European Court of Human Rights

 

 

FIFTH SECTION

 

CASE OF BRAYLOVSKA v. UKRAINE

(Application no. 14031/09)

 

 

 

 

JUDGMENT
(Just satisfaction)

STRASBOURG

14 May 2020

 

 

 

 

 

 

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

 

In the case of Braylovska v. Ukraine,

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

          Yonko Grozev, President,
          Ganna Yudkivska,
          Lado Chanturia, judges,
and Victor Soloveytchik, Deputy Section Registrar,

Having deliberated in private on 21 April 2020,

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

PROCEDURE

1.  The case originated in an application (no. 14031/09) 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 Rayisa Mykhaylivna Braylovska (“the applicant”), on 17 February 2009.

2.  In a judgment delivered on 6 June 2019 (“the principal judgment”), the Court held that the expropriation of the applicant’s flat in Yalta had not been compatible with the principle of lawfulness and that, consequently, there had been a violation of Article 1 of Protocol No. 1 to the Convention (see Braylovska v. Ukraine, no. 14031/09, §§ 56 to 66 of the judgment and point 2 of the operative provisions, 6 June 2019).

3.  Under Article 41 of the Convention the applicant sought just satisfaction in respect of pecuniary and non-pecuniary damage.

4.  Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant to submit within three months of the date of notification of that judgment their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 75, and point 4 of the operative provisions).

5.  The applicant and the Government failed to reach an agreement. Both parties submitted 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.”

I. Damage

A.    The parties’ submissions

1.    The applicant

7.  Noting that in the circumstances of the present case restitution of the Pushkinska flat would be practically impossible because of the political context and in view of the reconstruction of the building in which the flat had been situated, the applicant asked the Court to make good her pecuniary loss by compensating the market value of the flat, which she estimated as 2,305,861.26 Ukrainian hryvnias (UAH - equivalent to 208,835.30 euros (EUR)) at the rate applicable on 31 December 2013). She based her calculation on the price of a neighbouring apartment in the Pushkinska building which had been allegedly bought in February 2005 for EUR 103,657.94, and applied the inflation rate to the latter. The neighbouring apartment measured 43.2 sq. m, that is to say 5 sq. m more than the applicant’s one, but, unlike the applicant’s flat, it had no toilet and bathroom. The relevant sale contract had been allegedly presented by the Company during the proceedings in the domestic courts.

8.  The applicant also claimed EUR 120,750 in respect of the loss of profit caused by the impossibility for her to rent the Pushkinska flat out. She relied in this connection on the current rental price for a flat in a neighbouring building on the website booking.com.

9.  The applicant further claimed non-pecuniary damage in the amount of EUR 10,000 for the stress caused by the unlawful expropriation of her property.

2.    The Government

10.  The Government contested the applicant’s claim in respect of pecuniary damage as unsubstantiated and unsupported by evidence. They submitted that the applicant had provided no documents showing the market value of the Pushkinska flat. They further emphasised that the applicant had been provided with the Sosnova flat as compensation for the expropriated property. Had the applicant considered that the value of that flat had not been equal to that of the Pushkinska flat, she should have claimed the difference before the Court, providing relevant evidence, but she had failed to do so.

11.  The Government submitted that they had not been successful in their attempt to obtain an expert report on property evaluation with respect to both flats in the absence of the relevant technical documentation for both properties. They noted in this connection that Ukraine had lost effective control over the Crimea in February 2014 and since then had had no access to the data stored on that part of its territory.

12.  The Government further noted the speculative nature of the applicant’s claim in respect of the loss of future income and submitted, inter alia, that she had provided no evidence proving that she had been renting the flat out, such as a certificate from the tax authorities on her paying taxes from that activity.

13.  Lastly, the Government considered that a finding of a violation of Article 1 of Protocol No. 1 would constitute sufficient compensation for any non-pecuniary damage sustained by the applicant.

B.     The Court’s assessment

14.  The Court reiterates that to redress a violation of Article 1 of Protocol No. 1 it is best to restore victims’ ownership (see, for example, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 B). In such cases the respondent Government is expected to revert the situation to its pre-breach state (see Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004 II).

15.  In the circumstances of the present case, however, the Court agrees with the applicant that a restitution of the Pushkinska flat would be technically impossible and that other means of compensating the applicant for the full value of the expropriated property have to be employed.

16.  The Court observes in this connection that the applicant had been provided by the domestic authorities with the Sosnova flat as compensation for the expropriated property (see paragraphs 12, 20, 23 and 27 of the principal judgment). The question therefore arises as to whether that “compensation” fully covered the value of the Pushkinska flat.

17.  The Court considers that the assessment of the applicants’ pecuniary loss, if any, should be estimated with reference to property prices in August 2008, the date on which ownership was lost (see, mutatis mutandis, Vistiņš and Perepjolkins v. Latvia  (Just Satisfaction), no. 71243/01, § 36, 25 March 2014).

18.  The Court notes, however, that no expert report or other evidence was submitted by the applicant in the proceedings before the Court regarding the market value of both flats at issue on the referred date (compare Hakobyan and Amirkhanyan v. Armenia, no. 14156/07, § 58, 17 October 2019). Instead the applicant made her own estimation of the value of the Pushkinska flat based only on comparison with the price for which an apartment in the same building had been sold in February 2005. While sale-price comparison as an evaluation method is acceptable as such (see, for instance, Tkachevy v. Russia, no. 35430/05, § 15, 4 April 2013), the Court is not able to accept the valuation commissioned by the applicant in the present case as credible as it appears from her own submission that the neighbouring flat had not been in the same condition as her own and, in addition, there had been three years’ difference between the alleged purchase date of the neighbouring apartment and the date of the applicant’s eviction from her property. No comparative analysis was provided by the applicant as regards the market value of other flats similar to the Pushkinska flat and offered for sale in August 2008.

19.  Thus, there is no evidence before the Court proving that at the time of its expropriation the Pushkinska flat was dearer than the Sosnova flat. In fact, in her reformulated just satisfaction claim the applicant was silent on this matter entirely and provided no information whatsoever in respect of the Sosnova flat. In the absence of relevant evidence, the Court is not in a position to conclude that the compensation provided to the applicant at the domestic level in respect of the deprived property was not adequate. It therefore rejects this part of the applicant’s claim as unsubstantiated.

20.  As regards the applicant’s claim in respect of loss of profit for the period subsequent to the expropriation, the Court first notes that she based this claim on the pure assumption that she could have rented the Pushkinska flat out during the years in which she had been deprived of her property. In doing so, she provided no convincing evidence that she had rented the flat out at any point in the past. In addition, she provided no information as to the rental value of the Sosnova flat to substantiate the relevant loss. This part of her claim should thus be rejected as speculative and unsubstantiated.

21.  Lastly, the Court considers that the applicant must have suffered some distress on account of the violation found and awards her, on the basis of equity, EUR 3,000 in respect of non-pecuniary damage.

II. Costs and expenses

22.  The Court affirms that it has already made a ruling under this head in the principal judgment.

III. Default interest

23.  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 3,000 (three thousand euros) in respect of non-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 14 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Victor Soloveytchik                                                               Yonko Grozev
   Deputy Registrar                                                                     President