CASE OF VOLCHKOVA AND MIRONOV v. RUSSIA
(Applications nos. 45668/05 and 2292/06)
28 March 2017
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 Volchkova and Mironov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 7 March 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in two applications (nos. 45668/05 and 2292/06) 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 Tatyana Grigoryevna Volchkova and Mr Boris Petrovich Mironov (“the applicants”), on 9 and 30 December 2005 respectively.
2. The applicants were represented by Ms S. Valiyeva and Ms S. Davydova, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3. The applicants alleged, in particular, they had not been paid adequate compensation for the expropriation of their property.
4. On 5 January 2010 the applications were communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1945 and 1935 respectively and live in Moscow and Lyubertsy.
A. The main proceedings
6. The applicants, together with another person, were joint owners of a plot of land and the house built on it.
7. The first applicant owned a one-sixth share of a house constructed between 1937 and 1949 (her share amounting to some 24 sq. m, of which some 12 sq. m was living space), and 208 sq. m of land. The property had been her registered address since 2001. It appears that her title originated in the inheritance she had received after her late mother’s death in 1995.
8. The second applicant owned a half share in the same house (amounting to some 78 sq. m) and 625 sq. m of the same plot of land. It appears that he had first had a right of use (as part of inheritance after another person) in respect of the land and had then acquired title to it in 1993; that he had inherited his share in the house after another person in 1975.
9. The remainder of the house and plot of land were owned by the first applicant’s brother.
1. Demolition project and construction project
10. On 28 June 1999 the Ministry of Construction of the Moscow Region issued a decision to “adopt” the general plan of Lyubertsy town, “to invite the Lyubertsy municipality to continue co-operating with the authors of the general plan when preparing future projects, bearing in mind that the plan is the main legal document in relation to town planning”. In August 2005 the decision was amended to indicate that the Ministry “had adopted the plan for further approval in accordance with the established procedure” (see also paragraph 30 below).
12. In April 2002 the local authorities adopted draft construction guidelines for the Oktyabrskiy Proezdy district where the applicants’ house was situated. The draft guidelines were published in a local newspaper on 6 August 2002. It appears that they were eventually adopted in 2003.
13. A committee composed of officials attached to various public authorities was asked to make a proposal regarding a plot of land for constructing blocks of flats. The committee considered that it would be appropriate to construct blocks of flats at Kirova Street. It does not transpire from the committee’s deliberations that they considered any other plots of land. On 30 May 2002 the municipality issued a decision by which it agreed to the construction of several blocks of flats (including one on the applicants’ land) and authorised a specialised State enterprise to start the compiling of the necessary technical documents.
14. In September 2002 the regional administration, the Lyubertsy town administration and a State enterprise signed an investment contract for the construction of multi-storey blocks of flats in the area, including the applicants’ land. Under the terms of the contract, the enterprise would arrange to buy the land from private owners and the municipality would acquire title to it. The investor would also take measures to resettle any inhabitants and provide them with compensation. The municipality and the investor would own 5% and 95% of the newly built housing space respectively. The estimated preliminary cost of the project amounted to 14,481,000 euros (EUR).
15. As transpires from the available information, the block of flats to be built on the applicants’ land comprised seventeen floors, 352 flats with the total space of 21,146 sq. m. Under the investment contract, the municipality was to receive title to some thirty flats for the overall space of 1,907 sq. m.
16. The investor also agreed to make a contribution of funds corresponding to some 30% of the estimated costs for constructing a kindergarten for 114 children, an annex building for a school and some other amenities or facilities.
17. In October 2002 a private company, ORS-Grupp, replaced the State enterprise as the project investor.
18. In December 2002 the municipality issued an order aimed at implementing the demolition programme adopted in November 2001 and “improving the architectural appearance of the town and the resettlement of inhabitants from housing that no longer [met] sanitary requirements”. The above investment project was one of the measures by which the municipality intended to achieve those aims. In total, the order concerned some eleven investment contracts in relation to over seventy dwellings, of which some thirty properties were privately owned and the remainder was owned by the municipality.
19. The municipality assessed the situation as regards the private owners, including the applicants, and decided to proceed by way of expropriation for municipal needs under the Land Code (see paragraph 59 below).
2. Expropriation decision and resettlement negotiations
22. On 19 May 2003 the municipality amended the expropriation order, indicating that pursuant to the investment contract the investor had to provide funds for paying compensation for the land being expropriated and provide inhabitants with comparable alternative housing. The investor was required to request expert valuations to determine the market value of the properties being expropriated (see paragraphs 23 and 27 below) and then buy those properties.
23. It appears that on 21 May 2003 the investor obtained a valuation report regarding the applicants’ house and land to determine their market value. The company used was Expert Centre, a private company licensed by the State to carry out valuation assessments (see paragraph 64 below). The Court was not provided with a copy of this valuation report.
24. According to the Government, on 27 and 29 May 2003 the first applicant was served with notice of the planned expropriation. In January 2004 both applicants were informed that the amended expropriation order had been officially registered.
25. According to the Government, on 3 July 2003 there was a meeting between Kirova Street residents and, apparently, a representative of the local authorities or the private company. The Government stated that the residents had been given access to a construction planning document for the area, documents concerning the choice of plots for such construction, the town plan and some other documents.
26. As no comparable plots of land were available in the area, having regard to the valuation report of 21 May 2003 (see paragraph 23 above), the first applicant was offered several options of “compensation in kind”, namely one or two-room flats in Lyubertsy or Moscow with market values of up to 150,000 United States dollars (USD), apparently with ownership title. She was also offered monetary compensation for the land and her part of the house of up to USD 50,000. However, she turned down these offers, considering them insufficient or the location of the alternative housing unsuitable. The second applicant appears to have turned down offers of plots of land in nearby areas ranging between USD 60,000 and 140,000 in value. The second applicant also turned down another offer: ownership title to two flats measuring at least 35 sq. m and 54 sq. m each together with USD 34,874. The second applicant stated that he was entitled to compensation amounting to USD 330,000. The investor then made a new offer of USD 200,000 as compensation for his part of the house and land. The second applicant did not accept it.
27. On 5 May 2004 the investor requested another valuation report regarding the applicants’ house and land from Expert Centre. On 14 May 2004 it issued a report indicating that the overall market value of the first and second applicant’s shares of the house and land were USD 24,488 and USD 73,463 respectively. The Court was provided with part of that report, which reads:
“[Description] of the assessment object: a residential house (a single-storey building made of wood, [measuring] 110.8 [sq. m], of which 86 [sq. m is] living space) and annexes; a plot of land [measuring] 1,249 [sq. m] ...
[Location] of the assessment object: ...
The assessment object is situated in the centre of the old town of Lyubertsy. On the one hand, there are old buildings (essentially residential houses dating back to the 1930s to 60s) and, on the other, [there are] new buildings consisting of modern blocks of flats. The town’s major traffic arteries are in the immediate proximity of the assessment object. There is a car park on one side of the street and a residential area ont the other ... They have a well-developed infrastructure, good access to transport up to Vykhino metro station, central Lyubertsy and the above residential area ...
