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FORMER
FIRST SECTION
CASE OF DENISOVA AND MOISEYEVA v. RUSSIA
(Application
no. 16903/03)
JUDGMENT
(Just
satisfaction)
STRASBOURG
14 June
2011
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 Denisova and Moiseyeva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and
Søren Nielsen,
Section Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16903/03) 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 two Russian nationals, Ms Nataliya Mikhaylovna
Denisova and Ms Nadezhda Valentinovna Moiseyeva (“the
applicants”), on 8 July 2002. The application concerned
the property rights of the wife (the first applicant) and daughter
(the second applicant) of Mr Moiseyev who had been convicted of high
treason and sentenced to a term of imprisonment and confiscation of
his entire property, as an auxiliary form of punishment (see Moiseyev
v. Russia, no. 62936/00, 9 October 2008). In
subsequent civil proceedings the applicants attempted to vindicate
their right to the spousal part of the property that had been removed
from their home and to the personal computer that had been taken from
the second applicant’s room. The Russian courts had rejected
their claims by reference to the judgment that had been made in the
criminal proceedings against Mr Moiseyev.
- In
a judgment delivered on 1 April 2010 (“the principal
judgment”), the Court held that there had been a violation of
Article 1 of Protocol No. 1 (protection of property) of the
European Convention on Human Rights because the applicants had not
had an opportunity to challenge effectively the confiscation measure
imposed in the criminal proceedings to which they had not been
parties (Denisova and Moiseyeva v. Russia, no. 16903/03,
1 April 2010).
- Under
Article 41 of the Convention the applicants sought just satisfaction
in respect of pecuniary and non-pecuniary damage, as well as costs
and expenses.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicants to submit, within three months from the
date on which the judgment would become final in accordance with
Article 44 § 2 of the Convention, their written
observations on that issue and, in particular, to notify the Court of
any agreement they might reach (ibid., § 75, and point 3 of
the operative provisions).
- The
applicants maintained their claims. The Government submitted their
observations.
THE LAW
- 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
1. The applicants’ claims
- The
first applicant claimed the following amounts in respect of pecuniary
damage:
a) 6,657.50
euros (EUR) for the loss of rental income from the car garage and the
land tax she was liable to pay on it;
b) EUR
2,712.60 for one half of the depreciation cost of the VAZ car and the
transport tax she was liable to pay on it; and
c) EUR
3,537.80 for one half of the cash funds plus interest at the
statutory lending rate.
- The
second applicant claimed EUR 800, representing the approximate
value of a computer similar to hers.
- The
applicants also claimed EUR 30,000 and EUR 20,000
respectively in respect of non-pecuniary damage.
2. The Government’s comments
- The
Government maintained at the outset that it had been conclusively
established in the criminal proceedings against Mr Moiseyev that the
contested property had been criminally acquired. In those
circumstances, the Court had erroneously acted as a “court of
fourth instance”. As to the specific claims made by the
applicants, the Government pointed out that the first applicant had
not been the legal owner of the garage or the plot of land, that she
had not been registered as a payer of land tax and that no records of
any payment of the land tax existed. Moreover, the garage had not
been confiscated. Similarly, the first applicant had not been
registered as owner of the VAZ car and there is no evidence that she
had ever paid any transport tax. In respect of the cash funds, the
Government maintained that those had been criminally acquired and
should not be reimbursed for the reasons of “social justice”.
As to the second applicant’s computer, its real value was
closer to EUR 100, as it was determined both in the forensic
valuation report and stated in the applicants’ statement of
claim in the domestic proceedings.
- The
Government further considered that the claim in respect of
non-pecuniary damage was unreasonable as to quantum. They claimed
that the applicants did not adduce evidence of the non-pecuniary
damage.
3. The Court’s assessment
- Where
the Court has found a breach of the Convention in a judgment, the
respondent State is under a legal obligation to put an end to that
breach and make reparation for its consequences. If national law does
not allow – or allows only partial – reparation to be
made, Article 41 empowers the Court to afford the injured party such
satisfaction as appears to it to be appropriate. The Court enjoys a
certain discretion in the exercise of that power, as the adjective
“just” and the phrase “if necessary” attest.
In particular, if one or more heads of damage cannot be calculated
precisely or if the distinction between pecuniary and non-pecuniary
damage proves difficult, the Court may decide to make a global
assessment (see Comingersoll S.A. v. Portugal [GC], no.
35382/97, § 29, ECHR 2000-IV).
- The
Court has established in the principal judgment that the first
applicant’s claim to the spousal portion and the second
applicant’s claim to the computer had a basis in the statutory
law and in the case-law of the Russian Supreme Court (paragraphs
47-54 of the principal judgment). Since the applicants had not been
parties to the criminal proceedings against Mr Moiseyev, they
unsuccessfully attempted to vindicate their property claims in civil
proceedings. The Moscow courts had not carried out a global
assessment of the family property or the balancing exercise of the
rights of family members which had been both required under the
applicable domestic law provisions (ibid., §§ 61-64).
