AS TO THE ADMISSIBILITY OF
Application no. 70142/01
by Valentin Andreyevich DUNAYEV
The European Court of Human Rights (First Section), sitting on 2 February 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 16 May 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Valentin Andreyevich Dunayev, is a Russian national, who was born in 1938 and lives in the Tula Region. He is represented before the Court by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The respondent Government are represented by Mr P. Laptev, 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.
Prior to the events described below the applicant lived in Grozny, Chechnya. He owned a three-room apartment in a block of flats at 5 Kosmonavtov Street.
1. Events prior to ratification of the Convention by Russia on 5 May 1998
In late 1994 the Russian Government launched a military operation in Chechnya, aiming at disarming illegal armed formations.
At night between 7 and 8 January 1995 the federal troops attacked the centre of Grozny. As a result of heavy shelling the building at 5 Kosmonavtov Street collapsed.
On 12 February 1995 the applicant and his three neighbours drew up a report listing items of the applicant’s property that had been destroyed during the attack of 7 – 8 January 1995 and indicating an amount of pecuniary damage sustained by the applicant.
On 14 February 1995 the applicant applied in writing to the so-called Government of the National Revival of the Chechen Republic (Правительство национального возрождения Чеченской Республики) seeking temporary housing and compensation for the lost property. He enclosed the report of 12 February 1995. It does not appear that the applicant received a response to his application.
On 10 March 1995 the administration of Grozny (мэрия г. Грозного) issued the applicant with a certificate, which confirmed that his housing and property had been destroyed during military actions in Grozny.
By letter of 13 July 1995 the Architecture and Town-Planning Department of Grozny (Управление архитектуры и градостроительства г. Грозного) informed the former residents of the block of flats at 5 Kosmonavtov Street that more than 80 percent of the said building had been destroyed and that it would not be rebuilt.
On 30 September 1997 the applicant applied in writing to the Government of Russia. He stated that his property had been destroyed and asked for assistance in obtaining compensation. No response followed.
By letter of 3 December 1997 the Federal Migration Service of Russia (Федеральная миграционная служба России) notified the applicant that he was ineligible for compensation. The letter referred to a governmental decree of 30 April 1997, which stated that former residents of Chechnya who had lost their property as a result of military actions could obtain compensation, provided that they had left Chechnya permanently and had been registered by local migration services during the period from 12 December 1994 until 23 November 1996. The letter continued that the applicant had first left Chechnya in 1993, then returned there on several occasions, and had finally been registered as a forced migrant on 24 December 1996, which fell outside the requisite period, and therefore the applicant failed to meet the requirements of the above decree.
On 20 November 1997 the applicant filed a claim for damages against the Ministry of Finance and the Ministry of Defence in the Basmanny District Court of Moscow (“the Basmanny District Court”).
By decision of 20 January 1998 the Basmanny District Court refused to consider the applicant’s action on the merits. It noted that the applicant’s claim could not be subject to judicial review, as its examination fell within the competence of local migration services, and that the applicant should apply to such a service at his place of residence.
On 18 March 1998 the Civil Section of the Moscow City Court (“the Moscow City Court”) upheld the above decision on appeal, having slightly amended the reasoning.
2. Events after 5 May 1998
Between 26 May 1998 and 25 November 1999 the applicant unsuccessfully applied for supervisory review of the decisions of 20 January 1998 and 18 March 1998.
On 25 November 1999 the Presidium of the Moscow City Court quashed the above decisions in the supervisory review proceedings and remitted the case to the first instance, ordering an examination on the merits.
On 17 January 2000 the Basmanny District Court suspended the proceedings and invited the applicant to adduce a copy of his application for the defendant party.
On 17 February 2000 the applicant provided the missing copy.
Thereafter he complained to the Basmanny District Court and to various administrative bodies about a delay in the proceedings.
