The malfunctioning of state institutions, which prevents the payment of lawful compensation of citizens, violates the right to peaceful enjoyment of their property
JUDGMENT
Arzhiyeva and Tsadayev v. Russia 13.11.2018 (no. 66590/10 and 3773/11)
SUMMARY
Compensation for property damage to the applicants caused by hostilities in Chechnya. Non-satisfaction of claims for compensation due to a lack of public authority. The Commission did not register the applicants on an official list for compensation. Infringement of the applicants’ right to the peaceful enjoyment of their property due to malfunctioning of the state machine.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicants, Patimat Arzhiyeva and Akhmed Tsadayev, are Russian nationals who were born in
1949 and 1984 and live in Strasbourg (France) and Grozny, Chechnya, (Russia) respectively.
The case concerned the applicants’ failed legal efforts to obtain compensation for property
destroyed during the hostilities in Chechnya.
The first applicant’s flat was damaged in 1994-1995 and then destroyed in 1999-2000. She lodged an
application for compensation in March 2005. The commission in charge of compensation informed
her in June 2010 that the process could not move forward as her building had not been registered in
a list of destroyed buildings. However, the technical unit responsible for drawing up that register had
been suspended in August 2005.
She challenged the commission’s decision, but the domestic courts rejected her case, finding that
the commission could not act because of the suspension of the unit’s work. She brought a claim
directly against the Government of Chechnya, which was ultimately rejected by the Supreme Court
of Chechnya in May 2013.
The building where the second applicant’s flat was located was destroyed in 1999-2000. His
application for compensation was also not examined by the commission because of the suspension
of the technical unit’s work. He went to court, but his complaint about the commission was
dismissed by the Supreme Court of Chechnya in August 2010.
The applicants both complained, in particular, of an interference with their right to the peaceful
enjoyment of their possessions under Article 1 of Protocol No. 1 (protection of property) to the
Convention.
THE DECISION OF THE COURT
The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision .“Possessions” can be “existing possessions” or claims that are sufficiently established to be regarded as “assets”. Where a proprietary interest is in the nature of a claim, it may be regarded as an “asset” only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it) and the claim is sufficiently established to be enforceable.
The Court has also accepted as “possessions” claims in respect of which an applicant can argue that he or she has at least a “legitimate expectation” that they will be realised, that is, that he or she will obtain effective enjoyment of a property right. However, a legitimate expectation has no independent existence; it must be attached to a proprietary interest for which there is a sufficient legal basis in national law.
Turning to the applicants’ complaints, the Court notes that both had lost their property during the counterterrorist operations in Chechnya. The case is different from those in which the applicants have claimed that the Government had been directly responsible for the damage caused to their property but were unable to submit sufficient evidence in that respect. It is also different from the situation of those who could directly point to the State authorities as the perpetrators of the acts and therefore claim compensation for the torts, unjustifiably denied by the domestic courts.
However, as noted above, the Commission was unable to proceed with their claims for a technical reason: the list of destroyed houses had not been updated since August 2005 owing to the disbanding of the authority responsible for the register. The Commission’s decision of September 2013, cited in the letter of January 2016, indicated that it had refused to consider the claims where the buildings had not been entered in the register in question.
In such circumstances, the Court finds that the applicants had at least a “legitimate expectation” that their claims would be determined in line with the Decree provisions, and this expectation was sufficiently established in the national law to give rise to the notion of “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.
The Court has explained in Malysh and Others, that the exact boundaries between the State’s positive and negative obligations under Article 1 of Protocol No. 1 are difficult to define. The applicable principles and criteria to justify interference or lack of positive action are, however, rather similar. In particular, in both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole.
The applicants in the present case were unable to have their claims examined owing to an administrative shortcoming. The management of the technical unit and the updating of the register fell exclusively under the authority of the State. The Court finds that the competent Commission’s inability to process the applicants’ claims since 2005 and its ultimate rejection of those claims without individual examination has effectively prevented the applicants from having their claims determined in line with the Decree’s provisions. This situation amounted to a restriction on the applicants’ property rights in the form of “legitimate expectation”.
On the question of the striking of a fair balance between the general interest and the applicants’ rights, the rule of law underlying the Convention and the principle of lawfulness in Article 1 of Protocol No. 1 to the Convention require States not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a corollary of this duty, to ensure the legal and practical conditions for their implementation.
Turning to the applicants’ claims, the Court remarks that the disbanding of the technical unit in August 2005 made it virtually impossible for the applicants to have their claims for compensation reviewed. The Court has already concluded that this amounted to a restriction on their “legitimate expectation” to have such claims examined. Admittedly, a number of steps have been taken over the years with the aim of finding a solution for pending compensation claims. These steps would presumably be of direct concern to those whose compensation claims had been “frozen” in the absence of a corresponding entry in the register. The documents submitted by the parties show that successive agencies were tasked with accelerating the payment of compensation. Since 2015 the Federal Ministry on matters concerning the Northern Caucasus has been in charge of this matter. In May 2013 the Chechnya Supreme Court referred to a new procedure for compensation being under way.
Nor can it be said that the applicants remained passive in view of the authorities’ inaction: they made requests to the competent authorities and lodged claims with the domestic courts. Those steps did not bring about any change in their circumstances and no progress has been achieved in reviewing their claims for compensations.
In the light of the above, the Court finds that the Russian Government have been unable to put forward satisfactory justification for their failure, since 2005, to meet the legitimate expectation that well-founded claims for compensation would be dealt with. They thus failed to implement a solution that would enable the Commission to process the claims and to award compensation to the applicants, taking into account their individual circumstances. This was incompatible with the obligation arising under Article 1 of Protocol No. 1 to secure the peaceful enjoyment of possessions, and notably with the duty to act in good time and in an appropriate and consistent manner where an issue of general interest is at stake.
There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
Just satisfaction: EUR 4,600 each to Patimat Arzhiyeva and Akhmed Tsadayev for pecuniary damage,
and EUR 5,000 each for non-pecuniary damage(echrcaselaw.com editing).
