Expropriation without compensation. The relocation offer does not replace the compensation. Violation of property right

JUDGMENT

Abiyev and Palko v. Russia 24.03.2020 (no. 77681/14)

see here

SUMMARY

Demolition by state authorities of the property of the applicants and expropriation of their land with the aim of rebuilding the city.

Failure to comply with the legal procedure for expropriation. Rejection of their claim for compensation by the courts and non-receipt of compensation.

According to the ECtHR, the “intervention” in non-compliance with the principles of the compulsory procedure of expropriation and non-payment of any compensation, allowed the authorities to take advantage of their illegal behavior. Strasbourg ruled that de facto expropriation was arbitrary and therefore “illegal.” Violation of property rights (Article 1 of the First Additional Protocol).

The ECtHR awarded 97,250 euros in compensation plus just satisfaction for non-pecuniary damage of 6,300 euros.

PROVISION

Article  of the First Additional Protocol

PRINCIPAL FACTS

The applicants, Mayrbek Kharonovich Abiyev and Nadezhda Nikolayevna Palko, are Russian nationals
who were born in 1959 and 1970 respectively. They live in Argun (Chechen Republic). Mr Abiyev died
in 2016, and Ms Palko wished to continue the proceedings before the Court on his behalf.

The case concerned the demolition of the applicants’ property and the taking of their land for the
purposes of the reconstruction of the town of Argun, as well as the dismissal by the courts of their
action for damages.

The complaints concerned in particular Article 1 of Protocol No. 1 (protection of property).

THE DECISION OF THE COURT…

Violation of Article 1 of the First Additional Protocol

The Court notes that as long as the applicants did not receive compensation for the expropriation of their property, they brought an action for damages against the Republic of Chechnya.

Their action was dismissed mainly for three reasons: (a) the Ministry of Finance and the town hall of ‘Argun’ had not proceeded with the demolition of the buildings and the ‘occupation of the land’ and were therefore found not to be passively legal; b) the applicants had not taken any action in connection with the infringement of the expropriation procedure; and (c) have not alleged or demonstrated ‘unlawful’ acts or omissions by the authorities within the meaning of Article 1069 of the Civil Code.

Concerning the first plea, the Court found that the applicants had never claimed that the intervention had taken place by the Ministry of Finance. Instead, they believed that the Republic of Chechnya was the defendant in the lawsuit, represented by the Ministry of Finance, in accordance with national law. However, the civil courts adopted a formalist approach that no one was responsible for depriving the applicants of property.

Regarding the second and third reasons, the Court found that the applicants’ arguments about the lack of respect for the principles of the procedure for “expropriation” were valid, contrary to the estimates of the judges of the Supreme National Court.

The process of “expropriation” involves various steps and safeguards against arbitrariness, such as the written notification of the decision to “expropriate”, the existence of a compensation agreement, and in the event of an owner disagreement the right of the competent public authority to bring an action for expropriation with the corresponding payment of compensation.

However, the compulsory procedure was ignored, without explanation and without compensation.

According to the ECtHR, the non-compliance with the mandatory procedure and the lack of any compensation established the illegality of the intervention within the meaning of Articles 16 and 1069 of the Civil Code. Noting that the applicants brought the matter before the national courts and considering that the action for damages was the appropriate way to claim and obtain damages, the Court rejected the Government’s “objection” of inadmissibility.

Lastly, the Court notes that the authorities nevertheless proposed to the applicants relocation , but these proposals were out of the legal context and appear rather to be ex gratia, and their rejection by the applicants cannot be regarded as equivalent to a waiver of their right to compensation.

In view of the foregoing, the Court has concluded that the “interference” with the principles of the compulsory expropriation procedure and the non-payment of any compensation has allowed the authorities to benefit from their unlawful conduct.

This de facto expropriation was arbitrary and therefore “illegal” within the meaning of Article 1 of the First Additional Protocol of the ECHR. There has accordingly been a breach of the applicants’ right to property (Article 1 of the First Additional Protocol to the ECHR).

Article 41

Just satisfaction: EUR 97,250 (pecuniary damage), EUR 6,500 (non-pecuniary damage), and EUR
1,440 (costs and expenses) to Mrs Palko

 


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