THIRD SECTION
CASE OF KOCHERGIN v. RUSSIA
(Application no. 71462/17)
JUDGMENT
STRASBOURG
24 September 2019
This judgment is final but it may be subject to editorial revision.
In the case of Kochergin 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 3 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 71462/17) 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, Mr Aleksandr Ivanovich Kochergin (“the applicant”), on 6 September 2017.
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. On 7 November 2017 notice of the complaint concerning the annulment of the applicant’s title to the flat was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1956 and lives in Chelyabinsk.
A. Transactions in respect of the flat later purchased by the applicant
5. The flat in question was a two-roomed flat measuring 38.9 sq. m and located at 27-24 Krasnoznamennaya Street, Chelyabinsk, which belonged to Chelyabinsk Municipality. Two brothers, A.N. and V.N., resided in the flat under a social-tenancy agreement with the Municipality.
6. On 21 December 2009 V.N. was sentenced to a term of imprisonment, which he served in a correctional colony in Chelyabinsk Region.
7. On 12 March 2014 the Municipality annulled V.N.’s registration in respect of the flat following a request by A.N.
8. On 11 August 2014 the Municipality transferred the title to the flat to A.N. under a privatisation scheme. A.N. submitted a notarised statement made by V.N., in which the latter waived his right to participate in acquiring the flat.
9. On 18 September 2014 the regional land registry registered A.N.’s title to the flat.
10. On 19 September 2014 the regional land registry confirmed, in response to a request by the applicant, that A.N. was the owner of the flat and that the flat was free from any liens or encumbrances.
11. On 23 September 2014 A.N. sold the flat to the applicant. The applicant paid 1,450,000 Russian roubles to A.N. as a purchase price. On 29 September 2014 the regional land registry registered the applicant’s title to the flat. The applicant and his family moved into the flat and lived there.
B. Termination of the applicant’s title to the flat
12. On 4 December 2015 V.N. was released from prison.
13. On an unspecified date V.N. brought an action against the applicant, A.N. and the Municipality seeking the invalidation of (1) the privatisation of the flat into A.N.’s ownership and (2) the sale of the flat to the applicant. V.N. claimed that the notarised waiver of his right to participate in the privatisation of the flat allegedly signed by him had been forged.
14. The court did not establish the whereabouts of A.N. The latter did not have any known address and could not be found. He did not take part in the proceedings in person. The court appointed M. as his counsel. M. contested V.N.’s claims.
15. The court informed the Municipality of the pending civil proceedings concerning the consideration of V.N.’s claims. The Municipality chose not to attend the hearing.
16. The applicant submitted that he had bought the flat in good faith and, as a matter of law, had a right to retain his title to it despite the fraudulent actions allegedly committed by A.N.
17. On 18 May 2016 the Kurchatovskiy District Court of Chelyabinsk granted V.N.’s claims in full. It established that V.N.’s waiver had been forged and recognised his right to reside in the flat. The court invalidated all the transactions with the flat, transferred the title to the flat back to the Municipality and ordered A.N. to repay the applicant the price the latter had paid for the flat. The court refused to recognise that the applicant had bought the flat in good faith, noting that the applicant (1) had had an opportunity to verify whether A.N. had had a right to sell the flat and whether V.N. had indeed waived his rights to his share in the privatised flat; (2) could have known that A.N. had not had a right to sell the flat; and (3) had known that V.N. had been serving a prison sentence and, upon his release, would have been eligible to reside in the flat.
18. On 9 August 2016 the Chelyabinsk District Court upheld the judgment of 18 May 2016 on appeal. When upholding the District Court’s refusal to recognise that the applicant had bought the flat in good faith, the appellate court also noted that the applicant (1) had bought the flat at below market value and (2) had known that A.N. had had a drinking problem. The court refused to order the enforcement procedure requested by the applicant, who had asked that the annulment of his title to the flat precede the repayment by A.N. of the purchase price of the flat.
19. On 9 March 2017 the Regional Court dismissed an appeal on points of law by the applicant against the judgments of 18 May and 9 August 2016.
20. On 29 June 2017 the Supreme Court of the Russian Federation dismissed a second appeal on points of law by the applicant.
C. Enforcement proceedings in respect of the judgment of 18 May 2016
21. On 26 September 2016 the bailiff’s office instituted enforcement proceedings against A.N. The bailiff’s office did not establish A.N.’s whereabouts or any of his assets. The judgment in the part concerning the repayment of the purchase price to the applicant has not been enforced to date.
D. Eviction proceedings
22. On an unspecified date V.N. brought a civil action, seeking the applicant’s eviction. On 2 February 2017 the District Court allowed V.N.’s claims in full. The applicant did not appeal against the said judgment.
