FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30788/02
by Sulim Garmasovich UMAROV
against Russia
The European Court of Human Rights (First Section), sitting on 18 May 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 8 July 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sulim Garmasovich Umarov, is a Russian national who was born in 1926 and lives in Moscow. He is represented before the Court by Mr A. Voytsekhovskiy, a lawyer practising in the Tver Region.
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time the applicant, his wife and their two sons lived in a private house at 206 Shefskaya Street, Grozny.
1. Events of 15 August 1995
In late 1994 the Russian Government launched a military operation in Chechnya, aimed at disarming illegal armed formations.
According to the applicant, on 15 August 1995, during one of the federal attacks on Grozny, his then six-year-old elder son was seriously injured with the result that he was paralysed.
2. Events in 1999 – 2000
In early October 1999 a new military operation was commenced on the territory of Chechnya.
According to the applicant, from 10 October until 10 November 1999 he and his family hid in the basement of their house fearing massive air strikes and artillery shelling of Grozny.
On 10 November 1999 they were admitted to hospital and diagnosed with post-contusional syndrome and neurasthenia. The applicant submitted a medical certificate confirming the above diagnosis.
On 20 December 1999 the applicant and his family members were discharged from hospital, which was being evacuated since the warfare intensified.
On the same date the applicant and his relatives returned home.
According to the applicant, at some point in December 1999 they were intimidated and robbed by federal soldiers.
At the end of December 1999 the federal military authorities warned the residents of Grozny that they should leave the city within 48 hours.
On 30 December 1999 the applicant and his family left for Ingushetia. According to the applicant, federal military kept refugees from Grozny at a check-point at the Ingush border for three days in the open and without giving them any food.
At the beginning of January 2000 the applicant and members of his family reached Moscow and stayed with their relatives.
At some point the applicant found out that his house and other property in Chechnya had been destroyed during the hostilities.
On 10 November 2000 local authorities drew up an evaluation report (дефектный акт) confirming that the applicant’s possessions were completely devastated during the hostilities in 1999 – 2000.
3. Proceedings for compensation
On 4 June 2001 the applicant filed a court claim against the Ministry of Finance in the Basmanny District Court of Moscow (“the District Court”). He complained about the destruction of his possessions, enclosing the evaluation report of 10 November 2000 and a list of the destroyed items of his property, and sought compensation for pecuniary and non-pecuniary damage.
On 4 July 2001 the District Court delivered its judgment, in which it acknowledged the fact that the applicant’s private house and other belongings had been destroyed as a result of the hostilities in 1999 – 2000. The court held, however, that under Section 1069 of the Civil Code of Russia the State was only liable for damages for its agents’ actions which were unlawful. It noted that the military operation in Chechnya had been launched by virtue of presidential decree no. 2166 of 30 November 1994, and governmental decree no. 1360 of 9 December 1994 which had been found constitutional by the Constitutional Court of Russia on 31 July 1995, except for two provisions of the governmental decree. In this latter respect the court noted that the said two provisions had never been applied to the applicant, and therefore no unlawful actions on the part of the State bodies had ever taken place to warrant compensation for damage inflicted on the applicant’s property.
The court further held that under Section 1079 of the Civil Code of Russia damage inflicted by a source of increased danger was to be compensated for by a person or entity using such source, unless it was proven that the damage had been caused on account of force majeure or the fault of the affected person. However, in the court’s view, the applicant had not submitted any evidence to confirm that his property had been destroyed by a source of increased danger used by the State, or that he had borne any mental suffering in connection with the destruction of his housing and other possessions. Accordingly, the court concluded that there were no grounds for granting the applicant’s claims.
On 12 April 2002 the Moscow City Court dismissed the applicant’s appeal thus upholding the first instance judgment.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention about the destruction of his housing and other property during attacks on Grozny by the federal troops in 1999 – 2000 and the refusal of compensation in this respect.
2. The applicant also relies on Article 8 of the Convention in that his elder son was seriously injured in an attack by federal military in 1995 with the result that he lost his ability to move.
