European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF TOMINA AND OTHERS v. RUSSIA

 

(Applications nos. 20578/08, 21159/08, 22903/08, 24519/08, 24728/08, 25084/08, 25558/08, 25559/08, 27555/08, 27568/08, 28031/08, 30511/08, 31038/08, 45120/08, 45124/08, 45131/08, 45133/08, 45141/08, 45167/08 and 45173/08)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

(merits)

 

 

 

STRASBOURG

 

1 December 2016

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.




In the case of Tomina and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 8 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in twenty applications (nos. 20578/08, 21159/08, 22903/08, 24519/08, 24728/08, 25084/08, 25558/08, 25559/08, 27555/08, 27568/08, 28031/08, 30511/08, 31038/08, 45120/08, 45124/08, 45131/08, 45133/08, 45141/08, 45167/08 and 45173/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Their details appear in Appendix I below.

2.  Mr Andriyevskiy (application no. 21159/08) was represented by Mr A. Akhmedov, a lawyer practising in Samara. Ms Anisimova (application no. 45120/08) was represented by Mr V. Lenevich, a lawyer practising in Samara. The rest of the applicants were represented by Ms M. Isayeva, Ms I. Sergeyeva and Ms M. Suchkova, lawyers with Threefold Legal Advisors, a law firm incorporated in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3.  The applicants alleged, in particular, that they had been deprived of their property in contravention of Article 1 of Protocol No. 1 to the Convention.

4.  On 23 October 2013 and 18 March 2014 the complaint concerning the deprivation of property was communicated to the Government and the remaining parts of the applications were declared inadmissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants are Russian nationals. They owned rooms in a dormitory building in the municipality of Samara. The municipality reclaimed the building, and the applicants’ title to the real property in question was annulled as a result of civil proceedings brought against them by a prosecutor on behalf of the municipality. According to the Government, the judgment has not been enforced and the applicants continue to reside in the rooms they had bought.

6.  Ms Vasyukhina and Mr Vasyukhin (application no. 45173/08) submitted that they had never moved into the rooms as they were occupied by other individuals.

A.  Background information

7.  In 1993 a State-owned enterprise called Samaraavtotrans was privatised and reorganised into a joint-stock limited liability company called Stroitel. The privatisation plan was approved by the municipality and the Regional Property Fund signed the plan on its behalf. In accordance with the privatisation plan, all residential buildings previously listed on Samaraavtotrans’s balance sheet were to be transferred to the municipality, while the administrative buildings were to be taken over by Stroitel. The privatisation plan referred to a building located at no. 61 Yunykh Pionerov Avenue, Samara, as an administrative building (used for non-residential purposes), and it was transferred to Stroitel.

8.  As a result of a number of reorganisations of Stroitel, the title to the building in question was transferred to the closed joint-stock company, Stroitel-M. Subsequently, separate rooms in the building were resold to third parties, including the applicants. The information concerning the applicants’ titles to the property can be found in the appendix below. According to the title deeds, the applicants were owners of non-residential premises.

9.  The applicants moved into the rooms and resided there.

10.  On 23 August 2002 the Samara Region Commercial Court found the Samaraavtotrans privatisation plan and the agreement of 10 November 1993 - which the Regional Property Fund and Stroitel had entered into, and which partly concerned the transfer of the title to the building to Stroitel - null and void.

B.  Civil proceedings instituted by the prosecutor

11.  On an unspecified date the Promyshlenniy district prosecutor, acting in the interests of the municipality, brought an action against Stroitel, Stroitel-M and the owners of the rooms in the former dormitory building, including the applicants. Referring to the invalidation of the privatisation of Samaraavtotrans, the prosecutor submitted that the subsequent transactions relating to the building were also null and void, and asked the court to return the title to the building to the municipality.

12.  According to the applicants, on 27-28 October 2003 the Promyshlenniy District Court of Samara (“the District Court”) dismissed the prosecutor’s claim. On 20 January 2004 the Samara Regional Court (“the Regional Court”) quashed that judgment and remitted the matter to the District Court for fresh consideration.

