Last Updated on October 2, 2020 by LawEuro
FIFTH SECTION
CASE OF KOCHKINA AND KOCHKIN v. UKRAINE
(Applications nos. 46311/08 and 2973/10)
JUDGMENT
STRASBOURG
10 September 2020
This judgment is final but it may be subject to editorial revision.
In the case of Kochkina and Kochkin v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Ganna Yudkivska,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 7 July 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 46311/08 and 2973/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Lyudmyla Ivanivna Kochkina (the first applicant) and Mr Oleksiy Ivanovych Kochkin (the second applicant).
2. The applicants were represented by Mr. Oleg Mykolayovych Rozhok, a lawyer practicing in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Ivan Lishchyna from the Ministry of Justice.
3. The applicants alleged, in particular, that the domestic authorities had breached their rights guaranteed by the Convention on account of the construction of concierge premises and an extension for a waste collection room near their apartment and the failure of the State authorities to enforce the court decision ordering to re-construct the above-mentioned premises.
4. On 9 December 2013 notice of the applications was given to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1948 and 1975 respectively and live in Kyiv. The first applicant is the second applicant’s mother.
A. Background
6. The applicants are the owners of a one-room apartment on the ground floor of a multi-storey building. The apartment has no windows other than the kitchen/balcony window, which is situated by the entrance to the building.
In his initial correspondence with this Court in 2008 as well as in his application forms lodged on 15 March 2009 and 9 March 2010, and all further correspondence, the second applicant mentioned the apartment in question as his “permanent address”. The first applicant indicated in this respect a different address. The case-file also contains copies of two letters addressed to the second applicant in March 2007 and July 2008 by a district sanitary and epidemiological service. The above letters are entitled “concerning examination of request by the occupants of the apartment no….” and contain the address of the apartment in question.
7. On 31 January 2002 the Kyiv State Administration adopted the Decree “On Measures Concerning Maintenance Work on Concierge Premises in Buildings of Residential Fund in Kyiv in 2002”. For the implementation of the above Decree the Obolonskyy District State Administration of the city of Kyiv approved the programme for construction of the concierge premises in the Obolonskyy District of Kyiv in 2002, which included the multi-storey building, where the applicants’ apartment is located.
8. Following an agreement of 21 February 2002 between a private company K. and a communal house maintenance company Z., concierge premises were constructed near the entrance to the building. As previously there was a waste collection room entrance on that spot, the waste collection room and the concierge premises were joined and the door to the waste collection room was moved. According to the photos, sent by the applicants, one of the walls of this construction adjoins the left side of their balcony. The entrance to the waste collection room is now perpendicular to their balcony and very close to it.
9. The applicants state that previously the wall was situated further away and the entrance to the waste collection room was facing the street and not their balcony. The waste collection smells and is a source of insects, especially in summer, the view from the balcony is partially blocked by the wall and rain from the construction roof pours onto the applicants’ balcony.
B. Proceedings concerning the protection of property rights
10. The applicants brought court proceedings against the Obolonskyy District State Administration, companies Z. and K. complaining of a breach of their property rights to the apartment, since the waste collection wall was adjacent to their balcony and the continuation of such a wall had been constructed directly against their balcony. On 24 December 2002 the Obolonskyy District Court of Kyiv found that, contrary to the construction project-plans (the plans), the construction in question had been built against the applicants’ balcony. The court held that company K. should re-construct the annex building in accordance with the approved plans. The court rejected the applicants’ claim against company Z. and Obolonskyy District State Administration. The court also rejected their claim for non-pecuniary damages finding that the applicants did not live in this apartment and wanted to sell it.
11. On 3 June 2003 the court adopted a resolution clarifying the manner in which the decision of 24 December 2002 was to be enforced. It noted that the construction wall had to be moved further away from the applicants’ balcony, so that the wall would not be adjacent to the applicants’ balcony and would not hinder the view from the balcony.
12. The case-file contains a copy of an undated letter signed by more than 30 inhabitants of a block of apartments which included the applicants’ one to the Head of the Obolonskyy District Court of Kyiv requesting the court to quash its decision of 24 December 2002. According to other case file materials, the letter was allegedly signed following a meeting in July-August 2003 but in any case not later than October 2006. It stated that the applicants did not want to pay for concierge services and did not live in the apartment in question.
