CASE OF DUNAYEV v. RUSSIA
Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings
Christos Rozakis
6. The applicant was born in 1938 and lives in the Tula Region. 7. The applicant instituted civil proceedings in Moscow, some 300 kilometres from his place of residence. He sued the Russian Ministry of Finance and the Russian Ministry of Defence in connection with military operations in Chechnya in 1995. He claimed, in particular, that his property, including his flat, had been destroyed during an attack by federal forces on the centre of Grozny in January 1995 and sought compensation for pecuniary damage. The applicant submitted that the damage had been inflicted as a result of the use by the State of hazardous devices (источник повышенной опасности), namely weapons and military equipment, and that he was therefore entitled to compensation under the relevant provision of law without having to prove that the defendant had been at fault. The applicant also stated that he had endured mental suffering when forced to live in the zone of active military action, and claimed compensation for non-pecuniary damage on that account. 8. On 14 December 2000 the Basmanny District Court of Moscow (“the District Court”) examined the applicant's claims. It acknowledged that the applicant's property had been destroyed as a result of an attack in 1995, but noted that the applicant had failed to prove that his possessions had been damaged by Russian federal troops rather than by rebel fighters, as both parties to the conflict had used weaponry and ammunition of the same standard. The court also noted that under Articles 1069–1071 and 1100 of the Civil Code of Russia the State was only liable in damages for the unlawful acts of its agents. It further held that the military operations in Chechnya had been launched by presidential and governmental decrees which had been held to be constitutional by the Constitutional Court of Russia and were still in force. Accordingly, the court concluded that the actions of the Russian federal troops in Chechnya were lawful and dismissed the applicant's claim for compensation for pecuniary and non-pecuniary damage. 9. On the same date the applicant lodged a preliminary notice of appeal (предварительная кассационная жалоба) in which he requested the appellate court to quash the judgment and remit his case for fresh consideration. He also expressed his intention to adduce detailed arguments after acquainting himself with the text of the transcript of the first-instance hearing and obtaining a full copy of the judgment. Thereafter the applicant left for his place of residence. 10. In a letter of 20 December 2000 the District Court informed the applicant that he could obtain a full copy of the judgment of 14 December 2000 and access to his case file at the court registry. 11. On 21 December 2000 the applicant applied in writing to the District Court for a copy of the transcript of the hearing on 14 December 2000, and a document that had been adduced by the defendants at the hearing. According to the applicant, he never received a response to his request. 12. On 17 January 2001 the applicant sent another request to the District Court, which also remained unanswered. 13. In a letter of 14 February 2001 the District Court forwarded a copy of the judgment of 14 December 2000 to the applicant and notified him that a hearing of his appeal was scheduled for 28 February 2001. The applicant received this letter on 21 February 2001. 14. On 27 February 2001 the applicant prepared detailed appeal submissions (кассационная жалоба), in which he claimed that the first-instance court that the defendants had not adduced any evidence capable of refuting his arguments and that therefore the judgment of 14 December 2000 was unfounded and should be quashed. He further reiterated that his property had been destroyed during an attack in January 1995, and that under national law he was entitled to compensation for pecuniary damage. He also stated that he had endured mental suffering when forced to live in the zone of active military action, and therefore had the right to compensation for non-pecuniary damage. The applicant further argued that once the District Court had established that his property had, in fact, been destroyed, it should have indicated who was liable to compensate him for that damage. He claimed in this respect that since the military operations in Chechnya had been launched by the Russian State, it was the State which should compensate him for his losses. The applicant also insisted that during the military operations the State had used hazardous devices, namely heavy artillery and other indiscriminate weapons, and that under national law he was absolved of any obligation to prove that the damage had been caused by the defendants' fault. 15. At the end of his appeal submissions the applicant provided a list of the documents lodged, namely, three copies of his detailed appeal submissions of 27 February 2001, a copy of the preliminary notice of appeal dated 14 December 2000, a copy of the District Court's judgment of 14 December 2000, a motion to exempt the applicant from payment of the court fee, a copy of a certificate indicating the inflation rate in Russia for 1995-2000 and a copy of the summons for the appeal hearing as well as the envelope in which it had been sent marked with the date of receipt. 