CASE OF DZAUROVA v. RUSSIA

THIRD SECTION

CASE OF DZAUROVA v. RUSSIA

(Application no. 44199/14)

JUDGMENT

STRASBOURG

17 March 2020

This judgment is final but it may be subject to editorial revision.

In the case of Dzaurova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 25 February 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 44199/14) 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 a Russian national, Ms Isiyat Israilovna Dzaurova (“the applicant”), on 29 May 2014.

2.  The applicant was granted leave to present her own case under Rule 36 § 2 in fine of the Rules of Court. The Russian Government (“the Government”) 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 3 November 2015 the Government were given notice of the complaints concerning the alleged violation of the applicant’s right to respect for her home and her right to a fair trial and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4.   The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1979 and lives in the Republic of Ingushetia.Background to the case

6.  In 1994 the applicant left the Chechen Republic for the Republic of Ingushetia and settled in the town of Karabulak.

7.  In 1996 the Federal Migration Service (“the FMS”) granted the applicant the status of internally displaced person (“IDP”) which was subsequently extended until 12 June 2014.

8.  In 2003 the authorities provided the applicant with a room in a housing facility “Promzhilbaza”, the property of the town of Karabulak.

9.  Between 2003 and 2013 the applicant gave birth to five children. According to her, she and her children had been living in “Promzhilbaza” until their eviction in 2014.

10.  The Government submitted that from 2002 and at least until 2016 the applicant had been registered as living in a flat in Malgobek, a town in the Republic of Ingushetia.

11.  Since 2003 the applicant is on the housing list in order to receive a housing voucher.Proceedings brought by the prosecutor against the Karabulak Town Council (“the Town Council”)

12.  In 2010 the Karabulak town prosecutor brought court proceedings against the Town Council on account of breaches of anti-fire rules on the premises of “Promzhilbaza”.

13.  On 28 September 2010 the Karabulakskiy District Court, Republic of Ingushetia (“the District Court”), granted the prosecutor’s action. The District Court found that the Town Council’s failure to take the measures to remedy the situation on the premises of “Promzhilbaza” had put at danger the lives and the health of inhabitants. The court ordered the Town Council to take immediate measures to eliminate all the violations of anti-fire rules and secure the safety of inhabitants. That judgment entered into force on 7 October 2010.

14.  In 2011 the town prosecutor brought fresh court proceedings seeking to declare unlawful the Town Council’s failure to evict persons who were unlawfully living on the premises of “Promzhilbaza”. In particular, the majority of those persons had not had any IDP status, had no rent agreement with the municipality and therefore, had no right to live in those premises.

15.  On 6 September 2011 the District Court granted the prosecutor’s action and ordered the Town Council to submit to the court eviction claims in respect of the persons who had no IDP status and therefore were unlawfully living in the premises of “Promzhilbaza”. That judgment entered into force on 19 September 2011.Eviction proceedings

16.  In July 2013 the Town Council initiated court proceedings against thirty five persons, including the applicant, seeking their eviction from “Promzhilbaza”. The Town Council submitted that seventy eight families (225 persons) were living in “Promzhilbaza”, which was municipal property. The majority of those persons had no legal grounds to live there. The Town Council further submitted the following arguments:

- the defendants had been moved into the premises on the basis of an oral order by the President of the Republic of Ingushetia as IDPs; however, they had lost their right to live there after they had received housing vouchers for the purchase of housing,

- the majority of those persons were not IDPs and had not been registered as persons in need of housing,

- no social tenancy agreements had been concluded with them,

- they had accumulated debts for communal charges,

- the buildings of the temporary facility were not in conformity with sanitary and anti-fire standards.

17.  Having regard to the above, the Town Council considered, with reference to the judgments of 28 September 2010 and 6 September 2011, that the respondents had been occupying the living premises in question unlawfully and had to be evicted together with their respective families.

18.  On 4 September 2013 the District Court ordered the eviction of thirty-five persons including the applicant.

19.  The District Court found, in particular, that on 6 September 2011 it had ordered the Town Council to prepare and submit to the court eviction claims in respect of persons who were unlawfully living in the premises of “Promzhilbaza”. It further established that no rent agreement had been concluded by the Town Council and the defendants had no IDP status. The District Court further referred to its findings in the judgment of 28 September 2010 as regards the incompatibility of “Promzhilbaza” with anti-fire rules. The District Court further held that according to the minutes of the meeting of 5 June 2013, the working group of the relevant Ministry of the Republic of Ingushetia had decided to deliver to the defendants the housing vouchers.

20.  The applicant was not present at the hearing of the District Court. She submitted that she had not been duly notified of that hearing and therefore, could not attend it. Between 1 and 7 September 2013 she and one of her children had been undergoing an outpatient treatment in a hospital. She learnt about the eviction order adopted by the District Court on 9 October 2013, when she received a copy of it with an accompanying letter.

21.  The applicant appealed against the eviction order on the grounds that she had been living in “Promzhilbaza” lawfully as an IDP. The District Court had not clarified the most relevant circumstances of the case, for instance the fact that on the date when the eviction order had been adopted, she had been still in need of housing and the Town Council had not provided any evidence to the contrary.

22.  On 26 December 2013 the Supreme Court of the Republic of Ingushetia (“the Supreme Court”) upheld the District Court’s judgment. The Supreme Court held, in particular, that the applicant had not concluded any rent agreement in respect of the premises which she had been occupying, and therefore, the District Court had ordered her eviction in accordance with law.

23.  On an unspecified date the applicant was evicted from the flat.

24.  On 17 April 2014 the enforcement proceedings were terminated.Proceedings concerning the applicant’s IDP status

25.  In August 2014 the FMS refused to further extend the applicant’s IDP status on the grounds that between 3 December 2013 and 14 April 2014 she had been the owner of a flat in the town of Malgobek, Republic of Ingushetiya, and between 25 February and 22 March 2011 she also owned 1/30 of another flat in the town of Magas, Republic of Ingushetia.

26.  The applicant contested that decision in a court on the grounds that the first flat had been the social housing of her parents, which was transferred to her ownership in December 2013 by way of privatisation. In April 2014 she sold it to a third party. Since then she has been living in that flat under a commercial rent agreement. She became the owner of 1/30 of the second property by using her “Mother’s voucher”.

27.  On 1 September 2014 the Malgobekskiy District Court, Republic of Ingushetia, ordered the FMS to extend the applicant’s IDP status for a one‑year period and to reinstate her on the list of IDPs in need of housing. The court found that de facto the first property had not been purchased by the applicant and that 1/30 of the second property belonging to the applicant had not solved her housing problems. The court concluded that the applicant had not had any property or any other housing to live in.

28.  On 5 February 2015 the Supreme Court upheld that judgment. The Supreme Court noted, in particular, that the applicant and her children were entitled to receive housing measuring at least 90 square metres on the basis of the statutory standard of 18 square metres per person, whereas the total surface of all property purchased by the applicant had been 40 square metres. There had been no other evidence to prove that the applicant had arranged her housing situation.

29.  Following those decisions, the FMS extended the applicant’s IDP status until 5 February 2016.

THE LAW  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

30.  The applicant complained that her eviction from the premises of “Promzhilbaza” had been in breach of Article 8 of the Convention which in its relevant parts reads as follows:

“1.  Everyone has the right to respect for .. his home...

 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.”AdmissibilityAbuse of right of individual petition and loss of victim status

31.  The Government submitted that the applicant had abused her right of individual petition. First, she had submitted false information to the Court. The inhabitants of “Promzhilbaza” had learnt about their forthcoming eviction not only from the court notifications, but also from numerous talks with the Town Council’s representatives, from media and meetings at which the eviction had been discussed. The applicant had had an individual appointment with the Town Council’s representative. Second, the applicant had not informed the Court of the fact that at the date of 4 September 2013, when the domestic court had ordered her eviction, she had accommodation, and therefore, she had not been a victim of a violation of her rights within the meaning of Article 34 of the Convention.

32.  The applicant disagreed.

33.  The Court reiterates that, under Article 35 § 3 (a) of the Convention, an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and a sufficient explanation has not been provided for the failure to disclose that information. The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (formerly Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references).

