Přehled
Rozhodnutí
SECOND SECTION
DECISION
Application no. 8090/09
Mevludi JIOSHVILI against Russia
and 58 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 19 October 2021 as a Chamber composed of:
Jon Fridrik Kjølbro, President,
Carlo Ranzoni,
Aleš Pejchal,
Dmitry Dedov,
Egidijus Kūris,
Pauliine Koskelo,
Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the Appendix,
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. A list of the applicants, all of whom are Georgian nationals, and the relevant details of the applications are set out in the Appendix.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. As a result of the armed conflict in August 2008 (see Georgia v. Russia (II) [GC], no. 38263/08, §§ 30-44, 21 January 2021), the applicants were forcibly displaced from their respective villages in South Ossetia and Abkhazia. To this day, they have no access to their homes and property.
COMPLAINTS
4. Relying on Article 1 of Protocol No. 1, all the applicants complain that they have been displaced because of the August 2008 armed conflict and have been unable to access their homes and property. They also allege that their property was destroyed or damaged as a result of the hostilities, sometime between 8 and 12 August 2008.
5. All the applicants, except those in applications nos. 14681/09 and 47954/09, reiterate the complaint concerning their inability to access their homes and property (see the previous paragraph) (i) under Article 8 of the Convention and Article 2 of Protocol No. 4 in respect of applications nos. 8153/09, 8204/09, 8525/09, 8538/09, 8554/09, 8603/09, 8799/09, 8912/09, 8989/09, 8996/09, 9218/09, 9239/09, 9891/09, 9913/09, 10046/09, 10341/09, 16518/09, 16574/09, 17296/09, 19795/09, 19810/09 and 52486/09; and (ii) only under Article 8 of the Convention in respect of applications nos. 8090/09, 8104/09, 8121/09, 8129/09, 8133/09, 8135/09, 8145/09, 8154/09, 8168/09, 8180/09, 8182/09, 8202/09, 8228/09, 8233/09, 8237/09, 8239/09, 8240/09, 8262/09, 8375/09, 8724/09, 9000/09, 9035/09, 9089/09, 9099/09, 9465/09, 19779/09, 20397/09, 20828/09, 22334/09, 22528/09, 25906/09, 25965/09, 26010/09, 26674/09 and 45691/09.
6. All the applicants – except those in applications nos. 14681/09, 45691/09 and 47954/09 – complain under Article 14 of the Convention that they have been discriminated against, on the basis of their ethnicity, in the enjoyment of their rights under the Convention.
7. All the applicants – except those mentioned in paragraph 6 above and those in application no. 19810/09 – also complain of not having been provided with an effective remedy in respect of their various complaints, as required by Article 13 of the Convention.
8. Relying on Article 2 of the Convention, the applicants in applications nos. 8090/09, 8104/09, 8121/09, 8129/09, 8133/09, 8135/09, 8145/09, 8153/09, 8154/09, 8168/09, 8180/09, 8182/09, 8202/09, 8204/09, 8228/09, 8233/09, 8237/09, 8239/09, 8240/09, 8262/09, 8375/09, 8525/09, 8538/09, 8603/09, 8912/09, 9089/09, 9239/09, 9891/09, 16574/09, 17296/09, 19795/09 and 47954/09 complained, in generic terms and without submitting evidence regarding the extent to which they or their relatives had been affected, about the active phase of hostilities and (i) the alleged risk to their relatives’ and their own lives during the hostilities between 8 and 12 August 2008; (ii) the injuries allegedly received during that period; and/or (iii) the death of relatives.
9. The substance of the complaints under Article 2 of the Convention (see paragraph 8 above) was also raised under Article 3 of the Convention in applications nos. 8135/09, 8153/09, 8204/09, 8538/09, 8603/09, 8799/09, 8912/09, 8989/09, 8996/09, 9000/09, 9218/09, 9239/09, 9891/09, 9913/09, 10046/09, 10341/09, 17296/09, 19779/09, 19795/09, 20397/09, 20828/09, 22334/09, 22528/09, 25906/09, 25965/09, 26010/09, 26674/09 and 52486/09. Various applicants in the latter group of applications further alleged, without submitting evidence regarding the extent to which they might have been affected, that they had watched their homes burn while fleeing the hostilities. The applicants in application no. 9000/09 also complained of having been detained in poor conditions and having been subjected to ill-treatment during their detention.
