CASE OF PONYAYEVA AND OTHERS v. RUSSIA

FIRST SECTION

CASE OF PONYAYEVA AND OTHERS v. RUSSIA

(Application no. 63508/11)

JUDGMENT

STRASBOURG

17 November 2016

FINAL

24/04/2017

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

In the case of Ponyayeva and Others v. Russia,

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

András Sajó, President,
Mirjana Lazarova Trajkovska,
Khanlar Hajiyev,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Dmitry Dedov, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 13 October 2015, 6 September 2016 and 11 October 2016,

Delivers the following judgment, which was adopted on the last mentionned date:

PROCEDURE

1. The case originated in an application (no. 63508/11) 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 Russian nationals, Ms Nataliya Sergeyevna Ponyayeva, Ms Svetlana Aleksandrovna Oleneva and Ms Anastasiya Aleksandrovna Oleneva (“the applicants”), on 6 October 2011.

2. The applicants were represented by Ms O. Makarkina, Ms Ye. Nakhimova and Ms M. Samorodkina, lawyers 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 applicants alleged, in particular, that they had been deprived of their flats in contravention of Article 1 of Protocol No. 1 to the Convention and that their eviction amounted to a violation of Article 8 of the Convention.

4. On 7 January 2014 the President of the First Section decided to grant the application priority under Rule 41 of the Rules of the Court and to give the Government notice of the applicants’ complaints under Article 1 of Protocol No. 1 to the Convention and Article 8 of the Convention. The remainder of the application were declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants in this case are Natalya Sergeyevna Ponyayeva, who was born on 7 July 1978, and her two daughters, Svetlana Aleksandrovna Oleneva, born on 18 March 2006, and Anastasiya Aleksandrovna Oleneva, born on 11 July 2000. The applicants live in Moscow.

A. Transactions in respect of the flat later purchased by the first applicant

6. Prior to its privatisation, the flat at 83-3-4 Ulitsa Svobody, Moscow, had been owned by the City of Moscow. Ol. had resided there as a tenant under the social housing agreement with the City.

7. On 13 August 2003 Ol. was tried for having made a fake terror threat. He was relieved from criminal liability and committed to a psychiatric institution for treatment.

8. On 3 February 2004, when Ol. was still undergoing inpatient treatment, an unidentified person applied for a new passport on his behalf and asked notary B. to issue two powers of attorney authorising several persons to carry out transactions on Ol.’s behalf in respect of the flat.

9. On 9 March 2004 the Department of Housing of the City of Moscow (the “Housing Department”) transferred the title to the flat to Ol. under a privatisation scheme. The privatisation agreement on behalf of Ol. was signed by a person acting by virtue of the power of attorney of 3 February 2004 and subsequently registered by the Moscow City Department of the Federal Registration Service (the “Registration Service”).

10. On 1 April 2004 B. and K. bought the flat from Ol. On 13 April 2004 the Registration Service registered the transaction and issued the relevant deed confirming B. and K.’s title to the flat.

11. On 12 January 2005 the Tushinskiy District Court of Moscow granted a claim lodged by B. against Ol. In particular, the court found that the latter had forfeited the right to reside in the flat and annulled his residence registration.

12. On 10 March 2006 B. and K. sold the flat to the first applicant. The Registration Service registered the transaction and issued the relevant deed confirming the applicant’s title to the flat.

B. Annulment of the first applicant’s title to the flat and eviction proceedings

13. On 31 January 2006 the prosecutor’s office received a complaint from N., an acquaintance of Ol., in which she alleged that the latter had been fraudulently deprived of the flat. On 14 March 2006 the district department of the interior opened a criminal investigation into the matter. According to the Government, the investigation is pending to date.

14. On 14 May 2008 the inter-district prosecutor brought a civil claim on behalf of Ol. and the Housing Department behalf seeking invalidation of the privatisation and subsequent transactions in respect of the flat.

15. On 2 July 2010 the District Court granted the prosecutor’s claim. In particular, it established that Ol.’s signatures on the power of attorney authorising third parties to act on his behalf in respect of the flat and his signature on other related documents had been forged. The court conceded that the first applicant was a bona fide purchaser of the flat. However, it ruled that the case fell under one of the two exceptions to the protection of a bona fide purchaser’s title, which required that precedence be given to the previous owner, in this case the City of Moscow. In this connection, the court reasoned that Ol.’s rights could be adequately protected only by means of restoring the City of Moscow’s ownership in respect of the flat. The first applicant’s title to the flat was annulled and the ownership was transferred to the City of Moscow. The court further recognised Ol.’s right to reside in the flat and ordered the applicants’ eviction. The applicants appealed.

16. On 6 April 2011 the Moscow City Court upheld the judgment of 2 July 2010, in substance, on appeal.

17. According to the Government, the title to the flat was not transferred to the City of Moscow and the applicants continued to reside in the flat.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Federal Law on State registration of titles to, and transactions in respect of, real property

18. Pursuant to the Federal Law On State registration of titles to, and transactions in respect of, real property, adopted on 21 July 1997 (as amended), the State confirms the acquisition, transfer or termination of the title to real property by means of state registration (Article 2). Once the state registration authorities receive the application for state registration of the title to real property, they are under obligation to conduct an expert review as regards the lawfulness of the transactions underlying the acquisition, transfer or termination of the title. They are further required to establish that there are no conflicting interests in respect of such property and verify whether the application should be accepted (Article 13 § 1). When applying for state registration, the parties to the transaction underlying the acquisition, transfer or termination of the title to real property should present a valid ID. If the application is lodged by the parties’ representative(s), he or she should submit a duly notarised authority form (power of attorney) (Article 16 §§ 1 and 2).