13.  On 14 June 2005 the District Court dismissed the prosecutor’s claim. On 2 August 2005 the Regional Court upheld the judgment of 14 June 2005 on appeal.

14.  On 18 May 2006 the Presidium of the Regional Court quashed the judgments of 14 June and 2 August 2005 by way of supervisory review, and remitted the matter to the District Court for fresh consideration. The Presidium noted that the lower courts had erroneously applied substantive and procedural laws when deciding the matter.

15.  On 14-19 November 2007 the District Court allowed the prosecutor’s claim in full. The court recognised that the owners of the rooms were bona fide purchasers, but ordered that the title to the building be transferred to the municipality. The municipality, the true owner of the building, had not authorised the purchase of the rooms in the building by their current owners. Accordingly, the sale of the building in the absence of authorisation by the municipality meant that the municipality had lost possession against its will, and could recover its property from bona fide purchasers.

16.  On 12 February 2008 the Regional Court upheld the District Court’s judgment of 14-19 November 2007 on appeal.

C.  Application no. 45173/08

17.  The applicants in the present application, Mr Vitaliy Vasyukhin and Ms Darya Vasyukhina, were minors at the relevant time.

18.  On an unspecified date, acting on their behalf, the applicants’ mother sued Mr B. (the person who had sold the rooms to the applicants) for damages.

19.  On 10 December 2010 and 16 June 2011 the Oktyabrskiy District Court of Samara granted her claims and awarded damages in the amount of 600,000 Russian roubles (RUB) to each of the applicants. On 10 February and 4 July 1011 the Regional Court upheld the above-mentioned judgments on appeal.

20.  On an unspecified date a bailiff initiated enforcement proceedings. On 4 March 2014 he discontinued the enforcement proceedings, noting that it was impossible to establish Mr B.’s whereabouts or identify his assets, if any such assets existed.

21.  It appears that the enforcement proceedings in respect of the judgment of 16 June 2011 are still pending.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Civil Code of the Russian Federation

22.  The relevant provisions of the Civil Code of the Russian Federation provide as follows:

Article 167.   General provisions on the consequences of declaring
a transaction invalid

“1.  The invalidation of a transaction shall have no legal consequences except for those connected with the invalidation, and the transaction shall be considered invalid from the date of the transaction.

2.  If a transaction has been declared invalid, each of the parties shall return to the other the consideration it has received under the transaction, and if the return is impossible in kind (including where the transaction concerns the use of property, work performed or services rendered), its cost shall be reimbursed in the form of money - unless other consequences of the invalidity of the transactions have been stipulated by law.

3.  If it follows from the content of the disputed transaction that it may not be terminated until a future date, the court, while declaring the transaction invalid, shall fix a future date for its termination.”

Article 302.  Reclaiming property from a bona fide purchaser

“1.  If a property has been purchased from a person who had no right to sell it, and the purchaser is unaware and could not have been aware [of this fact] (bona fide purchaser), the owner shall have the right to reclaim the property from the purchaser, if the said property was lost by the owner or by the person into whose possession the owner had conveyed the property, or if it was stolen from either of them, or if it left their possession in any other way against their will.

2.  If the property has been acquired without consideration from a person who had no right to convey it, the owner shall have the right to reclaim the property in all cases.

3.  Money and bearer securities shall not be reclaimed from a bona fide purchaser.”

B.  Ruling of the Constitutional Court of the Russian Federation

23.  In a ruling of 21 April 2003 (6-P) the Constitutional Court of the Russian Federation interpreted Article 167 of the Code as not allowing the original owner to reclaim a property from a bona fide purchaser unless there was a special legislative provision to that effect. Instead, a claim asserting prior rights (виндикационный иск) could be lodged under Article 302 of the Code if the conditions indicated in paragraphs 1 and 2 were met, in particular if the property had left the owner’s possession without his or her intention to divest himself or herself of it, or if the property had been acquired without consideration.