- The Court reiterates that the factual matters such as
the extent of the first applicant’s spousal share should be
best determined in the domestic proceedings on the basis of the
evidence submitted by the parties. In the instant case the Russian
courts did not carry out such a determination. However, it is noted
that, pursuant to the Russian Constitutional Court’s judgment
no. 4-P of 26 February 2010, the Court’s judgments are
binding on Russia and a finding of a violation of the Convention or
its Protocols by the Court is a ground for reopening civil
proceedings under Article 392 of the Code of Civil Procedure and
review of the domestic judgments in the light of the Convention
principles established by the Court (see Jehovah’s
Witnesses of Moscow v. Russia, no. 302/02, § 206, ECHR
2010 ... (extracts)). In these circumstances, the Court
considers that such a review would be the most appropriate means of
remedying the violation it has identified in the principal judgment
and that it is not necessary to award any amounts in respect of
pecuniary damage.
- As to non-pecuniary damage, the Court reiterates its
constant position that an applicant cannot be required to furnish any
proof of non-pecuniary damage he or she has sustained (see, among
many others, Antipenkov v. Russia, no. 33470/03, § 82,
15 October 2009; Pshenichnyy v. Russia, no. 30422/03,
§ 35, 14 February 2008; Garabayev v. Russia,
no. 38411/02, § 113, ECHR 2007 VII (extracts); and
Gridin v. Russia, no. 4171/04, § 20,
1 June 2006). It further considers that the applicants must have
suffered anxiety and frustration on account of the authorities’
persistent failure to examine their civil claims. Making its
assessment on an equitable basis, the Court awards the applicants
jointly EUR 8,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable on it.
B. Costs and expenses
- The
applicants claimed jointly EUR 374.60 for legal fees in the
domestic proceedings, EUR 122.20 for court fees and EUR 3,000
for their representation before the Court by Ms Kostromina.
- The
Government pointed out that only the legal costs in the domestic
proceedings in the amount of EUR 450 were confirmed with
appropriate documents. The applicants did not produce a
legal-services agreement with Ms Kostromina.
- According
to the Court’s established case-law, costs and expenses will
not be awarded under Article 41 unless it is established that they
were actually incurred, were necessarily incurred and were also
reasonable as to quantum (see Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 XI).
- On
the basis of the materials in the case-file, the Court accepts the
applicants’ claim for the costs in the domestic civil
proceedings and awards them EUR 496.80, plus any tax that may be
chargeable to the applicants. However, there is no evidence in the
file that any disbursements have been made to Ms Kostromina or that
there is a legal obligation on the part of the applicants to make any
such disbursements. Accordingly, this part of the claim is rejected.
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
- Holds by six votes to one
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into Russian roubles at the
rate applicable at the date of settlement:
(i) EUR 8,000
(eight thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR 496.80
(four hundred ninety-six euros and 80 cents), plus any tax that may
be chargeable to the applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis Section Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge D.
Spielmann is annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE SPIELMANN
I
voted in favour of point 2 of the operative part of the judgment,
rejecting the remainder of the applicants’ claim for just
satisfaction, under the head of pecuniary damage, because pursuant to
the Russian Constitutional Court’s judgment no. 4-P of 26
February 2010, a finding of a violation of the Convention or its
Protocols by the Court is a ground for reopening civil proceedings
under Article 392 of the Code of Civil Procedure and for a review of
domestic judgments in the light of the Convention principles
established by the Court (see paragraph 14 of the judgment).
However,
the expressions “just” (French équitable)
and “if necessary” (s’il y a lieu), as
mentioned in paragraph 12 of the judgment, cannot be understood
merely as conferring on the Court a discretion to use its powers
under Article 41 to afford such satisfaction “as appears to it
to be appropriate”. A “necessity” to apply Article
41 exists “once a respondent government refuses the applicant
reparation to which he considers he is entitled” (see
Ringeisen v. Austria (Article 50), 22 June 1972, § 22,
Series A no. 15). It should be recalled that the Court has frequently
rejected Governments’ submissions to the effect that the
applicant can ask for compensation in domestic courts in respect of
the violation found by the Court (see Papamichalopoulos and Others
v. Greece (Article 50), 31 October 1995, § 40, Series A no.
330 B; De Wilde, Ooms and Versyp v. Belgium
(Article 50), 10 March 1972, § 15-16, Series A no. 14; Jalloh
v. Germany [GC], no. 54810/00, § 129, ECHR 2006 IX; and
a/s Diena and Ozoliņš v. Latvia, no. 16657/03, §
92, 12 July 2007, and the references cited therein).
In
the “Vagrancy cases” (see De Wilde, Ooms
and Versyp v. Belgium (Article 50), 10 March 1972, § 16,
Series A no. 14), the Court held as follows:
“...if the victim, after exhausting in vain the
domestic remedies before complaining at Strasbourg of a violation of
his rights, were obliged to do so a second time before being able to
obtain from the Court just satisfaction, the total length of the
procedure instituted by the Convention would scarcely be in keeping
with the idea of the effective protection of Human Rights. Such a
requirement would lead to a situation incompatible with the aim and
object of the Convention.”
(See
also my concurring opinion, joined by Judge Loucaides, attached to
the Lo Tufo judgment, with further references (Lo Tufo v.
Italy, no. 64663/01, ECHR 2005 III)).
However,
the execution of the Court’s judgments today requires a sharing
of the burden and the robust involvement of national authorities,
including domestic courts. The positive development of Russian law
(Constitutional Court’s judgment of 26 February 2010) needs to
be encouraged. That is the reason why I did not dissent on point 2 of
the operative part and why, albeit not without hesitation, I voted in
favour of this point.
