European Court of Human Rights

 

 

SECOND SECTION

CASE OF DENISENKO v. THE REPUBLIC OF MOLDOVA AND RUSSIA

(Application no. 33842/10)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

18 January 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Denisenko v. the Republic of Moldova and Russia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Egidijus Kūris,
          Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 33842/10) against the Republic of Moldova and Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 June 2010 by an Ukrainian national, Ms Nina Denisenko, born in 1938 and living in Tiraspol (“the applicant”) who was represented by Mr S.G. Popovschi, a lawyer practising in Tiraspol;

the decision to give notice of the complaints concerning Article 1 of Protocol No. 1 to the Convention and Article 6 of the Convention to the Moldovan and Russian Governments (“the respondent Governments”), represented by their Agents, and to declare inadmissible the remainder of the application;

the observations submitted by the respondent Governments and the observations in reply submitted by the applicant;

the comments submitted by the Ukrainian Government, who were granted leave to intervene by the President of the Section;

the decision to reject the Russian Government’s objection to examination of the application by a Committee;

Having deliberated in private on 14 December 2021,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1.  The case concerns the interference with the applicant’s right to the peaceful enjoyment of possessions following a decision of a court in the self‑proclaimed “Moldovan Republic of Transdniestria” (the “MRT”), which allowed B., a third person, to live in the flat owned by the applicant, contrary to her wish.

2.  In 2005 the applicant obtained a flat as a gift from her husband. In 2009 the Supreme Court of the “MRT” ordered the applicant not to hinder B.’s use of that flat, because B. had a registered residence (“propiska”) there.

3.  The applicant complained of a violation of her rights under Article 1 of Protocol No. 1 to the Convention. She also complained under Article 6 of the Convention that her case had been examined by courts that could not qualify as “independent tribunals established by law” and that the length of the proceedings had been excessive.

THE COURT’S ASSESSMENT

I.        LOCUS STANDI

4.  On 4 August 2016 the applicant died and by a letter of 15 September 2009, Ms Lidya Komarova requested the Court to be allowed to take the applicant’s place. Ms Komarova submitted a copy of a will drawn up on 27 May 2014 in the “MRT” by which the applicant bequeathed Ms Komarova all her estate. Ms Komarova argued that the applicant had no close relatives and that she had taken care of the applicant in the years preceding her demise. In support of this allegation, Ms Komarova submitted the applicant’s divorce certificate dated 2013 and a life annuity contract between the applicant and herself dated 14 October 2014. She also informed the Court that the applicant had donated in 2014 the concerned flat to her former husband.

5.  Both respondent Governments objected to Ms Komarova’s standing as heir in the proceedings before the Court because she was not a family member of the applicant and the will did not mention explicitly the present case pending before the Court as part of the applicant’s estate. The Moldovan Government submitted that since the concerned flat was no longer owned by the applicant at the time of her demise, Ms Komarova could not have inherited any legitimate interests connected to that flat. The Governments did not contest the validity of the will.

6.  Where the applicant has died after the application was lodged, the Court has accepted that the next‑of‑kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014). In such cases, the decisive point was not whether the rights in question were or were not transferable to the heirs wishing to pursue the proceedings, but whether the heirs could in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application (see Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014; Ivko v. Russia, no. 30575/08, § 68, 15 December 2015; and Provenzano v. Italy, no. 55080/13, § 96, 25 October 2018). The Court has also stated that human rights cases before the Court generally have a moral dimension, and persons near to an applicant may have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII).

7.  Nothing suggests that the rights the applicant sought to protect through the Convention mechanism were eminently personal and non-transferable and her heir, Ms Komarova, has a legitimate interest to pursue the application (see Malhous v. the Czech Republic [GC], no. 33071/96, § 1, 12 July 2001). The Court therefore recognises Mr Lidya Komarova’s entitlement to pursue the application in the place of the applicant.

II.     JURISDICTION

8.  The parties maintain views on the issue of jurisdiction which are similar to those expressed by the parties in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 83-101, ECHR 2012 (extracts)) and in Mozer v. the Republic of Moldova and Russia ([GC] (no. 11138/10, §§ 81-95, 23 February 2016).

9.  The Ukrainian Government submitted that, in establishing the jurisdiction of the respondent States, the Court should not distinguish the present case from Catan and others (cited above).

10.  The facts of the present case concern the period 2009-2010 for which the Court has repeatedly found that both respondent Governments had jurisdiction. In particular, the Court found that Moldova had jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of was to be assessed in the light of its positive obligations (Mozer, cited above, § 99). The Court also found the jurisdiction of the Russian Federation since that State exercised effective control and a decisive influence over the self-proclaimed authorities of the “MRT” (Mozer, cited above, §§ 110-111).