C. Proceedings concerning enforcement of the decision of 24 December 2002
13. On 11 February 2003 the State Bailiffs’ Service instituted enforcement proceedings. On two occasions, in March 2003, M., company K.’s director, was fined for failure to enforce the court decision. On 9 February 2004 the Obolonskyy District Prosecutor’s Office instituted criminal proceedings against M. for failure to enforce the court decision.
14. On 28 January 2005, upon the request of the Obolonskyy District Prosecutor’s Office, a forensic technical construction expert examination concluded that it was impossible to enforce the decision of 24 December 2002, but it was possible to enforce the decision of 3 June 2003 (see paragraph 11 above), for which the new project should be developed and approved in accordance with the law, taking into account any dangerous consequences for the exploitation of the multi-storey building. The expert concluded that the construction was in conformity with its plans except for one corner. It was, however, “impossible to establish whether the distance between the construction and the applicants’ balcony was in conformity with the plans”. It was also concluded that rain water from the construction roof could leak onto the applicants’ balcony. The applicants also had no access to one side of their balcony from the outside so the balcony’s renovation could not be done from that side. The expert noted that there were no construction norms for the concierge premises constructed on the entrance side of the building.
15. On 18 October 2005 the Obolonskyy District Prosecutor’s Office terminated criminal proceedings against M. as no crime had been committed. The prosecutor noted that company K. decreased the width of the wall near the applicants’ balcony by half a brick width; M. could not reconstruct the premises without the approved project, while it was within the authority of the communal company Z. to develop and approve project documentation.
16. On 23 October 2006 the Obolonskyy District Prosecutor’s Office, in reply to the applicants’ request for representation of their interests before the domestic courts, confirmed again that “the additional audit established that M. could not reconstruct independently the concierge premises without the state authorities’ approval of the reconstruction project. The project documentation could only be drawn up (“оформлювати”) by a construction developer (“замовник будівництва”), i.e. by communal company Z., the Kyiv City State Administration and the Obolonskyy District State Administration, thus, it was technically impossible to enforce the court decision by M.” The prosecutor also advised the applicants to address the above entities to decide on the reconstruction of the premises.
17. On 12 April 2006 the State Bailiffs’ Service terminated the enforcement proceedings in the case for “the failure to enforce the decision without the defendant’s assistance”.
18. On 25 March 2011 the Obolonskyy District Court ordered that a duplicate of the execution writ of 11 February 2003 be issued to the applicants. Company K. unsuccessfully challenged the decision of 25 March 2011 before the appellate and cassation courts.
19. On 10 August 2011 the State Bailiffs’ Service instituted enforcement proceedings. On two occasions, in January and September 2013, M., company K.’s director, was fined again for failure to enforce the court decision. The state bailiff also lodged a request with the prosecuting authorities stating that M. was criminally liable for failure to comply with the court decision.
20. On 21 March 2014 the State Bailiffs’ Service terminated the enforcement proceedings in the case noting that the decision of 24 December 2002 remained unenforced and could not be enforced without company K.’s assistance.
21. On 28 May 2014 the Obolonskyy District Court quashed the resolution of 21 March 2014. Having analysed the legal provisions the court concluded that the State Bailiffs’ Service was not precluded to enforce the court decision of 24 December 2002, without company K.’s cooperation, since the legal provisions vested the State Bailiffs’ Service with the authority to involve necessary authorities, companies, institutions and organisations with the purpose of the enforcement. The debtor should be liable for the payment of relevant expenses. It appears that the state bailiffs did not comply with the court’s recommendations.
D. Proceedings concerning the demolition of the concierge premises
22. In August 2006 the applicants instituted court proceedings requesting company K. to demolish the concierge premises. They stated that, according to the forensic technical construction expert examination of 28 January 2005, it was impossible to enforce the decision of 24 December 2002, therefore, the concierge premises should be demolished.
23. On 9 November 2006 the Obolonskyy District Court found against the applicants. The court held that the construction in question had been carried out following an agreement between communal company Z. and company K. Since it was not a construction but “premises maintenance work” (“облаштування приміщень”) no special permission for such construction was needed.
