«Журавльова проти України»: ЄСПЛ встановив порушення Конвенції, оскільки національне законодавство не надавало Заявниці процесуальних гарантій для захисту її прав на повагу до житла і приватного життя (ст. 8 Конвенції, заява № 45526/08, від 31.01.2019 р.)
Фабула судового акта: Заявниця, громадянка України О.В. Журавльова, звернулася до ЄСПЛ, стверджуючи, що частину її житла було незаконно продано, а державні органи не змогли захистити її тиску з боку співвласника житла.
У 1996 р. Заявниця і її син стали співвласниками квартири.Згодом сина Заявниці було засуджено до позбавлення волі, а все його майно, включно з часткою квартири – конфісковано. У польшому його частку було продано на публічних торгах А.Н., у той же час заявку Заявниці на участь у торгах було відхилено.
Заявниця стверджувала, що новий власний тиснув на неї, погрожував розправою, змушуючи продати йому свою частку за низькою ціною. Відчуваючи страх за своє життя, Заявниця покинула житло, проте продовжувала виплачувати щомісячні платежі за всю квартиру. Під час відвідувань квартири в супроводі міліції, Заявниця виявила, що в ній проживають незнайомці, а деякі особисті речі зникли.
Заявниця зверталася до праовохоронних органів з численними скаргами з приводу здійснюваного на неї тиску і погроз, зникнення її майна, проживання в квартирі незареєстрованих осіб. Скарги Заявниці було відхилено з мотивів їх необгрунтованості. Проте, з огляду на наявність інших потерпілих, було порушено кримінальне провадження щодо А.Н. та його спільників. Заявниця також звернулася до суду з цивільним позовом про відшкодування завданих їй збитків.
Суд припинив провадження у справі, відзначивши, що звинувачення були засновані на припущеннях, а підставою для кримінальної справи був цивільно-правовий спір. Апеляційний суд скасував таке рішення і відправив справу на новий розгляд. Суд визнав обвинувачених винними у вчиненні злочину, засудив їх до позбавлення волі та присудив Заявниці кошти в якості відшкодування моральної шкоди. Заявниця також зверталася до суду з позовом про визнання договору купівлі-продажу частки квартири недійсним, проте у задоволенні її вимог було відмовлено.
Заявниця скаржилася на те, що частка квартира була незаконно продана на аукціоні і що цивільні суди несправедливо відхилили її позов. ЄСПЛ наголосив, що дані скарги є неприйнятними, оскільки Заявниця не використала всіх засобів національного захисту, не оскарживши аукціон за належною процедурою.
Водночас, ЄСПЛ встановив порушення статті 8 Конвенції у зв`язку з нездатністю державних органів захистити її від А.Н. та його спільників протягом майже 9 років. ЄСПЛ дійшов висновку, що національне законодавство не надавало Заявниці процесуальних гарантій для захисту її прав на повагу до житла і приватного життя.
Заявниця також стверджувала порушення статті 1 Першого протоколу Конвенції, оскільки їй не було відшкодовано здійснені платежі за квартиру, а також вартість її зниклого та пошкодженого майна. Проаналізувавши обставини справи, ЄСПЛ відхилив дану частину скарги як явно необґрунтовану.
Аналізуйте судовий акт: «Пиряник проти України» (Piryanik v. Ukraine), заява № 75788/01
«Ірина Смірнова проти України» (Irina Smirnova v. Ukraine), заява № 1870/05
CASE OF ZHURAVLEVA v. UKRAINE
(Application no. 45526/08)
31 January 2019
This judgment is final but it may be subject to editorial revision.
In the case of Zhuravleva v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 8 January 2019,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 45526/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Olga Vasilyevna Zhuravleva (“the applicant”), on 9 September 2008.
2. The applicant was represented by Ms N. Kusner, a lawyer practising in Donetsk. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.
3. The applicant alleged that half her flat had been sold unlawfully at public auction and that the domestic courts had unfairly rejected her allegations in that respect. She relied on Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1 in this respect. She also complained under Article 8 of the Convention that the State authorities had failed to protect her from the co-owner of her flat and his associates.
4. On 8 October 2013 the application was communicated to the Government. The Government objected to the examination of the application by a Committee. Having considered their objection, the Court rejects it.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1958 and lives in Donetsk.
A. Sale of half the applicant’s flat to A.N. and subsequent events
6. In 1996 the applicant and A.Z., her son, privatised a two-room flat of 49 square metres. They lived in it and were its co-owners with equal rights.
7. On 24 September 2002 A.Z. was sentenced to imprisonment; all his property was subject to confiscation, including his share of the flat.
8. On 18 April and 13 June 2005 the State company Ukrspetsyust held two public auctions to sell A.Z.’s share in the flat, but no bids were received.
9. On 4 August 2005 Ukrspetsyust held a third auction and reduced the starting price. The applicant alleges, without providing any details, that she was not allowed to bid at the auction, although she informed the State bailiffs that she was interested. A.Z.’s share was then sold to a certain A.N.
10. According to the applicant, immediately after purchasing A.Z.’s share in the flat, A.N. and his associates started harassing her to force her to sell the remaining share of the flat at a low price. On numerous occasions A.N. approached her with verbal insults and threats of physical violence and promised to make her daily life in the flat intolerable by settling alcoholics and drug addicts in it. On several occasions A.N. threatened to kill the applicant if she persisted in being unreasonable.
11. Thus, in mid-September 2005 at about 10 p.m. A.N. arrived in the flat with V.S. (his cousin) and announced that the latter would be living there. They then started threatening the applicant that they would throw her out of the window, kill her, or create intolerable living conditions for her if she did not give them the flat’s keys and documents and did not agree to transfer her part of the flat to A.N. on his conditions. A.N. said that he was not going to live in his part of the flat and that he needed the whole flat to be able to sell it on. On 16 September 2005 the applicant met A.N. outside the flat and gave him the keys. During the meeting A.N. behaved rudely, used coarse language, and insisted that he was the owner of the flat. Afraid of A.N.’s threats, on 22 September 2005 the applicant left the flat and sought shelter with acquaintances. Subsequently she visited the flat several times. A.N., who was there on one of the days, started insulting her, insisted that the whole flat belonged to him, told her that she had no rights to the flat, and demanded that she surrender her part of the flat in his favour. A.N. also settled various people in the flat; they also occupied her room.
12. The applicant continued to pay the monthly charges for the whole flat, and sometimes visited it with a police escort. During her visits she found that the flat was lived in by up to eight strangers, whose composition frequently changed. She also found that the door and some amenities had been damaged and some of her belongings were missing.
13. Subsequently the applicant found out that A.N. and his associates were part owners of more than sixty flats in the city, which they were subletting to various strangers for short periods of time.
B. Criminal investigation into the applicant’s complaints
14. From mid-September 2005 onwards the applicant lodged numerous complaints with law-enforcement authorities, alleging that A.N. and his associates were harassing her with a view to extorting her half of the flat from her; that various items belonging to her had been stolen or damaged, and that A.N. had let strangers live in the flat. Her complaints were rejected with reference to the insignificant value of those objects and lack of evidence that she had been ill-treated. The authorities also noted that A.N., as a co-owner of the flat, had the right to invite anyone he chose, and if the applicant had any conflicts with him about the use of the joint property she should resolve them in civil proceedings.
15. On 18 July 2006 the Ministry of Interior informed the applicant that they would no longer deal with her complaints, as they were repetitive. On the same day the local police informed her that they had received similar complaints from various individuals in flats of which A.N. and his associates had become part owners. However, there was no basis for bringing charges against them at the material time. The police also acknowledged that they had visited the applicant’s flat; it was inhabited by four men, but there was no reason to evict them from it, since they had settled there with A.N.’s permission.
16. On 27 September 2007 criminal proceedings were instituted against A.N., V.S. and their associate A.L. on charges of extortion and other crimes. The applicant and a number of other individuals, including the applicant in the case of Irina Smirnova v. Ukraine (no. 1870/05, 13 October 2016), were admitted to the proceedings as injured parties. The applicant also lodged a civil claim against A.N. and his associates for damages.
