CASE OF VOLCHKOVA AND MIRONOV v. RUSSIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicants were born in 1945 and 1935 respectively and live in Moscow and Lyubertsy. 6. The applicants, together with another person, were joint owners of a plot of land and the house built on it. 7. The first applicant owned a one-sixth share of a house constructed between 1937 and 1949 (her share amounting to some 24 sq. m, of which some 12 sq. m was living space), and 208 sq. m of land. The property had been her registered address since 2001. It appears that her title originated in the inheritance she had received after her late mother’s death in 1995. 8. The second applicant owned a half share in the same house (amounting to some 78 sq. m) and 625 sq. m of the same plot of land. It appears that he had first had a right of use (as part of inheritance after another person) in respect of the land and had then acquired title to it in 1993; that he had inherited his share in the house after another person in 1975. 9. The remainder of the house and plot of land were owned by the first applicant’s brother. 10. On 28 June 1999 the Ministry of Construction of the Moscow Region issued a decision to “adopt” the general plan of Lyubertsy town, “to invite the Lyubertsy municipality to continue co-operating with the authors of the general plan when preparing future projects, bearing in mind that the plan is the main legal document in relation to town planning”. In August 2005 the decision was amended to indicate that the Ministry “had adopted the plan for further approval in accordance with the established procedure” (see also paragraph 30 below). 11. In November 2001 the Lyubertsy municipality (“the municipality”) adopted a programme aimed at demolishing dilapidated housing. 12. In April 2002 the local authorities adopted draft construction guidelines for the Oktyabrskiy Proezdy district where the applicants’ house was situated. The draft guidelines were published in a local newspaper on 6 August 2002. It appears that they were eventually adopted in 2003. 13. A committee composed of officials attached to various public authorities was asked to make a proposal regarding a plot of land for constructing blocks of flats. The committee considered that it would be appropriate to construct blocks of flats at Kirova Street. It does not transpire from the committee’s deliberations that they considered any other plots of land. On 30 May 2002 the municipality issued a decision by which it agreed to the construction of several blocks of flats (including one on the applicants’ land) and authorised a specialised State enterprise to start the compiling of the necessary technical documents. 14. In September 2002 the regional administration, the Lyubertsy town administration and a State enterprise signed an investment contract for the construction of multi-storey blocks of flats in the area, including the applicants’ land. Under the terms of the contract, the enterprise would arrange to buy the land from private owners and the municipality would acquire title to it. The investor would also take measures to resettle any inhabitants and provide them with compensation. The municipality and the investor would own 5% and 95% of the newly built housing space respectively. The estimated preliminary cost of the project amounted to 14,481,000 euros (EUR). 15. As transpires from the available information, the block of flats to be built on the applicants’ land comprised seventeen floors, 352 flats with the total space of 21,146 sq. m. Under the investment contract, the municipality was to receive title to some thirty flats for the overall space of 1,907 sq. m. 16. The investor also agreed to make a contribution of funds corresponding to some 30% of the estimated costs for constructing a kindergarten for 114 children, an annex building for a school and some other amenities or facilities. 17. In October 2002 a private company, ORS-Grupp, replaced the State enterprise as the project investor. 18. In December 2002 the municipality issued an order aimed at implementing the demolition programme adopted in November 2001 and “improving the architectural appearance of the town and the resettlement of inhabitants from housing that no longer [met] sanitary requirements”. The above investment project was one of the measures by which the municipality intended to achieve those aims. In total, the order concerned some eleven investment contracts in relation to over seventy dwellings, of which some thirty properties were privately owned and the remainder was owned by the municipality. 19. The municipality assessed the situation as regards the private owners, including the applicants, and decided to proceed by way of expropriation for municipal needs under the Land Code (see paragraph 59 below). 20. On 18 March 2003 the municipality ordered the expropriation of the applicants’ house and land for municipal needs, namely the construction of a block of flats under the investment contract. 