Communicated on 12 May 2016
THIRD SECTION
Application no. 57964/08
Nadezhda Mikhaylovna KOTUMANOVA
against Russia
lodged on 4 September 2008
STATEMENT OF FACTS
The applicant, Ms Nadezhda Mikhaylovna Kotumanova, is a Russian national, who was born in 1954 and lives in Volgograd.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background information as regards the applicant’s real property
On 19 February 1952 the local administration assigned a plot of land measuring 600 sq. m to K. for permanent use. Subsequently K. had a house measuring 38.9 sq. m (“house A”) built on the plot.
On 7 August 1980 the local administration recognised K.’s wife and his daughter, Zh., as owners of three-quarters and one-quarter of the house respectively.
On 14 November 1980 K.’s wife transferred her ownership to Zh.
On 7 July 1981 Zh. sold the house to the applicant’s husband. The purchase agreement remained silent as to the title to the land.
On an unspecified date the applicant’s family had another house measuring 395.3 sq. m (“house B”) built on the plot. According to the applicant, houses A and B were used by her daughter. The applicant resided at a different address.
On 15 May 2001 the Volgograd Sovetskiy District Court recognised the applicant’s title to the houses as a result of the divorce settlement. On 27 May 2003 the regional land registry confirmed the applicant’s title to house A.
In 2003 the applicant unsuccessfully asked the authorities to privatise the plot.
On 7 February 2008 the regional land registry issued a document confirming the applicant’s title to house B.
2. Construction company’s claims in respect of the plot
On 20 August 2003 the local administration expressed a preliminary intent to assign the plot of land where houses A and B were located to a construction company. According to the relevant decision, the construction company was authorised to demolish all the houses and other buildings located on the plot of land with the proviso that the owners of the real property would be reimbursed accordingly.
On 27 September 2006 the local administration ordered the applicant to have house B demolished.
(a) First set of civil proceedings
On an unspecified date the construction company brought an action against the applicant seeking to have house B recognised as unauthorised construction and to have it demolished.
On 28 December 2006 the District Court granted the construction company’s claims in full and ordered that the applicant have house B demolished. The court took into account the applicant’s title to house A; however, it reasoned that the plot of land on which house A was located had not been formally assigned to the applicant.
On 23 May 2007 the Volgograd Regional Court quashed the judgment of 28 December 2006 and remitted the matter for fresh consideration. The court noted that the decision issued by the local administration on 20 August 2003 could not be interpreted as granting title to the disputed plot of land to the construction company and that the court at the first level of jurisdiction should verify whether the construction company had standing to bring the civil action against the applicant.
(b) Second set of civil proceedings
On an unspecified date the local administration brought an action against the applicant asking for house B to be demolished.
On an unspecified date the applicant brought a civil action against the local administration seeking recognition of her title to the plot and challenging the local administration’s decision to assign the plot of land to the company.
The District Court decided to join the consideration of the claims lodged by the applicant, the construction company and the local administration.
On 30 November 2007 the District Court noted that the applicant had not been officially assigned title to the plot of land and granted the local administration’s claims in full and ordered that the applicant have house B demolished.
On 5 March 2008 the Regional Court upheld the judgment of 30 November 2007 on appeal. The court dismissed all the claims lodged by the applicant and the construction company. The judgment remained silent as regards the document confirming the applicant’s ownership of house B issued on 7 February 2008. Judge G. wrote a dissenting opinion in which he reasoned as follows:
“When dismissing the [applicant’s] claims, the court at first level of jurisdiction erroneously reasoned that [the applicant] had been using the plot unlawfully given that it had not been assigned to her and that the legal status of the plot of land had not been determined. The court of appeal took into account that [house B] had been constructed in the absence of the relevant permit [from] the local administration.
The above findings are not supported by the factual circumstances of the case and the evidence examined by the courts.
Regard being had to the above, it follows that [house A] was bought jointly by [the applicant] and her then husband in 1981 under a purchase agreement. The agreement was registered in accordance with the legislation in force at the relevant time ...
It appears that the plot of land on which [house A] was constructed was lawfully transferred to the owners [of house A] including [the applicant] in 1981.
In 2001, following the divorce and division of property, [the applicant] acquired title to the house and the plot.
In 2003 the applicant asked the administration to privatise the plot. The application was dismissed.
