FIRST SECTION
DECISION
Application no. 5355/15
Anton Vasylyovych LISNYY
against Ukraine and Russia
and 2 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 5 July 2016 as a Chamber composed of:
Mirjana Lazarova Trajkovska, President,
Kristina Pardalos,
Ganna Yudkivska,
Linos-Alexandre Sicilianos,
Aleš Pejchal,
Dmitry Dedov,
Robert Spano, judges,
and Abel Campos, Section Registrar,
Having regard to the above applications lodged on 26 December 2014, 27 August 2015 and 15 September 2015, respectively,
Having deliberated, decides as follows:
THE FACTS
1. The background to the cases, as submitted by the applicants, can be summarised as follows:
2. Following demonstrations held in Kyiv and other regions of Ukraine from November 2013 to February 2014, commonly referred to as the “Revolution of Dignity” or “Euromaidan”, the then President and some members of the Government of Ukraine fled abroad. A new Government was then set up.
3. From the beginning of April 2014 onwards, armed pro-Russian groups started to seize official buildings in the east of Ukraine and announced the creation of the so-called “Donetsk and Lugansk People’s Republics”.
4. In response, on 14 April 2014 an “anti-terrorist” operation was announced by the Ukrainian government.
5. The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Application no. 5355/15 Lisnyy v. Ukraine and Russia
6. The applicant resides with his family in Yasynuvata, Donetsk Region.
7. He was represented before the Court by Ms N.Y. Tselovalnichenko, a lawyer practising in Кyiv.
8. The applicant lived in a house belonging to his mother. On 17 August 2014 the house was destroyed by shelling. Everything in the house, including money in the amount of 35,000 United States dollars (USD), was destroyed.
9. The applicant has submitted to the Court a copy of his passport and photographs of a destroyed house.
B. Application no. 44913/15 Piven v. Ukraine
10. The applicant lived in the town of Yasynuvata, Donetsk Region.
11. The applicant was represented before the Court by Mr Talyzin, a lawyer practising in Moscow.
12. She submitted that since April 2014 her city has been under shellfire. On an unspecified date the applicant’s house was damaged by shellfire. The roof, windows, entrance and fence were all damaged. She alleged that her hand had been slightly injured.
13. On 13 February 2014 she had to leave Donetsk for Russia.
14. A copy of the applicant’s passport, copies of OSCE reports on the situation in eastern Ukraine, and some printouts of items found on the Internet on the same subject were submitted to the Court.
C. Application no. 50853/15 Anokhin v. Ukraine and Russia
15. The applicant resides in the village of Troyhizbenka, Lugansk Region.
16. He was represented before the Court by Ms N.Y. Tselovalnichenko, a lawyer practising in Кyiv.
17. The applicant submitted that since summer 2014 the village has been under permanent shellfire. On an unspecified date the applicant’s house was damaged as a result of shellfire.
18. The applicant submitted a copy of his passport to the Court.
COMPLAINTS
19. Referring to Articles 2, 6 § 1, 8, 10 and 13 of the Convention the applicants complained that it was impossible to have their Convention rights guaranteed by these provisions effectively, since all the State institutions in eastern Ukraine, including the courts, suspended their operations and were relocated to areas controlled by the Government of Ukraine.
20. The applicants further complained that their life had been put at risk as a result of the shelling of the villages where they lived.
21. Citing Article 1 of Protocol No. 1, the applicants complained that the shelling had hindered the peaceful enjoyment of their property and dwelling places.
THE LAW
A. Joinder of the applications
22. Given their similar factual and legal background, the Court decides that the applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
B. The applicants’ complaints
23. Referring to Articles 2, 6 § 1, 8, 10 and 13 of the Convention and to Article 1 of Protocol No. 1 to the Convention the applicants raised various complaints of breaches of their rights.
24. The relevant part of Article 35 of the Convention reads as follows:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
(a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded”
25. The Court reiterates that the proceedings before the Court are adversarial in nature. It is therefore 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).