11.  The Court sees no grounds on which to distinguish the present case from Mozer (cited above) and concludes that both respondent Governments had jurisdiction.

III.   ALLEGED VIOLATION OF ARTICLE 1 of Protocol NO. 1 TO THE CONVENTION

12.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

13.  The applicant complained about being unable to use freely her flat due to the court decisions which ordered her not to hinder B. in the use of the flat. The interference resulted from the provisions of the Housing Code of the self-proclaimed authorities of the “MRT”.

14.  In so far as the lawfulness of the interference is concerned, no elements in the present case allow the Court to consider that there was a legal basis for interfering with the rights of the applicant guaranteed by Article 1 of Protocol No. 1 to the Convention (see also Turturica and Casian v. the Republic of Moldova and Russia, nos. 28648/06 and 18832/07, § 49, 30 August 2016; Babchin v. the Republic of Moldova and Russia, [Committee] no. 55698/14, § 74, 17 September 2019; Cravcișin v. the Republic of Moldova and Russia, [Committee] no. 43176/13, 28 September 2021). There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

15.  Determining whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicant’s rights, the Court reiterates its findings in Mozer that, from the onset of the hostilities in 1991-1992 until July 2010, Moldova had taken all the measures in its power (see Mozer, cited above, § 152). Since the parties did not adduce any evidence to show that the Moldovan Government has changed its position concerning the “MRT” in the years preceding the facts of the present case, the Court sees no reason to reach a different conclusion (ibid.). As to the State’s obligation to ensure respect for the applicant’s rights, the Court notes that the applicant adduced no evidence to the effect that she had informed the Moldovan authorities of her problem. In such circumstances, the non-involvement of the Moldovan authorities in the case cannot be held against them.

16.  In the light of the foregoing, the Court concludes that the Republic of Moldova did not fail to fulfil its positive obligations in respect of the applicant. There has therefore been no violation of Article 1 of Protocol No. 1 to the Convention by the Republic of Moldova.

17.  As Russia exercised effective control over the self-proclaimed authorities of the “MRT” during the period in question (see paragraph 10 above), it is not necessary to determine whether or not Russia exercised detailed control over the policies and actions of the subordinate local administration (see Mozer, cited above, § 157). By virtue of its continued military, economic and political support for those self-proclaimed authorities, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicant’s rights.

18.  Therefore, the Court holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention by the Russian Federation.

IV.  ALLEGED VIOLATION of ARTICLE 6 of the CONVENTION

19.  The applicant complained under Article 6 of the Convention that her case had been examined by courts which could not qualify as “independent tribunals established by law”. This complaint is covered by the well‑established case-law of the Court. It is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, this complaint must be declared admissible. Having examined all the material before it, the Court concludes that they disclose a violation of Article 6 of the Convention in the light of its findings in the following judgments (see Mozer, cited above, §§ 148-149; Vardanean v. the Republic of Moldova and Russia, no. 22200/10, § 39, 30 May 2017; Apcov v. the Republic of Moldova and Russia, no. 13463/07, § 57, 30 May 2017, and more recently, Cravcișin, cited above, §§ 29-30).

20.  For the same reasons as those given in the same context as above (see paragraphs 15-18 above), the Court finds that there has been no violation of Article 6 of the Convention by the Republic of Moldova and that there has been a violation of Article 6 of the Convention by the Russian Federation.

21.  In view of the above, the Court does not consider it necessary to examine separately the issue concerning the length of proceedings.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 6,880 in respect of costs and expenses incurred before the Court. She submitted contracts for her legal representation and detailed timesheets of the work carried out by her representative.

23.  The respondent Governments submitted that the claims were submitted outside the time-limit provided by the Court and were excessive.

24.  The Court finds that the applicant complied with the additional time‑limit granted by the Court for the submission of her claims for just satisfaction and awards the applicant EUR 5,000 EUR in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

25.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 3,000 for costs and expenses before the Court, plus any tax that may be chargeable to the applicant.

26.  The Court further 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.      Declares the complaints concerning Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention admissible;

2.      Holds that there has been no violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention by the Republic of Moldova;

3.      Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention by the Russian Federation;

4.      Holds that there has been a violation of Article 6 of the Convention by the Russian Federation;

5.      Holds that there is no need to examine the complaint under Article 6 of the Convention concerning the length of proceedings;

6.      Holds

(a)  that the Russian Federation is to pay the applicant, within three months, the following amounts:

(i) EUR 5,000 (five thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Hasan Bakırcı                                                     Carlo Ranzoni
          Deputy Registrar                                                      President