THIRD SECTION

CASE OF LUNINA AND MUKHAMEDOVA v. RUSSIA

(Applications nos. 7359/14 and 69173/14)

JUDGMENT

STRASBOURG

13 June 2017

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

In the case of Lunina and Mukhamedova v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Luis López Guerra, President,
	Dmitry Dedov,
	Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 23 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in two applications (nos. 7359/14 and 69173/14) 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. Their details appear in Appendix below.
2.  The first applicant was represented by Mr Y. Mokhnatkin and the second applicant was represented by Ms A. Maralyan, lawyers practising in Moscow. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3.  On 3 September 2015 the complaints concerning the transfer of the ownership of the applicants’ flats to municipal authorities and their eviction were communicated to the Government and the remainder of application no. 69173/14 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicants were owners of flats in Moscow and Yekaterinburg. The municipal authorities reclaimed the flats, and the applicants’ title to the real property in question was annulled.
Section 1.01	A.  Application no. 7359/14
(a)	1.  Transactions with the flat later purchased by the applicant
5.  Ye. resided in the flat at 7-1-50 Ulitsa Burakova, Moscow, under a social housing agreement. On 12 December 2003 Ye. died.
6.  On 22 December 2003 an unidentified person using the documents in the name of A. (hereinafter referred to as “A.”) had the flat registered as her place of residence and moved into the flat. As it was later established by the police, A. submitted to the registration authorities a written consent for her registration in the flat allegedly signed by Ye. on 11 December 2003.
7.  On 28 August 2007 the Housing Department transferred the ownership of the flat to A. under the privatisation scheme. A.’s title to the flat was verified and registered by state authorities.
8.  On 10 October 2007 A. sold the flat to the applicant. The transaction and the applicant’s title to the flat were verified and registered by state authorities.
9.  According to the Government, the applicant did not move into the flat. She rented it to a third party.
(b)	2.  Annulment of the applicant’s title to the flat and eviction proceedings
10.  On 15 February 2010 the police opened a criminal investigation into the fraudulent acquisition of the flat by A. The Government did not inform of its outcome.
11.  On 16 May 2012 the Housing Department brought a civil claim seeking invalidation of all the transactions with the flat, transfer of the title to the flat to the City of Moscow, and the applicant’s eviction.
12.  On 19 December 2012 the Izmailovskiy District Court of Moscow granted the Housing Department’s claims in full. The court considered the housing and privatisation agreements to the benefit of A. to be null and void and reinstated the City’s title to the flat. The court also dismissed the applicant’s argument that she had bought a flat in good faith noting that the purchase price she had paid for the flat had been below the market value. Nor had she demostrated due care or diligence when buying the flat. She “had not shown any interest in the flat or persons who had it registered as their place of residence”. Lastly, the court ordered the applicant’s eviction. The applicant appealed.
13.  On 30 May 2013 the City Court upheld the judgment of 19 December 2012 on appeal.
14.  On 11 October 2013 the City Court rejected the applicant’s cassation appeal.
Section 1.02	B.  Application no. 69173/14
(a)	1.  Transactions with the flat later purchased by the applicant
15.  The flat at 10-94 Ulitsa Shchorsa, Yekaterinburg, was owned by the City of Yekaterinburg. T. resided there as a tenant under the social housing agreement with the city from 1966 until her death on 16 April 2009. On 5 May 2009 the municipal authorities were informed of her death and annulled her registration in the flat.
16.  On 7 May 2009 the city administration asked the police to carry out an inquiry as regards the persons residing in the flat. The police sealed off the flat. The Government did not inform of the outcome of the inquiry.
17.  On an unspecified date Tikh. applied to the state registration authorities for the registration of the sale of the flat by T. to her. According to the documents submitted with the application, on 5 June 1992 the title to the flat was transferred from the City of Yekaterinburg to T. under the privatisation scheme and on 16 January 1997 T. sold the flat to Tikh. The sale was verified and registered by the state authorities and the title to the flat was transferred to Tikh. on 5 February 2010.
18.  On 11 August 2010 Tikh. sold the flat to the applicant. The transaction was verified and registered by state authorities.
(b)	2.  Annulment of the applicant’s title to the flat and eviction proceedings
19.  On 26 November 2012 the city administration brought an action seeking the invalidation of all the transactions with the flat.
