CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 18 juillet 2017

.s800EAC49 { font-size:12pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s26251809 { margin-top:30pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .sD6E1DABD { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s76CC6FD2 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sA7C1495E { margin-top:30pt; margin-bottom:0pt; text-align:left } .sF3B96856 { width:11.87pt; display:inline-block } .s74FD211E { width:197.76pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       THIRD SECTION                   CASE OF MALAYEVY v. RUSSIA   (Application no. 35635/14)                     JUDGMENT     STRASBOURG   18 July 2017         This judgment is final but it may be subject to editorial revision.   In the case of Malayevy v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Luis López Guerra, President,   Dmitry Dedov,   Jolien Schukking, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 27 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 35635/14) 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 two Russian nationals, Mr Mikhail Pavlovich Malayev and Ms Sofiya Mikhailovna Malayeva (“the applicants”), on 8   May 2014. 2.     The applicants were represented by Ms G.   Boicheniuk-Cartier, a   lawyer admitted to practise in Ukraine. The Russian Government (“the Government”) who were represented initially by Mr G. Matyushkin, the 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 28 August 2015 the complaints under Article   8 of the Convention and Article   1 of Protocol No.   1 were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicants were born in 1981 and 2006 respectively and live in Moscow. The first applicant is the second applicant’s father. A.     Transactions with the flat later inherited by the first applicant 5.     Prior to its privatisation, the flat at 4-1-25, 12-ya Novokuzminskaya Ulitsa, Moscow, had been owned by the City of Moscow. Spouses V.F. and G.F resided there under the social housing agreement with the City. 6.     On an unspecified date V.F. applied for the privatisation of the flat. His wife chose not to participate in the transaction. On 22   August 2002 V.F. and the Housing Department signed a privatisation agreement. 7.     On 14   May 2004 V.F. sold the flat to L.M., the first applicant’s mother. According to the text of the sale contract, L.M. paid RUB   300,000 to V.F. for the flat. According to the applicants, in reality, L.M. had paid RUB   2,500,000. 8.     On 28   September 2006 L.M. died. The first applicant inherited the flat after her death. His family, including the second applicant, moved in and resided there. According to the official documents, V.F. did not move out and also continued to reside in the flat. According to the applicants, V.F. moved to the suburbs, but they let him keep the flat registered as his place of residence so that he could continue to receive social benefits in Moscow. 9.     On 10   July 2007 the first applicant transferred the title to half of the flat to his sister by way of gift. B.     Annulment of the first applicant’s title to the flat 10.     On 22   April 2011 V.F. lodged a complaint with law enforcement authorities. He alleged that he had not sold the flat to his relative L.M. and that he had not received any money from her. He had continued to live in the flat and had let the first applicant move into the flat temporarily in view of the problems the latter had been having with his wife. In May 2010 V.F. and the first applicant had had a fight and V.F. had asked the first applicant to move out. The first applicant had refused claiming to be the owner of the flat. He had kicked V.F. out of the flat. After that V.F. had been able to have access to the flat only with the support of the police or the neighbours. 11.     On 5   July 2011 the prosecutor, acting in the interests of V.F., brought a civil action seeking the annulment of the first applicant’s title to the flat and eviction of his family. 12.     On 15   November 2012 the Kuzminskiy District Court of Moscow granted the claims in full. The court established that, at the time of the privatisation and sale of flat, V.F. had not been able to understand his actions or control them. It relied on the forensic experts’ findings that “V.F. suffered from organic personality syndrome and vascular dementia which had developed long before he had applied for privatisation of the flat on 22   August 2002 and sale of the flat on 14   May 2004. [His condition] had prevented him from understanding his actions or controlling them.” The court invalidated all the transactions with the flat and transferred it to the ownership of the City of Moscow. Lastly, the court ordered the applicants’ eviction. 13.     On 29   April 2013 the District Court issued a supplementary judgment refusing to apply the statute of limitations to the prosecutor’s claims in V.F.’s interest. 14.     On 12   November 2013 the Moscow City Court upheld the judgments of 15   November 2012 and 29   April 2013 on appeal. 15.     On 13   March 2014 the City Court rejected the applicants’ cassation appeal. C.     Eviction proceedings 16.     On 27   November 2013 the District Court issued a writ of enforcement in respect of the judgment of 15   November 2012 indicating V.F. as the beneficiary. 17.     On 3   December 2013 the bailiff instituted enforcement proceedings. 18.     On 30   January 2014 the applicants were evicted. According to the eviction report prepared by the bailiff, V.F. received the keys to the flat and could reside there. 