C.  Ruling of the Plenary of the Supreme Court and the Plenary of the High Commercial Court of the Russian Federation

24.  Further interpretation of Article 302 of the Civil Code was provided by the Plenary of the Supreme Court of the Russian Federation and the Plenary of the High Commercial Court of the Russian Federation. Their joint ruling of 29 April 2010 (no. 10/22) on certain questions arising in judicial practice in respect of resolution of disputes connected with the protection of property rights and other real rights stated as follows:

“39.  Article 302 § 1 of the Civil Code of the Russian Federation provides that the owner may reclaim his or her property ... regardless of the respondent party’s claim that he or she is a bona fide purchaser, if the owner proves that the property has left his or her possession ... against his or her will.

The fact that the transaction ... has been declared invalid does not by itself signify that the property left the [owner’s] possession against his or her will. It is incumbent on the court to establish whether the owner expressed his or her will to convey [the property] to another person.”

25.  In its ruling no. 188-O-O of 27 January 2011, the Constitutional Court relied on the interpretation of Article 302 provided by the Plenaries when verifying the said Article’s compliance with the Constitution.

D.  Overview of the case-law concerning proprietary claims lodged by State and municipal bodies against bona fide owners of housing

26.  On 1 October 2014 the Presidium of the Supreme Court of the Russian Federation approved the overview of the case-law concerning proprietary claims lodged by State and municipal bodies against bona fide owners of housing. It stated, in particular, as follows:

“...

Where a property transaction has been declared invalid, this shall not be construed as meaning that the Russian Federation, a constituent entity of the Russian Federation or a municipality has lost ownership of the property against its will.

For example, a district court dismissed a municipality’s claims against M., as regards the recovery of the flat and transfer of the ownership rights, for the following reasons.

It was established that the flat had been assigned to L. under the social housing agreement. L. had submitted a false certificate alleging that [he was eligible for priority assignment of social housing]. Later on, the title to the flat was transferred to L. under the privatisation agreement. Subsequently, L. sold the flat to M.

Regard being had to the fact that the municipality was a party to both the social housing agreement and the privatisation agreement, and had an opportunity to verify the validity of the documents submitted by L. but failed to do so with due diligence, the court concluded correctly that the municipality had transferred the disputed flat to L. wilfully and, pursuant to Article 302 § 1 of the Civil Code of the Russian Federation, could not reclaim the flat from the bona fide purchaser M., who had bought the flat from L.

...

If the respondent party has bought real property from a person who had no right to sell it, and the plaintiff and the respondent are not parties to the same transaction in respect of the real property, Articles 301 and 302 of the Civil Code of the Russian Federation apply, regardless of the type of civil claim lodged by the plaintiff (recovery of the housing, claim that the transaction in respect of the housing should be declared null and void, or both).

For example, a district court considered a civil action brought by the prosecutor on behalf of a municipality against M., S. and N., claiming that the social housing agreement and the [subsequent] privatisation, gift and sale [of the flat] should be recognised as null and void, and the flat returned to the municipality.

The court established that the disputed flat had been owned by the municipality, and had been classified as special housing which could be assigned only to persons on the housing list under an agreement for its use without consideration. However, [the management agency] entered into a social housing agreement with M., who later became the flat’s owner under the privatisation scheme.

M. gave the flat, under a gift agreement, to S., who sold it to N.

According to [the ruling of the Plenary of the Supreme Court and the Plenary of the High Commercial Court of the Russian Federation], in the event the plaintiff brings an action seeking the invalidation of a property transaction against, inter alia, a person who bought the property from a party who had no right to sell it, Articles 301 and 302 of the Civil Code of the Russian Federation apply.

The court took into consideration the fact that the plaintiff was seeking recovery of the flat and applied Articles 301 and 302 of the Civil Code of the Russian Federation when considering the dispute. Having established that the disputed flat had been transferred by its owner to the [management agency]; that the latter had disposed of the flat of its own will. and that N. had purchased the flat for a consideration and in good faith from a person who did not have a legal right to sell it, the court dismissed the claims that the transactions for the gift and sale of the flat ... should be declared null and void and ... the flat returned to the municipality.

