FIRST SECTION
CASE OF
DZUGAYEVA v. RUSSIA
(Application no.
44971/04)
JUDGMENT
STRASBOURG
12 February 2013
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 Dzugayeva v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 22 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
44971/04) 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, Ms Yelena Ruslanovna Dzugayeva (“the
applicant”), on 1 November 2004.
The applicant was represented by Ms K.
Dzasokhova, a lawyer practising in Vladikavkaz. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that she
had lost her property as a result of the authorities’ failure to protect it
properly.
On 11 March 2009 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1967 and lives in Vladikavkaz.
She is an entrepreneur who trades in reusable glass bottles. She used a trailer
parked in a yard near her house to store those bottles.
On 16 October 2002 a Mr B. delivered glass
bottles to the applicant. The delivery documents indicate that there were
34,000 bottles in total. He left the bottles packed in plastic bags in the yard
near her house. The bags were loaded into the trailer by two people, Mr V.M.
and Mr G.M.
On 17 October 2002 representatives of the
municipality’s administration and the police impounded the applicant’s trailer
on account of her failure to obtain a parking permit for it. The trailer was
moved to an unsecured storage area for impounded property. No inventory of the
trailer’s contents was made. The applicant was not present during the removal.
She was later informed that her property would be released to her once she had
paid the towing and storage charges.
Subsequently, the applicant found her trailer
almost empty except for some broken glass. Those in charge of the storage area
indicated that the bottles could have been stolen.
On 21 March 2003 the applicant brought an
action for damages against the Prefecture of the Severo-Zapadniy Circuit of
Vladikavkaz (“the prefecture”) on account of the loss of the bottles. The
applicant argued that the loss of her property had resulted from the
authorities’ negligence.
On 26 February 2004 the Justice of the
Peace of Court Circuit no. 27 (Severo-Zapadniy Circuit) considered the
applicant’s claim on the merits. The Justice of the Peace decided to hold the
hearing in the absence of counsel for the prefecture, who had been duly
notified of the date and time of the hearing and who chose not to attend. The
Justice of the Peace allowed the claim and awarded the applicant 49,000 Russian
roubles (RUB). The judgment came into force on 11 March 2004 and on
23 March 2004 the justice of the peace issued a writ of execution.
On 12 May 2004 the Justice of the Peace granted the
prefecture leave to appeal. On 28 May 2004 the Sovetskiy District Court of
Vladikavkasz upheld the decision of 12 May on appeal.
On 18 June 2004 the District Court quashed
the judgment of 26 February 2004 and dismissed the applicant’s claim,
noting that (1) the applicant had failed to furnish sufficient evidence to
substantiate her allegations as to the exact number of bottles stored in the
trailer and (2) the prefecture’s decision to seize the applicant’s trailer with
the bottles in it had been lawful.
The court noted that none of the witnesses
questioned, including Mr V.M. and Mr G.M., who had loaded the bottles into
the trailer, Mr G., an employee of the storage area, and Mr D., a policeman who
had been present during the removal of the trailer, could specify the exact
number of bottles stored in the trailer. They merely stated that the trailer
had been completely packed with bottles. Besides, the court established, after
measuring the volume of the trailer and that of a plastic bag containing fifty
bottles, that the trailer’s capacity could not exceed 555 bags, whereas the
applicant claimed that there had been 680 bags in the trailer.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.
1
The applicant complained that as a result of the
authorities’ negligence she had lost her property. She referred to 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
The Government claimed that the State was not
responsible for actions or failures to act on the part of the Prefecture of the
Vladikavkaz Severo-Zapadniy Circuit, which was not “a State authority” within
the Convention meaning. In their view, the prefecture, being a municipal
authority, was independent of federal and regional government. Accordingly, the
applicant’s complaint fell outside the scope of Article 1 of Protocol
No. 1.
The applicant considered that her complaint was
not inadmissible on any ground.
The Court observes that it
has previously established that, despite certain limits as regards the powers
of municipal bodies, their powers cannot be characterised as anything other
than “public”. Accordingly, municipal bodies are “a public authority” within
the Convention meaning, and the Court is competent ratione personae to
examine their actions (see, mutatis mutandis, Saliyev v. Russia, no. 35016/03, §§ 69-70, 21 October
2010). Having regard to the material submitted by
the Government, the Court notes that they have not put forward any fact or
argument capable of persuading it to reach a different conclusion in the
present case.
. Accordingly,
the Court rejects the Government’s objection as to the applicability of
Article 1 of Protocol No. 1 in the present case, and notes
that this complaint is not manifestly ill-founded within the meaning of Article
35 § 3 (a) 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 Government considered that the applicant had
failed to substantiate her allegations concerning damage incurred as a result
of the impounding of her property by the local authorities, and that her related
claims for damages had been rightfully dismissed by domestic courts.
The applicant maintained her complaint. She
considered that the prefecture was responsible for the damage to and loss of
her property.
