Lazarev and Lazarev v. Russia (dec.)

Information Note on the Court’s case-law No. 80

November 2005

Lazarev and Lazarev v. Russia (dec.) - 16153/03

Decision 24.11.2005 [Section I]

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Refusal of clearance by the State guardianship authority for a father to sell a flat jointly owned by himself and his sons: inadmissible

The first applicant bought a flat which he registered in his own name and that of his two sons (the younger of which is the second applicant). He subsequently decided to sell the flat and applied for clearance of the transaction to the guardianship and wardship department of the District Council. The District Council did not give clearance because the sale would result in a reduction of his under-age son’s property, and, hence, not in his interests. The first applicant appealed, but the courts dismissed his claim. They found that the flat had been voluntarily transferred to the second applicant, and that a sale would result in a reduction of his property, which was not permitted under the applicable legislation.

Inadmissible under Article 1 of Protocol No. 1: The impugned restriction had been imposed in accordance with a procedure established by domestic law, which vested the discretionary power of giving or withholding consent to a transaction affecting the property of a child in the State guardianship authority. It had also pursued a general interest, namely the protection of children’s right to housing, which was of particular relevance in the context of the Russian real-estate market, where children and elderly people had been the prime targets of fraudulent transactions involving their flats. As to the proportionality of the measure, the relevant provisions were accessible and sufficiently accessible. Moreover, the Court could not agree with the applicant’s claim that the authorities had withheld consent because they presumed bad faith on his part. His ability to act in the best interests of his children, and to manage the family budget in the way he considered most efficient was not disputed or questioned. The primary concern of the authorities had been to safeguard the possessions of his younger son to the maximum extent possible until he came of age and was able to manage his property for himself. In any event, it seemed peculiar that the first applicant had not at any point in the domestic proceedings suggested any measure for the protection of the second applicant’s interests following the sale of his share of the flat. A final element to bear in mind was that the restriction had not been of unlimited duration: it only applied until the second applicant reached the age of fourteen. In such circumstances, the restriction had not represented an individual and excessive burden on either the first or the second applicant: manifestly-ill founded.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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