I incorrectly predicted that there's no violation of human rights in ARZHIYEVA v. RUSSIA and 1 other application.
Information
- Judgment date: 2018-11-13
- Communication date: 2015-10-16
- Application number(s): 66590/10;3773/11
- Country: RUS
- Relevant ECHR article(s): P1-1
- Conclusion:
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.611655
- Prediction: No violation
Inconsistent
Legend
Communication text used for prediction
Applications nos 66590/10 and 3773/11Patimat ARZHIYEVA against Russiaand Akhmed TSADAYEV against Russialodged on 18 October 2010 and 2 December 2010 respectively A.
The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants are (or were, at the relevant time) residents of Chechnya.
Their property has been damaged or destroyed in the course of the anti-terrorist operation, mostly in 1999 – 2000.
The applicants did not pursue criminal remedies in order to determine the exact circumstances or perpetrators of the damage.
Instead, they sought to obtain a no-fault compensation provided for by the Government Decree No.
404 (see below).
The applicants complied with the requirements of applying for the compensation and submitted the documents as required.
However, for administrative reasons, their claims haven’t been processed.
It should be stressed that the applicants’ applications have not been rejected.
Their individual situations can be summarised as follows.
1.
Application no 66590/10 lodged on 18 October 2010 by Patimat Arzhiyeva, who was born in 1949 and currently lives in Strasbourg, France.
The applicant’s flat was damaged during the hostilities in 1994 -1995, and then destroyed in 1999-2000.
It was situated in a 70-flat apartment block at 21, Tereshkova Street in Grozny, Chechnya.
In March 2005 the applicant submitted an application for administrative compensation to the Compensation Commission (Комиссия по рассмотрению заявлений граждан о компенсационных выплатах за утраченное жилье и имущество, thereafter “the Commission”).
She received acknowledgment of receipt of documents no.
22/9777.
In April 2005 the Leninskiy District Court of Grozny confirmed the applicant’s right to property for flat no.
25 in the destroyed housing block at 21, Tereshkova Street.
In 2007 the applicant was registered as a person eligible for social housing because her flat had been destroyed during the hostilities.
She was assigned number 742 in the waiting list.
In June 2010 the applicant was informed that her application was not considered by the Commission since the building in question has not been included into the register of destroyed buildings.
The register was to be formed by the technical group of the Federal Authority on construction and communal services (техническая группа Федерального агентства по строительству и ЖКХ по формированию перечня разрушенного жилья на территории Чеченской республики, thereafter “the technical group”).
However, in August 2005 the work of the technical group has been put on hold and the list of destroyed housing hasn’t been updated since that time.
In such circumstances, the applicant’s application has not been processed and no decision has been taken.
The applicant complained to a district court against the Commission’s failure to act.
On 12 August 2010 the Staropromyslovskiy District Court of Grozny rejected the applicant’s claim, pointing out that the Commission was unable to proceed in the absence of the correspondent entry in the register.
On 7 September 2010 the Supreme Court of Chechnya on appeal confirmed the judgment.
The applicant’s subsequent attempts to obtain supervisory review were unsuccessful.
In 2011 she was informed by the Commission’s secretariat that the technical group has not been operational since 2005 and that the Commission was not aware whether and when it would restart its work.
The applicant instituted civil proceedings, seeking damages for the destroyed property directly from the Government of Chechnya.
On 21 March 2013 the Leninskiy District Court of Grozny rejected the applicant’s claim, referring to the expiration of the time-limit and lack of legal grounds for such claims.
On 28 May 2013 the Supreme Court of Chechnya upheld the decision, except the reliance on the prescription term.
The Supreme Court stressed that the compensation could not be paid because the new procedure for the payment of compensations was being developed.
2.
Application no 3773/11 lodged on 2 December 2010 by Akhmed Tsadayev, who was born in 1984 and lives in Grozny, Chechnya.
The applicant owned flat no.
12 in an apartment block at 53, Kavkazskaya Street, Grozny.
The building was destroyed during the hostilities in 1999 - 2000.
In November 2004 the applicant applied to the Commission and his file was assigned number 02/13975.
In 2008 the applicant was registered as a person eligible for social housing because his flat had been destroyed during the hostilities.
He was assigned number 1569 in the waiting list; in 2010 his number was 1689.