Description of the plot of land: ...Vykhino metro station is within a ten-minute ride by public transport ...
Description of the house: ... the main building was first constructed in 1937; the remaining buildings later, until the 1970s ... The house is habitable, although it requires some superficial repairs ...”
28. In November 2004 the district chief architect and the local land authority informed the municipal administration that the town’s general plan of 1999 made no provision for the construction of individual housing. On 23 November 2004, in reply to an enquiry raised by the investor company, the municipality announced that it had no available plots of land that would be equivalent to the land to be expropriated from the applicants, namely those assigned for the construction of individual housing.
29. In late 2004 the town administration brought proceedings in the Lyubertsy Town Court of the Moscow Region (“the Town Court”) seeking judicial authorisation for the expropriation of the applicants’ house and land. In December 2004 the first applicant lodged a separate claim against the municipality, arguing that the expropriation orders of 18 March and 19 May 2003 were ultra vires and otherwise unlawful and disproportionate. On 29 December 2004 the Town Court held a hearing. After hearing evidence from a representative of the municipality, it decided to join the cases. An appeal brought by the first applicant was not processed since the procedural order was not amenable to appeal.
30. In the meantime, the Moscow Region Prosecutor’s Office replied to a request for information from the second applicant, informing him that the regional ministry had acted ultra vires in taking a decision on the general plan in 1999 and that no copy of it existed (see paragraph 10 above). The applicants informed the court examining their case accordingly.
31. The court held several hearings in the expropriation case. It appears that on 11 February 2005 the court ordered a new report from Expert Centre. The applicants did not oppose the choice of company and did not ask for any particular questions to be put to its experts.
32. In February 2005 a group of three experts compiled a report indicating USD 23,300 and 5,200 as the market values of the first applicant’s land and part of the house respectively, and USD 70,000 and 15,600 as the second applicant’s (compare the earlier assessment in paragraph 27 above). The land and house were therefore valued at USD 112 and 216 per sq. m respectively.
“Regarding your complaint about unlawfulness relating to the adoption of Lyubertsy town plan:
I inform you that Articles 18, 28, 35, 39, 58 and 60 of the old Town Planning Code provided for a procedure relating to consultation with the local population in relation to the documents relating to town planning. At the same time, the Code did not specify any particular manner for obtaining the population’s view, and thus consultations could be done in any form. It has been established that Lyubertsy town plan was adopted on 28 June 1999 by the Ministry of Construction of the Moscow Region and not by a municipality, in breach of Article 35 of the Town Planning Code. Moreover, there is a breach of the same provision due to the fact that there is currently no Lyubetsy town plan. The municipality will be ordered to remedy the violation of the Code.”
34. On 7 April 2005 the municipality’s mayor wrote to the Town Court asking to speed up the court proceedings, arguing that some of the flats were to be given to the people waiting for social housing and that the procrastination of the proceedings was also prejudicial to the people who had invested in the construction project.
(a) Referring to Articles 3, 11 and 63 of the Land Code (see paragraphs 57, 58 and 61 below), the court rejected the argument that the municipality had had no competence to issue the expropriation orders of 18 March and 19 May 2003.
(b) As to the allegations that the expropriation did not pursue any genuine public interest, that a decision had been taken on the general plan ultra vires, and that it did not actually exist, the court indicated that a general plan did exist (see paragraph 10 above) but, being a classified document, it could not be adduced as evidence (see, however, paragraph 54 below). In any event, it was deemed unnecessary since the court had examined the construction guidelines for the district (see paragraph 12 above) which contained information concerning planned construction works in the area where the applicants’ house and land were situated. The court also received a statement from the town’s chief architect, who confirmed that to be the case. It thus concluded that the construction project aimed at “providing the population with housing and social infrastructure”. After examining the investment project, the court noted that the municipality would gain 5% of the new housing and the related infrastructure.
(c) The court considered that the applicants had failed to adduce evidence to substantiate their claims for better housing in Moscow and a higher amount of compensation for the land. It noted that the applicants had refused to have an expert assessment of the property carried out by an independent body.
(d) The court also noted that besides being unfounded, the first applicant’s claim challenging the lawfulness of the 2003 administrative decisions had been submitted after the expiry of the three-month time-limit.
(e) The court held that the first applicant would receive compensation for the land and her part in the house equivalent to USD 28,500 and a social tenancy contact for a one-room flat in Lyubertsy measuring 31 sq. m. The second applicant would receive compensation for the land and his part in the house of USD 85,600 and a social tenancy contract for a four-room flat in Lyubertsy for his family measuring some 70 sq. m. Lastly, the court transferred ownership of the house and land to the municipality.
36. The applicants appealed. They contended, inter alia, that the expert report relied on by the first-instance court had in fact been requested by the municipality and was thus biased and based on the material provided by them; no court-requested report had been prepared. The first applicant also argued that the expert report had failed to take into account the scarcity of land in Lyubertsy for individual housing; the commercially attractive location of the land, which bordered the city of Moscow; the proximity of a metro station under construction (or planned); and the intended use of the land being expropriated for commercial gain arising from the construction of blocks of flats. The applicant also contested the expert assessment regarding the value of the house to be demolished pursuant to the expropriation decision. The expert had not used the “method of prospective use” for determining the value of the house and land. The expert valuation was based on the premise that the land’s use was for a summer cottage use rather than for the use relating to multi-storey blocks of flat; this premise was inappropriate, given that the property was already surrounded by similar blocks of flats. With reference to the above considerations, the applicant’s own calculations amounted to USD 246,418 for her part of the land.
37. On 4 July 2005 the Moscow Regional Court upheld the first-instance judgment.
39. In the meantime, on 22 August 2005 the applicants were evicted and had their belongings removed from the house. According to the Government, the first applicant’s belongings were then delivered to the social housing flat where they were then stored, under the supervision of a local public official, until December 2006 when she received the keys.
40. A bank account was opened for the first applicant, and the expropriation compensation was credited into it on 26 August 2005. The bank issued a certificate allowing the accountholder to use the money. On 29 August 2005 the first applicant was informed of the above.
41. On 31 August 2005 the Regional Court dismissed the first applicant’s application for supervisory review. The reviewing judge held that the municipality had had competence to issue the expropriation decision, referring to the available general plan and all the other necessary documents.
42. In November 2005 the first applicant lodged a further application for review before the President of the Regional Court. On 22 November 2005 the application was examined and rejected by another judge of the Regional Court. In March 2006 the first applicant again applied for review before the President of the Regional Court. In a letter of 10 April 2006 the President of the Regional Court dismissed her application, upholding the earlier refusals.
