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FIFTH
SECTION
CASE OF
TULESHOV AND OTHERS v. RUSSIA
(Application
no. 32718/02)
JUDGMENT
STRASBOURG
24 May
2007
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 Tuleshov and Others v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mr R.
Maruste,
Mr A. Kovler,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 2 May 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 32718/02) 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 five Russian nationals, Mr Maksut Netkaliyevich
Tuleshov, Mrs Aslganym Kalikovna Tuleshova, Mr Viktor
Maksutovich Tuleshov, Mr Sergey Maksutovich Tuleshov and Mr Kalik
Isayev (“the applicants”), on 10 August 2002.
- The
applicants, who had been granted legal aid, were represented by Mr V.
Kolomin, a lawyer practising in Moscow. The Russian Government (“the
Government”) were represented by Mr P. Laptev, Representative
of the Russian Federation at the European Court of Human Rights.
- The
applicants alleged that they had been deprived of their house in
violation of Article 1 of Protocol No. 1 to the Convention and had
been evicted in violation of Article 8 of the Convention.
- By
a decision of 21 March 2006, the Court declared the application
admissible.
- The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants are members of one family. Mr
Maksut Netkaliyevich Tuleshov, born in 1953 (the first applicant),
and Mrs Aslganym Kalikovna Tuleshova, born in 1955 (the second
applicant), are husband and wife; Mr Viktor Maksutovich
Tuleshov, born in 1979, and Mr Sergey Maksutovich Tuleshov, born in
1977, are their sons; Mr Kalik Isayev, born in 1929, is the second
applicant's father. They, and three other children of the
first and the second applicants, live together in one
household in the town of Marx of Saratov Region.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
1993 Mr Kh bought a house from company B. It was a former shop at 8
Third Avenue, Marx, which Kh intended to convert into a dwelling. The
house was free from any third party claim.
- In
1996 the Marx Town Court of the Saratov Region examined an unrelated
commercial dispute between company B and a third party and found that
B had failed to perform as stipulated in their contract. The house
was listed as pledged property in the contract and the court ordered
its sale. Apparently the court was not aware that the house had
already been sold to Kh.
- The
sale was administered by the court bailiff. The price was set at
13,600,000 roubles (RUR), the pre-redenomination equivalent of
RUR 13,600, or approximately 2,800 US dollars. The first
applicant offered to buy the house, and on 12 April 1996 the Marx
Town Court approved the sale. This decision took effect on 23 April
1996. The first applicant was registered with the real estate
registry (Бюро
технической
инвентаризации)
as the owner of the house. Apparently the first applicant was not
aware of Kh's right to the house and Kh was not aware of the sale to
the first applicant.
- On
22 July 1996 the Marx local administration granted a reconstruction
permit by virtue of which the first applicant converted the shop into
a dwelling of about 78 square metres. He moved into it with seven
members of his family including the other applicants.
- In
1998 Kh seized the Marx Town Court with a property claim in respect
of the house and challenged its sale by the bailiff. The first
applicant lodged a counterclaim invoking his title to the house.
- On
28 June 1999 the Marx Town Court found that the bailiff had sold the
house to the first applicant unlawfully and declared the sale null
and void. It annulled the first applicant's title and ordered his and
his family's eviction. The first applicant was awarded RUR 13,600 as
reimbursement of the house purchase price by company B and the other
party to the contract mentioned in paragraph 9 above, and RUR 113,161
of reconstruction costs payable by Kh.
- On
the same day the applicants were served with an eviction order.
- The
first applicant and Kh appealed.
- Company
B and the other party both failed to pay the amount due to the
applicant under the judgment (RUR 13,600) as they became
insolvent.
- On
27 August 1999 the Saratov Regional Court upheld the first instance
judgment as to the substance, but reversed the award of the
reconstruction costs because such a claim had never been made by the
applicants.
- On
15 November 1999 the Presidium of the Saratov Regional Court quashed
on supervisory review the decision of 12 April 1996 by which the sale
of the house to the first applicant had been ordered.
