FIFTH SECTION
CASE OF MITSOPOULOS v. UKRAINE
(Application no. 62006/09)
JUDGMENT
(Just satisfaction)
STRASBOURG
7 September 2023
This judgment is final but it may be subject to editorial revision.
In the case of Mitsopoulos v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
María Elósegui,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,
Having deliberated in private on 13 July 2023,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. In the judgment delivered on 9 December 2021 (“the principal judgment”), the Court found that there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the review “in the light of newly discovered circumstances” of a final and enforceable judgment in the applicant’s favour which had established his title to a house, in consequence of which he had been unable to exercise his ownership rights over it between 20 May 2009 and 27 April 2016.
2. Under Article 41 of the Convention the applicant sought various amounts by way of just satisfaction.
3. Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant to submit their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (see paragraph 31 of the principal judgment and point 4 of the operative provisions).
4. No agreement has been reached between the parties. The applicant and the Government each filed observations.
THE LAW
5. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
DAMAGE6. In respect of pecuniary damage, the applicant submitted that he should be awarded an amount equal to the rent he might have received between September 2002 and July 2019 had the house remained in his possession, as well as the interest he would have received had he been able to deposit those rental payments with a bank. He claimed 3,182,106 euros (EUR) in that connection. In support he submitted an analysis of prices on the rental market for similar property and of average bank deposit rates; both were based on information from various dedicated Internet resources and were produced by himself.
7. The applicant also claimed EUR 20,688 and EUR 25,000 in respect of money and other valuables (namely jewellery and household appliances) which were allegedly stolen from his house while it was not in his possession.
8. The applicant further claimed EUR 30,000 in respect of mental suffering owing to his having been unable to use the house or to live there with his family and the related uncertainty, which allegedly continues to the present day.
9. The Government contested those claims. They noted that the applicant could have applied to have his case reviewed by the Supreme Court on the basis of the principal judgment with a view to obtaining restitutio in integrum, but had failed to do so. In any case, they contested the applicant’s claims for pecuniary damage as excessive and unsubstantiated. As regards the claims concerning the allegedly stolen property, the Government submitted that they were unrelated to the violation found and thus fully unsubstantiated. They emphasised that the applicant had never instituted any criminal proceedings in connection with the alleged theft, although these might have been capable of establishing the relevant facts and the perpetrator. The Government also contested the applicant’s claims in respect of non-pecuniary damage.
10. Regarding the Government’s argument that the applicant should have requested a review of his case, the Court reiterates that, as a rule, the requirement that domestic remedies should be exhausted, including the option of reopening the proceedings, does not apply to just satisfaction claims submitted to it under Article 41 (see S.L. and J.L. v. Croatia (just satisfaction), no. 13712/11, § 15, 6 October 2016, with further references). In any event, the Government failed to demonstrate that a review of the applicant’s case by the Supreme Court could have led to compensation for the damage caused by the violations found, which are specifically based on the applicant’s inability to exercise his ownership rights over the house between the adoption of the judgment of the Obolonskyy District Court of Kyiv of 20 May 2009, which quashed the judgment of 22 January 2007 establishing his title to the house and reopened the proceedings, and the decision of the Higher Specialised Court in Civil and Criminal Cases of 27 April 2016, which restored his title.
11. That being so, the Court accepts that the applicant must have suffered both pecuniary and non-pecuniary damage on that account.
12. As for the claims in respect of pecuniary damage related to the allegedly stolen goods, the Court agrees with the Government that those claims are irrelevant to the violation found in the principal judgment and are unsubstantiated.
13. Regarding the applicant’s other claims, the Court considers that the pecuniary damage caused to him may be examined in the light of the benefit he might have obtained had he been able to exercise his ownership rights over the house between 20 May 2009 and 27 April 2016. It cannot, however, accept the calculations provided by the applicant given that he took the year 2002 as his starting point and that they are based on Internet sources which he chose and interpreted himself rather than on any official expert report or other assessment (see, mutatis mutandis, Svirgunets v. Ukraine (just satisfaction) [Committee], no. 38262/10, § 11, 20 December 2022, and Braylovska v. Ukraine (just satisfaction) [Committee], no. 14031/09, § 18, 14 May 2020). The Court also considers the applicant’s claim regarding the interest he could have obtained had he deposited the rental payments with a bank to be highly speculative and unrelated to the violations found.
14. Regard being had to the fact that a precise calculation of the sums necessary to make reparation for the pecuniary losses suffered by the applicant is not possible owing to the inherently uncertain character of the damage flowing from the violation found, the Court considers that this matter is to be determined by it at its discretion, having regard to what is equitable.
15. The Court thus awards the applicant EUR 25,000 covering both pecuniary and non-pecuniary damage.
COSTS AND EXPENSES16. Under this head the applicant claimed a total of 813,049.22 Ukrainian hryvnias (UAH – around EUR 21,050) paid by him to his legal representative under four contracts: a contract of 23 December 2008 (for services provided until April 2016 and covering costs related to the domestic proceedings concerning the title to the house (UAH 494,724.33 – around EUR 12,810) and the submission of the application to the Court (UAH 49,049 – around EUR 1,270); and contracts of 24 November 2014, 22 March 2016 and 25 June 2018, each of which related to services provided in various other domestic proceedings, both civil and criminal, concerning issues of access to and use of the house. The applicant submitted detailed information as to the services provided as well as invoices with each of the contracts.
The applicant also claimed 3,700 United States dollars (around EUR 3,450) which, under the terms of a contract of 11 February 2019, he agreed to pay to his representative after the receipt of just satisfaction under the Court’s judgment. That lump sum is meant to cover all legal services related to the further proceedings before the Court. The applicant did not provide any time sheets or other detailed information in that respect.
17. The Government contested those claims as excessive and unsubstantiated.
18. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. That may include domestic legal costs incurred to prevent or redress the breach of the Convention (see, for example, I.J.L. and Others v. the United Kingdom (just satisfaction), nos. 29522/95 and 2 others, § 18, 25 September 2001) and those incurred in order to have the Court establish a violation of the Convention (see, for example, De Souza Ribeiro v. France [GC], no. 22689/07, § 111, ECHR 2012). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).
19. The Court notes that the contracts of 24 November 2014, 22 March 2016 and 25 June 2018 concern costs and expenses that were incurred in the context of domestic proceedings that are not related to the subject matter of the principal judgment.
20. Therefore, the only costs and expenses that may be considered by the Court are the ones that are referred to in the contracts of 23 December 2008 and 11 February 2019.
21. That being so, and regard being had to the documents in its possession and the above-mentioned criteria and considerations, the Court finds it reasonable to award the applicant EUR 5,000 covering the costs and expenses incurred in the domestic proceedings and the proceedings before the Court (see, for example, mutatis mutandis, Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 308, 1 December 2020).
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Holds(a) that the respondent State is to pay the applicant, within three months, EUR 25,000 (twenty-five thousand euros) in respect of pecuniary and non-pecuniary damage, plus any tax that might be chargeable, and EUR 5,000 (five thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 7 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President