MAGOMETKHOZHIYEV AND AMALAYEV v. RUSSIA - 18940/08 (Judgment : Violation of Protection of property) [2017] ECHR 1096 (05 December 2017)

In the case of Magometkhozhiyev and Amalayev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Pere Pastor Vilanova,
          Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 14 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 18940/08 and 61716/08) 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 (see details below).

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 9 November 2015 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The circumstances of the cases

4. The applicants complained of a breach of their property rights through the actions of Russian military forces in Chechnya in 2000 and the failure of the competent domestic authorities to provide them with effective remedies in respect of those breaches.

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

1. Magometkhozhiyev v. Russia (no. 18940/08)

6. The application was lodged on 14 March 2008 by Mr Isa Magometkhozhiyev, who was born in 1950 and currently lives in Urus-Martan, Chechnya. He is represented before the Court by Mr D. Itslayev, a lawyer practising in Grozny.

(a) Seizure of the applicant’s vehicle

7. The applicant lived at 109 Sovetskaya Street, Urus-Martan. At about 10 a.m. on 10 March 2000 a group of military servicemen arrived at the house. The servicemen drove two armoured personnel carriers (APCs), and an Ural lorry with the registration number M 105 61. The group’s commander introduced himself to the applicant as Major Iv. They seized the applicant’s GAZ-330700 petrol lorry, which was stationed in the courtyard. They did not show any documents or give any explanation in respect of the seizure to the applicant, except to tell him that they had been instructed by their commanders to do so.

8. The applicant followed the servicemen who drove his lorry away. They entered the compound of a military unit known as DON-100, in the south-western outskirts of Urus-Martan.

9. On 11 March 2000 the applicant was allowed by a soldier to enter the compound and he saw his vehicle there. The applicant states that he saw many other vehicles stationed there; some had parts missing.

10. Two weeks later a serviceman told the applicant that his vehicle had been transported to a military unit in Mozdok, North Ossetia.

11. The applicant stated that he had reported the seizure of the vehicle to the authorities immediately, but submitted no documents in this respect.

(b) Criminal investigation

12. On 15 March 2001 the applicant informed the military prosecutor of Chechnya of the unlawful seizure of his lorry and asked him to intervene.

13. On 19 June 2001 an investigator of the Urus-Martan district prosecutor’s office (hereinafter “the district prosecutor’s office”) asked the Ministry of Justice to inform him of the current location of Major Iv., who was no longer stationed in Chechnya.

14. In July and August 2001 the Ministry of Justice replied to the investigator that no Ministry serviceman by the name of Iv. had been serving in Urus-Martan at the time in question.

15. On 20 January 2002 the district prosecutor’s office opened criminal investigation file no. 61001 into the alleged robbery. The decision by which the criminal investigation file was opened stated that in March 2000 a group of unidentified armed persons had, having threatened the applicant with firearms, taken his lorry from his house.

16. After a subsequent exchange of letters between the district prosecutor’s office and the Ministry of Justice and the Ministry of Defence, it proved impossible to identify the military unit in question. On this basis, in April 2003 the military prosecutor’s office refused to take possession of the file.

17. Officials of the North Caucasus Military Circuit denied that the GAZ lorry with the registration and identification numbers indicated by the applicant had been registered with any of their units. This was affirmed by the Chechnya Agency of State property.

18. Certain documents indicated that the servicemen identified by the applicant as belonging to “DON-100” had served in military unit no. 3660 of the internal troops of the Ministry of the Interior, which was permanently based in the Rostov Region.

19. At some point the applicant was granted victim status and information about the vehicle was entered in the national register of missing and stolen vehicles.

20. The applicant on numerous occasions complained to various bodies, including the civilian and military prosecutor’s offices, and the military and civilian authorities both in Chechnya and at the federal level.

21. The investigation was adjourned and reopened on several occasions but failed to identify the perpetrators, to find or question anyone from the military unit in question, or to locate the vehicle.

22. The applicant lodged a claim for compensation against the State Treasury. On 8 August 2005 the Urus-Martan Town Court refused to consider the claim on the merits. The applicant appealed, and on 30 August 2005 the Supreme Court of Chechnya quashed that decision and remitted it to the District Court for fresh examination.

23. In the meantime, the applicant applied to the Urus-Martan Town Court, requesting that it confirm his ownership of the vehicle in question. The applicant submitted that the vehicle and relevant documents had been taken from him by unidentified servicemen of the Ministry of Justice. The Chechnya traffic police were unable to issue any documents since their archives had burned down in 2000, but a police inspector from Urus-Martan confirmed that the applicant had had the vehicle in his possession. Two witnesses confirmed that the applicant had owned the vehicle. On the strength of the above, on 27 February 2006 the Town Court confirmed the applicant’s ownership of the vehicle in question.