In April 2010 he was informed that his application was not considered by the Commission since the building in question has not been included into the register of destroyed buildings.
The applicant complained to a court.
On 5 July 2010 the Staropromyslovskiy District Court of Grozny rejected his complaint since the Commission was unable to proceed in the absence of the technical group’s register.
On 10 August 2010 the Supreme Court of Chechnya confirmed the decision on appeal.
The applicant sought to obtain damages from the Government of Chechnya for the lost property and failure to compensate the damages otherwise.
His claim was dismissed for failure to comply with prescription period by the Leninskiy District Court of Grozny on 27 June 2013; confirmed on appeal on 7 November 2013 by the Supreme Court of Chechnya.
B.
Relevant domestic law and practice 1.
Code of Criminal Procedure Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR.
On 1 July 2002 the old Code was replaced by the Russian Code of Criminal Procedure (“the CCP”).
Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.
2.
Civil Code Article 1069 provides that a State agency or a State official will be liable towards a citizen for damage caused by their unlawful actions or failure to act.
Compensation for such damage will be awarded at the expense of the federal or regional treasury.
3.
Suppression of Terrorism Act The Federal Law on Suppression of Terrorism of 25 July 1998 (Федеральный закон от 25 июля 1998 г.
No 130-ФЗ «О борьбе с терроризмом» – “the Suppression of Terrorism Act”), as in force at the relevant time, provided as follows: Section 3.
Basic Concepts “For the purposes of the present Federal Law the following basic concepts shall be applied: ... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of consequences of terrorist activities; ‘counter-terrorism operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; ‘zone of a counter-terrorism operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorism operation is conducted; ... ” Section 21.
Exemption from liability for damage “On the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of a counter-terrorism operation.
However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” 4.
Presidential and governmental decrees In Decree no.
510 of 30 April 1997 the Russian Government established that residents of the Chechen Republic who had lost their housing and/or other possessions during the hostilities in the Republic and who, no later than 12 December 1994, had left permanently for another region, were entitled to compensation.
The Government Decree no.
404 of 4 July 2003 established the right of all permanent residents of the Chechen Republic who had lost their housing and any possessions therein after 12 December 1994 to receive compensation up to maximum amount of RUB 300,000 for the housing and RUB 50,000 for the other possessions.
The decree was subsequently changed on several occasions, most notably in 2008 the Ministry of Regional development (instead of the Federal Authority on construction and communal services) was appointed to be in charge of implementing its provisions and in 2012 its application has been extended beyond the initially previewed period of 2003 -2004.
As it appears from the relevant documents, three presidential directions (поручения Президента) were issued to the competent Government agencies with the aim to solve the problems with compensations: in August 2006 (no.
1325), June 2007 (no.
1094) and September 2010 (no.
2736).
According to various official letters submitted by the applicants, since 2009 the Ministry of Regional development has been developing the new scheme of compensation to the affected persons.
5.
The courts’ practice On 20 December 2005 the Constitutional Court of the Russian Federation refused to consider in substance complaints about the constitutionality of the Government Decrees nos.
510 and 404.
In its decision the Court stressed that “these Government Decrees are specific legislative acts which establish simplified procedures in order to allow the affected individuals to restore their rights and to obtain certain compensations, they do not limit and do not exclude the application of the general norms of civil law which govern property rights, compensation of damage etc.
These questions remain to be resolved by the courts of general jurisdiction upon claims by individuals who seek to vindicate their rights, upon full establishment of all factual circumstances of each case”.
On 14 September 2010 the Supreme Court of the Russian Federation issued a decision upon a motion brought by a Grozny resident I.
She sought to declare some provisions of Decree no 510 unconstitutional since they could be interpreted as preventing her from obtaining full compensation for the lost property.
The Supreme Court stressed that the Decree in question set up a simplified procedure to obtain additional measure of social relief open to a wide group of affected individuals.
It was not intended to compensate fully for the losses sustained, but did not prevent those willing to do so to pursue civil remedies in the usual manner.
