THIRD SECTION

CASE OF SHVIDKIYE v. RUSSIA

(Application no. 69820/10)

JUDGMENT

STRASBOURG

25 July 2017

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 Shvidkiye v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Helena Jäderblom, President,
	Branko Lubarda,
	Luis López Guerra,
	Helen Keller,
	Dmitry Dedov,
	Georgios A. Serghides,
	Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 July 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 69820/10) 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 Natalya Yevgenyevna Shvidkaya (“the first applicant”) and Ms Yelizaveta Alekseyevna Shvidkaya (“the second applicant”), on 4 November 2010.
2.  The applicants were represented by Mr S.A. Knyazkin, a lawyer practising in Moscow. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3.  The applicants alleged, in particular, that their right to respect for their home had been violated.
4.  On 21 September 2015 the complaint concerning the alleged violation of the applicants’ right to respect for their home was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
5.  The applicants were born in 1973 and 1996 respectively and live in Blagoveshchensk, Amurskaya Region. They are mother and daughter.
6.  At the material time the applicants lived in Blagoveshchensk.
7.  In the beginning of 2002 they moved to Moscow and decided to purchase a flat there. A certain B. proposed to help them in finding a flat.
8.  On 16 October 2002 the Housing Department of the City of Moscow signed a social tenancy agreement with a certain K. in respect of a two-room flat at 32-70-69, Prospekt Vernadskogo, Moscow.
9.  In October 2002 the first applicant bought a flat in Kaluga Region with the intention of exchanging it for a flat in Moscow.
10.  On 23 October 2002 K. applied to Moszhilservice (the Moscow State commercial agency) for authorisation to exchange his flat in Moscow, occupied under a social tenancy agreement, for the flat in Kaluga Region belonging to the first applicant.
11.  On 29 October 2002 the Committee for Exchange of Housing authorised the exchange of flats between K. and the first applicant.
12.  On 6 November 2002 the first applicant received an exchange voucher authorising her to move into the flat in Moscow. Later in November 2002 the applicants were registered as living in that flat. The applicants paid a sum of money to B.
13.  In 2004 criminal proceedings were instituted against B. on suspicion of fraud. The first applicant had been informed of those proceedings. However, she had not submitted any civil claims against B.
14.  On 12 December 2005 the Nikulinskiy District Court, Moscow, (“the District Court”) found B. guilty of fraud. The court established that B. had falsified a court judgment authorising the assignment of the flat at 32‑70-69, Prospekt Vernadskogo, Moscow to K. under the social tenancy agreement and then fraudulently arranged for the exchange of flats between K. and the first applicant against the payment by the latter of 1,177,773.40 Russian roubles (RUB). As a result of B.’s criminal actions, the property rights of the City of Moscow to the flat in question had been unlawfully transferred to the first applicant.
15.  On 6 March 2006 the Moscow City Court (“the City Court”) amended the judgment of 12 December 2005. In particular, the City Court held that as a result of B.’s actions the first applicant had been registered as occupying the flat in question and had acquired the right to become its owner by way of privatisation. However, the first applicant had not had sufficient time to acquire property rights to the flat by way of privatisation and the flat had not been taken from the ownership of the City of Moscow. Therefore, B.’s actions had to be reclassified as attempted fraud.
16.  In October 2008 the Housing Department of the City of Moscow brought court proceedings against the first applicant and K. The Housing department claimed, with reference to the judgment of 12 December 2005, that all transactions involving the flat at 32-70-69, Prospekt Vernadskogo, Moscow had been unlawful and therefore had to be declared null and void, and the applicants had to be evicted from that flat.
17.  In April 2009 the first applicant brought a counterclaim against the Housing Department on her own behalf and also on behalf of the second applicant, who was a minor at that time. She submitted that she could not have known that K. had secured the social tenancy agreement on the basis of forged documents; the exchange of flats between her and K. had been verified and approved by all competent State authorities, and therefore she had to be considered as a bona fide user of the flat. The first applicant also claimed that the court action of the City of Moscow had been time-barred.
18.  On 6 October 2009 the District Court invalidated the social tenancy agreement concluded with K., the exchange of the flats between K. and the first applicant and the exchange voucher of 6 November 2002, and ordered the applicants’ eviction. The District Court held as follows:
“...Taking into account that [K.] had not acquired the right to use the dwelling in question, he therefore could not exchange it, and [the first applicant] could not receive the exchange voucher and move into the dwelling in question. The court declares the transactions null and void in accordance with Article 168 of the [Civil Code] since they are incompatible with the requirements of Articles 50, 51, 53, 54, 67-74 of the Housing Code.
The court, pursuant to Article 167 of the Civil Code returns the parties to their previous positions. Taking into account that flat no. 3-1-a in the village of Novoslobodsk, Duminichskiy district, Kaluga Region, cannot be returned to [the applicant] since it has been subject to several transactions and its value amounts to RUB 732,000, the court orders [K.] to pay RUB 732,000 in favour of Shvidkaya Natalya Yevgenyevna [the first applicant] ...”
19.  The first applicant appealed. In her appeal she submitted that the City of Moscow had not lost its property rights to the flat and, having regard to her status as a bona fide user, the District Court had found no grounds for granting the eviction claims. The first applicant also submitted that she had been living in the flat for seven years together with her minor daughter, had been paying charges for it and had carried out maintenance therein. Lastly, she pointed out that the District Court had not invited the custody agency to give its opinion as regards the eviction of her minor daughter from the flat.
20.  On 6 May 2010 the City Court upheld the judgment of 6 October 2009 on appeal.
21.  In 2014 the applicants returned to Blagoveshchensk.
22.  On 9 February 2015 the applicants applied to the Nikulinskiy District Court of Moscow, requesting that a duplicate of the writ of execution in respect of the judgment of 6 October 2009 be issued.