24. On 12 November 2007 the Kyiv City Court of Appeal upheld this decision. The court found that on 31 January 2002 the Kyiv City State Administration provided financing for the construction of concierge premises in the existing buildings. The district administrations were obliged to draw up the plans of those premises. On 21 February 2002 communal company Z. concluded an agreement with company K. for concierge premises construction. The agreement provided that company Z., as a developer, furnished company K. with all the necessary documentation for construction work, performed supervision and technical control over quality, quantity and value of the performed construction work, their compliance with construction norms and rules, etc. Upon completion, company Z. approved the construction and did not claim any defects. Therefore, company K. duly discharged its obligations and “cannot be obliged to dismantle the construction since it did not build it”. Moreover, the subject matter of the agreement was not the waste collection room but the concierge premises. The court stated that the applicants were not precluded to bring court proceedings against the appropriate respondent.
25. On 18 March 2008 the Supreme Court of Ukraine rejected the applicants’ request for leave to appeal on points of law.
E. Proceedings concerning the lawfulness of the construction
26. In July 2006 the applicants instituted court proceedings against companies K. and Z. challenging the lawfulness of the construction of the concierge premises and the construction acceptance act (“акт прийняття в експлуатацію”). They stated that there was no construction permission and no construction project plan, therefore, the construction was unlawful.
27. On 22 December 2006 the Obolonskyy District Court found against the applicants. On 16 April 2007 the Kyiv Court of Appeal quashed the decision of 22 December 2006 and remitted the case to the first-instance court for fresh examination. The court of appeal ordered the first-instance court to examine carefully the compliance of the plans for the concierge premises with the Resolution of the Kyiv City State Administration no. 144 of 31 January 2002 and to involve the Obolonskyy District State Administration as a co-defendant. The appellate court also pointed out that the double door of the waste collection room may have been insufficient to eliminate the negative consequences of the close location of the latter to the applicants’ balcony.
28. On 28 August 2008 the Obolonskyy District Court found against the applicants. The court held that company K. had constructed the concierge premises in accordance with the plans furnished by company Z. The construction was accepted by company Z., which meant that the work had been performed correctly. The court referred to the decisions of 24 December 2002 and 9 November 2006 and held that there were no grounds for finding that the construction was unlawful. The court noted that company K. reduced the corner of the left ledge of the annex building by about 0.6 cm, which ensured access and exploitation of the façade of the applicants’ balcony, the construction did not prevent natural light to enter the apartment and in order to avoid unpleasant smells from the waste collection room, the premises had double doors.
29. On 11 November 2008 the Kyiv City Court of Appeal upheld this decision. On 27 January 2009 the Supreme Court of Ukraine rejected the applicants’ request for leave to appeal on points of law.
30. In the beginning of 2008 the Obolonskyy District Prosecutor’s Office and the Kyiv Main Department of the Emergency Situations informed the applicants that the project of the concierge premises had not been approved by the fire security authorities.
II. RELEVANT DOMESTIC LAW
A. Relevant domestic law concerning construction norms
1. Law of Ukraine “On Local Self-Governance” no. 28/97-VR of 21 May 1997
31. Relevant provisions of the Law of Ukraine “On Local Self‑Governance” read as follows:
“Article 30
The powers in the sphere of housing and public utilities, consumer, trade services, catering, transport and communications
The powers of the executive bodies of village, town and city councils shall include
a) own (self-governing) powers:
1) management of housing and public utilities, consumer, trade services, transport and communications of municipal property, ensuring their proper maintenance and effective operation, adequate level and quality of public services;
…
6) decision of issues of collection, transportation, recycling and disposal of waste.
Article 31
Powers in the construction sphere
1. The powers of the executive bodies of village, town and city councils shall include
a) own (self-governing) powers:
1) organisation, at its own expense and on a shared participation basis, construction, reconstruction and repair of public utilities and socio-cultural objects, residential buildings;
…
9) permitting construction of urban objects irrespective of ownership type according to the law.”
2. Housing Code of Ukraine of 30 June 1983
32. Relevant provisions of the Housing Code read as follows:
“Article 181
Technical maintenance and repair of buildings of public residential stock and of household cooperatives
State services in charge of housing operation, repair and construction perform, under contractual arrangements, technical maintenance and repair of buildings of public residential stock and of household cooperatives.”
