CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 avril 2017

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RUSSIA   (Application no. 21363/09)             JUDGMENT         STRASBOURG   11 April 2017   FINAL   18/09/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Strekalev v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Luis López Guerra,   Helen Keller,   Dmitry Dedov,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 21 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 21363/09) 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 Roman Aleksandrovich Strekalev (“the applicant”), on 9 March 2009. 2.     The applicant, who had been granted legal aid, was represented by Ms   M. Samorodkina and Ms L. Lazareva, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr   G.   Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3.     The applicant alleged, in particular, that he had been deprived of his flat in contravention of Article   1 of Protocol No.   1 to the Convention and that his eviction had amounted to a violation of Article   8 of the Convention. 4.     On 30 June 2014 the President of the First Section decided to grant the application priority under Rule   41 of the Rules of the Court and to give the Government notice of the complaints under Article   1 of Protocol No.   1 to the Convention and Article   8 of the Convention. The remainder of the application was declared inadmissible. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1978 and lives in Moscow. A.     Transactions in respect of the flat later purchased by the applicant 6.     Prior to its privatisation, the flat at 103-29 Dmitrovskoye Shosse, Moscow, had been owned by the City of Moscow. N. and her son B. had resided there as tenants since 1968 under the social housing agreement with the City. N. died in 1993 and B. died in 1994. 7.     On 11 June 2002 the municipal authority supervising real-property transactions in Moscow (“Moszhilservice”) authorised an exchange of flats between N., whose name had not been removed from the tenant register, and K. 8.     On 21   June 2002 Moszhilservice issued all the documents necessary for K. to move into N.’s flat. 9.     On 16 October 2002 the Moscow Housing Department transferred the title to the flat to K. under the privatisation scheme. On 11 November 2002 the Moscow City Committee for Registration of Real Estate Transactions (“the Registration Committee”) registered K.’s title to the flat. 10.     On 18 November 2002 K. sold the flat to the applicant. On 19   November 2002 the Registration Committee registered the applicant’s title to the flat. The applicant moved into the flat with his family. B.     Criminal proceedings against K. 11.     On 14 August 2003 the police opened a criminal investigation into the fraudulent acquisition of the flat by K. and other persons. On 14   February 2004 the investigation was suspended as the whereabouts of the alleged perpetrators had not been established. 12.     On 4   August 2014 K. died. The criminal investigation against him was closed. 13.     According to the Government, the investigation was reopened in respect of the other suspects. The proceedings are still pending. C.     Revocation of the applicant’s title to the flat 14.     On an unspecified date the prosecutor brought a civil claim on behalf of the Moscow Department of Housing Policy and the Housing Fund (“the Housing Department”), seeking annulment of all the transactions on the flat, the applicant’s eviction and the restitution of the flat to the City of Moscow. The applicant lodged a counter-claim for damages against the City of Moscow. He claimed that the fraudulent transactions in respect of the flat had resulted from the authorities’ failure to duly verify the documents submitted by K. for exchange and privatisation of the flat. 15.     According to the applicant, his counter-claim for damages was dismissed by the court as premature. 16.     On 17 April 2006 the Timiryazevskiy District Court of Moscow granted the prosecutor’s claims. The court established that N. had died in 1993 and B. had died in 1994; that after their death they had continued to be registered as tenants residing in the flat; that the flat allegedly exchanged by K. had never existed; that all the documents submitted by K. for the exchange of flats had been forged and that all the data indicated therein, including the name of the street and the names of the registrar and the notary, had been false. The court invalidated the exchange of flats between N. and K. It further considered that K. had defrauded the City of Moscow by submitting falsified documents for the exchange and privatisation of the flat, which should be construed as execution of the relevant transaction in the absence of intent to do so on the party of the City of Moscow. The court reinstated the City’s title to the flat and ordered the applicant’s eviction. 17.     On 24 October 2006 the Moscow City Court upheld the judgment on appeal. The court confirmed that the lower court had correctly applied legal provisions which allowed the lawful owner of the property to recover it from a bona fide purchaser. D.     The applicant’s claim for damages 18.     On an unspecified date the applicant reintroduced his claim against the City of Moscow for damages. 19.     On 12 May 2008 the Presnenskiy District Court dismissed the claim. The court discerned no causal link between the applicant’s loss of title to the flat and the respondent’s actions. 20.     On 18 September 2008 the Moscow City Court upheld the judgment on appeal. E.     Eviction proceedings 21.     On 5 February 2007 the bailiff instituted enforcement proceedings in respect of the judgment of 17   April 2006. 22.     On 1 June 2007 the Timiryazevskiy District Court of Moscow suspended for six months the enforcement of the part of the judgment concerning the applicant’s eviction. The applicant continued to reside in the flat. 23.     On 5   March 2012 the Registration Committee registered the City’s title to the flat. 24.     