THIRD SECTION

CASE OF SALAMOV v. RUSSIA

(Application no. 5063/05)

JUDGMENT

STRASBOURG

12 January 2016

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Salamov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Luis López Guerra, President,
	George Nicolaou,
	Helen Keller,
	Johannes Silvis,
	Dmitry Dedov,
	Branko Lubarda,
	Pere Pastor Vilanova, judges,
and Marialena Tsirli, Deputy Section Registrar, 
Having deliberated in private on 15 December 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 5063/05) against 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 a Russian national, Mr Aslambek Salamov (“the applicant”), on 31 December 2004.
2.  The applicant was represented by lawyers of “Nizam”, an NGO based in Grozny, Chechnya. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  The applicant alleged, in particular, a breach of his right to respect for property under Article 1 of Protocol No. 1.
4.  On 25 November 2008 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
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.
A.  The applicant’s account
1.  Seizure of the truck
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.
2.  Release of the truck
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 anti‑terrorist 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.
B.  Court proceedings establishing the ownership of the truck
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.
C.  Court proceedings for damages
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.
D.  Information submitted by the Government
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.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  Relevant legislative provisions
25.  The relevant provisions of Part I of the Civil Code of the Russian Federation, which entered into force on 1 January 1995, read as follows:
Article 151. Compensation for non-pecuniary damage
“If certain actions impairing an individual’s personal non-property rights or encroaching on other incorporeal assets caused him or her non-pecuniary damage (physical or mental suffering)... the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage.”
Article 1064. General grounds giving rise to liability for damage
“1.  Damage inflicted on the person or property of an individual... shall be reimbursed in full by the person who inflicted the damage ...
2.  The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his own ...”
Article 1069. Liability for damage caused by State or municipal bodies, or their officials
“Damage caused to an individual or a legal entity as a result of an unlawful act (failure to act) of State or municipal bodies, or of their officials, including as a result of the issuance of an act of a State or self-government body which is contrary to the law or any other legal act, shall be subject to compensation. The damage shall be compensated at the expense, respectively, of the treasury of the Russian Federation, the treasury of the subject [constituent entity] of the Russian Federation or the treasury of the municipal authority.”
Article 1070. Liability for damage caused by unlawful actions of agencies of inquiry and preliminary investigation, prosecutor’s offices and the courts
“1.  Damage caused to an individual as a result of his or her unlawful conviction, unlawful criminal prosecution, unlawful application, as a measure of restraint, of remand in custody or of a written undertaking not to leave a specified place and unlawful imposition of an administrative penalty in the form of arrest or corrective labour, shall be compensated in full at the expense of the treasury of the Russian Federation and in certain cases, stipulated by law, at the expense of the treasury of the subject of the Russian Federation or of the municipal authority, regardless of the fault of the officials of agencies of inquiry or preliminary investigation, prosecutor’s offices or courts in the procedure established by law ...”
B.  Some examples of the national courts’ relevant practice
26.  The Government submitted copies of ten decisions issued by the district courts in Chechnya between 2006 and 2008 under which civilian plaintiffs had been compensated for various torts committed by military units of the Ministry of the Interior, or, in one case, by the government of Chechnya. The latter case concerned the failure of the government of Chechnya to prevent a terrorist act in Grozny which had injured the claimant. Of the remaining nine, five concerned traffic accidents caused by servicemen driving; two cases concerned a single episode of the shelling of a village and were brought by two brothers whose houses had been damaged; one case concerned the long-term occupation of a house by a military unit; and one case concerned the shelling of a house, destruction of property and a death (see Seriyevy v. Russia, no. 20201/05, § 18, 8 April 2010).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
27.  The applicant complained that his right to respect for his property had been breached, in violation of 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. ...”
A.  Admissibility
28.  The Government argued that the seizure of the truck by the joint forces of the internal troops of the Ministry of the Interior had not been confirmed and referred to the materials obtained in 2009 (see paragraphs 20‑24 above). The national courts, in 2004, had reached the same conclusion (see paragraphs 16-18 above). They accordingly argued that the complaint should be declared manifestly ill-founded.
29.  The Government also questioned the applicant’s ownership of the truck and raised doubts over the complaint’s admissibility ratione personae. They pointed to a number of complaints and letters sent by the applicant’s father in which he had named himself as the truck owner.