- On
9 August 2000 the Marx Town Court, apparently following the first
applicant's request for supervisory review, appointed an expert to
assess the market value of the house. The evaluation report issued on
the same date estimated it as RUR 245,000 (then an equivalent of
about 9,738 euros (EUR)). On 31 August 2000 the Saratov Regional
Court rejected the request for supervisory review.
- On
14 March 2001 the applicants brought proceedings for damages against
Kh, the Ministry of Finance, the Ministry of Justice and the Judicial
Administration Department. They claimed pecuniary damages of
RUR 317,654 including the reconstruction costs (RUR 146,461),
the sum of RUR 13,600, i.e. the money which had not been paid by
the insolvent debtors, and non-pecuniary damages of RUR 210,000. In
support of their pecuniary claims they referred to the expert
evaluation of 9 August 2000. The court joined Kh to the proceedings
as a co-defendant.
- On
14 December 2001 the Marx Town Court examined the case. It found that
Kh had never authorised the reconstruction works on his premises and,
relying on Article 1069 of the Civil Code, held that these expenses
were incurred as a result of the authorities' unlawful conduct and
must be reimbursed by the State. The first applicant was awarded
RUR 89,522 (then the equivalent of about EUR 3,305) to be paid
by the Ministry of Finance. In so far as the applicants claimed the
reimbursement of RUR 13,600, the court held that the first
applicant “had not made sufficient effort to recover the debt”
from company B and the other party. The remaining pecuniary and
non-pecuniary claims including those by the other applicants were
dismissed on the grounds that the applicants had not adduced
sufficient proof of the amount they claimed as damages.
- On
15 February 2002 the Saratov Regional Court upheld the judgment of 14
December 2001.
- On
26 November 2002 the applicants were ordered to leave the house by 6
December 2002.
- The
applicants challenged the eviction order claiming that the award had
not been paid and that no other dwelling had been made available to
them.
- On
9 December 2002 the Marx Town Court of the Saratov Region dismissed
the applicants' challenge to the eviction order. This decision was
upheld on appeal by the Saratov Regional Court on 17 January 2003.
- On
27 March 2003 the Marx Town Court of the Saratov Region examined
another request by the applicants and adjourned the eviction until
4 April 2003. The applicants appealed claiming that this was
insufficient and requested an adjournment until social housing could
be allocated. The extension was refused.
- Between
April and July 2003 the applicants were served the eviction order
three times, each time with a new deadline. The applicants
unsuccessfully challenged the order every time it was served.
- On
12 September 2003 the bailiff of the Tsentralnyy District Court
of Moscow informed the first applicant that the bailiff service was
no longer competent to enforce awards against the State. He
instructed the first applicant to claim his award under the judgment
of 14 December 2001 directly from the Ministry of Finance.
- On
12 October 2003 the applicants and the rest of the family were
evicted from the house.
- On
19 November 2003 they were granted social housing in a municipal
hostel where they have been living since then. For eight family
members they were allocated a 45 square metres flat comprising three
rooms. The toilet, bathroom and cooking facilities are shared with
other flats on the same floor, and the residence has central heating
but no gas or hot water supply. The applicants received this
accommodation under the terms of a social tenancy and have to pay
rent. At present ten family members live in this dwelling.
- On
18 February 2004 the Ministry of Finance informed the second
applicant that the payment due to the first applicant pursuant to the
judgment had been suspended because the enforcement documents had
been sent to the Ministry's Legal Department “for the
inspection of the materials of the [applicants'] court dispute”.
It promised to “keep the applicants informed about the outcome
of the challenge and its legal assessment”.
- On
16 November 2004 the Ministry of Finance paid the applicant
RUR 89,522 (then the equivalent of about EUR 2,405).
- On
15 May 2006 the applicants obtained an expert evaluation of the
market value of their social housing, which was estimated at RUR
70,000 (then the equivalent of about EUR 2,017).
