CASE OF SALAMOV 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;George Nicolaou;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1960 and lives in Grozny, Chechnya. 6. In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic. 7. On 14 December 1999, during an identity check, military servicemen seized a truck (and the registration papers) from the home of the applicant and his family at 90, Shkolnaya Street, in the town of Shali, Chechnya. The truck had the following vehicle details: model – “KAMAZ”-53212; year of manufacture – 1991; registration number – И 05-92 ЧИ; engine number 798859; chassis number – 071560; cab number – 1392122; colour – khaki. According to the applicant, the truck was in working order and in use. The servicemen failed to present any document authorising the seizure. 8. On several occasions between December 1999 and February 2000 the applicant’s father, Mr Abu-Sultan Salamov, complained to various military and civilian authorities, as well as the local police and the prosecutor’s office, and requested the return of the truck. 9. On an unspecified date Major-General V., the head of the “East” zone group of the joint forces of the internal troops of the Ministry of the Interior, wrote to the Shali district prosecutor’s office: “In reply to your written enquiry of 22 February 2000 concerning Mr A. A. Salamov’s complaint, I would like to confirm that vehicle “KAMAZ”-53212, made in 1991, engine number 798859, khaki colour, chassis number 071560, is indeed located at the base of military unit no. 3702. At present the truck is not being used; it has been sealed and placed in the car park for seized and wanted cars. Enquiries about a car with the above vehicle details have been sent to units of the [Ministry of the] Interior and other armed forces in order to verify the ownership of the truck on the basis of the lists of vehicles seized (stolen or lost) during the antiterrorist operations in 1994-1995 and 1999-2000. Upon confirmation that the vehicle concerned does not belong to a unit of the [Ministry of the] Interior or other armed forces, the truck will be returned to its owner, Mr A. A. Salamov.” 10. On 24 April 2000 the truck was returned to the applicant. On the same date Colonel K., Commander of the operative headquarters of the zone “East” of the counter-terrorist operation, issued the applicant with the following certificate: “The present document is given to Mr Aslambek A. Salamov, residing at ..., passport ..., to certify that on 14 December 1999, during an identity check, officers of the [Ministry of the] Interior seized his truck KAMAZ-53212, made in 1991, colour khaki, engine number 798859, chassis number 071560, registration no. Ч 05-92 Ш, and returned it to him on 24 April 2000. The vehicle’s registration document and number plates were lost while it was at the military unit.” 11. On 27 April 2000 a commission consisting of a deputy head and two employees of Shali town council – in the presence of the applicant’s father – drew up an evaluation report to certify the damage caused to the truck. It stated that on 14 December 1999, during an identity check, officers of the Interior had seized the truck and on 24 April 2000 had returned it to the applicant’s father (referred to as the owner) without the vehicle registration documents and number plates. The commission prepared a list of parts missing from the vehicle (which amounted to 69 items) and estimated the total damage at 147,650 Russian roubles (RUB). 12. On 26 May 2003 a forensic expert examined the truck and stated that its engine number had been erased, but that the cab number (1392122) remained intact. 13. On an unspecified date the applicant brought an action in the Oktyabrskiy District Court of Grozny for his title to the truck to be recognised. 14. On 21 August 2003 the District Court granted the action. It noted that the vehicle registration documents had been lost by military officers and that the state archives had been destroyed during the conflict. On the basis of statements given by the applicant and two witnesses, as well as the relevant documents submitted by the applicant, the court held that the applicant was the owner of a KAMAZ truck corresponding to the relevant vehicle details, with the registration number И 05-92 ЧИ, but without an identification number. On 1 September 2003 the judgment became final. 15. The applicant attempted to obtain compensation from the military authorities and lodged complaints with various law-enforcement and administrative authorities in Chechnya, describing in detail the seizure of the vehicle on 14 December 1999, alleging that it had been used by the military unit stationed at the village of Avtury, in the Shali district, and referring to the damage inflicted. The applicant’s family had written, inter alia, to the head of the Chechnya Administration (on 28 January 2001), the Chechnya military prosecutor (on 3 January 2003), and the Shali district prosecutor’s office (on 3 January 2003). On 22 August 2003 the military prosecutor of military unit no. 20116 advised the applicant to seek damages in civil proceedings. 