19.     On 16   April 2014 the Housing Department signed a social housing agreement with V.F. and on 20   November 2014 the title to the flat was transferred to V.F. under the privatisation scheme. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.   1 TO THE CONVENTION 20.     The applicants complained that they had been deprived of their property in contravention of Article 1 of Protocol No.   1 to the Convention, which 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.” 21.     The Government contested that argument. While they acknowledged that the invalidation of the first applicant’s title to his share in the flat had constituted an interference with the applicants’ possessions, they considered that such interference had been in strict compliance with the requirements set forth in Article   1 of Protocol No.   1. In the Government’s view, the invalidation of all the transactions in respect of the flat and its transfer into the possession of the City of Moscow had been necessary to protect the interests of V.F. in order to restore his rights. 22.     The applicants maintained their complaint. They submitted that the domestic courts, when resolving the housing dispute, had applied the laws incorrectly. In particular, the courts had failed to take into consideration that the applicants had acquired the rights to the flat in good faith and that the flat should not have been recovered from them. Lastly, they argued that they had not received a compensation for the loss of their property. A.     Admissibility 23.     The Court observes that the first applicant was the lawful owner of a share in the flat. Accordingly, the Court is satisfied that the flat constituted his “possession” for the purposes of Article 1 of Protocol No.   1 to the Convention. The said provision is therefore applicable. 24 .     However, the Court is unable to draw a similar conclusion in respect of the second applicant. She was not the owner of the flat and resided there only as the member of the first applicant’s family. Nor did she refer in her observations to any national law or factual information that would allow the Court to conclude that her occupancy right constituted a “possession” within the meaning of Article   1 of Protocol No.   1 to the Convention. It follows that her 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, Pchelintseva and Others v.   Russia , nos. 47724/07 and 4 others, §§   77-79, 17   November 2016). 25.     Regard being had to the above, the Court concludes that the complaint lodged by the first applicant 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 26.     The Court notes, from the outset, that the civil proceedings resulting in the forfeiture by the first applicant of his title to the flat were instituted by a private individual V.F. who sought to restore his own right to reside in the flat which had originally been the property of the City of Moscow. The City of Moscow, when invited by the court to take part in the proceedings as a third party, did not file a separate claim in respect of the flat and chose not to attend the proceedings. The Court also considers that, even though the domestic courts’ decisions recognised the City’s ownership of the flat, it was done with the sole purpose to return the flat to V.F. He was the beneficiary in the enforcement proceedings and moved into the flat once the applicants were evicted. 27.     Regard being had to the above, the Court concludes that the present case concerns, in substance, a dispute between private parties. It reiterates, in this respect, that such dispute[s] do not as such engage the responsibility of the State under Article 1 of Protocol No. 1 to the Convention (see, among other authorities, Zagrebačka banka d.d. v. Croatia , no. 39544/05, §   250, 12   December 2013). 28.     Accordingly, the Court’s task in the present case is to assess whether the domestic courts’ adjudication of the dispute between V.F. and the first applicant was given in accordance with domestic law and to ascertain that their relevant decisions were not arbitrary or manifestly unreasonable (compare, Mindek v. Croatia , no. 6169/13, §   78, 30 August 2016). 29.     As regards the lawfulness of the revocation of the first applicant’s title to the flat and bearing in mind that the Court’s jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and it is not its function to take the place of the national courts (ibid.), the Court discerns nothing in the instant case for it to conclude that the Russian authorities applied the legal provisions manifestly erroneously or so as to reach arbitrary conclusions. As to the first applicant’s argument that the national courts had failed to recognise that he had acquired the flat in good faith, the Court observes that he had not raised it in the domestic proceedings. Those circumstances were referred to for the first time in the proceedings before the Court. Nor, as it follows from the parties’ submissions, did he seek the return of the monies paid by his mother to V.F. for the flat. 30.     In the light of the foregoing, the Court concludes that the national courts’ decisions in the instant case did not constitute interference with the first applicant’s right to the peaceful enjoyment of his possessions. There has, therefore, been no violation of Article 1 of Protocol No. 1. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 31.     