Communicated on 4 September 2017
THIRD SECTION
Application no. 11588/17
Vladimir Fedorovich KOPEYKIN
against Russia
lodged on 23 January 2017
STATEMENT OF FACTS
The applicant, Mr Vladimir Fedorovich Kopeykin, is a Russian national who was born in 1955 and lives in Novokuznetsk, Kemerovo region.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Until 1988 the applicant lived in a municipal flat in Novokuznetsk provided to him under a social tenancy agreement. In 1988, after his marriage to K., he exchanged his flat for a bigger one and moved into the new flat with K. and her daughter.
K. became the social tenant under the new social tenancy agreement and the applicant and K.’s daughter were included in the agreement as members of K.’s family and were registered as living in the flat.
In 1999 the applicant and K. divorced.
In 2001 the applicant instituted court proceedings against K. before the Tsentralnyy District Court of Novokuznetsk, Kemerovo region (“the District Court”) seeking acknowledgement of his right to live in the flat.
On 1 March 2001 the District Court allowed his claim.
On 11 February 2004 the bailiffs provided the applicant with a key to the flat.
In 2015 the applicant instituted court proceedings against K. and the municipal authorities. He asked the District Court to recognise his right to reside in half of the flat in question, to oblige the municipal authorities to conclude a social tenancy agreement with him, and to make arrangements for him to pay his rent for the flat independently from K. He submitted the following arguments to the court: he had moved out of the flat temporarily because he needed to take care of his elderly parents, who lived in a different town where he also had a new job; K. had prevented him from moving into the flat.
K. lodged a counter claim against the applicant, claiming that he had lost his right to reside in the flat. She submitted that the applicant had moved out of the flat in 1994 and had not attempted to move back since that time.
On 14 August 2015 the District Court examined and dismissed the applicant’s claims. In particular, the District Court held as follows:
“It was established in the court hearing that on 25.01.1988 Kopeykina N.L. ([K.]) had been provided with a flat in Novokuznetsk on the basis of the housing allocation order ....Her daughter Kozurevskaya I.S. and her husband Kopeykin V.F. [the applicant] had been included in that order as her family members.
On 5 March 1999 the marriage between Kopeykin V.F. and Kopeykina N.L. was dissolved. ...
In accordance with a decision of 1 March 2001 of the Tsentralnyy District Court of Novokuznetsk, Kopeykin V.F. moved into the flat...
The court has established that the parties [to the proceedings] are not family members and do not have any common household, that Kopeykin V.F. does not live in the flat, does not pay rent for the flat, and there are no belongings of his in the flat.
Kopeykin V.F. moved out of the flat and has not lived there since moving in in 2001. Allegations of Kopeykin V.F. that he had been prevented from living in the flat...were not confirmed in the court hearing ...
Witness Korshunova N. V. is the daughter of Kopeykin V.F. She tried to get into the flat together with her father in 2001 and 2003, but since 2003 she has not entered the flat and therefore the court may come to the conclusion that since 2003 Kopeykin has not attempted to move into the flat and to live there.
Kopeykin’s assertions that he had been absent from the flat for valid reasons were not confirmed in the court hearing...
Taking into account the fact that Kopeykin V.F. has not lived in the flat since 2003 without any valid reason, the court has grounds to believe that he has lost his right to use the flat. Moreover, ever since 2001, when he moved into the flat, Kopeykin has not been paying any rent for the flat...
The fact that in 2006 Kopeykin V.F. and Kozurevskaya K.N. had tried to exchange the flat for two separate flats cannot provide grounds for granting the claims of Kopeykin V.F. and dismissing the claims of Kozurevskaya L.N. because since 2006 nobody has made any attempt to exchange the flat and Kopeykin V.F. has neither moved into the flat nor paid any rent for it...
Taking into account all the evidence in the case, the court has come to the conclusion that Kopeykin V.F. has lost his right to live in the flat.
Therefore, the claims submitted by Kopeykin V.F. should be dismissed in their entirety...”
On 17 November 2015 the Kemerovo Regional Court (“the Regional Court”) upheld the judgment of 14 August 2015.
On 8 April 2016 a judge of the Regional Court refused to refer the applicant’s cassation appeal to the presidium of the Regional Court for examination.
On 27 September 2016 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s cassation appeal to the Civil Chamber of the Supreme Court for examination.
B. Relevant domestic law and practice
1. Housing Code of the Russian Federation of 29 December 2004, in force since 1 March 2005
Article 69 § 4 of the Code provides that if a person is no longer a family member of the tenant of premises leased under a social tenancy agreement but continues living in those premises, he enjoys the same rights as the tenant and his family members.
Article 71 of the Housing Code provides that the temporary absence of the tenant and/or his family members does not entail any changes to their rights and obligations under a social tenancy agreement.
Article 83 § 3 of the Code provides that in cases where the tenant and his family members have moved out to a different place of residence, the social tenancy agreement is deemed to be terminated from the date of their departure.
2. Case-law of the Supreme Court of the Russian Federation
In its Ruling No. 14 of 2 July 2009 on certain questions arising in judicial practice with regard to the application of the Housing Code of the Russian Federation, the Supreme Court of Russia held as follows (paragraph 32):
“...When adjudicating disputes on declaring the tenant or a family member or a former family member as having lost his right to reside in housing leased under a social tenancy agreement because of their permanent absence from the housing since their departure, the courts should establish the following:
- the reason for the defendant’s absence from the housing and how long he was absent
- whether his departure from the housing was of an involuntary nature (conflict within the family, divorce) or voluntary and temporary (job, studies, medical treatment etc.) or permanent (had he taken all his belongings, moved to a different town, got married, started living with a new family, in different housing etc.)
- whether other persons living in the housing had created obstacles to prevent him using the housing
- whether the defendant had acquired the right to use any other housing in his new place of residence
- whether he had discharged his duty to pay the rent.
If the court establishes that the defendant had moved out voluntarily from the housing and also that he unilaterally refused to make use of his rights and discharge his obligations under a social tenancy agreement, the claim seeking to declare him as having lost his right to such housing should be granted in accordance with paragraph 3 of Article 83 of the Housing Code following the dissolution by the defendant of the social tenancy agreement...”
COMPLAINT
The applicant complains under Article 8 of the Convention of the violation of his right to respect for his home.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his home, within the meaning of Article 8 § 1 of the Convention?
2. If so, was that interference in accordance with the law, did it pursue a legitimate aim and was it necessary in terms of Article 8 § 2 of the Convention (see, for instance, McCann v. the United Kingdom, no. 19009/04, § 50, ECHR 2008; Ćosić v. Croatia, no. 28261/06, §§20-23, 15 January 2009; and Paulić v. Croatia, no. 3572/06, §§ 40-45, 22 October 2009)?
The Government are requested to provide copies of the following documents:
- judgment of the Tsentralnyy District Court of Novokuznetsk of 1 March 2001,
- the applicant’s statement of claim in the proceedings which ended on 27 September 2016,
- the applicant’s appeal against the judgment of 14 August 2015.
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