Communicated on 16 October 2015
FIRST SECTION
Applications nos 66590/10 and 3773/11
Patimat ARZHIYEVA against Russia
and Akhmed TSADAYEV against Russia
lodged on 18 October 2010 and 2 December 2010 respectively
STATEMENT OF FACTS
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants are (or were, at the relevant time) residents of Chechnya. Their property has been damaged or destroyed in the course of the anti-terrorist operation, mostly in 1999 – 2000. The applicants did not pursue criminal remedies in order to determine the exact circumstances or perpetrators of the damage. Instead, they sought to obtain a no-fault compensation provided for by the Government Decree No. 404 (see below). The applicants complied with the requirements of applying for the compensation and submitted the documents as required. However, for administrative reasons, their claims haven’t been processed. It should be stressed that the applicants’ applications have not been rejected. Their individual situations can be summarised as follows.
1. Application no 66590/10 lodged on 18 October 2010 by Patimat Arzhiyeva, who was born in 1949 and currently lives in Strasbourg, France.
The applicant’s flat was damaged during the hostilities in 1994 -1995, and then destroyed in 1999-2000. It was situated in a 70-flat apartment block at 21, Tereshkova Street in Grozny, Chechnya.
In March 2005 the applicant submitted an application for administrative compensation to the Compensation Commission (Комиссия по рассмотрению заявлений граждан о компенсационных выплатах за утраченное жилье и имущество, thereafter “the Commission”). She received acknowledgment of receipt of documents no. 22/9777.
In April 2005 the Leninskiy District Court of Grozny confirmed the applicant’s right to property for flat no. 25 in the destroyed housing block at 21, Tereshkova Street.
In 2007 the applicant was registered as a person eligible for social housing because her flat had been destroyed during the hostilities. She was assigned number 742 in the waiting list.
In June 2010 the applicant was informed that her application was not considered by the Commission since the building in question has not been included into the register of destroyed buildings. The register was to be formed by the technical group of the Federal Authority on construction and communal services (техническая группа Федерального агентства по строительству и ЖКХ по формированию перечня разрушенного жилья на территории Чеченской республики, thereafter “the technical group”). However, in August 2005 the work of the technical group has been put on hold and the list of destroyed housing hasn’t been updated since that time. In such circumstances, the applicant’s application has not been processed and no decision has been taken.
The applicant complained to a district court against the Commission’s failure to act. On 12 August 2010 the Staropromyslovskiy District Court of Grozny rejected the applicant’s claim, pointing out that the Commission was unable to proceed in the absence of the correspondent entry in the register. On 7 September 2010 the Supreme Court of Chechnya on appeal confirmed the judgment. The applicant’s subsequent attempts to obtain supervisory review were unsuccessful.
In 2011 she was informed by the Commission’s secretariat that the technical group has not been operational since 2005 and that the Commission was not aware whether and when it would restart its work.
The applicant instituted civil proceedings, seeking damages for the destroyed property directly from the Government of Chechnya. On 21 March 2013 the Leninskiy District Court of Grozny rejected the applicant’s claim, referring to the expiration of the time-limit and lack of legal grounds for such claims. On 28 May 2013 the Supreme Court of Chechnya upheld the decision, except the reliance on the prescription term. The Supreme Court stressed that the compensation could not be paid because the new procedure for the payment of compensations was being developed.
2. Application no 3773/11 lodged on 2 December 2010 by Akhmed Tsadayev, who was born in 1984 and lives in Grozny, Chechnya.
The applicant owned flat no. 12 in an apartment block at 53, Kavkazskaya Street, Grozny. The building was destroyed during the hostilities in 1999 - 2000.
In November 2004 the applicant applied to the Commission and his file was assigned number 02/13975.
In 2008 the applicant was registered as a person eligible for social housing because his flat had been destroyed during the hostilities. He was assigned number 1569 in the waiting list; in 2010 his number was 1689.
In April 2010 he was informed that his application was not considered by the Commission since the building in question has not been included into the register of destroyed buildings.
The applicant complained to a court. On 5 July 2010 the Staropromyslovskiy District Court of Grozny rejected his complaint since the Commission was unable to proceed in the absence of the technical group’s register. On 10 August 2010 the Supreme Court of Chechnya confirmed the decision on appeal.
