THIRD SECTION

CASE OF NIKOLAYEVY v. RUSSIA

(Application no. 49529/10)

JUDGMENT

STRASBOURG

6 June 2017

This judgment is final but it may be subject to editorial revision.

In the case of Nikolayevy v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 16 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 49529/10) 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”) by two Russian nationals, Ms Anastasiya Yuryevna Nikolayeva and Ms Tatyana Alekseyevna Nikolayeva (“the applicants”), on 11 August 2010.
2.  The applicants were represented by Ms L. Lazareva and Ms M. Samorodkina, lawyers practising 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, and then by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation to the Court.
3.  On 3 September 2015 the complaints concerning the transfer of the ownership of the first applicant’s flat to the City of Moscow and the applicants’ imminent eviction were communicated to the Government and the remainder of the complaints were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
4.  The Government objected to the examination of the application by the Committee. Having examined the Government’s objection, the Court rejects it.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
5.  The applicants were born on 18 September 1971 and 24 December 1994 respectively and live in Moscow.
Section 1.01	A.  Transactions with the flat later purchased by the applicant
6.  A two-roomed flat at 29-26 Ozernaya Ulitsa, Moscow, was owned by the city. G. and her son resided there as tenants under the social housing agreement with the city.
7.  On 16 November 2002 G. died. On 17 September 2003 the municipal authorities de-registered her tenancy.
8.  On 3 October 2003 G.’s son died. On an unspecified date the municipal authorities de-registered his tenancy.
9.  On an unspecified date A. submitted a forged copy of a court judgment to the Department of the Municipal Housing and Housing Policy (the “Housing Department”) recognising her right to reside in the flat and on 9 February 2005 the Housing Department entered into a social housing lease agreement with A. and her family.
10.  On 25 February 2005 the Housing Department transferred the title to the flat to A., her husband and her daughter under the privatisation scheme.
11.  On 15 December 2005 A. and her husband sold the flat to the applicant. On 29 December 2005 the city registration body issued a certificate confirming the first applicant’s title to the flat. The applicants moved into the flat and resided there.
Section 1.02	B.  Annulment of the first applicant’s title to the flat and eviction proceedings
12.  On an unspecified date the Housing Department obtained information that the court judgment submitted by A. might have been forged and on 15 December 2005 the housing authorities asked the prosecutor’s office to conduct a relevant inquiry.
13.  On 17 June 2006 the Nikulinskiy District Court of Moscow invalidated the social housing lease agreement of 9 February 2005 and the privatisation agreement of 25 February 2005.
14.  On an unspecified date the Housing Department brought an action against the applicants seeking the transfer of the flat to the city and the applicants’ eviction.
15.  On 9 October 2009 the District Court granted the Housing Department’s claims in full. The court 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 previous owner who had been deprived of the property against his or her will. The first applicant’s title to the flat was annulled and the title was transferred to the City of Moscow. The court also ordered the applicants’ eviction. The applicants appealed.
16.  On 25 February 2010 the City Court upheld the judgment of 9 October 2009 on appeal.
17.  On an unspecified date the bailiff instituted enforcement proceedings.
18.  On 12 March 2012 the District Court granted the applicant’s additional time to comply with the judgment of 9 October 2009. The applicants were required to vacate the flat by 1 August 2012. On 14 May 2012 the City Court upheld the said decision on appeal.
19.  The applicants continued to reside in the flat. On 14 August 2013 the Housing Department entered into a housing agreement with them in respect of the flat for a term of five years.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE I OF PROTOCOL. NO. 1 TO THE CONVENTION
20.  The applicants complained that they had been deprived of their flat in violation of Article 1 of Protocol No. 1 to the Convention, which provides, in so far as relevant, 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.”
21.  The Government contested that argument. They considered that the interference with the applicants’ property rights had been “in accordance with the law”. In their opinion, the City of Moscow had forfeited the ownership of the flat as a result of A.’s fraudulent actions and, accordingly, had had a right to reclaim the flat from the applicants even though the first applicant had bought it in a good faith. The Government also considered that such interference had pursued the legitimate aim. The City of Moscow was responsible for providing affordable housing to people on low incomes. Accordingly, the City had reclaimed the flat in the interests of those people. Lastly, the Government argued that the interference with the applicants’ rights could not be considered disproportionate given that the city had not recovered the flat from the applicants and the Housing Department had signed a lease with the applicants in respect of the flat.
22.  Relying on the Court’s findings in the case of Gladysheva (see Gladysheva v. Russia, no. 7097/10, 6 December 2011) the applicants maintained their complaints.
Section 2.01	A.  Admissibility
23.  The Court notes that it has to satisfy itself that it has jurisdiction in any case brought before it, and is therefore obliged to examine the question of its jurisdiction at every stage of the proceedings (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006‑III). Accordingly, even though the Government in their observations raised no plea of inadmissibility concerning lack of jurisdiction ratione materiae, the Court nevertheless has to examine, of its own motion, whether the applicants had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention and whether that Article is consequently applicable in the instant case (compare Štokalo and Others v. Croatia, no. 15233/05, § 44, 16 October 2008).