43. The first applicant lodged an application for supervisory review with the Supreme Court of Russia. On 5 July 2006 it was dismissed. The applicant challenged that decision before the Deputy President of the Supreme Court. In a letter of 11 October 2006 he agreed with the lower courts’ decisions. In April 2008, in reply to a new application, the Supreme Court informed the first applicant that she could lodge no further supervisory review applications in respect of the court decisions.
44. According to the Government, until November 2006 the first applicant refused to accept the keys to the flat and the bank certificate relating to the account into which the expropriation compensation had been credited.
45. On 1 December 2006 the applicant received the keys for the flat, the bank certificate and her belongings that had been in safekeeping.
46. According to the second applicant, in July 2006 the municipality resold the properties it had acquired under the investment project to the investor.
B. Ancillary proceedings
1. The second applicant
47. In 2005 the second applicant brought separate proceedings challenging the orders of 18 March and 19 May 2003. On 10 October 2005 the Moscow Regional Court took a final decision rejecting his claim, primarily because it was time-barred but also because the main arguments had already been dealt with in the final judgment of 13 April 2005 (see paragraph 35 above).
2. The first applicant
(a) Judicial review of the bailiffs’ actions
48. On 26 August 2005 the first applicant brought separate proceedings in the Town Court (i) alleging that the bailiffs had acted unlawfully in the enforcement proceedings, and (ii) claiming compensation in respect of pecuniary and non-pecuniary damage. Her claim was turned down on several occasions because she had failed to comply with the required formalities. It appears that the relevant procedural orders were annulled because they reached the applicant after the respective time limits for complying with them had expired. Several hearings were scheduled in 2007. Sometime during that year the Town Court decided that the claims for compensation should be processed separately.
49. In February 2007 the applicant resubmitted her claim for compensation. On 3 July 2007 the Town Court refused to deal with the case because she had failed to comply with its instructions to specify the amount of the claim, to submit calculations concerning the loss and to pay a court fee.
50. On 5 September 2007 the Town Court granted the first claim in part, considering that the applicant had not been informed in good time of the order launching the enforcement proceedings in 2005. She had thus been deprived of the right to contest the documents relating to the enforcement.
(b) Pecuniary claims relating to delayed enforcement and loss of belongings
51. The applicant sued the municipality, complaining of losses she had suffered because of inflation arising from the delay in enforcement of the judgment of 13 April 2005 in the part relating to the expropriation compensation. On 10 December 2008 the Town Court awarded her 89,712 Russian roubles (RUB) in pecuniary damages arising from the fact that the judgment had actually been enforced on 1 December 2006. On 26 February 2009 the Moscow Regional Court quashed that judgment on appeal and instead awarded the applicant RUB 3,161, considering that the judgment had been enforced on 26 August 2005 when the expropriation compensation had been credited into the bank account opened for her.
52. In 2008 the applicant lodged a complaint with the bailiff service, requesting compensation for belongings that had either been lost or damaged during or following demolition of the house. On 22 May 2008 the District Bailiff Office replied that an inventory of her belongings had been compiled before the demolition. They had all been transferred to her social housing flat and entrusted to a public official for safekeeping; she had had three years to reclaim them. In February 2009 a new complaint by her was dismissed by the Federal Bailiff Office, which noted that the notices dated 11, 12, and 15 August 2005 of the impending demolition of the house had not been served on her personally as she had been away from her temporary address. Between August 2008 and January 2009 various courts in Moscow declined jurisdiction or turned down for procedural reasons a related civil claim by her against the Federal Ministry of Justice.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Expropriation of private property for public needs
1. Town Planning Code of the Russian Federation 1998
54. The Town Planning Code 1998 (in force until 2006) provided that a general plan was the principal document of town planning. It had to be adopted by the respective municipality, while general plans for larger towns (cities), including Moscow, had to be adopted by regional authorities (Article 35). Prior to adoption the general plan had to be published and discussed with various public authorities and the town’s residents (Article 35 § 7).
55. Pursuant to Articles 18, 28, 35 and 39 of the Code, citizens or legal entities had a right to truthful, full and timely information about their living environment (среда жизнедеятельности), any expected changes to it (for instance, by way of (re)construction of housing or roads) or another similar information, except for the information protected as a State secret. Such information could be provided through mass media outlets or during public debates or exhibitions. Prior to the adoption of a town planning document, citizens had a right to discuss it, make suggestions and participate in the preparation of decisions relating to town planning, by way of taking part in public meetings or debates or by other means; to seek independent expert assessments of town planning documents. Where they interfered with a person’s interests, he or she had a possibility to bring administrative or judicial proceedings, inter alia, challenging town planning documents or seeking compensation in respect of pecuniary or health damage.
56. Articles 58 and 60 of the Code required that prior to the adoption by the relevant municipality draft construction guidelines (town planning documents relating to parts of towns or villages) were to be published and discussed with the population.
2. Land Code of the Russian Federation 2001
57. Article 3 provides that matters relating to the possession, use and transfer of ownership of land should be regulated by civil legislation, unless the legislation concerning land, forests, environment or other specialist federal statutes otherwise provide.
“1. Municipalities have the competence ... to carry out expropriation of land for municipal needs, including by way of compulsory purchase ...”
“1. Expropriation of land (including by way of compulsory purchase) for State or municipal needs shall be carried out in exceptional circumstances relating to:
(1) enforcement by the Russian Federation of their international obligations;
(2) construction of facilities of State or municipal importance, in the absence of alternative locations for such facilities;
(3) other circumstances prescribed by a federal statute ... ;
3. The conditions and procedure for expropriation of land (including by way of compulsory purchase) for State or municipal needs are prescribed by Article 55 of this Code.”
“(2) construction of the following facilities of State or municipal importance, in the absence of alternative locations for such facilities: federal and regional energy network facilities, nuclear energy facilities; defence and security facilities; federal transport network facilities ...”
60. Article 55 provided that expropriation (including by way of compulsory purchase) for State or municipal needs could be carried out on the grounds listed in Article 49 and required prior compensation equivalent to the value of the land by a court decision. The procedure for compulsory purchase and the means of determining the relevant price were to be regulated by the Civil Code.
61. Article 63 provided that actual expropriation of land for State or municipal needs was to be preceded by (i) the provision of equivalent plots of land, if the person being expropriated so required; (ii) compensation for any property and other buildings on the land being expropriated; and (iii) compensation in respect of all losses, including lost profits. Notice of the planned expropriation had to be given at least one year in advance by the State or municipal authority taking the expropriation decision.
3. Land plots situated within towns and villages may be expropriated, including by way of compulsory purchase, for State or municipal need relating to construction projects pursuant to general plans of towns and villages ...”
The above provision was removed from the Code since January 2007.
63. In its ruling of 24 March 2005 the Plenary Supreme Commercial Court of Russia stated that State, regional or municipal authorities were competent to carry out expropriations of land by way of compulsory purchase (§ 27). The power of municipalities to carry out expropriations was also confirmed by the Constitutional Court in its decision no. 435-O-O of 17 June 2008.