The applicants complained that their eviction had amounted to a violation of their right to respect for home. They relied on Article 8 of the Convention, which reads: “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.” 32.     The Government admitted that the national courts’ decision to order the applicants’ eviction had constituted an inference with their right to respect for home under Article   8 of the Convention. They considered that such interference had been lawful, pursued the legitimate aim of protecting the interests of V.F. and that it had been proportionate to that aim. 33.     The applicants maintained their complaints. A.     Admissibility 34.     The Court notes that the application 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 35.     The Court notes that it has not been disputed between the parties that the flat in question was the applicants’ “home” within the meaning of Article 8 of the Convention and that their eviction from that flat amounted to an interference with their right to respect for home. 36.     The Court further notes that the lawfulness of the eviction is not in dispute. It was an automatic consequence of termination of the first applicant’s title to the flat. 37.     As to the existence of a legitimate aim of the impugned measure, the Court takes note of the Government’s argument and accepts that the applicants’ eviction catered for the needs of V.F., a vulnerable person who had originally resided in the flat under the social housing agreement. 38.     The Court will therefore proceed to the question whether the interference was “necessary in a democratic society”. It reiterates, in this respect, that the margin of appreciation in housing matters is narrower when it comes to the rights guaranteed by Article 8 compared to those in Article   1 of Protocol No. 1 to the Convention, regard had to the central importance of Article 8 of the Convention 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 Gladysheva v. Russia , no.   7097/10, §   93, with further references, 6   December 2011). 39.     The Court observes that an order was made for the applicants’ eviction automatically by the domestic courts after they had terminated the first applicant’s title to the flat. They made no further analysis as to the proportionality of the measure to be applied against the applicants. However, the guarantees of the Convention require that any interference with an applicant’s right to respect for his or her home not only be based on the law but should also be proportionate, under paragraph 2 of Article 8 of the Convention, to the legitimate aim pursued, regard being had to the particular circumstances of the case. Admittedly, the national courts took into accounts the interests of V.F. who sought to reinstate his rights in respect of the flat. However, they did not weigh those interests against the applicants’ right to respect for their home. Once the courts invalidated the first applicant’s title to the flat, they gave that aspect paramount importance, without taking into account the applicants’ housing needs. The national judicial authorities thus failed to provide the applicants with a proper review of the proportionality of their eviction. 40.     The foregoing considerations are sufficient for the Court to conclude that the interference complained of was not necessary in a democratic society. There has been accordingly a violation of Article   8 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 41.     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 42.     The applicants claimed 12,000,000 Russian roubles (RUB) and 80,000 euros (EUR) in respect of pecuniary and non-pecuniary damage respectively. 43.     The Government considered the claims to be unsubstantiated, excessive and unreasonable. 44.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicants EUR   7,500 in respect of non ‑ pecuniary damage. B.     Costs and expenses 45.     The applicants also claimed EUR 6,000 for the costs and expenses incurred before the domestic courts and EUR 2,700 for those incurred before the Court. They asked the latter amount to be paid directly to the account of their representative. 46.     The Government submitted that the applicants had failed to substantiate their expenses in full. They further considered them excessive and unnecessary. In their opinion, no award should be made to the applicants under this head. 47.     Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR   1,000 covering costs and expenses under all heads. EUR   500 of this sum is to be paid directly to the applicants and EUR   500 into the bank account of Ms   G.   Boicheniuk-Cartier. C.     Default interest 48.     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 complaint under Article   1 of Protocol No.   1 to the Convention lodged by Mr M. Malayev admissible and the complaint under Article   8 of the Convention lodged by Mr M. Malayev and Ms   S.   Malayeva admissible and the remainder of the application inadmissible;   2.     Holds that there has been no violation of Article 1 of Protocol No.   1 to the Convention;   3.     Holds that there has been a violation of Article 8 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicants, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses. EUR   500 of this sum is to be paid directly to the applicant and EUR   500 into the bank account of Ms   G.   Boicheniuk-Cartier; (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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 18 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Luis López Guerra Deputy Registrar   President