It appears that the bailiffs service lost the writ of enforcement and on 30   March 2012 the Housing Department applied for a duplicate. 25.     On 29 May 2012 the District Court issued a duplicate of the writ of enforcement. 26.     On 22 June 2012 the City Court upheld the decision of 29   May 2012 on appeal. 27.     On 31   August 2012 the bailiff opened enforcement proceedings in respect of the judgment of 17 April 2006. 28.     On 4 December 2012 the Timiryazevskiy District Court of Moscow ordered the applicant to pay a fine of 500 Russian roubles for his failure to comply with the writ of enforcement in due time. 29.     On 28   December 2013 the applicant rented another flat for the period from January to March 2014. 30.     On 28   March 2014 the District Court suspended the eviction proceedings for one year and the applicant moved back into the flat. 31.     On 11   February 2014 the enforcement proceedings were discontinued as the Housing Department had withdrawn the writ of enforcement. 32.     According to the Government, on 12   February 2014 the Housing Department entered into a one-year social tenancy agreement with the applicant in respect of the flat, pending the resolution of his housing problem. On 25   August 2014 the Housing Department entered into a permanent social tenancy agreement with the applicant. 33.     On 10   October 2014 the Housing Department transferred ownership of the flat to the applicant under the privatisation scheme. II.     RELEVANT DOMESTIC LAW AND PRACTICE 34.     For a summary of the relevant domestic provisions and practice, see the case of Pchelintseva and Others v. Russia (nos. 47724/07, 58677/11, 2920/13, 3127/13 and 15320/13, §§   60-71, 17 November 2016; not yet final). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.   1 TO THE CONVENTION 35 .     The applicant complained that he had been deprived of the title to his flat from 24 October 2006 to 10 October 2014 in violation of Article   1 of Protocol No. 1 to the Convention, which provides, in so far as relevant: “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.     Applicant’s standing 36.     The Government submitted that the applicant’s complaint should be dismissed as incompatible ratione personae . In their opinion, the applicant had failed to appoint his representatives in the proceedings before the Court promptly. 37.     The applicant did not comment. 38.     The Court observes that the applicant lodged his application on 9   March 2009. He signed the application form himself. Following notification of the application to the Government on 30   June 2014, the applicant, as required by Rule 54 § 2 (b), appointed two lawyers to represent him and submitted the relevant authority forms within the time-limit indicated by the Court. Accordingly, the Government’s objection is dismissed. B.     Admissibility 1.     Compliance with the six-month rule 39.     The Government considered that the applicant had failed to comply with the six-month rule and that his complaint should be declared inadmissible. They noted that the final decision on the matter had been taken by the City Court on 24   October 2006, whereas the applicant had lodged the complaint on 9   March 2009. 40.     The applicant argued that the six-month period should be calculated from the date of the final decision in the proceedings, which had ended on 18   September 2008. The proceedings had concerned his claims for damages resulting from the City authorities’ failure to exercise due care when verifying the legitimacy of the transactions on the flat, including its privatisation and transfer of title to K. 41.     The Court reiterates that, normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. In previous cases against Russia concerning the restitution of real property to the State, the Court, responding to the Government’s objection concerning the exhaustion of domestic remedies, has established that a final and enforceable judgment revoking the applicant’s title to real property constituted a final decision within the meaning of Article   35   §   1 of the Convention. It concluded, in this regard, that there was no further recourse against such judgment that might lead to reinstatement of the applicant’s title under Russian law (see, for example, Gladysheva v. Russia , no.   7097/10, §§   60-62, 6   December 2011). 42.     The Court observes that, in the present case, the applicant did not lodge his complaint with the Court within six months of the judgment revoking his title to the flat becoming final and enforceable. He did so only after the national courts had considered his action for damages against the City of Moscow. 43.     In the circumstances of the case, the Court can accept that the six ‑ month period started running from the date of the final decision in the second set of civil proceedings, as argued by the applicant. The Court notes that the applicant chose, as a judicial avenue to seek the protection of his rights, to lodge a counter-claim for damages against the City of Moscow. He did so promptly once the prosecutor had instituted proceedings on behalf of the City seeking the revocation of the applicant’s title to the flat. However, the national court decided to dismiss his counter-claim as premature. The Court discerns nothing in the Government’s submissions to suggest that the avenue chosen by the applicant was not an effective remedy in respect of his grievances or that he was aware, or should have become aware, that it would not be effective. Nor did the Government argue that the period elapsed after the final decision in the first set of the civil proceedings before the applicant had reintroduced his claims for damages had been unreasonable. Accordingly, in the Court’s opinion, it was reasonable for the applicant to await the examination of his claims against the City of Moscow before bringing them to the attention of the Court. 44.     