2. The Court’s assessment
(a) Whether there was a “possession”
The Court reiterates that Article
1 of Protocol No. 1 protects “possessions”, which can be either “existing
possessions” or assets, including claims, in respect of which the applicant can
argue that he or she has at least a “legitimate expectation” of obtaining
effective enjoyment of a property right. It does not, however, guarantee the
right to acquire property. Where there is a dispute as to whether an applicant
has a property interest which is eligible for protection under Article 1 of
Protocol No. 1, the Court is required to determine the legal position of the
applicant (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd
v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007-III).
In the present case, the Court observes, and it
is not disputed by the Government, that the applicant was the recognised owner
of the glass bottles which were impounded by the municipal authorities. They
therefore constituted the applicant’s possession within the meaning of Article 1
of Protocol No. 1.
(b) Compliance with Article 1 of Protocol
No. 1
Article 1 of Protocol No.
1 comprises three distinct rules: the first rule, set out in the first sentence
of the first paragraph, is of a general nature and enunciates the principle of
the peaceful enjoyment of property; the second rule, contained in the second
sentence of the first paragraph, covers deprivation of possessions and subjects
it to certain conditions; the third rule, stated in the second paragraph,
recognises that the Contracting States are entitled, inter alia, to control the
use of property in accordance with the general interest (see, among other
authorities, Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).
. The
Court considers that the particular circumstances of the case prevent it from
falling into any of the categories covered by the second sentence of the first
paragraph or by the second paragraph of Article 1 of Protocol No. 1
(see Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I).
The Court further observes that, in the instant
case, the issue under examination is not any action on the part of the State,
but its failure to act. It considers therefore that it should examine the case
in the light of the general rule in the first sentence of the first paragraph,
which lays down the right to the peaceful enjoyment of possessions.
. In
this connection, the Court reiterates that genuine, effective exercise of the
right protected by Article 1 of Protocol No. 1 does not depend merely on the
State’s duty not to interfere, but may require positive measures of protection,
particularly where there is a direct link between the measures an applicant may
legitimately expect from the authorities and his effective enjoyment of his
possessions (see Öneryıldız v. Turkey
[GC], no. 48939/99, § 134, ECHR 2004-XII).
. On
the facts, the Court observes that the applicant’s trailer containing the glass
bottles was impounded by the local authorities because she had no parking
permit for it. In its opinion, when the authorities seized the applicant’s
property, they also took on a duty of care in respect of it. The Government are,
in such circumstances, required to attempt to rebut the applicant’s allegation
that the local authorities negligently allowed her property to be damaged
and/or lost. The Court further observes that neither the prefecture in the
course of the domestic proceedings nor the Government in the proceedings before
the Court proffered any explanation or denial of negligence on the part of the
local authorities. The Court finds, accordingly, that the local authorities
failed to properly protect the applicant’s property from damage and/or loss.
. The
Court also notes that no compensation was awarded to the applicant for damage
and/or loss of property resulting from the authorities’ inaction. Whereas it
was not in dispute that the impounded trailer was filled with the bottles
belonging to the applicant, the domestic judicial authorities dismissed the
applicant’s claim because she had not specified and substantiated her estimate
of the exact number of glass bottles which were in the trailer. The Court
cannot, however, support that position. While it is true that the actual value
of the damaged and/or lost property belonging to the applicant was not
established in the course of the civil proceedings instituted by her, this
issue would only be relevant to an evaluation of her losses, potentially for
the purposes of Article 41 of the Convention (see, mutatis mutandis,
Gladysheva v. Russia, no. 7097/10, § 81, 6 December
2011).
. The
foregoing considerations are sufficient to enable the Court to conclude that
the authorities failed to comply with their positive obligation enshrined in
Article 1 of Protocol No. 1. There has accordingly been a violation
of that provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the Court has
examined the other complaints submitted by the applicant under Articles 3,
13, 14 of the Convention and Article 1 of Protocol No. 1. Having regard
to all the material in its possession and in so far as these complaints fall
within the Court’s competence, it 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 must be rejected
as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) 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 123,350 euros (EUR) in
respect of pecuniary and non-pecuniary damage.
The Government considered the applicant’s claims
unsubstantiated.
Regard being had to what was at stake for the
applicant and to all the circumstances of the case, the Court awards her EUR 3,000,
plus any tax that may be chargeable, to cover both pecuniary and non-pecuniary
damage.
B. Costs and expenses
The applicant also claimed EUR 6,350 for legal,
postal, transportation and translation costs and expenses incurred before the
Court. She submitted two receipts confirming the despatch of her correspondence
to the Court for the total amount of 214.40 Russian roubles (RUB).
The Government considered
that the applicant had failed to demonstrate that the costs and expenses she
claimed were necessary or reasonably incurred. They pointed out that the applicant
had provided only copies of two postal invoices for RUB 82.
According to the Court’s case-law, an applicant
is entitled to reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard
being had to the documents in its possession and to the above criteria, the
Court considers it reasonable to award the sum of EUR 850, plus any tax that
may be chargeable to the applicant, in respect of the proceedings before it.
C. 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
1. Declares the complaint concerning the
applicant’s right to peaceful enjoyment of her possessions admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 1 of Protocol No. 1;
3. 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, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax
that may be chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR 850 (eight hundred fifty euros), plus any
tax that may be chargeable to the applicant, 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 February
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