II. RELEVANT DOMESTIC LAW
A. Tort liability of the State
- Article 1064 § 1 of the Civil Code of the Russian
Federation provides that the damage caused to the person or property
of a citizen must be compensated in full by the person who caused the
damage. Pursuant to Article 1069, a State agency or a State official
is liable to a citizen for damage caused by their unlawful actions or
failure to act. Such damage is to be compensated at the expense of
the federal or regional treasury.
- Articles
151 and 1099-1101 of the Civil Code provide for compensation for
non-pecuniary damage. Article 1099 states, in particular, that
non-pecuniary damage shall be compensated irrespective of any award
for pecuniary damage.
B. Evaluation of real estate
- The officially fixed reference rates of the market
value of residential real estate are periodically published by the
State Construction Agency (Госстрой)
and are mandatory for the calculation of State-funded housing
subsidies. Directive No. 158 of 29 August 2003 stated that in the
last quarter of 2003 the average price of residential real estate in
the Saratov Region was RUR 8,200 (then the equivalent of about EUR
248) per square metre.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicants complained that the authorities had violated their right
to the peaceful enjoyment of their possessions. They invoked Article
1 of Protocol No. 1 to the Convention, which provides 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' arguments
- The
applicants submitted that they had been deprived of the house
lawfully purchased by the first applicant under the court
administered tender procedure. In their view, the fact that the court
bailiff's fault had been established in the domestic proceedings
should have entailed the State's full liability for damages. However,
all they had managed to obtain through the domestic proceedings was
compensation for part of the reconstruction costs. The applicants
claimed that this compensation was insufficient to buy a comparable
dwelling. The applicants presented calculations based on the 2003
Directive issued by the State Construction Agency which stated that
the market value of residential real estate in the Saratov Region in
the last quarter of 2003 was RUR 8,200 per square metre. On this
basis the applicants claimed that at the time it was paid the award
of RUR 89,522 was sufficient to pay for only 10.9 square metres,
while the forfeited house measured 78.3 square metres. As for the
social housing they received, they maintained that even in
combination with the above award it was insufficient because of its
unsatisfactory quality and size, and in any event they did not own
it. They considered that their overall losses were so substantial as
to amount to a deprivation of property for the purposes of Article 1
of Protocol No. 1 to the Convention.
- The
Government maintained that the transfer of the house had been
necessary for the protection of the lawful owner's rights and
considered that the aggregate of the award of construction costs and
the grant of social housing was sufficient to compensate for the
losses that the applicants could prove before the domestic courts. In
the Government's opinion, there had been no violation of Article 1 of
Protocol No. 1 to the Convention.
B. The Court's assessment
- The
Court notes, first, that the house in question was acquired and
renovated by the first applicant to provide residence for the whole
family. It follows that all applicants had a vested pecuniary
interest in continuing to live there. Accordingly all applicants may
claim that the house constituted their “possessions”
within the meaning of Article 1 of Protocol No. 1. The Court notes,
next, that the transfer of the house to the former owner constituted
an interference with their right to peaceful enjoyment of
possessions. This was indeed not in dispute between the parties.
- The
Court accepts, in the absence of any indication to the contrary, that
the first applicants' ownership was terminated “lawfully”
in domestic terms and in the pursuit of the “public interest”,
that is protecting the rights of the legal title holder, who had
precedence. It therefore remains to be examined whether this measure
was also proportionate to the legitimate aim pursued so as to be
compatible with the guarantees enshrined in Article 1 of Protocol No.
1 to the Convention.
- The Court reiterates that an interference with the
peaceful enjoyment of possessions must strike a “fair balance”
between the demands of the public or general interest of the
community and the requirements of the protection of the individual's
fundamental rights. Compensation terms under the relevant legislation
are material to the assessment of whether the contested measure
respects the requisite fair balance, and notably, whether it does not
impose a disproportionate burden on the applicant (see Former King
of Greece and Others, [GC], no. 25701/94, § 89, ECHR
2000-XII).