30.  The applicant, in turn, stressed that the fact that the truck had been seized, held and damaged by servicemen had been confirmed by two letters from senior officers of the internal troops of the Ministry of the Interior issued in the period following the events in question (see paragraphs 9 and 10 above). The applicant further stressed that his ownership of the truck was confirmed by the decision of the Oktyabrskiy District Court (see paragraph 14 above) and other relevant evidence.
31.  In so far as the Government questioned the applicant’s victim status, the Court notes that although some of the complaints to the authorities were indeed signed by the applicant’s father, the ownership of the truck in question was established by the Oktyabrskiy District Court and was not questioned during the domestic judicial and administrative proceedings. The Court therefore dismisses the Government’s objection to the admissibility of the complaint ratione personae.
32.  As to the Government’s objection regarding the perpetrator of the damage, the Court finds that it is intrinsically linked to the substance of the complaint about the breach of the right to respect for the applicant’s property. It thus joins this objection to the merits and will examine the matter below.
33.  The Court notes that this complaint is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
34.  The applicant argued that there was sufficient evidence to conclude that the truck had been seized, held and damaged by the servicemen of the Ministry of the Interior.
35.  The Government questioned the authenticity of the two letters produced by the applicant. They noted that the letter from Major-General V. (see paragraph 9 above) contained none of the prerequisites of an official letter, such as a date, registration number and official stamp; nor had it been recorded in the correspondence log. The letter failed to indicate the basis for the information contained therein. The Government maintained that Major‑General V. had not in fact served in the command corps of the “East” zone group of the joint forces of the internal troops of the Ministry of the Interior. Two witnesses who had served in the military unit at that time stated that they had not seen the applicant’s truck, or any other alien vehicles, at the unit’s base. On this basis, the domestic courts had concluded that the applicant had failed to adduce sufficient evidence to prove his claim that military unit no. 3702 had been the right defendant. In such circumstances, the applicant’s allegation of a breach of his property rights by the State had not met the required standard of proof – “beyond reasonable doubt”. The Government referred, in this connection, to the Court’s decision in the case of Umarov v. Russia ((dec.), no. 30788/02, 18 May 2006).
36.  The Court reiterates its finding above that the applicant’s ownership of the property in question has been sufficiently confirmed by the domestic bodies. It is also not in dispute between the parties that the property in question was damaged. However, the Government deny that the State interfered with the right in question. The Court must therefore determine whether there was indeed such an interference by the State.
37.  The Court has already found in previous cases involving allegations by residents of Chechnya concerning the destruction of their property within the context of military and security operations that an adequate criminal investigation would constitute a potentially effective domestic remedy (see Khamzayev and Others v. Russia, no. 1503/02, § 154, 3 May 2011).
38.  The applicant in the present case attempted to submit his complaints to the local and military prosecutors; however, he was advised that he should seek damages in civil proceedings (see paragraph 15 above). No investigation was opened in response to the applicant’s complaints; therefore, no proper fact-finding was undertaken in order to establish the circumstances of the allegations.
39.  That being so, the Court observes that the applicant furnished the domestic courts with sufficient material capable of supporting an arguable claim of State responsibility. First, the family’s numerous and concordant complaints to the authorities clearly indicated the timing and the place of the truck’s seizure, identified the military unit that had held it and referred to the circumstances of its return. Second, they provided two documents issued by military commanders of the joint forces of the internal troops of the Ministry of the Interior which confirmed the seizure and return of the vehicle (see paragraphs 9 and 10 above). Third, in April 2000 the local administration commission confirmed the applicant’s account of the circumstances of the case (see paragraph 11 above). Lastly, the Oktyabrskiy District Court of Grozny referred to the witnesses’ statements and found that the vehicle’s documents had been lost by military servicemen (see paragraph 14 above).
40.  However, the domestic courts’ examination failed to give due weight to that body of evidence. Indeed, they did not doubt the authenticity of the two letters issued by the military authorities, or other crucial elements of the claim lodged by the applicant. Rather, they questioned two servicemen from the military unit in question, who denied having seen the truck; they further referred to the absence of relevant entries in the activity log of the military unit. Thus, the conclusions reached by the domestic civil courts appear to be very brief and, in the particular circumstances of the present case, fail to take into account the body of evidence submitted by the applicant.
41. The Court reiterates that, although sensitive to the subsidiary nature of its role and cautious about taking on the role of a first-instance tribunal of fact, the Court is nevertheless not bound by the findings of the domestic courts and may depart from them where this is rendered unavoidable by the circumstances of a particular case (see, for example, Matyar v. Turkey, no. 23423/94, § 108, 21 February 2002). Having regard to the evidence produced by the applicant, which included his own eyewitness statements concerning the seizure of the truck, the above-mentioned letters, and findings reached by the local administration commission, the Court finds that the conclusions of the domestic courts on the absence of State responsibility in the present case cannot be relied upon (see Khamidov v. Russia, no. 72118/01, § 107, 15 November 2007).