[The local administration] did not decide to acquire the plot through compulsory purchase for municipal or state use.
...
Regard being had to the above, I consider that in 2003 [the local administration] unlawfully dismissed the [applicant’s] application to bring the title to the land into compliance with new applicable legislation by means of privatisation, purchase or lease.
The administration’s intent to acquire the plot of land through compulsory purchase for municipal use in the future cannot be regarded as relevant for consideration of the [applicant’s application].
...
Accordingly, the plot of land is lawfully in the [applicant’s] possession and use. She uses it in accordance with its purpose (to service the house which is built on the plot). The [applicant’s] title to the house is registered in accordance with the applicable legislation.
[The local administration and the construction company] have not furnished evidence that [house B] was constructed in material violation of construction norms or regulations or that the preservation of the house would infringe the ... rights or interests of others or that it would be a hazard to public life or health.
The only reason underlying the decision to recognise [house B] as unauthorised construction is the lack of a construction permit.
However, in such circumstances, the court [at first level of jurisdiction] unlawfully decided that [house B] should be demolished. According to the applicable legislation (Article 222 of the Civil Code), the unauthorised construction should be demolished ... subject to the exceptions set out in paragraph 3 of said Article.
Article 222 § 3 states that the court may recognise the title to the unauthorised construction ... of the person who holds the title to the plot of land on which the unauthorised construction has been carried out.
At the time [of the consideration of the case by the court of appeal] the applicant’s title to [house B] was registered.
...
To date there have been no final judicial decisions authorising the acquisition of the plot of land or the limitation of the [applicant’s] rights in respect of that plot.
Regard being had to the above, it follows that the claims lodged by [the local administration and the construction company] are neither justified nor lawful.
Accordingly, the judgment ordering that [house B] be demolished is unlawful and should be quashed.”
3. Expropriation of house A
(a) First set of civil proceedings
On an unspecified date the construction company brought an action against the applicant seeking to disseize house A. The local administration supported the construction company’s claims. They noted that, even though current legislation did not set out a procedure for reimbursement of the value of the house to its owner in the event the plot of land was transferred to a commercial organisation, it did not proscribe the application of the expropriation procedure in such a situation.
On 9 March 2007 the District Court granted the construction company’s claims in full. It found that the removal of house A was necessary for the construction of a multiple-dwelling unit and that the applicant’s loss would be adequately compensated by the payment of 1,398,607 Russian roubles (RUB) to her by the construction company.
On 23 May 2007 the Regional Court quashed the judgment of 9 March 2007 noting that the matter had been considered in the applicant’s absence and remitted it for fresh consideration.
(b) Second set of civil proceedings
On an unspecified date the applicant brought an action against the local administration seeking recognition of her title to house B. The District Court joined the consideration of claims lodged by the applicant and a claim previously lodged by the construction company.
On 27 March 2008 the District Court granted the construction company’s claims in full and dismissed the applicant’s claims. As regards the registration of the applicant’s title to House B of 7 February 2008, the court reasoned that the applicant had obtained such registration after the judgment ordering the demolition of House B and should not be taken into consideration as having been obtained in bad faith.
On 28 May 2008 the Regional Court upheld the judgment of 27 March 2008 on appeal.
It appears that the judgments against the applicant were enforced. Houses A and B were demolished.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 and Article 8 of the Convention about the loss of her houses and the plot of land attached to them.
QUESTIONS TO THE PARTIES
1. Regard being had (1) to the fact that the land plot had been originally assigned for the construction of the house later purchased by the applicant’s family and (2) to the ownership certificate issued by the Federal Registration Service on 7 February 2008, did the applicant have a property interest eligible for protection under Article 1 of Protocol No. 1 to the Convention? In particular, did the land plot and the house measuring 395.3 sq. m constitute the applicant’s possession?
2. If so, has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention?
Has the applicant been deprived of her possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
If so, was that deprivation necessary to control the use of property in accordance with the general interest?
In particular, did that deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 9, ECHR 1999-V?
3. The Government are requested to provide copies of the following documents:
- the decision of the Sovetskiy District Court of 15 May 2001 concerning the division of property in the divorce proceedings in the applicant’s case;
- the local administration’s decision refusing the applicant’s request for the recognition of the title to the plot of land from 2003.
4. The parties are requested to specify when the applicant’s second house measuring 395.3 sq. m was built.
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