17. On an unspecified date A.N., V.S. and A.L. were committed for trial before the Kyivskyy District Court of Donetsk (“the District Court”) on charges of extortion and theft. A.N. was also charged with hooliganism. According to the prosecution, they had set up a criminal group for the purpose of acquiring shares of flats, which, depending on their owners’ personal circumstances, were made available at low prices. Having lawfully obtained these shares, they had proceeded to extort the remaining share from other co-owners by harassing them verbally or physically and by subletting the flats to strangers, who also damaged and stole the co-owners’ belongings and caused damage to the flats’ amenities.
18. On 24 May 2011 the District Court discontinued the proceedings against A.N. on charges of hooliganism as time-barred, and acquitted all three defendants of the remaining charges, finding that the accusations were based on assumptions. It concluded that the basis for the criminal proceedings was a civil-law dispute between the defendants and the injured parties concerning the use of joint property, which the injured parties had demanded to have examined within the criminal proceedings. It also dismissed the applicant’s civil claim.
19. On 27 February 2012 the Donetsk Regional Court of Appeal (“the Court of Appeal”) quashed the above judgment and sent the case for retrial.
20. On 12 October 2012 the District Court found the defendants guilty of extortion and sentenced them to substantial terms of imprisonment. It found, in particular, that the harassment of the applicant (mentioned, in particular, in paragraphs 10 and 11 above) had indeed taken place. It also awarded the applicant 5,000 Ukrainian hryvnias in non-pecuniary damage. As to her claim for pecuniary damage, based on the alleged theft of and damage to property in the flat by the defendants and on the fact that she had been paying the charges for the whole flat, the court rejected it on the ground that it fell outside the scope of the charges brought against the defendants (as it appears from the case file, the applicant’s complaint about alleged thefts and spoilages in her flat was singled out into separate criminal proceedings, which were subsequently discontinued by the prosecutors on various grounds).
21. On 6 March 2013, following an appeal by the defendants, the Court of Appeal upheld the above judgment, except for one unrelated episode.
22. The parties did not inform the Court about further proceedings. However, as appears from the case of Irina Smirnova, in which the same defendants were convicted of the same charges in the same proceedings, on 18 September 2014 the Higher Specialised Civil and Criminal Court of Ukraine rejected the appeals in cassation lodged by A.N. and V.S. against the lower courts’ judgments (ibid., § 53).
C. Civil claim against A.N. for the invalidation of the sale contract
23. On 3 July 2006 the applicant lodged a civil claim for the invalidation of the contract of sale of A.Z.’s share of the flat to A.N. In her claim she alleged that under Article 362 of the Civil Code she had a right of pre-emption, but despite her requests to the bailiffs to be allowed to buy part of the flat, they had refused to allow her to do this. She also alleged that the auction had been a criminal set-up between its organisers and A.N., which had enabled the latter to buy a share of her flat at a low price. As indicated in the judgment of 23 March 2007 (see paragraph 24 below), during the court hearing the applicant also asked the court to declare the auction invalid because, in the alleged breach of the procedure (see paragraphs 33 and 34 below), no public notice of the auction had been given and, furthermore, it had been unlawful in the first place to arrange the third auction.
24. On 23 March 2007 the District Court ruled against the applicant. She appealed, reiterating her allegations and also alleging that Ukrspetsyust had breached Article 366 of the Civil Code by selling half of the flat without allocating it in kind.
25. On 30 October 2007 the Court of Appeal rejected the applicant’s appeal. It found in essence that the pre-emption rights and provisions of Article 366 of the Civil Code did not apply in the case at issue and, furthermore, that it could not examine the validity of the auction, because the applicant had not lodged a claim for its invalidation in accordance with the procedure set in Articles 118 and 119 of the Code of Civil Procedure.
26. The applicant appealed in cassation, mainly reiterating her previous submissions. On 25 April 2008 the Supreme Court of Ukraine rejected her appeal as unsubstantiated.
II. RELEVANT DOMESTIC LAW
A. Civil Code of Ukraine 2003
27. Article 362 of the Code provides that if a share of joint property is to be sold a co-owner has the right of pre-emption, except where the property is sold by public auction.
28. Article 366 provides that a creditor may lodge a claim against a co‑owner of joint property for allocation in kind of the latter’s share of that property, whereupon the co-owner’s right to the property would be forfeited, unless the latter has another property.
