CASE OF SERGUNIN AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF SERGUNIN AND OTHERS v. RUSSIA

(Applications nos. 54322/14 and 2 others – see appended list)

JUDGMENT

STRASBOURG

9 October 2018

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

In the case of Sergunin and Others v. Russia,

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

Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 18 September 2018,

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

PROCEDURE

1. The case originated in three applications (nos. 54322/14, 60765/14 and 73407/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals, Mr Oleg Dmitriyevich Sergunin, Mr Dmitriy Gennadyevich Isupov and Mr Sergey Vasilyevich Prokudin (“the applicants”), on 24 July, 16 October and 15 November 2014 respectively.

2. Mr Sergunin was represented by Ms N. Mirsaitova, a lawyer practising in Kazan. Mr Isupov was granted leave to present his own case. Mr Prokudin was represented by Mr A. Nikulin, a lawyer practising in Kirov. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 7 September 2015 the applicants’ complaints under Article 1 of Protocol No. 1 to the Convention were communicated to the Government and the remainder of the applications nos. 60765/14 and 73407/14 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

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

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicants were owners of plots of land. The municipal authorities reclaimed the plots of land, and the applicants’ title to the real property in question was annulled. The details pertaining to each application are provided below.

A. Application no. 54322/14

6. The applicant in this case is Oleg Dmitriyevich Sergunin, who was born on 10 December 1967 and lives in Kazan.

7. On 5 September 2009 the local council transferred the title to a plot of land in Privolzhskiy district, Kazan, to G. The relevant documents confirming that the plot of land had been earlier assigned to G. had been prepared by Gib. The State land registry verified the legitimacy of the transaction and registered G.’s title to the plot of land.

8. On 10 December 2009 G. sold the plot of land to M. On 8 February 2010 M. sold the plot of land to N. On 16 March 2012 N. sold the plot of land to the applicant. Each time the transfer of the title to a new owner was verified and registered by the State authorities with the issuance of the relevant certificate.

9. On 13 March 2013 the Privolzhskiy District Court of Kazan found Gib. guilty of having committed fraud in respect of the transfer of the plot of land to G.

10. On 5 July 2013 a prosecutor acting on behalf of the local council brought an action seeking invalidation of the decision of the local council of 5 September 2009, invalidation of the applicant’s title to the plot of land and return of the plot of land to the municipality.

11. On 17 October 2013 the District Court granted the claims in full.

12. On 23 January 2014 the Supreme Court of the Republic of Tatarstan upheld the judgment of 17 October 2013 on appeal.

13. On 14 April 2014 the Supreme Court rejected an appeal on points of law by the applicant.

14. On 30 May 2014 the Supreme Court of the Russian Federation rejected a second appeal on points of law lodged by the applicant.

B. Application no. 607654/14

15. The applicant in this case is Dmitriy Gennadyevich Isupov who was born on 7 May 1978 and lives in Kirov.

16. On 3 December 2009 the applicant bought a plot of land and a share in another plot of land in Sloboda Solomintsy, Kirov, from S. and T. respectively. The State land registry verified the legitimacy of the transaction and registered the applicant’s title to the plots of land.

17. On an unspecified date the district prosecutor brought an action on behalf of the Kirov City Council with the aim of reclaiming the real property.

18. On 14 May 2014 the Novovyatskiy District Court of Kirov delivered two judgments, allowing the prosecutor’s claims in full. The court noted that the decisions allegedly issued by the local council assigning the plots of land to T. and S. had been forged and could not have served as a legal basis for the transactions in respect of the plots of land. The court recognised the town’s title to the plots of land and ordered their transfer to the town administration.

19. On 15 and 23 July 2014 the Kirov Regional Court upheld the judgments of 14 May 2014 on appeal.

20. On 22 August the Regional Court dismissed an appeal on points of law lodged by the applicant against the above judgments.

21. On 11 March 2015 the Supreme Court of the Russian Federation dismissed a second appeal on points law lodged by the applicant against the judgments of 14 May and 15 June 2015.

C. Application no. 73407/14

22. The applicant in this case is Sergey Vasilyevich Prokudin who was born on 19 October 1958 and lives in Kirov.

23. The applicant bought six plots of land in Sloboda Lyangasy, Kirov, from S., A., M., K., Kuz., and R. respectively. The State land registry verified the legitimacy of the transactions and registered the applicant’s title to the plots of land.

24. On an unspecified date the district prosecutor brought an action on behalf of the Kirov City Council with the aim of reclaiming the real property.

25. On 9 and 10 June 2014 the Novovyatskiy District Court of Kirov delivered six judgments, granting the prosecutor’s claims in full. The court noted that the decisions allegedly issued by the district administration assigning the plots of land to S., A., M., K., Kuz., and R. had been forged and could not have served as a legal basis for the transactions in respect of the plots of land. The court recognised the city’s title to the plots of land and ordered their transfer to the council.