24. By a decision dated 21 September 2006 the Urus-Martan Town Court transferred the applicant’s claim for damages to the Basmanny District Court of Moscow, the city in which the Federal Treasury was situated. The applicant appealed, and on 4 July 2006 the Supreme Court of Chechnya quashed the decision of 21 September 2006 and remitted the case to the Urus-Martan Town Court for fresh consideration.

25. On 21 December 2006 the Urus-Martan Town Court considered the substance of the case and concluded that the evidence submitted by the applicant and adduced during the pending criminal investigation had failed to establish conclusively the implication of State agents in the crime.

26. The applicant appealed, and on 30 January 2007 the Supreme Court of Chechnya quashed the judgment of 21 December 2006 and again remitted the case to the Urus-Martan Town Court for fresh consideration.

27. The applicant lodged a claim seeking compensation for the cost of the lorry (which he estimated at 170,000 Russian roubles (RUB)) and lost income, together with compensation for non-pecuniary damage. On 1 August 2007 the Urus-Martan Town Court dismissed the applicant’s claim, referring to the absence of conclusive proof that State servicemen had seized the vehicle. On 18 September 2007 the Supreme Court of Chechnya upheld that ruling, referring to the fact that the criminal investigation remained pending.

2. Amalayev v. Russia (no. 61716/08)

28. The application was lodged on 6 October 2008 by Mr Ismail Amalayev, who was born in 1960 and currently lives in Kiel, Germany.

(a) Destruction of the applicant’s lorry

29. In the evening of 14 October 2000 the applicant, his wife and aunt travelled in the applicant’s KAMAZ 53-20 lorry from the village of Starye Atagi to the Chiri-Yurt district of Grozny, Chechnya. At about 5 p.m. the applicant’s lorry got stuck on the road, not far from a security roadblock. The applicant tried to seek help from the passing drivers, but they were either unable to tow the lorry or didn’t want to stop, in view of the approaching curfew.

30. An armoured personnel carrier (APC), with the hull number 233, belonging to military unit no. 205 was passing by, and the applicant signalled to it by flashing his headlights. The APC stopped within 200-300 metres of the applicant’s lorry. Several servicemen got out but did not approach the lorry. Soon afterwards the applicant’s lorry was shot at from the direction of the APC; the applicant, his wife and his aunt escaped unhurt and ran to Starye Atagi.

31. In the morning on 15 October 2000 the applicant went to the lorry and found it burnt out and looking as though it had suffered from an explosion. The applicant immediately informed the local police, the head of the local administration of Starye Atagi and the local military commander’s office.

(b) Criminal investigation

32. On 19 October 2000 the applicant drew up a description of the destroyed lorry, which was co-signed by two traffic police officers from Starye Atagi. The description concluded that the lorry had been “blown up and burned during curfew hours not far from the roadblock manned by the [servicemen of the] 205th motorised rifle regiment”. The applicant submitted a copy of this document to the Court, with some handwritten corrections.

33. On the same day a senior inspector of the state traffic police of the Grozny district department of the interior (ОВД Грозненского района Чеченской Республики) concluded that the applicant’s KAMAZ lorry had been destroyed by fire as a result of being fired at and could not be repaired.

34. In a decision dated 24 October 2000, the Grozny district prosecutor’s office stated that it would not open a criminal investigation into the applicant’s allegations. It concluded that the applicant had left his lorry on the road and that the car had been destroyed by fire as a result of an electrical short circuit. In 2001-2002 the applicant lodged a number of complaints against that decision.

35. On 25 March 2001 the Grozny District Prosecutor’s Office opened a criminal investigation into the applicant’s allegations that his KAMAZ lorry had been shot at and been destroyed by fire by unidentified servicemen driving APC no. 233. The investigation was adjourned on several occasions.

36. In March 2006 the applicant, his wife and aunt were granted victim status. The value of the lorry was put by the applicant at RUB 280,000. It does not appear that the investigation progressed beyond the facts communicated by the applicant.

37. On 8 May 2008 the Grozny District Court refused to consider the applicant’s complaint concerning the ineffectiveness of the investigation, since on 1 May 2008 the latest decision to adjourn the investigation had been quashed. On 11 June 2008 the Supreme Court of Chechnya confirmed this decision.

38. On 1 June 2008 the applicant was, once again, informed that the investigation had been adjourned.

39. The applicant lodged a claim, seeking to recover the cost of the lorry directly from the military unit. On 15 November 2006 the Grozny District Court dismissed the applicant’s claim. The applicant appealed, and on 19 December 2006 the Supreme Court of Chechnya quashed the District Court’s decision and remitted the case to the District Court. The Supreme Court pointed out that the case-file material in respect of the pending criminal case, the applicant’s submissions and the evidence produced all pointed to the Ministry of Defence as the possible tortfeasor. It considered that the District Court had failed to elucidate the circumstances of the events in question and to inform the Ministry of Defence of the hearing of 15 November 2006.