16. On 17 May 2004 the applicant sued military unit no. 3702 in the Prikubanskiy District Court of Krasnodar for unlawful seizure of his truck. He also claimed compensation for the missing parts, the cost of repairs and the use of the truck by the military. The applicant also sought non-pecuniary damages. He referred to Articles 151 and 1064 of the Russian Civil Code (see “Relevant domestic law and practice” below), which set out the general principles of liability in respect of pecuniary and non-pecuniary damage. 17. On 22 July 2004 the Prikubanskiy District Court of Krasnodar delivered its judgment. It examined the log book of the military unit for the period between 14 and 16 December 1999, but found no record of the seizure of the applicant’s truck. The court heard evidence from two servicemen who had served in unit no. 3702 at the relevant time and who denied the presence of any alien truck in the base of the unit. On this basis, the court doubted the veracity of the information contained in the letter from Major-General V. (see paragraph 9 above) which stated that the truck was being kept at the base of military unit no. 3702. It noted that the letter had not referred to the sources of such information and that, in any event, the ownership of the truck in question remained unclear at that time. The court declined to calculate the amount of damages on the basis of the evaluation report of 27 April 2000 because the commission consisting of the local council representatives had had no special knowledge or expertise enabling it accurately to assess the damage inflicted. The court examined the case with reference to Articles 1069 and 1070 of the Russian Civil Code (see “Relevant domestic law and practice” below). Under those provisions, damage caused by an unlawful act or a failure to act on the part of the State or municipal bodies, or their officials, is to be compensated at the expense of the federal, regional or municipal treasury, as appropriate. The court thus concluded that military unit no. 3702 was not the proper defendant in the case. 18. On 14 September 2004 the Krasnodar Regional Court held an appeal hearing. It endorsed the reasoning of the first-instance court. 19. The Government submitted that following the communication of the case, another check had been carried out by the military prosecutor for the North Caucasus Military Circuit (“the military prosecutor”). They submitted documents attesting to the following. 20. On 13 January 2009 military unit no. 3702 informed the military prosecutor that although a number of military units of the Ministry of the Interior had been involved in special operations on 14 December 1999 in the town of Gudermes [in the Shali district], they had not conducted any operations in the town of Shali. Further details about the nature of operations in Gudermes could not be disclosed as such information was classified. The archive of the military unit contained no documents relevant to the alleged seizure of the KAMAZ truck and no record of any complaints by the applicant regarding the alleged seizure. 21. On 22 January 2009 the chief of headquarters of the North Caucasus regional command centre of the joint forces of the internal troops of the Ministry of the Interior (“the regional command centre”) informed the military prosecutor by letter that military unit no. 3702 had not been involved in any special operations in the village of Avtury, in the Shali district, on 14 December 1999. The regional command centre had no information about the truck allegedly seized from the applicant or about his complaints to that effect. Finally, the letter stated that Major-General V. had not served in the regional command centre of the Ministry of the Interior. 22. On 24 January 2009 military unit no. 3702 issued two notes, to the effect that on 14 December 1999 its servicemen had not carried out any operations in the village of Avtury and that they had not undertaken any actions there aimed at the identification of stolen vehicles and had not seized the applicant’s truck. 23. In January 2009 four servicemen who had served in military unit no. 3702 signed affidavits concerning the events of December 1999. The servicemen confirmed that they had been serving in military unit no. 3702 in December 1999 and had been stationed in the village of Avtury, but could not recall the presence or use of any KAMAZ truck seized from a local inhabitant. 24. On 2 February 2009 the head of military unit no. 3702 signed a report on an internal investigation into the alleged seizure and retention by the military unit of the applicant’s KAMAZ truck in December 1999. The investigation had begun in December 2008 following the communication of the applicant’s complaint to the Russian Government. The report referred to two documents produced in 2000 (see paragraphs 9 and 10 above) as the basis for the allegation. The report further noted that four officers who had served in the military unit during its mission to Chechnya in 1999-2000 – two colonels and two lieutenant-colonels – had stated in January 2000 that they had not been aware of any such seizure (see preceding paragraph). The report concluded that it could not be established that the KAMAZ truck had been kept at the base of military unit no. 3702 following its seizure on 14 December 1999.