CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 janvier 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sB32C24BA { margin-top:0pt; margin-bottom:0pt; text-indent:17.1pt; text-align:justify } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s2DF49AA6 { width:24.54pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sD79BB263 { width:196.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 68444/01 by Isa Israilovich MERZHOYEV against Russia The European Court of Human Rights (First Section), sitting on 17   January 2008 as a Chamber composed of:   Christos Rozakis, President,   Loukis Loucaides,   Nina Vajić,   Anatoli Kovler,   Elisabeth Steiner,   Sverre Erik Jebens,   Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 3 April 2001, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Isa Israilovich Merzhoyev, is a Russian national who was born in 1949 and lives in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Deposit of savings and attempts to recover them On 15 May 1990, 13 March 1991 and 20 February 1992 the applicant, then a resident of Grozny, Chechnya, deposited 31,881.47, 30,000 and 24,500 Soviet roubles on behalf of his son, his daughter and himself respectively in three savings accounts with the Grozny branch of the Chechen Savings Bank, which was an integral part of the USSR Savings Bank. In late 1994 hostilities began in Chechnya and the applicant left for Ingushetia. On 5   January   1995 he was registered as an internally displaced person by the Migration Service of the Sunzhenskiy District of Ingushetia. It appears that at some point the applicant moved and settled in Moscow. In early 1999 the applicant unsuccessfully requested the Savings Bank of Russia, the successor of the USSR Savings Bank, to transfer his indexed deposits to a branch in Moscow. 2.     Court proceedings Following the bank’s refusal, the applicant brought a court action, seeking to have his deposits restored, indexed and transferred to the Moscow branch of the Savings Bank of Russia. On 13   October   2000 the Gagarinskiy District Court of Moscow found against the applicant. The court confirmed the fact that during the period from 15 May 1990 until 20 February 1992 the applicant had made deposits on behalf of himself and his two children with the Grozny branch of the USSR Savings Bank and came to a conclusion acknowledging “the existence of obligations under the bank deposit agreements between the applicant and the Savings Bank”. The court continued: “According to telegram no. 26-3-2/281a of the Central Bank of Russia dated 22   December 1997, branches of the Chechen Savings Bank were closed by virtue of a decision of the Management Board of the Savings Banks of Russia. These branches were removed from the State Register of Lending Agencies. ... It is clear from the case file that all the branches of the Savings Bank of Russia in the territory of the Chechen Republic were wound up, and powers of attorney issued to the managers of [these branches] were revoked and annulled. The aforementioned circumstances are confirmed by decision no. 127 of the Management Board of the Savings Bank of Russia dated 16 December 1996. At present there is no [legal] mechanism which could enable the transfer of deposits from branches of the Savings Bank of the Chechen Republic to the Moscow branch of the Savings Bank of Russia. In such circumstances [the applicant’s] action to restore and transfer his indexed deposits from ... the Chechen [Savings] Bank to the Moscow branch of the Savings Banks of Russia should be denied.” On 26   December   2000 the Civil Section of the Moscow City Court upheld the judgment of 13 October 2000 on appeal. Thereafter the applicant applied for supervisory review, but to no avail. 3.     Further developments In their memorial of 1 April 2005 the Government informed the Court that between 21 January and 22 April 2002 the Government of the Chechen Republic within the territory of this republic, and the branches of the Savings Bank of Russia in any other regions of Russia, had made a list of the former depositors of the Chechen Savings Bank who had produced their savings books ( сберегательные книжки ). On 15 April 2003 the Savings Bank of Russia commenced payment of compensation to those included on the list. As provided by governmental decree no. 117 of 19 February 2003, this procedure was applied in respect of savings deposited with the Chechen Savings Bank prior to 20 June 1991. From 1 October 2003 until 31 March 2004 the authorities made an additional list of former depositors of the Chechen Savings Bank. In the Government’s submission, “repayment of deposits to those included on the additional list would be made in the near future”. It is unclear whether the applicant requested to be included on any of those lists. B.     Relevant domestic law In August 1996 the President of the Management Board of the Savings Bank of Russia ( Председатель правления Сберегательного Банка России ) ordered that all operations in respect of deposits with the Chechen Savings Bank be suspended until further notice. By virtue of decision no. 127 of the Management Board of the Savings Bank of Russia dated 16 December 1996, the branches of the Savings Bank of Russia in the territory of the Chechen Republic were wound up and removed from the State Register of Lending Agencies. Powers of attorney issued to the managers of those branches were revoked and annulled. By section 12 of decree no. 117 on payment to certain categories of citizens of the Russian Federation in 2003 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations, dated 19 February 2003, the Government of Russia entitled the former depositors of the Chechen Savings Bank to compensation for deposits they had made prior to 20 June 1991. In particular, individuals who lived outside the territory of the Chechen Republic could obtain compensation in those branches of the Savings Bank which had put them on the list of former depositors of the Chechen Savings Bank. Section 15 of governmental decree no. 343 on payment to certain categories of citizens of the