CEDH · CASELAW;CLIN;ENG — 6 décembre 2011

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Russia - 7097/10 Judgment 6.12.2011 [Section I] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Revocation of bona fide purchaser’s title to flat on account of a previous owner’s fraudulent acquisition from State authority: violation   Article 8 Article 8-1 Respect for home Failure by State authority to assess proportionality when evicting bona fide purchaser from flat fraudulently acquired by previous owner: violation   Facts – In 2005 the applicant bought a flat in Moscow and started living there with her son. The flat had previously been owned by the City of Moscow before being acquired under a privatisation scheme by a certain Y, the alleged wife of a deceased occupier M to whom it had been allocated for social housing. Y   had sold the flat to a third party, who had then sold it to the applicant. In 2008 the Moscow Housing Department brought an action against the applicant and the previous owners of the flat claiming that it had been fraudulently acquired by Y. It requested the court to annul the privatisation and all the ensuing transactions. The court upheld the Housing Department’s claim, after finding that Y had actually never been married to M and could not therefore have acquired the flat after his death. It further revoked the applicant’s title to the flat and declared the City of Moscow the lawful owner. Law – Article 1 of Protocol No.1: The Government had claimed that the case fell outside the scope of Article   1 of Protocol No.   1 as it concerned a private-law dispute. However, it was clear from the domestic proceedings that it was a public authority, rather than a private party, who had brought the claim against the applicant. Moreover, the issues which had arisen during the proceedings – such as the grant of a social tenancy and fraud concerning residential registration – fell within the domain of public law and implicated the State in its regulatory capacity rather than as a private party to a civil-law transaction. Article   1 of Protocol No.   1 was therefore applicable. The case fell to be examined under the general rule guaranteeing the right to peaceful enjoyment of possessions and, despite certain doubts on the question of legality, the Court assumed that the interference with the applicant’s rights had been lawful and pursued the public interest in that it catered for the needs of persons on the waiting list for social housing. However, it was unclear why the fraudulent facts had not been discovered in 2004/05 when the relevant authorities had dealt with Y’s request: a simple enquiry of the competent civil registry, whose stamp had been used to produce a forged marriage certificate between Y and M, would have enabled the authorities to verify whether their marriage actually existed at the material time. There had been nothing to prevent the authorities from authenticating Y’s documents before granting her requests for registration, a social tenancy and privatisation. Moreover, the subsequent transactions in respect of the flat had also been subject to legalisation by the competent State authorities. In such circumstances, the risk of any mistake by a State authority should have been borne by the State and the errors were not to be remedied at the expense of the individual concerned. The applicant, who had been stripped of ownership without compensation and had no prospects of receiving replacement housing from the State, had thus borne an excessive individual burden that was not sufficiently justified by the public interest at stake. Conclusion : violation (unanimously). Article 8: Given the central importance of the rights guaranteed under Article   8 to the individual’s identity, self-determination and physical and moral integrity, the margin of appreciation in housing matters was narrower in respect of those rights compared to those protected under Article   1 of Protocol No.   1. After stripping the applicant of her ownership, the domestic courts had automatically made an order for her eviction, without any further analysis of the proportionality of that measure or the particular circumstances of her case. It was also of particular relevance that the applicant’s home had been repossessed by the State and not another private party whose interests in the flat might have been at stake. The alleged intended beneficiaries on the social-housing waiting list were not sufficiently individualised to allow their personal circumstances to be balanced against those of the applicant. Finally, the applicant’s circumstances did not make her eligible for substitute housing, nor had any goodwill been shown by the authorities in providing her with permanent, or even temporary, accommodation following her eviction. Conclusion : violation (unanimously). Article 41: Full restitution of the applicant’s title to the flat, annulment of the eviction order against her and EUR 9,000 in respect of non-pecuniary damage. (See also Gashi v. Croatia , no. 32457/05, 13   December 2007, and Orlić v. Croatia , no.   48833/07, 21   June 2011)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes