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FIRST
SECTION
CASE OF NOVIKOV v. RUSSIA
(Application
no. 35989/02)
JUDGMENT
STRASBOURG
18 June 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Novikov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 28 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35989/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Andrey Georgiyevich
Novikov (“the applicant”), on 2 July 2002.
- The
applicant, who had been granted legal aid, was represented by
Ms V. Bokareva and Mr M. Rachkovskiy, lawyers practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev, former Representative of the
Russian Federation at the European Court of Human Rights.
- On
7 March 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in the town of Blagoveshchensk,
Amur Region.
A. Seizure and storage of the fuel
- On
30 November 1998 the Amur regional police stopped a car. During an
inspection of the car, the police discovered a large quantity of
aviation fuel. As the driver was unable to produce a certificate for
the fuel he was transporting, the police (officer S) seized 22,622
litres of fuel. The police entrusted it for safe keeping to a
Belogorsk technical college and later to military unit no. 62266.
- As the fuel allegedly belonged to a private company
OPIUMIK (the “company”), officer S required the company
director, Mr P, to produce a document confirming that the fuel had
been acquired lawfully. Mr P submitted an invoice dated 1 August
1998. Criminal proceedings were, however, instituted against Mr P
on suspicion of forgery of this invoice. The Belogorsk town
prosecutor subsequently discontinued the proceedings on the ground
that only the forgery of official documents was punishable under the
Criminal Code. No decision was taken regarding the fate of the fuel.
- As can be seen from the domestic courts' findings (see
paragraph 15 below), in the meantime, officer S decided not to
institute any criminal proceedings in relation to the seized fuel.
However, on 2 February 1999 the Belogorsk deputy prosecutor set aside
this decision and ordered an additional inquiry. There is no
indication that this inquiry led to any prosecution or that any
decision was taken in relation to the seized fuel.
- The company thus attempted to regain possession of its
fuel. By a letter of 17 May 1999 the Belogorsk deputy prosecutor
informed the company that the fuel had not been attached to the
criminal case file against Mr P as evidence and thus no decision had
to be taken. He invited Mr P to collect the fuel through the
police department. On an unspecified date, however, the company
learnt from the Amur police department that the fuel had been stolen
when it had been stored in the military unit.
- Meanwhile,
the national authorities endeavoured to identify the officials
responsible for the loss of the fuel. Criminal proceedings were
instituted against officer S for abuse of power, as well as against
the commander of the military unit and officer St, who had allegedly
misappropriated the fuel in the military unit. On 18 December
1999 the Belogorsk town military prosecutor discontinued the
proceedings against officer St and the head of the military unit
because there was no indication of a criminal offence. On
8 April 2000 the proceedings against officer S were discontinued
because his participation in the disappearance of the fuel had not
been proven.
- It does not appear that any criminal or other
investigation continued thereafter in relation to the seized but
missing fuel. No further claim was lodged in respect of it by the
company or any other person or legal entity. Nor does it appear that
the company made any attempts to obtain compensation after 17 May
1999 (cf. paragraph 8 above). Instead, the company chose to assign
the related claims to the applicant (see below).
B. Assignment agreement
- On
26 October 2001 the company transferred title to the seized fuel to
the applicant. On 25 November 2001 the parties amended the assignment
agreement, indicating that the assignment included a claim in respect
of any damage or loss caused by the authorities on account of the
seizure of the fuel, as well as a claim for compensation in respect
of unjustified enrichment on the same account and a claim for return
of the fuel. The amended agreement also stated that the signing of
that agreement “annulled the company's debt of 50,000 Russian
roubles under a contract dated 20 October 2000”.
- The
company informed the regional police department of the transfer of
title. Since 27 October 2001 the applicant has unsuccessfully
requested the police department to return the fuel.
