Published: 29 Jan 2019 | By Emily Campbell & Roman Kiselyov
Dzhioyeva & others; Kudukhova & Kudukhova; and Naniyeva & Bagayev v Georgia
Case Nos. 24964/09 et al.
Admissibility decision date: 29 January 2019
In all three cases the applicants are Russian nationals residing in the Tskhinvali region of South Ossetia. They complained that their lives were endangered by the activities of the Georgian armed forces during the August 2008 conflict with Russia, and that their property was damaged or destroyed as a result.
The first applicant in Dzhioyeva alleged that, the same day as an announcement from the Georgian president that there would be no war in South Ossetia, she heard artillery fire and hid in the basement, before fleeing Tskhinvali to Russia under heavy fire. Her apartment was destroyed by shelling and a fire. The two other applicants in Dzhioyeva, the first applicant’s daughters, fled Tskhinvali to another village, before they were all reunited in Vladikavkaz.
In Kudukhova, the applicants – a mother and daughter – fled Tskhinvali as the hostilities were intensifying and travelled to Beslan (Russia) to stay with a relative. At the end of August 2008, they returned to their home, which had been damaged during the conflict. The first applicant’s husband and second applicant’s father died as a result of the stress suffered during the conflict.
In Naniyeva, the applicants sheltered for three days in their basement during the hostilities with no food, water or electricity. They were threatened by Georgian soldiers. They travelled to Russia where they were moved between camps. On their return, they found that their apartment and its contents were completely destroyed.
The applicants raised violations of Arts. 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5(1) (right to liberty and security), 8 (right to respect for private and family life), 13 (right to effective remedy) and 14 (prohibition on discrimination), and Article 1 of Protocol No. 1 (protection of property).
With respect to the lead applicant in the first case, Khadizat Dzhioyeva, the Court held that she had raised a prima facie case under Art. 2 which shifted the burden to the Government to provide a convincing explanation. However, the Court could not yet determine the admissibility of her complaint under Arts. 2 and 3 on the basis of the evidence provided in her application and decided unanimously to give notice to the Georgian Government of her application under Art. 2, 3, 13 and 14.
The Court determined all claims of the other six applicants inadmissible as manifestly ill-founded. In relation to all applicants’ property claims, it held that the applicants had failed to show ownership of their properties or to provide sufficient prima facie evidence of the destruction or damage to their movable property. The Court acknowledged that the context of hostilities may cause difficulties in acquiring such evidence; however, it noted that in previous cases before the Court, applicants raising similar issues had been able to submit documentary evidence from the local authorities attesting to the damage suffered and its extent.
In relation to forced escape from the zone of armed conflict, although all the applicants had had to seek refuge in another country for short periods, the Court noted that they had all returned to live in their homes a few weeks after the events, and their stress and discomfort did not amount to an interference with their Art. 8 rights.
With the exception of the lead applicant in the first case, Khadizat Dzhioyeva, the Court declared the other Art. 2 claims to be manifestly ill-founded on the basis that the applicants left their homes either before the hostilities started and returned home after they were over, or failed to produce “convincing prima facie evidence that the hostilities took place in their proximity in such intensity and manner that would have directly endangered their lives”. With regard to Art. 3 the Court stated that the applicants also failed to provide “prima facie evidence that the activities of the Georgian army were of such nature and with the aim to humiliate them and cause them mental suffering”. Acknowledging that the situation of an armed conflict in itself puts human dignity and lives under threat, the Court, however, concluded that such a situation does not always amount to treatment contrary to Art. 3.
This admissibility decision comes more than ten years after the 2008 August armed conflict in South Ossetia in which 800 people died and thousands more were displaced. As at January 2019, there are almost 2000 individual applications concerning the hostilities in 2008 against Georgia, Russia or both states pending before the Court, including 32 brought by EHRAC and the Georgian Young Lawyers’ Association (Tbilisi), as well as the Georgia v Russia II (No. 38263/08) interstate case, which is pending judgment, following a hearing before the Grand Chamber on 23 May 2018. Meanwhile, the ECtHR’s decision to postpone its findings with respect to the first applicant adds further delay to her search for justice.
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