Judgment
THIRD SECTIONCASE OF ARZHIYEVA AND TSADAYEV v. RUSSIA
(Applications nos. 66590/10 and 3773/11)
JUDGMENT
STRASBOURG
13 November 2018
FINAL
13/02/2019
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Arzhiyeva and Tsadayev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Vincent A. De Gaetano, President,Branko Lubarda,Helen Keller,Dmitry Dedov,Pere Pastor Vilanova,Alena Poláčková,María Elósegui, judges,and Stephen Phillips, Section Registrar,
Having deliberated in private on 16 October 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 66590/10 and 3773/11) 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, Ms Patimat Arzhiyeva (“the first applicant”) and Mr Akhmed Tsadayev (“the second applicant”), on 18 October and 2 December 2010 respectively. 2. The first applicant, who was granted legal aid, was represented by Mr V.V. Kulapov, a lawyer practising in Saratov. The Russian Government (“the Government”) were represented 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 complained, in particular, of a breach of their right to property as a result of their inability to obtain compensation for the property lost during a counterterrorist operation in Chechnya. 4. On 19 October 2015 notice of the applications was given to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The first applicant was born in 1949 and lives in Strasbourg, France. The second applicant was born in 1984 and lives in Grozny, Chechnya, Russia. 6. At the relevant time the applicants were residents of Grozny, Chechnya. Their property was damaged in the course of a counterterrorist operation in 1999-2000. The applicants did not pursue criminal remedies in order to determine the exact circumstances or identify the perpetrators of the damage. Instead, they sought to obtain no-fault compensation provided for by Government Decree no. 404 (see below). The applicants complied with the requirements for applying for the compensation and submitted the relevant documents. However, for administrative reasons their claims were not processed until September 2013. Their individual situations can be summarised as follows. A. Application no. 66590/10
7. The first applicant’s flat was damaged during the hostilities in 1994‐1995, and then destroyed in 1999-2000. It was situated in a 70-flat apartment block at 21 Tereshkova Street in Grozny, Chechnya. 8. In March 2005 the first applicant submitted an application for administrative compensation to the Commission for compensation for lost property (Комиссия по рассмотрению заявлений граждан о компенсационных выплатах за утраченное жилье и имущество, hereafter “the Commission”). She received an acknowledgment of receipt of documents (no. 22/9777). 9. In April 2005 the Leninskiy District Court of Grozny confirmed the first applicant’s title to property of flat no. 25 in the destroyed apartment block at 21 Tereshkova Street. 10. In 2007 the first applicant was registered as a person eligible for social housing because her flat had been destroyed during the hostilities. She was assigned number 742 in the waiting list; in February 2016 her number was 727. 11. In June 2010 the applicant was informed that her application had not been examined by the Commission since the building in question had not been entered in the register of destroyed buildings. The register was to be updated by the technical unit of the Federal authority on construction and municipal services (техническая группа Федерального агентства по строительству и ЖКХ по формированию перечня разрушенного жилья на территории Чеченской республики, hereafter “the technical unit”). However, in August 2005 the work of the technical unit had been put on hold and the list of destroyed housing has not been updated since that time. Hence, the first applicant’s application has not been processed and no decision has been taken. 12. The first applicant complained to a district court about the Commission’s failure to act. On 12 August 2010 the Staropromyslovskiy District Court of Grozny rejected the first applicant’s claim, pointing out that the Commission was unable to proceed in the absence of the corresponding entry in the register. On 7 September 2010 the Supreme Court of Chechnya upheld that judgment on appeal. The first applicant’s subsequent attempts to obtain supervisory review were unsuccessful. 13. In 2011 she was informed by the Commission’s secretariat that the technical unit had not been operational since 2005 and that the Commission did not know whether or when it would restart its work. 14. The first applicant instituted civil proceedings, seeking damages for the destroyed property directly from the Government of Chechnya. On 21 March 2013 the Leninskiy District Court of Grozny rejected the first applicant’s claim, referring to the expiry of the time-limit and the lack of legal grounds for such claims. On 28 May 2013 the Supreme Court of Chechnya upheld that decision, except the part referring to expiry of the limitation period. The Supreme Court stressed that compensation could not be paid because a new procedure for the payment of compensation was currently being devised. B. Application no. 3773/11
15. The second applicant owned flat no. 12 in an apartment block at 53 Kavkazskaya Street, Grozny. The building was destroyed during the hostilities in 1999-2000. 16. In November 2004 the second applicant applied to the Commission and his file was assigned number 02/13975. 17. In 2008 the applicant was registered as a person eligible for social housing because his flat had been destroyed during the hostilities. He was assigned number 1599 in the waiting list; in 2016 his number was 1579. 18. In April 2010 he was informed that his application had not been examined by the Commission since the address in question had not been entered in the register of destroyed buildings. 19. The second applicant complained to a court. On 5 July 2010 the Staropromyslovskiy District Court of Grozny rejected his complaint since the Commission was unable to proceed in the absence of the technical unit’s register. On 10 August 2010 the Supreme Court of Chechnya upheld the decision on appeal. 20. The second applicant sought to obtain damages from the Government of Chechnya for the damaged property and for failure to compensate the damage by alternative means. His claim was dismissed for failure to comply with the limitation period in a judgment of the Leninskiy District Court of Grozny of 27 June 2013, upheld on appeal on 7 November 2013 by the Supreme Court of Chechnya. C. Documents submitted by the parties after communication of the complaints