Having regard to the above, the Court accepts that, by lodging the complaint on 9   March 2009, the applicant complied with the six-month rule, and the complaint cannot be rejected pursuant to Article 35 § 4 of the Convention. 2.     Whether the matter has been resolved 45.     The Court notes that, under Article 37 § 1 (b) of the Convention, it may “at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved ...”. To be able to conclude that this provision applies, the Court must determine, firstly, whether the circumstances complained of by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have been redressed (see Shevanova v. Latvia (striking out) [GC], no. 58822/00, §   45, 7   December 2007, and Sisojeva and Others v.   Latvia (striking out) [GC], no. 60654/00, §   97, ECHR 2007-I, with further references). 46.     While the Government have not argued that the matter has been resolved and the application should be struck out of the Court’s list of cases, the Court will examine the issue of its own motion (compare, mutatis mutandis , Lavrov v. Russia , no. 33422/03, §   26, 17 January 2012). 47.     As to the first question, it is clear that the interference complained of has ceased to exist. The enforcement of the judgment in the City’s favour has been discontinued and the applicant has been able to obtain ownership of the flat. 48.     On the second question, the Court observes that for approximately six years the applicant had to endure insecurity and legal uncertainty in connection with the judicial decision to annul his title to the flat and to evict him. The bailiff instituted enforcement proceedings and attempted to enforce the judgment in the applicant’s case. The latter also had to pay a fine for failure to comply with the bailiff’s orders and, subsequently, had to relocate for three months, incurring additional expenses. At no point did the authorities offer the applicant any compensation in that respect. In such circumstances, the Court cannot conclude that the effects of a possible violation of the Convention have been sufficiently redressed. Accordingly, it considers that the matter has not been resolved within the meaning of Article 37 § 1 (b) of the Convention. 3.     Conclusion 49.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C.     Merits 1.     The parties’ submissions 50.     The applicant considered that the interference with his property rights had not been in accordance with the applicable laws. In his view, the City of Moscow had not had standing, under Article   302 of the Civil Code of the Russian Federation, to reclaim the flat from him given that he had bought it in good faith. The City of Moscow had decided of its own will to cede ownership of the flat and to transfer it to K. It had verified and authorised all the transactions in respect of the flat. The applicant considered that his situation bore close resemblance to the one examined by the Court in the case of Gladysheva (cited above, §§   77-83). In particular, he claimed that the loss of his flat had amounted to a disproportionate interference with his rights, as set out in Article   1 of Protocol No.   1 to the Convention. The authorities had placed an excessive burden on him. Even though he had acquired the property in good faith, they had failed to ensure a fair balance between their decision to reclaim the property from him, and his own interests. He further argued that the State bore responsibility for the fraudulent transactions in respect of the flat he had later purchased. It had been incumbent on them to verify the compliance of those transactions with the applicable laws. However, the authorities had failed to do so in a timely and diligent manner and had managed to recover the property from him only by flagrantly disregarding his interests. Lastly, the applicant submitted that he had been deprived of his property without compensation. 51.     The Government considered that the interference with the applicant’s property rights had been “in accordance with the law”. In their view, the flat had left the City’s possession against its will and the City had the right to reclaim the flat even from a bona fide purchaser. The Government also considered that the interference with the applicant’s property rights had pursued the legitimate aim of protecting the interests of others, notably persons in need of housing. The transfer of the flat to the State should not be viewed as having been carried out in the State’s interests only. The City of Moscow was responsible for providing affordable housing to people on low incomes. Accordingly, the City had reclaimed the flat in the interests of those people. Lastly, the Government argued that the interference with the applicant’s right could not be considered disproportionate given that he had been allowed to use the flat and to obtain title to it through the privatisation scheme. 2.     The Court’s assessment (a)     General principles 52 .     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 53 .     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 purchasers once it had been established that the original privatisation of such property had been fraudulent (see Gladysheva , cited above, §§   77-83; Stolyarova v. Russia , no. 15711/13, §§   47-51, 29 January 2015; Andrey Medvedev v. Russia , no. 75737/13, §§   42-47, 13 September 2016; Kirillova v. Russia , no. 50775/13, §§   33-40, 13   September 2016; and Anna Popova v. Russia , no. 59391/12, §§   33-39, 4   October 2016). Having examined the specific conditions and procedures under which the State had alienated its assets to private individuals, the Court noted that they were within the State’s exclusive competence and held that the defects in those procedures resulting in the loss by the State of its real property should not have been remedied at the expense of bona fide purchasers. The Court further reasoned that such restitution of property to the State or municipality, in the absence of any compensation paid to its former 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. 