The applicant sought to obtain damages from the Government of Chechnya for the lost property and failure to compensate the damages otherwise. His claim was dismissed for failure to comply with prescription period by the Leninskiy District Court of Grozny on 27 June 2013; confirmed on appeal on 7 November 2013 by the Supreme Court of Chechnya.
B. Relevant domestic law and practice
1. Code of Criminal Procedure
Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Russian Code of Criminal Procedure (“the CCP”).
Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.
2. Civil Code
Article 1069 provides that a State agency or a State official will be liable towards a citizen for damage caused by their unlawful actions or failure to act. Compensation for such damage will be awarded at the expense of the federal or regional treasury.
3. Suppression of Terrorism Act
The Federal Law on Suppression of Terrorism of 25 July 1998 (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом» – “the Suppression of Terrorism Act”), as in force at the relevant time, provided as follows:
Section 3. Basic Concepts
“For the purposes of the present Federal Law the following basic concepts shall be applied:
... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of consequences of terrorist activities;
‘counter-terrorism operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts;
‘zone of a counter-terrorism operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorism operation is conducted; ... ”
Section 21. Exemption from liability for damage
“On the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of a counter-terrorism operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.”
4. Presidential and governmental decrees
In Decree no. 510 of 30 April 1997 the Russian Government established that residents of the Chechen Republic who had lost their housing and/or other possessions during the hostilities in the Republic and who, no later than 12 December 1994, had left permanently for another region, were entitled to compensation.
The Government Decree no. 404 of 4 July 2003 established the right of all permanent residents of the Chechen Republic who had lost their housing and any possessions therein after 12 December 1994 to receive compensation up to maximum amount of RUB 300,000 for the housing and RUB 50,000 for the other possessions. The decree was subsequently changed on several occasions, most notably in 2008 the Ministry of Regional development (instead of the Federal Authority on construction and communal services) was appointed to be in charge of implementing its provisions and in 2012 its application has been extended beyond the initially previewed period of 2003 -2004.
As it appears from the relevant documents, three presidential directions (поручения Президента) were issued to the competent Government agencies with the aim to solve the problems with compensations: in August 2006 (no. 1325), June 2007 (no. 1094) and September 2010 (no. 2736). According to various official letters submitted by the applicants, since 2009 the Ministry of Regional development has been developing the new scheme of compensation to the affected persons.
5. The courts’ practice
On 20 December 2005 the Constitutional Court of the Russian Federation refused to consider in substance complaints about the constitutionality of the Government Decrees nos. 510 and 404. In its decision the Court stressed that “these Government Decrees are specific legislative acts which establish simplified procedures in order to allow the affected individuals to restore their rights and to obtain certain compensations, they do not limit and do not exclude the application of the general norms of civil law which govern property rights, compensation of damage etc. These questions remain to be resolved by the courts of general jurisdiction upon claims by individuals who seek to vindicate their rights, upon full establishment of all factual circumstances of each case”.
On 14 September 2010 the Supreme Court of the Russian Federation issued a decision upon a motion brought by a Grozny resident I. She sought to declare some provisions of Decree no 510 unconstitutional since they could be interpreted as preventing her from obtaining full compensation for the lost property. The Supreme Court stressed that the Decree in question set up a simplified procedure to obtain additional measure of social relief open to a wide group of affected individuals. It was not intended to compensate fully for the losses sustained, but did not prevent those willing to do so to pursue civil remedies in the usual manner.
COMPLAINTS
The applicants complain about the breach of their right to respect of property and absence of effective remedies.
COMMON QUESTION
Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? In particular, can it be said that the applicants’ rights under Article 1 of Protocol No. 1 have been breached by their inability to have their claims for compensation processed in due order (compare with Malysh and Others v. Russia, no. 30280/03, § 85, 11 February 2010; and Yuriy Lobanov v. Russia, no. 15578/03, § 54, 2 December 2010)?
In answering that question, the parties are asked to comment on the scope of the applicants’ right to property and the nature of the alleged interference, as well as about its proportionality.
The Government is further asked to provide general information about the current status of payment of compensations to the persons whose housing has been destroyed in the course of hostilities in Chechnya, in line with the Government Decrees nos. 510 and 404, or other relevant legislative and executive acts.
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