Last week on 14 February 2012 the ECHR delivered its judgment in the case of Tkachevy v. Russia. The details of the Tkachevy case are described in my previous post of 9 February 2012. The Court found a violation of Article 1 Protocol No.1 (protection of property) and ordered Russia to pay the applicants’ costs and expenses connected with the proceedings before the Court. As far as the damage is concerned, the applicants wished to have their flat in Znamenka returned (if possible at all). Otherwise, they claimed damage. However, the ECHR was not ready to decide the issue of the pecuniary and non-pecuniary damages and gave the parties 3 months to reach any possible agreement or provide their written observations on this question.
The Court did not have any doubts that actions of Russian authorities towards the applicants’ flat constituted expropriation and thus interfered with the applicants’ right to the peaceful enjoyment of their possessions. According to the Convention and the ECHR case law expropriation may be justified if it was done in the public interest, in accordance with national law and general principles of international law. If one of these requirements is not met, then the Government will be in violation of the Article 1 Protocol No.1 to the Convention. In the present case the Court was not convinced that Russian authorities expropriated the applicants’ flat in the public interest.
Thus, the Russian authorities claimed that the building was dilapidated and it was dangerous for the residents to stay there any longer; that’s why they made a decision to expropriate the building in the public interest of safety. However, a number of facts in the case prove the contrary:
1. The decision to expropriate the building was made before the issuance of the survey report that found the property unsafe and dangerous.
2. The conclusions in the report were predetermined, since the authorities admitted that the local prefect had requested to classify the building as dangerous.
3. If the expropriation had been motivated only by the safety concerns, the authorities would have let the applicants reoccupy the property after its repair, which had never happened in this case.
4. As a result of this expropriation 100% of the building went to the investor, Tverskaya Finance, which diminished the public element of the transaction, since it became in fact an alienation of property from one private party to another.
5. As a reason for ordering the expropriation, the domestic court referred to the conversion of the building into non-residential premises. However, according to the information located at http://znamenka9.ru (the Znamenka project site) the building where the applicants’ flat was located has become luxury residential premises after its repair contrary to the original goal of the project.
Based on the above facts the Court concluded that the Russian Government failed to show clearly and convincingly the public interest in the present case. Therefore, there has been a violation of Artilc1e Protocol No.1 to the Convention.
The Court did not have any doubts that actions of Russian authorities towards the applicants’ flat constituted expropriation and thus interfered with the applicants’ right to the peaceful enjoyment of their possessions. According to the Convention and the ECHR case law expropriation may be justified if it was done in the public interest, in accordance with national law and general principles of international law. If one of these requirements is not met, then the Government will be in violation of the Article 1 Protocol No.1 to the Convention. In the present case the Court was not convinced that Russian authorities expropriated the applicants’ flat in the public interest.
Thus, the Russian authorities claimed that the building was dilapidated and it was dangerous for the residents to stay there any longer; that’s why they made a decision to expropriate the building in the public interest of safety. However, a number of facts in the case prove the contrary:
1. The decision to expropriate the building was made before the issuance of the survey report that found the property unsafe and dangerous.
2. The conclusions in the report were predetermined, since the authorities admitted that the local prefect had requested to classify the building as dangerous.
3. If the expropriation had been motivated only by the safety concerns, the authorities would have let the applicants reoccupy the property after its repair, which had never happened in this case.
4. As a result of this expropriation 100% of the building went to the investor, Tverskaya Finance, which diminished the public element of the transaction, since it became in fact an alienation of property from one private party to another.
5. As a reason for ordering the expropriation, the domestic court referred to the conversion of the building into non-residential premises. However, according to the information located at http://znamenka9.ru (the Znamenka project site) the building where the applicants’ flat was located has become luxury residential premises after its repair contrary to the original goal of the project.
Based on the above facts the Court concluded that the Russian Government failed to show clearly and convincingly the public interest in the present case. Therefore, there has been a violation of Artilc1e Protocol No.1 to the Convention.