C. Proceedings in the commercial courts
- In
November 2001 the applicant sued the Amur Regional Treasury, claiming
compensation for the damage incurred as a result of the seizure and
loss of the fuel. The Commercial Court of the Amur Region designated
the Ministry of the Interior as the proper respondent, with the
applicant's consent. The court also gave the regional police
department, the military unit and the company leave to intervene as
third parties in the proceedings.
- By judgment of 14 March 2002 the Commercial Court of
the Amur Region dismissed the applicant's action. The court held as
follows:
“Under an assignment agreement of 26 October 2001
the OPIUMIK company transferred all its rights to the fuel to [the
applicant]...The assignment did not contravene Articles 158, 388 and
389 of the Civil Code... The fuel had been seized in relation to the
accusation of forgery against Mr P...
[T]he criminal prosecution against officer S was
discontinued ...The fuel was misappropriated by officer St, against
whom proceedings were discontinued on 18 December 1999...
[T]he responsibility of an officer of the Ministry of
the Interior for unlawful seizure of the company's fuel must be
established by a final judgment in a criminal case. The commercial
court, under Article 22 of the Code of Arbitration Procedure, does
not have the right to assess the lawfulness or unlawfulness of the
actions (failure to act) of the investigating authorities and the
prosecutor's office.
The plaintiff did not submit any evidence showing that
the seizure of the fuel by the officer of the Amur regional police
department had been declared unlawful by a court and that [the
officer] was responsible for the loss of the fuel.
The action must be dismissed because there was no fault
on the part of the person who allegedly caused the damage.”
- The applicant appealed contending that the absence of
a criminal conviction in respect of the officer had been irrelevant
and that the respondent and the military unit had entered into a
contract for storage of the fuel seized from the company. On 15 April
2002 the Appellate Division of the Commercial Court of the Amur
Region upheld the judgment of 14 March 2002. The court stated
inter alia as follows:
“Officer S acted lawfully when he inspected and
seized the fuel...Having verified whether the fuel had been lawfully
acquired, officer S decided not to bring criminal proceedings; on 2
February 1999 the Belogorsk deputy prosecutor set aside this decision
and ordered an additional inquiry...
Officer S's failure to observe the procedure for
inspection and transfer of the fuel for safe-keeping purposes has no
direct causal link with the loss of the fuel...”
Lastly,
the appeal court made the following observations in relation to the
military unit:
“Military unit no. 62266 received the seized
fuel for storage ... in accordance with Article 84 § 2 of the
RSFSR Code of Criminal Procedure. Under Article 906 of the Civil Code
of the Russian Federation the military unit became civilly liable
vis-à-vis the plaintiff for the safe keeping of the
fuel. Under Article 902 § 1 of the Civil Code of the Russian
Federation, in the event of the loss of the fuel [the military unit]
had to compensate the plaintiff for the resulting damage, unless
otherwise provided by the law.”
The
appeal judgment became final on the same date.
- On 11 June 2002 the Commercial Court of the Far
Eastern Circuit, sitting as a cassation-instance court, upheld the
judgments of 14 March and 15 April 2002. The court noted that the
seizure of the fuel had been due to the absence, at the time, of any
document confirming the company's title to it. The court held that
the plaintiff had not proved that the investigator had been
responsible for the damage caused.
D. Proceedings in the courts of general jurisdiction
(the civil courts)
- In
the meantime, on 29 April 2002 the applicant brought proceedings in
the Blagoveshchensk Town Court of the Amur Region against, inter
alia, the military unit. He claimed that the authorities' failure
to return the fuel or to pay compensation be declared unlawful.
- By a judgment of 12 November 2003 the Town Court
rejected the applicant's claim. The court held that the fuel seizure
had been carried out by officer S before any criminal proceedings had
been initiated because of the need to conduct urgent investigative
measures, namely a crime-scene inspection, in compliance with the
RSFSR Code of Criminal Procedure (see paragraph 26 below). The Town
Court also held as follows:
“As established in the judgment of the commercial
court, during the seizure of the fuel the OPIUMIK company had not
supplied any document to confirm the lawfulness of its acquisition.