24.  In this connection the Court reiterates that the concept of “possessions” in the first paragraph of Article 1 of Protocol No. 1 to the Convention has an autonomous meaning which is not limited to the ownership of material goods and is independent from the formal classification in domestic law. In the same way as material goods, certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see, among the recent authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 171, ECHR 2012).
25.  Turning to the circumstances of the case the Court observes that the first applicant was the lawful owner of the flat later reclaimed by the State. The Court concludes that she enjoyed a property right in respect of the flat which constituted her “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention. The said provision is therefore applicable. The Court notes, accordingly that the complaint lodged by the first applicant 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.
26.  The situation is, however, different as regards the second applicant. She was not the owner of the flat and resided there only as a member of the owner’s family.
27.  The Court does not exclude a possibility that a person who has a right to use the housing without being its owner might have a proprietary right or interest, recognised under the domestic law, in respect of the housing, and such interest will constitute his or her “possession” attracting the protection of Article 1 of Protocol No. 1. However, as a general rule, the right to live in a particular property not owned by an applicant does not as such constitute a “possession” within the meaning of the said provision (see Durini v. Italy, no. 19217/91, Commission decision of 12 January 1994, Decisions and Reports (DR) 76B, pp. 76-79; H.F. v. Slovakia (dec.), no. 54797/00, 9 December 2003; Bunjevac v. Slovenia (dec.), no. 48775/09, 19 January 2006; Gaćeša v. Croatia (dec.), no. 43389/02, 1 April 2008; and Babenko v. Ukraine (dec.), no. 68726/10, 4 January 2012).
28.  The Court further notes that in their observations the applicants did not refer to any national law or factual information that would allow the Court to conclude that the second applicant’s occupancy right constituted a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see, by contrast, Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, § 78, 3 May 2012). Accordingly, the Court does not accept that the said Article is applicable in the second applicant’s case. It follows that the complaint lodged by him is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 §4.
Section 2.02	B.  Merits
29.  The Court has, on a number of previous occasions, examined cases in which the Russian State or municipal authorities, being the original owners of housing, have been successful in reclaiming it from bona fide owners once it had been established that one of the prior transactions in respect of such property had been fraudulent (see Gladysheva, cited above, §§ 77-83; Stolyarova v. Russia, no. 15711/13, §§ 47-51, 29 January 2015; Andrey Medvedev v. Russia, no. 75737/13, §§ 42-47, 13 September 2016; Kirillova v. Russia, no. 50775/13, §§ 33-40, 13 September 2016; and Anna Popova v. Russia, no. 59391/12, §§ 33-39, 4 October 2016). Having examined the specific conditions and procedures under which the State had alienated its assets to private individuals, the Court noted that they were within the State’s exclusive competence and held that the defects in those procedures resulting in the loss by the State of its real property should not have been remedied at the expense of bona fide owners. The Court further reasoned that such restitution of property to the State or municipality, in the absence of any compensation paid to the bona fide owner, imposed an individual and excessive burden on the latter and failed to strike a fair balance between the demands of the public interest on the one hand and the applicants’ right to the peaceful enjoyment of their possessions on the other.
30.  Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. The Court notes that the flat left the City’s “possession” as a result of the fraud committed by a third party. The Government’s submissions remain silent, however, as to when and how the fraud had been discovered.
31.  The Court further observes that there were safeguards in place to ensure that the flat changed hands in accordance with the domestic law. It was encumbered on the authorities to verify the legitimacy of each transaction with the flat. The Government, however, did not proffer any explanation, as to why those safeguards had not been effective in detecting fraud and protecting the City’s interests. In such circumstances, the Court considers that it was not for the applicant to assume the risk of the title to the flat being revoked on account of the said omissions on the part of the authorities in procedures specially designed to prevent fraud in real-property transactions. The Court reiterates that mistakes or errors on the part of State authorities should serve to benefit the persons affected. In other words, the consequences of any mistake made by a State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Stolyarova, cited above, § 49). The Court therefore concludes that the forfeiture of the title to the flat by the first applicant and the transfer of the ownership of the flat to the City of Moscow, in the circumstances of the case, placed a disproportionate and excessive burden on him. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
32.  The applicants complained that the order for their eviction had amounted to a violation of their right to respect for home. They relied on Article 8 of the Convention, which reads as follows:
“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.”