16. According to the applicant, a few hours before the court hearing on 28 February 2001, he attempted to file his detailed appeal submissions and to gain access to his case file at the registry of the Moscow City Court (“the City Court”), but was not allowed to do so. He then attempted to lodge his detailed appeal submissions at the hearing, but the presiding judge refused. 17. The Government referred to information provided by the Supreme Court of Russia that the applicant's appeal of 27 February 2001 had been accepted and examined by the City Court. They did not indicate the date on which the applicant's appeal had been received and registered by the City Court's registry. 18. By a decision of 28 February 2001 the City Court upheld the judgment of 14 December 2000. The applicant attended the hearing and presented his arguments. The City Court held that the conclusions of the court below were correct and well-founded, since the applicant had not adduced any evidence that the actions of the Russian federal troops within the territory of Chechnya were unlawful or that the alleged damage had been caused by them rather than by rebel fighters. It went on to address the applicant's argument that the weapons used were hazardous devices and that the damage should therefore be compensated irrespective of the question of fault. The City Court noted that this argument could not constitute a ground for quashing the judgment at first instance, as according to a decision of the Plenary of the Supreme Court of Russia, firearms could not be regarded as a hazardous device so that a claim for compensation for the damage caused by the shooting would only lie if the defendant was at fault. It concluded: “The arguments advanced in the appeal do not point to any circumstances which have not been examined by the [first-instance] court or which could rebut the conclusions of the judgment. They seek to re-evaluate the adduced evidence and cannot serve as a basis for quashing the judgment.” 19. On 1 March 2001 the applicant sent a letter to the President of the City Court, complaining about the court's refusal to examine the detailed appeal submissions he had given to the presiding judge at the court hearing on 28 February 2001 and requesting that the appeal be registered and a copy of the court's decision of 28 February 2001 forwarded to him. 20. In a letter of 26 March 2001 the District Court sent a copy of the requested decision to the applicant without further explanation. 21. In order to be able to assess the merits of the applicant's complaint, the Court invited the Government at the admissibility stage to submit documentary evidence to clarify whether the applicant's detailed appeal submissions had been received and registered by the Moscow City Court. 22. In reply, the Government submitted a copy of the applicant's preliminary notice of appeal of 14 December 2000 and of his detailed appeal submissions of 27 February 2001. 23. The first document, which is dated and signed by the applicant, bears the stamp of the Basmanny District Court of Moscow together with a reference number and the date of 14 December 2000. There are also a number of handwritten notes, dates and signatures on the document which make it clear that it was sent to, and received by, the Moscow City Court. 24. The copy of the applicant's detailed appeal submissions, which is dated and signed by the applicant, contains no official stamps or dates to indicate whether they were received by the Moscow City Court and, if so, on what date. The list of the enclosures at the end of the document has been crossed out and the word “refused” has been inserted by hand nearby. The date of this “refusal” is missing, but the signature is very similar to that of the presiding judge on a copy of the appeal decision of 28 February 2001. 25. Article 282 enshrined the right of any party to a dispute and of other participants in proceedings to appeal against a first-instance judgment. 26. Article 283 provided that, as a rule, an appeal should be brought through the first-instance court that delivered the judgment. However, the fact that an appeal was lodged directly with an appellate court should not preclude the latter from examining it. 27. By virtue of Article 284, an appeal could be lodged within ten days after the first-instance judgment was finalised. 28. Article 286 laid down a number of formal requirements for lodging an appeal. In particular, the notice of appeal had to indicate the court to which it was addressed, the name of the person lodging it, the judgment being appealed against and the court which had delivered that judgment, the grounds of appeal and the list of documents enclosed with the appeal. An appellant could not refer to new evidence which had not been before the first-instance court unless he or she could substantiate that it had been impossible to adduce that evidence at first instance. 29. Article 291 secured the right of the other party to the dispute to submit written pleadings in reply to an appeal.