Later Mr P submitted a forged invoice, which gave rise to criminal
proceedings against him. An agreement dated 2 November 1998
between the OPIUMIK company and a Mr G for the purchase of 22,622
litres of fuel was produced before this court. It cannot be accepted
as a proof of the lawfulness of the fuel acquisition because the
content of that agreement does not correspond to the materials in the
criminal case which had been discontinued. Nor does it correspond to
Mr P's deposition in the criminal proceedings, to the invoice or
the expert report no. 141-k of 17 February 1999 which stated
that the handwritten inscriptions in invoice no. 983 of 1 August
1998 had been done by Mr P. The Court rejects as unfounded Mr P's
allegation that the documents in the criminal file and his deposition
had been obtained under duress. Besides, the Court considers that
Mr P's and [the applicant's] arguments are intended to challenge
the circumstances already determined by the final judgment of the
commercial court, in particular as regards the lawfulness of the fuel
acquisition by the company...The Court concludes that no evidence has
been adduced to confirm [it]. The Court does not accept [the
applicant's] argument that the commercial court had confirmed the
lawfulness of the fuel acquisition; such matter had not been
contested before the commercial court...
The grounds for compensation in respect of damage caused
by the investigating authorities, including a claim for restitution
of the fuel, are regulated by Articles 1069 and 1070 of the Civil
Code. Those grounds were also examined by the commercial courts and
cannot be subject to a re-examination in the present case. No legal
relationship (обязательственные
отношения)
was established between [the applicant] on the one hand and the
military unit, the Ministry of Defence or the Ministry of the
Interior on the other. Hence, his claims ... should be rejected.”
Lastly,
the court found that the applicant had missed the statutory
time-limit under Article 256 of the Code of Civil Procedure for
bringing the matter before the courts of general jurisdiction.
- On
9 January 2004 the Amur Regional Court upheld the judgment. The court
considered that the commercial court's judgment of 14 March 2002 had
dismissed the applicant's claims, inter alia, due to his
failure to produce evidence confirming the lawfulness of the fuel
acquisition. Neither was the civil court provided with any proof that
the company had had title to the fuel.
E. Other unrelated proceedings
- A commercial court issued a private company with an
enforcement order for a sum of money against a State-owned
enterprise. The company did not submit the writ within the statutory
time-limit and bailiffs refused to enforce the judgment. The company
assigned the claim to the applicant, who then requested the
commercial court to designate him as creditor in respect of the above
judicial award and to restore the time-limit for lodging the
enforcement order. In 2002 the commercial court rejected both
requests. The applicant did not appeal.
- The applicant also requested a court of general
jurisdiction to designate him as creditor in respect of the assigned
award and to award him compensation for the damage sustained. On 26
February 2003 the Primorye Regional Court, at final instance,
disallowed the first claim because it had already been determined on
24 October 2002 by the final decision of the commercial court.
On 12 March 2003 the Regional Court, at final instance,
dismissed the claim for damages on the ground that the applicant's
title had never been confirmed by a court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Civil Code
- The Civil Code of the Russian Federation, in
force from 1 January 1995, provided as follows:
Article 1069 Responsibility for damage caused by
State agencies, agencies of local self-government and their officials
“Damage caused to an individual or a legal
entity as a result of the unlawful actions (failure to act) of State
agencies, agencies of local self-government or officials of these
agencies, including as a result of the issuance of an act of a State
agency or agency of local self-government which is contrary to a law
or any other legal act, shall be subject to compensation. The damage
shall be compensated for at the expense, respectively, of the
Treasury of the Russian Federation, the treasury of the region of the
Russian Federation, or the treasury of the municipal authority.”