3. Civil Code of the Russian Federation 1994
65. Article 279, entitled “Compulsory purchases of land for State and municipal needs” provided at the time that land could be expropriated from its owner for State or municipal needs by way of compulsory purchase. Depending on the relevant needs, the compulsory purchase would either be carried out by the Russian Federation, a region or a municipality (§ 1). The decision to expropriate would be taken by a federal executive authority or regional executive authorities (§ 2). The exact State or regional authority competent to carry out the expropriation was to be determined by the Land Code (ibid.).
66. Article 281 provided at the time that compensation for land being expropriated for State or municipal needs included the market value of the land and any immovable property located thereon, as well as all losses sustained by the owner as a result of the expropriation.
4. Decisions taken by Russian commercial courts in expropriation cases
67. In its decision of 14 June 2005 (case no. F03-A04/05-1/846) the Commercial Court of the Dalnevostochniy Circuit found that the municipality had failed to comply with the lower court’s request to provide a copy of the general development plan for the relevant district in relation to the municipality’s decision to expropriate land, purportedly for the goal of constructing a hotel (or shopping mall) on it. Considering that the document was important and referring to Article 83 of the Land Code, the court ordered a retrial.
68. In its decision of 9 November 2007 (case no. A08-9698/06-13) the Commercial Court of the Tsentralniy Circuit held that Article 49 in conjunction with Article 31 § 2 of the Land Code required that expropriation only be permissible in the absence of alternative options for meeting the public need relating to the construction of State or municipal premises. The commercial court thus rejected the administration’s claim, noting that their decision did indicate the nature of the premises to be located on the expropriated land and whether those premises corresponded to the general development plan.
69. On 5 May 2008 (case no. F09-2162/08-S6) the Commercial Court of the Urals Circuit held that under Article 49 of the Land Code, expropriation of land was permitted in exceptional circumstances, in particular for the construction of State or municipal premises in the absence of other options. Under Article 83 § 3, expropriation of land was permitted for municipal construction projects pursuant to general plans. The court noted that the administration wished to construct blocks of flats on the expropriated land, but rejected its claim for failure to substantiate that the construction project did in fact correspond to the municipal need or that the case could be classified as “exceptional” in the absence of alternative means of meeting the public interest. On 1 September 2008 the decision was upheld at final instance by the Supreme Commercial Court of Russia.
5. Other relevant legislation
70. Section 137 of the RSFSR Housing Code 1983 provided that where “individual housing” was demolished due to expropriation of the land for State or public needs, the owners and members of their families were to be provided with alternative State-owned or social housing.
B. Other matters
71. No evidence should be given any predetermined weight by a court (Article 67 § 2 of the Code of Civil Procedure (CCP); see also, for instance, Ruling no. 9 of 25 October 1996 by the Plenary Supreme Court of Russia, paragraph 6).
72. Article 79 of the CCP provided that where a case required special knowledge, a court could request an expert report from a specialist institution, a specific expert or a group of experts. Parties to the case could suggest issues to be raised before the expert. The court would then approve the final list of issues, providing reasons for rejecting the parties’ suggestions. The parties were entitled to appoint or challenge a specific expert, have access to the expert’s report and apply to the court for another expert assessment.
73. Article 437 of the CCP provided that a judge had discretion to suspend enforcement proceedings against a debtor in a number of circumstances, such as restructuring of a company debtor; participation in active military service (at the debtor’s request); prolonged absence on a service mission; inpatient treatment in hospital; pending proceedings to determine the whereabouts of a debtor, his property or a child; a bailiff’s court action for judicial clarification of the judgment to be enforced; or a pending complaint against a bailiff.
I. JOINDER OF THE APPLICATIONS
74. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications because they concern the same properties and the same domestic proceedings.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
75. The applicants complained that the expropriation of their properties had been unlawful and disproportionate, particularly on account of the derisory compensation that they had been awarded.
76. The first applicant also referred to the delay in the payment of the compensation award, demolition of the house prior to such payment and despite the pending supervisory review proceedings, and the alleged loss, damage to or destruction of the first applicant’s belongings.
77. Article 1 of Protocol No. 1 to the Convention reads as follows:
“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.”
A. The parties’ submissions
1. The Government
78. The Government argued that the courts’ refusal to assist the applicants in obtaining access to the town plan had not upset the principle of equality of arms. The town’s chief architect had informed the Town Court that the construction had been in line with the town plan and the construction guidelines for the district, and that the applicants’ land had fallen within the boundaries of the construction guidelines. The court had taken note of the fact that the town’s general plan had been classified as “confidential” as a document of “internal use with limited access”. Furthermore, it had considered that since the construction guidelines had been based on the town plan, there had been sufficient proof that the construction had been in line with it. The applicants could have objected that the available evidence had prevented examination of the case.
79. The court had examined the applicants’ argument concerning the alleged absence of “municipal needs” justifying the expropriation, thus by implication also dealing with the question of “exceptional circumstances” that were required for an expropriation. To that end, it had examined the construction guidelines for the district and the investment contract, and had concluded that the municipality would acquire title to 5% of the newly constructed blocks of flats, as well as title to the utilities and amenities. The latter would include a kindergarten for 114 children, an annex building for a school and other smaller premises amounting to 30% of the planned construction cost. That showed that the construction project had been for the good of the local population.
80. Article 49 of the Land Code at the time (see paragraph 59 above) did not require the absence of alternative locations for construction as a condition for expropriating land.
81. As regards the legality of the expropriation decisions, the Government argued that Russian law authorised municipal authorities to carry out expropriations. The applicable legislation provided that written notice had to be given of the public authorities’ preliminary decision to expropriate, while the matter of where the intended construction would be located was being decided. The information regarding the construction guidelines for the district had been published in August 2002.
82. As to the legitimate aims, the Government submitted that the construction project had been aimed at providing the local population with facilities having social and cultural functions, which was an important social consideration affecting interests of a large portion of economic actors.
83. Article 281 of the Civil Code required that expropriation compensation had to correspond to the market value of the property. The Government submitted that the Town Court had been provided with an assessment report issued by a private company estimating the value of the first and second applicants’ property as USD 24,488 and 73,463 respectively. In addition, the court had requested an expert report concerning the market value of the properties. The applicants had agreed to such a report being issued by the same private company. The experts had been warned about criminal liability for providing an intentionally false expert assessment (Article 307 of the Criminal Code). The new report had assessed the applicants’ property at USD 28,500 and 85,600 respectively. The applicants had then missed an opportunity to have a further expert assessment, and had failed to adduce evidence to substantiate their argument that their properties should have been valued higher.
2. The applicants
84. The applicants argued that they had been deprived of their possessions unlawfully and for private interests. Firstly, Russian law at the time had not conferred expropriation powers on municipalities, except where there had been an express delegation of power on the part of a State authority by way of federal or regional statute. No such delegation had been made in their case.
