CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 septembre 2018

.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 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 7 September 2018   THIRD SECTION Applications nos. 56335/10 and 23228/14 Larisa Viktorovna KOVALEVA against Russia and Larisa Viktorovna KOVALEVA against Russia lodged on 2 September 2010 and 28 February 2014 respectively STATEMENT OF FACTS 1.     The applicant, Larisa Viktorovna KOVALEVA, is a Russian national who was born in 1948 and lives in Moscow. A.     The circumstances of the cases 2.     The facts of the cases, as submitted by the applicant, may be summarised as follows. 1.     Sale of the flat and civil proceedings relating to the sale 3.     On 25 December 2007 the applicant bought a flat at a public auction. The price was set at 9,379,870 Russian roubles, then the equivalent of 263,633 euros. The flat had belonged to a private person, Mr F., and had been seized by virtue of a court decision for Mr F.’s debts. 4.     On 26 February 2008 the applicant sold her flat to Mrs S. under the condition that if the sale agreement was held void by a court or terminated by the applicant’s fault, and the flat was seized, the applicant would be bound to buy for Mrs S. equivalent accommodation in the same Moscow District and in the same condition, or to pay Mrs S. an amount equivalent to the price of such flat based on the price of an analogous flat as of the date of termination of the sale agreement and to reimburse damages and expenses incurred due to the purchase of the flat. 5.     On 14 July 2008 the Moscow Department of the Federal Bailiff Service conducted an inspection in respect of bailiff M. at the request of Mr   F., ex-owner of the flat. The Department found that bailiff M. had sold the flat which was the only registered place of residence of Mr F. and his family, in breach of the law on enforcement proceedings. 6.     On 21 October 2008 an investigator of the Moscow Prosecutor’s Office in the Kuzminskiy District initiated criminal proceedings against bailiff M. for abuse of powers. 7.     On 17 November 2008 the Kuzminskiy District Court held the public auction invalid at Mr F.’s request. 8.     On 12 October 2009 the Kuzminskiy District Court allowed Mr F.’s claim against the applicant, Mrs S. and Mrs S.’s husband, Mr Sh., and annulled the sale agreement. 9.     On 21 October 2009 the Kuzminskiy District Court of Moscow convicted bailiff M. as charged and sentenced him to three years’ imprisonment. 10.     On 23 March 2010 the Moscow City Court upheld the decision of 12   October 2009 on appeal. It dismissed the defendants’ argument that they were bona fide buyers and the flat could not be taken from them by its ex ‑ owner stating that Mr F. had been deprived of his flat against his will. Therefore, according to Article 302 of the Civil Code of Russia (the “Civil Code”), he could reclaim his flat from the buyers. 11.     On 21 September 2011 the Dorogomilovskiy District Court of Moscow allowed Mrs S.’s claim against the applicant and held that the applicant was to provide Mrs S. within two months with a new flat comparable to the flat which had been seized, situated in the same district of Moscow or in any other district, upon Mrs S.’s consent. 12.     On 4 June 2013 the applicant paid Mrs S. monetary compensation equivalent to the price of the seized flat. 2.     Proceedings against the Federal Bailiff Service (the “Service”) (a)     Proceedings in 2012 13.     In 2012 the applicant initiated civil proceedings against the Federal Agency for State Property (the “Agency”) and the Service. She asked the Agency to pay her the price of the flat bought at the auction together with the interest. She also requested that the Service reimburse her the sum spent for the purchase of a new flat for Mrs S. She stated in her claim, in particular, that bailiff M. had been convicted for abuse of powers because he had authorized the unlawful deal. Thus, the State was liable for causing her damage. 14.     On 20 November 2012 the Presnenskiy District Court of Moscow dismissed her claim stating that the State was not liable for damage inflicted by State officials under Article 1069 of the Civil Code unless the State official’s actions (inactions) were unlawful, caused damage which could be proved and there was a causal link between his or her actions (inactions) and the adverse consequences for the claimant. In the applicant’s case there was no causal link between the damage alleged and the conviction of bailiff M. Moreover, there was no causal link either between the alleged damage caused due to the applicant’s obligation to buy a new flat for Mrs S., and the Service’s actions. As to the Agency, it could not be held liable for damage arising out of the invalid sale. 15.     On 28 August 2013 the Moscow City Court dismissed the applicant’s appeal against the decision of 20 November 2012. 16.     On 19 March and 15 December 2014 the Moscow City Court and the Supreme Court of Russia dismissed the applicant’s cassation appeals. (b)     Proceedings in 2014 17.     In 2014, after unsuccessful attempts to recover the price of the flat bought at the auction from the Agency, the applicant decided to initiate civil proceedings against the Service and Ministry of Finance. She asked to pay her the sum equal to the price of the flat and the interest based on the legal provisions on invalid transactions rather than provisions on damages. 18.     On unspecified date the Meshchanskiy District Court scheduled a hearing for 17 April 2014. 19.     On 17 April 2014 the Meshchanskiy District Court postponed the hearing because the applicant’s lawyer had engaged in other unrelated proceedings. A new hearing was scheduled for 22   October 2014. 20.     On 21 October 2014 the applicant informed the court that she could not attend the hearing because she was sick and asked the court to postpone the hearing. She enclosed a copy of medical certificate and stated that she would provide the original at the next hearing. 21.     On 22 October 2014 the Meshchanskiy District Court dismissed her claim. The court stated that the applicant had been duly informed of the hearing but did not attend it. The hearing had already been postponed on 17   April 2014. The court concluded that the applicant abused her rights and violated the right of the other party to reasonable length of proceedings. It further reiterated the wording of the decision of 20 November 2012 regarding the casual link between the damage alleged and the actions of a State official. 22.     On 20 March 2015 the Moscow City Court dismissed the applicant’s appeal against the decision of 22 October 2014. B.     Relevant domestic law 1.     Invalid transactions 23.     Domestic provisions relating to invalid transactions are described in Pchelintseva and Others v. Russia (nos. 47724/07 and 4 others, § 61-64, 17   November 2016) 2.     Tort liability of the State 24.     Article 1064 § 1 of the Civil Code provides that the damage caused to the person or property of a citizen must be compensated in full by the person who caused the damage. Pursuant to Article 1069, a State agency or a State official is liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. 3.     Absence at a hearing 25.     According to Article 167 of the Code of Civil Procedure, parties must inform the court of the reasons for their failure to attend and produce evidence of valid reasons. If the parties have been notified of the time and place of the hearing, the court adjourns the proceedings if it finds that they have valid reasons for being absent. The court may still examine the case in the absence of a party that was notified of the time and date of the hearing if it finds that the party failed to explain the reasons for its absence or does not have valid reasons for the absence. COMPLAINTS 26.     The applicant complains under Article 6 of the Convention that she did attend the hearing at Meshchanskiy District Court of Moscow held on 22   October 2014. 27.     She further complains under Article 1 of Protocol No. 1 that she was deprived of her flat due to bailiffs’ mistake. QUESTIONS TO THE PARTIES Application no. 56335/10 1.     Was there an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No.   1? 2.     Was the applicant deprived of her possession in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol   No.   1? 3.     If so, was that deprivation necessary to control the use of property in accordance with the general interest? In particular, did that deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V)? Did the domestic courts indicate in their decisions adequate reasons for seizure of the applicant’s flat, in particular, when it comes to the casual link between the bailiff’s unlawful actions and seizure of the flat? Application no. 23228/14 Was there a fair hearing in the present case, as required by Article 6   §   1 of the Convention? In particular, was the applicant provided with an effective opportunity to attend the hearing in the Meshchanskiy District Court of Moscow on 22   October 2014?