21. According to the Government, on 24 April 2003 the second applicant received notice of the planned expropriation. 22. On 19 May 2003 the municipality amended the expropriation order, indicating that pursuant to the investment contract the investor had to provide funds for paying compensation for the land being expropriated and provide inhabitants with comparable alternative housing. The investor was required to request expert valuations to determine the market value of the properties being expropriated (see paragraphs 23 and 27 below) and then buy those properties. 23. It appears that on 21 May 2003 the investor obtained a valuation report regarding the applicants’ house and land to determine their market value. The company used was Expert Centre, a private company licensed by the State to carry out valuation assessments (see paragraph 64 below). The Court was not provided with a copy of this valuation report. 24. According to the Government, on 27 and 29 May 2003 the first applicant was served with notice of the planned expropriation. In January 2004 both applicants were informed that the amended expropriation order had been officially registered. 25. According to the Government, on 3 July 2003 there was a meeting between Kirova Street residents and, apparently, a representative of the local authorities or the private company. The Government stated that the residents had been given access to a construction planning document for the area, documents concerning the choice of plots for such construction, the town plan and some other documents. 26. As no comparable plots of land were available in the area, having regard to the valuation report of 21 May 2003 (see paragraph 23 above), the first applicant was offered several options of “compensation in kind”, namely one or two-room flats in Lyubertsy or Moscow with market values of up to 150,000 United States dollars (USD), apparently with ownership title. She was also offered monetary compensation for the land and her part of the house of up to USD 50,000. However, she turned down these offers, considering them insufficient or the location of the alternative housing unsuitable. The second applicant appears to have turned down offers of plots of land in nearby areas ranging between USD 60,000 and 140,000 in value. The second applicant also turned down another offer: ownership title to two flats measuring at least 35 sq. m and 54 sq. m each together with USD 34,874. The second applicant stated that he was entitled to compensation amounting to USD 330,000. The investor then made a new offer of USD 200,000 as compensation for his part of the house and land. The second applicant did not accept it. 27. On 5 May 2004 the investor requested another valuation report regarding the applicants’ house and land from Expert Centre. On 14 May 2004 it issued a report indicating that the overall market value of the first and second applicant’s shares of the house and land were USD 24,488 and USD 73,463 respectively. The Court was provided with part of that report, which reads: “[Description] of the assessment object: a residential house (a single-storey building made of wood, [measuring] 110.8 [sq. m], of which 86 [sq. m is] living space) and annexes; a plot of land [measuring] 1,249 [sq. m] ... [Location] of the assessment object: ... The assessment object is situated in the centre of the old town of Lyubertsy. On the one hand, there are old buildings (essentially residential houses dating back to the 1930s to 60s) and, on the other, [there are] new buildings consisting of modern blocks of flats. The town’s major traffic arteries are in the immediate proximity of the assessment object. There is a car park on one side of the street and a residential area ont the other ... They have a well-developed infrastructure, good access to transport up to Vykhino metro station, central Lyubertsy and the above residential area ... Description of the plot of land: ...Vykhino metro station is within a ten-minute ride by public transport ... Description of the house: ... the main building was first constructed in 1937; the remaining buildings later, until the 1970s ... The house is habitable, although it requires some superficial repairs ...” 28. In November 2004 the district chief architect and the local land authority informed the municipal administration that the town’s general plan of 1999 made no provision for the construction of individual housing. On 23 November 2004, in reply to an enquiry raised by the investor company, the municipality announced that it had no available plots of land that would be equivalent to the land to be expropriated from the applicants, namely those assigned for the construction of individual housing. 