3. Finally, the applicant complains that between October 1999, when the military operation commenced, and January 2000, when he and his family settled in Moscow, they suffered severe anguish and distress in connection with the massive bombings, the Russian servicemen’s threats to their lives, their evacuation from their house in Grozny and the poor living conditions on their way to Moscow.
THE LAW
1. The applicant complains that his housing and other belongings were destroyed during the military attacks on Grozny in 1999 – 2000 and that no compensation was awarded to him in this respect. He refers to Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention. The respective provisions, in so far as relevant, provide as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court reiterates at the outset that it is for the applicant complaining of an interference with his rights under the Convention to provide prima facie evidence to this effect (see, among others, Z.M. and K.P. v. Slovakia (dec.), no. 50232/99, 18 November 2003). In assessing evidence, the Court adopts standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. The Court is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and as a general rule it is for those courts to assess the evidence before them. Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matyar v. Turkey, no. 23423/94, §§ 107-108, 21 February 2002).
Turning to the present case, the Court observes that the domestic courts established the fact that the applicant’s housing and other property had been destroyed during the military operation in 1999-2000 launched by the Russian authorities. The courts, however, rejected the applicant’s claim for compensation by reference to the absence of sufficient evidence which would allow them to establish a causal link between the actions of the Russian troops in Chechnya and the damage alleged by the applicant. The Court further notes that the applicant has submitted only one document in support of his complaints brought before it, and notably the evaluation report of 10 November 2000. The latter states that the applicant’s possessions were destroyed as a result of the military actions in 1999-2000, but makes no indication of the date, or cause, of the destruction. Apart from this report, the applicant has not furnished the Court with any documents, such as witness statements, schemes, photographs or a video record of the scene of the incident, documents from public bodies, or any other evidence confirming the involvement of the State agents in inflicting damage to his property. Nor has he relied on any independent sources to confirm that there was an attack by federal forces resulting in the damage alleged (see, by way of contrast, Isayeva v. Russia, no. 57950/00, §§ 28, 111-115, 24 February 2005).
Having regard to the general situation prevailing in the region at the material time, the Court notes that violent confrontations took place between the federal armed forces and rebel fighters, this two-fold violence ensuing from the acts of both parties to the conflict and resulting in destruction of property of many residents of Chechnya. Against this background, the Court is unable, in the circumstances of the present case, to depart from the findings of the domestic courts and reach a conclusion that the applicant’s home and possessions were destroyed, as alleged, by the Russian troops. The Court therefore finds that the applicant’s complaints as to the State responsibility for damage to his home and property, and the claims for compensation, have not been substantiated (see, mutatis mutandis, Matyar v. Turkey, cited above, § 145, Çaçan v. Turkey, no. 33646/96, § 66, 26 October 2004, Menteşe and others v. Turkey, no. 36217/97, §§ 71-73, 18 January 2005, or Nuri Kurt v. Turkey, no. 37038/97, §§ 105-107, 29 November 2005).
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complains under Article 8 of the Convention that during a federal attack in 1995 his minor son sustained grave injuries which resulted in his disability.
The Court observes that the events that gave rise to this complaint took place prior to 5 May 1998, the date on which the Convention entered into force in respect of Russia.
It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.
3. Finally, the applicant complains that he and his family members had to endure mental suffering due to the massive military attacks on Grozny, the alleged harassment by federal soldiers, their evacuation from Grozny and their poor living conditions until they reached their relatives in Moscow.
The Court notes at the outset that it does not appear that the applicant has ever brought the respective complaints before the domestic authorities. The Court, however, will leave the question of the applicant’s compliance with the exhaustion requirement open, since, in any event, he has failed to submit any documentary evidence capable of laying the basis of an arguable claim in respect of his allegations (see Elsanova v. Russia (dec.), no. 57952/00, 15 November 2005). In the light of the materials in its possession, the Court finds that the applicant’s complaints are unsubstantiated.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy