CASE OF MKHCHYAN v. RUSSIA

THIRD SECTION

CASE OF MKHCHYAN v. RUSSIA

(Application no. 54700/12)

JUDGMENT

STRASBOURG

7 February 2017

FINAL

07/05/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Mkhchyan v. Russia,

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

Luis López Guerra, President,
Helena Jäderblom,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 17 January 2017,

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

PROCEDURE

1. The case originated in an application (no. 54700/12) 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, Mr Sergey Tatevosovich Mkhchyan (“the applicant”), on 6 August 2012.

2. The applicant was represented by Mr E. Markov, a lawyer practising in Strasbourg. 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, a violation of Article 1 of Protocol No. 1 to the Convention.

4. On 1 December 2014 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1933 and lives in Moscow.

6. On 15 March 1994 the Russian Ministry of Railways (“the MPS”) approved the construction of garages alongside the Oktyabrskaya railway in Moscow. The decision read as follows:

“Taking into consideration that the garages on [a 1.3 km] stretch of the Oktyabrskaya railway must carry out the function of a noise shield, the Moscow testing section of the Oktyabrskaya railway of the Ministry of Railways approves the construction of garages 5.5 metres away from the outer rail, on the following conditions:

1. the garages shall be built alongside the railway using reinforced concrete, in a line;

2. the construction of the garages shall be in strict compliance with technical safety rules for construction works in a railway zone;

3. 10% of the garages shall be allocated to railway employees as compensation for the use of railway territory.”

7. On 14 April 1994 the Main Directorate for Architecture and Planning of the Architecture and Urban Development Committee of the Government of Moscow (Главное архитектурно-планировочное управление комитета по архитектуре и градостроительству г. Москвы) (hereinafter “the Moscow architecture and planning directorate”) issued a town-planning assignment (градостроительное заключение) for the design and construction of garages alongside the Oktyabrskaya railway. The document mentioned, in particular, that the land on which the garages were to be built belonged to the City of Moscow (Горземфонд) and that the garages were intended to serve as a noise shield along the railway line.

8. On 31 October 1994 the local administration (Управление муниципального округа “Марфино” Северо-Восточного административного округа Правительства Москвы) confirmed that they had no objections to assigning the land in question for the construction of garages by garage-building cooperative “Kashenkin Lug” (garage owners’ partnership, “the GSK”), in accordance with the town-planning assignment.

9. On 3 December 1994 the applicant joined the GSK and paid his share for a garage (6,500 United States dollars (USD) at the material time).

10. The garages were constructed accordingly, and on 30 December 1996 the local administration’s inspection board certified that one-storeyed capital (immovable) garages built by the GSK were ready for use. On 31 December 1996 the prefect of the local administration gave his approval.

11. Garage no. 169 was allotted to the applicant. The local administration issued him with a certificate attesting to his possession of the said garage as from 3 December 1994 (свидетельство о владении гаражным боксом). The applicant, however, never had his property rights to the garage registered in the real estate register.

12. On 13 January 2000 Moscow Land Committee concluded a lease agreement with the GSK in respect of the land occupied by the garages. The lease provided that the land plot was allocated for further use of 324 garage boxes and 86 open parking spaces situated on it. That lease agreement remained in force until 31 August 2004.

13. On 3 March 2003 the Federal State unitary enterprise “Oktyabrskaya Railway of the MPS” (“the Oktyabrskaya Railway of the MPS”) concluded a lease agreement with the GSK in respect of the land occupied by the garages. Under the agreement the lease was valid until 28 February 2004. The parties subsequently extended the validity of the agreement on three occasions: until 28 July, 30 September and 31 December 2004 respectively. Thereafter they tacitly renewed the agreement for an indefinite duration. The GSK continued to pay the rent due under the lease until 31 July 2007.

14. Under clause 1.3 of the lease agreement, the land plot was allocated for placement of garage boxes. Clause 2.2.5 of the agreement proscribed the construction of permanent structures on the land and provided that temporary structures could be built only upon written approval by the Oktyabrskaya Railway of the MPS. Clause 2.2.10 stipulated that at the end of the lease, all temporary structures were to be removed. Clause 5.2 provided that the lease could be terminated unilaterally in the event of breach of the terms of the lease agreement by the GSK or failure to pay the lease for two months, and in the event that the land in question was required for the purposes of the railway, with one month’s prior notice. Clause 6.2 stipulated that the GSK had no right to modify federal ownership of railway rights of way.

15. In the meantime, on 18 September 2003 the Russian Government decided to establish an open joint stock company called “Russian Railways” (“the RZD”), to succeed the MPS.

16. On 5 March 2008 the Federal Agency for State Property Management responsible for Moscow signed a lease agreement with the RZD in respect of the plot of land on which the garages were situated.

17. On 14 July 2010 the RZD notified the GSK of the unilateral termination of the lease agreement, with reference to a need that had arisen to use the land in question for the purposes of the railway. The RZD invited the GSK to vacate the plot by 20 August 2010.

18. The GSK refused to do so and provided the RZD with a list of its members, from which it transpired that the applicant was the owner of garage no. 169.

19. On 25 April 2011 the RZD notified the applicant of the necessity to vacate the garage. The applicant refused to comply.

20. On 27 September 2011 the RZD brought court proceedings against the applicant seeking the removal of garage no. 169 from the plot in question.

21. On 21 November 2011 the Ostankinskiy District Court of Moscow (“the District Court”) granted the above claim and ordered the applicant to remove the garage within ten days of the judgment becoming final. The District Court further authorised the RZD to remove the garage on their own if the applicant failed to comply with the court’s decision. The District Court held as follows:

“It follows from the case-file material that on 3 March 2003 the Federal State unitary enterprise “Oktyabrskaya Railway of the MPS” and the GSK signed a lease agreement in respect of a plot of land situated within a railway right of way [полоса отвода железной дороги] for the purposes of reimbursement of its maintenance costs, valid until 28 February 2004, which was subsequently extended on the basis of additional agreements. Pursuant to clause 1.3 of the above lease agreement the land was allocated for the construction of garage boxes. The construction of permanent structures on the land was prohibited (clause 2.2.5). At present the lease agreement has been terminated, which is confirmed by notifications of 14 July and 26 August 2010 on the unilateral termination of the lease agreement with reference to the necessity to use the plot in question for the purposes of the railway.

The case file contains a certificate provided by the plaintiff to the effect that the GSK had [paid rent under the lease] until 31 July 2007, and that since then no payments had been made for the use of the plot of land.

The procedure for the use of land plots classified as federal property is determined by the Government of the Russian Federation in accordance with section 9 of Federal Law no. 17-FZ of 10 January 2003 on the Railway System in the Russian Federation.

Government Resolution no. 264 of 29 April 2006 stipulates that the use of land classified as federal property and provided to the RZD must be based on a land lease agreement between the Federal Agency for State Property Management (its territorial body) and the RZD.

Pursuant to Federal Law no. 17-FZ of 10 January 2003 on the Railway System in the Russian Federation, railway land is land used or intended for maintaining the activities of rail transport organisations and/or for buildings, constructions, structures and other rail transport facilities, including plots of land situated within railway rights of way and safety areas.

Plots of land adjacent to railway tracks or intended for the placement of such tracks are classified as railway rights of way, as is land occupied by or intended for the placement of railway terminals, water drainage and protective facilities along railway tracks, communication lines, electric power supply facilities, production and other buildings, constructions, structures, equipment and other rail transport facilities.

The plot of land with cadastral number 77:02:21017:032 is intended for the operation and development of the railways, [it] is situated within a railway right of way ...

Before the lease agreement in respect of the railway right of way [between the RZD and the Russian Federation] was signed, the plot of land with cadastral number 77:02:21017:032 was classified as rail transport land in accordance with the Transport Land Act approved by decision no. 24 of the Council of Ministers of the Union of Soviet Socialist Republics of 8 January 1981; decision no. 3020-1 of the Supreme Soviet of the Russian Federation of 27 December 1991 on the division of State property in the Russian Federation; and Federal Law no. 153-FZ of 25 March 1995 on the Federal Railway System.

MPS decree no. 26 “Ts” of 15 May 1999 approved the procedure for the use of federal railway land within railway rights of way.

In accordance with this procedure, the size of a right of way is determined in accordance with standards and rules for the design of railway rights of way, approved by the MPS, as well as with design and budget documentation and general schemes for the development and reconstruction of federal rail transport facilities and stations.

The revision of the borders and size of rights of way, the withdrawal of temporarily unused plots of land and their reclassification from one category to another is carried out by the competent authorities with the agreement of the railways, pursuant to the legislation of the Russian Federation.

...

The court has established that on part of the plot of land with cadastral number 77:02:21017:032 in the right of way of the Oktyabrskaya railway ... there are garages, including garage no. 169. ...

No information has been provided from the Consolidated State Register of Real Estate Titles and Transactions in respect of the garage. No documents have been provided by the defendant or the GSK confirming their right to use the land underneath the garage either.

The RZD is the user of the plot of land in question. By virtue of Article 305 of the Civil Code of the Russian Federation it is entitled to seek the elimination of violations of its rights, namely the removal of the [applicant’s] garage from the plot.

...

To support his assertion about the lawfulness of his possession of the disputed garage, the defendant submitted to the court a certificate issued by the GSK confirming that he had paid in full his share for the garage. Also, at the request of the defendant the court joined to the case file the following evidence: a copy of the act certifying that the garages were ready for use; notification from the federal service for State registration, inventory and cartography responsible for Moscow about the absence of any information in the Consolidated State Register of Real Estate Titles and Transactions about the disputed plot; the approval by the prefect of [the local administration] of the inspection certificate issued in respect of the garages; correspondence from the Moscow section of the Oktyabrskaya railway of 25 November 1993 on the approval of the construction of the garages within the railway right of way; the town-planning assignment issued by the Moscow architecture and planning directorate on 13 April 1994; the decision of the federal service for State registration, inventory and cartography of 27 April 2011 refusing to issue a cadastral certificate for the disputed plot.

However, these documents do not prove that the applicant acquired property rights in respect of the garage, nor do they prove the lawfulness of the use of the land underneath it. The defendant’s garage [is] an unauthorised construction because it was built on a plot of land that was not allocated for that purpose in accordance with the procedure provided for by law and in the absence of permission issued by a competent authority, whereas a railway right of way can be used exclusively for the construction of rail transport facilities. The [documents provided by the defendant] do not prove that the garage was not an unauthorised construction, because the construction was carried out on land within a railway right of way and therefore was not intended for the building of garages. The approval by the prefect of the local administration of the inspection certificate does not confirm the existence of permission by the federal authorities to use the plot of land in question for building garages, regard being had [to the fact] that the owner of the plot is the Russian Federation and not the City of Moscow.

The management of land owned by the State, including giving permission for construction of immovable property, can be done only by the competent federal authority.

A garage for parking a car by an individual is not a rail transport facility, therefore a plot of land within a railway right of way cannot be considered to be intended for the construction of such a garage (garages).

Besides, the defendant has failed to submit evidence to the effect that the competent federal authority issued an administrative act on the transfer of a part of the land situated within a railway right of way to the defendant. It therefore follows that the plot of land was not provided to the defendant by the owner, and therefore at the present time the defendant has no legal grounds to use federal property.

...

The applicant would have acquired title to garage no. 169 had it not been an unauthorised construction.

...

Having assessed all the evidence in the case, taking into consideration [the fact] that the defendant did not acquire property rights in respect of the plot of land classified as federal property and located within a railway right of way, on which the disputed garage is situated, that the plot was provided for temporary use, and that it is being used at the present time without any contractual basis, the court comes to the conclusion that the rights of the RZD have been violated in that the plaintiff is prevented from using the land in accordance with its intended purpose. The court therefore considers that there are lawful grounds for granting the plaintiff’s claim for removal of garage no. 169 from the plot of land with cadastral number 77:02:21017:032 ...”

22. The applicant appealed. He claimed, in particular, that he was entitled to compensation.

23. On 10 February 2012 the Moscow City Court upheld the above judgment on appeal. The City Court held that the law did not provide for the possibility of claiming compensation for the demolition of an unauthorised construction.

24. On 3 April 2012 the Ostankinskiy District bailiffs’ service in Moscow instituted enforcement proceedings. The applicant was notified on 12 April 2012.

25. As the applicant refused to comply voluntarily with the judgment of 21 November 2011, as upheld on appeal on 10 February 2012, the RZD proceeded to demolish his garage.

26. On 13 June 2012 the Ostankinskiy District bailiffs’ service was informed accordingly.

27. On 19 June 2012 the enforcement proceedings were terminated.

28. According to the Government, in August 2013 the construction of the fourth main track of the Oktyabrskaya railway between Moscow and Khimki was completed on the land previously occupied by the garages of the GSK and was opened for circulation of the suburban electric train. In December 2014 noise-reduction barriers were installed along the Oktyabrskaya railway line in the area of the Marfino residential district.

II. RELEVANT DOMESTIC LAW

A. Rail transport land

29. For the relevant domestic law, see paragraph 21 above.

B. Review of judgments delivered by the courts of first instance

30. For the relevant provisions of domestic law as from 1 January 2012, see Abramyan and Others v. Russia ((dec.), nos. 38951/13 and 59611/13, §§ 29-45, 12 May 2015).

C. Grounds for acquiring property rights

31. Under Article 218 § 4 of the Civil Code a member of a housing construction cooperative, garage cooperative or any other consumer cooperative who has paid in full his or her share for a flat, garage or any other premises provided to him or her by the cooperative, acquires property rights on the said property.

D. Unauthorised construction

32. Under Article 222 §§ 1 and 2 of the Civil Code, as in force at the material time, an unauthorised construction was a house, building, other construction or other immovable property built on a plot of land not allocated for that purpose under the law, or without the requisite permission, or with substantial violations of town-planning and building norms and rules. Anyone who had built an unauthorised construction could not acquire ownership rights in respect of it and thus had no right to sell, donate, lease or enter into any other agreements in respect of the construction. The unauthorised construction had to be demolished by the person who had built it, or at his or her expense, with the exception of cases stipulated by paragraph 3 of the present Article.

33. Under Article 222 § 3 of the Civil Code, as in force at the material time, the right of ownership of an unauthorised construction may be recognised by the court in respect of a person who has inherited life-long possession or the right of permanent use of the plot of land on which the unauthorised construction has been built. In such a case, the person in respect of whom the court recognised his or her ownership of an unauthorised construction shall reimburse the person who has built it all the relevant expenses in an amount to be determined by the court. The right to own an unauthorised construction cannot be recognised if keeping the unauthorised construction infringes the rights and lawful interests of other persons or creates a threat to the life and health of others.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

34. The applicant complained that he had been deprived of his property in circumstances which were incompatible with the requirements 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

1. Exhaustion of domestic remedies

35. The Government submitted that the applicant had failed to exhaust domestic remedies by not having had recourse to the cassation and supervisory-review procedures provided for by domestic law as from 1 January 2012.

36. The applicant argued that the remedy suggested by the Government could not be considered effective.

37. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided for by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, applicants should normally use remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V).

38. In the context of Russia, the Court has consistently held that the final judicial remedy to be exhausted prior to lodging an application with the Court was an appeal to a regional court, and that applicants were not required to submit their cases for re-examination by higher courts by way of a supervisory review procedure, which constituted an extraordinary remedy (see Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999; Denisov v. Russia (dec.), no. 33408/03, 6 May 2004; and Martynets v. Russia (dec.), no. 29612/09, 5 November 2009). It was not until very recently that, following the legislative amendments reforming the Russian civil procedure with effect from 1 January 2012, the Court held that the new cassation procedure was no longer affected by the previously existing uncertainty, and that any individual who intended to lodge an application in respect of a violation of his or her Convention rights should first use the remedies offered by the new cassation procedure (see Abramyan and Others v. Russia (dec.), nos. 38951/13 and 59611/13, §§ 76-96, 12 May 2015). By contrast, the Court affirmed its consistent approach to the supervisory-review procedure, which it does not consider an effective remedy to be exhausted (ibid., § 102).

39. It is observed, however, that the issue of whether domestic remedies have been exhausted is normally determined by reference to the date on which the application was lodged with the Court (see Shalya v. Russia, no. 27335/13, § 16, 13 November 2014, and Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)). In cases where the effectiveness of a given remedy was recognised in the Court’s case-law after the introduction of an application, the Court deemed it disproportionate to require the applicants to turn to that remedy for redress a long time after they had lodged their applications with the Court, especially after the time‑limit for using that remedy had expired (see Riđić and Others v. Serbia, nos. 53736/08, 53737/08, 14271/11, 17124/11, 24452/11 and 36515/11, § 72, 1 July 2014, and Pikić v. Croatia, no. 16552/02, §§ 29-33, 18 January 2005; and contrast with Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII, in which the applicant could still avail himself of a new remedy).

40. In the present case, the applicant lodged his application with the Court on 6 August 2012, that is, before the Court recognised the cassation appeal procedure as an effective remedy. Moreover, the Government have not alleged that at the time of the events under consideration, there was relevant domestic case-law allowing the applicant to realise that the new remedy met the requirements of Article 35 § 1 of the Convention and to anticipate the new exhaustion requirement, rather than following the approach applied by the Court until very recently (see paragraph 38 above). In such circumstances, the Court considers that the applicant was not required to pursue that procedure prior to lodging his application with it. Moreover, it notes that the applicant can no longer avail himself of the remedy in question, as the time-limit for using it has expired.

41. Accordingly, the Court rejects the Government’s objection as to non‑exhaustion of domestic remedies (see Novruk and Others v. Russia, nos. 31039/11, 48511/11, 76810/12, 14618/13 and 13817/14, §§ 70-76, 15 March 2016, and Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 64-69, 29 March 2016).

2. Compatibility ratione materiae

42. The Government further submitted that the garage in question had not constituted the applicant’s “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention and therefore his complaint was incompatible ratione materiae with the provisions of the Convention.

43. The applicant disagreed with the Government.

44. The Court considers that the Government’s objection is closely linked to the merits of the applicant’s complaint. It will therefore deal with the objection in its examination of the merits below (see Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 67, 21 April 2016).

3. Conclusion as to admissibility

45. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The Government

46. The Government submitted that the plot of land on which the applicant’s garage had been built belonged to the category of land intended for operation and development of the railways and was federal property. The domestic court established that the RZD had been the user (lessee) of the land in question and had therefore been entitled to bring a claim before the courts for the protection of its rights. The garage in question was an unauthorised construction, as it had been built on land that was not allotted for that purpose, in breach of the relevant legislation and in the absence of a construction permit issued by a competent body. In particular, the land in question could only be used for construction related to the railway system, which did not apply to the applicant’s garage. Furthermore, permission for the construction of immovable property could only be given by the competent federal authorities.

47. The applicant did not qualify as a person in respect of whom the court could recognise his ownership of the garage under Article 222 § 3 of the Civil Code (see paragraph 32 above). As such, the applicant’s arguments regarding the length of time he had owned the garage were irrelevant. Having paid his share in full, the applicant would have become the owner of garage no. 169 had it not been constructed without authorisation.

48. The applicant failed to prove that he had acquired property rights in respect of the garage: his ownership of the garage was never entered in the Consolidated State Register of Real Estate Titles and Transactions (Единый государственный реестр прав на недвижимое имущество и сделок с ним), nor was it acknowledged by the domestic courts. No proof was provided by the applicant to the effect that the use of the land on which the garage stood had been lawful, namely that the plot of land at issue had been assigned for the construction of immovable property.

49. In the light of the foregoing, the Government argued that the applicant had not had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention.

50. The Government further submitted that the interference with the applicant’s right to the peaceful enjoyment of his possessions, in the form of control of use, had been lawful since the plot of land in question was federal property. The applicant’s garage situated on it was found, for the reasons outlined above, to be an unauthorised construction, and the legal consequences outlined in the domestic law for unauthorised constructions had been applied by the domestic courts. The documents provided by the applicant in support of his application (see paragraphs 7, 8 and 10 above) were incapable of disproving that garage no. 169 had been constructed without authorisation. The fact that the local administration had certified the garage as ready for use did not confirm the existence of permission by the competent federal authorities to use the plot of land in question for the construction of garages. Such permission had been required given that the owner of the plot was the Russian Federation and not the City of Moscow.

51. The Government further submitted that not only had the interference been lawful, but it had also pursued a legitimate aim in the public interest ‒ the need to use the land on which the applicant’s garage stood for the purposes of the railway – and had not imposed an excessive individual burden on the applicant. In the latter respect, the Government submitted that the legal nature of the plot of land in question had been clearly defined in the lease agreement, which explicitly prohibited the construction of permanent structures on the land in question (clause 2.2.5) and stated that on termination of the lease all temporary structures were to be removed (clause 2.2.10). Therefore, taking into account the fact that the applicant’s garage was located within a railway right of way and the explicit prohibition on constructing permanent structures on such land, there were no grounds to doubt that the applicant knew that the land belonged to the State. He must also have known that he had no right to acquire title to immovable property built on that land in disregard of the explicit prohibition on doing so. If the applicant was unaware of that, it was as a result of his own carelessness. Moreover, since 31 July 2007 the GSK had been breaching its obligation under the lease agreement to pay maintenance costs for the land occupied by the garages. The applicant should therefore have foreseen all the legal consequences and could not be considered as having suffered an excessive individual burden.

(b) The applicant

52. The applicant submitted that his garage had been lawfully built and certified as ready to use by the local administration in 1996, in accordance with the procedure which existed at the material time. Having paid his share for the garage, the applicant had become its owner. Since then he had been using his garage and paying all the necessary maintenance fees.

53. The applicant argued that the ban on the construction of permanent structures on the plot of land at issue contained in the 2003 lease agreement could not be applied to him, since his garage had already been constructed on that land in 1996.

54. The applicant further argued that the garage constituted his “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. His title to the garage and the existence of the required permits for its construction were confirmed by several documents: (i) the approval of the construction of garages alongside the Oktyabrskaya railway in Moscow issued in March 1994 by the Moscow testing section of the Ministry of Railways’ Oktyabrskaya railway; (ii) the town-planning assignment issued by the Moscow architecture and planning directorate in April 1994; (iii) the approval of the assignment of the land in question for the construction of garages, in accordance with the town-planning assignment by the garage-building cooperative, “Kashenkin Lug” issued by the local administration in October 1994; (iv) the inspection board’s certification that the garage was ready for use issued in December 1996; (v) the certificate confirming that the applicant had paid in full his share for the garage in December 1994; and (v) the certificate of possession of garage no. 169 issued by the local administration, mentioning 3 December 1994 as the date on which he had acquired the garage. As to the absence of registration of the applicant’s title to the garage in the State register, the applicant submitted that the requirement of mandatory State registration appeared later, after the State Registration of Real Estate Titles and Transactions Act (Federal Law no. 122-FZ of 21 July 1997) had entered into force.

55. In so far as the Government argued that the plot of land on which the garage had been built had been federal property and therefore any construction on it required authorisation by the competent federal authorities, the applicant submitted that it had not been his task but that of the State and local authorities to establish the right owner. Even assuming that the domestic authorities which had approved the building of the garages on the land at issue had breached the applicable procedures, it should not have been for the applicant to bear the responsibility. He had had no reason to suspect any non-conformity with the legal requirements, since the acquisition of title to a garage through the buying of a share in a garage‑building cooperative had been common practice at the material time. The applicant therefore claimed that he had been a bone fide purchaser. He concluded that even assuming that his title to the garage might be put into question, there was no doubt that he had at least a substantive proprietary interest in continuing to use his garage, which qualified as a “possession” for the purpose of Article 1 of Protocol No. 1 to the Convention.

56. The applicant further disagreed with the Government that the interference with his right to the peaceful enjoyment of his possessions had been in the form of control of use. He submitted that the interference had rather been in the form of deprivation of possessions.

57. As regards the existence of a public interest behind the interference, the applicant submitted that the Government had failed to provide evidence of the construction of the fourth main track of the Oktyabrskaya railway between Moscow and Khimki and noise-reduction barriers on the land previously occupied by the garages of the GSK. They had therefore failed to show that the applicant’s garage could not have been left untouched during those works. In the absence of such proof, the applicant considered that there had been no public interest at stake.

58. The applicant further claimed that the interference had not been in accordance with the law. The garage had not been an unauthorised construction and therefore the legal circumstances outlined in the domestic law for such a construction could not have been applied in his case. The garage had been constructed with the consent of the Ministry of Railways (a federal authority) and with all the necessary permits issued by the local authorities; the construction had complied with existing building standards and had not violated anyone’s rights; whether the applicant had legal title to the garage was dependent not on State registration but on the fact that he had paid his share in the GSK in accordance with the law applicable at the material time. In any event, the interference had not been foreseeable on the basis of the law in force at the time he had acquired the garage.