On 14 December 2000 the Basmanny District Court delivered its judgment. While acknowledging the fact that the applicant’s property including his apartment in the block of flats at 5 Kosmonavtov Street had been destroyed as a result of an attack in 1995, the court noted that the applicant had failed to prove that his possessions had been damaged by the Russian federal troops rather than by Chechen fighters, as both parties to the conflict had used weaponry and ammunition of the same standard. The court also noted that under Articles 1069 – 1071 and 1100 of the Civil Code of Russia the State was only liable to damages for its agents’ actions that were unlawful. It further held that the military operation in Chechnya had been launched by virtue of presidential decree no. 2137 of 30 November 1994, presidential decree no. 2166 of 9 December 1994 and a governmental decree of 9 December 1994 which had been found constitutional by the Constitutional Court of Russia on 31 July 1995 and were still in force. Accordingly, the court concluded that the actions of the Russian federal troops in Chechnya had been lawful and dismissed the applicant’s claim for compensation for pecuniary and non-pecuniary damage.
On the same date the applicant lodged a notice of appeal in which he requested the court to quash the judgment and remit his case for a fresh consideration. He also expressed his intention to adduce detailed arguments after acquainting himself with the text of a transcript of the hearing and obtaining a full copy of the judgment.
By letter of 20 December 2000 the Basmanny District Court informed the applicant that he could obtain a full copy of the judgment of 14 December 2000 and have access to his case-file at the court secretariat.
On 21 December 2000 the applicant applied in writing to the Basmanny District Court for a copy of the transcript of the hearing on 14 December 2000, and a certain document adduced by the defendants at the said hearing. It does not appear that the applicant received a response to this request.
On 17 January 2001 the applicant sent another request to the Basmanny District Court, apparently to no avail.
By letter of 14 February 2001 the Basmanny District Court forwarded a copy of the judgment of 14 December 2000 to the applicant and notified him that a hearing on his appeal was scheduled for 28 February 2001. The applicant submits that he received this letter on 21 February 2001.
According to the applicant, on 28 February 2001, a few hours before the court session, he attempted to file the text of supplementary pleadings to his appeal brief and to have access to his case-file, but was refused. He then attempted to lodge his detailed appeal brief at the hearing, but the presiding judge refused to accept it. It appears that the Moscow City Court only examined the applicant’s notice of appeal and upheld the judgment of 14 December 2000, re-stating the first instance reasoning. The applicant attended the hearing.
On 1 March 2001 the applicant sent a letter to the President of the Moscow City Court, complaining about the court’s refusal to examine his supplementary pleadings and requesting a copy of the decision of the Moscow City Court of 28 February 2001.
By letter of 26 March 2001 the Basmanny District Court forwarded a copy of the requested decision to the applicant without further explanations.
1. The applicant complained under Article 6 of the Convention about the refusal in 1998 – 1999 of his requests to institute supervisory review of court decisions of 20 January 1998 and 18 March 1998. He further maintained that the domestic courts’ arbitrary findings had rendered the proceedings in 2000 – 2001 unfair. The applicant claimed in this connection that the national courts had confirmed the fact of the destruction of his property during the attack of 7 – 8 January 1995, but had refused to award him compensation stating that it had not been proven that the federal troops had damaged his property although no evidence to the contrary had been adduced, and on the ground that in any event the actions of the federal troops had been lawful. The applicant also complained about the refusal of the Moscow City Court to examine his detailed appeal brief at the hearing on 28 February 2001. In his observations of 18 August 2005 the applicant also raised new complaints relating to a number of the procedural irregularities and the length of the proceedings in his case.
2. The applicant next claimed that the destruction of his property by the Russian military and the refusal of compensation for pecuniary and non-pecuniary damage constituted a breach of his rights secured by Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.
3. The applicant relied on Article 13 in that he had had no effective remedies against the violations of his rights under Article 8 of the Convention and Article 1 of Protocol No. 1.
1. The applicant complained under Article 6 § 1 of the Convention that in 1998 – 1999 his requests for supervisory review of the court decisions of 20 January and 18 March 1998 were refused, that the civil proceedings in 2000 – 2001 had been unfair on account of the domestic courts’ arbitrary findings and in view of the fact that the Moscow City Court had based its decision of 28 February 2001 on his notice of appeal and declined to examine his supplementary pleadings. He also complained that the overall length of proceedings in his case had been excessive and there were procedural defects in those proceedings.
Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”
(a) As regards the refusal of the applicant’s requests for supervisory review of court decisions of 20 January and 18 March 1998, the Court notes that this complaint relates to the period from 26 May 1998, when the applicant first applied for supervisory review, until 25 November 1999, when the Moscow City Court quashed the respective decisions, whilst the present application was introduced on 16 May 2001, i.e. more than six months later.