10. The applicants in applications nos. 8204/09, 8799/09 and 8996/09 complained – without submitting evidence regarding their whereabouts or the extent to which they might have been affected – of having been unlawfully detained at different points in time in August 2008, in breach of Article 5 of the Convention. The applicants in application no. 9000/09 submitted that they had been detained in Tskhinvali and had been victims of forced labour, in breach of Articles 4 and 5 of the Convention. The first applicant in the same application submitted a poorly legible copy of a detainee identification document issued by the International Committee of the Red Cross to an individual under a different name and year of birth, explaining that he had given a false name at the time, out of fear of reprisals owing to his Ossetian ethnicity. The applicants in application no. 19810/09 complained, under Articles 5 and 7 of the Convention, of the potential risk of detention if they were to return to their village.
THE LAW
- Joinder of the applications
11. Given their similar factual and legal background, the Court decides that the present fifty-nine applications (see the Appendix) should be joined pursuant to Rule 42 § 1 of the Rules of Court.
- General considerations
12. The Court reiterates its findings reached in the inter-State case of Georgia v. Russia (II) ([GC], no. 38263/08, §§ 125-44 and 162-75, 21 January 2021) and in 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). Those findings also apply to the present applications, in so far as relevant.
- Complaints under Articles 8, 13 and 14 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4
13. Relying on Article 1 of Protocol No. 1, all the applicants argue that as a result of the armed conflict, their homes and other property were damaged and/or destroyed. They also complain that they were forced to flee their respective villages and, to date, have been unable to return.
14. Some of the applicants reiterated their complaint regarding their alleged inability to access their homes and property under Article 8 of the Convention and/or Article 2 of Protocol No. 4 (see paragraph 5 above).
15. Furthermore, various applicants complain under Article 13 of the Convention of the absence of an effective domestic remedy for their grievances and under Article 14 of having suffered discrimination in the enjoyment of their Convention rights (see paragraphs 6-7 above).
16. In support of their allegations, the applicants provided the Court with various items of prima facie evidence. In particular, the majority of the applicants submitted certificates issued by local authorities indicating their ownership of property. Other applicants submitted extracts from the Public Registry confirming the registration of their respective property rights. One applicant submitted a tenancy agreement in relation to a plot of land. Various other materials were also submitted, such as identification documents indicating residence in the respective villages, confirmation of the status of an internally displaced person, and/or local authorities’ confirmation of residence in the villages concerned.
17. The relevant provisions relied on by the applicants read as follows:
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.
...”
Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 13 of the Convention
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
18. At the outset, and in so far as the applicants complain regarding the alleged destruction of and/or damage to their property as a result of the hostilities, the Court reiterates its findings in the inter-State case of Georgia v. Russia (II) (cited above, § 144) that the events which occurred during the active phase of the hostilities (8 to 12 August 2008) did not fall within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention. On that basis it declares inadmissible, in accordance with Article 35 §§ 3 (a) and 4 of the Convention, this limb of the applicants’ complaints.
19. As to the complaints regarding the applicants’ alleged inability to access their homes and property, the Court can accept, on the basis of the prima facie evidence submitted by them (see paragraph 16 above), that the applicants could have been adversely affected by the events of the conflict in question. The relevant circumstances, as described by the applicants, may, according to the Court’s case-law, engage Articles 8, 13 and 14 of the Convention, Article 1 of Protocol No. 1 and/or Article 2 of Protocol No. 4 (see Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 219-26 and §§ 252-61, ECHR 2015, and Georgia v. Russia (II), cited above, §§ 292-98).
20. The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicants’ complaints relating to their alleged inability to access their homes and property. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the applications (see paragraph 19 above) to the respondent Government.
- Complaints under Article 5 of the Convention
21. The Court takes note of the complaints made by several applicants under Article 5 of the Convention (see paragraph 10 above).
22. It observes that only the first applicant in application no. 9000/09 submitted evidence in support of the allegation of having been detained in Tskhinvali. However, that document indicated a different name and year of birth from those of the applicant concerned. In the absence of any other corroborating evidence, the Court cannot take at face value the applicant’s explanation of his having given a false name to avoid negative repercussions based on his Ossetian ethnicity. The complaint is therefore unsubstantiated and must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
23. As regards the remaining complaints under Article 5, in view of the absence of any evidence to substantiate them, the Court finds them to be manifestly ill-founded. They must likewise be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
- Other complaints
24. The Court takes note of the complaints under Articles 2, 3, 4 and 7 of the Convention raised by several applicants (see paragraphs 8-10 above).
25. In the light of all the material in its possession, and in so far as the matters complained of are within the Court’s competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto.
26. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants’ complaints under Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 in so far as their alleged inability to access their homes and property is concerned, and of the complaints under Articles 13 and 14 of the Convention, where relevant;
Declares the remainder of the applications inadmissible.
