Last Updated on November 1, 2019 by LawEuro
SECOND SECTION
CASE OF SANDU AND OTHERS v. THE REPUBLIC OF MOLDOVA AND RUSSIA
(Applications nos. 21034/05 and 7 others)
JUDGMENT
STRASBOURG
17 July 2018
FINAL
03/12/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Sandu and Others v. the Republic of Moldova and Russia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Dmitry Dedov,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 26 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in eight applications (nos. 21034/05, 41569/04, 41573/04, 41574/04, 7105/06, 9713/06, 18327/06 and 38649/06) against the Republic of Moldova and 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 1,646 Moldovan natural persons and 3 companies (“the applicants”, see attached Annexes nos.1-9), on 25, 26 and 28 October 2004, 24 May 2005, 20 January, 8 February, 14 April and 6 September 2006 respectively.
2. The applicants were represented by Mr A. Postica and Mr I. Manole, lawyers practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. The Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Government to the European Court of Human Rights.
3. The applicants alleged, in particular, that they had been denied access to their land, in breach of Article 1 of Protocol No. 1 to the Convention, and that they had no effective remedies in this respect.
4. On 17 January 2013the applications were communicated to the Governments.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. The 1,646applicants natural persons live in the villages of Doroțcaia, Pîrîta, MolovataNouă, Pohrebea and Cocieri, situated on the left bank of the Dniester in the region of Dubǎsari. These villages are under Moldovan control. Part of the land belonging to the applicants is situated in areas near these villages, across a road which links the northern and southern parts of the self-proclaimed “Moldovan Transdniestrian Republic” (the “MRT” – see for more details Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004‑VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 8‑42, ECHR 2012(extracts)). That road, which cuts through two zones controlled by the Moldovan Government, is controlled by the authorities of the “MRT”.
7. The applicants obtained titles to these plots of land from Moldova as part of the “Pamântul” (Land) privatisation programme. In a letter dated 2 December 1999 the “MRT” local administration informed the Moldovan Department of privatisation that it “did not have any objections to the creation, on the basis of agricultural entities in the villages ofDoroțcaia, Pîrîta, MolovataNouă, Coșnița and Cocieri, the lands of which are situated on the territory of the [“MRT”], of peasant farms within the framework of the ‘Pamântul’ reform”.
8. Title to some of the land was subsequently transferred to others through gift or inheritance. The details of each applicant natural person are set out in Annexes nos. 1-9.
9. The applicants Posedo-Agro S.R.L., Agro-Tiras S.R.L. and Agro‑ S.A.V.V.A. S.R.L. are companies which rented land from owners during the relevant period of time.
10. On 15 August 2007 the applicant company Posedo-Agro S.R.L. ceded all of its rights and obligations to Serghei Popa Farming Proprietorship (FP). Both of those companies are solely owned by Mr Serghei Popa. On 30 October 2007 Posedo-Agro S.R.L. was liquidated.On 10 October 2013 Serghei Popa FP asked the Court to substitute itself for the original applicant company in respect of application no. 41569/04 and declared that it maintained that application before the Court.
11. The applicants’ main source of income is the working of the land owned or rented by them. In order to reach their land, they have to cross the road controlled by the authorities of the “MRT”.
12. Between 1992 and 1998 the applicants used the land in question or rented it without interference. In 1998 the “MRT” authorities set up checkpoints to monitor the movement of agricultural products across the “border” coinciding with the above-mentioned road. From then on the applicants had to pay various taxes and fees to the “MRT” authorities.
13. In August 2004 the “MRT” authorities declared that the land owned or rented by the applicants was the property of the “MRT”. The applicants could continue working it, on condition that they paid rent to the local “MRT” authorities. The applicants refused to sign rental contracts because they were already the lawful owners (or renters) of that land. As a consequence, all access to their land was blocked and the harvest was lost. Some of the agricultural machines belonging to those who tried to work their land were also seized. No work was done on the land in the following two years, which made it difficult to bring it back to its former capacity.
14. The applicants made numerous complaints to the “MRT” authorities, asking for a right of passage. Such a passagewas refused because the authorities considered the land in question to be the property of the “MRT”.
15. The applicants also complained to the Moldovan authorities, who replied that they had no means to compel the “MRT” authorities to allow them free passage. They asked the Moldovan Prosecutor General’s Office to start a criminal investigation against the people responsible for blocking the applicants’ access to their land.
16. The applicants complained to the Russian embassy in Moldova and to the Organization for Security and Co-operation in Europe (the “OSCE”), to no avail. On 26 April 2005 a group of landowners, including some of the applicants, protested in front of the Russian embassy in Moldova, asking the authorities of that State to intervene as a guarantor of peace and stability in the region. A similar protest took place on 11 May 2005.
17. The applicant company Agro-S.A.V.V.A. S.R.L. submitted a document issued by the Moldovan tax office, which showed that it had paid tax on plots of land rented from 281 owners. According to a certificate from the mayor of Pîrîta village, the applicant company had rented plots of land (104 hectares) from people in the village between 1998 and 2006. The applicant company also submitted copies of its tax and statistics reports for 2004, as well as an audit report by acompany called Total Consulting dated 15 November 2013, which showed that in 2004-2005 the applicant company cultivated 359 hectares of land, of which 104 hectares were situated in the area concerned by the present case. On 3 May 2005 the applicant company complained to Dubăsari Regional Council (a Moldovan local authority) about the situation, and it confirmed on 17 May 2005 that it was unable to cultivate 105 hectares of land rented from 320 landowners. Similar complaints and requests to allow cultivation of the land were made to the “MRT” local authorities, for instance on 19 July 2005.
18. The applicant company Agro-Tiras S.R.L. submitted a certificate from the mayor of Molovata Nouă village dated 11 October 2004, confirming that it rented 450 hectares of land from the villagers there, all of which were situated across the road, between Dubăsari and Rîbnița (the relevant area). According to a decision of the “MRT” Customs Office of 15 October 2004, a tractor with agricultural accessories and 5.8 tonnes of wheat had been seized from the applicant company owing to a failure to properly declare the importation of such items into the “MRT”. According to the decision, the tractor was travelling from Molovata Nouă village in the direction of “plots of land of the ‘MRT’ under Moldovan jurisdiction”.