At the same time ... the court accepted that the prosecutor’s request for the social housing and privatisation agreements to be declared null and void ... should be granted, given that the agreements had been executed in contravention of the applicable legislation.

The court further noted that the municipality had a legal interest in having the transactions in question declared null and void ..., because it had a right to claim damages from the person who had interfered with its possession.”

THE LAW

I.  JOINDER OF THE APPLICATIONS

27.  In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

28.  The applicants complained that they had been deprived of their property in violation of Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“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.”

A.  Admissibility

29.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

30.  The Government submitted that the interference with the applicants’ property rights had been “provided for by law” and that it had pursued the legitimate aim of protecting the interests of others. In particular, the Government submitted that, under the domestic regulations, the building could only be owned by the municipality, and the rooms in the building were to be assigned to people in connection with their employment. Accordingly, the privatisation of the building and all subsequent transactions had been null and void. The municipality, being the legitimate owner of the building, had rightfully reclaimed its property from the applicants. Lastly, the Government reiterated the findings of the national courts, that the municipality had not authorised the transactions relating to the rooms in the building. Accordingly, the sale of the building in the absence of such authorisation had meant that the municipality had lost possession against its will, and, as the lawful owner, it had a right to recover its property. The authorities had acted in accordance with the public interest. They had protected the rights of other persons employed by the Stroitel company and in need of social housing.

31.  The applicants submitted that the interference with their property rights had not been in accordance with the applicable laws. They argued that the domestic courts’ judgments had been in contravention of Article 302 of the Civil Code of the Russian Federation. While the courts had established that the applicants had been bona fide purchasers of the property, they had failed to grant them protection as required by Article 302. Having approved the privatisation plan and the transfer of the building to a private entity as part of the plan, the municipality had clearly demonstrated an intention to divest itself of the property. Accordingly, the domestic courts had erred in finding that the transfer of the building had been carried out in the absence of the requisite intention on the part of the municipality. The applicants also submitted that the municipality was estopped from reclaiming the property in view of the statute of limitations, which the domestic courts had failed to apply. Lastly, the applicants claimed that the domestic courts had failed to strike a fair balance between protecting the applicants’ rights and the municipality’s interests in the social housing sphere.

2.  The Court’s assessment

(a)  General principles

32.  The general principles concerning protection of property are well established in the Court’s case-law (see Gladysheva v. Russia, no. 7097/10, §§ 64-68, 6 December 2011).

(b)  Application of the general principles in the present case

(i)  Whether there was an interference with the applicant’s possession

33.  The Court observes that it is common ground between the parties that the rooms constituted the applicants’ possessions and that the revocation their title to the rooms amounted to an interference with their rights set out in Article 1 of Protocol No. 1 to the Convention. The Court sees no reason to hold otherwise.

34.  The Court’s task in the present case is, accordingly, to determine whether the interference satisfied the requirement of lawfulness and was not arbitrary and whether it struck a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Beyeler v. Italy [GC], no. 33202/96, § 107, ECHR 2000-I).

(ii)  Whether the interference was lawful

35.  As regards the lawfulness of the revocation of the applicants’ title to the rooms, the Court reiterates its earlier finding that the Russian legislation governing possible reclamation of a property from a bona fide purchaser might lack clarity (see Gladysheva, cited above, §§ 72-75). However, the Court may dispense with resolving this point because, irrespective of the domestic lawfulness of the interference, it fell short of the requirement of proportionality, as will be set out below.

(iii)  The aim of the interference

36.  As to the legitimate aim of the impugned measure, in the Court’s view, this question is closely related to the broader issue of whether the interference with the applicant’s rights was necessary in a democratic society. In view of its analysis in paragraphs 37-43 below, the Court does not find it necessary to decide as to the whether there was a matter of public concern warranting deprivation of property.

(iv)  Whether there was a fair balance

37.  The Court must next examine whether the interference with the peaceful enjoyment of possessions struck the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights, or whether it imposed a disproportionate and excessive burden on the applicants.