29. Other relevant provisions of the Code are summarised in the case of Irina Smirnova (cited above, § 56).
B. Code of Civil Procedure of Ukraine 2004 (as worded at the material time)
30. Article 11 of the Code provided that the court could examine cases only within the scope of the claims made by the parties.
31. Article 33 provided that the court could, at a claimant’s request, replace the original respondent with the proper respondent if a claim was lodged against the wrong respondent, or involve another person as a co‑respondent. If the claimant did not agree with the replacement of a respondent by the court, the latter could involve another person as a co‑respondent.
32. Articles 118 and 119 set formal requirements for submitting civil claims. They specified that claims had to be submitted to a trial court in written form, where they were registered and then forwarded to a judge. Those articles further set a number of requirements concerning the contents of a civil claim (including, inter alia, its subject matter, defendants, relevant arguments, evidence in support of the claim, and so on).
C. Regulation on procedure for carrying out public auctions for selling impounded real estate, approved by the Ministry of Justice on 27 October 1999 (“the 1999 Regulation”; repealed in 2016)
33. Paragraph 3.5 of the above Regulation envisaged that a specialised organisation which arranged an auction had to publish in the print media, in the locality where the real estate subject to sale was situated, an information notice about the real estate offered for sale no later than fifteen days before the day of the auction. This information could also be publicly announced in other media.
34. Paragraph 7.3 provided that if the public auction failed twice, the property was to be removed from auction.
I. SCOPE OF THE CASE
35. The Court notes that in her reply to the Government’s observations on the admissibility of the case the applicant raised a number of new complaints. In particular, she complained: under Article 3 of the Convention that she had been subjected to inhuman and degrading treatment by A.N. and his associates and that the authorities had for many years ignored her requests and denied protection to her; under Article 6 § 1 of the Convention that her civil case had not been examined within a reasonable time; and under Article 13 of the Convention that all her complaints about the authorities’ inaction had been ineffective. Lastly, she alleged a breach of Articles 14 and 17 of the Convention and Article 2 of Protocol No. 4.
36. In the Court’s view, the applicant’s new complaints are not an elaboration of her original complaints to the Court on which the parties had commented before they were raised. The Court considers, therefore, that it is not appropriate to take up these matters in the context of the present case (see, in particular, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No . 1 ON ACCOUNT OF THE CONDUCT OF THE PUBLIC AUCTION
37. The applicant complained that half her flat had unlawfully been sold at the auction and that the civil courts had unfairly rejected her relevant allegations. In this respect she referred to Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1, the relevant parts of which read as follows:
Article 6 § 1 of the Convention
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“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.”
1. The Government
38. The Government submitted that the above complaints were inadmissible. Firstly, the applicant had not exhausted domestic remedies. In particular, she should have lodged a claim for the invalidation of the auction against Ukrspetsyust and the bailiffs who had conducted the auction. The applicant had not lodged such a claim, as was emphasised by the Court of Appeal. Moreover, under Article 11 of the Code of Civil Procedure a court could not consider civil cases other than within the claims made by the parties. Therefore, by lodging a claim with the wrong subject matter and against the wrong respondent, the applicant had rendered impossible the examination of the lawfulness of the auction.
39. The Government also considered that the application had been lodged out of time, because the “final decision” had been the date of the auction (4 August 2005), given that the applicant had not challenged its lawfulness before the domestic courts.
40. Lastly, the Government submitted that the applicant’s allegations that she had repeatedly requested the bailiffs to allow her to buy the other half of the flat could not be confirmed, since a case file concerning the sale had been destroyed due to the expiry of the retention period. Therefore, those allegations could not be taken into account and the applicant could not be considered a victim of the alleged violations. Moreover, the Government insisted that the applicant had been informed about all three auctions and provided with copies of the public announcements in the local newspaper.
