Selikhat SHEMILOVA and Magomed Ayubovich SHEMILOV v Russia - 42439/02 [2008] ECHR 1840 (11 December 2008)

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Application no. 42439/02
by Selikhat SHEMILOVA and Magomed Ayubovich SHEMILOV
against Russia

The European Court of Human Rights (First Section), sitting on 11 December 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

The applicants, Ms Selikhat Shemilova and Mr Magomed Ayubovich Shemilov, are Russian nationals who were born in 1912 and 1966 respectively and live in Grozny, the Chechen Republic. They were represented before the Court by Mr R. Malsagov, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants are mother and son. At the material time they lived in a privately owned house at 167 Ulyanova Street, the Oktyabrskiy District of Grozny.

According to the applicants, on 29 March 2000 a group of federal servicemen in two armoured personnel carriers with obscured hull numbers approached the applicants' house. The servicemen were masked and had the Russian Armed Forces emblem on their sleeves. One of them pointed his machine-gun at the second applicant, who was standing near the gate, and ordered him not to move. The soldiers then entered the courtyard of the applicant's house and one of them asked the first applicant whether she was of Chechen origin. When the first applicant said that she was, the servicemen further asked her whether Chechen rebel fighters (boyeviki) were living in the house. The first applicant replied that no fighters had ever lived in her house, that she lived there with her son, and that they had never been involved in military activities.

The servicemen then broke the door down and entered and searched the house. They remarked, turning to the first applicant, that her living conditions were quite good and that apparently it was the house of some Chechen field commander. The soldier then sprayed the walls inside the house with petrol and set it on fire. The house and the applicants' possessions inside it were completely burnt down.

On an unspecified date the applicants complained to the Oktyabrskiy District Office of the Interior of Grozny (“Oktyabrskiy VOVD”) that the federal servicemen had burnt their house down.

On 5 April 2000 the Oktyabrskiy VOVD decided to dispense with criminal proceedings on the grounds that it was impossible to establish to which military unit the servicemen involved in the arson attack belonged.

According to the Government, on 24 January 2006 the decision of 5 April 2000 was set aside and criminal proceedings were instituted under Article 167 § 2 of the Russian Criminal Code (aggravated deliberate destruction of, or infliction of damage on, property) in connection with the incident of 29 March 2000. The investigation is being supervised by the Prosecutor General's Office.

On 19 September 2000 the local authorities drew up an evaluation report (дефектный акт), which listed the items of the applicants' property that had been destroyed on 29 March 2000.

On an unspecified date the applicants obtained an estimate of costs for repair works to be carried out on their house.

On 11 October 2001 the applicants brought proceedings in the Oktyabrskiy District Court of Grozny (“District Court”), seeking damages in connection with the deliberate destruction of their property by the federal servicemen.

On 6 November 2001 the District Court held that the applicants' claims “could not be allowed in court proceedings” on the ground that the alleged damage should be compensated in accordance with the temporary regulations concerning compensation and other social benefits for Russian citizens who had suffered damage as a result of the military conflict in the Chechen Republic, and therefore the applicants should apply to a local migration service for compensation.

On 5 March 2002 the Supreme Court of the Chechen Republic upheld the above judgment on appeal, having repeated the reasoning of the first-instance court.

The applicants did not apply for compensation in accordance with the ruling of the domestic courts.

The temporary regulations concerning compensation and other social benefits for Russian citizens who had incurred losses as a result of the military conflict in the Chechen Republic (Временное положение о компенсационных выплатах и других социальных гарантиях гражданам Российской Федерации, пострадавшим в результате вооруженного конфликта в Чеченской Республике – “the Regulations”) were approved by the first deputy prime minister of Russia on 20 May 1995. In their relevant parts they provided as follows:

“1. Categories of citizens eligible for compensation payments and other social benefits:

1.1 Individuals who have suffered pecuniary damage as a result of the armed conflict and who have stayed in or returned to reside in the Chechen Republic shall be entitled to:

priority allocation of housing of the standard provided for in national law or an award of monetary funds for obtaining, or constructing (restoring or repairing ...) housing, or receiving building materials for repairing (restoring) housing single-handedly;

2.1 The amount of compensatory payments shall be determined by a special commission established by [the Chechen Government] which shall take into account the extent of the damage suffered and the number of family members.

