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FIRST
SECTION
CASE OF YURIY LOBANOV v. RUSSIA
(Application
no. 15578/03)
JUDGMENT
(Just
satisfaction)
STRASBOURG
14
February 2012
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 Yuriy Lobanov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 24 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15578/03) 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 a Russian national, Mr Yuriy Ivanovich Lobanov
(“the applicant”), on 23 April 2003.
- In
a judgment delivered on 2 December 2010 (“the principal
judgment”), the Court held there had been a violation of
Article 1 of Protocol No. 1 (protection of property) of the
European Convention on Human Rights on account of the Russian
authorities’ continued failure to establish the procedure for
implementation of the applicant’s right to redemption of the
1982 bonds (Yuriy Lobanov v. Russia, no. 15578/03,
2 December 2010).
- Under
Article 41 of the Convention the applicant sought just satisfaction
in respect of pecuniary and non-pecuniary damage.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision as regards pecuniary damage, the Court
reserved it and invited the Government and the applicant to submit,
within six months, their written observations on that issue and, in
particular, to notify the Court of any agreement they might reach
(ibid., § 59, and point 3 of the operative provisions).
- The
applicant maintained his claims. The Government filed additional
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. Pecuniary damage
1. The applicant
- The
applicant submitted that he was the holder of 1982 bonds with a total
nominal value of 19,845 “promissory roubles”. He produced
the lists of their serial numbers, from which it appears that he
possessed 231 bonds with the value of 35 “promissory roubles”,
158 bonds with the value of 70 “promissory roubles”, and
5 bonds with the value of 140 “promissory roubles”. He
also submitted photocopies of the first and last bond in each series.
- The
applicant calculated the pecuniary damage in the following manner.
Pursuant to the 1999 Conversion Procedure Act (see paragraph 20 of
the principal judgment), interest on the converted securities was to
accrue at a rate no lower than nine per cent per annum and the
current value of his bonds amounted to 39,690 “promissory
roubles”. In January 2003, the most recent date on which the
value of the “promissory rouble” was calculated, it was
equivalent to 32.34 Russian roubles (RUB); its current value was
unknown. Multiplying the last known value of the “promissory
rouble” by the current nominal value of his bonds and making an
adjustment for the inflation during the time period that had lapsed
since 2003, the applicant assessed his claim in respect of pecuniary
damage at RUB 1,500,000 (EUR 43,415 at the official exchange
rate on the date of submission of the claim).
2. The Government
- The
Government submitted firstly that the lists produced by the applicant
were unreliable because the bonds had been issued with values of 25,
50 and 100 Soviet roubles rather than 35, 70 and 140 roubles as the
applicant claimed. Moreover, he had produced copies of four bonds
only.
- The
Government claimed that the applicant could have received 480 roubles
for his four bonds if he had followed, in 1992 and 1993, the buy-out
procedure established in Resolution no. 549 (see paragraph 15 of the
principal judgment). This amount would have been “dramatically
reduced” following the denomination on 1 January 1998, with one
new rouble equalling 1,000 old roubles. In these circumstances, the
Government believed that the applicant’s claim in respect of
pecuniary damage was unsubstantiated.
- Finally,
the Government considered that the applicant should not, in any
event, be awarded more than EUR 1,800, as were the applicants in the
cases of Malysh and Others v. Russia (no. 30280/03, 11
February 2010), Tronin v. Russia (no. 24461/02, 18 March
2010), and SPK Dimskiy v. Russia (no. 27191/02, 18 March
2010).
3. The Court
- The
Court notes from the outset that the present case is similar to the
above-mentioned cases of Malysh and Others, Tronin and
SPK Dimskiy, in that it also had in its origin the Russian
authorities’ failure to legislate on the procedure for
implementation of the applicant’s entitlement arising out of
bonds that had been recognised to have been the internal State debt
of the Russian Federation (see, for instance, Malysh and Others,
§§ 67, 82 and 85, cited above). However, in those cases the
Russian authorities had been able to adopt the procedure for the
buyout of the type of bonds that the applicants possessed before the
Court’s judgment was issued (ibid., §§ 52-53).
In those circumstances, the Court declined to make an award in
respect of pecuniary damage, noting that it was open to the
applicants to apply to the competent domestic authorities for
redemption of their bonds (ibid., § 90). By contrast, in
the instant case the procedure for settlement of the applicant’s
entitlement has not been made available to date and the Court is
therefore called upon to afford just satisfaction in respect of
pecuniary damage.
- The
Court does not share the Government’s doubt as to the
authenticity of the lists of bonds produced by the applicant.
Photocopies of the four bonds which the applicant submitted showed
that their face value was 25, 50 and 100 Soviet roubles which
corresponded to the denominations of the bonds issued in 1982. The
denominations stated in the lists were expressed in “promissory
roubles” which were equivalent to 1.4 times the face value of
the bond (section 6 of the 1999 Conversion Procedure Act) and,
accordingly, the original values of 25, 50 and 100 Soviet roubles
were recalculated as new values of 35, 70 and 140 “promissory
roubles”.
- The
Government submitted that the calculation of the pecuniary damage
should be based on the conditions for redemption of the bonds as they
had existed in 1992 and 1993. The Court observes, however, that the
events of the early 1990s fall outside its temporal jurisdiction and
that the scope of its review in the instant case was limited to the
period following the ratification of the Convention by the Russian
Federation on 5 May 1998 (see paragraphs 25-30 of the principal
judgment). Accordingly, the method of calculation suggested by the
Government may not be applied in the instant case.
- The
applicant relied on the provisions of the domestic laws and
regulations, including in particular the 1999 Conversion Procedure
Act and the 1999 Base Value Act (see paragraphs 18-21 of the
principal judgment), which were adopted during the period falling
within the Court’s temporal jurisdiction. He calculated the
appreciation of the bonds at the minimum interest rate established in
the 1999 Conversion Procedure Act and used the last known monetary
equivalent of the “promissory rouble”. The Government did
not comment on the method of calculation employed by the applicant.
Nor have they enacted any legislation governing the buyout of the
applicant’s bonds. Accordingly, the Court accepts the
applicant’s valuation of his entitlement in this part. However,
the applicant also performed an adjustment of the resulting amount by
an unspecified co-efficient which, according to him, represented the
inflationary losses during the period from 2003 to the date of
submission of his claims. As the applicant did not produce any
documents, such as for instance certificates from the statistical
service showing the inflation rate in the relevant period, the Court
is unable to accept this part of the applicant’s claim.
- Having
regard to the above considerations, the Court accepts the applicant’s
claim in the amount of RUB 1,283,574.60 which was equivalent to EUR
37,150 on the date of submission of the claim. The Court awards the
latter amount to the applicant as compensation in respect of
pecuniary damage.
B. Default interest
- The
Court considers it appropriate that the default interest rate 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
- 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 37,150
(thirty-seven thousand one hundred and fifty 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 14 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
