CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 septembre 2008

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He was represented before the Court by Mr O. Ladygin, a lawyer practising in Moscow. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, his wife and their three children owned a three-room apartment, of a total surface area of 86.5 sq.m., in a building at 4   Viktorenko Street, in the North Administrative District of Moscow. In 1997 the Prefect of the district concluded an investment contract with a private company, “Mosfundamentstroy-6”, for a land development, namely, for the construction of a new housing complex. According to that contract, the building in which the applicant had an apartment had to be pulled down and the inhabitants provided with new apartments. As the applicant refused to leave the building, in 2001 the Prefect lodged a claim against him with the Savelovskiy District Court of Moscow. He claimed that the applicant should be evicted from the apartment in question, his ownership should be terminated and he should be granted ownership of a new apartment in the same district. On 23 January 2001 the court rejected the Prefect’s claim. On 27 February 2001 the Moscow City Administration issued Decree no. 184-PP on the Results of the Implementation of a Programme on Dwelling Space in 2000 and a Programme on Dwelling Space in 2001, according to which the building at 4 Viktorenko Street had to be demolished and its inhabitants relocated. On 4 August 2003 the Prefect lodged the same claim again. On 20 March 2003 the local Child Welfare Agency (орган опеки и попечительства ) submitted to the court their conclusion that the applicant’s family’s eviction and the subsequent granting to them of a new, larger apartment would not affect the interests of the applicant’s children. On 16 July 2003 the Prefect issued order no. 4203: “... to provide the Krasaviny family with a three-room apartment, of a total surface area of 109.6 sq.m., at 34 Lavochkina Street. On 19 November 2003 the Savelovskiy District Court heard the case in the absence of the applicant’s family and allowed the Prefect’s claim. On 9 February 2004 that judgment was quashed due to the court’s failure to secure the defendants’ presence and the case was remitted for fresh consideration. On 31 March 2004 the Savelovskiy District Court of Moscow heard the case in the presence of the applicant and his lawyer and found as follows: “...The Krasaviny family has a three-room apartment, of a total surface area of 86.5 sq.m., at 4 Viktorenko Street... By Decree no. 184-PP on the Results of the Implementation of a Programme on Dwelling Space in 2000 and a Programme on Dwelling Space in 2001” the building at 4 Viktorenko Street is included in the list of buildings to be relocated or demolished. On 25 October 2001 the Prefect of the North Administrative District obliged the Municipal Housing Management to provide the inhabitants of the said building with new dwelling space. Article 49.3 of the Housing Code provided that, in the event of demolition of a building under circumstances prescribed by law, the local authority should grant the evicted owners title to an equivalent apartment or other compensation... By virtue of the Prefect’s order no. 4203 the Krasaviny family were provided with a three-room apartment, of a total surface area of 109.6 sq.m., at 34 Lavochkina Street. This building is situated in a residential area, in the same Administrative District, four stops away from the family’s current location...In close proximity there are children’s educational institutions, including a specialist English school (D. Krasavin is now studying at a similar school), music school, and children’s sports centre. According to the City Property Examination Bureau, the market value of the apartment at 34 Lastochkina Street is 4,860,400 Russian roubles [1] , whereas the market value of the apartment at 4 Viktorenko Street is 3,142,200 roubles [2] ...” Further noting that the authorities were pursuing a public interest and acting within their area of competence, the court allowed the Prefect’s claim and ordered the eviction of the applicant’s family. The court also terminated the applicant’s family’s title to the former apartment and granted them title to the new apartment at 34 Lavochkina Street. This judgment was subject to immediate execution. The Moscow City Court upheld the judgment in full on 24 May 2004. On 2 April 2004 the applicant’s family was evicted. On the same day the building was demolished. B.     Relevant domestic law Housing Code of the RSFSR (in force at the material time) Article 49.3. Providing citizens who are owners of apartments in a fully or partly privatised building with new apartments due to the demolition of the building If a building with privatised apartments becomes subject to demolition under circumstances prescribed by law, the local authority, company or organisation that performed the demolition shall grant the evicted owners, upon their agreement, title to an equivalent apartment or other compensation. COMPLAINTS The applicant complained under Article 1 of Protocol No. 1 that he had been deprived of his possessions. He further complained that the eviction had affected his private and family life within the meaning of Article 8 of the Convention. He argued that his children had lost the chance to communicate with their friends from the demolished building, and that he had been deprived of the possibility to send them to a school he had chosen. The applicant contended that the rights of his children to education within the meaning of Article 2 of Protocol No. 1 had been thus infringed. He also complained under Article 6 of the Convention that the decision in his case had been unfavourable to him and therefore the proceedings, as a whole, had been unfair. In particular he suggested that the courts had not been impartial as they depended financially on the local authorities who had been plaintiffs in his case. The applicant invoked Article 7 of the Convention and Article 2 of Protocol No. 4, claiming that his eviction constituted a punishment and a restriction on his freedom to choose his residence. He also invoked Article 13 of the Convention. THE LAW 1.     