- The Court further reiterates that the taking of
property without payment of an amount reasonably related to its value
will normally constitute a disproportionate interference that cannot
be justified under Article 1 of Protocol No. 1. This provision does
not, however, guarantee a right to full compensation in all
circumstances, since legitimate objectives of “public interest”
may call for less than reimbursement of the full market value (see,
among other authorities, Papachelas v. Greece [GC],
no. 31423/96, § 48, ECHR 1999-II).
- Turning
to the facts of the present case, the Court observes that the
national courts recognised the applicants as bona fide buyers and
occupants and held the court bailiff responsible for the unlawful
sale of Kh's property to them. The Court further notes that the
domestic courts upheld the first applicant's tort action against the
State in respect of the reconstruction costs. However, they refused
to award full compensation for the house value on the grounds that
the house purchase price had already been awarded and it was the
first applicant's fault that he had not recovered it from company B
and its counterparty. In addition, the court found that the
applicants had not adduced sufficient proof of the amount they
claimed as damages.
- The
Court notes in this respect that the house purchase price awarded in
1999 was not paid to the first applicant due to the liable parties'
insolvency. It is not clear from the judicial decisions or the
Government's submissions what steps the first applicant was expected
to take to receive the award from the insolvent debtors, or to what
extent his failure to do so contributed to their default under the
judgment. In any event, the Court observes that the amount which he
had supposedly failed to receive (RUR 13,600) would only be a
fraction of the alleged losses. In the Court's view, the applicant's
claims in this respect were not prima facie unreasonable or
unsubstantiated. In particular, it sees no reason for the courts to
disregard the court-commissioned expert evaluation of 9 August 2000,
which estimated the value of the transferred house at RUR 245,000.
Indeed, this evaluation was neither contested before the domestic
courts, nor superseded by an alternative estimate. It follows that
this part of the claim was rejected by the courts without sufficient
grounds.
- As
regards the accommodation allocated to the applicants in the
municipal hostel, the Court notes that the applicants received the
housing under a social tenancy and have to pay monthly rent. The
Government have not indicated what advantage, if any, it brings to
the applicants compared with renting at the market rates. For this
reason, and in view of the limited scope of the tenancy title
compared with that of ownership, the Court sees no grounds to take
account of this benefit when assessing whether the compensation
offered to the applicants was reasonable.
- It
follows that the applicants received only RUR 89,522 as compensation
for the house the cost of which, according to the expert evaluation
of 9 August 2000, was RUR 245,000 in the material period. The Court
notes that in the present cases there have been no legitimate
objectives of “public interest” that would call for less
than reimbursement of the full market value.
- The
Court therefore concludes that the failure to pay adequate
compensation imposed on the applicants an individual and excessive
burden and upset the fair balance between the demands of the public
interest on the one hand and the applicants' right to the peaceful
enjoyment of their possessions on the other. Accordingly there has
been a violation of Article 1 of Protocol No. 1 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that their eviction without an adequate
replacement had infringed their right to respect for their home. They
invoked Article 8 of the Convention which provides 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' arguments
- The
applicants stated that their eviction constituted a disproportionate
interference with their right to respect for their home. They
referred to insufficient compensation, the poor quality of the social
housing granted to them and also to a considerable delay in
enforcement of the court award in their favour.
- The
Government reiterated their submissions under Article 1 of Protocol
No. 1 to the Convention and maintained that there had been no
violation of Article 8.
B. The Court's assessment
- The
Court notes, first, that the house from which the applicants were
evicted was their home within the meaning of Article 8 and that their
eviction constituted an interference with their right to respect for
their home. It accepts that the measure in question was lawful in
domestic terms and in the pursuit of the “public interest”,
that is protecting the rights of the lawful owner. It therefore
remains for the Court to examine whether this interference was
proportionate to the legitimate aim pursued.