85. They had been deprived of their possessions for the benefit of a private investor seeking profit from the sale of newly constructed housing. Under the investment contract, the municipality had agreed to acquire title to a mere 5% of the flats. The second applicant also argued that the investment project had not pursued any social purpose (for instance, making available social housing or housing for affordable prices) because in 2006 the municipality had resold to the investor the properties it had acquired under the investment contract. The investor had not built any infrastructure or other facilities which would become municipal property (see paragraph 14 above) and the new housing was sold at market value.
86. The construction project could have been carried out on various other available plots of land owned by the municipality.
87. Both applicants argued that the market valuation of their properties should have taken into account the prospective substantial increase in the value of the land as the planned location of a new block of flats, given the immediate proximity of the properties to Moscow, the developed and convenient transport links and other infrastructure.
88. The second applicant also argued that he had received inadequate compensation for his share in the house, and had had to move into a social housing flat due to its demolition (see paragraph 35 above).
B. The Court’s assessment
(a) Expropriation decision
89. The Court notes that this part of the application 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) Grievances relating to the enforcement stage of the expropriation proceedings (essentially regarding the first applicant)
90. The applicants complained about enforcement of the judgment of 13 April 2005 prior to actual payment of the expropriation compensation and despite the pending proceedings for supervisory review, and the alleged loss, damage to or destruction of the first applicant’s belongings.
91. The Court notes that the judgment of 13 April 2005 became enforceable on 4 July 2005, that the compensation was credited on 26 August 2005 (of which the first applicant became aware on 29 August 2005), and that she did not receive the keys to the flat and the bank certificate until December 2006. Nothing suggests that that delay was attributable to the respondent State. It is further noted that the second applicant made no similar complaint to the Court.
92. As to the applicants’ argument relating to the allegedly precipitate enforcement, the Court notes that Russian law requires that compensation should be “prior” to expropriation (see paragraphs 53 and 60 above). Indeed, at least as regards the first applicant, the Court finds it established that the house was demolished on 22 August 2005, several days before she became aware that the compensation had been paid. Nevertheless, in the Court’s view, nothing suggests that the measure was unlawful under national law, and it did not amount to a disproportionate interference under Article 1 of Protocol No. 1 since by 22 August 2005 compensation was secured to the applicant on the basis of the judgment that had become final.
93. It appears that both the eviction and demolition of the house under the judgment of 13 April 2005 were carried out on 22 August 2005 while the first applicant’s request for supervisory review dated 18 August 2005 was pending. Recourse to supervisory review did not and could not suspend enforcement in the absence of certain circumstances listed in the Code of Civil Procedure (see paragraph 73 above).
94. The Court has previously considered, in the context of Article 35 § 1 of the Convention, that the supervisory review procedure (as in force prior to 2008) was not a remedy that had to be used. While it was available to the parties within a one-year time-limit, the proceedings, once launched, could last indefinitely at a number of levels of jurisdiction (see paragraphs 38-43 above). In the Court’s view, such a situation created an uncertainty that would render the six-month rule nugatory (see Denisov v. Russia, (dec.), no. 33408/03, 6 May 2004). However, what matters in the context of the present complaint is that the applicant had the benefit of appeal proceedings against the judgment of 13 April 2005. Following the appeal decision, it became final and enforceable under Russian law. There was no ascertainable date after which it could have been safely concluded that the judgment was no longer amenable to review. Thus, even though it appears that the applicants had in fact lodged an application for review without delay after the appeal decision, there are no convincing circumstances which would have called for a suspension of the enforcement to enable a reviewing court at one or several levels of jurisdiction to have another look at the expropriation case.
95. Lastly, as regards the loss of or damage to the first applicant’s belongings after the eviction and demolition of the house, the Court notes that the applicant did not substantiate her allegations.
96. Accordingly, the above complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(a) Interference and scope of the complaint
97. The applicants complained about the expropriation decisions of 18 March and 19 May 2003 and the judgment of 13 April 2005.
98. It is undisputed by the Government that the matters relating to the expropriation of the applicants’ house and land amounted to an “interference” under Article 1 of Protocol No. 1 to the Convention, that a municipality is part of the “State” within the meaning of the Convention and that, despite the context and requirements of the investment project carried out by a private company, the “interference” in question originated from an expropriation order issued by a municipality (see paragraphs 14 and 20 above).
99. The Court reiterates that Article 1 of Protocol No. 1 contains three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions and the third rule, stated in the second paragraph, recognises that States are entitled, amongst other things, to control the use of property in accordance with the general interest. These rules are not, however, unconnected: the second and third concern particular instances of interference with the right to the peaceful enjoyment of possessions and are therefore to be construed in the light of the principle laid down in the first rule (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 93, 25 October 2012). In the present case, it is not in dispute that there has been a “deprivation of possessions” within the meaning of the second sentence of Article 1 § 1 of Protocol No. 1.
100. The Court must therefore ascertain whether the impugned deprivation was justified under Article 1 of Protocol No. 1 to the Convention. To be compatible with that provision an expropriation measure must fulfil three conditions: it must be carried out “subject to the conditions provided for by law”, which excludes any arbitrary action on the part of the national authorities, must be “in the public interest”, and must strike a fair balance between the owner’s rights and the interests of the community. The Court will examine whether each of those three conditions has been fulfilled in the present case.
(b) Justification of the deprivation of possessions
(i) Subject to the conditions provided for by law
(i) the municipality had had no competence under Russian law to issue a decision on expropriation;
(ii) expropriation was unlawful in the absence of a properly approved town plan; and
(iii) the municipality had failed to comply with the statutory rules requiring them to prove that there were no alternative locations for the construction project and that there were exceptional circumstances justifying the expropriation.
102. In accordance with its case-law on the interpretation and application of domestic law, while the Court’s duty under Article 19 of the Convention is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 190, ECHR 2006-V). Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (ibid.).
103. The Court observes that the first-instance court in the applicants’ case did examine in a sufficiently thorough manner the undoubtedly crucial argument that the municipality had had no competence to issue a decision on expropriation (see paragraph 35 above). The Court finds no reason to call into question the domestic courts’ interpretation of the relevant provisions, nor does it find any evidence demonstrating that they acted in bad faith or neglected to apply correctly the legislation regarding the competence of municipalities to issue expropriation decisions. No question arises in the present case as to the quality of the legislation in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V, and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). The domestic court clarified the apparent contradictions within the Land Code and between that and the Civil Code (see paragraphs 58, 59 and 65 above) by specifying, with reference to Article 3 of the Land Code, that it was lex specialis in matters relating to land (see, in the same vein, the similar position taken by the Supreme Commercial Court and the Constitutional Court in paragraph 63 above).
