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advokat espch





(Application no. 4031/16)










23 October 2018

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

In the case of Atroshenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 2 October 2018,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 4031/16) 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 Viktor Vasilyevich Atroshenko (“the applicant”), on 15 December 2015.
2. The applicant was represented by Ms I. Pichugina, a lawyer practising in Lyubertsy, Moscow Region. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On 10 November 2016 the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
5. The applicant was born in 1963 and lives in Moscow.
A. Transactions in respect of housing later purchased by the applicant
6. On 29 December 2007 N., the owner of two rooms in flat 10 located at 3 3, ulitsa Anny Severyanovoy, Moscow, signed a deed of gift in respect of the rooms for Ya. The Moscow City Department of the Federal Registration Service (the “Registration Service”) registered the deed and Ya.’s title to the rooms.
7. On an unspecified date the investigative committee opened criminal investigation into M.’s actions who was suspected of having tricked N. into signing the deed of gift for Ya.’s benefit.
8. On 2 June 2008 Ya. sold the rooms to the applicant. According to the sale contract, the applicant paid 300,000 Russian roubles (RUB) for the rooms.
9. On 11 July 2008 the Preobrazhenskiy District Court of Moscow issued a seizure order in respect of the rooms within the framework of the criminal investigation on the charges of fraud against M.
10. On 16 July 2008 the Registration Service registered the sale agreement between Ya. and the applicant and the applicant’s title to the rooms.
B. Annulment of the applicant’s title
11. On 28 September 2009 the District Court found M. guilty of multiple offences, including a fraud in respect of the room later purchased by the applicant, and sentenced him to fourteen years’ imprisonment. The Court established that M. had tricked N. into signing the deed of gift in respect of the two rooms whilst M. had actually sold the rooms to Ya.
12. On 16 March 2010 N. died.
13. On 7 February 2014 the Department of Housing of the City of Moscow (the “Housing Department”) brought a civil action seeking restitution of the title to the two rooms to the City of Moscow and the applicant’s eviction.
14. On 29 December 2014 the Presnenskiy District Court of Moscow granted the Housing Department’s claims. The court found the deed of gift null and void. It further established that N., the lawful owner of the rooms, had died intestate and without heirs. Accordingly the rooms should be considered a bona vacantia and should be transferred to the City of Moscow, even though the applicant had bought the rooms in good faith. The court transferred the title to the rooms to the City of Moscow and ordered the applicant’s eviction.
15. On 18 June 2015 the Moscow City Court upheld the judgment of 29 December 2014 on appeal.
16. On 26 October 2015 the City Court refused to grant the applicant leave to a cassation appeal against the judgments of 29 December 2014 and 18 June 2015.
17. On 9 March 2015 the Supreme Court of the Russian Federation issued a similar decision.
18. The parties did not provide any information as regards the enforcement of the judgments in the City’s favour.
19. For a summary of the relevant domestic provisions and practice, see the case of Alentseva v. Russia (no. 31788/06, §§ 25-47, 17 November 2016).
20. The applicant complained that he had been deprived of his possession in violation of Article 1 of Protocol No. 1 to the Convention, which provides, in so far as relevant, 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. Admissibility
21. The Government considered that the applicant had failed to exhaust effective domestic remedies in respect of his complaint. In particular, he had not brought a civil action to recover damages either from the person (1) who had been found guilty of having committed a fraudulent acquisition of the impugned real property or (2) who had sold the real property to him.
22. The applicant submitted that the violation of his right to peaceful enjoyment of his possession had resulted from the revocation of his title by the judgment in the City’s favour. The judgment had become final and enforceable and no further recourse that might potentially lead to reinstatement of the title lay against that judgment under Russian law.
23. The Court notes that it has already examined the issue of exhaustion of effective domestic remedies in a number of cases where the applicant had been deprived of his or her housing as a result of the revocation of the title to that property by a final and enforceable judgment (see, for example, Gladysheva v. Russia, no. 7097/10, §§ 60-62 and 89, 6 December 2011, and Alentseva, cited above, §§ 50-54). The Court concluded that, under Russian law, there was no further recourse against that judgment that might potentially lead to reinstatement of the applicant’s title to the flat. It further noted that the possibility of bringing an action for damages, in those circumstances, could not be regarded as necessary for compliance with the rule of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention (see Gladysheva, cited above, § 62).
24. The Court considers that those findings hold true in the present case. The Government have not put forward any fact or argument capable of persuading it to reach a different conclusion. Accordingly, it was not incumbent on the applicant to pursue the civil remedies referred to by the Government. The Government’s objection in this regard is dismissed.
25. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
26. The applicant maintained his complaint. He considered that the interference with his property rights had been disproportionate to the protection of the public interests and had placed an excessive individual burden on him.
27. The Government considered that the interference with the applicant’s property rights had been “in accordance with the law”. Following the death of the property’s owner, it should have been considered bona vacantia and the title to the rooms should have been transferred to the State (municipality). The Government also considered that the said interference had pursued the legitimate aim. The City of Moscow was responsible for providing affordable housing to people on low incomes. Accordingly, the City had reclaimed the rooms in the interests of those people. Lastly, the Government argued that it had been open to the applicant to recover his damages resulting from the loss of the property by lodging a civil action of damages. However, the applicant had chosen not to exercise that right.
2. The Court’s assessment
(a) General principles
28. The general principles concerning protection of property are well established in the Court’s case-law (see Gladysheva, cited above, §§ 64-68).
(b) Application of these principles to the present case
