THIRD SECTION
DECISION
Applications nos. 78544/13 and 46728/14
Artem Ivanovich VARIN and Others against Russia
and Yevgeniy Viktorovich VAGANOV and Others against Russia
The European Court of Human Rights (Third Section), sitting on 28 March 2017 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on 2 December 2013 and 5 June 2014 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
A list of the applicants is set out in the appendix.
The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Application no. 78544/13, lodged on 2 December 2013
(a) Transactions with the flat later purchased by the first applicant
Prior to its privatisation, the flat at 3-168, Ulitsa Volovya, Moscow, had been owned by the City of Moscow. K. and her son had resided there as tenants under the social housing lease agreement with the city.
On 22 February 2008 K. died.
On an unspecified date in 2008 K.’s son moved out. His sister reported him to the police as a missing person. On 2 September 2008 the flat was put on the list of the supervised property. On 14 November 2008 K.’s son was officially declared missing.
On 1 October 2009 T., acting by virtue of a power of attorney issued allegedly by K.’s son, entered into a social housing lease agreement on the latter’s behalf with the Housing Department.
On 3 November 2009 T., acting again by virtue of a power of attorney issued allegedly by K.’s son, applied to the Housing Department for the privatisation of the flat and on the same date the parties signed the relevant privatisation agreement.
On 21 January 2010 T. sold the flat to I.
On 28 October 2010 I. sold the flat to Tr.
On 5 August 2011 T. sold the flat to the first applicant. The applicants moved into the flat and resided there.
On 6 August 2011 K.’s sister identified her brother’s body and obtained a death certificate which indicated 7 May 2008 as the date of his death.
(b) Consideration of the applicants’ case by national courts
On an unspecified date K.’s sister brought a civil claim against multiple parties seeking the title to the flat.
On 17 May 2013 the Taganskiy District Court of Moscow dismissed her claims. The court found that, as a result of all the fraudulent transactions with the flat, the City of Moscow had forfeited the ownership of the flat against its will and the flat should be returned to the city. The court also found that the first applicant had acquired the flat as a bona fide purchaser. However, it ruled that the case fell under one of the two exceptions to the protection of a bona fide purchaser’s title, which required that precedence be given to the City of Moscow and ordered the applicants’ eviction.
On 10 October 2013 the Moscow City Court upheld the judgment of 17 May 2013 on appeal.
On 18 December 2013 the City Court rejected the applicants’ cassation appeal.
On 1 March 2014 the district bailiff’s service instituted enforcement proceedings in respect of the judgment of 17 May 2013.
On 22 May 2014 the Supreme Court of the Russian Federation rejected another cassation appeal lodged by the applicants.
On 23 July 2014 the District Court suspended the enforcement of the judgment of 17 May 2013 for six months.
On 5 June 2015 the District Court reinstated the time-limit for the applicants to submit a cassation appeal against the judgments in their case.
On 5 August 2015 the Supreme Court suspended the enforcement proceedings in the applicants’ case pending the cassation appeal proceedings.
On 3 November 2015 the Supreme Court quashed the judgments of 17 May and 10 October 2013 and found in the applicants’ favour. The court found that the lower courts had erred in application of substantive and procedural laws which had resulted in a violation of the applicants’ rights.
2. Application no. 46728/14, lodged on 5 June 2014
(a) Transactions with the flat later purchased by the first applicant
The flat at 2-51 Pereulok Mayakovskogo, Moscow, had been owned by the City of Moscow. I. resided there as a tenant under the social housing agreement. On 3 May 1994 I. died.
On 19 May 1994 the Housing Department registered the flat as I.’s property. The application for privatisation of the flat was submitted by S. who acted by virtue of a power of attorney allegedly issued by I.
On 24 May 1994 S. sold the flat to Ch. The Housing Department registered Ch.’s title to the flat on the same date.
On 6 June 1994 Ch. sold the flat to the first applicant. The Housing Department registered the first applicant’s title to the flat on the same date. The applicants and other members of their family moved into the flat and resided there.
(b) Criminal proceedings concerning fraudulent transactions with the flat
On an unspecified date the police opened a criminal investigation into numerous fraudulent transactions with flats in Moscow. On 7 August 1997 the investigating authorities informed the Housing Department of the investigation.
On 16 April 2001 the Kuzminskiy District Court of Moscow convicted Tu. of fraud in respect of forty-two flats, including the one purchased by the first applicant.
(c) Consideration of the applicants’ case by national courts
On 7 May 2013 the Housing Department instituted proceedings against the applicants seeking, inter alia, the transfer of the flat to the City of Moscow and their eviction.
