Conclusions: Remainder inadmissible Violation of Article 1 of Protocol No. 1 – Protection of property (Article 1 para. 1 of Protocol No. 1 – Deprivation of property Peaceful enjoyment of possessions) Non-pecuniary damage – award (Article 41 – Non-pecuniary damage Just satisfaction)
THIRD SECTION
CASE OF ANNA POPOVA v. RUSSIA
(Application no. 59391/12)
JUDGMENT
STRASBOURG
4 October 2016
This judgment will become final in the circumstances set out in Article 44 ? 2 of the Convention. It may be subject to editorial revision.
In the case of Anna Popova v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis L?pez Guerra, President,
Helena J?derblom,
Helen Keller,
Dmitry Dedov,
Branko Lubarda,
Alena Pol??kov?,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 13 September 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 59391/12) 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, OMISSIS on 12 August 2012.
2. The applicant, who had been granted legal aid, was represented by OMISSIS, a lawyer 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 she had been deprived of her flat in contravention of Article 1 of Protocol No. 1 to the Convention and that her eviction amounted to a violation of Article 8 of the Convention.
4. On 13 March 2014 the President of the First Section decided to grant the application priority under Rule 41 of the Rules of Court and to give the Government notice of the applicant?s 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 1964 and lives in Chelyabinsk.
A. Background information concerning the flat later purchased by the applicant
6. In 1971 a local factory, which was the owner of a block of flats, assigned the flat at 125-56 Ulitsa Kommuny, Chelyabinsk, to P. under a social housing agreement. In 1992 the title to the building was transferred to Chelyabinsk Municipality. P. resided in the flat as a tenant until his death on 3 December 2010.
7. Following P.?s death, Chelyabinsk Municipality started the process for registering the flat as vacant in order to assign it to another person eligible for social housing. However, it turned out that, according to the documents, the flat was no longer municipal property and that it belonged to L. The federal registration service sent the relevant data to the head of the municipality?s administration on 16 February 2011. The head of the administration asked the regional prosecutor to look into the situation with the flat.
8. The prosecutor established that the flat had been subject to a number of transactions. According to the relevant documents, on 9 November 1992 the factory had signed a privatisation agreement to transfer the flat to Kh. On 3 December 1992 the transaction was registered by the registration service. On 25 January 2011 Kh. sold the flat to L., who sold it on 21 April 2011 to Ya. Those transactions were also registered by the registration service.
9. A police investigator questioned Kh., who denied having anything to do with the flat. As regards his passport details indicated in the privatisation agreement, he explained that in 2009 and 2010 he had lost his passport twice and that he had never met P. or L. The police further established that L., who was serving in the army at the time, had also lost his passport in 2009.
10. On 31 March 2011 the prosecutor responded to the head of the administration advising him as follows:
?It appears that the persons who were parties to the transactions with the flat committed a crime in this respect. Accordingly the materials have been forwarded to the [police] for further inquiry … .
[The police] will inform you of the results of the inquiry … .
Furthermore, in order to prevent further transactions with the flat, I have asked the Chief State Registrar to refuse state registration of any future transactions with the flat.?
11. On an unspecified date the police opened a criminal investigation into the transactions involving the flat.
12. On 22 June 2011 Ya. sold the flat to the applicant.
B. Municipality?s claims in respect of the flat
13. On 30 June 2011, acting on behalf of the municipality, the prosecutor brought an action against Kh., L. and Ya. to seek repossession of the flat and the annulment of all transactions executed in respect of it. The prosecutor argued that Kh., had never resided in the flat and that the flat had never been transferred to him from the municipality under a privatisation scheme. The prosecutor asked the court to invalidate the privatisation agreement of 9 November 1992 and subsequent transactions in respect of the flat as having no basis in law. The Tsentralniy District Court of Chelyabinsk fixed a hearing for 1 September 2011.
14. On 6 July 2011 the registration service issued a certificate confirming the purchase of the flat by the applicant and her title to it.
15. On 16 September 2011 the District Court granted the applicant?s request and allowed her to take part in the proceedings initiated by the prosecutor. She claimed that she had bought the flat in good faith and that the municipality could not recover it from her.
16. On 5 October 2011 the District Court issued an injunction against the registration of any transactions involving the flat.
C. Annulment of the applicant?s title to the flat and eviction proceedings
17. On 23 December 2011 the Tsentralniy District Court of Chelyabinsk granted the prosecutor?s claims brought on behalf of the municipality. The applicant?s title to the flat was annulled and transferred to the municipality. The court also ordered the applicant?s eviction. Lastly, it ruled that Ya. should return to the applicant the sum she had paid for the flat. The court reasoned as follows:
?Pursuant to Article 302 of the Civil Code of the Russian Federation, if a property has been purchased from a person who had no right to sell it, and the purchaser is unaware and could not have been aware [of that fact] (the bona fide purchaser), the owner shall have the right to reclaim that property from the purchaser, if the said property was lost by the owner or by the person into whose possession the owner has conveyed the property, or if it was stolen from either of them, or if it left their possession against their will in another way.