Article 1070 Responsibility for damage caused by the
unlawful actions of agencies of inquiry and preliminary
investigation, prosecutor's offices and the courts
“1. Damage caused to an individual as a
result of his or her wrongful conviction or unlawful criminal
prosecution, or the unlawful application, as a preventive measure, of
remand in custody or of a written undertaking not to leave a
specified place, or the unlawful imposition of an administrative
penalty in the form of arrest or corrective labour, shall be
compensated for in full at the expense of the Treasury of the Russian
Federation and in certain cases, stipulated by law, at the expense of
the treasury of the subject of the Russian Federation or of the
municipal authority, irrespective of any fault by the officials of
the agencies of inquiry or preliminary investigation, prosecutor's
offices or courts, in accordance with the procedure established by
law.
2. Damage caused to an individual or a legal
entity as a result of the unlawful activity of agencies of inquiry or
preliminary investigation or prosecutor's offices, which has not
entailed the consequences specified in paragraph 1 of this Article,
shall be compensated for on the grounds and according to the
procedure provided for by Article 1069 of this Code...”
- Article 385 of the Code required the person or entity
making an assignment to supply the new creditor with the documents
certifying the assignor's claims. On 30 October 2007 the Supreme
Commercial Court of Russia issued an information note summarising the
existing case-law on various aspects of the interpretation and
application of the provisions of the Civil Code on the assignment of
claims and liabilities. In particular, it noted that the invalidity
or invalidation of the claim assigned did not imply the invalidity of
the assignment agreement. At the same time, it noted that the former
gave the assignee the right to sue the assignor under Article 390 of
the Civil Code. Nor did the Civil Code prevent the assignment of a
future claim or one that was still non-existent when an assignment
agreement was signed. The Supreme Court also noted that the
assignor's failure to provide the assignee with documents certifying
the former's entitlement or claim did not mean that the entitlement
or claim had not been conferred on the assignee.
- Under the Civil Code, an obligation to keep or store
items arises under a contract (Article 886) or if provided for by law
(Article 906).
B. RSFSR Code of Criminal Procedure
- The RSFSR Code of Criminal Procedure of 1961, in force
at the material time, provided as follows:
Article 84 Safe keeping of material exhibits
“... Material exhibits must be stored in a
criminal case. If items of evidence, owing to their size or for any
other reason, cannot be stored in the criminal case file, their
picture must be taken; if possible, [they] must be sealed and stored
in a place specified by the investigator, prosecutor, court...”
Article 85 Period for storing material exhibits
“Material exhibits shall be stored until the trial
judgment becomes final or until expiry of the time-limit for lodging
an appeal against a decision by which proceedings are discontinued...
Material exhibits which can be damaged easily and whose
return to their owner is impossible should be given to appropriate
entities for use in accordance with [the exhibits'] purpose. If
necessary, items of the same type and quality shall be returned to
the owner as compensation, or the owner shall be paid a sum
equivalent to their value.”
- Article 178 of the Code provides that an investigator
may inspect the crime scene or other locations, premises or items for
the purpose of detecting physical evidence of the crime or clarifying
the circumstances. In urgent situations, the inspection may be
carried out before criminal proceedings are instituted. In such
situations, the proceedings should be instituted immediately after
the inspection.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- Referring
to Articles 6 and 17 of the Convention and Article 1 of Protocol
No. 1, the applicant complained about the seizure of the fuel by
the authorities, their failure to return it and the courts' refusal
to award him compensation. The Court will examine this complaint
under Article 1 of Protocol No. 1, which reads as follows:
“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.”
A. Admissibility
1. Exhaustion of domestic remedies
- The
Government claimed that the applicant should have lodged a claim
against the military unit in the commercial courts.
- The
applicant admitted that his 2002 claim before the commercial court
had been directed against the Treasury and the regional police
department as a third party to the proceedings. The court had decided
to examine the applicant's claim as being directed against the
Ministry of the Interior, and had reclassified the police department,
the Treasury and the military unit as third parties (see paragraph 14
above). The merits of the applicant's claim had been examined by the
commercial courts. Thus, he should be considered as having exhausted
the domestic remedies.
- The
Court observes that in 2003 the applicant sued the Russian
authorities, including the military unit, before the courts of
general jurisdiction (civil courts). Both the Town and Regional
Courts took cognisance of the merits of the applicant's claims and
rejected them as unfounded. Their reasoning was not confined to the
compatibility of the applicant's complaint with the formal
requirements (see paragraph 18 above). The Court finds that
since the domestic courts examined the substance of the applicant's
complaint he cannot be said to have failed to exhaust domestic
remedies on account of his failure to raise the same claims against
the military unit before the commercial courts (see Dzhavadov v.
Russia, no. 30160/04, § 27, 27 September 2007, with
further references). Nothing in the Government's submissions suggests
that the same claim in the commercial courts would have a better
prospect of success. It follows that the complaint cannot be declared
inadmissible for non-exhaustion of domestic remedies.
2. The applicant's status as a “victim” of
the alleged violation and the existence of interference and of
“possessions” within the meaning of Article 1 of Protocol
No. 1
- The
Government also contended that the applicant had not been a victim of
the alleged violation on account of the findings made in the
judgments of 12 November 2003 and 9 January 2004 (see paragraph 18
above). In substance, they claimed in this connection that the
applicant had not acquired any title to the fuel and thus could have
no valid claim against the authorities.
- The
applicant submitted that the company's or the applicant's title to
the fuel had not been contested in the commercial court proceedings.
The civil court judgment of 12 November 2003 should not have
challenged the relevant findings made by the commercial court. The
civil court indicated that the applicant had adduced evidence
confirming the ownership title to the fuel; however, that evidence
had been rejected as contradicting the findings of the criminal
investigation.
- The
Court reiterates that the term “victim” in Article 34 of
the Convention denotes the person directly affected by the act or
omission which is at issue (see, among other authorities, Mişcarea
Producătorilor Agricoli pentru Drepturile Omului v. Romania,
no. 34461/02, § 34, 22 July 2008). It also reiterates that
Article 1 of Protocol No. 1 applies only to a person's existing
possessions and does not guarantee the right to acquire possessions
(see Marckx v. Belgium, 13 June 1979, § 50, Series A
no. 31). Consequently, a person who complains of a violation of his
or her right under Article 1 of the Protocol must first show that
such a right existed; a “claim” can only fall within the
scope of that Article if it is sufficiently established to be
enforceable (see OAO
Plodovaya Kompaniya v. Russia, no. 1641/02, § 27,
7 June 2007; Zhigalev v. Russia, no. 54891/00, §
146, 6 July 2006; Uskova v. Russia (dec.), no. 20116/02,
24 October 2006; and Grishchenko v. Russia (dec.),
no. 75907/01, 8 July 2004). The assignment of a debt is capable
in principle of amounting to such a “possession” (see
Nosov v. Russia (dec.), no. 30877/02, 20 October 2005;
Gerasimova v. Russia, no. 24669/02, §§ 18-22,
13 October 2005; and Regent Company v. Ukraine, no.
773/03, § 61, 3 April 2008; see also OOO Rusatommet v.
Russia (dec.), no. 12064/04, 27 November 2008). Thus,
the Court has to ascertain whether the assignment in the present case
resulted in the acquisition by the applicant of a “possession”
or a “claim” within the meaning of Article 1 of the
Protocol.
- The
Court observes at the outset that the 2002 commercial court judgments
acknowledged that the assignment agreement was compliant with the
requirements of the Civil Code. They contain no further argument or
analysis on the issue of ownership of the fuel. The Court considers
that had the matter been raised in the commercial court proceedings,
the commercial courts would have certainly addressed this specific
argument in their judgments. Since no party to the proceedings
apparently contested it, the courts at three levels of jurisdiction
proceeded on the assumption that the company had been the lawful
owner of the fuel when they established and subsequently confirmed
the relevant factual findings.