59. Lastly, the applicant claimed that the interference with his right under Article 1 of Protocol No. 1 to the Convention had imposed on him an excessive individual burden. Apart from the inconvenience caused by the interference to his daily life, he had not been compensated for the price he had paid for the garage. The domestic courts had dismissed his arguments and disregarded the documents related to the construction and acquisition of the garage. They had also dismissed his claims that he was a bona fide owner of the garage, without providing comprehensible reasons.

2. The Court’s assessment

(a) The existence of a “possession”

(i) General principles

60. The Court reiterates that the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 to the Convention has an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999‑II; Öneryıldız v. Turkey [GC], no. 48939/99, § 124, ECHR 2004‑XII; and Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010).

61. The concept of “possessions” is not limited to “existing possessions” but may also cover assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and legitimate expectation of obtaining effective enjoyment of a property right. A legitimate expectation of being able to continue having peaceful enjoyment of a possession must have a “sufficient basis in national law” (see Depalle, cited above, § 63).

62. The fact that the domestic laws of a State do not recognise a particular interest as a “right” or even a “property right” does not necessarily prevent the interest in question, in some circumstances, from being regarded as a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see Depalle, cited above, § 68).

(ii) Application of the general principles in the present case

63. The Court observes that in the present case the applicant joined the GSK in December 1994 and paid his share for a garage in the amount of USD 6,500. Once the local administration had certified that the garages were ready for use in December 1996, the applicant was allotted garage no. 169, in respect of which the local administration issued him with a certificate attesting to his possession of the said garage. In November 2011 the District Court found that the applicant had not acquired property rights in respect of the garage because it had been constructed on land intended exclusively for the purposes of the railway system and without a permit issued by a competent federal authority. However, at the very least, the applicant became a member of the GSK co-operative and had been issued with a certificate that he “possessed” the garage in question. In the Court’s view, the applicant in the present case enjoyed at least a long-standing right of use amounting to “possessions” for the purposes of Article 1 of Protocol No. 1 to the Convention (for a case in which a “right of use” amounted to a possession, see Chiragov and Others v. Armenia [GC], no. 13216/05, §§ 144-49, ECHR 2015; for cases in which long-term occupation amounted to a possession, see Hamer v. Belgium, no. 21861/03, § 76, ECHR 2007‑V (extracts), and Depalle, cited above, § 68; see also Öneryıldız, cited above, §§ 124-29).

64. Accordingly, the Court rejects the Government’s objection as to the applicability of Article 1 of Protocol No. 1 to the Convention.

(b) Compliance with Article 1 of Protocol No. 1 to the Convention

(i) General principles

65. The Court reiterates that, according to its case-law, Article 1 of Protocol No. 1 to the Convention, which guarantees in substance the right of property, comprises three distinct rules: the first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Depalle, cited above, § 77, with further references).

66. In order to be compatible with the general rule of Article 1 of Protocol No. 1 to the Convention, an interference must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be achieved (see, among other authorities, Beyeler v. Italy [GC], no. 33202/96, §§ 108-14, ECHR 2000-I).

67. An interference with the peaceful enjoyment of possessions must therefore strike a fair balance between the general interests of the community and the individual’s rights. This means that a measure must be both appropriate for achieving its aim and not disproportionate to that aim. The requisite balance will be upset if the person concerned has had to bear “an individual and excessive burden” (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98). However, the High Contracting Parties enjoy a margin of appreciation in this respect, in particular in choosing the means of enforcement and in ascertaining whether the consequences of enforcement would be justified. When it comes to the implementation of their spatial planning and property development policies, this margin is wide (see Ivanova and Cherkezov, cited above, § 73, with further references).

68. The taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 to the Convention only in exceptional circumstances (see Nastou v. Greece (no. 2), no. 16163/02, § 33, 15 July 2005; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 111, ECHR 2005‑VI; and The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301‑A).

(ii) Application of the general principles in the present case

69. The Court observes that on 21 November 2011 the District Court found the applicant’s garage to be an unauthorised construction and obliged him to remove it from the plot of land on which it had been built within ten days of the judgment’s becoming final. The District Court further authorised the RZD to proceed with the removal of the garage if the applicant failed to comply with the judgment voluntarily. Consequently, the applicant’s garage was demolished. This constituted an interference with his “possession”.