21. The Government submitted a letter issued by the Chechen Government on 13 January 2016, in response to a request for information in relation to the applicants’ situation. The letter stated that the Commission had ceased to exist in January 2014. It had held a final meeting on 16 September 2013 and, according to the minutes of the meeting (no. 61), had rejected all claims lodged by the owners of property which had not been entered in the register of destroyed buildings. Both applicants were in that category. In respect of the first applicant, the letter stated that her house had been inspected by the technical unit, which had confirmed its destruction (without specifying the date or any reference to the inspection record); however, for unknown reasons the building had not been entered in the register. The second applicant’s house had been inspected by the technical unit, which had found that it had not been destroyed (without specifying the date or any reference to the inspection record). The letter concluded by saying that all documents relevant to the individuals’ claims for compensation had been transferred to the Chechnya Government Archives Service for storage. No additional documents were submitted by the Government, and it is unclear whether the applicants were informed of the Commission’s decision. 22. The second applicant also submitted additional documents dating back to 2008 and 2010, confirming destruction of the apartment block where he had owned a flat. In February 2008 the local district administration examined flat no. 12 at 53 Kavkazskaya Street, Grozny, and concluded that it had been 100% destroyed. The applicant was issued with a certificate to that effect. On 24 May 2010 the local administration examined the building at 53 Kavkazskaya Street and found that it had been demolished. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Presidential and governmental decrees
23. In Decree no. 510 of 30 April 1997 the Russian Government established that residents of the Chechen Republic who had lost their housing and/or other possessions during the hostilities in the Republic and who, no later than 12 December 1994, had left permanently for another region were entitled to compensation. 24. Government Decree no. 404 of 4 July 2003 established the right of all permanent residents of the Chechen Republic who had lost their housing and any possessions therein after 12 December 1994 to receive compensation up to a maximum amount of 300,000 Russian roubles (RUB) for housing and RUB 50,000 for other possessions. The decree was subsequently changed on several occasions; most notably, in 2008 the Ministry of Regional Development (in lieu of the Federal Authority on construction and municipal services) was put in charge of implementing its provisions. In 2012 its application was extended beyond the initially determined period of 2003-2004. According to the Government, between 2003 and 2012 compensation payments were made to 85,151 people in a total sum of RUB 29,802.8 million. 25. As can be seen from the relevant documents, three presidential directives (поручения Президента) were issued by the President of Russia to the competent Government agencies with the aim of resolving the compensation issues in August 2006 (no. 1325), June 2007 (no. 1094) and September 2010 (no. 2736). According to various official letters furnished by the applicants, since 2009 the Ministry of Regional Development has been developing a new scheme of compensation for the persons affected. 26. On 22 January 2014 the Head of the Chechnya Government passed Decree no. 10 putting the Chechnya Archive Service in charge of storing documents concerning compensation for lost property. 27. On 27 November 2015 the Ministry of the Russian Federation on matters concerning the Northern Caucasus issued order no. 179, setting up an inter-agency working group. Its mandate included developing measures of State support for persons who had lost their homes during the crisis in Chechnya. B. The courts’ practice
28. On 20 December 2005 the Constitutional Court of the Russian Federation refused to examine in substance complaints about the constitutionality of Government Decrees nos. 510 and 404. In its decision the Court stressed that “these Government Decrees are specific legislative acts which establish simplified procedures enabling affected individuals to have their rights restored and to obtain certain compensation; they neither limit nor exclude the application of the general rules of civil law governing property rights, compensation for damage and so on. These questions remain to be resolved by the courts of general jurisdiction following claims by individuals seeking to vindicate their rights, upon full establishment of all the factual circumstances of each case”. 29. On 14 September 2010 the Supreme Court of the Russian Federation issued a decision following an application brought by Mrs I., a Grozny resident. She sought to have certain provisions of Decree no. 510 declared unconstitutional since they could be interpreted as preventing her from obtaining full compensation for destroyed property. The Supreme Court stressed that the Decree in question set up a simplified procedure for obtaining an additional measure of social relief available to a wide group of affected individuals. It was not intended to compensate fully for the losses sustained, but did not prevent those willing to do so from pursuing civil remedies in the usual manner. THE LAW
I. JOINDER OF THE APPLICATIONS
30. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their factual and legal similarities. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
31. The applicants complained of an interference with their right to peaceful enjoyment of possessions, as provided in Article 1 of Protocol No. 1 to the Convention, 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.”