19. According to a certificate dated 13 November 2013 from the mayor of Cocieri village, the applicant company Posedo-Agro S.R.L. rented land from 782 villagers during the period 2004-2006. The applicant company submitted a copy of a decision taken by the “MRT” Customs Office of 4 August 2004,which stated that 16 tonnes of barley had been seized from it owing to a failure to properly declare the importation of such items into the “MRT”. A fine (approximately 1,450 United States dollars (“USD”)) equal to the market price of the barley was imposed and additional costs had to be covered,otherwise the truck carrying the barley, which had also been temporarily seized on 30 July 2004,would be confiscated. A similar decision was taken on 16 August 2004, by which the applicant company lost 6.1 tonnes of apples. It also had to pay a fine (approximately USD 250) equal to the market price of the apples or risk the confiscation of three tractors temporarily seized on 11 August 2004. According to a certificate dated 12 October 2004, the applicant company rented 1,377 hectares of land from 820 people in Cocieri, of which 1,256 hectares were situated in the area concerned by the present application.On 4 August 2004 the applicant company complained to the Moldovan Government, the OSCE and the Dubăsari prosecutor’s office (belonging to the “MRT”) about the fine and seizure, stating that it rented 1,256 hectares of villagers’land situated in the relevant area and that despite having temporary registration with the “MRT Customs Office” it was not allowed to take the harvest to storage.
20. According to the Moldovan Government, the Moldovan Parliament passed a number of laws aimed at compensating the inhabitants of villages under Moldovan control on the left bank of the Dniester (in the area concerned by the present cases) for losses caused by various actions of the “MRT”. The compensation included differences in natural gas and electricity prices, increasing pensions, giving tax breaks and preferential credits to agricultural companies in the region,and allocating diesel fuel for agricultural activities.Moreover, a number of laws and decisions were implementedin 2004-2007 providing for the payment of compensation to villagers who had sustained losses owing to their inability to cultivate their land in the relevant area, with the total amount of aid reaching almost 39 million Moldovan lei (MDL) (approximately 2.3 million euros (EUR)). In 2006 the Moldovan authorities managed to negotiate with the “MRT” authorities a temporary “MRT” registration mechanism for owners of land in the relevant area, which allowed them to cultivate the land and be exempt from making payments to the “MRT”. The temporary registration system is renewed each year in negotiations between Moldova and the “MRT” authorities.
THE LAW
I. JOINDER OF APPLICATIONS
21. The Court notes that the subject matter of all of the applications is similar. It is therefore appropriate to join the cases, in application of Rule 42 of the Rules of Court.
II. ADMISSIBILITY
22. The Moldovan Government submitted that the complaint lodged by one of the applicants, Posedo-Agro S.R.L., was inadmissible because the company had been liquidated.
23. For their part, the Russian Government argued that the applicants did not come within their jurisdiction and that consequently the applications should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. Alternatively, they submitted that the applications were inadmissible for the applicants’ failure to exhaust domestic remedies in Russia. They also submitted that Posedo‑Agro S.R.L.’s application was inadmissible asit had been liquidated and could not transfer any rights to its sole owner, Mr Serghei Popa.
A. Jurisdiction
24. The Court must first determine whether the applicants fall within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention.
1. The parties’submissions
a. The applicants’ submissions
25. The applicants submitted that Russia continued to maintain a military presence in the “MRT” despite the undertakings given in the 1999 OSCE Istanbul Summit Declaration. This military force had a dissuasive effect on any attempt by the Moldovan authorities to re-establish control over the region. Moreover, Russian officials had stated, in particular in 2012 and 2013, that they had no intention of withdrawing their troops and ammunition from the “MRT” until the conflict had been finally resolved. That gave support to separatism in the region. While in their observations the Russian Government had referred to alleged inconsistencies between the Court’s factual findings in previous cases and reality, they had not submittedany evidence of that. In fact, Russian military, political and economic support for the “MRT” had continued throughout 2012 and 2013 with the provision of gas without payment and various other kinds of assistance, such as a decision of 17 March 2012 by the Russian Security Council to give the “MRT” some USD 150 million in aid. The applicants submitted that according to information available from the website of the Russian Ministry of Justice an “autonomous non-commercial organisation”(“Eurasian Integration”) had obtained three million roubles (RUB) from various sources and had given assistance to the “MRT” of RUB one billion (approximately EUR 24 million), which could thus not be considered as money coming from private sources, but was rather from the Russian authorities.
26. The applicants also submitted articles, mainly from “MRT” media, quoting statements from various Russian officials about the “MRT”. In a television interview quoted in a local newspaper on 31 October 2012, the coordinator of the Russian Duma’s group for cooperation with the “MRT” Parliament, Mr Serghei Gavrilov, declared that the Duma was planning “to pass decisions aimed at protecting the interests of the ‘MRT’… concerning international transportation, the modernisation of Tiraspol airport, assistance to ‘MRT’ companies in reaching the Russian market, including through the [Russian Defence Ministry’s] purchases”. He added that “Russia, in agreement with the ‘MRT’, must have as many of its military personnel here as required to ensure the security of the ‘MRT’ and Russian national interests”. In an interview of 17 November 2012 the “MRT” President declared during a visit by Russian Deputy Prime Minister Dmitrii Rogozin that “Russia’s role for the ‘MRT’ is in many respects a defining one. … The Russian Federation is the main guarantor for the ‘MRT’”. An article dated 9 May 2012 quoted Mr Rogozin as saying that through the above-mentioned organisation Eurasian Integration, and under his personal control, a series of projects was to be implemented in the “MRT”, including the reconstruction of hospitals and schools, the construction of a new wing for the local university, fully equipping that university with computers, and donating eight ambulances. On 10 May 2013 another “MRT” newspaper quoted Mr Rogozin as promising a total of RUB one billion (approximately EUR 24.5 million at the time) in humanitarian aid to the “MRT”. The same article quoted a Russian Duma member, Mr A. Zhuravliov, as saying that Russia was providing help to the “MRT” and its people worth hundreds of millions of Russian roubles each year. On 31 July 2013 Mr Rogozin was quoted as saying that the Russian President was personally monitoring the implementation of the building of ten infrastructure projects in the “MRT” and that the help given to the “MRT” was not help to a foreign subject because approximately 200,000 Russian citizens lived in the region. On 10 September 2013, following Moldova’s refusal to join the Eurasian Customs Union, the import of Moldovan wines to Russia was prohibited. On 12 September 2013 the Russian authorities stated that the ban did not affect alcohol originating from the “MRT”. In an article dated 18 September 2013 a Russian newspaper (Kommersant) quoted “MRT” Government decisions from April 2012 as stating that some of the money collected from consumers of natural gas in the “MRT” was diverted to a “stabilisation fund” for the “MRT”. According to the newspaper, the region had since 2009 completely stopped making any payments to Gazprom for the gas it consumed, accumulating debts of USD 4 billion.