Done in English and notified in writing on 18 November 2021.
{signature_p_2}
Hasan Bakırcı Jon Fridrik Kjølbro
Deputy Registrar President
Appendix
No. | Application no. | Case name | Lodged on | Applicant Year of birth Place of residence before August 2008 | Represented by |
8090/09 | Jioshvili v. Russia | 08/02/2009 | Mevludi JIOSHVILI Kurta Village | Ms Ts. Javakhishvili | |
8104/09 | Sopio Gogidze v. Russia | 08/02/2009 | Sopio GOGIDZE | Ms Ts. Javakhishvili | |
8121/09 | Gochashvili v. Russia | 08/02/2009 | Lavrenti GOCHASHVILI | Ms Ts. Javakhishvili | |
8129/09 | Iveri Gochashvili v. Russia | 08/02/2009 | Iveri GOCHASHVILI | Ms Ts. Javakhishvili | |
8133/09 | Chovelidze v. Russia | 08/02/2009 | Ilia CHOVELIDZE Achabeti Village | Ms Ts. Javakhishvili | |
8135/09 | Durglishvili v. Russia | 08/02/2009 | Bagrati DURGLISHVILI | Ms Ts. Javakhishvili | |
8145/09 | Kakhniashvili v. Russia | 08/02/2009 | Kristo KAKHNIASHVILI Kurta Village | Ms Ts. Javakhishvili | |
8153/09 | Bugianishvili and Others v. Russia | 06/02/2009 | 1. Vazha BUGIANISHVILI | Mr N. Legashvili | |
8154/09 | Gherkenashvili v. Russia | 08/02/2009 | Teimurazi GHERKENASHVILI Kurta Village | Ms Ts. Javakhishvili | |
8168/09 | Melanashvili v. Russia | 08/02/2009 | Nona MELANASHVILI Kekhvi Village | Ms Ts. Javakhishvili | |
8180/09 | Ivane Babutsidze v. Russia | 08/02/2009 | Ivane BABUTSIDZE Achabeti Village | Ms Ts. Javakhishvili | |
8182/09 | Giorgi Babutsidze v. Russia | 08/02/2009 | Giorgi BABUTSIDZE Achabeti Village | Ms Ts. Javakhishvili | |
8202/09 | Givi Babutsidze v. Russia | 08/02/2009 | Givi BABUTSIDZE Achabeti Village | Ms Ts. Javakhishvili | |
8204/09 | Gogidze and Others v. Russia | 06/02/2009 | 1. Lova GOGIDZE
| Mr. N. Legashvili | |
8228/09 | Kvrivishvili v. Russia | 08/02/2009 | Tina KVRIVISHVILI | Ms Ts. Javakhishvili | |
8233/09 | Dali Jioshvili v. Russia | 08/02/2009 | Dali JIOSHVILI Kurta Village | Ms Ts. Javakhishvili | |
8237/09 | Megrelishvili v. Russia | 08/02/2009 | Megi MEGRELISHVILI Zemo Achabeti Village | Ms Ts. Javakhishvili | |
8239/09 | Lapachi v. Russia | 08/02/2009 | Nana LAPACHI Kurta Village | Ms Ts. Javakhishvili | |
8240/09 | Marine Kakhniashvili v. Russia | 08/02/2009 | Marine KAKHNIASHVILI | Ms Ts. Javakhishvili | |
8262/09 | Zangaladze v. Russia | 08/02/2009 | Nora ZANGALADZE Kekhvi Village | Ms Ts. Javakhishvili | |
8375/09 | Roin Babutsidze v. Russia | 08/02/2009 | Roini BABUTSIDZE Achabeti Village | Ms Ts. Javakhishvili | |
8525/09 | Khetagashvili and Others v. Russia | 06/02/2009 | 1. Kristo KHETAGASHVILI | Mr N. Legashvili | |
8538/09 | Shoshitashvili and Others v. Russia | 06/02/2009 | 1. Ramaz SHOSHITASHVILI 1966 Ksuisi Village 4. Emzar SHOSHITASHVILI 1970 Ksuisi Village | Mr N. Legashvili | |
8554/09 | Mindiashvili and Others v. Russia | 06/02/2009 | 1. Giorgi MINDIASHVILI
| Mr N. Legashvili | |
8603/09 | Kakhniashvili and Others v. Russia | 06/02/2009 | At the material time, all the applicants were residents of the Kekhvi Village 1. Nina KAKHNIASHVILI 2. Nodar KAKHNIASHVILI 1965 3. Nugzar KAKHNIASHVILI 1962 4. Bichiko BLIADZE 1979 5. Malkhaz MELANASHVILI 1962 6. Gusein MELANASHVILI 1938 7. Koba MELANASHVILI 1971 8. Ivane MELANASHVILI 1963 9. Tamar KAPANADZE 1959 10. Kristepore NEBIERIDZE 1965 11. Korneli KAKHNIASHVILI 1941 12. Rezo ZANGALADZE 1929 13. Levan KAKHNIASHVILI 1961 14. Genadi KAKHNIASHVILI 1951 15. Nikoloz MELANASHVILI 1973 16. Mamuka MELANASHVILI 1972 | Mr N. Legashvili | |