104. Furthermore, the Court does not see any particular rules of domestic law or judicial practice suggesting that the matter of a properly approved and accessible general plan (or a development plan) or the matter of some compatibility between that plan and an investment project or construction guidelines for the district, for instance, disclosed at the material time such importance as to have had a bearing on an assessment of the lawfulness of an expropriation (see, conversely, paragraph 67 above for a decision taken by a commercial court). In any event, the matter was dealt with by the first-instance court that provided reasons for dismissing the argument (see paragraph 35 above). It was ascertained, with reference to other evidence, that construction works affecting the applicants’ land were officially being planned. The Court has no convincing arguments at its disposal to which could cast doubt on that assessment.
105. As to the requirement under Article 49 of the Land Code concerning the absence of alternative locations, the Court agrees with the respondent Government that a court of general jurisdiction could have legitimately considered in 2005 that expropriation in the context of an investment contract with a private company for the construction of blocks of flats fell under subparagraph 3 of Article 49 § 1 of the Land Code, which did not contain the same requirement as in subparagraph 2 (see paragraph 59 above; see, conversely, paragraph 69 above for a more recent example from a commercial court).
106. As regards the requirement of “exceptional circumstances” under the same provision, the Court was not provided with any material suggesting that it was considered or should have been considered at the time to be an essential element pertaining to the legality of an expropriation (see, mutatis mutandis, albeit in a different context, Frumkin v. Russia, no. 74568/12, § 150, ECHR 2016 (extracts), and Gusinskiy v. Russia, no. 70276/01, §§ 63-65, ECHR 2004-IV). It does not appear that the applicants raised an argument to that effect before the domestic courts.
107. The above considerations of domestic law may be taken into account, in so far as relevant, for the assessment of the legitimate aim pursued and for analysis of the proportionality of the impugned deprivation of possessions under Article 1 of Protocol No. 1. The Court would also reiterate in this connection that the Contracting States are not prohibited from setting higher standards for protection of the freedoms and rights set forth in the Convention and its Protocols, or for permitting interferences on the part of public authorities with these rights and freedoms.
(ii) “In the public interest” requirement and the requirement of “fair balance” between private and public interests
(α) General principles
108. As regards the existence of a “public interest”, the Court reiterates that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest” (see Vistiņš and Perepjolkins, cited above, § 106). Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to whether a problem of public concern exists warranting measures of deprivation of property (ibid.).
109. The Court reiterates that a deprivation of property effected for no other reason than to confer a private benefit on a private party cannot be “in the public interest” (see James and Others v. the United Kingdom, 21 February 1986, § 40, Series A no. 98). Nevertheless, the compulsory transfer of property from one individual to another may, depending upon the circumstances, constitute a legitimate means for promoting the public interest. The Court stated in 1986 in James and Others that even where the texts in force employed expressions like “for the public use”, no common principle could be identified (at the time) in the constitutions, legislation and case-law of the Contracting States that would warrant understanding the notion of public interest as outlawing compulsory transfer between private parties (ibid.). The expression “in the public interest” does not mean that the transferred property should be put into use for the general public or that the community generally, or even a substantial proportion of it, should directly benefit from the taking (ibid., §§ 41 and 45, in the context of legislative measures involving the compulsory transfer of property from one individual to another).
110. Indeed, the Court adopted a stringent test regarding challenges concerning a “public interest” in relation to deprivations of property arising from enactment of laws, in particular, in the context of profound societal changes (see James and Others, cited above, § 46; Former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 87-88, ECHR 2000-XII; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 91, ECHR 2005-VI) or general measures of economic or social strategy, for instance for the protection of the environment or of a country’s historical or cultural heritage (see, as a recent authority, Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 179, 15 November 2016). Finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, the Court stated that it would respect the legislature’s judgment as to what is “in the public interest” unless that judgment was “manifestly without reasonable foundation” (see, among other authorities, Kozacıoğlu v. Turkey [GC], no. 2334/03, § 53, 19 February 2009, and Vistiņš and Perepjolkins, cited above, §§ 106-07).
111. The same test was mentioned by the Court in Tkachevy v. Russia, no. 35430/05, §§ 37-39 and 50, 14 February 2012 concerning an expropriation order issued by a court, allegedly on safety grounds, for converting a building into non-residential premises while it eventually became a privately-owned set of luxurious residential premises for sale.
112. Also, in Farrugia v. Malta (dec.), no. 67557/10, § 22, 6 March 2012 while noting that the system of expropriation initiated at the request of third parties in Maltese domestic law was novel, the Court did not consider it unreasonable for the authorities to take into account the interests of third parties when adopting such measures. The Court concluded that the construction of a road which would give access to a housing complex, even though private, had been “in the public interest”.
113. As regards the requirement of a “fair balance”, the relevant general principles were recently summarised in the case of Vistiņš and Perepjolkins (cited above) as follows:
“108. Even if it has taken place ‘subject to the conditions provided for by law’ - implying the absence of arbitrariness - and in the public interest, an interference with the right to the peaceful enjoyment of possessions must always strike a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions ...
109. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question ... Nevertheless, the Court cannot abdicate its power of review and must therefore determine whether the requisite balance was maintained in a manner consonant with the applicants’ right to the peaceful enjoyment of their possessions, within the meaning of the first sentence of Article 1 of Protocol No. 1 ...
110. Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. The Court has already held that the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference. In many cases of lawful expropriation, such as a distinct taking of land for road construction or other ‘public interest’ purposes, only full compensation may be regarded as reasonably related to the value of the property ... [T]he Court cannot equate a lawful expropriation, complying with domestic law requirements, with a constructive expropriation that seeks to confirm a factual situation arising from unlawful acts committed by the authorities ...
111. Moreover, the Court reiterates that, where an individual’s property has been expropriated, there should be a procedure ensuring an overall assessment of the consequences of the expropriation, including the award of an amount of compensation in line with the value of the expropriated property, the determination of the persons entitled to compensation and the settlement of any other issues relating to the expropriation ... As to the amount of the compensation, it must normally be calculated based on the value of the property at the date on which ownership thereof was lost. Any other approach could open the door to a degree of uncertainty or even arbitrariness ...”
(β) Application of the principles in the present case
114. The Court considers that the matters relating to the “public interest” and the proportionality assessment in the present case are closely intertwined. Thus, it will examine them together.
115. The applicants’ central argument was that the expropriation had not pursued a genuine and compelling public interest. They argued, in substance, that the private investor had been its only actual beneficiary, and that the expropriation procedure had been used as a legal means of conferring a disproportionate benefit. The Government submitted that the expropriation was aimed at providing the town population with facilities having social and cultural functions, which was “an important social consideration affecting interests of a large portion of economic actors”.
116. The Court notes that the matter of effective protection of private property underlying complaints under Article 1 of Protocol No. 1 to the Convention is not necessarily confined to the question of compensation, which is indeed material to the assessment of expropriation under Article 1 of Protocol No. 1 both in related domestic proceedings and before the Court (see Vistiņš and Perepjolkins, cited above, § 110). Nor should the above - undeniably stringent - criteria relating to the “public interest” (see paragraphs 109-110 above) be taken as a carte blanche for recourse to expropriation measures, irrespective of their contexts.