54.     Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. It observes that the applicant’s title to the flat was revoked on the grounds that the procedures in which the City of Moscow had transferred the flat to K. had been fraudulent. The Court notes that those procedures were conducted by official bodies exercising the authority of the State. It further notes that the Government did not explain why the forgery of documents was not discovered when the relevant authorities dealt with K.’s requests for exchange and subsequent privatisation of the flat. In the Court’s view, it would have been a straightforward task for the authorities to verify the validity of the data submitted by K. and such an omission on their part could not justify the subsequent retribution against the applicant, who had bought the flat in good faith. Lastly, the Court takes into account that the applicant was deprived of his possession without compensation and that his claim for damages against the City of Moscow was dismissed. It therefore concludes that the restitution of the applicant’s flat to the City of Moscow placed an excessive individual burden on him and that the public interest was not sufficient justification for doing so. 55 .     There has accordingly been a violation of Article   1 of Protocol No.   1 to the Convention. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 56.     The applicant complained that his eviction had amounted to a violation of his right to respect for his 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.” 57.     The Government considered that the interference with the applicant’s right set out in Article   8 of the Convention had been lawful, had pursued the legitimate aim of protecting the rights of persons eligible to social housing and had been proportionate to that aim. 58.     The applicant maintained his complaint. 59.     Having regard to the findings relating to Article 1 of Protocol No. 1 to the Convention (see paragraphs 35-55 above), the Court considers that it is not necessary to examine separately the admissibility and the merits of the complaint under Article 8 of the Convention (see, mutatis mutandis , Güler and Uğur v. Turkey , nos. 31706/10 and 33088/10, §§   58-59, 2 December 2014). III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 60.     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 61.     The applicant claimed 106,900 Russian roubles (RUB) in respect of pecuniary damage. In particular, he had paid a fine in the amount of RUB   500 for failure to comply with the bailiff’s eviction order. Subsequently he had moved out of the flat and rented another property from January to March 2014, until the District Court suspended the enforcement of the eviction order. The applicant had paid the rent and the property agent’s fee in the amount of RUB   106,400. The applicant also claimed 40,000 euros (EUR) in respect of non-pecuniary damage. 62.     The Government submitted that the applicant had not been facing any risk of eviction and that his claims in respect of pecuniary damage should therefore be dismissed. They considered his claims in respect of non ‑ pecuniary damage to be excessive and unreasonable. 63.     The Court takes into account that in the present case it has found a violation of the applicant’s rights guaranteed by Article 1 of Protocol No.   1 to the Convention. It considers that there is a clear link between the violation found and the damage caused to the applicant. Accordingly, it awards the applicant EUR   1,518 in respect of pecuniary damage, plus any tax that may be chargeable on that amount. 64.     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 him EUR   1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B.     Costs and expenses 65.     The applicant claimed costs and expenses incurred before the domestic courts and the Court. As regards the domestic proceedings, he claimed RUB   182,500 for legal fees and RUB   500 for court fees. He also claimed EUR   2,000 for the work carried out by his representatives in the proceedings before the Court, which he requested be paid into the bank account of Ms Samorodkina. Lastly, the applicant claimed RUB   487.40 for postal costs and expenses. He submitted copies of the relevant receipts and agreements with the lawyers representing him. 66.     The Government asked the Court to reject the applicant’s claims for costs and expenses incurred in connection with the domestic proceedings (legal and court fees), as they considered them irrelevant to the consideration of his complaints before the Court. They also submitted that the applicant had failed to duly substantiate his claims for costs and expenses incurred before the Court. 67.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in the Court’s possession and the above criteria, the Court considers it reasonable to award the applicant, in addition to the sum paid by way of legal aid, EUR   3,664, plus any tax that may be chargeable to the applicant on that amount, under all heads. EUR   2,514 of this sum is to be paid directly to the applicant and EUR   1,150 into the bank account of Ms Samorodkina. C.     Default interest 68.     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.     Declares the application admissible;   2.     Holds that there has been a violation of Article 1 of Protocol No.   1 to the Convention;   3.     Holds that there is no need to examine the complaint under Article 8 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 1,518 (one thousand five hundred and eighteen euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii)     EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii)     EUR   3,664 (three thousand six hundred and sixty-four euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses. EUR   2,514 of this sum is to be paid directly to the applicant and EUR   1,150 into the bank account of Ms   Samorodkina; (b)     that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Helena Jäderblom   Registrar   President