26. On 21 and 28 August and 2 September 2014 the Kirov Regional Court upheld the judgments of 9 and 10 June 2014 on appeal.

27. On 19 January 2015 the Supreme Court of the Russian Federation dismissed an appeal on points of law lodged by the applicant against the above judgments.

THE LAW

I. JOINDER OF THE APPLICATIONS

28. In accordance with Rule 42 § 1 of the Rules of the Court, the Court decides to join the applications, given their similar factual and legal background.

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

29. The applicants complained that they had been deprived of their real property in contravention of Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

30. The Government submitted that the complaints should be rejected for the applicants’ failure to exhaust effective domestic remedies. In their opinion, it had been open to the applicants to bring an action for damages against the sellers of the property. Referring to the case of Abramyan and others (see Abramyan and others v. Russia (dec.), nos. 38951/13 and 59611/13, §§ 76-96, 12 May 2015), the Government also submitted that Mr Isupov and Mr Prokudin had not made use of all effective remedies available to them. In particular, they had not lodged appeals on points of law.

31. The applicants contested the Government’s arguments. Relying on the case of Gladysheva (see Gladysheva v. Russia, no. 7097/10, § 62, 6 December 2011), Mr Sergunin submitted that an action for damages against the seller could not be considered an effective remedy in his case.

32. As regards the Government’s argument that the applicants should have brought an action for damages against the sellers of the property, the Court reiterates that such an action cannot be regarded as necessary for compliance with the rule of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention in the circumstances where the owner of the property was deprived of a title to it by a final and enforceable judgment and there was no further recourse that might potentially lead to the reinstatement of the title (see, for example, Gladysheva, cited above, §§ 60‑62).

33. As regards the Government’s argument that two of the applicants had failed to make use of appeals on points of law, the Court reiterates that it has consistently rejected similar objections raised by the Russian Government in many cases in which the applicants lodged their applications before the Court delivered its decision in the case of Abramyan and Others (see Abramyan and others v. Russia (dec.), nos. 38951/13 and 59611/13, §§ 76-96, 12 May 2015) where it recognised the recently reformed two-tier appeal-on-points-of-law procedure as an effective remedy (see, for example, Novruk and Others v. Russia, nos. 31039/11 and 4 others, §§ 70-76, 15 March 2016; Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 64-69, 29 March 2016; and McIlwrath v. Russia, no. 60393/13, §§ 85-95, 18 July 2017).

34. The Court does not see any reason to reach a different conclusion in the present case. Mr Isupov and Mr Prokudin lodged their applications with the Court on 16 October and 15 November 2014 respectively, that is to say before the Court delivered the decision in the case of Abramyan. They could not avail themselves of the remedy in question, as the time-limit for using it had expired.

35. Regard being had to the above, the Court dismisses the Government’s objection and notes that the complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Parties’ submissions

36. The Government considered that the interference with the applicants’ possessions had been “in accordance with law” and had pursued a legitimate aim. The plots of land had been fraudulently acquired by third parties and the municipalities had rightfully recovered them. It had been the applicants’ choice not to claim compensation for the loss of property.

37. The applicants maintained their complaints. Mr Sergunin considered that he had bought the plot of land in good faith and, as a matter of law, Kazan City Council should have been prevented from recovering the said property from him. He further considered that the interference had not pursued a legitimate aim and that the Government had failed to specify any such aim in their submissions. The lawfulness of the transactions with the plot of land had been subject to State control. Each time the property had changed hands the registration authorities had had an opportunity to verify the legitimacy of the transaction. The first transaction had taken place in 2009 and it had taken the authorities almost four years to detect the fraud committed by G. The Government had failed to furnish any explanation as to why the fraud had been discovered with such a delay. The mistakes and errors committed by the authorities had been corrected at the applicant’s expense placing an excessive burden on him.

2. Court’s assessment

(a) Whether there was a “possession”

38. The Court accepts, and the Government do not argue otherwise, that the plots of land constituted the applicants’ possessions for the purposes of Article 1 of Protocol No. 1 to the Convention.

39. 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).

