Last Updated on October 12, 2023 by LawEuro
FIFTH SECTION
CASE OF ZHURA v. UKRAINE
(Application no. 66191/10)
JUDGMENT
(Just satisfaction)
STRASBOURG
12 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Zhura v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
María Elósegui,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,
Having deliberated in private on 21 September 2023,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 66191/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Lidiya Volodymyrivna Zhura (“the applicant”), on 5 November 2010.
2. In a judgment delivered on 22 September 2022 (“the principal judgment”), the Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention in that the applicant had been made to bear an individual and excessive burden in circumstances where the authorities had failed to duly implement the compensation arrangement for her expropriated house and there had been uncertainty as to which of the entities involved was responsible for remedying the consequences of that failure.
3. Under Article 41 of the Convention, the applicant sought various amounts in just satisfaction (see paragraphs 69-71 of the principal judgment).
4. Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant to submit, within three months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 73 and point 5 of the operative provisions).
5. The applicant and the Government failed to reach an agreement. They each filed observations.
THE LAW
6. 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.”
I. Damage
A. Pecuniary damage
7. In her submissions to the Court following the delivery of the principal judgment, the applicant maintained her initial claims for just satisfaction set out in her application form and in her submissions in reply to the Government’s observations.
8. As regards pecuniary damage, the applicant claimed 2,363,321 Ukrainian hryvnias (UAH) or 140,000 euros (EUR) for the cost of the necessary repair works to the house in question. In support of her claim, she submitted a report by the Kyiv Scientific Research Institute of Forensic Expert Examinations of the Ministry of Justice (“the KSRI”) dated 9 August 2014.
9. The applicant further claimed UAH 285,703 (approximately EUR 43,000 as of September 2006) for the lost profit which, according to a different KSRI report dated 19 September 2006, she would have obtained had she been able to lease the house during the period between November 2002 and February 2006.
10. Finally, the applicant claimed UAH 82,950 (approximately EUR 12,300 as of March 2004) in compensation for the rent she had paid for a house of about 50 square metres in which she had lived between September 2003 and March 2004. In support of her claim, the applicant submitted a certificate dated 21 March 2004 and signed by a certain Mr Ye., apparently the landlord of the house, stating that he had received the above-mentioned amount.
11. The Government contested those claims. They noted that the applicant could have applied to have her case reviewed by the Supreme Court on the basis of the principal judgment to obtain restitutio in integrum. They provided references to two domestic court judgments in which the claimants had been awarded damages to be paid by the municipal authorities. As the applicant had failed to request reopening within the statutory time-limit after the delivery of the principal judgment (thirty days), the Government considered that she was “not interested in restoration of her rights but that her intention was enrichment through the Court’s judgment”.
12. As regards the lost profit, the Government argued that the claim on that account had been rejected by the domestic courts as unfounded, but the applicant had still raised it before the Court. In any event, that claim was exorbitant and speculative in their view. Regarding the claim for compensation for the rent paid, the Government stated that the authorities had offered two different apartments to the applicant for the duration of repair works, but she had refused, instead renting a house herself. In any event, the applicant had failed to provide the necessary supporting documents to substantiate that amount.
13. As to the Government’s argument that the applicant should request a review of her case, the Court reiterates that, as a rule, the requirement that domestic remedies should be exhausted, including the option of reopening of proceedings, does not apply to just-satisfaction claims submitted to it under Article 41 (see S.L. and J.L. v. Croatia (just satisfaction), no. 13712/11, § 15, 6 October 2016, with further references). In addition, in the circumstances of the present case, the Court considers that it would not be reasonable for the applicant to bear the burden of further domestic proceedings. The Court will thus proceed with the examination of the applicant’s claims.
14. The Court notes that the applicant’s claims for compensation for rent payments made and her claims for lost profit, even assuming their relevance, have not been supported by convincing documents and/or are speculative. It therefore rejects both claims.
15. The Court considers, however, that the applicant suffered pecuniary damage on account of the impossibility of obtaining compensation for the repairs required to ensure adequate living conditions in the house provided to her in lieu of her expropriated property. In this connection the Court notes that the applicant’s claim under that head is based on a forensic report of 9 August 2014 prepared by a specialised institution. While that report does not contain a detailed description of the works and a calculation of costs, it is based on the conclusions of the initial report from 2006 by the same institution commissioned by the applicant in the context of the domestic proceedings, which does contain all the relevant details. The 2014 report thus provides an updated amount of the cost for those works as of the year 2014. In the absence of any objections to the report from the Government or the provision of an alternative report, the Court accepts it as a valid basis for the calculations (see Svirgunets v. Ukraine (just satisfaction) [Committee], no. 38262/10, §§ 11-12, 20 December 2022). That being so, the Court considers it appropriate to award the amount indicated in the report (UAH 2,360,321) as converted into euros in the principal judgment (EUR 138,000).
16. The Court thus awards the applicant EUR 138,000 in respect of pecuniary damage. It 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.
B. Non-pecuniary damage
17. The applicant claimed an award in respect of the non-pecuniary damage resulting from the violation of her property rights, in the amount of 576 times the minimum monthly wage in Ukraine, to be calculated as of the date of the award. She estimated that amount at UAH 701,568 (equivalent to approximately EUR 41,000 as mentioned in the principal judgment). She also claimed EUR 12,000 for non-pecuniary damage resulting from the alleged violation of Article 6 of the Convention.
18. The Government contested those claims as excessive.
19. The Court, observing that in the principal judgment it found a violation of Article 1 of Protocol No. 1 only, considers that the applicant sustained non-pecuniary damage on that account. Ruling on an equitable basis, it awards her EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
II. Costs and expenses
20. The applicant claimed UAH 40,874.44 and UAH 46,193.32 (approximately EUR 2,400 and EUR 2,700 respectively, as mentioned in the principal judgment) in respect of costs and expenses in the domestic proceedings and before the Court respectively.
21. The costs incurred during the domestic proceedings comprised the fees the applicant had paid to her representatives (approximately UAH 32,700 in total), those for the forensic reports commissioned by her during the proceedings (approximately UAH 4,500 in total), and court fees (UAH 3,400). The costs incurred in relation to the proceedings before the Court comprised the applicant’s representative’s fees (UAH 33,000 in total), fees for the expert report of 9 August 2014 (UAH 2,500) and postal expenses (UAH 693.32 in total). The applicant provided documents confirming the payment of the respective amounts.
22. The Government contested those claims as excessive, leaving the matter of compensation for postal expenses to the Court’s discretion.
23. 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 those have been actually and necessarily incurred and are reasonable as to quantum. These may include domestic legal costs incurred to prevent or redress the breach of the Convention (see, for example, I.J.L. and Others v. the United Kingdom (just satisfaction), nos. 29522/95 and 2 others, 30056/96 and 30574/96, § 18, 25 September 2001) and those incurred in order to have the Court establish a violation of the Convention (see, for example, De Souza Ribeiro v. France [GC], no. 22689/07, § 111, ECHR 2012).
24. Regard being had to the documents in its possession and the above‑mentioned criteria and considerations, the Court finds it reasonable to award the applicant EUR 3,000, covering costs and expenses in the domestic proceedings and the proceedings before the Court.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 138,000 (one hundred and thirty-eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, 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;
2. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President
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