On 17 September 2013 the Taganskiy District Court of Moscow granted the Housing Department’s claims in full.
On 18 December 2013 the Moscow City Court upheld the judgment of the Taganskiy District Court of Moscow of 17 September 2013 on appeal.
On 30 September 2014 the Supreme Court of the Russian Federation quashed the judgments of 17 September and 18 December 2013 in part granting the Housing Department’s claims and found in the applicants’ favour. The court found that the lower courts had erred in application of substantive and procedural laws which had resulted in a violation of the applicants’ rights. It recognised that the first applicant and his ex-wife owned the flat in equal shares. The court noted that the Housing Department had entered into a privatisation agreement in respect of the flat, which fact should be construed as an express intent on the part of the Housing Department to dispose of the flat. The court also noted that the Housing Department had been aware of the fraudulent transfer of the title to the flat back in 1997 and, accordingly, had missed the three years’ time-limit for lodging its claims.
COMPLAINTS
The applicants complain under Article 8 of the Convention and under Article 1 of Protocol No. 1 about the transfer of the title to their flats to the City of Moscow.
THE LAW
A. Joinder of the applications
The Court decides to join the applications, given their similar factual and legal background.
B. The applicants’ complaints
The applicants complained about the loss of housing. They relied on Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, which provide, in so far as relevant, as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“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.”
The Government submitted that the applicants had failed to inform promptly the Court of the quashing of the judgments in their case and that such failure had amounted to an abuse of petition on their part. They further argued that the applicants could no longer claim to be victims of the alleged violation. The applicants had not been de facto evicted from the flats and the judgments ordering the transfer of the title to the flats to the City of Moscow and the applicants’ eviction had been quashed.
The applicants maintained their complaints.
As regards the Government’s first objections, the Court reiterates that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see Akdivar and Others v. Turkey, 16 September 1996, §§ 53‑54, Reports of Judgments and Decisions 1996-IV; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; and Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000‑X). The applicants should keep the Court informed of all the circumstances relevant to the application.
The Court notes that the applicants have indeed failed to inform it promptly of the favourable outcome in the consideration of the matter by the national courts. However, it does not consider this failure, albeit regrettable, to amount to an abuse of the right of petition, regard being had to the circumstances of the present case (compare Plekhova v. Russia, no. 42752/04, § 19, 31 January 2008). The Court therefore rejects the Government’s objection.
The Court further reiterates that under Article 34 of the Convention it may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention. A decision or measure favourable to an applicant is not, in principle, sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-80, ECHR 2006‑V).
Turning to the circumstances of the present case, the Court notes from the outset, that, as claimed by the Government and not contested by the applicants, the judgments ordering their eviction and restitution of their flats to the City of Moscow have never been enforced. The applicants’ continued to reside in the flats even after the final judgments on the matter were delivered on 10 October and 18 December 2013 respectively.
The Court further notes that subsequently the judgments in the applicants’ case were set aside by the Supreme Court of the Russian Federation. The effect of the proceedings which formed the basis for the applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 has thus been annulled (compare, (see Lyakhevich v. Russia (dec.), no. 26704/02, 12 November 2013). The Supreme Court acknowledged a violation of the applicants’ rights in the first set of the civil proceedings instituted by the City authorities and adopted new judgments favourable to the applicants. In the circumstances of the case, the Court considers that such a redress was sufficient and adequate, having the effect of rendering the applicants “no longer a victim” of the alleged violation.
It follows that the applications must be rejected in accordance with Article 35 §§ (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 27 April 2017.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
Appendix
Application no 78544/13
No
Firstname LASTNAME
Birth date
Nationality
Place of residence
Representative
Artem Ivanovich VARIN
11/03/1980
Russian
Moscow
Mr V. Piliguz, a lawyer practising in Moscow.
Georgiy Artemovich VARIN
04/05/2005
Russian
Savva Artemovich VARIN
23/08/2011
Russian
Natalya Alekseyevna VARINA
30/09/1979
Russian
Application no 46728/14
No.
Firstname LASTNAME
Birth date
Nationality
Place of residence
Representative
Yevgeniy Viktorovich VAGANOV
26/09/1956
Russian
Moscow
Ms O. Makarkina,
Ms Ye. Nakhimova, Ms M. Samorodkina, lawyers practising in Moscow
Dmitriy Yevgenyevich VAGANOV
18/01/1986
Russian
Anastasiya Yevgenyevna VAGANOVA
14/03/1997
Russian
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