are likewise manifestly ill-founded.
14. As regards Article 13 of the Convention, this provision only applies to “arguable” complaints (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑ XI).
15. It follows that the remainder of the application is manifestly ill‑founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 October 2020.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
Full & Egal Universal Law Academy