33.  The Government admitted that the national courts’ decisions to order the applicants’ eviction had constituted an inference with their rights set out in Article 8 of the Convention. They considered, however, that such interference had been lawful, had pursued the legitimate aim of protecting the rights of persons eligible to social housing and had been proportionate to that aim. They further pointed out that the eviction order had not been enforced and that the applicants continued to reside in the flat.
34.  The applicants maintained their complaint.
35.  Having regard to the developments in the case, the Court considers that there is no longer any justification for examining the merits of the applicants’ complaint, for the reasons set out below (compare Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 44, 7 December 2007).
36.  The Court reiterates that, under Article 37 § 1 (b) of the Convention, it may “at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved...”. To be able to conclude that this provision applies to the instant case, the Court must answer two questions in turn: firstly, it must ask whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy [GC] (striking out), no. 36732/97, § 42, 24 October 2002).
37.  As regard the first question, the Court notes that, as matters stand, the material facts complained of by the applicants have ceased to exist. The applicants do not face any real and imminent risk of eviction. The judgment ordering the applicants’ eviction has not been enforced and the City of Moscow has entered into a housing agreement with the applicants who continue to reside in the flat.
38.  As to the second question, the Court notes that from 1 August 2012, when the applicants were required to vacate the flat, to 14 August 2013, when the Moscow authorities decided to enter into a housing agreement with the applicants, the latter experienced insecurity and legal uncertainty as regards their housing situation. Nevertheless, the Court does not consider that this fact alone, in the circumstances of the case, makes the measures taken by the authorities to resolve the applicants’ housing problem inadequate. Regard being had to the circumstances of the case, the Court accepts that the authorities’ decision to regularise the applicants’ situation by entering into a housing agreement, constituted an adequate and sufficient remedy for their grievances.
39.  Having regard to the above considerations, the Court concludes that both conditions for the application of Article 37 § 1 (b) of the Convention are met in the instant case. The matter giving rise to this complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). The Court also considers that no particular reason relating to respect for human rights as defined in the Convention requires it to continue its examination of the application under Article 37 § 1 in fine.
40.  Accordingly, the complaint should be struck out of the Court’s list of cases.
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
41.  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.”
Section 4.01	A.  Damage
42.  The applicants claimed 6,600,000 Russian roubles (RUB) and 60,000 euros (EUR) in respect of pecuniary and non-pecuniary damage respectively.
43.  The Government considered the applicants’ claim for pecuniary damage unsubstantiated. They submitted that the claim for non-pecuniary damage was excessive and unreasonable. Lastly, they opined that the applicants’ rights were not violated and no compensation should be awarded to them.
44.  The Court takes into account that in the present case it has found a violation of the first applicant’s rights guaranteed by Article 1 of Protocol No. 1 to the Convention. It considers that there is a clear link between the violation found and the damage caused to the applicant.
45.  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, § 198; and Stoycheva v. Bulgaria, no. 43590/04, 19 July 2011). Consequently, having due regard to its findings in the instant case and to the fact that the first applicant did not receive compensation for loss of title to the flat in the domestic proceedings, the Court considers that the most appropriate form of redress would be to restore the first applicant’s title to the flat and to annul the eviction order. Thus, the applicant would be put as far as possible 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).
46.  In addition, the Court has no doubt that the first applicant has suffered distress and frustration on account of the deprivation of her property. Making its assessment on an equitable basis, the Court awards to the first applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
Section 4.02	B.  Costs and expenses
47.  The applicants also claimed RUB 446,000 for the costs and expenses incurred before the domestic courts and EUR 2,000 for those incurred before the Court.
48.  The Government considered that the applicant’s claim relating to the proceedings before the domestic courts should be dismissed as irrelevant. As for the claim relating to the proceedings before the Court, the Government argued that they applicant had not yet incurred those expenses and their claim should be dismissed.
49.  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 sum of EUR 3,000 covering costs under all heads.
Section 4.03	C.  Default interest
50.  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 strike the applicants’ complaint under Article 8 of the Convention out of its list;

2.  Declares the complaint under Article 1 of Protocol No. 1 by the first applicant admissible and the remainder of the application inadmissible;

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

4.  Holds
(a)  that the respondent State shall ensure, by appropriate means, full restitution of the first applicant’s title to the flat and the annulment of the eviction order;
(b)  that the respondent State is to pay to the first applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(c)  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;

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 6 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President