It has been established in the course of the proceedings that the flat in question left the municipality?s possession against the latter?s will. Accordingly, the flat … should be recovered from [the applicant] and transferred to the municipality.?
18. On 5 March 2012 the Chelyabinsk Regional Court upheld the judgment of 23 December 2011 on appeal. The court also noted that the applicant could not be recognised as a bona fide purchaser given that she had known that the flat had been resold three times within five months.
19. On 13 December 2013 Ya. died. The part of the judgment of 23 December 2011 concerning the monetary award in the applicant?s favour remains unenforced.
20. According to the Government, the applicant has not been evicted and continues to reside in the flat.
D. The applicant?s action for damages against the State
21. On an unspecified date the applicant brought an action against the State, alleging that the local authorities? inaction had resulted in her buying a flat from a person who had no right to sell it to her.
22. On 19 December 2013 the Tverskoy District Court of Moscow dismissed the applicant?s claims.
23. On 16 June 2014 the Moscow City Court upheld the judgment of 19 December 2013 on appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
24. For a summary of the relevant domestic provisions and practice, see Gladysheva v. Russia (no. 7097/10, ?? 35-37, 6 December 2011).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
25. The applicant complained that she had been deprived of her possessions in violation of Article 1 of Protocol No. 1 to the Convention, which provides, in so far as relevant, 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.?
A. Admissibility
26. The Court notes that this complaint 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
1. Parties? submissions
(a) The Government
27. The Government argued that the interference with the applicant?s property rights had been ?in accordance with the law?. In their view, the flat had left the municipality?s possession as a result of fraudulent actions of unidentified persons who had forged a privatisation agreement. In the Government?s opinion, the present case should be distinguished from Gladysheva (cited above), where the authorities had had ample opportunity to verify the authenticity of the documents when entering into social housing and privatisation agreements with a private party. In the case under consideration, the privatisation agreement which authorised the transfer of the flat into the ownership of a private party had been forged. The municipality had not had any intent to dispose of its property. The existence of third party rights in respect of the flat only came to the municipality?s attention after the death of the tenant who had resided in the flat under a social housing agreement.
28. The Government also submitted that the interference with the applicant?s property rights had pursued the legitimate aim of protecting the interests of others, notably people in need of housing. The Government further noted that the repossession of the flat by the municipality had not placed an excessive burden on the applicant. She had not been evicted and continued to reside in the flat. In addition, the applicant had owned other real estate which she had sold once the prosecutor had brought an action against her in respect of the flat. Lastly, the Government submitted that the applicant had been put on the waiting list of people in need of social housing. She had also been successful in the action against the person who had sold the flat to her.
(b) The applicant
29. The applicant argued that the interference with her property rights had not been in accordance with the applicable laws. She had bought the flat in good faith and, as a matter of law, the municipality was estopped from reclaiming the flat. She further submitted that the loss of her property had amounted to a disproportionate interference with her rights as set out in Article 1 of Protocol No. 1 to the Convention. The authorities had placed an excessive burden on her and had failed to ensure a fair balance between their decision to reclaim the property from the applicant and her interests. The sequence of fraudulent transactions with the flat had resulted from the authorities? omissions and lack of diligence. When registering the sales of the flat, the registration service had failed to verify the authenticity of the documents involved. Furthermore, the authorities had become aware of the fraudulent privatisation of the flat when the flat had still been registered as Kh.?s property. However, they had done nothing to secure the recovery of the flat and had brought an action seeking repossession of the flat belatedly. As a result, the flat had been resold three times. Each transaction had been registered by the federal registration service. Lastly, the applicant pointed out that she had not received any compensation for the loss of title to the flat. Her action for damages against the authorities had been to no avail. Ya. had died and the judgment in her favour remained unenforced.
2. The Court?s assessment
(a) General principles
30. 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 those principles to the present case
31. The Court observes that it is common ground between the parties that the flat constituted the applicant?s possession and that the revocation of her title to it amounted to an interference with her rights as set out in Article 1 of Protocol No. 1 to the Convention. The Court sees no reason to hold otherwise.
32. Furthermore, the Court does not find it necessary in the circumstances of the case to decide on the lawfulness of the revocation of the applicant?s title to the flat or the legitimate aim of the impugned measure. To the extent that it is relevant to an assessment of the proportionality of the interference, those issues will be addressed in paragraphs 33-39 below (compare with Gladysheva, cited above, ?? 72-76, and Stolyarova v. Russia, no. 15711/13, ?? 45-46, 29 January 2015).
33. As to the issue of whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the applicant?s property rights, the Court answers that question in the negative. In its view, the repossession of the flat by the municipality constituted a disproportionate burden on the applicant.