34.  Turning to the present case, the Court does not find it established with sufficient certainty that the application had been knowingly based on untrue facts, in particular, that the applicant had provided false information as regards the time when she had been informed of her eviction. It was not disputed by the parties that the eviction order of 4 September 2013 had been adopted in the applicant’s absence. The applicant was notified of that decision and received a copy on 9 October 2013 (see paragraph 20 above). Any talks with the Town Council’s representatives about the applicant’s possible eviction had not had any consequences for her until the matter had been decided by the District Court on 4 September 2003.

35.  Furthermore, the Court does not find it established with sufficient certainty that the applicant intended to mislead the Court by failing to provide the information about her property. It was established by the domestic courts (see paragraphs 27 and 28 above) that the first property referred to by the Government had not been de facto purchased by the applicant, the second property had not solved her housing problems and that the applicant had not had any property or any other housing to live in. On those grounds the domestic courts ordered the migration authorities to extend the applicant’s IDP’s status and to reinstate her on the housing list.

36.  Having regard to the above considerations, the Court rejects the Government’s pleas that the application be dismissed as abusive and that the applicant had lost her victim status.Non-exhaustion of domestic remedies

37.  The Government submitted that the applicant had not exhausted the domestic remedies available to her in respect of her complaint. She had not lodged any cassation appeals with the Presidium of the Supreme Court of the Republic of Ingushetia and to the Civil Chamber of the Supreme Court of the Russian Federation.

38.  The applicant did not comment.

39.  The Court observes that in May 2015 it ruled that the two-tier cassation appeal procedure introduced in January 2012 constituted a domestic remedy to be exhausted (see Abramyan and Others v. Russia (dec.), nos. 38951/13 and 59611/13, §§ 76-96, 12 May 2015). However, this requirement could not be applied to applications lodged before 12 May 2015, since the effectiveness of that remedy had not previously been recognised in the Court’s case-law (see Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 64-69, 29 March 2016, with further references). The applicant lodged her application to the Court on 29 May 2014. Therefore, the Government’s objection should be dismissed.Conclusion

40.  Having regard to its findings in paragraphs 36 and 39 above, the Court concludes 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.MeritsThe parties’ submissions

41.  The Government submitted that the Town Council had never concluded any rent agreement with the migration authorities in respect of “Promzhilbaza”, which had not been designed to receive IDPs and to be used as permanent accommodation. The authorities of the Republic of Ingushetia had been faced with an important flow of migrants and, therefore, they had provided them with temporary accommodation on the basis of oral instructions of the President of the Republic of Ingushetia.

42.  The applicant had been aware of the temporary nature of her accommodation, no social tenancy agreement had been concluded with her and she had not paid charges for it. Therefore, there had been no interference with her right to respect for her home.

43.  In case if the Court decided that there had been interference, it had been in accordance with the law and had been necessary in a democratic society. The Town Council had very serious reasons to seek the eviction of the inhabitants of “Promzhilbaza” (see paragraph 16 above). Their presence on those premises put their lives at danger. The absence of necessary living conditions and high risk of accident were sufficient grounds to justify the interference. Finally, alternative accommodation was available to the applicant in other constituent entities of the Russian Federation.

44.  The applicant maintained her complaint.The Court’s assessment

45.  The Court considers that the eviction order of 4 September 2013 amounted to an interference with the applicant’s right to respect for her home. The Court is ready to accept that the interference was in accordance with the law and pursued a legitimate aim of protecting the property rights of the Town Council. The central question is therefore whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”.

46.  The Court set out the relevant principles as regards assessing the necessity of an interference with the right to respect for one’s “home” in the case of Connors v. the United Kingdom, (no. 66746/01, §§ 81-84, 27 May 2004), which concerned the eviction of a Roma family from a local‑authority caravan site by way of summary possession proceedings. Subsequently, in McCann v. the United Kingdom (no. 19009/04, § 50, ECHR 2008), the Court held that the reasoning in the case of Connors was not confined to cases involving the eviction of Roma, or to cases where an applicant had sought to challenge a law itself rather than its application in his particular case, and further held as follows:

“The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.”

