Decision to demolish an arbitrary building without the possibility of appeal and the control of legality by the courts! Violations of property rights and access to court
JUDGMENT
Kooperativ Neptun Servis v. Russia 23.11.2021 (app. no. 40444/17)
SUMMARY
Decision to demolish an arbitrary shopping center. Right to respect for property. Access to judicial protection against executors of regulatory decisions of the administration.
The applicant company set up a shopping center in Moscow, which it operated through various business activities. The building was deemed arbitrary and a municipal decision was issued for its demolition. The domestic courts irrevocably rejected the company’s appeals as inadmissible and did not rule on the merits of the demolition decision.
The ECtHR noted that there was no dispute between the parties as to the fact that the registration of the applicant’s property between the arbitrary structures to be demolished in an annex to the municipal order and the demolition decision had not been subject to judicial review, despite the fact that National legislation.
Given that the demolition order of the building amounted to an interference with the applicant’s right to the peaceful enjoyment of her possessions and that the applicant company was unable to bring its case to the domestic courts, the ECtHR found a violation of her right to Article 1 of the First Additional Protocol) and the right of access to a court as a more specific aspect of a fair trial (Article 6 § 1 of the ECHR).
The Court awarded EUR 6,000 for non-pecuniary damage and EUR 4,784 for costs. He rejected the claim for pecuniary damages because he considered that it was not within the jurisdiction of the Court to rule in favor of a party in relation to the adjudication of the alleged property damage, as this had not been decided by the national courts.
PROVISIONS
Article 6 par. 1
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant is a private company, based in Moscow, whose property (a shopping mall) was built in
Moscow in the 1990s and was subsequently classified as an unlawful construction.
In 1994 the applicant company entered into a lease agreement with Moscow City Council, which
stipulated in particular that the land was to be let to the company for the purposes of completing a
three-storey building to be used as an entertainment centre. In addition to this centre, the applicant
company built a shopping mall on the site.
From 2006 onwards, the Moscow authorities repeatedly pointed out that the building in question
was unlawful, as it had been built over a sewage system. However, the courts which examined the
authorities’ case rejected their claims as time-barred.
In 2015 Moscow City Council issued order no. 899-PP for the demolition of about 100 “unlawful
constructions”. The relevant buildings, as identified by the Moscow authorities, had to be demolished by their owners. As the latter refused to demolish them, Moscow City Council had the
buildings cleared in February 2016.
The applicant company attempted to challenge the municipal order in court, but was unsuccessful.
The commercial courts found they had no jurisdiction on the grounds that the order was a
“normative” and not an individual measure. The ordinary courts, in turn, declared the company’s
appeal – against the “normative” part of the order – inadmissible on the grounds that it was
essentially the same as an earlier appeal by another company against the same part. Moscow City
Council did not ask a court to declare the disputed property an unlawful construction. Thus, no court
examined the individual situation of the applicant company, which complained of a denial of justice
before the European Court of Human Rights.
The applicant company relied on Article 1 of Protocol No. 1 (protection of property) to the
Convention and Article 6 § 1 (right of access to a court) together with Article 13 (right to an effective
remedy).
THE DECISION OF THE COURT…
Article 1 of Protocol No. 1 (protection of property)
The Court noted that the building in question constituted a “possession” of the applicant company
within the meaning of Article 1 of Protocol No. 1 to the Convention and that the order to demolish it
amounted to an interference with the applicant’s right to the peaceful enjoyment of its possessions.
This interference corresponded to the control of the use of property under the second paragraph of
Article 1 of Protocol No. 1.
Article 35 of the Russian Constitution provided that no one could be deprived of their property other
than by a court order. The requirement of judicial scrutiny had been confirmed by the Russian
Constitutional Court, which noted that Article 222 § 4 of the Civil Code was to be interpreted, in the
light of Article 35 of the Constitution, as requiring judicial scrutiny of every administrative decision
classifying a building as unlawful and to be demolished where the building concerned was listed in
the National Register.
It followed that domestic law, as in force at the time, required judicial scrutiny of the decision to
include the property, listed under the applicant company’s name in the National Register, in the
annex to municipal order no 829-PP. Irrespective of whether at the time of the demolition such
judicial scrutiny could or should have been initiated by the authorities or the applicant company (in
the first case it would have been an authorisation and in the second a prohibition), it followed from the interpretation of the national legislation confirmed by the Constitutional Court that such scrutiny should have taken place.
However, no such scrutiny of the applicant company’s situation had been carried out either before
or after the demolition of the property. The competent authorities had not brought any legal
proceedings to lay before the national courts the considerations that the Government had set out in
their observations before the Court, in particular those concerning the unlawfulness of the
construction and the risks which the building allegedly represented for life, health and the
environment. Nor had the applicant company been able to meaningfully exercise its right to judicial
scrutiny.
Article 6 § 1 (right of access to a court)
The Court noted that there had been no disagreement between the parties as to the fact that the
applicant company’s individual situation – the listing of its property among the unlawful
constructions to be demolished in an annex to the municipal order – had not been subjected to
judicial scrutiny. The Government had not relied on any legitimate aim to justify this restriction on
access to justice. They had merely cited various texts containing the rules on the jurisdiction of the
commercial and ordinary courts. As a result of those rules, the applicant company had been unable
to have its case examined. That situation had been incompatible with the right of access to a court
enshrined in Article 6 § 1 to the Convention. There had thus been a violation of that provision.
Article 13 (right to an effective remedy)
The Court found that the Article 13 complaints had already been sufficiently addressed in its findings
under Article 6 § 1. Therefore there was no need to examine them separately.
Just satisfaction (Article 41)
The Court held that Russia was to pay the applicant company 6,000 euros (EUR) in respect of nonpecuniary damage and EUR 4,784 for costs and expenses.
However, the Court rejected the claim for pecuniary damage. Noting that the applicant company
had assessed the value of its property by the method of future rental income capitalisation, the
Court considered that acceptance of that method would be tantamount to ruling in favour of the
applicant company in its dispute with the authorities, as it would be acknowledging that it had the
right to build the shopping mall on the site in question and to receive income by letting out those
premises.
However, no domestic court had recognised such a right. Having noted in the present case
that the authorities had failed to comply with the procedure laid down in domestic law requiring
them to apply to a court in order to have the unlawful nature of a construction established, the
Court could not speculate as to the outcome of any hypothetical judicial examination. Having regard
to the national authorities’ argument that the erection of the disputed building on the land in
question would never have been authorised in view of the presence of a sewage network, it was not
within the Court’s remit to carry out such an analysis de facto and to rule in favour of a party by
making an award in respect of the alleged pecuniary damage. Moreover, the harm caused by the
deprivation of access to the courts, by the disruption thus caused to the applicant company’s
business and by the feelings of powerlessness and frustration of its managers would be covered by
the sum awarded for non-pecuniary damage, those grievances being independent of any pecuniary
damage.