- The
Court further observes that in 2003 the court of general jurisdiction
rejected the applicant's claims, concluding that he had not proved
that the company had had any title to the fuel before signing the
assignment agreement in respect of it. The first-instance court held
that the fuel purchase contract concluded in 1998 between the company
and Mr G could not confirm that the company had acquired the fuel
lawfully because the contract “did not correspond to the
materials in the criminal case which had been discontinued” or
to other materials, including the company director's deposition made
in the criminal proceedings. The Town Court refused to accept Mr P's
and the applicant's arguments concerning the lawfulness of the fuel
purchase, expressly stating that to do so would challenge the factual
findings previously made in that respect by the commercial courts.
However, in the same judgment, the civil court indicated that the
company's title had not been contested before the commercial court.
As the Court has already noted above, the commercial court decisions
indeed contained no findings as to the title to the fuel in question.
- Furthermore,
the Court notes that there was no other judicial decision refuting
the company's title to the fuel. No court invalidated the purchase or
assignment agreements in the present case. Neither does it appear
that Russian law prevented the assignment of claims arising under
tort law, including those engaging State liability. Although the
Court notes that the 1998 purchase contract was adduced apparently
for the first time only in the 2003 proceedings, it cannot but note
as well that the civil court furnished no explanation as to why this
contract contradicted the conclusions made during the criminal
investigation, which resulted in the discontinuation of the criminal
proceedings for forgery against the company director. There is no
indication that the criminal inquiry resulted in any finding that the
title to the fuel had been conferred on an entity other than the
company in question.
- Lastly,
it is noted that Article 385 of the Civil Code required the person or
entity making an assignment to supply the new creditor with the
documents certifying the assignor's claims (see paragraph 23 above).
The applicant was provided with a copy of the purchase contract dated
2 November 1998. It is also noted that under the assignment
agreement dated 26 October 2001, as amended on 25 November 2001,
the company transferred title to the seized fuel to the applicant,
including a claim in respect of any damage or loss caused by the
authorities on account of the seizure of the fuel, as well as a claim
for compensation in respect of unjustified enrichment on the same
account and a claim for restitution of the fuel. In the Court's
opinion, the applicant could not have been required in the
circumstances of the case to furnish any further documents certifying
the validity of the claim assigned to him.
- Being
sensitive to the subsidiary nature of its role, the Court
nevertheless is not bound by the findings of domestic courts and may
depart from them where this is rendered unavoidable by the
circumstances of a particular case (see, for instance, Matyar v.
Turkey, no. 23423/94, § 108, 21 February 2002, and
Khamidov v. Russia, no. 72118/01, § 135 et seq., ECHR
2007 ... (extracts)). In the circumstances of the case, the
Court is satisfied that the applicant could be considered as having
an enforceable claim against the authorities on the basis of the
assignment agreement.
- Thus,
Article 1 of Protocol No. 1 is applicable in the present case
and the applicant may in this respect claim to be a victim within the
meaning of Article 34 of the Convention.
3. Conclusion
- The
Court concludes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
applicant argued that the seizure of the fuel had been unlawful
because there had been no decision issued by an investigator or
prosecutor under Article 84 of the RSFSR Code of Criminal Procedure
(CCrP) (see paragraph 25 above). Furthermore, the decision to
discontinue the proceedings against Mr P had not included a ruling on
what was to happen to the fuel, in breach of Article 85 of the CCrP.
Article 84 of the CCrP governed relations between the authorities,
the safe keeper of movable property and its owner, where the property
in question was attached as physical evidence in criminal
proceedings. The fuel in question had not constituted such evidence.
The retention of the fuel thereafter amounted to a deprivation of
property. Nor had the seizure of the fuel or its retention pursued
any legitimate aim.
- The
Government submitted that the fuel had been seized for inspection
under Article 178 of the CCrP (see paragraph 26 above). The above
measure amounted to lawful control of use rather than a deprivation
of property. The Government contended that the commercial court had
rejected the applicant's claim for lack of jurisdiction because
claims against officers of the Ministry of the Interior, including
claims arising out of the alleged unlawful seizure of property in the
framework of criminal proceedings, were to be examined by the courts
of general jurisdiction. The commercial court had indicated that the
applicant should have directed his claims against the military unit
rather than the Ministry of the Interior. The storage contract was
regulated by Article 84 of the CCrP and Article 906 of the Civil Code
(see paragraphs 24 and 25 above). It was incumbent on the military
unit under Article 902 of the Civil Code to pay damages for any loss
caused to the applicant's property.