117. In the Court’s view, beyond the evident pecuniary element, expropriations relating to one’s housing (dwellings) for the sake of fostering pecuniary interests of a group of investors or beneficiaries may have serious repercussions on the private owners whose property is being expropriated.
118. Turning to the present case, the Court notes that it concerns individual administrative decisions issued by a municipality rather than enactment and application of laws expropriating property with regard to special considerations of political, economic and social policies or contexts that could be present, for instance, in the cases cited in paragraph 110 above. The Court also observes that, even though it was related to a larger town planning scheme (see paragraph 18 above) it cannot be said that the expropriation of the applicants’ land sought to address any important general problem. The relevant administrative decision referred to the aims of “improving the architectural appearance of the town and the resettlement of inhabitants from housing that no longer [met] sanitary requirements”. There is nothing to suggest that the applicants’ house was dilapidated so as to become unsuitable for living in it, in which case it might be subject to the demolition procedure for decrepit housing instead of the expropriation procedure used in this case (see paragraph 19 above). At least one of the available valuations clearly stated that the house was habitable, although it required some superficial repairs (see paragraph 27 above). As to the aesthetic element of the town planning scheme in question, there is nothing in the available material or the Government’s submissions to substantiate the preference in favour of replacing individual residential houses with blocks of flats or to address the precedence of this consideration over the legitimate interests that the owners’ of these houses had.
119. The Government argued before the Court that the municipality needed the expropriated land for a specific construction project. This project concerns construction of housing, namely blocks of flats with the effect of creating new stock at the market of housing.
120. It is true that from a formal point of view, recourse to the expropriation procedure was linked to the municipal policies, which might be interpreted as aiming at improving the town’s appearance as well as at renewing and expanding residential housing opportunities (see paragraphs 11 and 18 above). However, having examined the requirements of the investment contract and the other pertinent factors, the Court is not satisfied that it was convincingly shown by the domestic administrative and judicial authorities that the reasons for using the expropriation procedure had a proper reasonable basis and were compelling (compare Tkachevy, cited above, § 50).
121. It has not been substantiated that the choice of land for the impugned construction project was discussed in an adequate manner with the local population, including the applicants, as required by Russian law (see paragraphs 12, 25, 55 and 56 above) or that various alternative locations were considered or that it was concluded that no such alternatives were available (see paragraphs 13 and 25 above). The material before the Court does not clearly establish any particular problem relating to the shortage of housing in the relevant geographic area. The Court also considers that the allegedly compelling nature of the public interest was, at the very least, undermined by the remaining doubts relating to the adoption of the main document concerning the town planning, as confirmed by the Moscow Region Prosecutor’s Office (see paragraph 33 above). It is also noted that the municipality received title to 5% of the newly built housing space. The respondent Government have not substantiated the submission that it was classified as social housing.
122. In order to assess the conformity of the State’s conduct with the requirements of Article 1 of Protocol No. 1, the Court must conduct an overall examination of the various interests in issue, having regard to the fact that the Convention is intended to guarantee rights that are “practical and effective”, not theoretical or illusory. It must go beneath appearances and look into the reality of the situation at issue, taking account of all the relevant circumstances, including the conduct of the parties to the proceedings, the means employed by the State and the implementation of those means (see Vistiņš and Perepjolkins, cited above, § 114).
123. While bearing in mind the State’s wide margin of appreciation in the context of expropriation, the Court retains doubts as to whether in the particular circumstances of the present case the deprivation of possessions for the sake of collective housing construction sought to achieve a compelling public interest.
124. In any event, the Court has taken note of the Government’s arguments relating to the compensation matter, namely that the applicants dismissed more advantageous offers from the investor and did not apply to the court to exercise its discretion to order another expert assessment, if they were dissatisfied with the methodology and/or conclusions of the expert report issued in February 2005.
125. Undoubtedly, it was the applicants’ choice not to accept the offers made at the preliminary non-judicial stage of the proceedings. However, such conduct does not amount to a “waiver” of their entitlement to adequate compensation neither in terms of domestic law nor under Article 1 of Protocol No. 1 to the Convention. The expropriation procedure under Russian law provided that where parties failed to reach an agreement on the compulsory purchase price, the matter would be determined by the courts. It thus remained incumbent on the courts to determine the compensation that would be up to the actual market value of the properties.
126. The available material before the Court does not disclose that the applicants properly voiced any objections or counterarguments regarding the expert report in the course of the proceedings before the first-instance court. The Court accepts that by not using the opportunity of seeking another expert valuation, the applicants placed themselves in a disadvantageous position. However, it observes that Russian law did not prevent them from disputing the expert report by other means, which were not limited to another expert assessment (compare Vrzić v. Croatia, no. 43777/13, §§ 113-14, 12 July 2016). The applicants did make submissions in their statement of appeal and some calculations and related explanations, contesting the expert report and putting forward a different valuation of the property (see paragraph 36 above). In particular, the first applicant argued that the expert should have used the “method of prospective use” for determining the value of the house and land. Furthermore, she argued that the expert valuation was based on the premise that the land’s use was for a summer cottage use rather than for the use relating to multi-storey blocks of flat; this premise was inappropriate, given that the property was already surrounded by similar blocks of flats. Those submissions do not appear to be devoid of substance or substantiation. It was thus incumbent on the domestic court to assess the counterarguments and provide reasons for dismissing them in so far they were directly related to the subject matter of the case, namely the market value of the properties to be expropriated.
128. The above considerations have led the Court to conclude that there has therefore been a violation of Article 1 of Protocol No.1 to the Convention in the present case.
III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
129. The applicants complained that the expropriation proceedings had been unfair in that (i) they could not obtain access to an essential piece of evidence, the general plan; and (ii) the courts had not provided sufficient reasons in relation to the key aspects of the case.
130. The first applicant also complained of a violation of Article 6 of the Convention on account of the delay in paying her the compensation awarded under the judgment of 13 April 2005, and uncertainty concerning any procedural or substantive decisions regarding the proceedings she had initiated against the bailiff service in August 2005.
131. Article 6 of the Convention reads as follows:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time ...”
A. The parties’ submissions
1. The Government
132. The Government submitted that the trial court had undertaken to ascertain that the planned construction works had been in line with the town plan, by referring to the district guidelines (based on it) and the statement from the town’s chief architect. The applicants had thus not been placed at a disadvantage because the plan had not been examined by the trial court. The Government further submitted that the courts had specifically addressed the matter, as well as the issues relating to the municipality’s competence to order expropriation or the actual legitimate aims pursued by it.
133. The Government submitted that on 26 August 2005 the compensation had been credited into a bank account opened for the applicant and that she had been informed accordingly, without delay. However, she had not received the relevant bank certificate (providing access to the bank account) until December 2006.
