CASE OF ZHIRKOVA AND OTHERS v. RUSSIA (European Court of Human Rights) Applications nos.16203/13 and 4 others – see appended list

INTRODUCTION. The case concerns alleged breaches of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the lack of adequate and sufficient reasoning in the domestic courts’ decisions concerning the lawfulness of the applicants’ constructions.

THIRD SECTION
CASE OF ZHIRKOVA AND OTHERS v. RUSSIA
(Applications nos.16203/13 and 4 others – see appended list)
JUDGMENT
STRASBOURG
30 March 2021

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

In the case of Zhirkova and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 16203/13 and 4 others, listed in the appendix) 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 twenty-five Russian nationals (“the applicants”) on 27 February 2013;

the decision to give notice to the Russian Government (“the Government”) of the applications;

the decision to give priority to the applications (Rule 41 of the Rules of Court);

the parties’ observations and additional observations;

the decision to reject the Government’s objection to examination of the applications by the Committee;

Having deliberated in private on 9 March 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns alleged breaches of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the lack of adequate and sufficient reasoning in the domestic courts’ decisions concerning the lawfulness of the applicants’ constructions.

THE FACTS

2. Theapplicants’ details are set out in the Appendix. They were represented by Mr M. Shkolnik, a lawyer practising in Sochi.

3. The Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. The applicants are members of a boathouse construction cooperative, a non‑commercial partnership located in Sochi (“the Cooperative”).

I. ALLOCATION OF A PLOT OF LAND TO THE COOPERATIVE, CONSTRUCTION OF BOATHOUSES AND THE AUTHORITIES’ DECISIONS IN THIS REGARD

6. The Cooperative was established as a legal person under Russian law on 9 October 1991 by a decision of the Executive Committee of the Khostinskiy District Council of People’s Deputies (“the Executive Committee”). By the same decision the Executive Committeeassigned a plot of land of 0.2 ha to the Cooperative, adjacent to the beach at MalyyAkhun Black Sea Resort, for the building of thirty boathouses. It also issued a permit for their design and construction.

7. On 15 March 1993 the Cooperative signed an agreement with the Directorate of Shoreline Protection and Anti-Landslide Works (Управлениеберегоукрепительных и противооползневыхработ– “the Directorate”) concerning the use of a plot of land (договоробусловияхиспользованияучастка) situated on the waterside allocated for the construction of boathouses (“the agreement of 15 March 1993”).

8. On 16 July 1993 the Municipality of Sochi (“the Municipality”) allocated a sixty-metre long stretch of coastline to the Cooperative and allowed the latter to build thirty boathouses on it.

9. Between 1992 and 1998 a number of boathouses were built on the land by members of the Cooperative, including the applicants.

10. On 28 September 1998 a State Commission composed of the competent authorities issued a commissioning certificate (актприемки в эксплуатацию) for forty-two boathouses.

11. On 10 December 1998 the Municipality upheld the above-mentioned certificate and ordered the Sochi Technical Inventory Bureau to register the Cooperative as the owner of a marina for forty-two boats.

12. On 11 December 1998 the Municipality granted the Cooperative leasehold rights for 3,444 square metres of land along ninety metres of coastline. The decision specified that the rights were granted for a period of forty-nine years and gave the Cooperative permission to build forty-two boathouses on the land concerned. According to the decision, the Cooperative was supposed to conclude a lease agreement with the Municipality within one month. On the same date the Cooperative’s leasehold rights were registered in the cadastral land register.

13. Subsequently, the Cooperative asked the Municipality on several occasions to issue the appropriate documents confirming its right to use the land, namely to conclude the above-mentioned lease agreement (paragraph 12 above), but its requests remained unanswered.

14. On 20 June 2002 the Commercial Court of the Krasnodar Region, at the request of a prosecutor, invalidated the agreement of 15 March 1993 (see paragraph 7 above) on the grounds that the agreement constituted a lease contract, which the Directorate had had no power to sign. The Commercial Court further indicated that the owner of the plot of land in question was unknown, owing to a lack of proper recordkeeping. At the same time, it indicated that the invalidation of the lease contract had no adverse consequences on the Cooperative’s entitlement to use the land at issue, as its rights were based on the decision of 16 July 1993 (see paragraph 8 above).