Russian Federation in 2004 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations, dated 9 July 2004, reproduces the provisions of section 12 of decree no. 117 of 19   February 2003 concerning compensation for deposits made prior to 20   June 1991 in the territory of the Chechen Republic. It contains no provisions relating to deposits made after 20 June 1991. COMPLAINT The applicant complained under Article 1 of Protocol No. 1 about his inability to withdraw the savings he had deposited with the Grozny branch of the Chechen Savings Bank from the Savings Bank of Russia. He claimed in this connection that his savings had been de facto expropriated by the State. THE LAW The applicant complained in his original application that he had been unable to have his deposits in the Savings Bank of Russia repaid during the period from 1992 until 2003 and that his savings had suffered a significant depreciation because of inflation. Article 1 of Protocol No. 1 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. 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.” A.     Submissions by the parties 1.     The Government The Government argued that the State was not responsible for the Savings Bank of Russia, which was now a joint stock commercial bank ( акционерный коммерческий банк ), or for the absence of a mechanism for transferring funds from the former Chechen Savings Bank to any other branch of the Savings Bank of Russia. They also submitted that the domestic legislation imposed no obligation on the Savings Bank of Russia to develop any specific mechanism for transferring the deposits. The Government further submitted that the activities of the Chechen Savings Bank had been suspended in August 1996 in view of the difficult political, economic and social situation in Chechnya, and that it had been impossible to resume the activity of the bank, as it had sustained significant pecuniary damage and had lost a considerable number of its primary documents and official seals, which could have enabled the falsification of claims concerning the reimbursement of deposits made with it. In such circumstances, in December 1996 the Management Board of the Savings Bank of Russia had taken a decision to wind up the Chechen Savings Bank. The Government thus argued, referring to these facts, that the Savings Bank of Russia had had no realistic opportunity to restore the applicant’s savings deposited in the Chechen Savings Bank and transfer them to the Moscow branch of the Savings Bank of Russia and that it had had no intention of depriving the applicant of his possessions. The Government also submitted that it was now open to the applicant to receive his deposits and the accrued interest in any branch of the Savings Bank of Russia on condition that he made an application and submitted his savings books. They also stated that the deposit made on behalf of the applicant could be compensated in accordance with governmental decree no. 343 of 9 July 2004. The Government did not indicate what amount the applicant could obtain. The Government thus argued that the interference with the applicant’s right to withdraw his savings had been of a temporary nature and in the public interest, given the difficult situation in the Chechen Republic in the middle of the 1990s and the possibility of falsification of claims concerning the reimbursement of deposits made with the Chechen Savings Bank. 2.     The applicant The applicant disagreed with the Government and maintained his complaint. He argued that between 1990 and 1992 he had deposited his savings in the then State-owned Savings Bank of the USSR, that the Savings Bank of Russia was its legal successor, and that the State was therefore responsible for the bank and for the absence of a mechanism for transferring funds from the former Chechen Bank to any other branch of the Savings Bank of Russia. In support of his argument the applicant referred to the fact that the reimbursement of the deposits made in the Savings Bank was governed by legal instruments adopted by the Government of Russia. The applicant further insisted that the alleged interference with his property rights had not been of a temporary nature, as until the present moment he had been unable to withdraw his savings. On the other hand, he did not dispute the Government’s argument that he was now entitled to have his deposits repaid but argued that by virtue of decree no. 343 of 9   July   2004 the amount of his savings, with compensation, would only be equal to 1,054 Russian roubles (RUB), corresponding to 37.40 United States dollars (USD), whereas between 1990 and 1992 he had deposited an amount corresponding at that time to USD 14,832. In the applicant’s submission, taking into account the interest rate of 3% per annum, he should receive a total sum of RUB 574,616, corresponding to USD 20,522. The applicant thus insisted that he had been deprived of his possessions, in breach of Article 1 of Protocol No. 1. B.     The Court’s assessment The Court reiterates that it may only examine an application relating to acts or omissions which involve the responsibility of a Contracting State or its organs. The Court further recalls that, in accordance with general rules of international law, the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (see, for example, Blečić v. Croatia [GC], no.   59532/00, §   70, 8 March 2006). The Court considers that in the circumstances of the present case the questions of its competence ratione temporis and ratione personae must be examined together with the merits of the application. Thus, the Court finds necessary to join these issues to the merits of the case. The Court considers, in the light of the parties’ submissions, that the present application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35   §   3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Decides to join to the merits the questions of its competence ratione temporis and ratione personae ; Declares the application admissible, without prejudging the merits of the case.   Søren Nielsen   Christos Rozakis   Registrar   President