CASE OF ANDREY MEDVEDEV v. RUSSIA
(Application no. 75737/13)
16 January 2018
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 Andrey Medvedev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Helena Jäderblom, President,
Luis López Guerra,
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 19 December 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 75737/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Andrey Yuryevich Medvedev (“the applicant”), on 22 November 2013.
2. In a judgment delivered on 13 September 2016 (“the principal judgment”), the Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention and of Article 8 of the Convention (see Andrey Medvedev v. Russia, no. 75737/13, §§ 46-47 and 56-57, 13 September 2016) and made an award under Article 41 of the Convention to the applicant as regards his claims in respect of non-pecuniary damage and costs and expenses.
3. Under Article 41 of the Convention the applicant sought just satisfaction of 4,796,000 Russian roubles (RUB) in respect of pecuniary damage, which included the purchase price of the flat, the expert fee for the appraisal of the flat and the cost of the materials and supplies he had bought for the refurbishment of the flat.
4. Since the question of the application of Article 41 of the Convention, as regards pecuniary damage, was not ready for decision, the Court reserved it and invited the Government and the applicant to submit, within three months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 61 and point 4 of the operative provisions).
5. The applicant and the Government each filed observations.
6. Following the delivery of the judgment by the Court in the applicant’s case, the applicant lodged an application with the Golovinskiy District Court of Moscow, asking it to review the judgment of 30 October 2012 as upheld on 12 March 2013 by the Moscow City Court whereby the District Court had revoked the applicant’s title to the flat located at 12-5 Ulitsa Lavochkina, Moscow, ordered his eviction and returned the flat to the City of Moscow.
7. On 10 April 2017 the District Court dismissed the applicant’s application. The applicant appealed. The parties have not informed the Court of the outcome of the proceedings.
8. 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.”
1. Parties’ submissions
9. The applicant reiterated his claims in respect of pecuniary damage. He submitted that the judgment of 22 January 2014 delivered by the Sergiyev Posad Town Court of the Moscow Region in his favour awarding damages against S. had not been enforced and the pending enforcement proceedings were a mere formality. The bailiffs had failed to locate S. or his assets. It would be highly unlikely that there would be any change in that situation.
10. The Government submitted that the enforcement proceedings were still pending and should the Court decide to make an award in respect of pecuniary damage to the applicant, the latter would receive the claimed amount twice: (1) as just satisfaction awarded by the Court and (2) as a judgment debt paid by S. They considered that, given that a new set of proceedings was pending before the national courts, the Court should “oblige the Government to secure, by appropriate means, the enforcement of the judgment of 22 January 2014 [in the applicant’s favour]” instead of providing the applicant with a flat or its monetary equivalent.
2. Court’s assessment
11. The Court’s takes into account the Government’s argument that, in the circumstances of the case, the most appropriate form of redress would be the enforcement of the judgment of 22 January 2014 in the applicant’s favour against S. who was ordered to pay damages to the applicant for the loss of the flat. In this connection, the Court reiterates that the enforcement of the judgment in the applicant’s favour and any award he might be able to recover from S. may be taken into account for the purposes of its ruling on the issue of just satisfaction award under Article 41 of the Convention (compare, Gladysheva v. Russia, no. 7097/10, § 62, 6 December 2011).
12. The Court, however, notes that the judgment of 22 January 2014 referred to by the Government has remained unenforced to date. The Government have not provided any information as to the progress in the enforcement proceedings. The bailiffs have not so far located the debtor or any of his assets. In such circumstances, the Court considers that, as argued by the applicant, the Government have not demonstrated that the enforcement proceedings have any prospect of success and that the applicant might actually receive the judgment debt.
13. The Court also observes that in an earlier case against Russia, in comparable circumstances, it has granted the applicant’s claims in respect of pecuniary damage (see Pchelintseva and Others v. Russia, nos. 47724/07 and 4 others, §§ 107-10, 17 November 2016, in which the Court made an award in respect of the pecuniary damage claimed by Ms Polevoda, the applicant whose judgment in her favour against the seller of the flat had not been enforced).
14. The Court considers that, in the present case, there is a clear link between the violation found and the damage caused to the applicant. Having due regard to its findings in the instant case and to the fact that the amount awarded by the judgment of 22 January 2014 has not been paid, the Court grants the applicant’s claims in part and awards him 89,660 euros (EUR) in respect of pecuniary damage. It dismisses the remainder of the applicant’s claims for just satisfaction.
B. Default interest
15. 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,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 89,660 (eighty-nine thousand six hundred and sixty euros), plus any tax that may be chargeable, in respect of pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
2. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 16 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Helena