8724/09 | Terashvili v. Russia | 08/02/2009 | Irina TERASHVILI | Ms Ts. Javakhishvili | |
8799/09 | Shoshitashvili v. Russia | 09/02/2009 | Revaz SHOSHITASHVILI Ksuisi Village | Ms J. Evans | |
8912/09 | Zubashvili and Others v. Russia | 09/02/2009 | 1. Zaur ZUBASHVILI Kheiti Village The applicant died on 19 September 2012; his wife expressed her wish to pursue the application. The case-file material does not include any documents demonstrating kinship. | Ms J. Evans | |
8989/09 | Shoshitashvili and Others v. Russia | 09/02/2009 | 1. Revaz SHOSHITASHVILI
1957 Ksuisi Village
The applicant died on 19 September 2012; his wife expressed her wish to pursue the application. | Ms J. Evans | |
8996/09 | Askilashvili and Others v. Russia | 09/02/2009 | 1. Ilia ASKILASHVILI Atsriskhevi Village | Ms J. Evans | |
9000/09 | Jioevi and Kakhniashvili v. Russia | 06/02/2009 | 1. Aslani JIOEVI | Ms V. Jijelava | |
9035/09 | Chulukhadze and Others v. Russia | 06/02/2009 | 1. Vladimer CHULUKHADZE | Ms V. Jijelava | |
9089/09 | Davit Babutsidze and Others v. Russia | 06/02/2009 | 1. Davit BABUTSIDZE | Ms V. Jijelava | |
9099/09 | Begheluri v. Russia | 06/02/2009 | Aleksandre BEGHELURI | Ms V. Jijelava | |
9218/09 | Maraneli and Others v. Russia | 09/02/2009 | 1. Tania TASOEVA Avnevi Village | Ms J. Evans | |
9239/09 | Nebieridze and Others v. Russia | 09/02/2009 | 1. Almiza NEBIERIDZE Following the death of the applicant, his daughter expressed her wish to pursue the application. The case-file material does not include any documents demonstrating kinship. | Ms J. Evans | |
9465/09 | Gherkenashvili and Others v. Russia | 06/02/2009 | 1. Maia GHERKENASHVILI Kekhvi Village 4. Nodar MELANASHVILI 1957 Kekhvi Village | Ms Ts. Javakhishvili | |
9891/09 | Gochashvili v. Russia | 11/02/2009 | 1. Eliko GOCHASHVILI | Mr N. Legashvili | |
9913/09 | Datashvili and Others v. Russia | 13/02/2009 | At the material time, all the applicants were residents of the Tamarasheni Village 1. Venera DATASHVILI 1938 Following the death of the applicant, her daughter expressed her wish to pursue the application. The case-file material does not include any documents demonstrating kinship. 2. Guram KHETERELI 1934 Following the death of the applicant, his daughter expressed her wish to pursue the application. The case-file material does not include any documents demonstrating kinship. 3. Vasil GOGIDZE 1970 4. Gaioz GOGIDZE 1943 5. Ana DATASHVILI 1935 6. Aleksi NASUASHVILI 1928 Following the death of the applicant, his wife expressed her wish to pursue the application. The case-file material does not include any documents demonstrating kinship. 7. Eter NASUASHVILI 1928 8. Alexandre DATASHVILI 1965 9. Merab NASUASHVILI 1950 10. Vladimer DATASHVILI 1985 11. Emzari DATASHVILI 1961 12. Dali GIUNASHVILI 1973 13. Tsira DATASHVILI 1948 14. David DZADZAMIA 1977 15. Maia SANAKOEVA 1968 16. Ivane GOGIDZE 1962 17. Zakhar GOGIDZE 1930 18. Kartlos DATASHVILI 1947 19. Valia AIDARASHVILI 1945 20. Koba TABATADZE 1966 21. Levan KUSIANI 1938 22. Davit ELBAKIDZE 1971 23. Lamara OTINASHVILI 1956 24. Guram DATASHVILI 1933 25. Giorgi DATASHVILI 1981 | Mr E. Wesselink, Russian Justice Initiative | |
