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SHEMILOVA AND SHEMILOV v. RUSSIA - 42439/02 [2009] ECHR 1479 (8 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1479.html
Cite as:
[2009] ECHR 1479
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FIRST
SECTION
CASE OF
SHEMILOVA AND SHEMILOV v. RUSSIA
(Application
no. 42439/02)
JUDGMENT
(Striking
out)
STRASBOURG
8
October 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Shemilova and Shemilov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
André Wampach, Deputy Section
Registrar,
Having
deliberated in private on 17 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 42439/02) 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 Selikhat Shemilova
and Mr Magomed Ayubovich Shemilov (“the applicants”), on
15 June 2002.
The
applicants were represented by Mr R. Malsagov, a lawyer practising in
St Petersburg. The Russian Government (“the Government”)
were initially represented by Mr P. Laptev and Ms V. Milinchuk,
former Representatives of the Russian Federation at the European
Court of Human Rights, and subsequently by their Representative, Mr
G. Matyushkin.
The
applicants complained, in particular, that their property had been
destroyed by representatives of the State and that they had no access
to court to have their claim for compensation examined. They relied
on Article 6 of the Convention and Article 1 of Protocol No. 1
to the Convention.
On
29 August 2004 the President of the First Section decided to grant
priority to the application under Rule 41 of the Rules of Court.
By
a decision of 11 December 2008, the Court declared the application
partly admissible.
The
Government, but not the applicants, submitted further written
observations (Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicants, who are relatives, were born in 1912
and 1966 respectively. Their place of residence is unknown.
At the material time the applicants lived in a
privately owned house at 167 Ulyanova Street in the Oktyabrskiy
District of Grozny.
According
to the applicants, on 29 March 2000 a group of federal servicemen in
two armoured personnel carriers with obscured hull numbers approached
the applicants' house. The servicemen were masked and had the Russian
Armed Forces emblem on their sleeves. One of them pointed his machine
gun at the second applicant, who was standing near the gate, and
ordered him not to move. The soldiers then entered the courtyard of
the applicant's house and one of them asked the first applicant
whether she was of Chechen origin. When the first applicant said that
she was, the servicemen further asked her whether Chechen rebel
fighters (boyeviki) were living in the house. The first
applicant replied that no fighters had ever lived in her house, that
she lived there with the second applicant, and that they had never
been involved in military activities.
The
servicemen then broke the door down and entered and searched the
house. They remarked, turning to the first applicant, that her living
conditions were quite good and that apparently it was the house of
some Chechen field commander. The soldiers then sprayed the walls
inside the house with petrol and set it on fire. The house, with the
applicants' possessions inside it, was completely burnt down.
On
an unspecified date the applicants complained to the Oktyabrskiy
District Office of the Interior of Grozny (“the Oktyabrskiy
VOVD”) that federal servicemen had burnt their house down.
On
5 April 2000 the Oktyabrskiy VOVD decided to dispense with criminal
proceedings on the grounds that it was impossible to establish to
which military unit the servicemen involved in the arson attack
belonged.
According
to the Government, on 24 January 2006 the decision of 5 April
2000 was set aside and criminal proceedings were instituted under
Article 167 § 2 of the Russian Criminal Code (aggravated
deliberate destruction of, or infliction of damage on, property) in
connection with the incident of 29 March 2000. The investigation was
under the supervision of the Prosecutor General's Office.
On
19 September 2000 the local authorities drew up an evaluation report
(дефектный
акт), which
listed the items of the applicants' property that had been destroyed
on 29 March 2000.
On
an unspecified date the applicants obtained an estimate of costs for
repair works to be carried out on their house.
On
11 October 2001 the applicants brought proceedings in the Oktyabrskiy
District Court of Grozny (“the District Court”), seeking
damages in connection with the deliberate destruction of their
property by the federal servicemen.
On
6 November 2001 the District Court held that the applicants' claims
“could not be allowed in court proceedings” on the ground
that the alleged damage should be compensated in accordance with the
temporary regulations concerning compensation and other social
benefits for Russian citizens who had suffered damage as a result of
the military conflict in the Chechen Republic, and therefore the
applicants should apply to a local migration service for
compensation.
On
5 March 2002 the Supreme Court of the Chechen Republic upheld the
above judgment on appeal, having repeated the reasoning of the
first-instance court.
The
applicants did not apply for compensation in accordance with the
ruling of the domestic courts.
THE LAW
Following
the decision on admissibility, in a letter of 19 December 2008 the
Court invited the parties to submit their further observations by
16 February 2009. The Government, but not the applicants,
submitted their observations within the specified time-limit.
In
the absence of any reply from the applicants, by a registered letter
of 16 April 2009 the Court drew the attention of the applicants'
representative to the fact that the period allowed for submission of
the applicants' observations and claims for just satisfaction had
expired and that no extension of the deadline had been requested. The
applicants' representative was reminded that, in accordance with
Article 37 § 1 (a) of the Convention, the Court may strike a
case out of its list of cases where the circumstances lead to the
conclusion that the applicants do not intend to pursue the
application.
This
letter was returned to the Court on 30 June 2009 bearing the mark
“unclaimed”.
Meanwhile,
on 26 May 2009 the Court sent a registered letter similar to that of
16 April 2009 and enclosing a copy of the Court's letter of
19 December 2008 to the applicants' address indicated in their
application form. This letter was also returned to the Court on 30
June 2009 with an indication to the effect that it had been
impossible to find the applicants as they no longer resided at the
indicated address. The applicants had never apprised the Court of
their new address.
The Court considers that, in these circumstances, the
applicants may be regarded as no longer wishing to pursue their
application, within the meaning of Article 37 § 1 (a) of the
Convention. Furthermore, in accordance with Article 37 § 1 in
fine, the Court finds no special circumstances regarding respect
for human rights as defined in the Convention and its Protocols which
require continued examination of the case (see, by way of contrast,
Karner v. Austria, no. 40016/98, § 28, ECHR 2003 IX).
In view of the above, it is appropriate to strike the case out of the
list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English, and notified in writing on 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina
Vajić
Deputy Registrar President