B. Civil Code of the Russian Federation

19. The relevant provisions of the Civil Code of the Russian Federation provide as follows:

Article 167. General provisions on the consequences of declaring
a transaction invalid

“1. The invalidation of a transaction shall have no legal consequences except for those connected with the invalidation, and the transaction shall be considered invalid from the date of the transaction.

2. If a transaction has been declared invalid, each of the parties shall return to the other the consideration it has received under the transaction, and if the return is impossible in kind (including where the transaction concerns the use of property, work performed or services rendered), its cost shall be reimbursed in the form of money - unless other consequences of the invalidity of the transactions have been stipulated by law.

3. If it follows from the content of the disputed transaction that it may not be terminated until a future date, the court, while declaring the transaction invalid, shall fix a future date for its termination.”

Article 302. Reclaiming property from a bona fide purchaser

“1. 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 this fact] (the bona fide purchaser), the owner shall have the right to reclaim this 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 in another way against their will.

2. If the property has been acquired gratuitously from a person who had no right to convey it, the owner shall have the right to reclaim the property in all cases.

3. Money and bearer securities shall not be reclaimed from a bona fide purchaser.”

C. Ruling of the Constitutional Court of the Russian Federation

20. By its ruling of 21 April 2003, 6-P, the Constitutional Court of the Russian Federation interpreted Article 167 of the Code as not allowing the original owner to reclaim his property from a bona fide purchaser unless there is a special legislative provision to this effect. Instead, a claim vindicating prior rights (виндикационный иск) could be lodged under Article 302 of the Code if the conditions indicated in paragraphs 1 and 2 are met, in particular if the property has left the owner’s possession without his or her intention to divest himself of it, or if the property has been acquired gratuitously.

D.  Ruling of the Plenary of the Supreme Court and the Plenary of the High Commercial Court of the Russian Federation

21. Further interpretation of Article 302 of the Civil Code was provided by the Plenary of the Supreme Court of the Russian Federation and the Plenary of the High Commercial Court of the Russian Federation. Their joint ruling of 29 April 2010, no. 10/22 “On certain questions arising in judicial practice in respect of resolution of disputes connected with the protection of property rights and other real rights” stated as follows:

“39. Article 302 § 1 of the Civil Code of the Russian Federation provides that the owner may reclaim his property ... regardless of the respondent party’s claim that he or she is a bona fide purchaser, if he proves that the property has left his possession ... against his will.

The fact that the transaction ... has been declared invalid does not by itself signify that the property left the [owner’s] possession against his or her will. It is incumbent on the court to establish whether the owner expressed his or her will to convey [the property] to another person.”

22. In its ruling no. 188‑O‑O of 27 January 2011, the Constitutional Court relied on the interpretation of Article 302 provided by the Plenaries when verifying the said Article’s compliance with the Constitution.

E. Overview of the case-law concerning vindication claims lodged by State and municipal bodies against bona fide owners of housing

23. On 1 October 2014 the Presidium of the Supreme Court of the Russian Federation approved the Overview of the case-law concerning vindication claims lodged by State and municipal bodies against bona fide owners of housing. It stated, in particular, as follows:

“...

Where a property transaction has been declared invalid, this shall not be construed as meaning that the Russian Federation, a constituency of the Russian Federation or a municipality lost ownership of the property against its will.

For example, a District Court dismissed the municipality’s claims against M., as regards the vindication of the flat and transfer of the ownership rights, for the following reasons.

It was established that the flat had been assigned to L. under the social housing agreement. L. had submitted a false certificate alleging that [he was eligible for priority assignment of social housing]. Later on, the title to the flat was transferred to L. under the privatisation agreement. Subsequently, L. sold the flat to M.

Regard being had to the fact that the municipality was a party to both the social housing agreement and the privatisation agreement, and had an opportunity to verify the validity of the documents submitted by L. but failed to do so with due diligence, the court concluded correctly that the municipality had transferred the disputed flat to L. wilfully and, pursuant to Article 302 § 1 of the Civil Code of the Russian Federation, could not reclaim the flat from the bona fide purchaser M., who had bought the flat from L.

...

If the respondent party bought the real property from a person who had no right to sell it, and the plaintiff and the respondent are not parties to the same transaction in respect of the real property, Articles 301 and 302 of the Civil Code of the Russian Federation apply, regardless of the type of civil claim lodged by the plaintiff (vindication of the housing, claim that the transaction in respect of the housing should be declared null and void, or both).

For example, a District Court considered a civil action lodged by the prosecutor on behalf of a municipality against M., S. and N., claiming that the social housing agreement and the [subsequent] privatisation, gift and sale [of the flat] should be recognised as null and void, and the flat vindicated.

The court established that the disputed flat had been owned by the municipality, and had been classified as special housing which could be assigned only to persons on the housing list under the gratuitous use agreement. However, [the management agency] entered into a social housing agreement with M. who later became the flat’s owner under the privatisation scheme.

M. gave the flat, under the gift agreement, to S. who sold it to N.

According to [the Ruling of the Plenary of the Supreme Court and the Plenary of the High Commercial Court of the Russian Federation], in the event the plaintiff brings an action, seeking the invalidation of the property transaction, against, inter alia, the person who bought the property from the party who had no right to sell, Articles 301 and 302 of the Civil Code of the Russian Federation apply.

The court took into consideration that the plaintiff was seeking vindication of the flat and applied Articles 301 and 302 of the Civil Code of the Russian Federation when considering the dispute. Having established that the disputed flat had been transferred by its owner to the [management agency]; that the latter disposed of the flat of its own will. and that N. purchased the flat for a consideration and in good faith from a person who did not have a legal right to sell it, the court dismissed the claims that the transactions for the gift and sale of the flat ... should be declared null and void and ... the flat returned to the municipality.

At the same time ... the court accepted that the prosecutor’s request that the social housing and privatisation agreements be declared null and void ... should be granted, given that the said agreements had been executed in contravention of the applicable legislation.