47.  In the present case, the applicant raised the issue of her right to respect for their home before the domestic courts and presented arguments questioning the proportionality of her eviction (see paragraph 21 above). The crux of her argument before the domestic courts was that she had been in need of housing as an IDP.

48.  The Court observes that the eviction order of 4 September 2013 was adopted in respect of thirty five persons, without any analysis of the applicant’s individual situation. The Town Council sought the eviction of persons who had no IDP status or who had lost it following the delivery of the housing voucher. However, the domestic courts did not examine the applicant’s particular circumstances, such as her IDP status, the fact that she had not received any housing voucher and that she was a single parent living in that accommodation with five minor children.

49.  Furthermore, the Court does not agree that the breaches of anti-fire rules on the premises of “Promzhilbasa” identified by the judgment of 28 September 2010 were sufficient to justify the applicant’s eviction. In particular, that judgment had ordered the Town Council to take immediate measures to eliminate all the violations of anti-fire rules identified by the prosecutor and secure the safety of inhabitants. The Town Council had three years at its disposal to comply with that judgment.

50.  In such circumstances, the Court considers that the national courts failed to balance the competing rights and therefore to determine the proportionality of the interference with the applicant’s right to respect for her home.

51.  The Court has already found violations of Article 8 of the Convention in other cases where the applicants did not have the benefit, in the context of eviction proceedings, of an examination of the proportionality of the interference in question (see, among other authorities, McCann, cited above, §§ 50-55; Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, §§ 50‑52, 2 December 2010; and Yevgeniy Zakharov v. Russia, no. 66610/10, §§ 35-37, 14 March 2017). It finds no reason to arrive at a different conclusion in the present case.

52.  The Court concludes that the interference complained of was not “necessary in a democratic society”. There has accordingly been a violation of Article 8 of the Convention.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

53.  The applicant complained under Article 6 of the Convention that the domestic courts had failed to duly notify her of the hearings before the courts of both instances and examined the eviction claims in her absence.

54.  Having regard to the facts of the case, the submissions of the parties, and its findings under Article 8 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the complaint under Article 6 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

55.  The Court has examined the other complaints submitted by the applicant after the Government were given notice of her application. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

56.  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.”Damage

57.  The applicant asked the Court to award her compensation for pecuniary and non-pecuniary damage in accordance with the Court’s practice.

58.  The Government submitted that no award should be made since the applicant had failed to specify her claims.

59.  Pursuant to Rule 60 § 1 of the Rules of Court, an applicant who wishes to obtain an award of just satisfaction in respect of pecuniary damage must make a specific claim to that effect. Since in the present case the applicant failed to specify the amounts claimed, the Court makes no award under that head (Rule 60 § 3) (see Narodni List D.D. v. Croatia, no. 2782/12, § 77, 8 November 2018).

60.  By contrast, since non-pecuniary damage does not, by its nature, lend itself to precise calculation, Rule 60 does not prevent the Court from examining claims for non-pecuniary damage which applicants did not quantify, leaving the amount to the Court’s discretion (see Nagmetov v. Russia [GC], no. 35589/08, § 72, 30 March 2017). Making an assessment on an equitable basis, the Court awards the applicant 9,800 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

61.  The applicant submitted that she could not send to the Court in time the documents to justify her postal expenses and legal counsel fees. She asked the Court to award her costs and expenses in the amount which the Court would find reasonable and equitable.

62.  The Government submitted that no award should be made in the case since the applicant had failed to indicate any claims for compensation for her costs and expenses.

63.  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. The Court observes that the applicant has not provided any documents to justify her costs and expenses. The Court therefore rejects the claim for costs and expenses in the domestic proceedings and in the proceedings before the Court.Default interest

64.  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,Declares the complaint under Article 8 of the Convention concerning the applicant’s eviction admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 8 of the Convention;Holds that there is no need to examine the complaint under Article 6 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 9, 800 (nine thousand eight hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 March 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsAlena Poláčková
RegistrarPresident

 

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