20.  On 19 December 2013 the Leninskiy District Court of Yekaterinburg invalidated the privatisation agreement and transferred the title to the City of Yekaterinburg. The court established that T. had not applied for the privatisation of the flat. Nor had she sold it to Tikh.
21.  On 19 March 2014 the Sverdlovsk Regional Court upheld the judgment of 19 December 2013 on appeal.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
22.  For a summary of the relevant domestic provisions and practice, see the case of Pchelintseva (Pchelintseva and Others v. Russia, nos. 47724/07, 58677/11, 2920/13, 3127/13 and 15320/13, §§ 60-71, 17 November 2016).
THE LAW
Article III.	I.  JOINDER OF THE APPLICATIONS
23.  The Court decides to join the applications, given their similar factual and legal background.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE I OF PROTOCOL No. 1 TO THE CONVENTION
24.  The applicants complained that they had been deprived of their property 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.”
25.  The Government contested that argument. They considered that the interference with the applicants’ property rights had been “in accordance with the law”, had pursued a legitimate aim and had been “necessary in a democratic society”. The municipal authorities had forfeited the flats as a result of fraudulent actions of unidentified perpetrators and, accordingly, had had a right to reclaim the flats from the applicants in order to re-assign them as social housing to people on low incomes. Accordingly, the municipalities had acted in the interests of those people. As regards application no. 7359/14, the Government also argued that the applicant had not shown that she had bought the flat in good faith. In particular, she had bought the flat for the price which had been below the flat’s market value.
26.  The applicants maintained their complaints. They considered that the interference with their property rights had been unlawful and disproportionate. The loss of the property in the absence of any compensation had placed an excessive burden on them. Ms Lunina (application no. 7359/14) submitted that, in her case, neither the domestic judicial authorities nor the Government had substantiated their argument that the purchase price she had paid for the flat had been below its market value.
Section 4.01	A.  Admissibility
27.  The Court notes that this 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.
Section 4.02	B.  Merits
(a)	1.  General principles
28.  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)	2.  Application of these principles to the present case
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 the applicants 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 of the property. The Court further reasoned that such restitution of property to the State or municipality, in the absence of any compensation paid to the 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 flats were no longer held by the municipalities 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 and why the authorities had failed to take necessary steps to prevent the fraudulent acquisition of the flats by the perpetrators. In this connection, the Court finds it striking that it took the City of Moscow over six years to institute a criminal investigation into A.’s fraudulent actions (application no. 7359/14). It is also a matter of concern for the Court that the state authorities condoned an unauthorized sale of the flat suspecting that it was subject to unlawful occupancy (application no. 69173/14).
31.  The Court further observes that there were safeguards in place to ensure that the flats changed hands in accordance with the domestic law. Each time they were sold it was encumbered on the registration authorities to verify the legitimacy of the transaction. The Government, however, did not proffer any explanation, as to why those safeguards had not been effective in detecting fraud and protecting the interests of the municipalities. In such circumstances, the Court considers that it was not for the applicants to assume the risk of the title to the property 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 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 flats by the applicants and the transfer of the ownership of the flats to the municipality, in the circumstances of the case, placed a disproportionate and excessive burden on them. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention.
Article V.	III.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
32.  The applicants complained that their eviction had amounted to a violation of the 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 applicants’ eviction had constituted an inference with their right 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. As regards Ms Lunina (application, no. 7359/14), the Government noted that she had not resided in the flat. Instead she had rented it to a third party and resided with her family in a different place.
34.  The applicants maintained their complaints. Ms Lunina (application, no. 7359/14) argued that the flat had belonged to her and, therefore, should be considered her home.