The court further noted that the municipality had a legal interest in having the said transactions declared null and void ..., because it had a right to claim damages from the person who had interfered with its possession.”

F. Consideration of the case of Gladysheva (see Gladysheva v. Russia, no. 7097/10, 6 December 2011) by the national courts

24.  On an unspecified date the City of Moscow brought an action against Ms Gladysheva and the previous owners of the flat, V. and Ye., seeking the repossession of the flat that Ms Gladysheva had bought and her eviction. The matter was considered twice by the national courts at two levels of jurisdiction. The relevant facts are described in detail in the case of Gladysheva (see Gladysheva v. Russia, no. 7097/10, §§ 18-34, 6 December 2011).

25. On 13 May 2010 the Moscow City Court upheld the judgment of 9 July 2009 on appeal.

26. On 30 August 2011 the Supreme Court of the Russian Federation quashed the judgments of 9 July 2009 and 13 May 2010, holding as follows:

“The court cannot agree with the findings set out in [the judgments of 9 July 2009 and 13 May 2010] given that they are not based on a correct interpretation of the applicable rules of substantive law.

...

Pursuant to Article 302 § 1 of the Civil Code of the Russian Federation, if [a person] acquires, for a consideration, property from another person who did not have a right to convey it, which fact was unknown and could not have been known to the purchaser (a bona fide purchaser), the owner may reclaim the property from the purchaser in the event that the property was lost by the owner ... or was stolen from [him or her] or if he or she lost [his or her] possession in any other way against [his or her] will.

Regard being had to the above, it is incumbent on the court to establish that the property left the owner’s possession ... in the above circumstances; that the purchaser acquired the property for a consideration; and that he or she did not know and could not have known that he or she had purchased the property from a person who did not have a right to convey it. The purchaser cannot be recognised as acting in good faith if, at the time of purchase of the property, he or she knew of the existence of the third parties’ claims in respect of the property and those claims were later recognised as valid.

...

... the [lower] courts failed to refer to the evidence confirming that the flat had left the [City’s] possession against its will.

...

... the [District] [C]ourt returned the flat to the City of Moscow and indicated that the said property had left the [City’s] possession against the latter’s will. However, the court failed to take into account that the transfer of the title to the [flat] had been carried out by way of a transfer of the flat from the City’s ownership to Ye.’s ownership. Accordingly, [the City of Moscow] had been a party to the contested transaction ... and had expressed its will to convey the flat to Ye.”

27. On 10 February 2012 the Cheremushkinskiy District Court of Moscow considered the matter de novo. It dismissed the Housing Department’s claims against Ms Gladysheva, holding as follows:

“... in order to consider the property vindication claims, it is incumbent on [the courts], in particular, to establish whether the forfeiture of the property by the owner was effected notwithstanding his or her will.

... the [Housing Department] argues that Ye. did not marry M. and, therefore, could not have moved into the flat as a member of his family and ... did not have a right to have it privatised.

However, the court considers that this fact alone is not relevant for the consideration of the dispute because it does not confirm that [the Housing Department] had no intention of transferring the property to [Ye.].

The court has established ... that Ye. moved into the flat, obtained her registered address there, signed a social housing agreement, a privatisation agreement, had her title to the flat registered upon authorisation of the state authorities which were under an obligation to verify the relevant documents submitted by the parties in order to have their transactions approved.

... [T]he Housing Department did not deny that the authorised officials had verified the documents submitted by Ye. for the purposes of signing the social housing and privatisation agreements and that they had not doubted their authenticity.

Accordingly, the transfer of the title to the flat from the City of Moscow to Ye. was carried out by way of privatisation. [The Housing Department] was a party to that transaction ... and expressed its consent to the transfer of [the flat] to Ye.

...

Whereas it has been established that the Housing Department willingly transferred the title to the flat [to Ye.], the court cannot accept the plaintiff’s reliance on Articles 301 and 203 of the Civil Code of the Russian Federation ... . Given that Ye. has legitimately acquired the title to the flat, there are no grounds to nullify [the earlier transactions] in respect of the flat.

...

On 30 March 2005 the Housing Department willingly signed a social housing agreement with Ye. in respect of the flat.

When granting the flat to Ye. under the social housing agreement, the Housing Department had a duty to verify why the previous tenant M. had left the flat and why Ye. had moved into the flat ... However, the Housing Department failed to verify the said circumstances and, by allowing Ye. to move into the flat, has discontinued the City’s title to the flat.

The [District] Court does not accept the Housing Department’s argument that it was not incumbent on the Housing Department to verify [the above circumstances]. Pursuant to [the applicable legislation] the Housing Department had a duty to check whether the [the housing transactions] were in compliance with the law, which it failed to do.

...

The [District] Court [further] considers that the Housing Department has failed to comply with the [three years’] statute of limitations for its claims. Nor has it provided any justification for that failure. Accordingly the [District] Court accepts Ms Gladysheva’s argument that the statute of limitations should be applied.

Regard being had to the above, the [District] Court considers that the Housing Department’s claims ... should be dismissed.”

28. On 5 April 2012 the Cheremushkinskiy District Court of Moscow dismissed, without consideration, the statement of appeal lodged by the Housing Department against the judgment of 10 February 2012 for the latter’s failure to comply with the applicable time-limit.

29. On 29 June 2012 the Moscow City Court upheld the decision of 5 April 2012 on appeal.

G. Application of Article 302 of the Civil Code by the Supreme Court of the Russian Federation in a civil dispute between the Housing Department and a bona fide purchaser

30. On 3 November 2015 the Supreme Court of the Russian Federation, acting as a cassation court, considered the case of V. whose flat was repossessed by the City of Moscow despite V.’s being its bona fide purchaser. The Supreme Court quashed the earlier judgments in favour of the City of Moscow and indicated as follows:

“The errors in application of substantive and procedural laws committed by the courts which considered the present case and adopted, as a result [of such application] unlawful judicial acts, can be summarised as follows.