The extent of the damage shall be determined by the executive bodies of the Chechen Republic.

Individuals who have been left homeless, have lost their belongings or have lost a breadwinner belong to the category of those who have suffered particularly grave damage as a result of the armed conflict.

Compensation payments in respect of damage inflicted on a person's home shall be fixed in accordance with the present Temporary Regulations in the following amounts:

for the individuals specified in paragraph 1.1 – [the amount necessary] for the construction or restoration of a total surface of twelve square metres living space per person on the basis of the average cost in Russia as estimated by the Russian Ministry of Construction;

For the individuals specified in paragraph 1.1 – a lump-sum allowance shall be paid in the amount of 100,000 [Russian] roubles (“RUB”) per family member;

compensation payments for lost belongings and cattle shall be fixed at RUB 8,000,000 for a family of five members, and RUB 500,000 per each further member, but no more than RUB 10,000,000. Compensation for a family of fewer than five members shall be paid in the amount of RUB 1,500,000 per family member.

2.2. The maximum amount of compensation for damage may be paid to individuals [belonging to the category of those] who have suffered particularly grave damage and are single retired pensioners, single disabled persons, single mothers or fathers with one or more children below the age of three, families with many children below the age of eighteen, families with disabled children...

2.3 In exceptional cases the local executive bodies of the Chechen Republic, after having consulted [the Chechen Government], have the right to decide and award the maximum amount of compensatory payments to individuals not belonging to the category of those who have suffered particularly grave damage, but who are in extreme need of assistance. Such decisions must state reasons.

3.1 Compensation shall be paid by the local executive bodies of the Chechen Republic to citizens who have stayed in or returned to the Chechen Republic from federal budgetary funds allocated to the programme of restoration of the economic and social sphere of the Chechen Republic.

3.2 Compensation shall be paid on the basis of [eligible] citizens' written applications ... to the territorial bodies of the Federal Migration Service of Russia in the vicinity where they are registered as persons having suffered damage as a result of the armed conflict...”

The applicants complained that the deliberate destruction of their house and other property by federal servicemen had infringed their right to peaceful enjoyment of their possessions guaranteed by Article 1 of Protocol No. 1 to the Convention and their freedom to choose their residence enshrined in Article 2 of Protocol No. 4 to the Convention. They also complained about the domestic courts' refusal to award them compensation for the damage sustained.

“1. In the determination of his civil rights and obligations ...., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....”

“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.”

The Government argued that the applicants had failed to exhaust domestic remedies in respect of their aforementioned complaints, as they had not applied for compensation for the damage sustained by them as provided in the Regulations of 20 May 1995. The Government insisted that the domestic courts had rightly declined to examine the applicants' claim, as they should first have made use of the remedy established in the Regulations, and then, if unsuccessful, have appealed to a court.

The Government also contended that if the applicants had used the procedure established in the Regulations, they could subsequently have had their claim for compensation examined by a court. In support of their argument, the Government referred to decision no. 499-O of the Russian Constitutional Court dated 20 December 1995. This stated that “special legal instruments establishing a number of simplified procedures ... for receiving certain compensation should not limit, or leave out, civil-law provisions concerning property rights, compensation for damage and other issues” and that “these questions should be resolved by courts of general jurisdiction upon written complaints of individuals seeking restoration of their rights on the basis of the facts as established in each particular case”.

The applicants disagreed and maintained their complaints. They argued that the remedy invoked by the Government was clearly inadequate, as the maximum amount of compensatory payments established by the Regulations was much lower than the amount of pecuniary losses incurred by them, and that therefore they had been under no obligation to use that remedy. They also insisted that the domestic courts' ruling that they should apply for compensation to a local migration office had not been justified, as this had not been a prerequisite for applying to a court.

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the present case that it is inappropriate to determine it at the present stage of the proceedings. It therefore decides to join this objection to the merits. The Court further considers, in the light of the parties' submissions, that the aforementioned complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, it concludes that these complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to ...freedom to choose his residence.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Court, having regard to all the materials in its possession, finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

Decides to join to the merits the Government's objection concerning the exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the applicants' complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Selikhat SHEMILOVA and Magomed Ayubovich SHEMILOV v Russia - 42439/02 [2008] ECHR 1840 (11 December 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1840.html Cite as: [2008] ECHR 1840