134. As regards the length of the proceedings against the bailiffs, the Government submitted that the applicant had sued the bailiff service in August 2005, her claim concerning the unlawfulness of the bailiff’s actions being determined in the judgment of 5 September 2007. As to her pecuniary claim arising from such a finding of unlawfulness, she had (re)submitted it in February 2007 as a separate action. The length of the proceedings between 2005 and 2007 had been justified. In any event, the applicant could have sued the State under the 2010 Compensation Act.
2. The applicants
135. The applicants maintained their complaints.
B. The Court’s assessment
136. First of all, having regard to the facts of the case, the submissions of the parties and the scope of the Court’s findings under Article 1 of Protocol No. 1 to the Convention concerning the expropriation decision, it is not necessary to give a separate ruling on the admissibility and merits of the complaints relating to issues of fairness in the expropriation proceedings (see, for the approach, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
137. As to the enforcement of the judgment of 13 April 2005, the Court observes that the expropriation compensation, the decision for which became enforceable on 4 July 2005, was credited into the relevant bank account on 26 August 2005, and that the first applicant was made aware of its availability soon thereafter. The first applicant was therefore afforded an effective and timely opportunity to use the money. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
138. Furthermore, as has become clear from the Government’s submissions in relation to the first applicant’s case against the bailiffs, on several occasions in 2005 and 2006 she lodged claims which were not accepted for various reasons. Even assessing all those failed attempts cumulatively (which would amount to no less than two years, while deducting some periods of inactivity by the applicant between various attempted actions), the Court considers that the “reasonable time” requirement was respected. The main thrust of the applicant’s complaint being that there was no judicial decision regarding her claim, the Court observes that the decisions were taken in 2007 and the applicant was eventually made aware of them. She did not raise any particular complaint regarding issues adversely affecting her access to a court in relation to her claims against the bailiff service. Accordingly, this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (AS REGARDS THE FIRST APPLICANT)
139. Repeating her arguments under Article 1 of Protocol No. 1 to the Convention, the first applicant complained that her eviction from her house had disclosed a violation of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
140. The Government may be understood to be submitting that the applicant had not lived in the house at all or for some time, despite formally having the house as her registered address since 2001. The part owned by the applicant (some 20 sq. m of which 12 sq. m was living space) had been disconnected from water, gas and electricity in 2003. Since 2001 her actual permanent residence had been in Moscow at the address she had indicated in her application form to the Court. In any event, she had received adequate compensation for her property and had been given a social tenancy contract for a flat measuring 30 sq. m (with 18 sq. m of living space). She had previously dismissed several, arguably more attractive, resettlement offers. Aspects relating to her emotional attachment to the house and amenities and her comfort there had meant to have been taken into consideration in the expropriation compensation. She had not raised that aspect before the courts in the expropriation case or in separate proceedings.
141. The applicant argued in substance that the expropriation decision had interfered with her private and family life, in that it had adversely affected her comfort and, in a way, her quality of life. She and her husband had enjoyed living in the house since 1969, where she had had a garden, and had made many technical improvements (gas, electricity, water and sewage installations).
B. The Court’s assessment
142. It appears that the applicant’s concerns expressed under this heading were, in substance and at least in part, taken into account in the expert assessment and the compensation awarded by the court in its judgment of 13 April 2005 and its decision requiring the municipality to provide the applicant with social housing, comparable to what she had been able to enjoy in the house as owner. The applicant did not claim in any proceedings, and has not argued before the Court, that it was legally impossible for her to seek additional compensation on account of non-pecuniary damage in respect of the considerations she had raised before the Court under Article 8 of the Convention, if she thought that any such compensation was necessary. However, the Court does not need to examine any further these and other matters relating to Article 8 of the Convention, in particular whether at the material time the house was the applicant’s “home” within the meaning of this Article or whether the applicant’s “private life” was adversely affected on account of the expropriation decision.
143. Having regard to the facts of the case, the submissions of the parties and the scope of the Court’s findings under Article 1 of Protocol No. 1 to the Convention concerning the expropriation decision, it is not necessary to give a separate ruling on the admissibility and merits of the complaint raised under Article 8 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 156; see also Kirillova v. Russia, no. 50775/13, § 44, 13 September 2016).
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
144. The Court has examined the remaining issues as submitted by the applicants. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
145. 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.”
146. The first applicant claimed 314,677 euros (EUR) in respect of pecuniary damage as “a fair market price for her private property in 2005”; increased by EUR 286,606 to account for inflation between 22 August 2005 and end of 2009, and EUR 60,000 in respect of non-pecuniary damage.
147. The second applicant claimed EUR 2,569,896 and EUR 50,000 for pecuniary and non-pecuniary damage respectively.
148. The Government considered the non-pecuniary claim excessive. The Government also contested the pecuniary claim, reiterating in substance their arguments relating to the merits of the complaint under Article 1 of Protocol No.1.
149. As regards the claim in respect of non-pecuniary damage, the Court accepts that the applicants sustained a degree of non-pecuniary damage on account of the violation found, such that an award on that basis may be regarded as justified (see Vistiņš and Perepjolkins v. Latvia (just satisfaction) [GC], no. 71243/01, § 47, ECHR 2014). Ruling on an equitable basis, the Court awards each applicant EUR 3,000, plus any tax that may be chargeable on this amount.
150. As to the alleged pecuniary damage, the Court considers that the question of just satisfaction in this part is not yet ready for decision. It should therefore be reserved to enable the parties to reach an agreement (Rule 75 §§ 1 and 4 of the Rules of Court).
B. Costs and expenses
151. The first applicant claimed EUR 170 for postal and various expenses incurred at the national level and before the Court. The Government contested this claim as substantiated in part. 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 have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards EUR 100 to the first applicant, plus any tax that may be chargeable.
152. The second applicant made no claim for costs and expenses, therefore the Court makes no award.
C. Default interest
153. 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. Declares admissible the complaint under Article 1 of Protocol No. 1 to the Convention concerning the expropriation decision;
3. Decides that it is not necessary to examine separately the admissibility and merits of the complaints under Articles 6 and 8 of the Convention concerning the expropriation decision;
4. Declares the remainder of each application inadmissible;
5. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention as regards the expropriation decision;
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) to the first applicant: EUR 3,000 (three thousand euros), plus any tax that may be chargeable on this amount, in respect of non-pecuniary damage; EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(ii) to the second applicant: EUR 3,000 (three thousand euros), plus any tax that may be chargeable on this amount, in respect of non-pecuniary damage;
(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. Holds that, as regards pecuniary damage resulting from the violation found, the question of just satisfaction is not ready for decision and accordingly:
(a) reserves this question;
(b) invites the Government and the applicants to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on this question and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix it if need be;
8. Dismisses the remainder of the applicants’ claim for just satisfaction on account of non-pecuniary damage and costs and expenses.
Done in English, and notified in writing on 28 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Helena