When considering the dispute and granting the [Housing Department’s] claims seeking [annulment of V.’s title to the flat, the flat’s transfer to the City of Moscow, eviction of V.’s family], the court took into account that K. [to whom the flat had been originally assigned under the social tenancy agreement] had died on 7 May 2008. Accordingly all transactions in respect of the flat under the dispute that were carried out after his death and in the absence of his will, should be considered null and void. Given that K. had not expressed his will to have the flat where he had been residing as tenant privatised, the court concluded that the flat under the dispute should be considered the municipal property and having been left the City of Moscow’s possession against the latter’s will. The Housing Department had not been aware and could not have been aware that the privatisation of the flat in K.’s favour had been carried out on the basis of forged documents. Regard being to the above, it had been necessary to protect the City of Moscow’s rights by means of application of Article 302 of the Civil Code of the Russian Federation.

The appeal court upheld the findings of the court at the first level of jurisdiction.

The Supreme Court of the Russian Federation considers that the courts’ findings are based on the incorrect application of substantive law to the circumstances of the case. The courts failed to take into consideration certain facts which resulted in the adoption of unlawful judicial acts.

Pursuant to Article 302 § 1 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 this fact] (the bona fide purchaser), the owner shall have the right to reclaim this 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 in another way against their will.

As it was explained in section 39 of Joint Ruling No. 10/22 of the Plenary of the Supreme Court and the Plenary of the High Commercial Court of the Russian Federation ... , pursuant to Article 302 § 1 of the Civil Code of the Russian Federation, the owner may reclaim his property ... regardless of the respondent party’s claim that he or she is a bona fide purchaser, if he proves that the property has left his possession ... against his will.

The fact that the transaction ... has been declared invalid does not by itself signify that the property left the [owner’s] possession against his or her will. It is incumbent on the court to establish whether the owner expressed his or her will to convey [the property] to another person.

The courts, however, failed to take into consideration the above interpretation provided by the Plenary of the Supreme Court of the Russian Federation.

When considering the dispute, the court established that the privatisation of the flat in K.’s favour had been carried out on the basis of forged documents, which fact, in the court’s opinion, had rendered the relevant transaction null and void. The court failed to determine whether the City of Moscow, being the flat’s owner, had expressed the will to convey the flat to [K.] and concluded that the City of Moscow did not have an intent to do so.

Such finding is erroneous. Being a party both to a social housing agreement and a privatisation agreement, the Housing Department was under an obligation and had an opportunity to verify the authenticity of the documents submitted in support of the said agreements but failed to do so.

It follows from the materials in the case-file that on 14 November 2008, that is prior to the date of the social housing agreement (1 and 27 October 2009) ... and prior to the date of the privatisation agreement 3 November 2009), K.’s name was put on the missing persons’ list and on 2 September 2008 ... the flat under the dispute was put on the special information control.

The above information was accessible to the officers of the Housing Department. Nevetherless, on 3 November 2009 the flat was privatised ... , i.e., on the same day that the Housing Department received an application for privatisation of the said flat. This fact shows that the Housing Department did not carry a due and mandatory check in respect of the documents submitted for [the privatisation of the flat].

Accordingly, the failure on the part of the Housing Department to exercise due care when carrying out the transactions in respect of the flat under dispute ... , shows that the owner of the flat expressed the will to divest of its property.

Regard being had to the above and in accordance with Article 302 § 1 of the Civil Code of the Russian Federation, the flat could not have been reclaimed from V. who had purchased it in good faith on 5 August 2011.”

THE LAW

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

31. The applicants complained that they had been deprived of their 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

1. Compatibility ratione materiae

32. The Government pointed out that the sole owner of the flat was the first applicant and the second and third applicants cannot be considered the victims of the alleged violation of their rights under Article 1 of Protocol No. 1 to the Convention.

33. The applicants did not comment.

34. In this connection the Court reiterates that the concept of “possessions” in the first paragraph of Article 1 of Protocol No. 1 to the Convention has an autonomous meaning which is not limited to the ownership of material goods and is independent from the formal classification in domestic law. In the same way as material goods, 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, among the recent authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 171, ECHR 2012).

35. Turning to the circumstances of the present case, the Court observes that, while the first applicant was the lawful owner and enjoyed a property right in respect of the flat which constituted her “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention, the second and the third applicants were not the owners of the flat and resided there only as the first applicant’s daughters.

36. The Court does not exclude a possibility that a person who has a right to use the housing without being its owner might have a proprietary right or interest, recognised under the domestic law, in respect of the housing, and such interest will constitute his or her “possession” attracting the protection of Article 1 of Protocol No. 1. However, as a general rule, the right to live in a particular property not owned by an applicant does not as such constitute a “possession” within the meaning of the said provision (see Durini v. Italy, no. 19217/91, Commission decision of 12 January 1994, Decisions and Reports (DR) 76B, pp. 76-79; H.F. v. Slovakia (dec.), no. 54797/00, 9 December 2003; Bunjevac v. Slovenia (dec.), no. 48775/09, 19 January 2006; Gaćeša v. Croatia (dec.), no. 43389/02, 1 April 2008; and Babenko v. Ukraine (dec.), no. 68726/10, 4 January 2012).

37. The Court further notes that in their observations the applicants did not refer to any national law or factual information that would allow the Court to conclude that their occupancy right of the second and third applicants constituted a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see, by contrast, Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, § 78, 3 May 2012). Accordingly, the Court is not satisfied that those applicants can claim that the said Article is applicable in their case. It follows that the complaint lodged by the second and third applicants is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

2. Exhaustion of domestic remedies

(a) The parties’ submissions

38. The Government considered that the first applicant had not made recourse to existing effective domestic remedies. It had been open to her to bring a civil action for damages against the persons who had sold the flat to her. The Government cited a case in which a Ms P., a bona fide purchaser of the flat, had successfully sued the seller of the flat after the said transaction had been invalidated by the courts.