27. As for Moldova’s jurisdiction over the region, that had been confirmed in previous judgments and there was nothing to add on that subject.
b. The submissions of the Moldovan Government
28. The Moldovan Government acknowledged that they had territorial jurisdiction over the region and asked the Court to find that they had taken reasonable actions consistent with their limited influence over the issue.
c. The submissions of the Russian Government
29. The Russian Government argued that the applicants did not come within their jurisdiction and that, consequently, the applications should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. As they did in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 92-94, ECHR 2016), the Russian Government expressed the view that the approach to the issue of jurisdiction taken by the Court in Ilaşcu and Others (cited above), Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), and Catan and Others (cited above) was wrong and at variance with public international law.
30. They further submitted that Russia had never accepted that it had spent millions of United States dollars on various forms of financial assistance to the “MRT”. Any help offered had been of a humanitarian nature, limited to food and other vital necessities, but had not involved financial assistance such as pension payments (there were at most two people receiving pensions from Russia and one thousand people receiving Second World War veterans’ payments in the “MRT”). Moreover, natural gas was supplied directly to the Moldovagaz company, which then redistributed it to consumers throughout Moldova, including the “MRT” region. It was therefore incorrect to state that Russia supplied natural gas to the “MRT” for free as the debt for gas that had been consumed but not paid for in that region (approximately USD 2 billion) hadbuilt up at Moldovagaz. As for the “MRT” residents in possession of Russian passports, their number did not exceed 140,000 as of September 2013, and was not one-fifth of the population, as suggested by the Court in Catan and Others (cited above, § 120).
31. The Russian presence in the “MRT” was limited to peacekeeping forces as part of its mediation effort and to the personnel necessary for guarding ammunition that could not be evacuated. The Court had been given information about the exact quantity of ammunition stored at Cobasna (approximately 20,000 tonnes of outdated, non-transportable ammunition). The applicants had not claimed that any agent of the Russian State had been involved in the events complained of. Moreover, the “MRT” was not controlled by Russia and had in the past rejected some of Russia’s proposals. In Catan and Others (cited above), Russia had been held responsible for actions in which it had not been involved and which it had not initiated or controlled.
2. The Court’s assessment
32. The Court notes that the parties in the present case have positions concerning the matter of jurisdiction which are similar to those expressed by the parties in Catan and Others (cited above, §§ 83-101) and inMozer (cited above, §§ 81-95). Namely, the applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction.
33. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of acts and facts occurring in the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19), Catan and Others (cited above, §§ 103-07) and, more recently, Mozer (cited above, §§ 97-98).
34. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcuand Others, Catanand Others andMozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; andMozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; andMozer, cited above, § 99).
35. The Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova has jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335).
36. In so far as the Russian Federation is concerned, the Court notes that in Ilașcu and Others it found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 (see Ilașcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until July 2010, the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others, cited above, §§ 116-20; Catan and Others, cited above, §§ 121-22; and Mozer, cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”‘s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicant fell within that State’s jurisdiction under Article 1 of the Convention (Mozer, cited above, §§ 110-11).
37. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others, and Mozer (all cited above), taking into account the fact that the main events complained of happened in 2004-2006, a period covered by the findings in Mozer (cited above).
38. It follows that the applicants in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections ratione personae and ratione loci.
39. The Court will hereafter determine whether there has been any violation of the applicants’ rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112).
B. Exhaustion of domestic remedies
40. The Russian Government submitted that the applications should be rejected for failure to exhaust domestic remedies before the Russian courts.
41. The Court notes that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain, not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mozer, cited above, § 116).
42. By contrast, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996‑IV). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Akdivar and Others, cited above, § 71, and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 223, ECHR 2014 (extracts)).
43. As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, and available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see, inter alia, Maktouf and Damjanovićv. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58, ECHR 2013 (extracts); Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014; and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-89, 9 July 2015).
44. The Court notes the Russian Government’s submission concerning the failure to exhaust domestic remedies before the Russian courts. It observes that it examined essentially the same objection in Ilaşcu and Others, finding that:
“… the Russian Government mentioned that it was possible for the applicants to bring their complaints to the knowledge of the Russian authorities but did not state what remedies Russian domestic law might have afforded for the applicants’ situation.
It notes also that the Russian Government denied all allegations that the armed forces or other officials of the Russian Federation had taken part in the applicants’ arrest, imprisonment and conviction or had been involved in the conflict between Moldova and the region of Transdniestria. Given such a denial of any involvement of Russian forces in the events complained of, the Court considers that it would be contradictory to expect the applicants to have approached the Russian Federation authorities” (Ilaşcu and Others [GC] (dec.), no. 48787/99, 4 July 2001).
45. In the present case, the Russian Government did not specify which of their courts had jurisdiction over complaints against the actions of the “MRT” authorities. Moreover, no details were given as to the legal basis for examining such complaints and to the manner in which any decision taken would be enforced. In addition, the Russian Government continued to deny any direct involvement in the Transdniestrian conflict.Giventhose circumstances the Court is not satisfied that the remedies referred to by the Russian Government were available and sufficient.
46. It follows from the above that the Russian Government’s objection must be dismissed.
C. Standing of Posedo-AgroS.R.L.
47. The Moldovan Government submitted that Posedo-AgroS.R.L. could no longer claim to be a victim of a violation of its rights since it had been liquidated on 30 October 2007.