3. Decree of the Kyiv State Administration “On Measures Concerning Maintenance Work of Concierge Premises in Buildings of Residential Fund in Kyiv in 2002”, no. 144, 31 January 2002
33. Relevant provisions of the Decree of the Kyiv State Administration no. 144 of 31 January 2002 read as follows:
“According to Article 30 of the Law of Ukraine “On Local Self-Governance” and the decision of the Kyiv City Council “On Kyiv Budget for 2002” no. 162/1596 of 20 December 2001:
3. The district state administration in Kyiv shall:
3.1. formulate proposals to the urban program on maintenance work of concierge premises on the basis of relevance and in compliance with applicable law;
3.2. attach to proposals to the urban program the schemes concerning a planned option of location of concierge premises indicating utilities connection points and the approvals by district architects and district fire security departments.
The district state administrations shall be responsible for completeness and quality of provided schemes.
6. The Main Department of City Improvement Control (…) shall expediently issue orders for carrying out maintenance work of concierge premises of Kyiv existing residential fund.”
B. Relevant domestic law on enforcement proceedings
1. Law of Ukraine “On Enforcement Proceedings”, no. 606-XIV, 21 April 1999, in force at the material time
34. According to paragraph 2 of Article 75 of the Law if the court decision is not enforced and enforcement cannot be completed without the debtor’s cooperation the bailiff shall organise enforcement pursuant to the powers granted to him by the law and notify the police authorities in order for the latter to bring the debtor to liability according to the law.
2. Instruction of Organisation of Enforcement of Decisions, no. 512/5, 2 April 2012
35. Under Section II of the Instruction “Participants of Enforcement Proceedings” the bailiffs shall use all their powers and authority in order to ensure timely and proper enforcement of a decision. In particular, under para 2.5 and 2.6 of Section II of the Instruction the bailiffs are entitled to involve other authorities, companies, institutions, organisations, officials, individuals, business entities if their involvement may contribute to timely and proper enforcement of decisions.
THE LAW
I. JOINDER OF THE APPLICATIONS
36. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications and consider them in a single judgment, given that they raise similar issues under the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF NON‑ENFORCEMENT OF THE DECISION OF 24 DECEMBER 2002 AS CLARIFIED BY THE DECISION OF 3 JUNE 2003
37. The applicants, with reference to Article 6 of the Convention, complained about the State authorities’ failure to execute the decision of 24 December 2002 against company K. in a timely manner. That provision insofar as relevant reads as follows:
Article 6
“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law.”
A. Admissibility
38. The Government submitted that the decision of 24 December 2002 was enforced on 17 March 2004 when K. decreased the corner of the left ledge of the annex building by about 0.6 cm; as a result, proper access to the applicants’ front balcony parapet was provided in accordance with the requirements of the court decision of 24 December 2002 as clarified by the court decision of 3 June 2003. The Government also noted that the applicants put glass panels on their balcony without permission; therefore, the Government cannot be held responsible for the lack of external access to such panels. The Government noted that the enforcement of the decision incorporating a ruling of a non-pecuniary nature may take more time than in the case of payment of money awarded under a court judgment (see Ganenko v. Ukraine, no. 27184/03, 11 January 2005). In view of the foregoing, they requested the Court to declare the applicants’ complaints inadmissible as manifestly ill-founded.
39. The applicants disagreed. They noted that putting glass panels on their balcony did not require any special permission and the decision of 24 December 2002 remained unenforced. They provided the documents confirming that the enforcement proceedings were still pending. In particular the applicants provided the decision of 28 May 2014, by which the Obolonskyy District Court quashed the resolution of the bailiffs of 21 March 2014 on enforcement proceedings termination and ordered the latter to renew the enforcement proceedings.
40. The Court notes that the applicants provided sufficient evidence that the decision of 24 December 2002 had not been enforced and the enforcement proceedings were still pending (see paragraphs 21 and 39). Furthermore, the parties did not dispute that the impossibility for the applicants to have the decision of 24 December 2002 enforced constitutes an interference with their rights to peaceful enjoyment of their possessions and, contrary to the Government’s arguments (see paragraph 38), such interference was not remedied (see paragraphs 21 and 39).
41. Having regard to the above findings, the Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and neither is it inadmissible on any other grounds; the complaint must therefore be declared admissible.
B. Merits
42. The Government submitted no observations concerning the merits of the applicants’ complaints.
43. The applicants’ observations on merits are identical to their observations on the admissibility of their complaints as set forth in paragraph 39.