39. The first applicant did not comment.

(b) The Court’s assessment

40. The Court notes that it has already examined the issue of exhaustion of effective domestic remedies in a case where the applicant had been deprived of her housing as a result of the revocation of her title to a flat by a final and enforceable judgment (see Gladysheva, cited above, §§ 60-62 and 89). The Court concluded that, under Russian law, there was no further recourse against that judgment that might potentially lead to reinstatement of the applicant’s title to the flat. It further noted that a possibility to bring an action for damages, in those circumstances, could not deprive the applicant of victim status for the purposes of complaints under Article 1 of Protocol No. 1. Nor could it be regarded as necessary for compliance with the rule of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. Lastly, the Court considered that any damages that the first applicant might have been able to recover against the seller of the flat might only be taken into account for the purposes of assessing the proportionality of the interference and, calculation of pecuniary damage if a violation of Article 1 of Protocol No. 1 to the Convention was found by the Court, and if just satisfaction was awarded under Article 41 of the Convention (ibid., § 62).

41. The Court considers that these findings hold true in the context of the present case. The Government have not put forward any fact or argument capable of persuading it to reach a different conclusion. Accordingly, it was not incumbent on the first applicant to pursue the civil remedies referred to by the Government. The Government’s objection in this regard is, therefore, dismissed.

3. Conclusion

42. The Court notes that the complaint introduced by the first applicant 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. The parties’ submissions

(a) The first applicant

43. The first applicant considered that the national court’s decision to revoke her title to the flat and transfer it to the City of Moscow had not been in accordance with the applicable laws. She argued that, contrary to Article 302 § 1 of the Russian Civil Code, the courts had failed to establish whether the flat had left the City of Moscow’s possession against its will, which was a condition precedent for the latter to reclaim a flat as lost property. Once the courts had established that the privatisation of the flat had been fraudulent, they had concluded automatically that the City of Moscow had had no intention of divesting itself of it. She further argued that the circumstances of her case bore close resemblance to those considered by the Court in the case of Gladysheva (cited above). As in that case, by repossessing the flat she had purchased, the authorities had placed an excessive burden on her. She had acquired the property in good faith and they had failed to ensure a fair balance between their decision to reclaim the property and the first applicant’s interests. The first applicant further noted that the State bore responsibility for the fraudulent transactions in respect of the flat. It had been incumbent on the authorities to verify the compliance of those transactions with the applicable laws. However, they had failed to do so in a timely and diligent manner and had managed to recover the property from the bona fide owner only by flagrantly disregarding the latter’s interests.

(b) The Government

44. The Government acknowledged that the repossession of the first applicant’s flat by the City of Moscow and the ensuing eviction had constituted an interference with her property rights. However, they considered that such an interference had been “in accordance with the law” and that it had pursued the legitimate aim of protecting the interests of Ol., a vulnerable person suffering from a psychiatric disorder. The Government conceded that the first applicant had sustained a certain financial loss as a result of the repossession of the flat by the City of Moscow. However, her losses had been caused by the fraudulent acts of other individuals and she could recover the damage by bringing a civil action for damages against the person(s) who had sold the flat to her. In the Government’s opinion, the loss of the real property in such circumstances did not amount to a disproportionate burden for the first applicant, given that she and her daughters had not been evicted and continued to reside in the flat. Should she consider herself in need of social housing, it remained open to her to lodge the relevant application with the authorities.

2. The Court’s assessment

(a) General principles

45. The general principles concerning protection of property are well established in the Court’s case-law and have been summarised as follows (see Gladysheva, cited above):

“64. The Court refers to its established case-law on the structure of Article 1 of Protocol No. 1 and the manner in which the three rules contained in that provision are to be applied (see, among many other authorities, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 52, ECHR 2007‑III; Bruncrona v. Finland, no. 41673/98, §§ 65-69, 16 November 2004; and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004‑V).

65. It reiterates that in order to be compatible with the general rule of Article 1 of Protocol No. 1, an interference must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see, for example, Beyeler v. Italy [GC], no. 33202/96, §§ 108-14, ECHR 2000-I).

66. An interference with the peaceful enjoyment of possessions must therefore strike a “fair balance” between the demands of the public or general interest of the community and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions or controlling their use. Compensation terms under the relevant legislation are material to the assessment of whether the contested measure respects the requisite fair balance, and, notably, whether it imposes a disproportionate burden on the applicant (see Former King of Greece and Others v. Greece [GC], no. 25701/94, § 89, ECHR 2000-XII).

67. In this connection, the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference that cannot be justified under Article 1 of Protocol No. 1. This provision does not, however, guarantee a right to full compensation in all circumstances, since legitimate “public interest” objectives may call for reimbursement of less than the full market value (see, among other authorities, Papachelas v. Greece [GC], no. 31423/96, § 48, ECHR 1999-II).

68. Although Article 1 of Protocol No. 1 contains no explicit procedural requirements, the proceedings at issue must also afford the individual a reasonable opportunity to put his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied, a comprehensive view must be taken of the applicable procedures (see, among other authorities, Jokela v. Finland, no. 28856/95, § 45, ECHR 2002-IV).”

(b) Application of these principles in the present case

(i) Whether there was a “possession”

46. The Court takes note of its earlier findings as regards the admissibility of the complaint (see paragraphs 32-37 above) and accepts that the flat constituted the first applicant’s possessions for the purposes of Article 1 of Protocol No. 1 to the Convention.

