Information Note on the Court’s case-law No. 102
November 2007
Khamidov v. Russia - 72118/01
Judgment 15.11.2007 [Section V]
Article 6
Civil proceedings
Article 6-1
Access to court
Fair hearing
Temporary suspension of courts in Chechnya owing to a counter-terrorist operation: violation
Arbitrary findings of the domestic courts: violation
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Unlawful occupation and damage caused to the applicant's estate by police units involved in a military operation in Chechnya: violation
Facts: The applicant and his brother owned land in a Chechen village, on which their houses and family business were located. In October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic. Fearing possible attacks, the applicant and his relatives left the village. The police units moved onto their property and denied them access to the estate when they tried to return. The applicant and his family spent the winter in tents in a refugee camp, where living conditions were very poor. The applicant's infant nephew died of pneumonia while at the camp. In 2001 the courts in Chechnya became operational again. The applicant brought successful proceedings for an order for the eviction of the police units. However, although the judgment was made in February 2001 it was not enforced until June 2002. The applicant's claims for compensation were rejected as groundless.
Law: Article 8 and Article 1 of Protocol No. 1 – Scope of examination under Article 1 of Protocol No. 1: Since the applicant had lodged the application solely in his name, he could rely on that provision only in so far as his own possessions were concerned. His brother's house clearly did not constitute one of his possessions. The land and industrial premises had been formally assigned to the company which had been co-founded and was co-owned by the applicant and his brother and had its own legal personality. Although the applicant's brother had refused to participate in the proceedings before the Court, he had clearly supported the application, given that he had issued the applicant with a general power of attorney.In such circumstances, they did not appear to have competing interests which could create difficulties, and therefore the applicant could claim to be a “victim” of the alleged violations of Article 1 of Protocol No. 1 as regards the impugned measures taken in respect of the plot of land and industrial premises that had been transferred to the company.
Scope of examination under Article 8 of the Convention: Since the applicant and his brother had always lived as one family and their houses had been built very close together, the applicant's brother's house, as well as his own could be regarded as the applicant's “home” within the meaning of that Article.
Existence of interference: Where the State took an individual's property for a certain period of time, it was for the State to take appropriate steps to certify the state and condition of that property prior to, and to account for it after, the occupation. Having regard to the documentary evidence in its possession, the Court considered it established that, contrary to the findings of fact made by the domestic courts, the damage to the applicant's estate had been caused by the consolidated police units of the Ministry of the Interior, which had been stationed there. There had therefore been interference with the applicant's rights to respect for his home and the peaceful enjoyment of his possessions.
Compliance with lawfulness requirement: The Law on Suppression of Terrorism empowered State agents to access private property during the immediate pursuit of a suspect rather than to occupy it even for a short time. While vesting wide powers in State agents within the zone of the counter-terrorist operation and releasing them from any liability for damage caused to “other legally protected interests”, the law in question did not define with sufficient clarity the scope of those powers or the manner of their exercise so as to afford adequate protection against arbitrariness. The provisions at issue, formulated in vague and general terms, could not serve as a sufficient legal basis for such a drastic interference. Moreover, in the judgment of February 2001, while ordering the eviction of the police units, the court had clearly held that the continuing occupation of the applicant's estate was in breach of national law. The occupation of the estate after the eviction order had therefore also been manifestly in breach of Russian law. The damage caused to the applicant's estate had no basis in domestic law either, given, in particular the military commander's order to preserve the applicant's property from destruction. In view of the above considerations and in the absence of an individualised decision or order challengeable in court and authorising the police units to occupy the estate and inflict damage on it, the interference with the applicant's rights was not “lawful”, within the meaning of Article 8 of the Convention and Article 1 of Protocol No. 1.
Conclusion: violation (unanimously).
Article 6 § 1 – Access to court: It was clear under domestic law that the applicant was only allowed to file his eviction claim in the place where his estate was located, i.e. Chechnya. The Russian authorities may have experienced certain difficulties in ensuring the proper functioning of the judicial system in Chechnya in view of the military action in the region. Nevertheless, they could have made an effort to authorise the applicant to file a claim in another region of Russia. The applicant had therefore effectively been deprived, between October 1999 and January 2001 when the Chechen courts had been out of operation, of an opportunity to seek the eviction of the police units. In the absence of any justification for this on the Government's part, the limitation imposed on the applicant's right of access to a court had impaired the very essence of his right and had clearly been disproportionate.
Conclusion: violation (unanimously).
Delayed enforcement of the judgment: The Court could not accept the Government's general reference to the counter-terrorist operation in the Chechen Republic as a sufficient reason to justify the lengthy non‑enforcement of the judgment in the applicant's favour (over 15 months). This judgment had been given when the judicial system in Chechnya had started functioning again. The Government had advanced no argument capable of persuading the Court that they had in any way been objectively precluded from complying speedily with the judgment ordering the eviction of the police units, or that they had attempted to find a satisfactory solution that would have mitigated the detrimental effects of the non-enforcement on the applicant and his family, such as entry into a lease agreement with him or the like. The domestic authorities had thus defaulted in their obligation to secure the applicant's right to a court.
Conclusion: violation (unanimously).
Fairness of the compensation proceedings: The courts had considered that it had not been proven that the applicant's estate had been occupied and damaged by the police units, despite abundant evidence to the contrary (inter alia, letters from various public authorities acknowledging the occupation and the existence of damage) and the findings in the judgment of 2001 ordering their eviction. In the Court's view, the unreasonableness of that conclusion was so striking that the decisions of the domestic courts could only be described as grossly arbitrary. By reaching such a conclusion in the circumstances of the case, the domestic courts had in fact set an extreme and unattainable standard of proof for the applicant so that his claim could not, in any event, have had even the slightest prospect of success. The applicant had therefore been denied a fair hearing concerning his claim for compensation in respect of damage caused to his estate.
Conclusion: violation (unanimously).
Article 41 – EUR 157,000 in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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