44. The Court reiterates that effective access to court includes the right to have a court decision enforced without undue delay (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 66, ECHR 1999-V). However, a stay in the execution of a judicial decision, until such time as is strictly necessary to enable a satisfactory solution to be found to public-order problems, may be justified in exceptional circumstances (ibid., § 69). When the authorities are obliged to act in order to enforce a judgment and they fail to do so, their inactivity can engage the State’s responsibility on the ground of Article 6 § 1 of the Convention (see Scollo v. Italy, 28 September 1995, § 44, Series A no. 315‑C). Moreover, the Court has held on numerous occasions that Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention provide for a positive obligation on the State to assist private persons in the enforcement of court judgments against other private persons (see Fuklev v. Ukraine, no. 71186/01, §§ 84 and 91, 7 June 2005; Scollo v. Italy, cited above, § 44; Fociac v. Romania, no. 2577/02, § 70, 3 February 2005; and Kesyan v. Russia, no. 36496/02, §§ 79 and 80, 19 October 2006).
45. In the present case the court decision of 24 December 2002 as clarified by the decision of 3 June 2003 required the debtor (private company K.) to reconstruct the premises adjacent to the applicants’ apartment (see paragraphs 10-11). The forensic technical construction expert examination concluded that in order to enforce the court decision of 24 December 2002 as clarified by the decision of 3 June 2003 the new project should be developed and approved in accordance with the law (see paragraph 14). According to the Ukrainian law, company K. could not reconstruct the concierge premises independently without approval of the reconstruction project with state authorities; at the same time, the project documentation could only be drawn up by communal company Z. as a construction developer (“замовник будівництва”), the Kyiv City State Administration and the Obolonskyy District State Administration (see paragraphs 15-16, 24).
46. The Court notes that the State was obliged to assist diligently the applicants in the enforcement of the court decision. The bailiffs repeatedly gave orders to company K. to enforce the final decision concerning the reconstruction of the concierge premises and waste collection room. However, the debtor failed to comply with the bailiffs’ orders owing, at least partially, to the fact that it could not execute the court decision without the assistance of communal enterprise Z. and municipal authorities.
47. The Court considers that it cannot be said that the State Bailiffs’ Service took all possible actions in order to enforce the decision of 24 December 2002. As noted in paragraph 21, in its decision of 28 May 2014 on quashing the resolution on the termination of the enforcement proceedings the Obolonskyy District Court of Kyiv expressly indicated to the State Bailiffs’ Service that the law allowed the latter to enforce the court decision without company K.’s cooperation. The court’s conclusion is further confirmed by the legislative provisions on enforcement proceedings (see paragraphs 34-35). It appears though that, despite the authority granted to the State Bailiffs’ Service by law, the bailiffs failed to follow the court’s recommendations. Therefore, the decision of 24 December 2002 remains unenforced.
48. Having regard to the particular circumstances of the present case, the Court comes to the conclusion that the respondent State has fallen short of its obligation in this respect.
49. Accordingly there has been a violation of Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 TO THE CONVENTION
50. The applicants also complained that the construction of concierge premises and an extension for a waste collection room infringed their rights to respect for their home, private and family life.
51. The applicants relied on Article 8 in respect of the above complaints, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home…
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
52. Neither the Government nor the applicants provided their observations concerning admissibility and merits of this complaint.
53. The Court observes that the applicants mainly complained that their enjoyment of the amenities of their home and the quality of their private and family life deteriorated due to the construction of concierge premises and moving of the waste collection room entrance to the vicinity of their balcony, in particular, in view of unpleasant smell and presence of cockroaches.
54. The Court reiterates that Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area within reasonable limits. Breaches of the right to respect of the home are not confined to concrete breaches such as unauthorised entry into a person’s home, but may also include those that are diffuse, such as noise, emissions, smells or other similar forms of interference. A person’s right to respect for his home may have been seriously breached if he has been prevented from enjoying the amenities of his home (see Koceniak v. Poland (dec.), 1733/06, §§ 55, 57‑58, 17 June 2014 (with further references)).