15. Between 2010 and 2011 the members of the Cooperative were issued with technical and cadastral licences (технический и кадастровыйпаспорта) for each boathouse. The Cooperative was indicated as the owner of the boathouses in the majority of the technical licences submitted to the Court. The applicants never registered their titles to the boathouses in the Consolidated State Register of Real Estate Titles and Transactions.

II. JUDICIAL REVIEW OF THE APPLICANTS’ TITLE TO BOATHOUSES AND THEIR SUBSEQUENT DEMOLITION

16. On 30 August 2010 the President of the Russian Federation instructed the Prosecutor General, together with the Krasnodar regional and Sochi municipal authorities, to identify and demolish the unlawful constructions on the Sochi coast.

17. On an unspecified date the Municipality brought a civil action against the applicants in the Khostinskiy District Court of Sochi (“the District Court”). The applicants brought a counterclaim for recognition of their property rights over the boathouses.

A. Judgment of the District Court of 16 March 2012

18. On 16 March 2012 the District Court allowed the Municipality’s claim, ordering the applicants to demolish their boathouses as unauthorised constructions and to clear the area. It consequently dismissed their counterclaim. The court held that the Cooperative had not had the right to use the plot of land at issue and had failed to receive the appropriate authorisations for their constructions. To justify these conclusions, the court referred to three main arguments: (i) the absence of a construction permit, required under the Town Planning Code of 29 December 2004, (ii) the Cooperative’s failure to conclude a lease agreement in respect of the plot of land on which the boathouses were built after the invalidation of the agreement of 15 March 1993 by the Commercial Court on 20 June 2002, and (iii) the municipal authorities’ lack of power to grant the Cooperative a right to use the disputed plot of land on the grounds that, at the relevant time, the land fell under federal jurisdiction in accordance with Law no. 33‑FZ of 14 March 1995 on special protected natural areas, which had conferred on the federal authorities the right to administer land on the coastline and beachline of internal sea waters, the plot of land in question not having been transferred to municipal property until 2010.

19. Lastly, the District Court pointed out that the boathouses had deteriorated the city’s image as the capital of the 2014 Winter Olympics.

20. On an unspecified date the applicants lodged an appeal against the judgment, alleging violations of substantive and procedural law.

B. Judgment of the Krasnodar Regional Court of 3 July 2012

21. On 3 July 2012 the Krasnodar Regional Court (“the Regional Court”) quashed the above judgment on appeal, dismissed the Municipality’s claim and allowed the applicants’ counterclaim. The Regional Court found (i) that the construction of the boathouses had been duly authorised by the local authorities in accordance with the legislation then in force, which had not required any specific construction permit but only municipal approval; the rules referred to by the District Court had only been introduced after the completion of construction and could not be retroactively applied, pursuant to Article 4 of the Civil Code; (ii) that the Commercial Court, when invalidating the agreement of 15 March 1993, had specifically indicated that it would not have any adverse consequences for the Cooperative’s entitlement and that, furthermore, failure to conclude a lease agreement was attributable to the municipal authorities silence on the applicants’ repeated requests to that effect; and (iii) that the first authorisations had been within the municipal authorities’ jurisdiction, as determined by the Local Governance Act of 6 July 1991, and that the provisions referred to by the District Court on the transfer of ownership of the plot of land to the federal authorities in 1995 could not be retroactively applied.

22. On 8 August 2012 the Municipality lodged a cassation appeal with the Presidium of the Krasnodar Regional Court (“the Presidium”).

C. Quashing of the appeal judgment by the Presidium of Regional Court on 29 August 2012

23. On 20 August 2012 a judge of the Regional Court decided to refer the case to the Presidium of that court.

24. On 29 August 2012 the Presidium allowed the cassation appeal, quashed the appeal judgment delivered by the Regional Court in the applicants’ favour and reinstated the judgment of the District Court. The Presidium referred to the findings of the District Court and indicated that the Regional Court had failed to properly apply the domestic legislation, without further details.