47. The Court further notes that the complexity of the factual and legal position in the present case prevents it from falling into any of the categories covered by the second sentence of the first paragraph or by the second paragraph of Article 1 of Protocol No. 1 to the Convention (see Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000‑I). The Court therefore considers that it should examine the situation complained of in the light of the general rule set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (compare Gladysheva, cited above, § 71).

(ii) Whether there was an interference

48. The Court observes that it is common ground between the parties that the revocation of the first applicant’s ownership of the flat amounted to an interference with her rights set out in Article 1 of Protocol No. 1 to the Convention. The Court sees no reason to hold otherwise.

49. The Court’s task in the present case is, accordingly, to determine whether the interference satisfied the requirement of lawfulness and was not arbitrary, and whether it struck a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Beyeler, cited above, § 107).

(iii) Whether the interference was lawful

50. In respect of the lawfulness of the revocation of the first applicant’s title to the flat and regard being had to her argument that the national courts had failed to establish the condition precedent that would allow the City of Moscow to repossess the flat, the Court cannot rule out that there may have been a certain deficiency in the application of the domestic law in the present case. However, it is not the Court’s role to interpret and define the precise meaning of national law, a task that clearly falls within the realm of the national courts, which have to determine the lawfulness under national law of an impugned interference, the Court’s role in that respect being limited (see Konstantin Stefanov v. Bulgaria, no. 35399/05, § 61, 27 October 2015). The Court considers, accordingly, that, in the circumstances of the present case, it may dispense with resolving this issue because, irrespective of the lawfulness of the interference under domestic law, it fell short of the requirement of proportionality, as set out below (see Gladysheva, cited above, §§ 72-75).

(iv) Whether there was a legitimate aim

51. For the same reason, the Court will assume that, as argued by the Government, the revocation of the first applicant’s title to the flat pursued the public interest in that it catered for the needs of Ol., a vulnerable person who was originally given the right to reside in the flat under the social tenancy agreement. In any event, in spheres such as housing the Court will generally respect the legislature’s judgment as to what is in the general interest, unless that judgment is manifestly without reasonable foundation (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 49, ECHR 1999‑V).

(v) As to the fair balance

52. In exercising its power of review, the Court must assess whether the impugned measure satisfied the requirement of proportionality. It must determine whether, despite the margin of appreciation given to the State, the requisite balance was maintained in a manner consonant with the applicant’s right to property (see Rosiński v Poland, no. 17373/02, § 78, 17 July 2007).

53. The Court observes that the first applicant’s title was revoked because of fraud in the transaction in which the flat had been privatised by a third party. The Court notes in this connection that it was within the State’s exclusive competence to define the conditions and procedures under which it alienated its assets to persons it considered eligible and to oversee compliance with those conditions. It was also within the State’s exclusive competence to legalise the transfer of the title to the flat through a registration procedure specifically aimed at providing extra security to the title holder. With so many regulatory authorities having granted clearance to the title to the flat, it was not for the first applicant, or any other third-party buyer of the flat, to assume the risk of ownership being revoked on account of defects which should have been eliminated in procedures specially designed to do so. The authorities’ oversight could therefore not justify subsequent retribution against the first applicant (see Gladysheva, cited above, § 79).

54. The Court is mindful of the fact that in the present case, the judicial authorities were under an obligation to take into account that a conflicting private interest was at stake. In particular, it was incumbent on them to protect the interests of Ol., who had been undergoing compulsory inpatient treatment in a psychiatric institution since 2003, and also had had a right to reside in the flat as a tenant under a social housing agreement before having been fraudulently deprived of it. As established earlier, given that all the regulatory agencies sanctioned the transactions that resulted in Ol. forfeiting his tenancy rights, it would be unfair to correct that omission at the first applicant’s expense.

55. Lastly, the Court notes that the first applicant was stripped of her title to the flat without compensation, and that she was not offered replacement housing by the State. As regards the Government’s argument that the applicant’s loss could be mitigated if she sued the sellers of the flat for damages, the Court accepts that this opportunity is open to her. However, in the particular circumstances of the case it is clear that the payment of damages could not be pushed back as far as the fraudulent party, because the criminal investigation, which has been pending since 2006, have not established the identity of the culprit. Given that the events in question took place in 2004, the chances of that culprit being found are virtually non-existent at this stage. The Government’s argument can be only construed as suggestion that the applicant pass her excessive individual burden on to other bona fide buyers of the flat, and it is hard for the Court to see how that would improve the balance between the public interest and the need to protect individuals’ rights.

56. Having regard to all the foregoing factors, the Court considers the state authorities have failed to ensure a proper expert review as regards the lawfulness of the real-property transactions and to verify the existence of conflicting interests in respect of the real property. However, it was not for the first applicant to assume the risk of the title to the flat being revoked on account of the said omissions on the part of the authorities in procedures especially designed to prevent fraud in real-property transactions. The Court reiterates that mistakes or errors on the part of State authorities should serve to benefit the persons affected. In other words, 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). The Court therefore concludes that the forfeiture of the title to the flat by the first applicant and its transfer to the City of Moscow, in the circumstances of the case, placed a disproportionate and excessive burden on her (compare, Gladysheva, cited, above, §§ 77-83).

57. 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

58. The applicants complained that their eviction, or the order for their eviction, had amounted to a violation of their right to respect for home. They relied on Article 8 of the Convention, which reads as follows:

“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.”

59. The Government admitted that the national courts’ decisions to order the applicants’ eviction had constituted an inference with their rights set out in Article 8 of the Convention. They considered that such interference had been lawful, pursued the legitimate aim of protecting the rights of persons eligible to social housing and that it had been proportionate to that aim.