23.  On 21 April 2015 the applicants received the writ of execution.
24.  On 26 June 2015 the bailiff’s office instituted enforcement proceedings in order to recover from K. the amounts awarded in the judgment of 6 October 2009 in favour of the first applicant.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
25.  The applicants complained under Article 8 of the Convention of a violation of their right to respect for their home. Article 8 of the Convention 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.”
Section 2.01	A.  Admissibility
26.  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 2.02	B.  Merits
27.  The Government submitted that there had been no violation of Article 8 of the Convention. The eviction order had been in accordance with the law, it had pursued a legitimate aim and had been necessary for the protection of the rights of other individuals.
28.  The applicants submitted that the domestic courts had not carried out any analyses as to the proportionality of their eviction.
29.  The Court notes that the applicants had already lived in the flat in question for almost seven years when their eviction was ordered. Therefore, that flat was their “home” for the purposes of Article 8 of the Convention.
30.  It was not disputed by the Government that the eviction order of 6 October 2009, as upheld on 6 May 2010, had amounted to an interference with the applicants’ right to respect for their home, as guaranteed by Article 8 of the Convention. The Court accepts that the interference had a legal basis in domestic law and pursued the legitimate aim of protecting the City of Moscow (as the owner of the flat) and the rights of individuals in need of housing. The central question in this case is, therefore, whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”.
31.  The Court set out the relevant principles in assessing the necessity of an interference with the right to “home” in the case of Connors v. the United Kingdom, (no. 66746/01, §§ 81-84, 27 May 2004), which concerned the eviction of a Roma family from a local-authority caravan site. Subsequently, in McCann v. the United Kingdom (no. 19009/04, § 50, ECHR 2008), the Court held that the reasoning in the case of Connors was not confined to cases involving the eviction of Roma or to cases where the applicant had sought to challenge the law itself rather than its application in his particular case, and further held as follows:
“The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.”
32.  In the present case the applicants raised the issue of their right to respect for their home before the domestic courts and presented arguments linked to the proportionality of their eviction (see paragraphs 17 and 19 above).
33.  The Government claimed that the interference with the applicants’ right to respect for their home had been necessary for the protection of rights of other individuals. They did not give any further details as regards those individuals. However, even assuming that those were the people on the waiting list for social housing, they were not sufficiently individualised to allow their personal circumstances to be balanced against those of the applicants. Therefore, the only interests that were at stake were those of the City of Moscow. However, the domestic courts did not weigh those interests against the applicants’ right to respect for their home. Once they had found that the transactions leading to the applicants acquiring the right to reside in the flat had been unlawful and had had to be annulled, they gave that aspect paramount importance, without seeking to weigh it against the applicants’ arguments. The national courts thus failed to balance the competing rights and therefore to determine the proportionality of the interference with the applicants’ right to respect for their home.
34.  The foregoing considerations are sufficient to enable the Court to conclude that the interference complained of was not “necessary in a democratic society”. There has accordingly been a violation of Article 8 of the Convention.
Article III.	II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
35.  Lastly, the Court has examined the other complaints submitted by the applicants. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
36.  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
37.  The applicants claimed 111,120 euros (EUR) in respect of pecuniary damage which represented the value of the flat in Moscow from which they had been evicted. Each applicant claimed EUR 30,000 in respect of non‑pecuniary damage.
38.  The Government contested the applicants’ claims for pecuniary damage on the grounds that the applicants had not been the owners of the flat in question and therefore could not claim the value of that property. The Government further submitted that the applicants’ claims for non-pecuniary damage had been excessive and unreasonable.
39.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards EUR 7,500 to the two applicants jointly in respect of non-pecuniary damage.
Section 4.02	B.  Costs and expenses
40.  The applicants also claimed the following amounts for costs and expenses:
(i) 1,005.83 Russian roubles (RUB) for postal expenses incurred in the domestic proceedings and the proceedings before the Court;
(ii) RUB 41,000 for the legal services of Ms Aibazova and Ms Muravyova, their counsel in the domestic proceedings and the proceedings before the Court;
(iii) RUB 4,600 for expert evaluation of the market value of the flat in Moscow;
(iv) EUR 10,500 for the legal services provided by Mr Knyazkin in the proceedings before the Court (a total of 105 hours of work) to be paid directly into the bank account of Mr Knyazkin.
41.  The Government contested those claims on the grounds that the applicants had not provided any contracts for legal services concluded with their representatives and failed to provide corresponding bills and invoices.
42.  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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads.
Section 4.03	C.  Default interest
43.  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.  Declares the complaint concerning the applicants’ right to respect for their home admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 8 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 7,500 (seven thousand five hundred euros) to the two applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 2,000 (two thousand euros) to the two applicants jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(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;

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

Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helena Jäderblom
	Deputy Registrar	President