Постановление ЕСПЧ от 01.12.2016 <Дело Томина и другие (Tomina and Others) против России> (жалобы N 20578/08, 21159/08, 22903/08, 24519/08, 24728/08, 25084/08, 25558/08, 25559/08, 27555/08, 27568/08, 28031/08, 30511/08, 31038/08, 45120/08, 45124/08, 45131/08, 45133/08, 45141/08, 45167/08 и 45173/08) [англ.] – 2

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III. Application of Article 41 of the Convention

 

  1. 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.”

 

  1. Damage

 

  1. The applicants’ claims in respect of pecuniary and non-pecuniary damage are summarised in the table below:
Application no. Claim in respect of pecuniary damage Claim in respect of non-pecuniary damage
20578/08 Restoration of the applicant’s title to the property 10,000 euros (EUR)
21159/08 900,000 roubles (RUB) in order to buy an equivalent property None
22903/08 Restoration of the applicant’s title to the property EUR 20,000
24519/08 EUR 30,000
24728/08 EUR 30,000
25084/08 EUR 30,000
25558/08 EUR 20,000
25559/08 EUR 30,000
27555/08 EUR 20,000
27568/08 EUR 20,000
28031/08 EUR 30,000
30511/08 EUR 30,000
31038/08 EUR 100,000
45120/08 EUR 30,000 in order to buy an equivalent property EUR 100,000
45124/08 Restoration of the applicant’s title to the property EUR 30,000
45131/08 EUR 50,000
45133/08 EUR 30,000
45141/08 EUR 60,000
45167/08 EUR 10,000
45173/08 RUB 600,000 to each of the applicant EUR 40,000

 

  1. The Government submitted that the claims lodged by Mr Andriyevsky (application no. 21159/08) and Ms Anisimova (application no. 45120/08) were excessive. They also asserted that the rest of the applicants were not entitled to restoration of their title to the property.
  2. The Court takes into account that the fact that it has found a violation of the applicants’ rights as guaranteed by Article 1 of Protocol No. 1 to the Convention in the present case. It considers that there is a clear link between the violation found and the damage caused to the applicants.

 

  1. Pecuniary damage

 

  1. As regards compensation of pecuniary damage, the Court reiterates that normally, the priority under Article 41 of the Convention is restitutio in integrum, as the respondent State is expected to make all feasible reparation for the consequences of the violation, in such a manner as to restore as far as possible the situation existing before the breach (see, among other authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85; Tchitchinadze v. Georgia, no. 18156/05, § 69, 27 May 2010; Fener Rum (Ecumenical Patriarchy) v. Turkey (just satisfaction), no. 14340/05, § 35, 15 June 2010; and Stoycheva v. Bulgaria, no. 43590/04, 19 July 2011).
  2. The Court observes that all the applicants, except for Mr Andriyevskiy (application no. 21159/08), Ms Anisimova (application no. 45120/08) and Ms Vasyukhina and Mr Vasyukhin (application (no. 45173/08) asked for the restoration of the title to the rooms. Having regard to its findings and the fact that the applicants are still living in the premises, the Court considers that the most appropriate form of redress would be the restoration of the applicants’ title to the rooms. Thus, as far as possible, the applicants would be put in a situation equivalent to the one in which they would have been had there not been a breach of Article 1 of Protocol No. 1 to the Convention (compare Gladysheva, cited above, § 106).
  3. The Court considers that the same finding holds true in respect of Mr Andrievskiy and Ms Anisimova, who asked for certain sums to be paid so that they could buy comparable housing for themselves (compare, Gladysheva, ibid., in which the Court decided that the applicant would be put as far as possible in a situation equivalent to the one in which she would have been had there not been a breach of her rights, even though the applicant asked for a pecuniary award).
  4. As to Ms Vasyukhina and Mr Vasyukhin (application no. 45173/08), The Court is considers that the question of the application of Article 41, in so far as it concerns pecuniary damage, is not ready for a decision (Rule 75 § 1 of the Rules of Court). Accordingly, it reserves that question and the further procedure, and invites the Government and the applicants, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, to submit their observations on the matter and, in particular, to inform it of any agreement that they may reach.

 

  1. Non-pecuniary damage

 

  1. The Court further notes that Mr Andriyevskiy (application no. 21159/08) did not submit a claim in respect of non-pecuniary damage. Accordingly, the Court considers that there is no call to award him any sum on that account.
  2. As regards the remaining parts of the applications, the Court has no doubt that the applicants have suffered distress and frustration on account of being deprived of their possessions. Making its assessment on an equitable basis, the Court awards EUR 5,000 in each application in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

 

  1. Costs and expenses

 