2. The Court's assessment
- Having
established that the applicant had “possessions” under
Article 1 of Protocol No. 1, the Court has to determine whether
the interference complained of was in compliance with the
requirements of that provision.
- The
Court does not have to determine whether the circumstances of the
case should be classified as a deprivation of possessions or control
of use. Neither does it have to take a stance as to whether the
inspection and seizure of the fuel was in compliance with Russian
law. Even assuming that the above acts were lawful and pursued a
legitimate aim, the Court considers that the authorities' failure to
return the fuel or pay compensation is disproportionate.
- The
Court reiterates that there must be a reasonable relation of
proportionality between the means employed and the aim sought to be
realised by any measures applied by the State. That requirement is
expressed by the notion of a “fair balance” that must be
struck between the demands of the general interest of the community
and the requirements of the protection of the individual's
fundamental rights (see Edwards v. Malta, no. 17647/04,
§ 69, 24 October 2006, with further references).
- The Court has previously held that it does not follow
from Article 1 of Protocol No. 1 that an applicant's acquittal
of the criminal charges must of itself give rise to an entitlement to
compensation for any loss alleged to have been suffered as a result
of the impounding of his chattels during the period of the
investigation (see Adamczyk v. Poland (dec.), no. 28551/04,
7 November 2006, and Andrews v. the United Kingdom
(dec.), no. 49584/99, 26 September 2002; see also, mutatis
mutandis, Simonjan-Heikinheino v. Finland (dec.),
no. 6321/03, 2 September 2008). However, in Karamitrov
and Others v. Bulgaria (no. 53321/99, § 77, 10 January 2008)
the Court considered with reference to Article 13 of the Convention
that “when the authorities seize and hold chattels as physical
evidence the possibility should exist in domestic legislation to
initiate proceedings against the State and to seek compensation for
any damage resulting from the authorities' failure to keep safe the
said chattels in reasonably good condition” (compare Islamic
Republic of Iran Shipping Lines v. Turkey, no. 40998/98,
§§ 87, 96-103, ECHR 2007 ...; Immobiliare
Saffi v. Italy [GC], no. 22774/93, §§ 46 and
57, ECHR 1999 V; Urbárska Obec Trenčianske
Biskupice v. Slovakia, no. 74258/01, § 126, ECHR
2007 ... (extracts), and Housing Association of War Disabled
and Victims of War of Attica and Others v. Greece, no. 35859/02,
§ 39, 13 July 2006).
- It
is uncontested that the fuel was not attached as evidence to the
criminal case against Mr P or any other criminal proceedings, for
instance on account of its misappropriation or theft (see paragraphs
6 - 10 and 26 above). The Court observes and it is not in dispute
between the parties that the fuel had either been consumed or been
lost through the fault of a public authority, a fact also
acknowledged by the national courts. Despite the above findings, the
Russian courts refused to award any compensation to the applicant.
- Although
it is within the province of the national courts to interpret and
apply national law, the Court cannot but note the contradictory
findings made by the commercial and civil courts in relation to the
applicant's claim under the general provisions of the Civil Code
concerning tort liability and its specific provisions concerning
State liability (see paragraph 22 above).
- The
commercial court examined and rejected the claim for lack of evidence
that the seizure of the fuel “had been declared unlawful”
and that officer S was responsible for its loss. The appeal court
upheld the first-instance judgment and held that the breaches of the
law committed by officer S during the inspection and seizure of the
fuel had had no direct causal link to the loss of the fuel or to any
damage caused to the applicant. It found that the applicant had
adduced no evidence that any unlawful actions on the part of the
respondent, the Ministry of the Interior, had caused him damage.