60. The applicants maintained their complaints.

61. Having regard to the findings relating to Article 1 of Protocol No. 1 to the Convention (see paragraphs 52-57 above), the Court considers that it is not necessary to examine separately the admissibility or the merits the complaint under Article 8 of the Convention (see, mutatis mutandis, Güler and Uğur v. Turkey, nos. 31706/10 and 33088/10, §§ 58-59, 2 December 2014).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

62. 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

63. The first applicant claimed 7,115,000 Russian roubles (RUB) in respect of pecuniary damage and 30,000 euros (EUR) in respect of non‑pecuniary damage.

64. The Government contested these sums as excessive, unsubstantiated and unreasonable.

65. The Court takes into account that in the present case it has found a violation of the first 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.

66. 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 Patrikliği (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 and to the fact that the first applicant did not receive any compensation for loss of title to the flat in the domestic proceedings, the Court considers that the most appropriate form of redress would be to restore the first applicant’s title to the flat. Thus, the first 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, Gladysheva, cited above, § 106). In the alternative, if the Government no longer own the flat, or if it has been otherwise alienated, they should ensure that the first applicant receives an equivalent flat.

67. In addition, the Court has no doubt that the first applicant has suffered distress and frustration on account of the deprivation of her possessions. Making its assessment on an equitable basis, the Court awards to her EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

68. The first applicant also claimed costs and expenses incurred before the domestic courts and before the Court. In particular, she claimed that her legal fees had amounted to RUB 70,000 in domestic proceedings and EUR 6,000 in the proceedings before the Court. She had also had paid RUB 5,000 for the expert appraisal of the flat.

69. The Government asked the Court to reject the applicant’s claims for costs and expenses incurred in connection with the domestic proceedings, as they considered them irrelevant to the consideration of their complaints before the Court. They pointed out that some of the expenses claimed had not been confirmed by appropriate receipts.

70. 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. Regard being had to the documents in the Court’s possession and the above criteria, the Court considers it reasonable to award the first applicant EUR 2,100.

C. Default interest

71. 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

1. Declares, unanimously, the complaint lodged under Article 1 of Protocol No. 1 to the Convention by Ms Ponyayeva admissible and the complaint lodged under the same provision by the remaining applicants inadmissible;

2. Holds, by six votes to one, that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3. Holds, unanimously, that there is no need to examine the admissibility or merits of the complaint under Article 8 of the Convention;

4. Holds, by six votes to one,

(a) that the respondent State shall ensure, by appropriate means, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, full restitution of the first applicant’s title to the flat. In the alternative, if the flat is no longer the State’s property, or if it has been otherwise alienated, the respondent State shall ensure that the first applicant receives an equivalent flat;

(b) that the respondent State is to pay the first 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, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage;

(ii) EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable to the first 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, unanimously, the remainder of the first applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposAndrás Sajó
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sajó is annexed to this judgment.

A.S.
A.C.

DISSENTING OPINION OF JUDGE SAJÓ

In the present case and in related ones (see Alentseva v. Russia, no. 31788/06, and Pchelintseva and others v. Russia, no. 47724/07), the Court extended the responsibility of State organs and hence of the State in the context of Article 1 Protocol 1. I have difficulties in following this approach and therefore, with all due respect, I dissent.

In the present case O.I., a social housing tenant, lost his title to the apartment during his in-patient treatment. An unidentified person acting on a false power of attorney managed to sell the illegally privatised apartment to third parties, who sold it to applicant. This purchase was voided by a judgment because the first transfer had been forged, that is to say because O.I. never became the owner. The property was ordered returned to the City of Moscow. The applicant continues to reside in the apartment.

In an earlier case (see Gladysheva v. Russia, no. 7097/10, 6 December 2011), the Court found a violation in a comparable case. In that case it was argued that because the forgery had occurred in relation to various acts of official registration the public authorities should have been able to discover it. Therefore, the privatisation and other acts of property transfer resulting in the deprivation of the property of the original title-holder, namely the City of Moscow, are to be attributed to the State, which cannot claim back its possessions.[1]

This approach raises a number of issues:

1. The Court’s approach disregards the caveat emptor principle, and imposes a duty on the vendor, arguing that the State as vendor has public law duties. This, however, cannot change the caveat emptor rule that applies in Russia. The Court takes a different view: “it was not for the first applicant [the purchaser] to assume the risk of the title to the flat being revoked on account of the said omissions on the part of the authorities in procedures especially designed to prevent fraud in real-property transactions.” (see paragraph 56). In other words, for the Court, caveat vendor applies.

It follows that, contrary to case-law, the Court assumes the power to determine what amounts to possession, disregarding what constitutes a property claim in domestic law. That law states that a buyer assumes certain risks, and the fact that the scope of property rights is therefore limited is disregarded: the Court seems to be saying that a purchase implies lesser risks, irrespective of domestic law. Incidentally, in so doing it disregards over two thousand years of Roman-law tradition.

After this series of judgments the Court will have difficulties in rejecting the claims of unhappy purchasers from all over Europe who have happened to obtain property in fraud, claiming that the authorities failed to notice the fraud or perhaps any misrepresentation. The approach that applies to the purchase of flats that once upon a time were part of the Moscow social housing fund will apply to all acts of immovable sale.

2. Article 302 of the Russian Civil Code recognises certain exceptions from caveat emptor, designed to protect bona fide purchasers. While I have serious doubts as to the good faith of some of the (below the market price) purchasers, I have to accept the legal qualification of the domestic courts which considered the applicant as a bona fide purchaser.

The judgment refers to the interpretation of Article 302 of the Civil Code given by the Russian Supreme Court: “It is incumbent on the court to establish whether the owner expressed his or her will to convey [the property] to another person.”

In the present case, the domestic court did consider this matter and found that the owner did not intend to convey property. It found that the conditions of applicability of Article 302 of the Civil Code, as determined by the Supreme Court, were absent. I assume that Article 302 of the Civil Code and its interpretation is relevant in this case, as otherwise it would not have been mentioned under Relevant Domestic Law. However, this matter is not even mentioned in the judgment.