38.  Regard being had to the particular circumstances of the present case, the Court considers that the repossession of the rooms by the municipal authorities constituted a disproportionate burden on the applicants.

39.  Firstly, the Court notes that, as established by national courts, the applicants bought the rooms in good faith. The validity of their title, as well as that of the title of the previous owners of the rooms was verified and approved by the state registration authorities. In this connection, the Court reiterates that the mistakes or errors of the State authorities should serve to the benefit of the persons affected, especially where no other conflicting private interest is at stake. In other words, the risk of any mistake made by the State authority must be borne by the State and the errors must not be remedied at the expense of the individual concerned (see Gladysheva, cited above, § 80).

40.  The Court also notes it was the municipality that approved the first transfer of title to the dormitory from the State to a private company in 1993. The Government have not furnished any explanation as to how it was possible, despite the pressing public interest of catering for the needs of those on the waiting list for social housing, to re-classify the dormitory as an administrative building and to transfer it to a private company. Nor have the Government elaborated why it took the municipal authorities almost nine years to annul the privatisation plan and to reclaim the title to the dormitory.

41.  Lastly, the Court notes that the applicants were deprived of ownership without compensation or provision of replacement premises from the State. As to the possibility for the applicants to mitigate their losses by way of bringing a civil action for damages against the sellers of the rooms, the Court accepts that this opportunity was open to them. Two of the applicants (application no. 45173/08) successfully obtained relevant judgments in their favour in 2011. The judgments, however, remain unenforced to date. Even assuming that, at some point, the judgments would be executed and the applicants would obtain the compensation, it is hard for the Court to see how that would improve the balance between the public interest and the need to protect individuals’ rights, as the applicants would pass their excessive individual burden on to another bona fide purchaser of the rooms (compare, Gladysheva, cited above, § 81).

42.  The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the property was recovered from the applicants imposed an individual and excessive burden on them and that the authorities failed to strike a fair balance between the demands of the public interest on the one hand and the applicants’ right to peaceful enjoyment of their possessions on the other.

43.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

44.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

45.  The applicants’ claims in respect of pecuniary and non-pecuniary damage are summarised in the table below:

 

Application no.	Claim in respect of pecuniary damage	Claim in respect of non-pecuniary damage
20578/08	Restoration of the applicant’s title to the property	10,000 euros (EUR)
21159/08	900,000 roubles (RUB) in order to buy an equivalent property	None
22903/08	Restoration of the applicant’s title to the property	EUR 20,000
24519/08		EUR 30,000
24728/08		EUR 30,000
25084/08		EUR 30,000
25558/08		EUR 20,000
25559/08		EUR 30,000
27555/08		EUR 20,000
27568/08		EUR 20,000
28031/08		EUR 30,000
30511/08		EUR 30,000
31038/08		EUR 100,000
45120/08	EUR 30,000 in order to buy an equivalent property	EUR 100,000
45124/08	Restoration of the applicant’s title to the property	EUR 30,000
45131/08		EUR 50,000
45133/08		EUR 30,000
45141/08		EUR 60,000
45167/08		EUR 10,000
45173/08	RUB 600,000 to each of the applicant	EUR 40,000

46.  The Government submitted that the claims lodged by Mr Andriyevsky (application no. 21159/08) and Ms Anisimova (application no. 45120/08) were excessive. They also asserted that the rest of the applicants were not entitled to restoration of their title to the property.

47.  The Court takes into account that the fact that it has found a violation of the applicants’ rights as guaranteed by Article 1 of Protocol No. 1 to the Convention in the present case. It considers that there is a clear link between the violation found and the damage caused to the applicants.

1.  Pecuniary damage

48.  As regards compensation of pecuniary damage, the Court reiterates that normally, the priority under Article 41 of the Convention is restitutio in integrum, as the respondent State is expected to make all feasible reparation for the consequences of the violation, in such a manner as to restore as far as possible the situation existing before the breach (see, among other authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85; Tchitchinadze v. Georgia, no. 18156/05, § 69, 27 May 2010; Fener Rum Patrikliği (Ecumenical Patriarchy) v. Turkey (just satisfaction), no. 14340/05, § 35, 15 June 2010; and Stoycheva v. Bulgaria, no. 43590/04, 19 July 2011).