42.  For the same reasons, the Court finds that the internal inquiry conducted by the military prosecutor in 2009 (see paragraph 24 above) failed to clarify the matter. There is bound to be doubt regarding the evidentiary value of the witnesses’ statements, given that they were collected more than nine years after the events in question; moreover, it remains unclear why no attempts have been made to find and question the two commanders who signed the relevant documents in 2000 (see paragraphs 9 and 10 above), or the officers directly mentioned in the applicant’s earlier complaints. Some of these later documents refer to a special operation in Avtury, even though the applicant’s truck was in point of fact seized in Shali (see paragraphs 21 and 22 above).
43.  The Court finds it necessary, at this stage, to note that it has essentially reviewed two types of complaints brought by residents of Chechnya in respect of violations of their property rights during anti‑terrorist operations. Aspects of the relevant practice of the Russian courts have been summarised in the judgments Esmukhambetov and Others v. Russia (no. 23445/03, §§ 89-91, 29 March 2011) and Kerimova and Others v. Russia (nos. 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05, §§ 192-94, 3 May 2011).
44.  Thus, in some cases property was damaged during a period – essentially between the end of 1999 and first half of 2000 – characterised by significant civil strife in the Chechen Republic, which, at the time, was the scene of a violent confrontation between the Russian military and security forces on one side and illegal armed groups on the other. The applicants in such cases, who were often absent when the damage was inflicted, were unable to furnish the domestic courts, or this Court, with reliable evidence confirming the involvement of State agents in the infliction of the damage to their property. Having regard to the fact that both sides in the conflict engaged in violent actions, the Court was not convinced that in such circumstances the State could be held responsible for any damage inflicted during the military operations in question, or that the State’s responsibility was engaged by the mere fact that the applicant’s property had been affected (see Umarov (dec.), cited above, and Trapeznikova v. Russia, no. 21539/02, § 108, 11 December 2008). It therefore endorsed the findings of the domestic courts to that effect.
45.  However, the Court may reach a different conclusion in the event that the domestic courts ruled that there was an absence of State responsibility and such ruling was arbitrary or manifestly unreasonable. The Court did indeed reach such a conclusion where the applicants in question were able to produce sufficient evidence that the State was responsible for the interference in question (see Khamidov, cited above, § 137, and Miltayev and Meltayeva v. Russia, no. 8455/06, §§ 50-57, 15 January 2013).
46.  In the Court’s opinion, the case at hand falls under the second category. The various items of evidence detailed above (see paragraph 39 above), along with the above-mentioned considerations, are sufficient to enable it to conclude that the State is responsible for the interference in question.
47.  That being so, the Court notes that the Government did not put forward any arguments as to the lawfulness, legitimate aim or proportionality of the interference with the applicant’s property.
48.  Accordingly, the Court dismisses the Government’s preliminary objection and finds that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
49.  The applicant also raised complaints under Articles 1, 13, 14 and 15 of the Convention, as well as Article 1 of Protocol No. 12 to the Convention.
50.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
51.  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
52.  The applicant did not explicitly lodge a claim in respect of non‑pecuniary or pecuniary damage, but he submitted, along with his observations, a list (dated 6 May 2009) of the parts missing from the KAMAZ truck in line with the list compiled earlier (see paragraph 11 above), together with the prices of replacement parts; the total sum amounted to 379,956 Russian roubles (RUB) which at the time was the equivalent of about 8,640 euros (EUR).
53.  The Government argued that this list could not be regarded as constituting a claim for just satisfaction. They also reiterated that there was no causal link between the damage allegedly suffered and the actions of the State agents.
54.  The Court is satisfied that, given the circumstances of the case, the price list of missing truck parts amounted to a claim in respect of pecuniary damages for damage caused to the applicant by the above-found violation of Article 1 of Protocol No. 1. It finds it reasonable to award the applicant EUR 8,640 under this head.
B.  Costs and expenses
55.  The applicant did not submit a claim for costs and expenses.
C.  Default interest
56.  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.  Joins to the merits the objection concerning the State responsibility for the alleged violation and dismisses it;

2.  Declares the complaint under Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,640 (eight thousand six hundred and forty euros), plus any tax that may be chargeable, in respect of pecuniary damage. This amount is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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.
Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	Luis López Guerra
	Deputy Registrar	President