CASE OF INDAYEVA AND SULTANOV v. RUSSIA

THIRD SECTION

CASE OF INDAYEVA AND SULTANOV v. RUSSIA

(Applications nos. 58821/08 and 18360/13)

JUDGMENT

STRASBOURG

10 March 2020

This judgment is final but it may be subject to editorial revision.

In the case of Indayeva and Sultanov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 11 February 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in two applications (nos. 58821/08 and 18360/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Ms Lipa Nozhayevna Indayeva (“the first applicant”) and Mr Shamkhan Sultanovich Sultanov (“the second applicant”), on 6 August 2008 and 18 February 2013 respectively.

2.  The first applicant was initially represented by Mr U. S.-M. Khasiyev and since 2016 also by Ms E.M. Khalimova, lawyers practising in Grozny. The second applicant was represented by Ms E.M. Khalimova. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  In the wake of the pilot judgment in the case of Gerasimov and Others v. Russia, on 24 November 2014 the complaints concerning the non‑enforcement of the judgments in the applicants’ favour and the lack of the effective remedy in respect of the non-enforcement complaint were communicated to the Government for settlement or resolution (see Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 230-31 and point 13 of the operative part, 1 July 2014), and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. On 29 September 2016 the Government advised the Court that they were unable to settle the applications, as the domestic judgments in the applicants’ favour had remained unenforced.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1958 and 1960 respectively and live in Groznyy and Verkhniy Naur, Chechnya.

A.  Background of the cases

5.  At the relevant time the applicants were residents of Chechnya. Their property was damaged in the course of a counterterrorist operation in 1999‑2000. They sought to obtain no-fault compensation provided for by Government Decree no. 404 of 4 July 2003. That decree 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 a maximum amount of 300,000 Russian roubles (RUB) for housing and RUB 50,000 for other possessions. The decree was subsequently changed on several occasions. In 2012 its application was extended beyond the initially determined period of 2003-2004.

6.  The applicants’ individual situations can be summarised as follows.

B.  Individual circumstances of the applicants’ cases

1.  Judgment of 28 February 2005 in the first applicant’s favour (case no. 58821/08)

7.  The first applicant owned a half of the house no. 13 at Magistralnaya Street, Grozny. The house was completely destroyed during the hostilities in 1999-2000, as confirmed by the evaluation report dated 30 September 2003.

8.  On 4 November 2003 she submitted an application for administrative compensation to the Commission for compensation for lost property (Комиссия по рассмотрению заявлений граждан о компенсационных выплатах за утраченное жилье и имущество, hereafter “the Commission”) and provided requisite documents. She received an acknowledgment of receipt of documents (nos. 03/6748, 03/14465). Despite her repeated requests in April-September 2004, she received no reply. She complained to a district court about the Commission’s failure to act.

9.  On 28 February 2005 the Staropromyslovskiy District Court of Grozny declared the Commission’s inaction unlawful and ordered the Commission “to take a decision on the issue of payment of the compensation for destroyed housing to [the applicant]”. The judgment entered into force on 11 March 2005.

10.  In May 2006 the Commission informed the applicant that her application in respect of the destroyed house “would be included in the list of destroyed housing” once the technical units of the Federal authority on construction and municipal services (технические группы Федерального агентства по строительству и ЖКХ по формированию перечня разрушенного жилья на территории Чеченской республики, hereafter “the technical units”) complete examination of all destroyed housing in Chechnya.

11.  In 2008 the Commission informed the applicant that the decision as to whether her house was to be included in the list of destroyed housing could not be taken in the absence of replies from the Federal Migration Service, Ministry of Interior and a technical inventory company.

12.  The applicant sued the Government of the Chechen Republic and the Ministry of Finance of Chechnya for compensation of pecuniary and non‑pecuniary damage resulting from the Commission’s failure to act. On 14 April 2008 the Staropromyslovskiy District Court rejected her claim, pointing out that the Commission was unable to proceed in the absence of a corresponding entry in the register of destroyed buildings (“the register”), which was to be updated by a technical unit. On 24 June 2008 the Supreme Court of Chechnya upheld the judgment on appeal.

2.  Judgment of 26 July 2011 in the second applicant’s favour (application no. 18360/13)

13.  The second applicant owned a two-room flat at Proletarskaya, 72, apt. 4 in Grozny (as confirmed by the decision of 11 February 2005 of the Leninskiy District Court of Grozny). The house was completely destroyed during the hostilities in 1999-2000, as subsequently confirmed by an evaluation report of 10 February 2009.

