LISNYY AND OTHERS v. UKRAINE AND RUSSIA


Чтобы посмотреть этот PDF файл с форматированием и разметкой, скачайте его и откройте на своем компьютере.






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 regio
ns 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 o
f April 2014 onwards, armed pro
-
Russian
groups started to seize official buildings in the east of Ukraine and
2

LISNYY

v.

UKRAINE AND
RUSSIA

AND OTHER APPLICATIONS
DECISION

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 l
ived 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 applica
nt

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.


LISNYY v. UKRAINE AND RUSSIA AND OTHER APPLICATIONS
DECISION

3

COMPLAINTS

19.

Referring to Articles 2, 6


1, 8, 10 and 13 of the Convention the
applicants complained that it was impossible to hav
e 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 applic
ants 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 pro
perty 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 f
acts, 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
4

LISNYY

v.

UKRAINE AND
RUSSIA

AND OTHER APPLICATIONS
DECISION

being obtained has to be taken into account (see,
Ireland v. the United
Kingdom
, 18 J
anuary 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
t
own 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 re
sidence 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 p
roperty 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 Articl
e 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 case
s
,

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 app
licant 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 case
s
.


LISNYY v. UKRAINE AND RUSSIA AND OTHER APPLICATIONS
DECISION

5

30.

However, it is noted that the app
licants 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 m
ade in order to obtain at least fragmentary documentary
evidence to substantiate their allegations. It is noted in this context that
u
nder
Rule 44C

1 of the Rules of Court, where a party fails to adduce
evidence or provide information requested by the Co
urt 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.

713
86/10
, 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.

Bulg
aria

(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 Campos

Mirjana Lazarova Trajkovska


Registrar

President




6

LISNYY

v.

UKRAINE AND
RUSSIA

AND OTHER APPLICATIONS
DECISION

APPENDIX


List of applications concerned:


No

Application
no

Lodged on

Applicant

Date of birth

Place of residence

Represented by

1.


5355/15

26/12/2014

Anton Vasylyovych
LISNYY

10/03/1984

Yasynuvata


Nataliya Yevgenivna
TSELOVALNICHENKO

2.


44913/15

27/08/2015

Svetlana Alekseyevna
PIVEN

26/10/1946

Yasynuvata


Denis Aleksandrovich

TALYZIN

3.


50853/15

15/09/2015

Volodymyr Vasylyovych
ANOKHIN

15/11/1957

Tryokhizbenka


Nataliya Yevgenivna
TSELOVALNICHENKO



Приложенные файлы

  • pdf 17829631
    Размер файла: 332 kB Загрузок: 0

Добавить комментарий