70. The Court notes that the parties have diverging views on whether the interference in question amounted to a deprivation of a possession within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention, or control of the use of property in accordance with the general interest within the meaning of the second paragraph of that Article. The Court considers that, being meant to ensure compliance with the general rules concerning the prohibition on any construction not related to the railway system on railway rights of way, the interference amounted to “control [of] the use of property” (see Saliba v. Malta, no. 4251/02, § 35, 8 November 2005; Hamer, cited above, § 77; and Ivanova and Cherkezov, cited above, § 69). It therefore falls to be examined under the second paragraph of Article 1 of Protocol No. 1.

71. As regards the lawfulness of the interference, the Court, considering that its power to review compliance with domestic law is limited (see Stolyarova v. Russia, no. 15711/13, § 45, 29 January 2015, and Allan Jacobsson v. Sweden (no. 1), 25 October 1989, § 57, Series A no. 163), sees no reason to doubt that the interference complained of was in accordance with Russian law since it had a clear basis in Article 222 of the Civil Code. Under that provision, anyone who has erected an unauthorised construction may not acquire ownership rights in respect of it and is obliged to demolish it (see paragraph 32 above). Nothing shows that this provision has been interpreted or applied by the domestic courts in an arbitrary manner. The Court therefore concludes that the measure complained of satisfied the requirement of lawfulness within the meaning of Article 1 of Protocol No. 1 to the Convention.

72. The Court observes that the demolition order was aimed at re‑establishing the rule of law by removing the unauthorised construction from the land situated within a railway right of way, in view of a necessity that had arisen to use the land for railway purposes (see paragraphs 17 and 21 above). The Court notes in this connection that, according to the Government, in August 2013 the construction of the fourth main track of the Oktyabrskaya railway between Moscow and Khimki was completed on the land previously occupied by the garages of the GSK and was opened for circulation of the suburban electric train; and that in December 2014 noise‑reduction barriers were installed along the Oktyabrskaya railway line in the area of the Marfino residential district (see paragraph 28 above). In the absence of any evidence to the contrary, the Court finds that the measure complained of pursued a legitimate aim which corresponded to the general interests of the community, as envisaged in Article 1 of Protocol No. 1 to the Convention.

73. It remains to be determined whether the benefit for proper town and country planning and development and ensuring that no structures that were not related to the railway system were located within railway rights of way can be considered proportionate to the inconvenience caused to the applicant by the removal of his garage.

74. The Court observes that in March 2003 the GSK concluded a lease agreement with the Oktyabrskaya Railway of the MPS in respect of the land occupied by the garages. The terms of the agreement contained an explicit prohibition on construction of any permanent structures on the land plot in question and stipulated that at the end of the lease all temporary structures were to be removed. They further provided for the possibility of terminating the lease unilaterally in the event that the land in question was required for the purposes of the railway, with one month’s prior notice, and impossibility for the GSK to modify federal ownership of railway rights of way (see paragraphs 13-14 above).

75. The Court considers that, as the applicant was a member of the GSK partnership, he must have been aware of the above lease agreement, and it was not unreasonable for the domestic authorities to assume that he was bound by its terms, which were very clear about the land plot in question being federal property, the temporary nature of the structures allowed on it and the consequences of termination of the lease agreement.

76. In such circumstances, and being also mindful of the fact that no payments were made in accordance with the above lease agreement by the GSK from July 2007, and that the applicant did not have property title to the garage as he never had it registered in the real estate register, the Court considers that the applicant cannot be said to have borne an individual and excessive burden as a result of the removal of his garage without compensation. The Court also observes that the sum that the applicant invested in the GSK allowed him to enjoy the use of the garage for the period of fifteen years. The Court considers therefore that in the particular circumstances of the present case the benefit for proper town and country planning and development and ensuring that no structures that were not related to the railway system were located within railway rights of way can be considered proportionate to the inconvenience caused to the applicant by the removal of his garage.

77. There has accordingly been no violation of Article 1 of Protocol No. 1 to the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s objection as to the applicability to the applicant’s complaint of Article 1 of Protocol No. 1 to the Convention and rejects it;

2. Declares the complaint under Article 1 of Protocol No. 1 to the Convention admissible;

3. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention.

Done in English, and notified in writing on 7 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsLuis López Guerra
RegistrarPresident

 

Full & Egal Universal Law Academy