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

40. The Court has, on a number of previous occasions, examined cases in which the Russian municipal authorities, being the original owners of the real property, have been successful in reclaiming it from bona fide owners once it had been established that one of the prior transactions in respect of such property had been fraudulent (see Gladysheva, cited above, §§ 77-83; Stolyarova v. Russia, no. 15711/13, §§ 47-51, 29 January 2015; Andrey Medvedev v. Russia, no. 75737/13, §§ 42-47, 13 September 2016; Kirillova v. Russia, no. 50775/13, §§ 33-40, 13 September 2016; Anna Popova v. Russia, no. 59391/12, §§ 33-39, 4 October 2016; Alentseva v. Russia, no.31788/06, §§ 55-77, 17 November 2016; Pchelintseva and Others v. Russia, nos. 47724/07 and 4 others, §§ 90-101, 17 November 2016; and Ponyayeva and Others v. Russia, no. 63508/11, §§ 45-57, 17 November 2016). Having examined the specific conditions and procedures under which the State had alienated its assets to private individuals, the Court noted that they were within the State’s exclusive competence and held that the defects in those procedures resulting in the loss by the State of its real property should not have been remedied at the expense of bona fide owners. The Court further reasoned that such restitution of property to the State or a municipality, in the absence of any compensation paid to the bona fide owner, imposed an individual and excessive burden on the latter and failed to strike a fair balance between the demands of the public interest on the one hand and the applicant’s right to the peaceful enjoyment of his or her possessions on the other.

41. Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. The Court notes that the plots of land left the municipalities’ “possession” as a result of the fraud committed by private individuals. The Court further notes that there were safeguards in place to ensure that the land changed hands in accordance with domestic law. The lawfulness of each transaction and title in respect of the plots of land were subject to control by registration authorities. The Government, however, did not proffer any explanation, as to why those safeguards had not been effective in detecting the fraud and protecting the municipalities’ interests. In such circumstances, the Court cannot but conclude that it was the faulty registration procedure that led to the loss of property title by the municipalities in respect of the plots of land.

42. Lastly, the Court notes that the municipalities did not pay any compensation to the applicants when reclaiming their property. It accepts that, as suggested by the Government, it was open to the applicants to recover their losses by bringing an action for damages against the sellers of the plots of land. However, the Government essentially suggest that the applicants pass their burden on to other bona fide owners, 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.

43. Regard being had to the above, the Court considers that it was not for the applicants to assume the risk of the title to the plots of land being revoked on account of the omissions on the part of the authorities in procedures specially 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, cited above, § 49). It concludes that the forfeiture of the title to the plots of land by the applicants and the transfer of the plots of land to the municipalities, in the circumstances of the case, placed a disproportionate and excessive burden on them. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

44. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

45. Mr Isupov (application no. 60765/14) did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

A. Damage

46. Mr Sergunin (application no. 54322/14) asked for his title to the plot of land to be restored. He also claimed that for three years he had been unable to lease out his plot of land, a fact which had resulted in further pecuniary damage totalling 25,618.50 Russian roubles (RUB). Lastly, he sought 20,000 euros (EUR) in respect of non-pecuniary damage. Mr Prokudin (application no. 73407/14) asked the Court to award him “a compensation for the loss of property”.

47. The Government considered Mr Sergunin’s claims for pecuniary damage unsubstantiated and his claims for non-pecuniary damage excessive. They further submitted that Mr Prokudin had failed to quantify his claims and no award should be made to him.

48. As to Mr Prokudin’s case, the Court reiterates that under Rule 60 § 2 of the Rules of Court itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the claim may be rejected in whole or in part. Mr Prokudin has not submitted particulars of his claims in respect of the damage sustained. Nor has he provided the necessary supporting documents. As a result the Court cannot allow his claim for compensation.

49. For the same reasons, the Court also rejects Mr Sergunin’s claims in part concerning the alleged loss of profit in the amount of RUB 25,618.50.

50. As to Mr Sergunin’s claim concerning the restoration of his title to the plot of land, the Court takes into account that it has found a violation of Mr Sergunin’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 alleged. It accepts that the applicant’s title to the plot of land should be restored. Thus, the applicant would be put as far as possible in a situation equivalent to the one in which he 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 restoration of Mr Sergunin’s title to the plot of land is not possible, the Government should ensure that he receives an equivalent plot of land.

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

B. Costs and expenses

52. Mr Sergunin also claimed RUB 40,000 for the costs and expenses incurred before the Court.

53. The Government did not challenge the applicant’s claims.

54. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to grant the applicant’s claim and to award the sum of EUR 535 to him.

C. Default interest

55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

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

4. Holds

(a) that the respondent State shall ensure, by appropriate means, within three months, full restitution of Mr Sergunin’s title to the plot of land. In the alternative, if the plot of land is no longer the State’s property, or if it has been otherwise alienated, the respondent State shall ensure that Mr Sergunin receives an equivalent plot of land;

(b) that the respondent State is to pay Mr Sergunin, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 535 (five hundred and thirty-five euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 9 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıAlena Poláčková
Deputy RegistrarPresident

APPENDIX

No.

Application no.

Applicants’ name

Date of birth

Place of residence

54322/14

Oleg Dmitriyevich SERGUNIN

10/12/1967

Kazan

60765/14

Dmitriy Gennadyevich ISUPOV

07/05/1978

Kirov

73407/14

Sergey Vasilyevich PROKUDIN

19/10/1958

Kirov

 

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