CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 décembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }     Communicated on 17 December 2015   THIRD SECTION Application no. 45800/06 Yelena Nikolayevna AKHULKOVA against Russia lodged on 20 October 2006 STATEMENT OF FACTS The applicant, Ms Yelena Nikolayevna Akhulkova, is a Russian national, who was born in 1955 and lives in Zelenograd. She is represented before the Court by Ms Y.N. Vikhlyantseva, 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. In 1980 the applicant moved into a room in a communal flat in a block of flats under a contract of social tenancy. In 1994, under a contract of social tenancy, the applicant was provided with a two-room flat in a block of flats in the same town. In return, she undertook to move out from the room in which she and her minor daughter were living at that moment. As she failed to do so, in 1997 the Prefecture of the Zelenograd Administrative Circuit of Moscow (“the Zelenograd Prefecture”) sued the applicant in an attempt to have her and her daughter divested of their right to occupy the room. The applicant filed a counter claim seeking to have her daughter’s right to reside in the room acknowledged by a court. By a judgment of 24 October 1997 the Zelenograd District Court of Moscow granted the claim of the Zelenograd Prefecture and found that the applicant had lost all rights to reside in the disputed room or use it and should move out. The court further rejected the applicant’s claim, having found that her daughter should not have any right to use or reside in the room in question. This judgment was upheld on appeal 18 December 1997 and became final. According to the applicant, the judgment was not enforced and she and her daughter remained living in the room. In 1999 the applicant filed a written request for privatization of the room. On 23 March 1999 the Housing Department of Moscow concluded with the applicant a contract of privatization of the room in question, by which it was transferred free of charge to common property of the applicant and her daughter. A certificate of 30 June 1999 issued by the Moscow authorities confirmed the property title of the applicant and her daughter to the room in question. In late 2005 the Housing Department of Moscow informed the applicant that her room was situated in a block of flats that was dilapidated and would be demolished in the context of the Moscow authorities’ relevant programme. The authorities further informed the applicant that, as she and her daughter were owners of that room, they were eligible to be provided with housing of equal value, despite the fact that they also owned a two-room flat and a four-room flat. As appears, eventually the applicant, for personal reasons, turned down all options proposed to her by the authorities. In 2006 the Housing Department of Moscow brought a court claim against the applicant and her daughter, seeking to have the contract of 23   March 1999 annulled as being invalid, since, by virtue of the judgment of 24 October 1997, the applicant and her daughter had had no right to reside in the dispute room, and therefore had not met requisite conditions provided for in a relevant law to be able to privatize it. The applicant disagreed with the claim and invited the court to reject it as being time-barred, as it was lodged outside the statutory time-limit of three years applicable in that case. On 12 April 2006 the Zelenograd District Court granted the authority’s claim and invalidated the contract of 23 March 1999. It found that the claim was not time-barred as the relevant legislative amendment which had shortened the limitation period from ten to three years had only become operative in 2005, and the Housing Department of Moscow had lodged its claim within three years from that moment. It further found that the contract under examination had been concluded manifestly in breach of the relevant legal provisions, and had therefore been invalid. It annulled the property title of the applicant and her daughter to the disputed room and ordered that the room should be returned to the City of Moscow. On 20 April 2006, with reference to the aforementioned judgment, the authorities evacuated the applicant’s belongings from the room. Shortly after the block of flats was demolished as a dangerously dilapidated building. On 23 May 2006 the Moscow City Court upheld the judgment of 12   April 2006 on appeal. On 24 April 2008 the Presidium of the Moscow City Court in a supervisory review procedure set aside the court decisions of 12 April and 23 May 2006 as taken in breach of relevant legal provisions and returned the case for a new examination by the first-instance court. During a fresh examination, on 5 June 2008 the Zelenograd District Court found that the claim of the Housing Department of Moscow was time-barred. The court noted, in particular, that the law introducing in 2005 an amendment, by which a limitation period for such type of cases had been shortened from ten to three years, had clearly provided for its retroactive application, and therefore was applicable in the applicant’s case. It further noted that it was not before 2006, that is seven years after the contract of 23   March 1999 conferring the property title to the disputed room on the applicant and her daughter had been concluded, that the Moscow authorities had filed their claim by which they had challenged that contract; and that it had clearly been lodged outside the time-limit of three years as applicable in the present case, and should therefore be rejected. On 10 July 2008 the Moscow City Court upheld the judgment of 5 June 2008 on appeal. Thereafter the applicant insistently requested the Housing Department of Moscow to compensate her for the room destroyed in 2006 by providing her with equivalent housing. According to her, she received no replies to her requests. At some point the applicant issued civil proceedings against the Housing Department of Moscow