FIRST SECTION
CASE OF
TKACHEVY v. RUSSIA
(Application no.
35430/05)
JUDGMENT
(Just satisfaction)
STRASBOURG
4 April 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 Tkachevy v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Dmitry Dedov, judges,
and Søren Nielsen,
Section Registrar,
Having deliberated in private on 12 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
35430/05) 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, Mr Viktor Nikolayevich Tkachev and
Mrs Elvira Eduardovna Tkacheva (“the applicants”), on 15 June 2005.
The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
In a judgment delivered on 14 February 2012 (“the
principal judgment”) the Court decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1), declared the complaint
under Article 1 of Protocol No. 1 admissible, and held that there had been a
violation of that Article in that the expropriation of the applicants’ flat in
downtown Moscow had lacked a convincingly demonstrated public interest. Under
Article 41 of the Convention the applicants sought just satisfaction in the
total amount of 2,029,270 euros (“EUR”).
Since the question of the application of Article
41 was not ready for decision as regards damage, the Court reserved it and
invited the Government and the applicants to resubmit, within three months,
their written observations on that issue and, in particular, to notify the
Court of any agreement they might reach.
The applicants and the Government each filed
observations but failed to reach an agreement. The Court invited the parties to
choose an expert who would assess the pecuniary damage sustained by the
applicants. As the parties have failed to agree on the expert, the President of
the Chamber entrusted the task, at the Government’s expense, to Mr M. Rodin of
“Professional Experts’ and Valuators’ Society” (“the expert”).
THE LAW
Article 41 of the Convention reads:
“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. Restitution
Above all the applicants wished to regain the
title to the expropriated flat, the one located at 9/12-1 Znamenka Street in Moscow (“Znamenka”). They stressed their practical and emotional ties with that
neighbourhood and lamented their loss of its comforts, historicity, and
prestige. They contrasted Znamenka with the replacement flat, the one located
at 26 Krasnoprudnaya Street (“Krasnoprudnaya”). The replacement flat, according
to the applicants, lay amid the capital’s transport and industrial zone and
suffered of pollution, passerby crowds, the homeless, and crime.
The Government retorted that the restitution had
been impossible. First, Znamenka was in private hands and no more belonged to
the Moscow Government. Second, after the applicants’ resettlement the flat had
been reconfigured and no longer existed in its former shape. Third, the flat’s
new owner had invested substantial own funds into its reconstruction, and the
applicants might not lay claim to those improvements.
The Court reiterates that to redress a violation
of Article 1 of Protocol No. 1 it is indeed best to restore victims’
ownership (see, for example, Papamichalopoulos and Others v. Greece
(Article 50), 31 October 1995, § 34, Series A no. 330 B). In such cases the
respondent Government is expected to revert the situation to its pre-breach
state (see Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR
2004 II). Yet in the circumstances of the present case a restitution would be
technically impossible. According to the expert, Znamenka has been drastically
redeveloped and downsized from 121.8 m² to 85.8 m². Essentially, the applicants’
former flat is no more.
The Court will therefore have to study other
means of redress.
B. Pecuniary damage
If the restitution proved impossible, the
applicants asked the Court to make good their pecuniary loss of EUR 2,006,000. In
their estimate this was the current market price of a flat at Znamenka equal to
the expropriated one. They arrived at that amount by consulting estate agents’
offers on the Internet.
The Government opposed that claim. First, the
applicants had suffered no loss at all, because, as a domestic court had found
in 2005, at the time of their resettlement the replacement flat had been dearer
that the expropriated one. Second, the applicants had based their claim on
prices of upmarket properties whereas theirs had been but “shabby”. Third, the
applicants had overestimated the market prices and in reality an equivalent
flat at Znamenka cost EUR 938,000 at most. And last, the evaluation of the
flats had been within the domestic authorities’ margin of appreciation, the
domestic courts had found that Krasnoprudnaya had been a fair replacement, and
the Court should leave this finding at rest.
The Court considers that the applicants’
pecuniary loss, if any, should be estimated with reference to property prices
of April 2005, the time of the eviction order. For there are far too many
variables in house prices, especially in a dynamic metropolitan area, and any
reflection on how much the applicants’ Znamenka home would have been worth
today if they had stayed in it, would veer precariously close to speculation.
The Court also admits that, being an
international jurisdiction, its faculty of judgment is naturally limited in
questions like the present one where domestic ground reality has to be assessed
in such a complex economic subsystem as real estate. This is why the Court has
decided to resort to the expertise of a professional valuer with solid
credentials and experience.
According to the expert, at the time of its expropriation
Znamenka was EUR 142,000 dearer than Krasnoprudnaya. The expert reached that
conclusion through sales comparison approach, i.e. after comparing market value
of flats similar to Znamenka and Krasnopurdnaya and offered for sale in April
2005, “market value” being understood as the likeliest sale price in an open
competitive market between reasonable, knowledgeable, and free buyer and
seller. The Court is satisfied with the method employed by the expert and the
way he conducted his study. The Court notes that the valuation method complied
with standards of the Russian Ministry of Economic Development, the
International Valuation Standards Council, and the European Group of Valuers’
Associations. The Court also welcomes that the expert had interviewed both the
applicants and the Government so as to reach a poised conclusion.
The Court recalls that before the principal
judgment was passed the applicants had also claimed their commuting costs,
settling-in expenses, cost of a telephone line, and stress reliever medicines
totalling EUR 1,000. However, the applicants have omitted these expenses from
their reformulated claim, and there is no ground to examine them.
In view of the above, the Court awards EUR 142,000
in respect of pecuniary damage.
C. Non-pecuniary damage
In addition, each applicant claimed EUR 5,000
for moral suffering caused by their forced resettlement. In their submission, during
the four years that the family had lived at Znamenka the applicants and their
children had got used to the neighbourhood and its comforts, and cutting those
ties and readjusting their lifestyle to the new place had been painful. The
bailiffs who had evicted the family had been accompanied by armed policemen,
and the sight of the assault rifles had scared and anguished the children.
The Government admitted that the situation could
have distressed the applicants. They considered adequate compensation to be EUR
7,500-10,000 per person. They remarked that no award should be made in respect
of the children because formally they had been off the applicants list.
The Court agrees with the parties that an award
of non-pecuniary damages is justified. Making its assessment on an equitable
basis, the Court awards to the applicants jointly EUR 10,000 under this head.
D. Costs and expenses
The Court recalls that it has already made an
award under this head in the principal judgment.
E. 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. Holds
(a) that the respondent State is to pay the
applicants, 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 142,000 (one hundred forty-two thousand
euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 10,000 (ten thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(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;
2. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 4 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