32. The Government contested that argument. A. Admissibility
33. The Government submitted that the applicants had failed to exhaust domestic remedies because they had not lodged cassation appeals with the Supreme Court of Russia. They relied on Abramyan and Others v. Russia ((dec.), nos. 38951/13 and 59611/13, 12 May 2015). 34. The Court has already rejected similar objections by the Russian Government in cases where the applicants had lodged their applications before the Court had reached the decision in Abramyan and Others (cited above, §§ 76-96, where the Court recognised the new cassation appeal procedure as an effective remedy; see, for example, Novruk and Others v. Russia, nos. 31039/11 and 4 others, §§ 70-76, 15 March 2016; Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 64-69, 29 March 2016; and McIlwrath v. Russia, no. 60393/13, §§ 85-95, 18 July 2017). For the same reasons, the Court rejects the Government’s objection as to the non-exhaustion of domestic remedies in respect of failure to appeal to the cassation courts. 35. Next, the Government were of the opinion that once the applicants had learnt that the technical unit had ceased to function, they should have sought to establish the state of the respective buildings through other means, for instance by applying to the courts in order to establish the relevant facts. 36. The applicants contested the effectiveness of that remedy. They argued that even though it was not a matter of dispute that the buildings had been destroyed, the corresponding register had not been updated after the technical unit’s demise. 37. The Court notes that both applicants had appealed against the Commission’s actions to the courts. In both cases their complaints were dismissed and the courts ruled that the Commission was unable to proceed in the absence of the corresponding entry in the register, which was dependant on the technical unit’s work (see paragraphs 12 and 19 above). It therefore appears that the remedy suggested by the Government has been ineffective in the circumstances. No domestic practice has been put forward by the Government to prove otherwise. This part of their objection should therefore be dismissed as well. 38. The Court 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. The parties’ observations
39. The applicants submitted that they had a statutory entitlement to receive compensation for the property destroyed during the counterterrorist operation. For administrative reasons, their duly lodged claims had not been processed for years. The administrative authorities and courts acknowledged that they were entitled to a decision on compensation, but refused to apply any other mechanism of compensation even though the processing of their claims had been blocked. Referring to the Court’s case‐law (Malysh and Others v. Russia, no. 30280/03, § 85, 11 February 2010, and Yuriy Lobanov v. Russia, no. 15578/03, § 54, 2 December 2010), the applicants alleged that there had been a disproportionate interference with their right to property. 40. The Government contested that claim. 2. The Court’s assessment
(a) Existence of a possession
41. The first question to be determined is whether the applicants had a “possession” within the meaning of Article 1 of Protocol No. 1. 42. The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‐IX). “Possessions” can be “existing possessions” or claims that are sufficiently established to be regarded as “assets” (ibid.). Where a proprietary interest is in the nature of a claim, it may be regarded as an “asset” only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it) and the claim is sufficiently established to be enforceable (see Kopecký, cited above, §§ 49 and 52, and Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301‐B). 43. The Court has also accepted as “possessions” claims in respect of which an applicant can argue that he or she has at least a “legitimate expectation” that they will be realised, that is, that he or she will obtain effective enjoyment of a property right (see, inter alia, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002‐VII, and Kopecký, cited above, § 35). However, a legitimate expectation has no independent existence; it must be attached to a proprietary interest for which there is a sufficient legal basis in national law (see Kopecký, cited above, §§ 45-53). 44. Turning to the applicants’ complaints, the Court notes that both had lost their property during the counterterrorist operations in Chechnya. The case is different from those in which the applicants have claimed that the Government had been directly responsible for the damage caused to their property but were unable to submit sufficient evidence in that respect (see Umarov v. Russia (dec.), no. 30788/02, 18 May 2006, and Trapeznikova v. Russia, no. 21539/02, § 108, 11 December 2008). It is also different from the situation of those who could directly point to the State authorities as the perpetrators of the acts and therefore claim compensation for the torts, unjustifiably denied by the domestic courts (see Khamidov v. Russia, no. 72118/01, § 137, 15 November 2007, and Miltayev and Meltayeva v. Russia, no. 8455/06, §§ 50-57, 15 January 2013). 