2. The applicant
41. The applicant disagreed with the Government’s arguments. Firstly, she submitted that it was clear from the court decisions that Ukrspetsyust and the bailiffs had participated in the proceedings as third parties. Given the “evidence” mentioned in her claim, the District Court should have checked and confirmed whether there had actually been a breach of domestic law regulating the procedure for conduct of the auction. Under Article 33 of the Code of Civil Procedure it had had the right to involve, without her consent, Ukrspetsyust and the bailiffs as respondents in the case. Secondly, the final decision in her case had been given by the Supreme Court on 20 May 2008. Thirdly, the application contained sufficient evidence that the applicant had been a victim of the alleged violations.
3. The Court’s assessment
42. The Court notes that the applicant’s civil claim was lodged against A.N. exclusively, and its subject matter and the request made in it were only stated as invalidation of the sale contract. She did not direct the claim against the bailiffs and Ukrspetsyust and did not request in it that the District Court invalidate the public auction. It is true that, as indicated in the judgment of 23 March 2007 (see paragraph 24 above), during the hearing the applicant also asked the court to declare the auction invalid. However, in its decision of 30 October 2007 (see paragraph 25 above) the Court of Appeal concluded that it could not examine the validity of the auction, because the applicant had not lodged a claim for its invalidation in accordance with the provisions of the Code of Civil Procedure. Indeed, the Court notes that the case file does not contain a claim (or increased claim) against the bailiffs and Ukrspetsyust for the invalidation of the auction, which the applicant could have lodged in accordance with the relevant procedure. Nor did she mention in her submissions before the Court that she had lodged such a claim (increased claim) in accordance with the relevant procedure or that she had been somehow barred from doing so. Also, the Court notes that in her appeal in cassation against the decision of 30 October 2007 (see paragraph 26 above) the applicant did not contest as such the Court of Appeal’s above conclusion. In turn, her failure to properly formulate and lodge a claim for the invalidation of the auction in accordance with the procedural rules prevented the courts from examining the lawfulness of the auction, specifically its compliance with the 1999 Regulation (see paragraphs 33 and 34 above). Lastly, as to the applicant’s reference to Article 33 of the Code of Civil Procedure, the Court observes again that the subject matter of, and the request made in, her claim was invalidation of the sale contract and not invalidation of the auction, such that the court could involve Ukrspetsyust and the bailiffs as co-respondents. Nor did she actually ask the court to involve them as co-respondents or complain in her appeals about its alleged failure to do so of its own motion. In sum, the Court concludes that the applicant did not exhaust the domestic remedies, as required by Article 35 § 1 of the Convention, for the purposes of her complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 about lawfulness of the auction.
43. As to the complaint under Article 6 § 1 of the Convention about the alleged unfairness of the court decisions, the Court notes that although the applicant mentioned during the District Court hearing that she also sought invalidation of the auction, the Court of Appeal responded to her arguments by stating that she had not lodged a relevant claim in accordance with the procedural rules. That conclusion, which the applicant did not further challenge as such, does not appear to be arbitrary or manifestly unreasonable. Accordingly, the Court finds that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
44. Consequently, the applicant’s above complaints must be rejected as inadmissible in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention. In view of this conclusion, the Court does not find it necessary to examine the Government’s remaining pleas of inadmissibility.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE AUTHORITIES’ ALLEGED FAILURE TO PROTECT THE APPLICANT FROM A.N. AND HIS ASSOCIATES
45. The applicant further complained under Article 8 of the Convention, cited in paragraph 37 above, that the authorities had failed to protect her from harassment and undue pressure by A.N. and his associates, who were seeking to acquire the remaining half of her flat.
1. The Government
46. The Government pleaded non-exhaustion, claiming that the applicant could have lodged a number of civil claims for the protection of her rights. Without referring to any provision of the Civil Code they further stated that the applicant could have protected her right to inviolability of the home by lodging a claim against authorities, entities or persons whose decisions, actions or inaction breached that right for its immediate restoration or for an obligation to perform acts necessary for its immediate restoration. The courts could have restored a breached right and awarded damages, but the applicant had neither lodged such claims nor raised relevant issues in her civil claim against A.N. Lastly, the Government stated that the applicant’s claims had been duly examined in the proceedings against A.N. and his associates and that she had been awarded compensation.