25. The applicants lodged a second cassation appeal against the judgments of the District Court and Presidium of the Regional Court with the Supreme Court of the Russian Federation. They complained that the Presidium had failed to address specific findings of the Regional Court. They in particular claimed that neither the District Court nor the Presidium of the Regional Court had provided sufficient legal and factual grounds explaining how the lawfulness of the decisions taken by the Municipality in 1991 and 1993 could be called into question on the basis of legislation enacted in 1994, 1995, 2004 and 2005, and why the invalidation of the agreement of 15 March 1993 by the Krasnodar Commercial Court on 20 June 2002 would have adverse consequences on the Cooperative’s entitlement to the plot of land, whereas the latter had specifically stated in its judgment that there were none.

D. Decision of the Supreme Court of 5 October 2012

26. On 5 October 2012 a judge of the Supreme Court refused to refer the case to the Civil Chamber of that court. The judge held that the principle of legal certainty, which constituted one of the fundamental aspects of the rule of law, insisted that no party was entitled to request the reopening of the proceedings merely for the purposes of a rehearing and a fresh decision in the case.

E. Enforcement of the judgment of 16 March 2012

27. Between 10 and 20 March 2013 the boathouses were demolished.

RELEVANT LEGAL FRAMEWORK

28. The Local Governance Act of RSFSR of 6 July 1991 (as in force at the relevant time) empowered local district authorities to administer natural resources in accordance with the law (section 55(14)), including the allocation of plots of land for building and other purposes (section 60(1)).

29. By Decree no. 4766-I/337 of 12 April 1993, adopted by the Presidium of the Supreme Soviet and the Council of Ministers of Russia, the city of Sochi was granted special status as a federal resort. Law no. 33-FZ of 14 March 1995 on special protected natural areas (which entered into force on 20 March 1995) declared federal resorts federal property.

30. Article 4 of the Civil Code (of 30 November 1994, N 51-FZ) states that civil legislative acts do not have retroactive effect and are applicable to the relationship arising after their entry into force. The legislation may only be applied to a relationship arising before its entry into force in the cases directly provided for by law.

31. Article 222 of the Civil Code as in force at the relevant time, is summarised in the judgment of Zhidov and Others v. Russia (nos. 54490/10 and 3 others, § 54, 16 October 2018).

32. Under Article 51 of the Town Planning Code of the Russian Federation (Law no. 190-FZ of 29 December 2004, which entered into force on 30 December 2004), the construction of real estate is subject to a construction permit, except in the cases provided for by the Code. A construction permit is a document confirming that the construction project and related documents comply with urban planning regulations. Construction permits are issued by the local authority, except in the cases provided for by the Code and other federal legislation. The Government Decree no. 698 of 24 November 2005 (as in force at the time) approved the form of the construction permit.

THE LAW

I. JOINDER OF THE APPLICATIONS

33. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

34. The applicants complained of unfairness in the civil proceedings brought against them essentially on account of the quashing of the appeal judgment delivered in their favour and the cassation courts’ failure to provide adequate reasons for their decisions. They relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”

A. Admissibility

35. The Court notes that the applications are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

36. The applicants reiterated the arguments presented in the second cassation appeal, complaining that the domestic courts, which ruled against them, failed to address the crucial points of their grievances (paragraph 25 above).

37. The Government submitted that the findings of the District Court and the Presidium were well substantiated, but that the Regional Court had committed a fundamental violation of the law, that is, disregarded the legislative provisions applied by the first-instance and first cassation courts. The Government also referred to the fact that the ruling of the Supreme Court of 5 October 2012 had already been examined by the Court in the case of Abramyan and Others v. Russia (dec.), nos. 38951/13 and 59611/13, 12 May 2015.

2. The Court’s assessment

38. The Court reiterates that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings (Moreira Ferreira v. Portugal (no 2) [GC], no. 19867/12, § 84, 11 July 2017). It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question of whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see Jokela v. Finland, no. 28856/95, § 72, ECHR 2002‑IV).

39. It has to be determined whether the above conditions were satisfied by the domestic courts’ decisions delivered in the civil proceedings brought against the applicants.