- The
Court notes that the authorities accommodated the applicants in the
municipal hostel, however, it observes that the accommodation was
offered more than two years after the eviction order was issued and
one month after it had been enforced. It follows that the applicants
were living under the threat of expulsion for a long time being in
the state of uncertainty about receiving substitute housing from the
State. At the same time, their possibility for private rental or
purchase of accommodation was limited due to the fact that the
compensation awarded to them was insufficient (see paragraph 48
above) and in any event was paid with a delay of about three years,
which meant that the applicants received it more than a year after
they were evicted.
- In
view of the foregoing, the Court considers that the interference with
the applicants' right to respect for their home was disproportionate
to the legitimate aim pursued.
- It
follows that there has been a violation of Article 8 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicants claimed 18,350 euros (EUR) in respect of pecuniary damage
arguing that this represented the sum which, combined with the
already received 89,522 roubles (RUR), would permit them to buy an
equivalent or comparable house and to cover all expenses related to
moving house and paying rent for the social housing.
- The
Government contested these claims as excessive and unreasonable. They
did not present an alternative estimate of the applicants' losses and
considered that, if the Court were to find a violation of the
applicants' Convention rights, the acknowledgment of a violation
would constitute sufficient just satisfaction.
- The
Court takes note of the calculations of losses presented by the
applicants in the domestic proceedings and before the Court
(paragraphs 20 and 38 above) and observes that they have not been
contested at any stage. In the light of this information the Court
considers the claim reasonable, and, in the absence of an alternative
estimate by the Government, awards the applicants jointly EUR 18,350
for any pecuniary damage they sustained as a result of the loss of
their house and their eviction, plus any tax that may be chargeable
on the above amount.
B. Non-pecuniary damage
- The
applicants submitted that the unlawful house sale, the ensuing
litigation, the deprivation of property, the eviction from their home
and their subsequent hardships living in cramped and substandard
accommodation with a large family including small children and an
elderly person had caused them severe distress. They claimed EUR
228,000 for non-pecuniary damage, which amount they claimed on behalf
of eight family members each of whom had been through six years of
sufferings.
- The
Government reiterated their objections made in respect of the
applicants' pecuniary claims.
- The
Court recalls the violations of the Convention which it has found and
considers that the applicants must have sustained non-pecuniary
damage as a result thereof. It therefore considers that the finding
of the violations of the Convention in itself does not constitute
sufficient just satisfaction in the instant case and, making its
assessment on an equitable basis, awards the applicants jointly EUR
20,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable on the above amount.
C. Costs and expenses
- The
applicants were represented by Mr V. Kolomin, a lawyer practising in
Moscow. According to the contract entered into by the applicants on
26 April 2006, they agreed to pay the representative a fee of EUR
4,000. In addition to that, the applicants hired a local legal
counsel assisting them in the preparation of the documents for the
proceedings before the Court, who charged a fee of EUR 1,063. The
applicants claimed reimbursement of the lawyer's fees, less EUR 850
already received by way of legal aid from the Council of Europe.
- The
Government did not dispute the claims under this head.
- The
Court has to establish, first, whether the costs and expenses
indicated by the applicant were actually incurred and, second,
whether they were necessary (see McCann and Others v. the United
Kingdom, judgment of 27 September 1995, Series A no. 324, §
220).
- The
Court considers that the costs, in so far as Mr Kolomin's fee is
concerned, were actually and necessarily incurred and relate to the
violations found. As regards the fees of the local counsel, the
applicants have not presented any receipts relating to the sum
claimed. Accordingly the Court awards to the applicants jointly EUR
4,000 for costs and expenses less EUR 850 already received by way of
legal aid from the Council of Europe, plus any tax that may be
chargeable on the above amounts.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, 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 Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
18,350 (eighteen thousand three hundred and fifty euros) in respect
of pecuniary damage;
(ii) EUR
20,000 (twenty thousand euros) in respect of non-pecuniary damage;
(iii) EUR
3,150 (three thousand one hundred and fifty euros) in respect of
costs and expenses;
(iv) any
tax that may be chargeable on the above amounts;
(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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