48. The Russian Government also submitted that the applicant company could no longer claim to be a victim of a violation of its rights since it had been liquidated. The contract ceding its rights to its sole owner, Mr Serghei Popa, which it had concluded prior to its liquidation, should not be possible legally since it would imply a contract between Mr Popa and himself. They argued that the liquidation of a company did not entail any transfer of its rights to third parties. Moreover, Mr Popa had only informed the Court about that transaction fiveandahalf years after the fact.
49. The representative of the company Serghei Popa FP noted that it had obtained all the rights belonging to the original applicant company (Posedo‑AgroS.R.L., see paragraph 10 above) and that it had requested that the Court allow it to replace the original applicant company. It added that a transfer of rights between two companies owned by the same person, as was the case here, was not prohibited under Moldovan law. Moreover, Mr Popa had signed the original application form and the power of attorney for his lawyer in his own name and in the name of Posedo-AgroS.R.L. As he was the sole owner of that company and the sole owner of Serghei Popa FP, he could still claim to be a victim of the breach of the rights protected under Article 1 of Protocol No. 1 to the Convention.
50. The Court notes that on 15 August 2007 Posedo-AgroS.R.L. ceded all of its rights to Serghei Popa FPbefore it had been liquidated and thus at a moment when it had the power to transfer any right to a third party. The director and sole owner of Serghei Popa FP, Mr Popa,subsequently expressed the wish to maintain the application before this court (see paragraph 10 above). Given the economic nature of the interests at stake, which are thus transferable to other persons or entities, and the absence of any doubt that Mr Popa had the right to represent each of the two companieshe had created, the Court sees no reason to disregard the agreement between the two companies and finds no procedural impediment to replacing the original applicant company by the new one (see, for instance, Dimitrescu v. Romania, nos. 5629/03 and 3028/04, § 34, 3 June 2008). For practical reasons this judgment will continue to refer to Posedo-Agro S.R.L. as the “applicant” although its successor company Serghei Popa FP is today to be regarded as having that status (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999‑VI, and Brosset-Triboulet and Others v. France [GC], no. 34078/02, § 58, 29 March 2010).
The Russian Government’s objection to the transfer of rights from a company owned by a private individual to that individual himself must therefore be rejectedas the transfer was in fact one between two legal entities.
51. In view of the replacement of the original applicant by another one, the Moldovan Government’s objection concerning the subsequent liquidation of the original applicant company must also be rejected.
52. Given the fact that the complaint lodged by Mr Serghei Popa in his own name coincides with that lodged by Posedo-Agro S.R.L., and given the absence of any exceptional reason for “piercing the corporate veil” in his favour since the company was able to lodge the application, the Court considers that Mr Popa does not have separate standing in respect of the complaint. Therefore, his personal complaint must be rejected for being incompatible ratione personae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4of the Convention (see Agrotexim and Others v. Greece, 24 October 1995, §§ 66 and 71, Series A no. 330‑A).
D. Withdrawal by three applicants
53. On 29 August 2016 three applicants (Mr Simion Creț, Mrs Lidia Creț and Mr Ion Luchianov)stated that they did not intend to pursue their applications before the Court.
54. The Court considers that this information must be examined in the light of Article 37 § 1 of the Convention. Insofar as relevant, Article 37 provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application;
..
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
55. Article 37 § 1 (a) of the Convention covers the situation where the applicant wishes to withdraw his or her application (see K.A.S. v. The United Kingdom (dec.), no. 38884/12, § 45, 4 June 2013,and Polovynko and Others v. Ukraine and Russia (dec.), no. 52061/14 and 3 others, § 10, 5 July 2016). Circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto, which require the continued examination of the application, exist when such examination would contribute to elucidating, safeguarding and developing the standards of protection under the Convention (see, for example,H.P. v. Denmark (dec.), no. 55607/09, § 85, 13 December 2016, and, a contrario, Konstantin Markin v. Russia [GC], no. 30078/06, § 90, ECHR 2012 (extracts)).
56. In the present cases, the Court notes that the applicants expressly stated that they no longer wished to pursue their applications. It further notes that this case was brought by more than 1,600 applicants. The Court therefore has an opportunity to determine the legal issues involved,even if these three applicants withdraw their applications.Respect for human rights as defined in the Convention and the Protocols thereto does not require the continued examination of their applications.
57. In the light of the foregoing, the Court, in accordance with Article 37 § 1 (a) of the Convention, decides to strikethe applications out of the list of cases as far as these three applicants are concerned.
E. Other admissibility issues
58. The Court notes that a number of applicants have not provided it with sufficient information in order to be able to continue examining their applications, such as personal identification, the surface of plots of land which they owned at the relevant time in the area under consideration or cadastral numbers for such land. In addition, some applicants have died and no known successors have declared their wish to continue with the relevant applications. Both categories of applicants are listed in Annexes 2, 5, 7 and 9.
59. The Court considers that these applications must be examined in the light of Article 37 § 1 (c) of the Convention. Insofar as relevant, Article 37 provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
…
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
…”
60. The Court considers, having regard to the circumstances mentioned above (see paragraph58 above), that it is no longer justified to continue the examination of the applications listed in Annexes 2, 5, 7 and 9. Moreover, for the reasons given above (see paragraph56above), the Court considers that respect for human rights as defined in the Convention and the Protocols thereto, does not require the continued examination of these applications.
61. In the light of the foregoing, the Court, in accordance with Article 37 § 1 (c) of the Convention, decides to strike the 172 applications listed in Annexes 2, 5, 7 and 9 out of the list of cases.
62. The Court also notes that some of the applicants died after lodging the application and their heirs expressed a wish to continue with the relevant applications, as reflected in annexes 1, 3, 4, 6 and 8. In view of the pecuniary nature of the complaints made in the present application, the Court sees no reason to refuse these requests by the heirs. For practical reasons, this judgment will continue to refer to the original applicants as the “applicants”, although their heirs are now to be regarded as having that status (see paragraph50 above).
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
63. The applicants complained that by not allowing them access to their land or by making it conditional on them paying rent, the “MRT” authorities had breached their rights under 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.”