  1. Mr Andriyevskiy (application no. 21159/08) and Ms Kobina (application no. 2555/08) did not submit claims for costs and expenses. Accordingly, the Court considers that there is no call to award them any sum on that account.
  2. Ms Anisimova (application no. 45120/08) claimed RUB 8,009.40 and RUB 4,000 in respect of the legal costs and expenses incurred in the proceedings before the domestic courts and the Court respectively. She further claimed postal expenses (RUB 509.40), translation costs (RUB 3,000), and the costs of issuing a certificate relating to her eyesight (RUB 500).
  3. The remaining applicants claimed EUR 16,800 in respect of their joint legal costs and expenses incurred in the proceedings before the Court. According to the documents submitted, their representatives spent over 156 hours working on the case.
  4. Ms Russkova (application no. 45141/08) and Mr Bolshakov (application no. 45167/08) also claimed compensation for postal expenses in the amount of RUB 2,470 and RUB 1,715 respectively.
  5. Lastly, Threefold Legal Advisors claimed EUR 328 for proofreading their memorandum and RUB 3,010 for postal expenses incurred in posting the applicant’s authority forms.
  6. The Government submitted that the expenses incurred by Ms Anisimova in obtaining a medical certificate had no link to her application before the Court. Nor should she be entitled to the reimbursement of her legal expenses relating to the proceedings before the Court, since she had entered into a contingency agreement with her lawyer, and such an agreement was null and void under Russian law. The Government also submitted that the legal fee paid by the applicants to Threefold Legal Advisors was excessive and unnecessary.
  7. According to the Court’s case-law, an applicant is entitled to the 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. Regard being had to the documents in the Court’s possession and the above criteria, the Court considers it reasonable to award the applicants the following sums in respect of their claims for costs and expenses:
Application no. Amount awarded
20578/08 EUR 280
22903/08 EUR 280
24519/08 EUR 280
24728/08 EUR 280
25084/08 EUR 280
25559/08 EUR 280
27555/08 EUR 280
27568/08 EUR 280
28031/08 EUR 280
30511/08 EUR 280
31038/08 EUR 280
45120/08 EUR 310
45124/08 EUR 280
45131/08 EUR 280
45133/08 EUR 280
45141/08 EUR 330
45167/08 EUR 315
45173/08 EUR 280

 

  1. Default interest

 

  1. 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 to join the applications;
  2. Declares the complaints under Article 1 of Protocol No. 1 to the Convention admissible;
  3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
  4. Holds in respect of application no. 45173/08, that the question of the application of Article 41, in so far as it concerns the claim for pecuniary damages, is not ready for decision;

accordingly,

(a) reserves the said question;

(b) invites the Government and the applicants to submit, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and to notify the Court of any agreement that they may reach;

(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be;

  1. Holds in respect of the remainder of the applications, that the respondent State shall ensure, by appropriate means, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, full restoration of the applicants’ title to the rooms in the building;
  2. Holds

(a) that the respondent State is to pay the applicants in each application, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the amounts indicated in Appendix II, plus any tax that may be chargeable to the applicants;

(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;

  1. Dismisses the remainder of the applicants’ claim for just satisfaction.

 

Done in English, and notified in writing on 1 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President
Stephen PHILLIPS Registrar

 

Appendix I

DETAILS OF THE APPLICATIONS

No. Application no. Lodged on Applicant name

date of birth

place of residence

Description of the real property Date of the registration of the applicants’ titles to the real property Representative
1. 20578/08 06/08/2008 Valentina Stepanovna TOMINA

05/11/1949

Rooms nos. 22, 23, 60 and 31, 5th floor, measuring 22.6 sq. m 3 November 2006 Threefold Legal Advisors
2. 21159/08 09/04/2008 Yuriy Anatolyevich ANDRIYEVSKIY

09/01/1968

Room no. 4, 4th floor, measuring 18.50 sq. m; room no. 5, 4th floor, measuring 18.50 sq. m; room no. 1, 10th floor, measuring 36.60 sq. m; room no. 20, measuring 16.10 sq. m; and room no. 23, measuring 10.80 sq. m 16 January 2004 and 2 October 2007; The applicant did not submit a copy of the title deed in respect of rooms nos. 20 and 23. A. Akhmedov
3. 22903/08 10/04/2008 Svetlana Aleksandrovna MARAKHTANOVA

01/09/1974

 

Room no. 21, 4th floor, measuring 12.20 sq. m 13 September 2002 Threefold Legal Advisors
4. 24519/08 08/04/2008 Eleonora Valeryevna ASTAPOVA

25/02/1972

 

Room nos. 1, 2, 3 and 38, 4th floor, measuring

22.60 sq. m

6 May 2003
5. 24728/08 24/04/2008 Sergey Aleksandrovich DESHIN

20/01/1976

Room no. 14, 1st floor, measuring 20.80 sq. m 12 July 2002
6. 25084/08 12/04/2008 Vladimir Sergeyevich PRIKOLOTIN

07/05/1972

Rooms nos. 12, 63 and 64, 3rd floor, measuring 18.20 sq. m 19 July 2007
7. 25558/08 10/04/2008 Anna Aleksandrovna KOBINA