45. The crux of the applicants’ complaints concerns the malfunctioning of the administrative procedure set up to cover pecuniary losses sustained during the counterterrorist operations. Under Government Decree no. 404 of 4 July 2003 (see paragraph 28 above), such compensation was available to anyone who could prove that his or her property had been damaged “during” the counterterrorist operation. This scheme did not require identification of the perpetrator of the damage and made it simpler for the numerous victims to obtain financial compensation. Nor did it regard a criminal investigation as a precondition for the establishment of the facts and apportioning responsibility for the damage (see, conversely, Menteş and Others v. Turkey, 28 November 1997, § 89, Reports of Judgments and Decisions 1997 VIII; Doğan and Others v. Turkey, nos. 8803/02 and 14 others, § 106, ECHR 2004‐VI (extracts); and, in the Russian context, Khamzayev and Others v. Russia, no. 1503/02, § 154, 3 May 2011). The compensation was calculated on the basis of a maximum amount, depending on the property type and the family size. The Government reported that more than 85,000 people had been compensated under the scheme between 2004 and 2012 (see paragraph 28 above). 46. Both applicants produced strong prima facie evidence of ownership and destruction of their property during the hostilities. Their claims and accompanying documents were accepted for review by the Commission (see paragraphs 8-10 and 16, 17 and 22 above). 47. However, as noted above, the Commission was unable to proceed with their claims for a technical reason: the list of destroyed houses had not been updated since August 2005 owing to the disbanding of the authority responsible for the register. The Commission’s decision of September 2013, cited in the letter of January 2016, indicated that it had refused to consider the claims where the buildings had not been entered in the register in question (see paragraph 21 above). 48. In such circumstances, the Court finds that the applicants had at least a “legitimate expectation” that their claims would be determined in line with the Decree provisions, and this expectation was sufficiently established in the national law to give rise to the notion of “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. (b) Nature of the interference
49. The Court has explained in Malysh and Others (cited above §§ 74‐75), that the exact boundaries between the State’s positive and negative obligations under Article 1 of Protocol No. 1 are difficult to define. The applicable principles and criteria to justify interference or lack of positive action are, however, rather similar. In particular, in both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. 50. The applicants in the present case were unable to have their claims examined owing to an administrative shortcoming. The management of the technical unit and the updating of the register fell exclusively under the authority of the State. The Court finds that the competent Commission’s inability to process the applicants’ claims since 2005 and its ultimate rejection of those claims without individual examination has effectively prevented the applicants from having their claims determined in line with the Decree’s provisions. This situation amounted to a restriction on the applicants’ property rights in the form of “legitimate expectation”. (c) Lawfulness, legitimate aim and whether the interference struck a fair balance
51. The parties submitted no observations on whether the restriction at issue was lawful and pursued a legitimate aim. The Court does not find it necessary to dwell on these questions, in view of the analysis below. 52. On the question of the striking of a fair balance between the general interest and the applicants’ rights, the rule of law underlying the Convention and the principle of lawfulness in Article 1 of Protocol No. 1 to the Convention require States not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a corollary of this duty, to ensure the legal and practical conditions for their implementation (see Malysh and Others, § 82, and Yuriy Lobanov, § 51, both cited above). 53. Turning to the applicants’ claims, the Court remarks that the disbanding of the technical unit in August 2005 made it virtually impossible for the applicants to have their claims for compensation reviewed. The Court has already concluded that this amounted to a restriction on their “legitimate expectation” to have such claims examined (see paragraph 50 above). Admittedly, a number of steps have been taken over the years with the aim of finding a solution for pending compensation claims. These steps would presumably be of direct concern to those whose compensation claims had been “frozen” in the absence of a corresponding entry in the register. The documents submitted by the parties show that successive agencies were tasked with accelerating the payment of compensation. Since 2015 the Federal Ministry on matters concerning the Northern Caucasus has been in charge of this matter (see paragraphs 29-31 above). In May 2013 the Chechnya Supreme Court referred to a new procedure for compensation being under way (see paragraph 14 above). 