THIRD SECTION

CASE OF EILDERS AND OTHERS v. RUSSIA

(Application no. 475/08)

JUDGMENT

STRASBOURG

3 October 2017

This judgment is final but it may be subject to editorial revision.

In the case of Eilders and Others 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 12 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 475/08) 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 three Russian nationals, Ms Elena Viktorovna Eilders (née Zabelina, formerly Davydova), Ms Galina Pavlovna Zabelina, and Mr Viktor Aleksandrovich Zabelin (“the applicants”), on 21 November 2007.
2.  The applicants were represented by Mr M. Krylovskiy, a lawyer practising in Tambov. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3.  The applicants alleged, in particular, a breach of their property rights.
4.  On 16 September 2016 the complaint concerning the applicants’ right to peaceful enjoyment of their possessions was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The first applicant was born in 1971 and lives in Leverkusen, Germany. She is the daughter of the second and third applicants who were born in 1943 and 1942 respectively and lived in Tambov, Russia. The second applicant Ms Galina Zabelina died in 2013.
6.  The facts of the case, as submitted by the parties, may be summarised as follows.
7.  On 25 April 2007 Mr P.Z., the brother of the first applicant and the son of the second and third applicants, was charged with large-scale fraud; his name was placed on the list of fugitives from justice. He was accused of embezzling the assets of the companies under his management. The wronged companies filed a claim for compensation in respect of pecuniary damage.
8.  On 12 May 2007 a senior operational officer from the Federal Security Service sent a letter to the investigator in charge of P.Z.’s case to inform him that “according to the available information, the real estate property owned by [the first applicant] (four flats) and by [the second applicant] (one flat) had been purchased at the expense of their close relative P.Z.”
9.  On 22 May 2007 the investigator asked the Basmannyy District Court in Moscow to authorise attachment of the applicants’ property, including three flats owned by the first applicant, a flat owned by the second applicant, and a car owned by the third applicant. He referred to undisclosed sources allegedly confirming that all that property had been purchased by P.Z.
10.  On 24 May 2007 the District Court issued the requested writs of attachment. It observed that, “according to the information from the investigation”, P.Z. had used the stolen money to purchase the property which he had registered in the name of his family members. It considered therefore necessary to attach the property which the District Court described as being owned by P.Z. The District Court explained that the application for writs was to be granted because “it [had been] lodged in the framework of a criminal case by the competent official and with the prosecutor’s approval, it [was] well-reasoned and [complied] with the requirements of the Code of Criminal Procedure”.
11.  The applicants filed an appeal. They produced evidence showing that they had paid for the impugned property out of their pocket and that the link to P.Z. was the investigator’s conjecture without basis in fact. They were not defendants in any criminal proceedings or respondents in any civil claim and there were no legal grounds for attaching their property.
12.  On 13 August 2007 the Moscow City Court rejected their appeals, stating that the District Court had “carefully reviewed the materials enclosed with the investigator’s request and reached the justified conclusion that there were sufficient grounds for seizing” the listed property.
13.  The attachment of the applicants’ property has remained in place to date.
Article II.	II.  RELEVANT DOMESTIC LAW
14.  For a summary of provisions relating to attachment of property in criminal proceedings, see Uniya OOO and Belcourt Trading Company v. Russia (nos. 4437/03 and 13290/03, § 242, 19 June 2014).
THE LAW
Article III.	I.  AS TO THE LEGAL CONSEQUENCES OF THE DEATH OF MS GALINA ZABELINA
15.  In the observations on the admissibility and merits of the application, Mr Viktor Zabelin and Ms Elena Eilders indicated their intention to pursue the proceedings also on behalf of their late wife and mother, Ms Galina Zabelina.
16.  The Court reiterates that in various cases where an applicant has died in the course of the proceedings, it has taken into account the statements of the applicant’s heirs or close family members who expressed the wish to pursue the proceedings before it (see Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI). It observes that the complaints raised by all the applicants were substantially similar and that the situations they complained about affected them in an equal measure. It therefore accepts that Mr Zabelin and Ms Eilders may pursue the application in so far as it was lodged by late Ms Zabelina (see Zabelin and Zabelina v. Russia, no. 55382/07, § 13, 4 October 2016, and Khuzhin and Others v. Russia, no. 13470/02, § 71, 23 October 2008).
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
17.  The applicants complained that the attachment of their property had been in breach of 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.”
Section 4.01	A.  Admissibility
18.  The Court considers 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.
Section 4.02	B.  Merits