23. On 15 June 2017 the District Court stayed the applicant’s eviction until 15 November 2017.
24. On 31 May 2018 the applicant and his family were evicted from the flat.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
25. The applicant complained that he had been deprived of his flat in contravention of Article 1 of Protocol No. 1 to the Convention, which reads 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
27. The Government conceded that the annulment of the applicant’s title to the flat had amounted to an interference with his property rights. Nevertheless, such interference had been in accordance with law, it had pursued a legitimate aim and had been proportionate and “necessary in a democratic society”. The privatisation of the flat authorised by the Municipality had been based on the misrepresentations made by A.N. The national courts had rightfully invalidated all the transactions in respect of the flat and had reinstated V.N.’s right to housing. They had also ordered A.N. to repay the money received to the applicant.
28. The applicant maintained his complaint.
29. The Court notes, from the outset, that the civil proceedings resulting in the forfeiture by the applicant of his title to the flat were instituted by V.N., who sought to restore his own right to reside in the flat. The town administration, when notified by the District Court of the proceedings, did not lodge a separate claim in respect of the flat and chose not to attend the hearing. The Court also considers that, even though the domestic courts’ decisions recognised the Municipality’s title to the flat, they did so with the sole purpose of returning the flat to V.N.
30. Regard being had to the above, the Court concludes that the present case concerns, in substance, a dispute between private parties. It reiterates, in this connection, that such dispute[s] do not as such engage the responsibility of the State under Article 1 of Protocol No. 1 to the Convention (see, among other authorities, Zagrebačka banka d.d. v. Croatia, no. 39544/05, § 250, 12 December 2013).
31. Accordingly, the Court’s task in the present case is to assess whether the domestic courts’ adjudication of the dispute between V.N. and the applicant was given in accordance with domestic law and to ascertain that their relevant decisions were not arbitrary or manifestly unreasonable (compare, Mindek v. Croatia, no. 6169/13, § 78, 30 August 2016).
32. It further reiterates that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and it is not its function to take the place of the national courts (ibid. § 78). The Court refers to its settled case-law that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). It will therefore confine itself to examining whether the decisions of the domestic courts were arbitrary or manifestly unreasonable.
33. The Court attaches particular weight to the fact that, at the time of the consideration of V.N.’s claims, the whereabouts of his brother A.N., who had sold the flat to the applicant and received the money for it, had not been known. As a result, A.N. was not notified of the pending civil dispute and did not take part in the proceedings. The District Court did not identify any of his assets. Nor did it indicate any other way to secure the enforcement of the judgment in the part concerning the repayment of the money by A.N. to the applicant.
34. The Court considers, accordingly, that it was evident to the judicial authorities, from the outset, that the probability that the applicant would be able to recover any money from A.N. was non-existent. Nevertheless, they annulled the sale contract between A.N. and the applicant, depriving the latter of his property without an opportunity to recover anything in return. In the Court’s view, the decision to deprive the applicant of his property without any compensation placed an excessive burden on him.
35. The Court further notes that the national courts expressly refused to recognise the applicant’s good faith, which would have allowed him to retain his title to the flat, noting, inter alia, that he had not verified the validity of the documents submitted by A.N. At the same time, they condoned such an omission on the part of the municipal authorities, who had accepted those documents as valid and had authorised the transfer of the title to the flat to A.N. and then to the applicant. In this connection, the Court reiterates that the consequences of any mistake made by a State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Stolyarova v. Russia, no. 15711/13, § 49, 29 January 2015, with further references). It therefore considers that the judicial decision to correct the omission on the part of the municipal and regional authorities at the applicant’s expense also put an excessive burden on him.
36. Regard being had to the above, the Court concludes that the judicial authorities’ decision to deprive the applicant of this title to the flat without an opportunity to recover the money he had paid for it and to rectify the errors on the part of the municipal and regional authorities at the applicant’s expense is arbitrary. There has been a violation of Article 1 of Protocol No. 1 to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
37. 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
38. The applicant claimed 22,638 euros (EUR) in respect of pecuniary damage (the purchase price he had paid for the flat and the cost of the refurbishment of the flat). In support, he submitted the relevant receipts and invoices. He further claimed EUR 20,000 in respect of non-pecuniary damage.
39. The Government discerned no violation of the applicant’s rights and considered that no award should be made to him. Alternatively, they submitted that the applicant’s claims were excessive, unreasonable and unsubstantiated.
40. The Court considers that, in the present case, there is a clear link between the violation found and the pecuniary damage caused to the applicant. Having due regard to its findings in the instant case and to the fact that the amount awarded by the judgment of 18 May 2016 to the applicant has not been paid to him, the Court grants the applicant’s claims in part and awards him EUR 20,008 in respect of pecuniary damage.
41. Furthermore, the Court has no doubt that the applicant suffered distress and frustration on account of the deprivation of his possessions. Making its assessment on an equitable basis, the Court awards to the applicant EUR 6,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
42. The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.
C. Default interest
43. 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
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 20,008 (twenty thousand and eight euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) 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;
4. Dismisses the remainder of the applicant claim for just satisfaction.
Done in English, and notified in writing on 24 September 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsAlena Poláčková
RegistrarPresident
Full & Egal Universal Law Academy