A. Admissibility
64. The Court notes that the applicationsare not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that theyare not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants’ submissions
65. The applicantsnatural persons argued that by being preventedfromobtaining access to the land they owned in 2004-2006 and subsequently being forced to conclude rental agreements concerning their land, the “MRT” authorities had breached their rights under Article 1 of Protocol No. 1 to the Convention. They submitted that while the land had not been formally expropriated, their property rights had been limited in a manner similar to those of the Cypriot citizens who had lost access to their property under the effective control of the self-proclaimed “Turkish Republic of Northern Cyprus”, as found by the Court in the case of Loizidou v. Turkey (merits) (18 December 1996, Reports 1996‑VI). Moreover, their property had lost much of its value because of the limits on its use.
66. The applicants accepted that the initial lists of applicants in the application forms had not been fully accurate since some applicants had been listed several times because they owned several plots of land. Moreover, some confusion had been caused by the fact that certain names had been written differently during the Soviet era from their spelling in the new Moldovan identification and land title documents. Some documents confirming ownership or the rent of land had been omitted by mistake. However, they had submitted an updated list of applicants and appended all the relevant information to their observations of 20 November 2013.
67. The applicant companies argued that they had a “legitimate expectation”, within the meaning of Article 1 of Protocol No. 1 to the Convention, of being able to use the relevant land in accordance with their rental contracts, and of making profit from their agricultural activity there. They referred to the various certificates from the Moldovan authorities confirming that they had in 2004-2006 rented specific areas of land in the relevant area, and to the decisions of the “MRT” authorities fining them and seizing their agricultural equipment used to cultivate that land (see paragraphs 17-19 above).By being prevented from cultivating the rentedland,they had sustained losses and lost profits. Their rights under Article 1 of Protocol No. 1 to the Convention had thus been breached.
(b) The Moldovan Government’s submissions
68. The Moldovan Governmentnoted that the merits of the complaint was closely related to the jurisdictional issue and to the extent to which Moldova had carried out the positive obligations under the Convention. They did not make any additional arguments concerning this complaint.
(c) The Russian Government’s submissions
69. The Russian Government noted that information in respect of many of the applicants (they specifically identified forty-six of them), was incomplete or illegible, lacking, for instance, cadastral numbersand other evidence of ownership or cultivation of the land. While some applicants had submitted deeds of gift or wills, they had not appended documents confirming that ownership of the land had been obtained through such acts.
70. The applicant company Agro-S.A.V.V.A. S.R.L.had not submitted any evidence that it had rented 104 hectares of land in the relevant area, such as rental contracts, a list of lessors, extracts from the register of real estate or details of the location of the land. In the absence of copies of rental agreements, it was impossible to speculate as to whether it could or could notrent land from unspecified landowners and at what price. Owing to their inability to establish facts in the “MRT”, the Russian Government could not verify themselves whether each applicant owned or rented land in the relevant area.
71. Moreover, the applicants who had submitted evidence of owning or renting land in the relevant area could farm it once they had signed tenancy agreements with the local authorities in the “MRT”. In that case, as was clear from the documents submitted by the applicants themselves, the “MRT”customs bodies would not have prevented the farming of the land.
2. The Court’s assessment
(a) Whether the applicants had “possessions”
72. The Court reiterates that “possessions” within the meaning of Article 1 of Protocol No. 1 to the Conventioncan be either “existing possessions” or assets, including claims in respect of which the 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, for example, Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series A no. 332;Gratzinger and Gratzingerova v. the Czech Republic (dec.)[GC], no. 39794/98, § 69, ECHR 2002‑VII; Kopecký v. Slovakia [GC], no. 44912/98, § 35, c, ECHR 2004‑IX; Fabris v. France [GC], no. 16574/08, § 50, ECHR 2013 (extracts); and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 143, 20 March 2018).
73. The Court notes the Russian Government’s submission that most of the applicants failed to submit documents proving that they were owners of land in the relevant area or that they rented such land. In essence, they argued that such applicants did not have “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. By way of example, the Russian Government listed forty-six applicants (natural persons) for whom documents were lacking or whose documents were incomplete or unreadable.
74. The Court notes that the applicants’ representativesof the applicants natural persons annexed to their observations of 20 November 2013 copies of documents for each applicant, including copies of passports or identification cards, of certificates from the Moldovan State land registry (Cadastru) with cadastral numbers, the plan of the plots of land and the history of the ownership of the relevant plots of land, and, where applicable, deeds of gift, marriage certificates (in case of a change of name), death certificates, and wills or legal succession certificates issued by notaries public. Those annexes are mostly legible and, in the Court’s view, establish with sufficient certainty that all theseapplicants, including forty-three of the forty-sixidentified by the Russian Government in their observations, owned land at the relevant time, in the relevant region.It is also worth noting that, despite the land in question being situated across a road controlled by the “MRT” and allegedly on “MRT territory”, the latter’s authorities did not object to distribution of that land by the Moldovan authorities to the applicants (see paragraph 7 above). Finally, it is clear from the documents in the file that some of the applicants were able to sell or donate their land in the relevant region, which confirms their property right.
75. Accordingly, as landowners they had “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.
76. In respect of the applicant companies, the Court notes that they all submitted certificates from the mayors of the relevant villages, showing that they had rented land from villagers situated in the relevant area (see paragraphs 17-19 above). Moreover, two of the applicant companies submitted decisions by the “MRT” Customs Office fining them for transporting agricultural products into or out of the “MRT” without declaring them at the “border” (situated along the road mentioned in paragraph 6 above), clearly finding that the products were being transported across the road separating the relevant villages from their land. The audit reports submitted by two of those companies (Agro-S.A.V.V.A. S.R.L. and Agro-Tiras S.R.L.) also confirm that they had incurred losses from being unable to cultivate the land they had rented from the villagers. Lastly, the complaints made in 2004 to the Moldovan authorities by two of the applicant companies (see paragraphs17 and 19 above)provide contemporaneous evidence that they indeed rented land during the relevant period.