19.  The Government submitted that they were unable to provide information about the grounds relied upon by the investigator in support of his application for the writ of attachment because the relevant materials had been destroyed after the end of the five-year keeping period. Nevertheless, they asserted that the courts had meticulously examined those materials and reached the well-founded conclusion that they had been sufficient grounds for attaching the applicants’ property.
20.  The applicants pointed out that, for the materials to be “meticulously examined in court”, the court should have been presented with at least some evidence that the property had been paid for by P.Z., but there had been none. The investigator’s assertion that the Federal Security Service knew that it was so did not qualify as evidence within the meaning of the Code of Criminal Procedure. The writs of attachment did not refer to any evidence and no such references were contained in the investigator’s applications, copies of which the applicants had produced before this Court. Moreover, the courts disregarded the applicants’ evidence capable of rebutting the investigator’s allegations and corroborating their position that the property had not been purchased at P.Z.’s expense. Finally, the applicants submitted that the attachment had not been lifted to date.
21.  The Court reiterates that the attachment of an applicant’s assets does not deprive him or her of the possessions, but provisionally prevents him or her from using them and from disposing of them, with a view to securing a possible award of damages in favour of the creditor. It involves an interference with the applicant’s right to peaceful enjoyment of his or her possessions and amounts to the control on the use of property which falls within the ambit of the second paragraph of Article 1 of Protocol No. 1 (see Maniscalco v. Italy (dec.), no. 19440/10, §§ 53-54, 2 December 2014, and Rafig Aliyev v. Azerbaijan, no. 45875/06, § 118, 6 December 2011).
22.  The Court further reiterates that, although the second paragraph of Article 1 of Protocol No. 1 contains no explicit procedural provisions, it has been its constant requirement that the domestic proceedings afford the aggrieved individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision (see Rummi v. Estonia, no. 63362/09, § 104, 15 January 2015; Denisova and Moiseyeva v. Russia, no. 16903/03, § 59, 1 April 2010; Jokela v. Finland, no. 28856/95, § 45, ECHR 2002-IV; and AGOSI v. the United Kingdom, 24 October 1986, § 55, Series A no. 108).
23.  The Court observes that, in issuing the writs of attachment on 24 May 2007, the District Court referred to a number of factual elements, such as the buying of the property by P.Z., the use of stolen money to finance the transaction, and its subsequent registration in the applicants’ name (see paragraph 10 above). The District Court did not explain how it had reached those conclusions, which “information from the investigation” had been produced before it to corroborate them or why it had considered that the application for writs of attachment had been “well-reasoned” (compare Rummi, cited above, § 83). The preliminary materials, including the communication from the Federal Security Service and the investigator’s application (see paragraphs 8 and 9 above), did not contain any corroboration of those assertions, either.
24.  The applicants asked the appeal court to review their evidence showing that they had paid for the property with their money and that they had been its legitimate owners (see paragraph 11 above). However, the Moscow City Court, in rejecting their appeal, made no mention of that evidence and did not subject the investigator’s assertions or the District Court’s uncorroborated conclusion to any meaningful scrutiny (compare Rummi, cited above, § 85). The applicants were thus denied the opportunity of obtaining a judicial review of the measures interfering with their property rights.
25.  There has accordingly been a violation of Article 1 of Protocol No. 1.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
26.  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.”
27.  The applicants asked the Court to require the Government to pay compensation, without specifying the amount claimed.
28.  The Government reiterated that Article 41 was to be applied in accordance with the Court’s case-law.
29.  The Court reiterates that it has accepted to examine claims in respect of non-pecuniary damage for which applicants did not quantify the amount, “leaving it to the Court’s discretion” (see Nagmetov v. Russia [GC], no. 35589/08, § 72, 30 March 2017, with further references). Making its own assessment, the Court awards the applicants jointly 6,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.
30.  The Court further notes that no claim in respect of pecuniary damage or costs and expenses has been made.
31.  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 that Mr Zabelin and Ms Eilders may pursue the application in so far as it was lodged by the late Ms Zabelina;

2.  Declares the application admissible;

3.  Holds that there has been a violation of Article 1 of Protocol No. 1;

4.  Holds
(a)  that the respondent State is to pay the applicants, within three months, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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.
Done in English, and notified in writing on 3 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President