The applicant complained that he had been deprived of his possessions in breach of Article 1 of Protocol No. 1 to the Convention, which reads as follows: Article 1 of Protocol No. 1 “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.” It is undisputable that the applicant suffered an interference with his right to the peaceful enjoyment of his possession because his title to the old apartment was terminated by a court judgment. In spheres such as housing, the Court will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation ( Immobiliare Saffi v. Italy [GC], no.   22774/93, § 49, ECHR 1999-V). The Court notes that in the present case the interference in issue was based on Article 49.3 of the Housing Code of the RSFSR and on the Moscow City Administration’s Decree no. 184-PP, and was, therefore, in accordance with the law. In the Court’s view, the Savelovskiy District Court’s judgment of 31 March 2004 also pursued a legitimate aim, namely “economic well-being” – the demolition of the applicant’s building was required in order to construct a new housing complex, and thus to provide more Moscow residents with dwelling space. The Court has further to ascertain that there was a reasonable relationship of proportionality between the contested restriction and the legitimate aim pursued or, in other words, the “fair balance” must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The assessment of the fairness of the balance may be grounded on the terms of compensation afforded to the aggrieved applicant (see Natalya Gerasimova v. Russia (dec.), no. 24077/02, 25 March 2004). Turning to the circumstances of the present case the Court observes that the District Court compensated the loss of the applicant’s old apartment by way of providing him with a new one, situated in the same district. This new apartment was about twenty-three square metres larger than their previous one, and, accordingly, had a higher market value. The applicant did not contest these facts. Having regard to the above considerations, the Court is satisfied that the compensation awarded to the applicant was sufficient enough to meet the standards established in its case-law. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention.   2.     The applicant complained that the eviction of his family had violated his right to respect for his home contained in Article 8 of the Convention, which reads, in so far as relevant, as follows: Article   8 “Everyone has the right to respect for his private and family life, his home ... 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.” The Court agrees that the eviction of the applicant’s family constituted an interference, within the meaning of Article 8 § 2 of the Convention, with the applicant’s right to respect for his home guaranteed by paragraph 1 of that Article. The Court refers to its above findings that the interference complained of was in accordance with the law and pursued a legitimate aim. In determining whether the impugned measure was “necessary in a democratic society” w ith respect to the guarantees of Article 8, which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see Connors v. the United Kingdom , no.   66746/01, §   82, 27 May 2004), the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Chapman v. the United Kingdom [GC], no. 27138/95, ECHR   2001-I, § 92). In particular, a relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation. The evaluation of the suitability of alternative accommodation will involve a consideration of, among other things, the particular needs of the person concerned (see Chapman , cited above, §§ 103-04). The Court observes that in the present case the District Court fully examined the applicant’s situation and gave considerable weight to the interests of his family. Having found that the replacement apartment was of a bigger living surface, it also noted that the new building was in the same district as the previous one in which the applicant’s family had spent a number of years, therefore it cannot be said that the applicant’s family had to face a dramatic change in their surroundings. Furthermore, the court laid considerable emphasis on the interests of the applicant’s children, and opportunities for their education and social development at the family’s new place of residence. The court examined this issue and was satisfied that there were enough children’s institutions in the area, including a specialised English school for the applicant’s son, similar to the one at which he had studied at the place of his previous residence. In the light of the above consideration, the Court concludes that the applicant’s family was provided with suitable alternative accommodation, and that the authorities in the present case have respected a fair balance between the demands of the public interest on the one hand and the applicant’s right to respect for his home on the other. It follows that the applicant’s complaint under Article 8 of the Convention should be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. 3.     The applicant also relied on Articles 6, 7 and 13 of the Convention, Article 2 of Protocol No. 4 and Article 2 of Protocol No. 1, complaining of unfairness of the proceedings, lack of impartiality of the national courts, lack of effective remedies for his complaints, imposition of a punishment on him without law, restriction on his freedom to choose his residence and a violation of his children’s right to education. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application should be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court by a majority, Declares the application inadmissible. Claudia Westerdiek   Peer Lorenzen   Registrar   President [1] Around 140,000 euros at the material time [2] Around 90,293 euros at the material time