Lastly, the appeal court held that the applicant and the military
unit had entered into a legal relationship under Article 906 of the
Civil Code for storage of the fuel (see paragraph 15 above). Thus, it
concluded that any damage caused to the fuel during the storage
period should have been imputable to the keeper. Subsequently, the
cassation-instance court upheld the judgments given by the courts
below. In that connection, the Court cannot but note that it was the
commercial court's own decision to designate, though with the
applicant's consent, the Ministry of the Interior as a proper
respondent in relation to the applicant's claims.
- Following
the commercial court's instructions, the applicant sued the military
unit in a civil court. However, unlike the commercial courts, the
Town Court concluded in its judgment of 12 November 2003 that there
had been no legal relationship between the applicant and the
authorities, including the military unit (see paragraph 18 above).
- It
follows from the above that although the applicant had an opportunity
to bring proceedings against the State, the national courts made
contradictory findings in relation to the factual and legal grounds
for the applicant's claim for compensation while acknowledging the
fact that the impossibility to return the fuel was imputable to a
public authority. In the light of the above considerations, the
Court considers that the Russian courts' refusals to award the
applicant compensation for the loss sustained as a result of the
authorities' failure to safe-keep his property amounted in the
circumstances of the case to a disproportionate interference with his
“possessions” under Article 1 of Protocol No. 1.
- There
has therefore been a violation of that provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained in substance under Article 6 of the
Convention that in the 2002 commercial court proceedings he had been
ordered to prove the fault of the State officials for the damage
sustained and that the domestic courts had designated the Ministry of
the Interior as the respondent and then dismissed his action because
it should have been lodged against a different authority.
- Lastly,
referring to unrelated proceedings (see paragraphs 20 and 21 above)
the applicant complained that the authorities had failed to enforce a
judicial award and that he had been denied access to a court.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do 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 is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 452,440 Russian roubles (RUB) for the value of the
fuel seized by the authorities and RUB 109,490 in inflation losses
for the period from 1998 to 2006. He also claimed RUB 1,809,790
in respect of non-pecuniary damage.
- The
Government considered that no just satisfaction should be awarded to
the applicant. They submitted that his pecuniary claim for the value
of the fuel should be rejected in view of the findings made by the
civil courts. The non-pecuniary award should not in any event exceed
the award made by the Court in Baklanov v. Russia, no.
68443/01, § 51, 9 June 2005.
- First,
the Court reiterates its above finding that since October 2001 the
applicant had a valid claim in respect of the fuel, which had been
seized by the national authorities in 1998, and that their failure to
return it or pay compensation amounted to a disproportionate
interference in breach of Article 1 of Protocol No. 1. Having
regard to the information provided by the applicant and uncontested
by the Government, the Court awards the applicant 13,300 euros (EUR)
in respect of pecuniary damage on account of the value of the fuel,
plus any tax that may be chargeable on that amount. At the same time,
the Court rejects as unfounded the applicant's claim for inflation
losses.
- Lastly,
the Court considers that the finding of a violation constitutes just
satisfaction in so far as the applicant's non-pecuniary claim is
concerned.
B. Costs and expenses
- The
applicant claimed EUR 2,640 for the legal services of his two
representatives before the Court.
- The
Government considered that the applicant had made no claims under
this head.
- The
Court observes that each representative claimed EUR 1,320 for
twenty-six hours' work. It is noted that an amount of EUR 850
was already paid to the lawyers by way of legal aid under Rule 91 §
1 of the Rules of Court. The applicant did not submit a copy of any
agreement showing that he had already incurred the above expenses or
was under a legally enforceable obligation to pay any fee to his
lawyers (see Salmanov v. Russia, no. 3522/04, § 98, 31
July 2008). The Court therefore rejects the applicant's claim under
this head.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the
authorities' failure to return the fuel or to pay compensation
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 13,300
(thirteen thousand three hundred euros) in respect of pecuniary
damage, plus any tax that may be chargeable, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