77. It is true that none of the applicant companies claimed that they were owners of any land. However, on the basis of the documents submitted to it, the Court is able to conclude that they rented land and cultivated it for commercial purposes. Recalling that the concept of “possessions” in Article 1 of Protocol No. 1 to the Convention has an autonomous meaning which is not limited to ownership of physical goods, but covers also certain other rights and interests constituting assets (see, in general, Béláné Nagy v. Hungary [GC],no. 53080/13, § 73, ECHR 2016; see in particular, with respect to a “clientele” built up through the operation of an enterprise on a site leased by the entrepreneur, Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999‑II), the Court considers that the right to use land, on the basis of rent contracts, connected to the conduct of a business, conferred on the applicant companies title to a substantive interest protected by Article 1 of Protocol No. 1to the Convention (see, among other authorities, Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010, and Di Marco v. Italy, no. 32521/05, §§ 51-53, 26 April 2011).The applicant companies thushad “possessions” within the meaning of that provision.
(b) Whether there was an interference with the applicants’ property rights
78. The Court reiterates that Article 1 of Protocol No. 1 to the Convention comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98, and Fábián v. Hungary[GC], no. 78117/13, § 60, ECHR 2017 (extracts)).
79. The Court notes that while the “MRT” authorities declared that the “MRT” was the owner of the land owned or rented by the applicants, they did not formally deprive the applicants of their property. However, they obliged the applicants to conclude rental contracts with the “MRT” authorities, although the applicants owned the land or rented it from its lawful owners. Upon the refusal of the applicants to sign such contracts, the authoritiesbetween 2004 and 2006 blocked access to the land they owned or rented (see paragraph13above). There has therefore been an interference with the applicants’ property rights. While this interference does notamount to a deprivation of property or to a control of the use of property, the Court considers that the applicants’ inability to cultivate their land falls to be considered under the first rule mentioned above, namely the general principle of the peaceful enjoyment of possessions (see Loizidou, cited above, § 63).
(c) Compliance with Article 1 of Protocol No. 1
80. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 to the Conventionis that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see, among other authorities,Iatridis, cited above, § 58, and Béláné Nagy, cited above, § 112).
81. The Court must therefore determine whether there was any legal basis in domestic law for the interference identified above (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 96, 25 October 2012). It notes that the respondent Governments did not submit any arguments on that point.
82. The Court notes that the applicants had title to the land or valid rental contracts with the landowners. It does not see any legal basis for the obligation placed upon them to conclude rental contracts with the “MRT” authorities as a condition for being able to cultivate the land. Likewise, it does not see any legal basis for blocking without reason access to land which someone owns or legally rents.
83. The above conclusion dispenses the Court from examining whether the other requirements of Article 1 of Protocol No. 1 to the Convention were complied with in the instant case.
84. The Court therefore concludes that there has been a breach of the applicants’ rights under Article 1 of Protocol No. 1 to the Convention.
(d) Responsibility of the respondent Governments
(i) The responsibility of the Republic of Moldova
85. The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicants’ rights under Article 1 of Protocol No. 1 to the Convention(see paragraph34 above). In Mozer the Court held that Moldova’s positive obligations related both to measures needed to re‑establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants’ rights (see Mozer, cited above, § 151).
86. As regards the first aspect of Moldova’s obligation, to re-establish control, the Court found in Mozer that, from the onset of the hostilities in 1991 and 1992 until July 2010, Moldova had taken all the measures in its power (Mozer, cited above, § 152). Since the events complained of in the present case took place before the latter date, the Court sees no reason to reach a different conclusion (ibidem).
87. Turning to the second aspect of the positive obligations, namely to ensure respect for the applicants’ rights, the Court notes the efforts made by the Moldovan authorities both in securing access to the relevant land and in compensating those affected by the restrictions imposed by the “MRT” (see paragraph 20 above). In view of the case-file material, it considers that the Republic of Moldova did not fail to fulfil its positive obligations in respect of the applicants (see Mozer, cited above, § 154).
88. There has therefore been no violation of Article 1 of Protocol No. 1 to the Convention by the Republic Moldova.
(ii) The responsibility of the Russian Federation
89. In so far as the responsibility of the Russian Federation is concerned, the Court has established that Russia exercised effective control over the “MRT” during the period in question (see paragraphs36-37 above). In the light of this conclusion, and in accordance with its case-law, it is not necessary to determine whether or not Russia exercised detailed control over the policies and actions of the subordinate local administration (see Mozer, cited above, § 157). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicants’ rights (ibidem).
90. In conclusion, and having found that there has been a breach of the applicants’ rights under Article 1 of Protocol No. 1 to the Convention(see paragraph84 above), the Court holds that there has been a violation of that provision by the Russian Federation.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
91. The applicants complained that they had no effective remedy in respect of their complaints under Article 1 of Protocol No. 1 to the Convention. They relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Alleged violation of Article 13 of the Convention
92. The Court observes that the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention was undoubtedly arguable (see paragraph 83 above). The applicants were therefore entitled to an effective domestic remedy within the meaning of Article 13of the Convention.
93. The Court considers that the complaint under Article 13 taken in conjunction with Article 1 of Protocol No. 1 to the Conventionis 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.
94. The Moldovan Government did not submit any specific arguments in respect of this complaint, except to refer to their efforts in securing the applicants’ rights on the territory controlled by the “MRT”.
95. The Russian Government did not submit any specific arguments in respect of this complaint, referring to the Court’s lack of jurisdiction to examine the present cases. However, they raised an objection (see paragraph 40 above) that the applicants had failed to exhaust the domestic remedies available in Russia. The Court finds, for the same reasons for which it rejected the objection raised by Russia (see paragraphs44-46 above), that there were no effective remedies available to the applicants in Russia.
96. Moreover, there is no indication in the file that any effective remedies were available to the applicants in the “MRT” in respect of the above-mentioned complaints (see Mozer, cited above, § 211).
97. The Court therefore concludes that the applicants did not have an effective remedy in respect of their complaints under Article 1 of Protocol No. 1 to the Convention. Consequently, it must decide whether any violation of Article 13 of the Convention can be attributed to either of the respondent States (see Mozer, cited above, § 212).
B. Responsibility of the respondent States
98. As for the responsibility of Moldova, the Court notes that it found in Mozer(cited above, § 214):
“…the positive obligation incumbent on Moldova is to use all the legal and diplomatic means available to it to continue to guarantee to those living in the Transdniestrian region the enjoyment of the rights and freedoms defined in the Convention (…). Accordingly, the ‘remedies’ which Moldova must offer the applicant consist in enabling him to inform the Moldovan authorities of the details of his situation and to be kept informed of the various legal and diplomatic actions taken.”