49.  The Court observes that all the applicants, except for Mr Andriyevskiy (application no. 21159/08), Ms Anisimova (application no. 45120/08) and Ms Vasyukhina and Mr Vasyukhin (application (no. 45173/08) asked for the restoration of the title to the rooms. Having regard to its findings and the fact that the applicants are still living in the premises, the Court considers that the most appropriate form of redress would be the restoration of the applicants’ title to the rooms. Thus, as far as possible, the applicants would be put in a situation equivalent to the one in which they would have been had there not been a breach of Article 1 of Protocol No. 1 to the Convention (compare Gladysheva, cited above, § 106).

50.  The Court considers that the same finding holds true in respect of Mr Andrievskiy and Ms Anisimova, who asked for certain sums to be paid so that they could buy comparable housing for themselves (compare, Gladysheva, ibid., in which the Court decided that the applicant would be put as far as possible in a situation equivalent to the one in which she would have been had there not been a breach of her rights, even though the applicant asked for a pecuniary award).

51.  As to Ms Vasyukhina and Mr Vasyukhin (application no. 45173/08), The Court is considers that the question of the application of Article 41, in so far as it concerns pecuniary damage, is not ready for a decision (Rule 75 § 1 of the Rules of Court). Accordingly, it reserves that question and the further procedure, and invites the Government and the applicants, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, to submit their observations on the matter and, in particular, to inform it of any agreement that they may reach.

2.  Non-pecuniary damage

52.  The Court further notes that Mr Andriyevskiy (application no. 21159/08) did not submit a claim in respect of non-pecuniary damage. Accordingly, the Court considers that there is no call to award him any sum on that account.

53.  As regards the remaining parts of the applications, the Court has no doubt that the applicants have suffered distress and frustration on account of being deprived of their possessions. Making its assessment on an equitable basis, the Court awards EUR 5,000 in each application in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

54.  Mr Andriyevskiy (application no. 21159/08) and Ms Kobina (application no. 2555/08) did not submit claims for costs and expenses. Accordingly, the Court considers that there is no call to award them any sum on that account.

55.  Ms Anisimova (application no. 45120/08) claimed RUB 8,009.40 and RUB 4,000 in respect of the legal costs and expenses incurred in the proceedings before the domestic courts and the Court respectively. She further claimed postal expenses (RUB 509.40), translation costs (RUB 3,000), and the costs of issuing a certificate relating to her eyesight (RUB 500).

56.  The remaining applicants claimed EUR 16,800 in respect of their joint legal costs and expenses incurred in the proceedings before the Court. According to the documents submitted, their representatives spent over 156 hours working on the case.

57.  Ms Russkova (application no. 45141/08) and Mr Bolshakov (application no. 45167/08) also claimed compensation for postal expenses in the amount of RUB 2,470 and RUB 1,715 respectively.

58.  Lastly, Threefold Legal Advisors claimed EUR 328 for proofreading their memorandum and RUB 3,010 for postal expenses incurred in posting the applicant’s authority forms.

59.  The Government submitted that the expenses incurred by Ms Anisimova in obtaining a medical certificate had no link to her application before the Court. Nor should she be entitled to the reimbursement of her legal expenses relating to the proceedings before the Court, since she had entered into a contingency agreement with her lawyer, and such an agreement was null and void under Russian law. The Government also submitted that the legal fee paid by the applicants to Threefold Legal Advisors was excessive and unnecessary.