29. In late 2004 the town administration brought proceedings in the Lyubertsy Town Court of the Moscow Region (“the Town Court”) seeking judicial authorisation for the expropriation of the applicants’ house and land. In December 2004 the first applicant lodged a separate claim against the municipality, arguing that the expropriation orders of 18 March and 19 May 2003 were ultra vires and otherwise unlawful and disproportionate. On 29 December 2004 the Town Court held a hearing. After hearing evidence from a representative of the municipality, it decided to join the cases. An appeal brought by the first applicant was not processed since the procedural order was not amenable to appeal. 30. In the meantime, the Moscow Region Prosecutor’s Office replied to a request for information from the second applicant, informing him that the regional ministry had acted ultra vires in taking a decision on the general plan in 1999 and that no copy of it existed (see paragraph 10 above). The applicants informed the court examining their case accordingly. 31. The court held several hearings in the expropriation case. It appears that on 11 February 2005 the court ordered a new report from Expert Centre. The applicants did not oppose the choice of company and did not ask for any particular questions to be put to its experts. 32. In February 2005 a group of three experts compiled a report indicating USD 23,300 and 5,200 as the market values of the first applicant’s land and part of the house respectively, and USD 70,000 and 15,600 as the second applicant’s (compare the earlier assessment in paragraph 27 above). The land and house were therefore valued at USD 112 and 216 per sq. m respectively. 33. In reply to the second applicant’s complaint, on 14 March 2005 the Prosecutor’s Office provided the following reply (see also paragraphs 55 and 56 below): “Regarding your complaint about unlawfulness relating to the adoption of Lyubertsy town plan: I inform you that Articles 18, 28, 35, 39, 58 and 60 of the old Town Planning Code provided for a procedure relating to consultation with the local population in relation to the documents relating to town planning. At the same time, the Code did not specify any particular manner for obtaining the population’s view, and thus consultations could be done in any form. It has been established that Lyubertsy town plan was adopted on 28 June 1999 by the Ministry of Construction of the Moscow Region and not by a municipality, in breach of Article 35 of the Town Planning Code. Moreover, there is a breach of the same provision due to the fact that there is currently no Lyubetsy town plan. The municipality will be ordered to remedy the violation of the Code.” 34. On 7 April 2005 the municipality’s mayor wrote to the Town Court asking to speed up the court proceedings, arguing that some of the flats were to be given to the people waiting for social housing and that the procrastination of the proceedings was also prejudicial to the people who had invested in the construction project. 35. On 13 April 2005 the Town Court delivered a judgment, stating as follows. 36. The applicants appealed. They contended, inter alia, that the expert report relied on by the first-instance court had in fact been requested by the municipality and was thus biased and based on the material provided by them; no court-requested report had been prepared. The first applicant also argued that the expert report had failed to take into account the scarcity of land in Lyubertsy for individual housing; the commercially attractive location of the land, which bordered the city of Moscow; the proximity of a metro station under construction (or planned); and the intended use of the land being expropriated for commercial gain arising from the construction of blocks of flats. The applicant also contested the expert assessment regarding the value of the house to be demolished pursuant to the expropriation decision. The expert had not used the “method of prospective use” for determining the value of the house and land. The expert valuation was based on the premise that the land’s use was for a summer cottage use rather than for the use relating to multi-storey blocks of flat; this premise was inappropriate, given that the property was already surrounded by similar blocks of flats. With reference to the above considerations, the applicant’s own calculations amounted to USD 246,418 for her part of the land. 37. On 4 July 2005 the Moscow Regional Court upheld the first-instance judgment. 38. On 18 August 2005 the first applicant applied for supervisory review of the court decisions of 13 April and 4 July 2005, requesting that the enforcement proceedings be suspended. 39. In the meantime, on 22 August 2005 the applicants were evicted and had their belongings removed from the house. According to the Government, the first applicant’s belongings were then delivered to the social housing flat where they were then stored, under the supervision of a local public official, until December 2006 when she received the keys. 40. A bank account was opened for the first applicant, and the expropriation compensation was credited into it on 26 August 2005. The bank issued a certificate allowing the accountholder to use the money. On 29 August 2005 the first applicant was informed of the above. 