99. It also observes that in Mozer it found that Moldova had created a set of judicial, investigative and civil service authorities which worked in parallel with those created by the “MRT” (Mozer, cited above, § 215). In addition, as can be seen from the particular circumstances of the present case, the Moldovan authorities have actively negotiated various methods of protecting the applicants’rights and obtained an improvement in their situation in 2006 (see paragraph 20 above).
100. In the light of the foregoing, the Court considers that the Republic of Moldova has made procedures available to the applicants commensurate with its limited ability to protect their rights. It has thus fulfilled its positive obligations. Accordingly, the Court finds that Moldova is not responsible for the violation of Article 13 of the Convention (see Mozer, cited above, § 216).
101. As for the responsibility of Russia, the Court refers to its finding that the Russian Federation exercised effective control over the “MRT”, at least until 2010 (see paragraphs36-37above). In accordance with its case‑law it is thus not necessary to determine whether Russia exercised detailed control over the policies and actions of the subordinate local administration. Russia’s responsibility is engagedby virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive (see Mozer, cited above, § 217).
102. The Court concludes that the Russian Federation is responsible for the violation of Article 13 taken in conjunction with Article 1 of Protocol No. 1 to the Convention in the present case (see Mozer, cited above, § 218).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
103. 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
104. The applicantsnatural persons claimed 2,400 euros (EUR) each in respect of non-pecuniary damage. Their representatives argued that it would be virtually impossible to make individual arguments for each applicant given the differences amongst them in terms of age, the amount of land owned andany alternative income and owing to other issues, and so it seemed more appropriate to them to claim a fixed amount in respect of non‑pecuniary damage, which would also cover the pecuniary damage caused to them. At the same time, some applicants had disposed of their land after lodging their application and could not claim the same amount. These applicants claimed EUR 1,500 each.
105. The applicant companies submitted audits detailing their losses and asked for compensation for those sums: 2,020,779 Moldovan lei (MDL, the equivalent of approximately EUR 115,300) in the case of Agro-Tiras S.R.L.; MDL 1,411,181 (approximately EUR 80,500) for Agro-S.A.V.V.A. S.R.L.; and MDL 5,325,000 (approximately EUR 303,900) forPosedo‑Agro S.R.L. In addition, they each claimed EUR 5,000 in respect of non-pecuniary damage.
106. The Moldovan Government noted that they had fulfilled their positive obligations in respect of the applicants’ cases.
107. The Russian Government considered that the claims for non‑pecuniary damages were ill-founded and unsubstantiated. Any damage caused to them had not been Russia’s fault. In any event, the interference, if any, with their rights had been of short duration, unlike the cases concerning Northern Cyprus. Moreover, the applicants natural persons had acknowledged that they could sell their land, as some had done, which showed that they had preserved all the powers of owners to possess, use and sell their land. As for the applicant companies, their claims were based on audits which could not be verified owing to a failure to append any primary company documents on which those reports had been based. Therefore, the pecuniary claims by the applicant companies were highly speculative and “[could] be considered only as reference material” (with reference to Sovtransavto Holding v. Ukraine (just satisfaction), no. 48553/99, § 61, 2 October 2003).
108. The Court notes that it has not found any violation of the Convention by Moldova in the present case. Accordingly, no award of compensation is to be made with regard to this respondent State.
109. Having found that the Russian Federation is responsible for the violations found, the Court will examine the claims for just satisfaction with regard to that respondent State.
110. The Court considers that some damage has been caused to the applicants natural persons owing to their inability to access their land for two years and the subsequent obligation to conclude rental agreements for land which they already owned. Having regard to the circumstances of the case and making its assessment on an equitable basis, the Court awards in respect of non-pecuniary damageEUR 1,500 to each such applicant (mentioned in Annexes 1, 3, 4, 6 and 8, with the exception of Mr Simion Creț, Mrs Lidia Creț and Mr Ion Luchianov, see paragraph 53 above), plus any tax that may be chargeable on that amount.
111. As for the applicant companies, the Court notes that in addition to audits carried out by independent companies two of the three applicant companies also submitted copies of primary documents. Agro-S.A.V.V.A. S.R.L.and Agro-Tiras S.R.L. each submitted, for the period of for 2004 and 2005, their financial reports, their annual balance sheetsand reports to the Statistics Department, as well as the 2004 reports on special forms reserved for agricultural entities. They also submitted certificates from the statistical authorities concerning the average productivity of land in the region, as well as average sales prices for various types of agricultural products in 2004.Each of them also submitted an audit by an independent Moldovan company calculating the losses sustained as a result of the restrictions on their agricultural activity on the land rented in the relevant area.
112. The Court notes that the Russian Government challenged the authenticity of the audits owing to their inability to access the primary financial documents on which those reports had been based. However, as found above (see paragraph111 above), copies of such primary documents were in the case file and had been sent to the Russian Government. In the absence of any reason to doubt the authenticity of the primary financial documents and of any other comment by the parties as to the actual calculations made in the audit reports, the Court cannot ignore the reports submitted by the applicant companies. It therefore awards the amounts requested in full, namely EUR 115,300 to Agro-Tiras S.R.L. and EUR 80,500 to Agro-S.A.V.V.A. S.R.L., in respect of pecuniary damage.
113. The Court notes that the applicant company Posedo-Agro S.R.L. submitted its own calculations based on its balance sheet. As it has not existed since 2007, it was incapable of obtainingaudit reports. The Court finds that the absence of primary financial documents makes it difficult to determine the exact extent of the losses sustained by the company as a result of being unable to cultivate the land in the relevant region. At the same time, it is clear that the company was actively harvesting agricultural products in 2004, at the time when access to the land was blocked, as is evidenced by the fines paid to the “MRT” authorities for failure to declare its exportation of agricultural products (see paragraph 19 above).Moreover, the overall area of land which the company rented in the relevant area (1,256 hectares, see paragraph 19 above) greatly exceeded that of the other two companies (105 and 450 hectares respectively). This may explain the applicant company’s claim that its losses exceeded those of the two other companies combined. Owing, on the one hand, to the absence of a compelling manner in which to establish the damage caused to this company, but also, on the other hand, in view of the overall area of land it rented over the relevant period and the other evidence in the file, the Court awards Posedo-Agro S.R.L. EUR 50,000 for the pecuniary damage incurred, to be paid to its successor, Serghei Popa FP.