60.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in the Court’s possession and the above criteria, the Court considers it reasonable to award the applicants the following sums in respect of their claims for costs and expenses:

Application no.	Amount awarded
20578/08	EUR 280
22903/08	EUR 280
24519/08	EUR 280
24728/08	EUR 280
25084/08	EUR 280
25559/08	EUR 280
27555/08	EUR 280
27568/08	EUR 280
28031/08	EUR 280
30511/08	EUR 280
31038/08	EUR 280
45120/08	EUR 310
45124/08	EUR 280
45131/08	EUR 280
45133/08	EUR 280
45141/08	EUR 330
45167/08	EUR 315
45173/08	EUR 280

C.  Default interest

61.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

 

2.  Declares the complaints under Article 1 of Protocol No. 1 to the Convention admissible;

 

3.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

 

4.  Holds in respect of application no. 45173/08, that the question of the application of Article 41, in so far as it concerns the claim for pecuniary damages, is not ready for decision;

accordingly,

(a)  reserves the said question;

(b)  invites the Government and the applicants to submit, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and to notify the Court of any agreement that they may reach;

(c)  reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be;

 

5.  Holds in respect of the remainder of the applications, that the respondent State shall ensure, by appropriate means, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, full restoration of the applicants’ title to the rooms in the building;

 

6.  Holds

(a)  that the respondent State is to pay the applicants in each application, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the amounts indicated in Appendix II, plus any tax that may be chargeable to the applicants;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

7.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 1 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                 Luis López Guerra
       Registrar                                                                              President

 




APPENDIX I

Details of the applications

 

No.	Application no.	Lodged on	Applicant name date of birth place of residence	Description of the real property	Date of the registration of the applicants’ titles to the real property	Representative
1.	20578/08	06/08/2008	Valentina Stepanovna TOMINA 05/11/1949	Rooms nos. 22, 23, 60 and 31, 5th floor, measuring 22.6 sq.m	3 November 2006	Threefold Legal Advisors
2.	21159/08	09/04/2008	Yuriy Anatolyevich ANDRIYEVSKIY 09/01/1968	Room no. 4, 4th floor, measuring 18.50 sq. m; room no. 5, 4th floor, measuring 18.50 sq. m; room no. 1, 10th floor, measuring 36.60 sq. m; room no. 20, measuring 16.10 sq. m; and room no. 23, measuring 10.80 sq. m	16 January 2004 and 2 October 2007; The applicant did not submit a copy of the title deed in respect of rooms nos. 20 and 23.	A. Akhmedov
3.	22903/08	10/04/2008	Svetlana Aleksandrovna MARAKHTANOVA 01/09/1974	Room no. 21, 4th floor, measuring 12.20 sq. m	13 September 2002	Threefold Legal Advisors
4.	24519/08	08/04/2008	Eleonora Valeryevna ASTAPOVA 25/02/1972	Room nos. 1, 2, 3 and 38, 4th floor, measuring 22.60 sq. m	6 May 2003
5.	24728/08	24/04/2008	Sergey Aleksandrovich DESHIN 20/01/1976	Room no. 14, 1st floor, measuring 20.80 sq. m	10 July 2001
6.	25084/08	12/04/2008	Vladimir Sergeyevich PRIKOLOTIN 07/05/1972	Rooms nos. 12, 63 and 64, 3rd floor, measuring 18.20 sq. m	19 July 2007
7.	25558/08	10/04/2008	Anna Aleksandrovna KOBINA 14/02/1976	Room no. 22, 4th floor, measuring 12.20 sq. m	13 September 2002
8.	25559/08	10/04/2008	Olga Valeryevna LITVINOVA 11/09/1971	Rooms nos. 30, 31, 70 and 71, 3rd floor, measuring 25.30 sq. m	27 November 2006	Threefold Legal Advisors
9.	27555/08	24/04/2008	Aleksandr Vyacheslavovich KRIVKO 30/04/1953	Rooms nos. 20-22, 2nd floor, measuring 40.70 sq. m; Room no. 49, 2nd floor, measuring 10.20 sq. m; and Room no. 50, 2nd floor, measuring 6.80 sq. m	28 April and 23 August 2001
10.	27568/08	24/04/2008	Andrey Leonidovich MEDVEDEV 30/04/1953	Room no. 49, 2nd floor, measuring 10.20 sq. m	28 April 2001
11.	28031/08	10/04/2008	Pavel Ivanovich SISIGIN 04/11/1977	Room no. 34, 5th floor, measuring 13.10 sq. m (12.50 sq. m according to the judgment of 14-19 November 2007)	28 November 2002
12.	30511/08	10/04/2008	Vyacheslav Viktorovich DITKIN 08/12/1959	Room no. 20, 5th floor, measuring 15.50 sq. m	26 March 2003
13.	31038/08	17/04/2008	Irina Borisovna MAZUR 09/06/1958	Rooms nos. 11 and 44, 1st floor, measuring 35.40 sq. m; room no. 30, 1st floor, measuring 9.0 sq. m; and rooms nos. 32, 34, 35 and 42, 1st floor, measuring 92.10 sq. m	10 April 2003
14.	45120/08	21/06/2008	Svetlana Ipolitovna ANISIMOVA 06/12/1960	Room no. 8, 4th floor, measuring 18.40 sq. m	24 April 2007	Mr V. Linevich
15.	45124/08	08/05/2008	Natalya Vladimirovna STROKINA 04/06/1964	Room no. 20, 3rd floor, measuring 16.40 sq. m	20 March 2003	Threefold Legal Advisors
16.	45131/08	18/04/2008	Yelena Vasilyevna SHITOVA 23/11/1955	Room no. 15, 5th floor, measuring 23.60 sq. m	19 November 2002
17.	45133/08	15/04/2008	Irina Petrovna SIROTA (FEDOROVA) 29/07/1980	Room no. 14, 2nd floor, measuring 18.00 sq. m	12 December 2005
18.	45141/08	28/04/2008	Vera Nikolayevna RUSSKOVA 22/01/1964	Rooms nos. 47 and 48, 1st floor, measuring 37.10 sq. m	7 October 2003
19.	45167/08	19/05/2008	Gennadiy Sergeyevich BOLSHAKOV 26/07/1953	Room no. 30, 2nd floor, measuring 13.10 sq. m; and room no. 31, 2nd floor, measuring 13.10 sq. m	25 July 2001
20.	45173/08	28/04/2008	Vitaliy Aleksandrovich VASYUKHIN 11/05/1995 Darya Aleksandrovna VASYUKHINA 18/08/2006 Samara	First applicant: room no. 29, 1st floor, measuring 12.80 sq. m, Second applicant: room no. 28, 3rd floor, measuring 12.90 sq. m	First applicant: 1 October 2007 Second applicant: 2 October 2007