before the Presnenskiy District Court of Moscow. She complained about a failure by the Housing Department of Moscow to provide her with housing of value equal to that of the room of which she and her daughter had been the owners and which had been demolished and requested the court to impose an obligation on the defendant to provide them with one, as required by section 6 of Law no. 21 of the City of Moscow of 31 May 2006. On 26 April 2012 the Presnenskiy District Court examined and rejected the applicant’s claim. The court confirmed that, by virtue of the law relied on by the applicant, owners of housing situated in dilapidated buildings that were to be demolished were entitled to monetary compensation or, alternatively, to compensation in kind, that is provision of housing of equal value. At the same time, the court considered that the applicant had no right to any compensation, as pursuant to the judgment of 24 October 1997, she had lost her right to use and live in the disputed room prior to the moment when it had been demolished. As a result, in the court’s view, the applicant had had no right to privatize that room, and after its demolition to seek any compensation under Law no. 21 of the City of Moscow of 31 May 2006. The court went on to note that subsequent registration by the applicant of the property title to the disputed room could not be a ground for granting her claim, as that “would contradict to the principles of reasonableness and justice”. The court concluded that although the applicant was de jure an owner of the disputed room, however, the contract of 23 March 1999 was null and void, having been concluded, in breach of relevant provisions of the legislation on privatization, with a person who had had no right to that room. The court added that, by virtue of Article 166 § 1 of the Russian Civil Code, such a contract had been invalid ab initio irrespective of existence of a court finding to that end. On 12 September 2012 the Moscow City Court upheld the judgment of 26 April 2012 on appeal. It stated, in particular: “... When resolving a question on compensation...for demolished housing, the lawfulness of acquisition of a property title to such housing, and as a result entitlement to compensation, is of a paramount importance. Despite the fact that the contract of 23 March 1999 has never been found void by a court decision, the existence of a registered property title to the room in question cannot be an unconditional ground for provision of compensation for its demolition, taking into account breaches [of the relevant legislation on privatization] which, as had reliably been shown by the materials of the case, had taken place during the privatization. Moreover, a reference in the appeal to the judgment of the Zelenograd District Court of Moscow of 5 June 2008, by which a claim of the Housing Department of Moscow to invalidate the contract [of 23 March 1999] and annul the certificate of a property title to the room [of 30 June 1999] was rejected, is unconvincing, as the ground for rejection of that claim was only the expiration of limitation period. At the same time, the court did not examine a question of lawfulness of acquisition of a property title to that room.” On 12 March and 10 April 2013 the Moscow City Court and the Supreme Court of Russia respectively declined to examine the applicant’s cassation appeal against the court decisions of 26 April and 12 September 2012. B.     Relevant domestic law Laws nos. 21-73 and 21 of the City of Moscow dated 9 September 1998 (as amended on 22 December 2004) and 31 May 2006 respectively provided, in their relevant parts, that owners of residential premises included in the programme of demolition of worn out buildings were entitled to the monetary compensation or compensation in kind, that is provision of housing of equal value. Article 166 of the Russian Civil Code provides that a transaction may be declared invalid on the grounds established by that Code, either by force of its being recognized as such by the court (a voidable transaction, оспоримая сделка ), or regardless of such recognition (a void transaction, ничтожная сделка ). According to Article 167 of the Russian Civil Code, void transactions entail no legal consequences, apart from those relating to their invalidity, and are invalid from the moment they are conducted. COMPLAINTS The applicant complains under Article 1 of Protocol No. 1 to the Convention about demolition of her room of which she was a lawful owner, and the authorities’ refusal to provide her with any compensation in that respect. QUESTIONS TO THE PARTIES 1.     As regards a room in flat no. 82 of block of flats no. 417 in the town of Zelenograd of Moscow referred to by the applicant (hereinafter “the room”), did the applicant have “possessions”, within the meaning of Article   1 of Protocol No. 1?   2.     Regard being had to the demolition of the room and the authorities’ refusal to provide any compensation in that respect: (a)     has there been an interference with the applicant’s right to peaceful enjoyment of her possessions secured by Article 1 of Protocol No. 1?   (b)     If so, was it lawful and in the public interest? In particular, was the applicant entitled under domestic law to compensation in respect of the demolished room?   (c)     Was a fair balance struck between the demands of the general interest of the community and the applicant’s property rights? In particular, regard being had to the judgment of the Zelenograd District Court of 5 June 2008, as upheld on appeal by the Moscow City Court on 10 July 2008, by which the claim of the Housing Department of Moscow ( Департамент жилищной политики и жилищного фонда г. Москвы ) disputing the applicant’s title to the room was dismissed as time-barred, was the domestic courts’ refusal in the proceedings of 2012-13 to award the applicant any compensation for the room, with reference to the “void” nature of her property title, reasonable and non-arbitrary?