(b) To the extent the applicant complained about the violation of his right to a fair hearing due to the refusal of the appeal court to examine his supplementary pleadings, the Government submitted by reference to the response of the Supreme Court of Russia that under Article 300 of the Code of Civil Procedure, then in force, requests and motions of a party to proceedings before an appeal instance were examined after the other party to the proceedings and a prosecutor was heard. Since, as a general rule, no transcript of a hearing before an appeal instance is made, it was most likely that the Moscow City Court had examined and declined the applicant’s motion to file a detailed appeal brief. Nevertheless, the appeal court examined the appeal brief which the applicant had lodged earlier. Furthermore, the applicant attended the appeal hearing on 28 February 2001 and was able to present his arguments. In view of the above, the Government argued that the applicant’s right to a fair hearing had not been infringed.
In response, the applicant contended that the Government had submitted no documentary evidence to corroborate the assumption of the Supreme Court that his motion to file supplementary pleadings had been examined by the Moscow City Court. He further contested the Government’s argument that the Moscow City Court had based its decision on the applicant’s appeal brief which he had lodged earlier. The applicant noted in this respect that he had only managed to file a notice of appeal, which had merely indicated his intention to adduce detailed arguments upon receipt of a full copy of the judgment of 14 December 2000 and study of a transcript of the hearing. The applicant also maintained that the findings made by the domestic courts had been arbitrary. Therefore, in the applicant’s opinion, the proceedings in his case did not meet the fairness requirement enshrined in Article 6 § 1 of the Convention.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, no other grounds for declaring it inadmissible having been established.
(c) As regards the alleged length and other procedural shortcomings of the proceedings in his case, the Court notes that the proceedings in question ended on 28 February 2001, while the respective complaints were first raised by the applicant in his observations dated 18 August 2005, i.e. more than six months later.
It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant complained under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that his housing and other possessions had been destroyed during the attack of 7 – 8 January 1995 and that he had been unable to obtain any compensation in this respect. The respective provisions read as follows:
“Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“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 this part of the application was incompatible ratione temporis with the provisions of the Convention. They referred to the Court’s case-law, stating that, in accordance with the generally recognised principles of international law, the Convention was binding on each contracting state only in respect of facts occurring after its entry into force in respect of that party. They pointed out that that the Convention had entered into force in respect of Russia on 5 May 1998 while the events invoked by the applicant had taken place in 1995. As regards the fact that the proceedings for compensation for the applicant’s destroyed property had taken place in 2000 – 2001, the Government pointed out that divorcing the domestic courts’ decisions from the events which gave rise to the proceedings in question would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law. They relied on the cases of Jovanović v. Croatia (dec., no. 59109/00, ECHR 2002-III) and Litovchenko v. Russia (dec., no. 69580/01, 18 April 2002) in this latter respect.
The applicant maintained that his application fell within the Court’s temporal competence, as it could be distinguished from the case-law cited by the Government. He stated in particular that in the cases of Litovchenko and Jovanović the events that had given rise to the violations alleged had ended prior to the ratification of the Convention by the respondent States, those violations had not been continuous in nature, and that in any event the respective two cases were factually different. In the applicant’s view, his application was similar to the case of Ilaşcu and others v. Moldova and Russia in which the Court had found that it had jurisdiction ratione temporis to examine the merits of the applicants’ complaints under Articles 3, 5 and 8 of the Convention, having noted that the violations alleged had concerned events which had began with the applicants’ incarceration in 1992, and had continued after the ratification of the Convention by the respective States (see Ilaşcu and others v. Moldova and Russia [GC], no. 48787/99, §§ 401-403, 8 July 2004). The applicant argued that like in the Ilaşcu case his complaints related to a continuing situation which had begun with the destruction of his property and still obtained at present, since he had received no compensation.
As to the merits of his complaints, the applicant firstly contended that the national authorities had not taken necessary steps to secure his rights under Article 8 of the Convention. He noted in particular that the artillery shelling of Grozny at night between 7 and 8 January 1995 had commenced without any prior notification of the civilians, and that the military had not taken any measures to minimize the inflicted damage. He further averred that following the destruction of his flat which had been the only housing for him and his family, they had lived in basements of various buildings lacking water, food, heating and warm clothes, which had adversely affected his own well-being and that of his family members and constituted an unjustified interference with his right to respect for his private and family life.