114. As for the applicant companies’ claims for non-pecuniary damages, the Court reiterates that it “cannot … exclude the possibility that a commercial company may be awarded pecuniary compensation for non‑pecuniary damage”. Moreover, non-pecuniary damage suffered by such companies may include heads of claim that are to a greater or lesser extent “objective” or “subjective”. Among those, account should be taken of the company’s reputation, uncertainty in decision-making, disruption in the management of the company (for which there is no precise method of calculating the consequences) and lastly, albeit to a lesser degree, the anxiety and inconvenience caused to the members of the management team (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 35, ECHR 2000‑IV;Sovtransavto Holding, cited above, § 79; and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 60, ECHR 2004‑X).
115. In the present case, the Court notes that the applicant companies’ sole activity consisted of agriculture. Following the loss of access to the land rented with the aim of cultivating it, the companies sustained losses, while Posedo-Agro S.R.L.ceased to exist.
116. Ruling on an equitable basis the Court awards each applicant company EUR 5,000 in respect of non-pecuniary damage (see Sovtransavto Holding, cited above, § 82, and Oferta Plus S.R.L. v. Moldova (just satisfaction), no. 14385/04, § 76, 12 February 2008).
B. Costs and expenses
117. The applicants also claimed EUR 111,060 for the costs and expenses incurred before the Court. The applicant companies relied on contracts with their legal representatives, based on an hourly rate of EUR 100 and itemised lists of hours spent working on the cases (in total EUR 12,000). As for the representation of the applicants natural persons, the basis taken was the smallest charge applicable under the Moldovan Bar Association tariff for international litigation (EUR 60 per hour). They took into account that at least one hour had been spent per applicant in order to talk to them and gather the enormous volume of information required (identification details, cadastral information, and the verification of electronic databases), and their number (1,649applicants) and so claimed EUR 99,060.
118. The Moldovan Government considered that the costs claimed by the applicants were excessive.
119. The Russian Government argued that the legal costs claimed by the applicants were ill-founded, unconfirmed by documents and “unprecedentedly excessive”. Moreover, in breach of Rule 60 of the Rules of Court, the applicants had failed to submit itemised particulars of the claims, as well as any supporting documents. Lastly, they noted that the claims for legal fees had not been signed by the applicants, only their representatives, and that there was no evidence that the applicants had ever agreed to pay such sums to their representatives.
120. For the same reasons as indicated above, the Court makes no award covering costs and expenses with regard to Moldova, and limits its consideration of the relevant claims to the Russian Federation (see paragraphs 108-109above).
121. According to the Court’s case-law (see for a recent example Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)), 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. In the present case, regard being had to the documents in its possession and the above criteria, as well as the undeniably extensive work in gathering and submitting individual documents for more than 1,600 applicants, the Court considers it reasonable to award them jointly the sum of EUR 20,000 covering costs under all heads.
C. Default interest
122. 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
1. Decides, unanimously, to join the applications;
2. Decides, unanimously,to strike out the applications lodged by the applicants listed in Annexes 2, 5, 7 and 9, as well as those lodged by Mr Simion Creț, Mrs Lidia Creț,and Mr Ion Luchianov;
3. Declares, unanimously,the application lodged by Mr Serghei Popa in his own name inadmissible;
4. Declares, by a majority,the applicationslodged by the applicants listed in Annexes 1, 3, 4, 6 and 8, as well as by the applicant companies admissible;
5. Holds, unanimously,that there has been no violation of Article 1 of Protocol No. 1 to the Convention by the Republic of Moldova;
6. Holds, by six votes to one,that there has been a violation of Article 1 of Protocol No. 1 to the Convention by the Russian Federation;
7. Holds, unanimously,that there has been no violation of Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention by the Republic of Moldova;
8. Holds, by six votes to one,that there has been a violation of Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention by the Russian Federation;
9. Holds, by six votes to one,
(a) that the Russian Federation is to pay 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:
(i) EUR 115,300 (one hundred and fifteen thousand three hundred euros) to Agro-Tiras S.R.L., EUR 80,500 (eighty thousand five hundred euros) to Agro-S.A.V.V.A. S.R.L. and EUR 50,000 (fifty thousand euros) to Serghei Popa FP, plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable,in respect of non-pecuniary damage to each applicant listed in Annexes1, 3, 4, 6 and 8 or to their heirs as noted in those Annexes, with the exception of Mr Simion Creț, Mrs Lidia Creț and Mr Ion Luchianov;
(iii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each of the three applicant companies;
(iv) EUR 20,000 (twenty thousand euros) jointly, 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;
10. Dismisses, unanimously,the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 17 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Robert Spano
Registrar President
____________
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.
R.S.
S.H.N.
DISSENTING OPINION OF JUDGE DEDOV
My vote in the present case was based on my previous dissenting opinion in the case of Mozerv. the Republic of Moldova and Russia ([GC], no. 11138/10, ECHR 2016) on the issue of the Russian Federation’s effective control over Transdniestria.
List of annexes:
Annex 1 Sandu and Others (21034/05) main list of applicants (and of their successors, where applicable)
Annex 2 Sandu and Others (21034/05) list of applicants who did not provide sufficient information or without known successors
Annex 3 Carauș and Others (7105/06) main list of applicants (and of their successors, where applicable)
Annex 4 Gavrilita and Others (9713/06) main list of applicants (and of their successors, where applicable)
Annex 5 Gavrilita and Others (9713/06) list of applicants who did not provide sufficient information or without known successors
Annex 6 Gatina and Others (18327/06) main list of applicants (and of their successors, where applicable)
Annex 7 Gatina and Others (18327/06) list of applicants who did not provide sufficient information or without known successors
Annex 8 Isacov and Others (38649/06) main list of applicants (and of their successors, where applicable)
Annex 9 Isacov and Others (38649/06) list of applicants who did not provide sufficient information or without known successors
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