FIRST SECTION
DECISION
Application no. 14653/09
Bezhan JABISHVILI
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 27 February 2009,
Having regard to the decision of 24 August 2011 to give notice of the applications to the Russian Government (“the Government”) for information,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Bezhan Jabishvili, is a Georgian national, who was born in 1974 and lives in the town of Kareli. He was represented before the Court by Ms N. Turmanidze, a lawyer practising in Gori.
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. The applicant complained under Article 1 of Protocol No. 1 to the Convention and Articles 13 and 14 of the Convention about the spoiling of produce (meat, fish and poultry) in his shop in the town of Kareli (undisputed Georgian territory) on account of his having had to flee the town for one month in August 2008. In support of his claims, the applicant submitted to the Court a taxpayer’s certificate; witness statements dated 23 April 2009 noting that the authors had sold meat products to the applicant in August 2008; witness statements dated 28 April 2009 noting, without specifying the relevant dates, that the authors had helped the applicant dispose of the spoiled produce in his shop “after the war ended”; various identity cards; a report concerning market prices of products indicated by the applicant; and financial documents unrelated to the alleged loss of the movable property concerned.
THE LAWGeneral considerations
4. 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.
5. 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).Complaints under Article 1 of Protocol No. 1
6. In the light of the above, the Court considers that it was for the present applicant to submit documents showing that the property allegedly destroyed or damaged was his possession within the meaning of Article 1 of Protocol No. 1 to the Convention and, at the same time, that the property suffered damage as a result of the relevant events (see Dzhioyeva and Others, cited above, § 32). Furthermore, in assessing this part of the application, the Court will pay particular regard to the fact that the property concerned is or was located on the territory of Georgia to which the applicant has unlimited access (see paragraph 3 above).
7. Against this background, the Court notes that while the applicant, represented by a lawyer, complained about the loss of produce, he only submitted witness statements to support his claims of having allegedly purchased such produce, as well as having had it destroyed as a result of the conflict events (see paragraph 3 above). However, the Court cannot accept a list of items damaged or destroyed in the conflict provided by alleged witnesses as even prima facie evidence of the existence and extent of the material damage allegedly suffered by the applicant (see Kudukhova, cited above, § 32). The Court reiterates in this respect 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 applicant did not submit prima facie evidence as far as this particular complaint is concerned (see Dzhioyeva and Others, cited above, § 36).
8. Consequently, the Court considers that the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention is 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
9. 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 Article 1 of Protocol No. 1 to the Convention are manifestly ill-founded, the applicant’s claims under Article 14 of the Convention are likewise manifestly ill-founded.
10. 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).
11. 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