3. Instead, the Court has created a kind of absolute liability for the State authorities involved in civil and property registration. The Court did not allude to any European consensus in this matter. I find it astonishing to assume that the State has an apparently objective duty to ensure that property transactions and civil status registrations are correct as a positive obligation of the State under Article 1 Protocol 1. Of course, “[g]enuine, effective exercise of the right protected by that provision does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions.” (see Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004‑XII).

However, these positive measures are mostly general measures (lack of seismographic measures or other general measures can be a problem). This positive obligation cannot be equated with the State’s positive obligations to protect life or its obligations under Article 3 as regards inhuman and degrading treatment by private parties, namely to implement an effective legal system of protection. The positive duty to have an effective criminal investigation system (which does not trigger an obligation of result, only means) cannot be transposed to the protection of possession, with heightened duties, including ensuring watertight registration that forestalls any kind of mistake.

Moreover, in this mode of good-faith purchaser protection the Court undertakes to determine the responsibility of the domestic authorities for the mistaken registrations (see, Gladysheva v. Russia, no. 7097/10, §§ 78-79, 6 December 2011)[2]. It is not for this Court to act as a court of first instance and determine facts, or better, speculate about facts and possibilities, especially where a domestic legal remedy is available that could appropriately determine the responsibility of State agents even assuming that the State has an international law responsibility for such acts, under A1.P1. (I do not assume such things at all).

Paragraph 18 of the judgment refers to the Federal Law on State registration, which requires an expert review as to the lawfulness of transactions.[3] The Government were not invited to comment on the meaning of that obligation. The Law requires an “expert review”. There is nothing in the file to indicate that such review did or did not take place. We do not even know if this requirement can be satisfied by the expertise of the land registration office (as is the case in many national land registry systems) or whether independent expertise is required.

To argue that the authorities are to be blamed for accepting fraudulent documents disregards the fact that a domestic court (the Tushinsky Court) had the opportunity to review these documents and did not find them illegal.

It is true that the Russian case law requires public authorities to verify the authenticity of the documents submitted in support of agreements. However, the Russian Supreme Court does not consider this to be a matter of strict liability. On the contrary, in the Supreme Court case quoted in paragraph 30 of the judgment the Supreme Court took into consideration the fact that the information concerning the fraud was available in accessible public records (in the list of missing persons). Only a domestic court (or the domestic legislature) is in the position to determine which public data collections can be relevant for such purposes.

In the present case there is no finding by a domestic authority pointing to a lack of care, nor does the Court refer to such an incident. In fact, there is no indication that there existed any public record indicating any shortcoming or duplicity that should have been consulted by the authorities. In fact, the investigation started four days after the applicant bought the apartment.

It is not clear to me why the duty to inquire does not fall on the applicant in line with the caveat emptor principle, although this remains a matter of domestic law.[4]

4. If the Court takes the view that the State is liable for the acts of State authorities in matters of registration, the applicant has a remedy under Russian law: it can sue those authorities. Article 53 of the Constitution of the Russian Federation reads: “Everyone shall have the right to State compensation for damage caused by unlawful actions (inaction) of bodies of State authority and their officials.” As the Government argued, applicant did in fact sue a number of State agencies, but those claims were dismissed because the parties failed to attend hearings and did not request that the hearing be held in their absence. Therefore, the application should have been rejected for non-exhaustion of remedies. This Government argument was simply not considered; the Court only deals with remedies against the final judgment and recourse against third (fraudulent) parties.

5. The judgment, in its analysis of proportionality, disregards the interests of O.I., who has a mental disorder and is therefore a particularly vulnerable person in the circumstances of the case. The Court admits this special interest, but turns it to the applicant’s advantage. The lack of protection of the interests of the particularly vulnerable person increases the State’s responsibility, and therefore the applicant’s interest must prevail against the public interest (to protect social housing) and the interest of the original tenant. But the alleged lack of State responsibility vis-à-vis the applicant does not diminish the public interest! When it comes to balancing the various interests, and contrary to the judgment (see paragraph 56), the burden on the applicant should not be considered as being imposed solely for the sake of the City of Moscow as the original owner. The City held that property for the use of a person who was in need of social housing. O.I.’s private interest is not mentioned in the balancing exercise. The Court is content to state that it would be “unfair”‘ to correct O.I.’s loss at the first applicant’s expense. But even a conclusion of fairness needs reasons; fairness in law is not a matter of pure sentiment. If fairness is intuition, as it should not be in law, than the undeniable right of a particularly vulnerable person to social housing is perhaps more important on a human scale than the property title, which is not recognised in domestic law, of a person who acquired it from crooks.

I find that this case raises serious issues of European property law and of the margin of appreciation that is applicable to a domestic system when it comes to the protection of the social housing fund. It is surprising that the stunning ease with which the Court applies a broad margin of appreciation in matters of economic and social policy did not find its place in the present case.

[1] In the present case, this meant that O.I., who had a residence title and a title to receive the apartment under a privatisation scheme, also lost his possessions and home (see Article 8 right to home).

[2] Just one example of this speculation: “It appears from the file that the forgery could be, and eventually was, established by making simple enquiries at the Kaluga civil registry, whose stamp was used for the forged marriage certificate, and with the notary in Moscow who had supposedly attested the application by M.”

[3] According to the Written Observations of the lawyer in the case of Dergacheva v. Russia, no. 3127/13, Article 9 of the Federal Statute on Registration No. 122 requires a legal examination. A duty of legal examination hardly means a duty to invite an expert to certify the authenticity of signatures or ID, unless otherwise provided by legislation or case-law.

[4] Once again, the alleged duty to inquire does not apply in the present case as there is no available public register, nor is there any data that could have been entered into such register before the purchase.

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