26. In so far as the applicants rely on Article 1 of Protocol No. 1 to the Convention, the Court has accepted the claim of ownership by some applicants on the basis of extracts from a housing inventory issued by the town administration after the attack complained of (see Kerimova and Others v. Russia, nos. 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05, § 293, 3 May 2011). In Damayev v. Russia (no. 36150/04, § 108-111, 29 May 2012) it considered that an applicant complaining about the destruction of his home should provide at least a brief description of the property in question. As further examples of prima facie evidence of ownership of or residence on property, the Court has accepted documents such as land or property titles, extracts from land or tax registers, documents from the local administration, plans, photographs and maintenance receipts as well as proof of mail deliveries, statements of witnesses or any other relevant evidence (see, for instance, Prokopovich v. Russia, no. 58255/00, § 37, ECHR 2004-XI, and Elsanova v. Russia (dec.), no. 57952/00, 15 November 2005). Generally, if an applicant does not produce any evidence of title to property or of residence, his complaints are bound to fail (see, Sargsyan v. Azerbaijan [GC], no. 40167/06, § 183, ECHR 2015).
27. To sum up, the applicants are required to provide sufficient prima facie evidence in support of their complaints under Article 1 of Protocol No. 1 to the Convention about destruction of property in the context of armed conflict. Similar considerations apply as far as complaints made under Articles 2, 6 § 1, 8, 10 and 13 of the Convention are concerned.
28. In the present cases, the Court observes at the outset that the applicants were legally represented. However, the first applicant submitted only a copy of his passport and photographs of a destroyed house. No proof of the ownership of that house or any other right that the applicant may have had in respect of that house was submitted. The second applicant submitted a copy of her passport and copies of various reports of the Organisation of Security and Co-operation in Europe and certain printouts of items found on the Internet on the general situation in eastern Ukraine. The third applicant submitted only a copy of his passport.
29. The Court is well aware that there are certain exceptional circumstances beyond the applicants’ control where they may encounter difficulties in submitting documentary evidence to support their complaints. It has therefore been its consistent practice to apply a more lenient approach where a cogent argument is made by reference to such circumstances (see, Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein, mutatis mutandis). These considerations are all the more relevant in a situation of ongoing conflict such as that which constitutes the background to the present cases.
30. However, it is noted that the applicants have not made any submissions as to the reasons for which they have failed to submit any relevant documents supporting their Convention claims (see paragraphs 9, 14, 18 and 28 above). Nor have they informed the Court of any attempts they may have made in order to obtain at least fragmentary documentary evidence to substantiate their allegations. It is noted in this context that under Rule 44C § 1 of the Rules of Court, where a party fails to adduce evidence or provide information requested by the Court or to divulge relevant information of its own motion or otherwise fails to participate effectively in the proceedings, the Court may draw such inferences as it deems appropriate (see, among many other authorities, Savriddin Dzhurayev v. Russia, no. 71386/10, § 130, ECHR 2013 (extracts)).
31. In these circumstances, and in application of Rule 44C § 1 of its Rules, the Court concludes that their complaints have not been sufficiently substantiated (see for a similar approach, Ponomaryov and Others v. Bulgaria (dec.), 5335/05, 10 February 2009).
32. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 28 July 2016.
Abel CamposMirjana Lazarova Trajkovska
RegistrarPresident
APPENDIX
List of applications concerned:
No
Application no
Lodged on
Applicant
Date of birth
Place of residence
Represented by
5355/15
26/12/2014
Anton Vasylyovych LISNYY
10/03/1984
Yasynuvata
Nataliya Yevgenivna TSELOVALNICHENKO
44913/15
27/08/2015
Svetlana Alekseyevna PIVEN
26/10/1946
Yasynuvata
Denis Aleksandrovich TALYZIN
50853/15
15/09/2015
Volodymyr Vasylyovych ANOKHIN
15/11/1957
Tryokhizbenka
Nataliya Yevgenivna TSELOVALNICHENKO
Full & Egal Universal Law Academy