40. The case was then transferred to Moscow, where the Ministry of Defence headquarters is located. On 2 March 2007 the Presnensky District Court dismissed the claim. It pointed out that the circumstances of the events in question were the subject of pending criminal proceedings and that “military unit no. 205” did not exist, according to the General Staff of the Ministry of Defence. It is not clear if the applicant appealed.

41. It appears that in March 2013 the applicant left Chechnya and, via Poland, moved to Germany.

II. RELEVANT DOMESTIC LAW

42. The relevant provisions of the national law are summarised in Miltayev and Meltayeva v. Russia, no. 8455/06, §§ 32-36, 15 January 2013.

THE LAW

I. JOINDER OF THE APPLICATIONS

43. Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION

44. The Government submitted unilateral declarations, which did not constitute a sufficient basis for finding that respect for human rights (as defined in the Convention) did not require the Court to continue the examination of the cases (Article 37 § 1 in fine). The Court rejects the Government’s request for it to strike the applications out and will accordingly pursue its examination of the merits of the cases (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003-VI).

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

45. The applicants complained of a breach of their right to respect for their property, as provided in Article 1 of Protocol No. 1 to the Convention, which reads, in so far as relevant:

“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. ...”

A. Admissibility

46. The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court accordingly concludes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring it inadmissible have been established.

B. Merits

47. The Court has already found in previous cases involving allegations by residents of Chechnya concerning the destruction of their property within the context of military and security operations that an adequate criminal investigation would constitute a potentially effective domestic remedy (see Khamzayev and Others v. Russia, no. 1503/02, § 154, 3 May 2011). While criminal investigations have been opened into applicants’ complaints, they have failed to answer any of the pertinent questions and, years later, have clearly been ineffective.

48. The Court finds to be prima facie justified the applicants’ claim that there has been an interference by State agents with their right to property. They produced sufficient evidence pointing to military servicemen as the tortfeasors; nevertheless, they received no compensation at the national level. Their situation in this respect is similar to those residents of Chechnya who could have pointed to State agents as perpetrators of torts but whose requests for compensation have been unjustifiably dismissed (see Khamidov v. Russia, no. 72118/01, § 137, 15 November 2007, and Miltayev and Meltayeva, cited above, §§ 50-57).

49. The Government did not contest the interference; nor did they put forward any arguments as to the lawfulness, legitimate aim or proportionality of the interference with the applicants’ property.

50. Noting the above-mentioned finding that the interference in question was imputable to the State, the absence of any arguments as to the lawfulness, legitimate aim or proportionality of such interference, and its previous similar findings, the Court finds that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

51. The applicants also complained of violations of Articles 6 and 13 of the Convention. 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.

52. Accordingly, this part of the applications is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

53. 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

54. The first applicant claimed 25,700 euros (EUR) in respect of pecuniary damage and EUR 3,000 in respect of non-pecuniary damage. To support his claims in respect of pecuniary damage, he presented an expert report commissioned by him in 2016 in Grozny, which set out a description of the vehicle and calculations in respect of lost profit.

55. The second applicant submitted that the overall amount of EUR 8,000 would cover both pecuniary and non-pecuniary damage caused to him by the violations alleged.

56. The Government considered that the claims in respect of pecuniary damage had been exaggerated and unsubstantiated, and that an award in respect of non-pecuniary damage should not exceed EUR 3,000.

57. Having regard to the above-mentioned findings of the violation of Article 1 of Protocol No. 1 and the documents submitted by the parties, the Court awards to the first applicant EUR 4,500 to cover pecuniary damage, and EUR 3,000 to cover non-pecuniary damage. To the second applicant, the Court awards EUR 8,000 as just satisfaction under all counts, in order to cover the damage caused to him by the violation.

B. Costs and expenses

58. The first applicant also claimed EUR 3,320 for the costs and expenses incurred before the Court. He submitted a copy of the legal representation agreement and a breakdown of costs and expenses incurred.

59. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award to the first applicant the sum of EUR 850, covering costs for the proceedings before the Court.

C. Default interest

60. 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,

1. Decides to join the applications;

2. Rejects the Government’s request to strike the applications out of its list of cases under Article 37 of the Convention on the basis of the unilateral declarations which they submitted;

3. Declares the complaints concerning the breach of the applicants’ right to property under well-established case-law of the Court admissible and the remainder of the applications inadmissible;

4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5. Holds

(a) that the respondent State is to pay to the applicants the amounts indicated below, within three months. The awards made to the first applicant are to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage to the first applicant;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to him, in respect of non-pecuniary damage to the first applicant;

(iii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to him, in respect of costs and expenses to the first applicant;

(iv) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable to him, in respect of pecuniary and non-pecuniary damage to the second applicant;

(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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 5 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Branko Lubarda
Deputy Registrar President

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