The applicant next argued that he had been deprived of his possessions as a result of the attack by the federal military. In the applicant’s opinion, such interference with his property rights had not been lawful, since there had been no domestic legislation to regulate the instances of deprivation of property during military operations, and in any event it had not been proportionate, given that he had been unable to obtain any compensation in the above connection.
The Court does not find it necessary to examine the entirety of the arguments advanced by the applicant since this part of application is in any event inadmissible for the following reasons.
The Court reiterates that its jurisdiction ratione temporis covers only the period after the ratification of the Convention or its Protocols by the respondent State. From the ratification date onwards, all the State’s alleged acts or omissions must conform to the Convention or its Protocols even where they are merely extensions of an already existing situation (see, for example, Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319-A, p. 16, § 40, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000-I, and Kovačić and others v. Slovenia (dec.), nos. 44574/98, 45133/98 and 48316/98, 9 October 2003 and 1 April 2004). While it is true that the Court may have regard to facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Broniowski v. Poland (dec.) [GC], no. 31443/96, ECHR 2002-...), the possible existence of a continuing situation must be determined in the light of the special circumstances of each case (see X. and Y. v. Portugal, nos. 8560/79 and 8613/79, Commission decision of 3 July 1979, Decisions and Reports (DR) 16, p. 212).
Turning to the facts of the present case, the Court observes that the applicant’s property was destroyed in 1995, i.e. prior to the entry into force of the Convention in respect of Russia on 5 May 1998. It recalls in this connection that the destruction of property, according to the well-established case-law, is an instantaneous act which does not create any continuous situation (see, among a number of other similar cases, Kresović v. Croatia (dec.), no. 75545/01, 9 July 2002, Aćimović v. Croatia (dec.), no. 61237/00, 7 November 2002, and Dobrotinić v. Croatia (dec.), no. 13848/02, 13 February 2003). It also notes that there is nothing on the facts of the instant case to suggest the contrary. As to the Ilaşcu and others case cited by the applicant, it is of no relevance to the present application, since it concerned the applicants’ imprisonment and not the destruction of their property, and related to a continuing situation.
As regards proceedings concerning compensation for the destroyed property that took place in 2000 – 2001, the Court accepts the Government’s argument that interpreting these proceedings as confirming the events in question and bringing them within the Court’s temporal jurisdiction would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law (see, in a similar context, Kastelic v. Croatia (dec.), no. 60533/00, 7 November 2002). Moreover, in so far as the applicant’s complaint under Article 1 of Protocol No. 1 is concerned, the Strasbourg institutions have consistently held that complaints about the refusal or denial of compensation claims based on facts that had occurred prior to the entry into force of the Convention in respect of the respondent State are outside their temporal competence (see, as the most recent authority, Geschäftshaus GmbH v. Germany, no. 36713/97, Commission decision of 21 May 1998, unreported). The Court also notes that even though from the applicant’s observations it appears that following the destruction of his housing he lived for some time in rather poor conditions which may, in principle, raise an issue under Article 8 of the Convention (see Kalanyos and others v. Romania, (dec.), no. 57884/00, 19 May 2005), he does not make any specific complaints relating to the period after the ratification of the Convention by the Russia (see, by way of contrast, Moldovan and others and Rostaş and others v. Romania (dec.), nos. 41138/98 and 64320/01, 13 March 2001).
It follows that this part of application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.
3. The applicant complained that he had been deprived of effective domestic remedies to challenge the alleged violations of his rights under Article 8 of the Convention and Article 1 of Protocol No. 1. He referred to Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order, where there is an “arguable claim” of a violation of a substantive Convention provision (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
The Court refers to its above conclusion that the applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 are outside its temporal jurisdiction. It follows that the Court is not competent to examine whether the applicant had an “arguable claim” of a breach of a substantive Convention right and that his submissions in respect of Article 13 therefore also fall outside the Court’s competence ratione temporis (see Meriakri v. Moldova (dec.), no. 53487/99, 16 January 2001 and Moldovan and others, cited above).
It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint that in the 2000 – 2001 proceedings he did not have a fair trial as guaranteed by Article 6 of the Convention, in particular due to his alleged inability to present his arguments at a hearing before the Moscow City Court on 28 February 2001;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
DUNAYEV v. RUSSIA DECISION
DUNAYEV v. RUSSIA DECISION