14/02/1976

Room no. 22, 4th floor, measuring 12.20 sq. m 13 September 2002
8. 25559/08 10/04/2008 Olga Valeryevna LITVINOVA

11/09/1971

Rooms nos. 30, 31, 70 and 71, 3rd floor, measuring 25.30 sq. m 27 November 2006 Threefold Legal Advisors
9. 27555/08 24/04/2008 Aleksandr Vyacheslavovich KRIVKO

30/04/1953

Rooms nos. 20 – 22, 2nd floor, measuring 40.70 sq. m; Room no. 49, 2nd floor, measuring 10.20 sq. m; and Room no. 50, 2nd floor, measuring 6.80 sq. m 28 April and 23 August 2001
10. 27568/08 24/04/2008 Andrey Leonidovich MEDVEDEV

30/04/1953

Room no. 49, 2nd floor, measuring 10.20 sq. m 28 April 2001
11. 28031/08 10/04/2008 Pavel Ivanovich SISIGIN

04/11/1977

Room no. 34, 5th floor, measuring 13.10 sq. m (12.50 sq. m according to the judgment of 14 – 19 November 2007) 28 November 2002
12. 30511/08 10/04/2008 Vyacheslav Viktorovich DITKIN

08/12/1959

Room no. 20, 5th floor, measuring 15.50 sq. m 26 March 2003
13. 31038/08 17/04/2008 Irina Borisovna MAZUR

09/06/1958

Rooms nos. 11 and 44, 1st floor, measuring 35.40 sq. m; room no. 30, 1st floor, measuring 9.0 sq. m; and rooms nos. 32, 34, 35 and 42, 1st floor, measuring 92.10 sq. m 10 April 2003
14. 45120/08 21/06/2008 Svetlana Ipolitovna ANISIMOVA

06/12/1960

Room no. 8, 4th floor, measuring 18.40 sq. m 24 April 2007 Mr V. Linevich
15. 45124/08 08/05/2008 Natalya Vladimirovna STROKINA

04/06/1964

Room no. 20, 3rd floor, measuring 16.40 sq. m 20 March 2003 Threefold Legal Advisors
16. 45131/08 18/04/2008 Yelena Vasilyevna SHITOVA

23/11/1955

Room no. 15, 5th floor, measuring 23.60 sq. m 19 November 2002
17. 45133/08 15/04/2008 Irina Petrovna SIROTA (FEDOROVA)

29/07/1980

Room no. 14, 2nd floor, measuring 18.00 sq. m 12 December 2005
18. 45141/08 28/04/2008 Vera Nikolayevna RUSSKOVA

22/01/1964

Rooms nos. 47 and 48, 1st floor, measuring 37.10 sq. m 7 October 2003
19. 45167/08 19/05/2008 Gennadiy Sergeyevich BOLSHAKOV

26/07/1953

Room no. 30, 2nd floor, measuring 13.10 sq. m; and room no. 31, 2nd floor, measuring 13.10 sq. m 25 July 2001
20. 45173/08 28/04/2008 Vitaliy Aleksandrovich VASYUKHIN

11/05/1995

Darya Aleksandrovna VASYUKHINA

18/08/2006

Samara

First applicant: room no. 29, 1st floor, measuring 12.80 sq. m,

Second applicant: room no. 28, 3rd floor, measuring 12.90 sq. m

First applicant: 1 October 2007

Second applicant: 2 October 2007

 

Appendix II

AWARDS MADE BY THE COURT UNDER ARTICLE 41 OF THE CONVENTION

Application number and name of the applicant receiving the award Non-pecuniary damage Costs and expenses
1 20578/08

Tomina

EUR 5,000 EUR 280
2 21159/08

Andrievskiy

None None
3 22903/08

Marakhtanova

EUR 5000 EUR 280
4 24519/08

Astapova

EUR 5,000 EUR 280
5 24728/08

Deshin

EUR 5,000 EUR 280
6 25084/08

Prikolotin

EUR 5,000 EUR 280
7 25558/08

Kobina

EUR 5,000 None
8 25559/08

Litvinova

EUR 5,000 EUR 280
9 27555/08

Krivko

EUR 5,000 EUR 280
10 27568/08

Medvedev

EUR 5,000 EUR 280
11 28031/08

Sisigin

EUR 5,000 EUR 280
12 30511/08

Ditkin

EUR 5,000 EUR 280
13 31038/08

Mazur

EUR 5,000 EUR 280
14 45120/08

Anisimova

EUR 5,000 EUR 310
15 45124/08

Strokina

EUR 5,000 EUR 280
16 45131/08

Shitova

EUR 5,000 EUR 280
17 45133/08

Sirota (Fedorova)

EUR 5,000 EUR 280
18 45141/08

Russkova

EUR 5,000 EUR 330
19 45167/08

Bolshakov

EUR 5,000 EUR 315
20 45173/08

Vitaliy Vasyukhin

Darya Vasyukhina

 

EUR 5,000

EUR 5,000

EUR 280

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