European Court of Human Rights

FIFTH SECTION

CASE OF BORISOV v. UKRAINE

(Application no. 2371/11)

JUDGMENT
(Just satisfaction)

STRASBOURG

31 August 2023

This judgment is final but it may be subject to editorial revision.

In the case of Borisov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Lado Chanturia, President,
 Stéphanie Mourou-Vikström,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having deliberated in private on 6 July 2023,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case primarily concerns a complaint under Article 1 of Protocol No. 1 to the Convention about the demolition of the applicant-�s immovable property on the basis of a valid court decision which was subsequently quashed as unlawful. It also concerns Article 6 § 1 as regards the length of the relevant civil proceedings.

2.  In a judgment delivered on 4 March 2021 (-�the principal judgment-�), the Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention on account of the disproportionate character of the interference, as the applicant had not been offered any compensation for the erroneous demolition of his property. The Court also found a violation of Article 6 § 1 on account of the excessive length of the civil proceedings (see Borisov v. Ukraine [Committee], no. 2371/11, §§ 49-51 and 58-59, 4 March 2021).

3.  Under Article 41 of the Convention, the applicant claimed 2,588,700 Ukrainian hryvnias (UAH)[1] in respect of pecuniary damage, representing compensation in the amount of the market value of the property he had lost, and UAH 7,731,200[2] in respect of lost income. The applicant further claimed compensation in respect of non-pecuniary damage, as well as costs and expenses (ibid., §§ 61 and 65). His claim was partially granted in so far as it concerned non-pecuniary damage and costs and expenses (ibid., §§ 64 and 67 and point 6 of the operative provisions).

4.  Since the question of the application of Article 41 of the Convention was not ready for decision as regards pecuniary damage, the Court reserved it and invited the Government and the applicant to submit, within three months from the date of notification of the judgment, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 63, and point 5 of the operative provisions).

5.  The applicant and the Government each filed observations.

THE LAW

6.  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.-�

PECUNIARY DAMAGE

1. The parties-� submissions

7.  The applicant reiterated his claim of 2,588,700 Ukrainian hryvnias (UAH) in respect of pecuniary damage, representing compensation in the amount of the market value of the property he had lost. In that connection, the applicant submitted a report by a private valuer who had prepared an estimate of the market value of the demolished shop on 1 July 2019, using the comparative method. Converted into euros at the exchange rate established by the National Bank of Ukraine in July 2019, that sum corresponded to 86,974 euros (EUR).

8.  The applicant further claimed UAH 7,731,200 in respect of the lost income that he would have obtained over the years if he had been able to conduct his business activity in the demolished shop. Referring to the rental price indicated in the above-mentioned valuation report, the applicant also noted that he could have obtained income if he had been able to lease the shop space.

9.  The Government submitted that the applicant-�s claims were unsubstantiated and exorbitant. Furthermore, it remained open to the applicant to claim compensation in respect of pecuniary damage at the domestic level. The Government further noted the speculative nature of the applicant-�s claim in respect of loss of income.

2. The Court-�s assessment

10.  With regard to the Government-�s argument that it would be possible for the applicant to seek compensation in the national courts, the Court reiterates that as a rule, the requirement that domestic remedies should be exhausted, including the option of reopening the proceedings, does not apply to just satisfaction claims submitted to it under Article 41 (see S.L. and J.L. v. Croatia (just satisfaction), no. 13712/11, § 15, 6 October 2016).

11.  The Court further notes that, since the shop has been demolished, it is impossible to calculate the precise amount of the pecuniary damage. At the same time, the Government have not challenged the findings of the expert who prepared the report submitted by the applicant, nor have they submitted their own expert assessment (ibid., §§ 19-20). Therefore, there is no reason for the Court to question the property market value estimated at EUR 86,974 in July 2019 (compare Dacia S.R.L. v. Moldova (just satisfaction), no. 3052/04, § 44, 24 February 2009). While assuming that the market value of that property might have changed since that date, the Court observes that neither the applicant nor the Government have submitted an up-to-date estimate.

12.  Lastly and regarding the claimed loss of income, the Court notes that there is a certain degree of speculation in the calculation presented by the applicant. Moreover, the applicant has not provided sufficient documentary evidence in support of his estimate of lost income at UAH 7,731,200.

13.  In the light of the foregoing considerations, the assessment of the pecuniary damage will have to be made on an equitable basis. The Court considers it reasonable to award the applicant EUR 90,000 in respect of pecuniary damage (see, for the relevant case-law principles regarding the Court-�s discretion on such matters, Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 82, ECHR 2014).

14.  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. Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 90,000 (ninety thousand euros) in respect of pecuniary damage, 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;

(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;

2. Dismisses the remainder of the applicant-�s claim for just satisfaction.

Done in English, and notified in writing on 31 August 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Lado Chanturia
 Deputy Registrar  President

[1] 86, 974 euros (EUR)

[2] 259,750 euros (EUR)