40. The Court first notes that the District Court and the Regional Court, which examined the claim lodged by the Municipality and the counterclaim formulated by the applicants, referred to three decisive issues to determine the lawfulness of the disputed boathouses: (i) whether the applicants should have obtained a construction permit, as required under the rules introduced by the Town Planning Code of 29 December 2004 for their boathouses commissioned in 1998; (ii) whether the transfer in 1994 and 1995 of the property rights over the plot of land on which the boathouses were built from the municipal authorities to the federal authorities called into question the Cooperative’s rights granted in 1991 and 1993 to use it; and (iii) whether the invalidation in 2002 of the agreement of 15 March 1993 had an adverse effect on the Cooperative’s entitlement to the plot of land at issue.

41. The Court further observes that the District Court and the Regional Court reached opposite conclusions as regards the three issues mentioned above. However, unlike the District Court, the Regional Court provided a detailed analysis of the reasons why the legislative and regulatory provisions referred to by the District Court establishing the need to obtain a specific construction permit and governing the distribution of powers between federal and local authorities over the plot of land introduced after the applicants were granted their initial authorisations could not be retroactively applied to their situation. As regards the third issue, the District Court and the Regional Court disagreed on the effect of the invalidation of the agreement and the interpretation of the judgment of 20 June 2002. Again, the Regional Court explained why the District Court’s succinct reference to the judgment of 20 June 2002 of the Commercial Court was not a valid argument to declare the construction unauthorised (see paragraph 21 above).

42. However, when quashing the judgment of the appellate court delivered in the applicants’ favour, the Presidium of the Regional Court simply endorsed the conclusions of the District Court, limiting itself to the mere restatement of the latter’s position, without addressing the detailed findings of the appellate court. Lastly, while the Supreme Court had an opportunity to remedy these defects in response to the specific arguments raised by the applicants in their second cassation appeal, it rejected it on purely formal grounds, leaving the applicants’ specific arguments, particularly as regards the retroactive application of the law, unanswered (see paragraphs 25-26 above).

43. The Court considers that the accumulation of various shortcomings, such as the cassation courts’ failure to give reasons in the presence of the lower courts’ conflicting conclusions as regards the retroactive application of the law, their failure to address the applicants’ arguments about the value of the Commercial Court’s decision and the Supreme Court’s refusal to hear the second cassation appeal on formal grounds, amounted to a failure to provide a specific and explicit reply to the arguments which were decisive for the outcome of those proceedings.

44. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention.

45. In the light of the above, the Court decides that there is no need to examine other procedural deficiencies complained of by the applicants.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

46. The applicants complained that the quashing by the cassation court of the appeal judgment of 3 July 2012 delivered in their favour and confirmation of the unauthorised nature of their constructions without adequate reasons had constituted an interference with the peaceful enjoyment of their possessions and had resulted in their de facto expropriation. They relied on Article 1 of Protocol No. 1, the relevant part of which reads as follows:

Article 1 of Protocol No. 1

“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.”

47. The Court notes that this complaint is linked to the one examined above and is based essentially on the same arguments.

48. Having regard to its conclusion under Article 6 § 1 of the Convention, the Court considers that there is no need to examine the admissibility and merits of the complaint submitted by the applicants under Article 1 of Protocol No. 1 (see S.C. Britanic World S.R.L.v. Romania, no. 8602/09, § 50, 26 April 2016; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 68, ECHR 2015; and Lyubov Stetsenko v. Russia, no. 26216/07, § 92, 17 April 2014).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. 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

50. The applicants claimed different amounts for pecuniary damage, corresponding to the market value of the demolished boathouses, and 5,000 euros (EUR) each for non-pecuniary damage and costs and expenses.

51. The Government contested the amounts claimed as excessive. In particular, they indicated, in respect of pecuniary damage, that the applicants’ rights to the boathouses had never been registered and that they consequently could not claim compensation based on their market value.

