Communicated on 22 November 2016
THIRD SECTION
Applications nos. 35600/16 and 39274/16
Svetlana Anatolyevna SERGEYEVA and Others against Russia
and Olga Yakovlevna DEMINA and Klara Aleksandrovna DEMINA
against Russia
lodged on 17 June 2016 and 4 July 2016 respectively
STATEMENT OF FACTS
The applicants are Russian nationals. The applicants are Russian nationals. A list of the applicants is set out in the appendix.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Application no. 35600/16
1. Transactions in respect of the flat later purchased by the applicants
A flat located at 5-36 Ulitsa Bondarenko, Tula was Kan.’s property.
On 24 September 2011 Kan. died. On 18 October 2011 the flat was registered as vacant.
On 17 August 2012 the Proletarskiy District Court of Tula recognised Kar. as Kan.’s son and heir. The Tula City Administration appealed.
On 1 November 2012 the Tula Regional Court quashed the judgment of 17 August 2012 on appeal and dismissed Kar.’s claims.
On 18 February 2012 the City Administration informed the state registration body that the flat was bona vacantia and asked for the registration of the flat as municipal property.
According to the state register, as of 12 September 2014 Kan. was still registered as the owner of the flat.
On 16 November 2014 Nen. sold the flat to Nik. acting by virtue of a power-of-attorney on behalf of Kan. The power-of-attorney was issued on 12 June 2012.
On 27 January 2015 Nik. sold the flat to B.
On 2 February 2015 B. sold the flat to the applicants.
2. Termination of the applicants’ title to the flat
On an unspecified date the Tula City Administration brought a civil action seeking the title to the flat. The administration argued that Kan. Had died intestate and without heirs, that the flat should be considered bona vacantia and that the title to it should be transferred to the city. The applicants asked the court to recognise them as bona fide purchasers of the flat.
On 29 September 2015 the District Court granted the city’s claims in full. The court established that, following Kan.’s death, the flat was bona vacantia and ordered its restitution to the City of Tula. The court recognised that the applicants had bought the flat in good faith. However, it found that because the sale of the flat to Nik. had been fraudulent, the City of Tula had the right to reclaim the flat from the applicants, despite the fact that they were bona fide purchasers.
The court also issued a separate ruling as regards the power-of-attorney of 12 June 2012. The court established that the forms used by the notaries for the issuance of the power-of-attorney were subject to special control and registration. The court also noted that the notary who had issued the power-of-attorney on behalf of the deceased Kan. had not received the relevant authority form. It had been provided to another notary. The court considered that those facts disclosed a possible violation of applicable laws and asked the Ministry of Justice and the Chamber of the Notary to look into the issue.
In another separate ruling, the court stated that, despite the request of the City Administration of 18 February 2012, the state registration body had failed to register the flat as municipal property. In the court’s opinion, the failure to comply with applicable legislation by the registration body had resulted in the fraudulent sale of the flat.
On 24 December 2015 the Regional Court upheld the judgment of 29 September 2015 on appeal.
On 29 February 2016 the Regional Court refused to grant the applicants’ leave to cassation appeal.
On 15 April 2015 the Supreme Court of the Russian Federation issued a similar decision.
B. Application no. 39274/16
1. Transactions in respect of the flat later purchased by the first applicant
A two-roomed flat measuring 52.50 sq. m and located at 15-3-158 Ulitsa Tsyurupy, Moscow, belonged to the City of Moscow. Sh. resided there under a social tenancy agreement.
On 25 March 2008 Sh. died.
On 5 November 2008 notary K. forged a deed indicating G. as Sh.’s son and heir in respect of the flat.
On 3 December 2008 the City Registration Department registered G.’s title to the flat.
On 23 April 2009 G. sold the flat to Kuz.
On 25 May 2009 the City Registration Department registered the sale agreement and Kuz.’s title to the flat.
On 16 November 2010 Kuz. sold the flat to the first applicant.
On 26 November 2010 the City Registration Department registered the sale agreement and the first applicant’s title to the flat. Both applicants moved into the flat.
2. Criminal proceedings on the fraud charges
On 8 August 2012 a criminal investigation was opened into the city’s loss of title to the flat.
On 7 December 2012 the Housing Department of the City of Moscow (the “Housing Department”) was recognised as a victim of the fraud.
On 9 December 2013 the Perovskiy District Court of Moscow found a group of persons, including Kuz., guilty of fraud. The court established, inter alia, that the defendants had forged the documents and had had unlawfully registered the flat as G.’s property to the detriment of the City of Moscow.
3. Termination of the first applicant’s title to the flat
On an unspecified date the Housing Department brought a civil action seeking the restitution of the flat.
On 4 February 2015 the Cheremushkinskiy District Court of Moscow granted the Housing Department’s claims. The court invalidated the transactions in respect of the flat and the first applicant’s title to the flat and ordered the applicants’ eviction from the flat. The court applied the domestic law provisions which allowed the owner to recover its property from a bona fide purchaser if the said property left the owner’s possession against its will. The court considered that the City of Moscow had not had intent to divest of the flat and had a right to recover the flat from the first applicant.
On 11 September 2015 the Moscow City Court upheld the judgment of 23 December 2014 on appeal.
On 20 November 2015 the City Court refused to grant the applicants leave to bring a cassation appeal against the judgments of 4 February and 11 September 2015.
On 14 March 2016 the Supreme Court of the Russian Federation issued a similar decision.
It appears that the eviction proceedings are pending.
COMPLAINTS
The applicants complain under Articles 8 of the Convention about their eviction.
The applicants complain that the restitution of their real property to the state was in contravention of Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Have the applicants been deprived of their possessions (real property) in the public interest, in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1?
If so, was that deprivation necessary to control the use of property in the general interest? In particular, did that deprivation impose an excessive individual burden on the applicants (see Gladysheva v. Russia, no. 7097/10, §§ 64-83, 6 December 2011)?
2. Has there been an interference with the applicants’ right to respect for home, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see Gladysheva, cited above, §§ 90-97)?
3. Did the applicants bring a civil action seeking damages resulting from the loss of title to the real property?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
35600/16
17/06/2016
Svetlana Anatolyevna SERGEYEVA
15/07/1973
Bolokhovo
Sergey Vladimirovich SERGEYEV
20/05/1971
Bolokhovo
Anna Sergeyevna SERGEYEVA
29/11/2011
Bolokhovo
Ilyas Salimovich VAKHITOV
39274/16
04/07/2016
Olga Yakovlevna DEMINA
26/03/1967
Moscow
Klara Aleksandrovna DEMINA
29/11/1939
Moscow
Anna MARALYAN
Full & Egal Universal Law Academy