10046/09 | Tsitsiloshvili v. Russia | 10/02/2009 | Ramaz TSITSILOSHVILI Vanati Village | Ms T. Dekanosidze | |
10341/09 | Beruashvili and Others v. Russia | 17/02/2009 | 1. Iason BERUASHVILI Berula Village Berula Village 12. Tamaz ARCHUADZE 13. Dimitri BERUASHVILI 17. Ia OZGEBISHVILI 18. Maro VAKHTANGASHVILI 21. Alexander MAISURADZE The case file contains a supplementary list of applicants with additional names. What link these additional names had to the application was not clarified. | Ms J. Evans | |
14681/09 | Basishvili v. Russia | 10/02/2009 | Grigol BASISHVILI | N/A | |
16518/09 | Khaduri and Others v. Russia | 20/03/2009 | 1. Tamara KHADURI Berula Village The applicant died on 5 July 2013; her grandson expressed his wish to pursue the application. The case-file material does not include any documents demonstrating kinship. | Ms J. Evans | |
16574/09 | Tsotniashvili v. Russia | 20/03/2009 | Ivlite TSOTNIASHVILI Eredvi Village | Ms J. Evans | |
17296/09 | Datashvili v. Russia | 08/02/2009 | Zakaria DATASHVILI Tamarasheni Village | Mr B. Botchorishvili | |
19779/09 | Balashvili v. Russia | 12/02/2009 | Merab BALASHVILI | N/A | |
19795/09 | Beruashvili v. Russia | 02/03/2009 | Sonia BERUASHVILI | Mr N. Legashvili | |
19810/09 | Iamze and Zaza Machabelli v. Russia | 15/02/2009 | 1. Iamze MACHABELLI | Mr B. Maghradze | |
20397/09 | Merab Beruashvili and Others v. Russia | 17/02/2009 | 1. Merab BERUASHVILI Mamisaantubani Village 1964 Mamisaantubani Village Gori | Mr E. Paksadze | |
20828/09 | Kekelishvili and Others v. Russia | 17/02/2009 | 1. Tariel KEKELISHVILI Kheiti Village 2. Guram KULICHISHVILI 1955 Kheiti Village 3. Gela KEKELISHVILI 1960 Kheiti Village 4. Zaza SHERAZADASHVILI 1967 Kheiti Village 5. Mamuka KEKELISHVILI 1971 Kheiti Village | Mr E. Paksadze | |
22334/09 | Zangaladze and Others v. Russia | 17/02/2009 | 1. Mamuka ZANGALADZE | Mr E. Paksadze | |
22528/09 | Nikorashvili v. Russia | 17/02/2009 | Narimand NIKORASHVILI | Mr E. Paksadze | |
25906/09 | Ketevan Nikolishvili v. Russia | 17/02/2009 | Ketevan NIKOLISHVILI | Mr E. Paksadze | |
25965/09 | Tchovelidze and Others v. Russia | 17/02/2009 | 1. Elizbar TCHOVELIDZE | Mr E. Paksadze | |
26010/09 | Guram Otinashvili and Others v. Russia | 17/02/2009 | 1. Guram OTINASHVILI 1957 Kemerti Village 11. Ivane OTINASHVILI 1946 Kemerti Village 24. Elene ZAALISHVILI 27. Zurab OTINASHVILI 1982 Kemerti Village 28. Temur OTINASHVILI 1992 Kemerti Village 29. Vladimer OTINASHVILI 1925 Kemerti Village 30. Daro MAGHALDADZE 1936 Kemerti Village 31. Elo KASRADZE 1929 Kemerti Village 32. Aleksandre KASRADZE 1954 Kemerti Village 33. Genari KASRADZE 1974 Kemerti Village | Mr E. Paksadze | |
26674/09 | Nasuashvili and Others v. Russia | 17/02/2009 | 1. Shalva NASUASHVILI | Mr E. Paksadze | |
45691/09 | Maghaldadze v. Russia | 22/01/2009 | 1. Ramin MAGHALDADZE | N/A | |
47954/09 | Maruashvili v. Russia | 03/08/2009 | Liana MARUASHVILI | N/A | |
52486/09 | Turashvili and Others v. Russia | 10/02/2009 | 1. Tristan TURASHVILI Argvitsi Village 8. Vazha MIDODASHVILI | Ms J. Evans |