55. The Court notes that it could be accepted that in the circumstances of the present case, given that the only window of the applicants’ apartment faces the waste collection room entrance, the failure of the State authorities to enforce the court decision by which it was ordered to re-construct the waste collection building could constitute an interference with the applicants’ rights under Article 8 of the Convention. However, the Court considers that the applicants’ complaint in this respect is nevertheless inadmissible for the following reason.
56. The Court reiterates that whether or not a particular habitation constitutes a “home” which attracts the protection of Article 8 § 1 will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place. In particular, it is not enough for an applicant to claim that a particular place or property is a “home”; he or she must show that they enjoy concrete and persisting links with the property concerned (see, for example, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109).
57. In the present case, while it is not disputed that the applicants own the apartment in question, there is no evidence that it had ever been their place of residence. In particular, both the domestic court (see paragraph 10 above) and the applicants’ neighbours (see paragraph 12 above) stated that the applicants do not live in that apartment and intend to sell it. Those statements were not refuted by the applicants. Moreover, they have never claimed the contrary throughout the proceedings before this Court. Although it is true that the second applicant in his correspondence with the Court indicated the apartment in question as his permanent address and that in 2007 – 2008 certain letters of the State authorities were posted to that address, this fact alone, in the Court’s view, is not sufficient to prove the second applicant’s actual residence in the apartment in question. As for the first applicant, both in her correspondence with this Court and on the national level, she has always indicated a different address as her permanent one.
58. Therefore, given that the applicants failed to demonstrate that apart from being owners of the apartment in question they had ever actually used it as their home for the purpose of Article 8 of the Convention, their complaint in this respect is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 (see, mutatis mutandis, Sharxhi and others v. Albania, no. 10613/16, § 99, 11 January 2018).
IV. ALLEGED VIOLATION OF Article 1 of Protocol No. 1
59. The Court finally observes that the applicants, being the owners of the apartment in question, complained before the domestic courts about a violation of their property rights and noted in the application forms that their rights had been breached by the construction. However, having regard to the facts of the case, the submissions of the parties and its findings under Article 6 § 1 of the Convention, the Court considers that it has examined the main legal question raised in the present application, specifically the lengthy non-enforcement of the decision of 24 December 2002, and that there is no need to give a separate ruling on the complaint under Article 1 of Protocol No. 1 (see, mutatis mutandis, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
60. 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
61. The applicants claimed 15,000 euros (EUR) in respect of pecuniary damage. They submitted that due to the construction of the annex building the market value of their apartment decreased. They also claimed EUR 11,000 in respect of non-pecuniary damage for each applicant.
62. The Government argued that the applicants failed to provide a detailed calculation of their pecuniary losses and to support them with official documents. They further maintained that the applicants’ claims for non-pecuniary damage were excessive and unsubstantiated.
63. As regards the applicants’ claim concerning the pecuniary damage, the Court notes that the applicants failed to provide a detailed calculation of such losses and any supporting documents, which would enable the Court to determine the amount. Furthermore, the applicants failed to demonstrate that the nuisance in the instant case was of such a nature or intensity as to bring about a clear reduction in the market value of the applicants’ apartment (see, mutatis mutandis, Mileva and Others v Bulgaria, nos. 43449/02 and 21475/04, § 114, 25 November 2010). The Court therefore makes no award under this head.
64. The Court further takes the view that the applicants have suffered some non-pecuniary damage as a result of the violations found. Nevertheless, the particular amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicants jointly a total of EUR 2,500 in respect of non-pecuniary damage.
B. Costs and expenses
65. The applicants also claimed 154 Ukrainian hryvnia (UAH) (approximately EUR 15) for the postal expenses incurred before this Court.
66. The Government did not comment on this issue.
67. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 15 covering costs under all heads.
C. Default interest
68. 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 complaint under Article 6 § 1 of the Convention about lengthy non-enforcement of the decision of 24 December 2002 in the applicants’ favour, as clarified by the decision of 3 June 2003, admissible and the complaint under Article 8 of the Convention inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of non-enforcement of the decision of 24 December 2002, as clarified by the decision of 3 June 2003;
4. Holds that there is no need to examine the admissibility and merits of the applicants’ complaint under Article 1 of Protocol No. 1;
5. Holds
(a) that the respondent State is to pay the applicants jointly the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 15 (fifteen euros), plus any tax that may be chargeable to the applicants, 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;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 10 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie Dougin Mārtiņš Mits
Acting Deputy Registrar President
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