34. In that connection, the Court observes that, as pointed out by the Government, the municipality lost its title to the flat as a result of a fraud when unidentified persons forged a privatisation agreement. It also accepts that there was no possibility for the municipality to become privy to the information concerning the fraudulent transfer of the title to the flat at any time before the flat was vacated following the tenant?s death in 2010. The Court, however, considers that once the fraud was discovered the authorities failed to exercise diligence or to act in good time in order to secure repossession of the flat.
35. According to the information submitted by the Government, on 16 February 2011 the municipality obtained information that the flat was no longer municipal property. Admittedly, the authorities needed a certain amount of time to conduct an inquiry into the matter and to establish the circumstances. However by 31 March 2011 the prosecutor had already informed the state registrar of the situation with the flat and asked the latter to refuse registration of any future transactions in respect of the flat. The Government did not furnish any explanation, however, as to why the flat changed hands twice after the prosecutor?s alert. The injunction against any transactions with the flat was only imposed in October 2011, after the applicant had purchased it.
36. The Court further rejects the Government?s argument that the applicant was herself responsible for the situation because she had bought a flat which had been the subject of two prior transactions within a short period of time. The registration service found those transactions to be in compliance with applicable laws and approved them. Neither the domestic courts nor the Government provided any explanation as to why in such circumstances the applicant should have had doubts as to the legitimacy of those transactions.
37. Lastly, the Court notes that the applicant has been deprived of ownership without any compensation or the provision of replacement housing from the State. The judgment in her favour ordering Ya. to return her monies remains unenforced to this date. Nor was she successful in suing the State for the omissions of the registration service.
38. The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the applicant was deprived of her title to the flat imposed an individual and excessive burden on her and that the authorities have failed to strike a fair balance between the demands of the public interest on the one hand and the applicant?s right to peaceful enjoyment of her possessions on the other.
39. 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
40. The applicant complained that her eviction had amounted to a violation of her right to respect for her home. She 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.?
41. The Government contested that argument.
42. The applicant maintained her complaint.
43. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. However, having regard to the findings relating to Article 1 of Protocol No. 1 to the Convention (see paragraphs 30-39 above) and given that the applicant remains in the flat (see paragraph 20 above), the Court considers that it is not necessary to examine the same facts from the standpoint of Article 8 of the Convention (see, mutatis mutandis, Akhverdiyev v. Azerbaijan, no. 76254/11, ? 101-05, 29 January 2015).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
44. 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
45. The applicant claimed 1,870,000 roubles (RUB) in respect of pecuniary damage and 48,500 euros (EUR) in respect of non-pecuniary damage.
46. The Government considered the applicant?s claims excessive and unreasonable.
47. 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.
48. The Court reiterates that, normally, the priority under Article 41 of the Convention is restitutio in integrum, as the respondent State is expected to make all feasible reparation for the consequences of the violation in such a manner as to restore as far as possible the situation existing before the breach (see, among other authorities, Piersack v. Belgium (Article 50), 26 October 1984, ? 12, Series A no. 85; Tchitchinadze v. Georgia, no. 18156/05, ? 69, 27 May 2010; Fener Rum Patrikli?i (Ecumenical Patriarchy) v. Turkey (just satisfaction), no. 14340/05, ? 35, 15 June 2010, ? 198; and Stoycheva v. Bulgaria, no. 43590/04, 19 July 2011). Consequently, having due regard to its findings in the instant case, the Court considers that the most appropriate form of redress would be to restore the applicant?s title to the flat and to annul the eviction order. Thus, the applicant would be put as far as possible in a situation equivalent to the one in which she would have been had there not been a breach of Article 1 of Protocol No. 1 to the Convention (compare with Gladysheva, cited above, ? 106).
49. In addition, the Court has no doubt that the applicant has suffered distress and frustration on account of the loss of her property. Making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
50. The applicant also claimed RUB 576,204 and EUR 2,000 for the costs and expenses incurred before and before the Court.
51. The Government considered that the costs and expenses incurred by the applicant had not been necessary, nor had she shown that she had actually incurred all of them. In particular, the applicant had not proved that she had paid EUR 2,000 to Ms Samorodkina, nor had she provided an agreement between her and Mr Puzanov, who lodged the application on her behalf.
52. 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. In the present case, the Court notes that EUR 850 has already been paid to the applicant by way of legal aid. Having regard to the documents submitted by the applicant in support of her claims, and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads.
C. Default interest
53. 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 a complaint under Article 8 of the Convention;
4. Holds
(a) that the respondent State shall ensure, by appropriate means, within three months of the date on which the judgment becomes final in accordance with Article 44 ? 2 of the Convention, restitution of the applicant?s title to the flat and the annulment of her eviction order;
(b) that the respondent State is to pay the applicant, within the same 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 date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(c) 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 4 October 2016, pursuant to Rule 77 ?? 2 and 3 of the Rules of Court.
Stephen Phillips Luis L?pez Guerra
Registrar President