14.  On 27 April 2005 the applicant submitted an application for administrative compensation to the Commission and provided requisite documents. It follows from the letter of the Commission to the Ombudsman of the Chechen republic dated 15 June 2007 that at some point a technical unit had examined the applicant’s living premises and issued a “positive conclusion”. The Commission undertook to include the applicant’s application no. 22/10034 into the list of destroyed housing.

15.  The applicant on several occasions requested to accelerate the provision of the housing, as his flat was destroyed and he had six minor children, two of them suffering from disabilities. In March 2009 he was registered as a person eligible for social housing because his flat had been destroyed, and put on the waiting list for housing provision. In 2011 his number in that list was 4398.

16.  In July 2011 the applicant learned that his application had not been examined by the Commission since in August 2005 the work of the technical unit had been put on hold and the list of destroyed housing has not been updated since that time.

17.  On 26 July 2011 the Leninskiy District Court of Grozny granted the applicant’s claim against the Secretariat of the Commission “to be included in the list of recipients of the compensation, with subsequent payment of the compensation for housing and property destroyed during the hostilities on the territory of the Chechen Republic”. The court declared unlawful the Commission’s failure to include the applicant’s name in the lists of persons receiving the compensation and ordered the Secretariat of the Commission “to include the applicant’s name in the list of persons in receipt of the compensation (в список получателей компенсации)”.

18.  The judgment entered into force on 9 August 2011. In October 2011 the district court issued a writ of execution and forwarded it to the bailiffs service. On 4 May 2012 the bailiffs discontinued the enforcement proceedings owning to the impossibility to execute the writ.

19.  On 16 May 2012 the Commission informed the applicant that his flat had not been entered in the register of destroyed buildings.

20.  In April 2012 applicant sought to obtain damages from the Commission and the Ministry of Finance of the Russian Federation. On 31 July 2012 the Leninskiy District Court of Grozny dismissed his action, as the applicant had failed to prove the authorities’ fault. On 8 November 2012 the Supreme Court of the Chechen Republic upheld the refusal. The applicant’s cassation appeal was disallowed by a judge of the Supreme Court of the Chechen Republic on 1 February 2013.

21.  In 2012 the applicant lodged a claim for compensation for the non‑enforcement of the judgment of 26 July 2011. On 13 November 2012 the Supreme Court of the Chechen Republic returned the application to him unexamined.

C.  Subsequent developments

22.  The Commission did not process the applicants’ claims until September 2013.

23.  The Commission held a final meeting on 16 September 2013 and, according to the minutes of the meeting, rejected all claims lodged by the owners of property which had not been entered in the register of destroyed buildings. Both applicants were in that category. In January 2014 the Commission ceased to exist.

24.  The judgments in the applicants’ favour have not been enforced.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

25.  For the summary of the relevant domestic law and practice in so far as the no-fault compensation scheme is concerned, see Arzhiyeva and Tsadayev v. Russia, nos. 66590/10 and 3773/11, §§ 23-29, 13 November 2018.

26.  Relevant provisions of the Federal Law No. 450-FZ amending the Compensation Act of 2010, in force as of 1 January 2017 and extending the scope of the Act to cases of excessive delays in the enforcement of court judgments ordering the domestic authorities to fulfil various obligations in kind are summarised in Shtolts and Others v. Russia (dec.), nos. 77056/14 and 2 others, §§ 31‑41, 30 January 2018.

THE LAW

I.  JOINDER OF THE APPLICATIONS

27.  In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their factual and legal similarities.

II.  REQUEST OF THE SECOND APPLICANT’S RELATIVES TO JOIN THE PROCEEDINGS BEFORE THE COURT

28.  By letter of 12 December 2016, after the communication of the case to the Government, the second applicant requested the Court to include Ms Manash Gazhayeva, his wife, and Mr Islam Sultanov, Mr Beslan Sultanov, Ms Petimat Sultanova, Mr Imam-Taleran Sultanov, Ms Inian Sultanova and Ms Maryam Sultanova, his children, in the list of applicants in the case no. 18360/13. He argued that his family members had learned after the communication of the application “that they were eligible to be applicants”, and that they had suffered pecuniary and non-pecuniary damage as a result of the non-enforcement.

29.  The Government objected, as the judgment of 26 July 2011 only concerned the second applicant’s claims and in no way determined the rights of his family members.

30.  The Court agrees with the Government. It further notes that, in any event, the applicant’s relatives did not provide any valid reason for their failure to request to join the proceedings at an earlier stage and to submit duly completed application forms. In view of the above, the Court decides not to include Ms Manash Gazhayeva, Mr Islam Sultanov, Mr Beslan Sultanov, Ms Petimat Sultanova, Mr Imam-Taleran Sultanov, Ms Inian Sultanova and Ms Maryam Sultanova in the list of the applicants in the case no. 18360/13.

III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

31.  The applicants complained about the non-enforcement of the judgments of 28 February 2005 and 26 July 2011 in their favour. They referred to Article 6 of the Convention and Article 1 of Protocol No. 1 which, in so far as relevant, read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

32.  The Government initially acknowledged their obligations under the Gerasimov and Others pilot judgment (cited above) and stated that they would deploy all means to enforce the judgments which had remained without execution or resolve the issues by any appropriate means. In their further observations the Government submitted that the Commission at its final meeting of 16 September 2013 had rejected the applicants’ claims, as they had not been entered in the register of destroyed housing. Accordingly, it was no longer possible to enforce the judgments.

33.  The applicants maintained their claims. They argued that the Government had undertaken to compensate damage to them, but had failed to do so for formal reasons. The applicants had duly cooperated with the authorities and moreover had brought their claims to domestic courts which had granted them. However, their applications had not been processed for years, in breach of the domestic courts’ orders.

A.  Admissibility

34.  The Court notes that the applicants’ complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

35.  The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II).

36.  The Court further recalls its findings in Arzhiyeva and Tsadayev (cited above, §§ 41-48) to the effect that the applicants had at least a “legitimate expectation” that their claims would be determined in line with the provisions of the Decree no. 404, and that such expectation had been sufficiently established in the national law to give rise to the notion of “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court does not have any reason to depart from that finding in the present two cases. As in the above case, the applicants produced strong prima facie evidence of ownership and destruction of their property during the hostilities (see paragraphs 7 and 13 above). Their claims and accompanying documents were accepted for review by the Commission (see paragraphs 8 and 14 above), and, furthermore, their entitlement to have their respective claims processed by the Commission was in each of the two present cases confirmed by the final judgments of the domestic courts. As in Arzhiyeva and Tsadayev (cited above, § 54), various authorities cited the absence of entry in the register as the only reason why their claims had not been processed earlier (see paragraphs 10-11, 16, 19 and 23 above). Against this background, and having regard to the nature of the domestic judicial awards (see paragraphs 9 and 17 above), the Court considers that the applicants had, by virtue of the judgments in their favour confirming their entitlement under the domestic law to have their claims determined under the no-fault compensation scheme, a “legitimate expectation” to acquire a pecuniary asset which was sufficiently established to constitute a “possession” falling within the ambit of Article 1 of Protocol No. 1 to the Convention (see Gerasimov and Others, cited above, §§177-79, with further references).

37.  The judgments in the applicants’ favour dated 28 February 2005 and 26 July 2011 obliging the Commission to take certain actions were enforceable until at least January 2014, the date on which the Commission ceased to exist (see paragraph 23 above). However, they had remained without execution for formal reasons.

38.  Having regard to its case-law on the matter (see the leading case of Gerasimov and Others, and, in so far as relevant, Arzhiyeva and Tsadayev, both cited above), the Court finds that by failing, for years, to comply with the enforceable judgments in the applicants’ favour the domestic authorities impaired the essence of their right to a court, and that such failure also constituted an unjustified interference with the applicants’ right to peaceful enjoyment of possessions.

39.  There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the non‑enforcement in both cases at hand.

IV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

40.  The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment by Federal Law No. 450-FZ amending the Compensation Act of 2010. That statute, which entered into force on 1 January 2017, enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments ordering the domestic authorities to fulfil various obligations in kind. The Court has found that the amended Compensation Act in principle meets the criteria set out in the Gerasimov and Others pilot judgment and provides the applicants with a potentially effective remedy for their non‑enforcement complaint (see Shtolts and Others, cited above, §§ 87-116 and § 123).

41.  The Court reiterates that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Gerasimov and Others, cited above, § 230).

42.  On the other hand, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present case (see, mutatis mutandis, Tkhyegepso and Others v. Russia, nos. 44387/04 and 11 others, §§ 21-24, 25 October 2011).

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

43.  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.”

A.  Damage

44.  The first applicant claimed the following amounts in respect of pecuniary damage: 100,000 euros (EUR) representing the cost of a house at an average price in the area the applicant lived in; EUR 15,000 corresponding to the cost of furniture and other personal belongings; and EUR 7,000 of rental expenses for ten years. She further claimed EUR 20,000 in non-pecuniary damage.

45.  The second applicant made the following claims in respect of pecuniary damage: EUR 40,000 for purchase of an apartment at an average price of housing in the area; EUR 45,000 of the cost of furniture and house belongings, at an average cost of EUR 5,000 per family member; and EUR 10,600 of rent expenses. He further claimed EUR 45,000 in respect of non-pecuniary damage.