54. Despite these developments, the applicants’ claims have not been examined in substance. In September 2013 the Commission summarily rejected all claims where there had been no corresponding entry in the register, without individual reasoning. It is possible that some of the claims rejected had indeed been based on incorrect information and the buildings had not suffered the damage alleged. As to the applicants in the present case, they submitted sufficient evidence that their dwellings had been destroyed and various authorities cited the absence of entry in the register as the only reason why their claims had not been processed earlier. In the absence of more detailed information from the Government the Court is unable to speculate on the matter, which suffices to conclude that there is no evidence that a proper assessment of the applicants’ circumstances has taken place. 55. The applicants lost their property and houses in the course of the counterterrorist operation in the Chechen Republic that was characterised by a period of civil strife and virtual breakdown of law and order. In the absence of sufficient evidence as to the identity of the perpetrator of the tort, and due to the passage of time, it would be impossible for them to secure the prosecution of the culprits or obtain civil compensation for their losses. The scheme that was created to ensure the simplified and speedy processing of such claims had turned out to be inaccessible owing to an administrative hurdle which was entirely outside their control. There is no indication that the applicants were responsible for, or culpably contributed to, the state of affairs which they complained about (compare Malysh and Others, § 84, and Yuriy Lobanov, § 53, both cited above). 56. Nor can it be said that the applicants remained passive in view of the authorities’ inaction: they made requests to the competent authorities and lodged claims with the domestic courts. Those steps did not bring about any change in their circumstances and no progress has been achieved in reviewing their claims for compensations. 57. In the light of the above, the Court finds that the Russian Government have been unable to put forward satisfactory justification for their failure, since 2005, to meet the legitimate expectation that well-founded claims for compensation would be dealt with. They thus failed to implement a solution that would enable the Commission to process the claims and to award compensation to the applicants, taking into account their individual circumstances. This was incompatible with the obligation arising under Article 1 of Protocol No. 1 to secure the peaceful enjoyment of possessions, and notably with the duty to act in good time and in an appropriate and consistent manner where an issue of general interest is at stake (see Malysh and Others, § 85, and Yuriy Lobanov, § 54, both cited above). 58. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
59. The applicants also complained of a violation of the right to an effective domestic remedy. They relied on Article 13 of the Convention. 60. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 61. Having regard to the finding relating to Article 1 of Protocol No. 1 to the Convention (see paragraph 58 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
62. 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
63. The first applicant claimed 6,976,410 Russian roubles (RUB), in respect of pecuniary damage. This sum, in her calculation, corresponded to the cost of a 70 m2 flat in the apartment blocks located in the vicinity of the place where her house had been situated. She also claimed 50,000 euros (EUR) in non-pecuniary damage. 64. The second applicant claimed the amount that would be due to him under Decree no. 404, which he estimated at EUR 30,000. He estimated the cost of the apartment at EUR 25,000 and the household items at EUR 10,000. In addition, he requested EUR 15,000 in compensation for non-pecuniary damage caused to him by the breach of his property right. 65. The Government observed that the applicants’ claims were based on their inability to obtain compensation, the maximum amount of which was limited to RUB 350,000. They pointed out that the applicants’ calculations of the cost of an apartment and household items had not been supported by any relevant evidence and remained speculative. 66. The Court finds that there exists a causal link between the violation of the applicants’ right to respect of their property and the pecuniary loss incurred. Taking into account the parties’ submissions and the nature of the violation found, it awards each of the applicants EUR 4,600 in respect of pecuniary damage. 67. It further awards each of the applicants EUR 5,000 in respect of non-pecuniary damage. B. Costs and expenses
68. The applicants did not claim reimbursement of any costs and expenses. No award is made under this head. C. Default interest
69. 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. Joins the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
4. Holds that there is no need to examine the complaint under Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay to each of 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; the award to the second applicant to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 4,600 (four thousand six hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 5,000 (five 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;
6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 13 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsVincent A. De GaetanoRegistrarPresident