35.  As regards application no. 7359/14, the Court reiterates that whether or not a particular habitation constitutes a “home” for the purposes of Article 8 § 1 of the Convention will depend on the factual circumstances of the particular case, namely, the existence of sufficient and continuous links (see, among the leading authorities, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109). The Court discerns nothing in the applicant’s submissions for it to conclude that the applicant had sufficient links with the flat. The applicant did not contest that, as pointed out by the Government, she had not resided in the flat. The Court is, therefore, not satisfied that Ms Lunina can claim that the flat constituted her home within the meaning of Article 8 of the Convention. It follows that her complaint 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.
36.  As regards application no. 69173/14, the Court notes that the applicant’s complaint is linked to the one examined above and must therefore likewise be declared admissible. However, having regard to the findings relating to Article 1 of Protocol No. 1 to the Convention (see paragraphs 29-31 above), the Court considers that it is not necessary to examine the same facts from the standpoint of Article 8 of the Convention (see, mutatis mutandis, Akhverdiyev v. Azerbaijan, no. 76254/11, § 101-05, 29 January 2015).
Article VI.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
37.  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 6.01	A.  Damage
38.  Ms Lunina (application no. 7359/14) claimed 3,800,000 Russian roubles (RUB) in respect of pecuniary damage and 10,000 euros (EUR) in respect of non-pecuniary damage. Ms Mukhamedova (application no. 69173/14) claimed RUB 2,414,000 in respect of pecuniary damage and EUR 8,000 in respect of non-pecuniary damage.
39.  The Government considered the applicants’ claims for pecuniary damage unsubstantiated. They submitted that the claims for non-pecuniary damage were excessive and unreasonable. Lastly, they opined that the applicants’ rights had not been violated and no compensation should be awarded to them.
40.  The Court takes into account that in the present case it has found a violation of the applicants’ 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 them.
41.  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 applicants 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 applicants’ title to the flats and to annul the eviction orders. Thus, the applicants 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). In the alternative, if the State no longer own the flats, or if they have been otherwise alienated, the Government should ensure that the applicants receive equivalent flats.
42.  In addition, the Court has no doubt that the applicants have suffered distress and frustration on account of the deprivation of their possessions. Making its assessment on an equitable basis, the Court awards to each of the applicants EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
Section 6.02	B.  Costs and expenses
43.  Ms Lunina (application no. 7359/14) claimed RUB 150,000 for the costs and expenses incurred before the domestic courts and RUB 50,000 for those incurred before the Court. Ms Mukhamedova (application no. 69173/14) claimed RUB 285,000 for the costs and expenses incurred before the domestic courts and RUB 5,000 and EUR 3,200 for those incurred before the Court.
44.  The Government considered that the applicants’ claims 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 the applicants had not yet incurred those expenses and their claims should be dismissed.
45.  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 each of the applicant the sum of EUR 1,500 covering costs under all heads.
Section 6.03	C.  Default interest
46.  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 8 of the Convention lodged by Ms Mukhamedova (application no. 69173/14) and under Article 1 of Protocol No. 1 to the Convention lodged by the applicants admissible and the remainder of the applications inadmissible;

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

4.  Holds that there is no need to examine the complaint under Article 8 of the Convention;

5.  Holds
(a)  that the respondent State shall ensure, by appropriate means, full restitution of the applicants’ title to the flats and the annulment of the eviction orders;
(b)  that the respondent State is to pay to each of the applicants, 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 1,500 (one thousand five hundred 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;

6.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 13 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Luis López Guerra
	Deputy Registrar	President

APPENDIX
Details of the applications

No.	Application no.	Date of introduction	Applicants’ details
(date of birth, place of residence)
	
1.		7359/14	26/12/2013	Inna Anatolyevna LUNINA
19/07/1980
Moscow
	
2.		69173/14	13/10/2014	Olga Rafinadovna MUKHAMEDOVA
18/06/1982
Yekaterinburg