46.  The Government observed that the applicants’ claims in respect of pecuniary damage were based on their inability to obtain compensation, the maximum amount of which was limited to RUB 350,000. They considered any claim beyond that amount unreasonable, speculative and, in any event, unsupported by any evidence. They disputed the claims in respect of non‑pecuniary damage as excessive.

47.  The Court finds that there exists a causal link between the violation found and the pecuniary loss incurred. Taking into account the parties’ submissions and the nature of the violation found, it awards each of the applicants EUR 4,600 in respect of pecuniary damage (see Arzhiyeva and Tsadayev, cited above, § 66). It further rejects the remainder of the claims under this head as not supported by any evidence.

48.  It further awards each of the applicants EUR 5,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of their claims under this head.

B.  Costs and expenses

49.  The first applicant claimed EUR 2,940 in legal fees for the costs and expenses incurred in the domestic proceedings and before the Court. That amount comprised (a) EUR 1,820 for 26 hours of legal work of Mr U. Khasiyev, lawyer who represented the applicant at the domestic proceedings and at the time of the introduction of the application, at an hourly rate of EUR 70; and (b) EUR 1,190 for 17 hours of work of Ms Khalimova) at an hourly rate of EUR 70. She submitted copies of legal agreements couched in similar terms and dated 4 October 2007 (with Mr Khasiyev) and 8 December 2016 (with Ms Khalimova). In accordance to them, the applicant undertook to pay the lawyers’ services “within ten days of the receipt of money on the [applicant’s] banking account”, without any further details. She further provided copies of the two reports on the work performed containing itemised schedules of the representatives’ legal fees and signed by the applicant and the lawyers. The schedules included, for Mr Khasiyev, the representation at the domestic level and the submission of the application form. In respect of Ms Khalimova, the table referred to the preparation of the comments in reply to the Government’s observations dated December 2016, as well as preparation in 2011 of replies to the Government’s submissions.

50.  The second applicant claimed EUR 2,940 in legal fees for the costs and expenses incurred in the domestic proceedings and before the Court. He submitted a copy of the representation agreement dated 11 March 2011, in accordance to which he undertook to pay the representative’s services “within ten days of the receipt of money on the [applicant’s] banking account”. He further submitted a copy of the report on the work performed containing an itemised schedule of the lawyer’s fees for 70 hours of legal work at an hourly rate of EUR 70, signed by the lawyer and the applicant.

51.  In both cases the Government submitted that the applicants had not actually incurred the costs and expenses claimed. In Indayeva they specified that the legal services agreements between the applicant and her representatives provided that those expenses were payable to the representative only in the event of a successful outcome of the proceedings before the Court, which made such agreements unenforceable against the applicant in Russia.

52.  According to the Court’s case-law, an applicant is entitled to the reimbursement of his costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, among others, Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017).

53.  Regard being had to the documents in its possession and the above criteria (in particular, the straightforward nature of the issues raised under the Convention and some apparent discrepancies in the dates in the schedules submitted ), and in so far as the expenses claimed are related to the violations found by the Court, the Court considers it reasonable to award (a) EUR 490 to Ms Indayeva in respect of the costs and expenses related to the domestic proceedings and EUR 300 in respect of the proceedings before the Court, and (b) EUR 200 to Mr Sultanov in respect of the proceedings before the Court, plus any tax chargeable to the applicants. The Court further dismisses the remainder of their claims under this head.

C.  Default interest

54.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

2.  Decides not to include Ms Manash Gazhayeva, Mr Islam Sultanov, Mr Beslan Sultanov, Ms Petimat Sultanova, Mr Imam-Taleran Sultanov, Ms Inian Sultanova and Ms Maryam Sultanova in the list of the applicants in case no. 18360/13.

3.  Declares the applicants’ complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non‑enforcement of the final judgments in the applicants’ favour admissible;

4.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non‑enforcement of the judgments in the applicants’ favour;

5.  Decides that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 of the Convention;

6.  Holds

(a)  that the respondent State is to pay the applicants within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 4,600 (four thousand and six hundred euros), plus any tax that may be chargeable, to each applicant in respect of pecuniary damage;

(ii)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, to each applicant in respect of non-pecuniary damage;

(iii)  in respect of costs and expenses, the following amounts, plus any tax that may be chargeable to the applicants:

‒  EUR 790 (seven hundred and ninety euros) to Ms Indayeva,

‒  EUR 200 (two hundred euros) to Mr Sultanov;

(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;

7.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 10 March 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen PhillipsGeorgios A. Serghides
RegistrarPresident

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