APPENDIX II

Awards made by the Court under Article 41 of the Convention

 

 

 

	Application number and name of the applicant receiving the award	Non-pecuniary damage	Costs and expenses
1	20578/08 Tomina	EUR 5,000	EUR 280
2	21159/08 Andrievskiy	None	None
3	22903/08 Marakhtanova	EUR 5000	EUR 280
4	24519/08 Astapova	EUR 5,000	EUR 280
5	24728/08 Deshin	EUR 5,000	EUR 280
6	25084/08 Prikolotin	EUR 5,000	EUR 280
7	25558/08 Kobina	EUR 5,000	None
8	25559/08 Litvinova	EUR 5,000	EUR 280
9	27555/08 Krivko	EUR 5,000	EUR 280
10	27568/08 Medvedev	EUR 5,000	EUR 280
11	28031/08 Sisigin	EUR 5,000	EUR 280
12	30511/08 Ditkin	EUR 5,000	EUR 280
13	31038/08 Mazur	EUR 5,000	EUR 280
14	45120/08 Anisimova	EUR 5,000	EUR 310
15	45124/08 Strokina	EUR 5,000	EUR 280
16	45131/08 Shitova	EUR 5,000	EUR 280
17	45133/08 Sirota (Fedorova)	EUR 5,000	EUR 280
18	45141/08 Russkova	EUR 5,000	EUR 330
19	45167/08 Bolshakov	EUR 5,000	EUR 315
20	45173/08 Vitaliy Vasyukhin Darya Vasyukhina	EUR 5,000 EUR 5,000	EUR 280