52. The Court cannot speculate about the outcome of the proceedingshad they been in conformity with Article 6 and, therefore, the award of just satisfaction can only be based on the fact that the applicants did not benefit from the guarantees of that Article (see Perić v. Croatia, no. 34499/06, § 33, 27 March 2008, and Dulaurans v. France, no. 34553/97, § 43, 21 March 2000). It further notes that the finding of a violation of the Convention by the Court in the present judgment opens the possibility for the applicants to request the reopening of the proceedings under Article 392 of the Code of Civil Procedure (see Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, §§ 9 and 59, 16 February 2016, with further references). Consequently, reopening the civil proceedings and a review of the matter in the light of the conclusions reached by the Court in the present case would be the most appropriate means of affording reparation to the injured party.

53. On the other hand, the Court, accepting that the breach of Article 6 has caused the applicants non-pecuniary damage which cannot be compensated by the mere finding of a violation, awards them each (per applicant or household) EUR 1,500 in this regard.

B. Costs and Expenses

54. The applicants claimed 300,000 Russian roubles (RUB) for costs and expenses.

55. The Government contested this claim. They indicated that the amount claimed for legal services (RUB 250,000) did not meet the criterion of necessity, since the circumstances of all the cases were identical and the applicants had failed to submit documentary proof that the costs had actually been incurred. As regards the remaining amount (RUB 50,000), corresponding to postal expenses, the Government considered, in the light of the documents submitted by the applicants, that this amount should be RUB 25,894.

56. Having regard to the materials in its possession, the Court decides to award each applicant (or household) EUR 300 under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints under Article 6 § 1 of the Convention admissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all applicants;

4. Holdsthat there is no need to examine separately the admissibility and merits of the complaints lodged under Article 1 of Protocol No. 1 to the Convention;

5. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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’ claims for just satisfaction.

Done in English, and notified in writing on 30 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                 Darian Pavli
Deputy Registrar                                    President

___________

APPENDIX
List of applications

No. Application no.
 
Name of the application Applicant
Year of birth
Place of residence
Amount awarded for non‑pecuniary damage and costs and expenses per applicant / household (in euros)[1]
1 16203/13 Zhirkova and Others v. Russia Larisa Alekseyevna ZHIRKOVA
1952
Sochi
1,800
AykAntronikovich KHRISHTAKYAN
1950
Sochi
1,800
Ivan Dmitriyevich KUZMENKO
1956
Sochi
1,800
Regina Vladimirovna FEDOSEYEVA
1972
Sochi
1,800
Irina Georgiyevna KONSTANTINOVA
1964
Moscow
1,800
Vadim Ivanovich KUZMENKO
1965
Sochi
1,800
Valeriy Anatolyevich ZIMIN
1959
Sochi
1,800
Aleksandr Aleksandrovich MAMISHEV
1981
Sochi
 
1,800
Grigoriy Parfentyevich BONDATIY
1942
Sochi
1,800
Marina Aleksandrovna SHVEYGERT
1984
Sochi
1,800
Household
Mikhail Vladimirovich SHESTAKOV
1972
Sochi
Nadezhda Nikolayevna SHESTAKOVA
1971
Sochi
1,800
Lyudmila Nikolayevna BARZYKINA
1953
Sochi
1,800
Yevgeniy Bronislavovich TITSEV
1947
Sochi
1,800
Rostislav Gennadyevich RASSOKHOV
1971
Moscow
1,800
Vitaliy Vartanovich AZNAURYAN
1954
Sochi
1,800
Tatyana Nikolayevna PETRENKO
1966
Sochi
1,800
AnatoliyPetrovich SKOROV
1940
Sochi
1,800
Vladimir Vasilyevich TATSKIY
1950
Sochi
1,800
Vladimir Ivanovich SOLOVYEV
1947
Sochi
1,800
Svetlana Germanovna ZAKHARCHENKO
1966
Sochi
1,800
2 17430/13 Prokopenko v. Russia Vasiliy Ivanovich PROKOPENKO
1943
Krasnodar
1,800
3 18166/13 Krutko v. Russia Vladimir Yemelyanovich KRUTKO
1951
Sochi
1,800
4 19873/13 Kashnikov v. Russia Andrey Nikolayevich KASHNIKOV
1974
Sochi
1,800
5 23592/13 Fomenko v. Russia Bogdan Albertovich FOMENKO
1976
Moscow region
1,800

[1] Plus any tax that may be chargeable to the applicants.

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