41. On 31 August 2005 the Regional Court dismissed the first applicant’s application for supervisory review. The reviewing judge held that the municipality had had competence to issue the expropriation decision, referring to the available general plan and all the other necessary documents. 42. In November 2005 the first applicant lodged a further application for review before the President of the Regional Court. On 22 November 2005 the application was examined and rejected by another judge of the Regional Court. In March 2006 the first applicant again applied for review before the President of the Regional Court. In a letter of 10 April 2006 the President of the Regional Court dismissed her application, upholding the earlier refusals. 43. The first applicant lodged an application for supervisory review with the Supreme Court of Russia. On 5 July 2006 it was dismissed. The applicant challenged that decision before the Deputy President of the Supreme Court. In a letter of 11 October 2006 he agreed with the lower courts’ decisions. In April 2008, in reply to a new application, the Supreme Court informed the first applicant that she could lodge no further supervisory review applications in respect of the court decisions. 44. According to the Government, until November 2006 the first applicant refused to accept the keys to the flat and the bank certificate relating to the account into which the expropriation compensation had been credited. 45. On 1 December 2006 the applicant received the keys for the flat, the bank certificate and her belongings that had been in safekeeping. 46. According to the second applicant, in July 2006 the municipality resold the properties it had acquired under the investment project to the investor. 47. In 2005 the second applicant brought separate proceedings challenging the orders of 18 March and 19 May 2003. On 10 October 2005 the Moscow Regional Court took a final decision rejecting his claim, primarily because it was time-barred but also because the main arguments had already been dealt with in the final judgment of 13 April 2005 (see paragraph 35 above). 48. On 26 August 2005 the first applicant brought separate proceedings in the Town Court (i) alleging that the bailiffs had acted unlawfully in the enforcement proceedings, and (ii) claiming compensation in respect of pecuniary and non-pecuniary damage. Her claim was turned down on several occasions because she had failed to comply with the required formalities. It appears that the relevant procedural orders were annulled because they reached the applicant after the respective time limits for complying with them had expired. Several hearings were scheduled in 2007. Sometime during that year the Town Court decided that the claims for compensation should be processed separately. 49. In February 2007 the applicant resubmitted her claim for compensation. On 3 July 2007 the Town Court refused to deal with the case because she had failed to comply with its instructions to specify the amount of the claim, to submit calculations concerning the loss and to pay a court fee. 50. On 5 September 2007 the Town Court granted the first claim in part, considering that the applicant had not been informed in good time of the order launching the enforcement proceedings in 2005. She had thus been deprived of the right to contest the documents relating to the enforcement. 51. The applicant sued the municipality, complaining of losses she had suffered because of inflation arising from the delay in enforcement of the judgment of 13 April 2005 in the part relating to the expropriation compensation. On 10 December 2008 the Town Court awarded her 89,712 Russian roubles (RUB) in pecuniary damages arising from the fact that the judgment had actually been enforced on 1 December 2006. On 26 February 2009 the Moscow Regional Court quashed that judgment on appeal and instead awarded the applicant RUB 3,161, considering that the judgment had been enforced on 26 August 2005 when the expropriation compensation had been credited into the bank account opened for her. 52. In 2008 the applicant lodged a complaint with the bailiff service, requesting compensation for belongings that had either been lost or damaged during or following demolition of the house. On 22 May 2008 the District Bailiff Office replied that an inventory of her belongings had been compiled before the demolition. They had all been transferred to her social housing flat and entrusted to a public official for safekeeping; she had had three years to reclaim them. In February 2009 a new complaint by her was dismissed by the Federal Bailiff Office, which noted that the notices dated 11, 12, and 15 August 2005 of the impending demolition of the house had not been served on her personally as she had been away from her temporary address. Between August 2008 and January 2009 various courts in Moscow declined jurisdiction or turned down for procedural reasons a related civil claim by her against the Federal Ministry of Justice.