29. The Court has, on a number of previous occasions, examined cases in which the Russian State or municipal authorities have been successful in reclaiming housing from bona fide owners once it had been established that such real property should have been considered bona vacantia and that one of the prior transactions in respect of the property had been fraudulent (see Alentseva, cited above, §§ 55-77; Kirillova v. Russia, no. 50775/13, §§ 33 40, 13 September 2016; and Zimonin and Others v. Russia [Committee], nos. 59291/13 and 2 others, §§ 58-61, 16 May 2017). Having examined the specific conditions and procedures under which the State ensured the compliance and legitimacy of the housing transactions between private individuals, the Court noted that they were within the State’s exclusive competence and held that the defects in those procedures preventing the State from obtaining the title to bona vacantia housing should not have been remedied at the expense of bona fide owners. The Court further reasoned that such restitution of property to the State or municipality, in the absence of any compensation paid to the bona fide owner, imposed an individual and excessive burden on the latter and failed to strike a fair balance between the demands of the public interest on the one hand and the applicants’ right to the peaceful enjoyment of their possessions on the other.
30. Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. It notes that the City was prevented from obtaining the title to the rooms, which should have been considered bona vacantia following N.’s death, as a result of the fraud committed by M. and subsequent resale of the rooms to the applicant. In this connection, the Court observes that it was the responsibility of the state registration authorities to make sure that the transfer of title to the real property from N. to Ya. and then from Ya. to the applicant was carried out in accordance with the law. However, despite the ongoing criminal investigation against M. and the seizure of the rooms by the District Court, the registration committee condoned the sale of those rooms to the applicant (see paragraphs 9-10 above). The Government did not proffer any explanation in this respect.
31. The Court also notes that the Government have failed to give an explanation as to why, contrary to the public interest of catering for the needs of those on the waiting list for social housing, the city authorities chose not to seek the recognition of their title to the rooms back in 2010, when M. had been found guilty of fraud and N., the owner of the property, died. In that connection, the Court reiterates that where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000 I). Given the circumstances, bringing an action against the applicant, a bona fide purchaser of the rooms, some four and a half years later seems hardly justified.
32. In such circumstances, the Court considers that it was not for the applicant to assume the risk of the title to the flat being revoked on account of the said omissions on the part of the authorities in procedures specially designed to prevent fraud in real-property transactions. The Court reiterates that the consequences of any mistake made by a State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Stolyarova v. Russia, no. 15711/13, § 49, 29 January 2015). The Court therefore concludes that the forfeiture of the title to the rooms by the applicant and the transfer of the ownership of the rooms to the City of Moscow, in the absence of any compensation to be paid to the applicant, placed a disproportionate and excessive burden on the latter. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention.
33. The applicant complained that his eviction had amounted to a violation of the right to respect for home. He relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
34. The Government submitted that the facts complained of by the applicant had not disclosed a violation of Article 8 of the Convention given that the rooms had not constituted the applicant’s home.
35. The applicant argued that he had established continuous and sufficient links with the rooms he had bought which should be considered his home.
36. The Court reiterates that whether or not a particular habitation constitutes a “home” for the purposes of Article 8 § 1 of the Convention will depend on the factual circumstances of the particular case, namely, the existence of sufficient and continuous links (see, among the leading authorities, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109). The Court discerns nothing in the applicant’s submissions to support his argument that he had continuous and sufficient links with the rooms. The applicant did not even claim that at any time he had moved in and resided there. The Court is, therefore, not satisfied that the applicant can claim that the rooms constituted his home within the meaning of Article 8 of the Convention. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 (compare Bijelić v. Montenegro and Serbia, no. 11890/05, §§ 89-90, 28 April 2009).
37. 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
38. As regards pecuniary damage, the applicant considered that the most appropriate form of redress would be to restore his title to the rooms. Alternatively, he claimed Russian roubles 22,000,000 (RUB) in that respect. The applicant also claimed RUB 700,000 in respect of non-pecuniary damage.
39. The Government considered the applicant’s claims excessive and unsubstantiated. They noted that the applicant had paid RUB 300,000 for the rooms.
40. The Court reiterates that, normally, the priority under Article 41 of the Convention is restitutio in integrum, as the respondent State is expected to make all feasible reparation for the consequences of the violation in such a manner as to restore as far as possible the situation existing before the breach (see, among other authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85; Tchitchinadze v. Georgia, no. 18156/05, § 69, 27 May 2010; Fener Rum Patrikliği (Ecumenical Patriarchy) v. Turkey (just satisfaction), no. 14340/05, § 35, 15 June 2010, § 198; and Stoycheva v. Bulgaria, no. 43590/04, 19 July 2011). Consequently, having due regard to its findings in the instant case and to the fact that the applicants did not receive compensation for loss of title to the rooms in the domestic proceedings, the Court considers that the most appropriate form of redress would be to restore the applicant’s title to the rooms. Thus, the applicant would be put as far as possible in a situation equivalent to the one in which he would have been had there not been a breach of Article 1 of Protocol No. 1 to the Convention (compare, Gladysheva, cited above, § 106). In the alternative, if the Government no longer own the rooms, or if they have been otherwise alienated, they should ensure that the applicant receive equivalent rooms.
41. In addition, the Court has no doubt that the applicant has suffered distress and frustration on account of the deprivation of his possessions. Making its assessment on an equitable basis, the Court awards to the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
42. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.
C. Default interest
43. 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.
1. Declares the complaints concerning the deprivation of the applicant’s possessions admissible and the remainder of the application inadmissible;

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

3. Holds
(a) that the respondent State shall ensure, within three months, by appropriate means full restitution of the first applicant’s title to the rooms. In the alternative, if the rooms are no longer the State’s property, or if they have been otherwise alienated, the respondent State shall ensure that the applicant receives equivalent rooms;
(b) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage;
(c) 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Alena Poláčková
Deputy Registrar

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