2. The applicant
47. The applicant stated that in referring to a possibility of lodging numerous civil claims the Government had not taken into account that she had had to deal not with law-abiding individuals but with an established criminal group, which had deprived individuals of their flats. Lodging such claims and receiving favourable decisions would not protect her from their criminal conduct. The Government had not mentioned any measure that would have protected individuals from A.N.’s criminal conduct. The criminal group headed by him for five years extorted real estate from individuals with impunity and with the support of the law-enforcement authorities.
3. The Court’s assessment
48. As to the Government’s argument that the applicant could have lodged a number of civil claims, the Court notes that similar arguments by them have already been examined and rejected in the case of Irina Smirnova (cited above, §§ 92-97 and 100). It also rejects them in the present case. Furthermore, as to the applicant’s alleged opportunity to protect her rights by requesting their immediate restoration in the courts, the Government neither referred to any provision of the Civil Code under which she could allegedly do so, nor provided any examples in support. The Court thus rejects this argument too.
49. The Court notes further that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other ground. It must therefore be declared admissible.
50. The applicant maintained that there had been a breach of her rights under the above provision. The Government disagreed.
51. The Court considers that the applicant’s complaint about the harassment and undue pressure by A.N. and his associates falls within the ambit of Article 8 of the Convention (see Irina Smirnova, cited above, § 89). It further recalls that in the case of Irina Smirnova it noted that A.N. and his associates had eventually been prosecuted and sentenced to substantial prison terms and their property had been confiscated (including their share of the flat co-owned by the applicant). Although those measures effectively protected the applicant in that case from sharing the flat with her former attackers, it took the authorities over twelve years to resolve the matter, and no justification was given for such an extreme delay. The effectiveness of those proceedings was therefore significantly compromised and the applicant’s rights set at naught for a considerable period of time (ibid., §§ 74, 76 and 91). Furthermore, the Court found that the domestic legal framework did not provide the applicant with procedural safeguards for protecting her right to respect for home and private life and that she did not have any meaningful forum in which to raise an argument that a duty to share her home with A.N. and others disproportionately affected her private life and enjoyment of her home (ibid., §§ 95-97 and 99). The Court thus found a violation of Article 8 of the Convention (ibid., § 101).
52. The Court does not find any reason to reach a different conclusion in the present case, which has a very similar context: the same criminal proceedings against the same defendants, an unexplained delay of about nine years in their institution and conduct, which negated the applicants’ rights for such a substantial period, and no opportunity for the applicant to protect her rights via civil-law remedies as stated in paragraph 48 above.
53. It concludes therefore that there has been a violation of Article 8 of the Convention in the present case.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
54. Lastly, the applicant complained in substance under Article 1 of Protocol No. 1 that A.N. had not paid charges on the flat and that her property in it had regularly been stolen and damaged.
55. Having considered this complaint in the light of all the material in its possession, the Court finds that, in so far as the matter complained of is within its competence, it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. In particular, the Court notes that in its judgment of 12 October 2012 the District Court rejected the applicant’s civil claim against A.N. in the part relating to the above complaint, stating that it fell outside the charges brought against A.N. The applicant did not appeal against the above judgment. Nor does it appear that she sued A.N. in civil courts for payment of charges. Furthermore, as regards the alleged thefts and spoilage in the applicant’s flat, it appears that the applicant’s relevant complaints were singled out into separate criminal proceedings, which were eventually discontinued by the prosecutors (see paragraph 20 above). It does not appear that the applicant challenged those decisions.
56. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
57. 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.”
58. The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage and asked the respondent State to buy her share of the flat so that she could buy another flat, which would belong only to her.
59. The Government alleged that these claims were unsubstantiated.
60. The Court does not discern any causal link between the violation found and a requirement to finance purchase of a new flat for the applicant; it therefore rejects this claim (see, similarly, Irina Smirnova, cited above, § 108). On the other hand, it awards the applicant EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
61. The applicant also claimed reimbursement of unspecified costs.
62. The Government considered that the claim was unsubstantiated.
63. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that 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, the Court rejects the claim.
C. Default interest
64. 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, UNANIMOUSLY,
1. Declares the applicant’s complaint under Article 8 of the Convention about the authorities’ failure to protect her from A.N. and his associates admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško André Potocki
Deputy Registrar President
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