THIRD SECTION

CASE OF DZHANTAYEV AND YAKUBOVA v. RUSSIA

(Application no. 25675/15)

JUDGMENT

STRASBOURG

26 September 2017

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

In the case of Dzhantayev and Yakubova 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 5 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 25675/15) 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 Russian nationals, Mr Sharpudin Shakhrudinovich Dzhantayev and Ms Maret Abuyevna Yakubova (“the applicants”), on 6 May 2015.
2.  The applicants were represented by Mr I. Timishev, a lawyer practising in Nalchik. 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 28 August 2015 the complaints concerning the repossession of the applicants’ property by the municipal authorities and the applicants’ eviction were 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
4.  The applicants were born in 1975 and 1976 respectively and live in Grozny. They are husband and wife.
Section 1.01	A.  Transactions with the flat later purchased by the second applicant
5.  M. was the owner of a three-roomed flat at at 35-122, Ulitsa Starosunzhenskaya, Grozny, Chechen Republic.
6.  On 26 March 1996 M.’s husband sold the flat to A. The transaction and A.’s title to the flat were duly registered by the state authorities.
7.  On an unspecified date M. and her family moved from Grozny to the Krasnodar Region abandoning the flat. On 21 April 1998 they applied for the compensation for the loss of the flat resulting from the military conflict in Chechnya. On 22 December 2000 M. received the compensation.
8.  On 14 November 2008 the police refused to institute criminal proceedings against M.’s husband on the charges of fraud in respect of the flat as time-barred.
9.  On 24 March 2010 A. sold the flat to the second applicant. The transaction and the second applicant’s title to the flat were duly registered by the state authorities. The applicants moved into the flat and resided there.
Section 1.02	B.  Civil disputes concerning the title to the flat
(a)	1.  Action lodged by the Housing Department
10.  On an unspecified date the Housing Department of Grozny lodged a civil action against A. and the first applicant seeking the invalidation of the purchase of the flat by A. and claiming the title to the flat.
11.  On 7 December 2010 the District Court applied the statute of limitations to the claims lodged by the Housing Department and rejected them.
12.  On 1 February 2011 the Supreme Court of the Chechen Republic upheld the judgment of 7 December 2010 on appeal.
(b)	2.  Action lodged by the second applicant
13.  On 18 June 2010 the Leninskiy District Court of Grozniy granted the second applicant’s claim and removed the flat from the data base listing the flats in respect of which the former owners received compensation from the State.
14.  On 30 April 2013 the District Court re-opened the case in view of newly discovered circumstances concerning a third party’s right to the reside in the flat.
(c)	3.  Action lodged by Mur.
15.  On an unspecified date Mur. lodged a civil action seeking the applicants’ eviction. She claimed that in 1999 the municipal authorities had assigned the flat to her under the social housing agreement.
16.  On 28 June 2011 the District Court rejected Mur.’s claims. It also invalidated the assignment of the flat to Mur. under the social housing agreement.
17.  According to the Government, on 15 November the Supreme Court of the Chechen Republic quashed the judgment of 28 June 2011 on appeal and remitted the matter for fresh consideration.
(d)	4.  Joint consideration of the claims lodged by the second applicant and Mur.
18.  On 26 May 2014 the District Court considered the claims lodged by the second applicant and Mur. The court dismissed Mur.’s claims in full. It found that Mur. had failed to present any original document confirming the assignment of the flat to her under the social housing agreement. The court also invalidated the flat purchase agreements between (1) M.’s husband and A. and (2) the second applicant and A., recognised that the flat was the property of the Town of Grozniy and ordered the applicants’ eviction.
19.  On 11 November 2014 the Supreme Court of the Chechen Republic upheld the judgment of 26 May 2014 on appeal.
20.  According to the Government, the applicants were not evicted and continue to reside in the flat.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
21.  The applicants complained that they had been deprived of their property in contravention 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.”
22.  The Government contested that argument. While they acknowledged that the invalidation of the second applicant’s title to the flat had constituted an interference with her possessions, they considered that such interference had been in strict compliance with the requirements set forth in Article 1 of Protocol No. 1. It had been in accordance with law and pursued the legitimate aim of providing affordable housing to people on low incomes.
23.  The applicants maintained their complaint. They submitted that they had bought the flat in a good faith and that the municipality had had no right to recover it from them.
Section 2.01	A.  Admissibility
24.  The Court observes that the second applicant was the lawful owner of the flat. Accordingly, the Court is satisfied that the flat constituted her “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention. The said provision is therefore applicable.
25.  However, the Court is unable to draw a similar conclusion in respect of the first applicant. He was not the owner of the flat and resided there only as the member of the second applicant’s family. Nor did he refer in the observations to any national law or factual information that would allow the Court to conclude that his occupancy right constituted a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. It follows that the complaint lodged by the first applicant 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 (compare, Pchelintseva and Others v. Russia, nos. 47724/07 and 4 others, §§ 77-79, 17 November 2016).
26.  Regard being had to the above, the Court concludes that the complaint lodged by the second 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.
Section 2.02	B.  Merits
27.  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 v. Russia, no. 7097/10, §§ 77-83, 6 December 2011; 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; Anna Popova v. Russia, no. 59391/12, §§ 33-39, 4 October 2016; Alentseva v. Russia, no. 31788/06, §§ 55-77, 17 November 2016; Pchelintseva and Others, cited above, §§ 90-101, 17 November 2016; and Ponyayeva and Others v. Russia, no. 63508/11, §§ 45-57, 17 November 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 individuals’ right to the peaceful enjoyment of their possessions on the other.
28.  Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. The Court notes that the flat left the municipality’s “possession” as a result of the alleged fraud committed by a third party. The Court further observes that there were safeguards in place to ensure that the flat changed hands in accordance with the domestic law. The lawfulness of each transaction and title in respect of the flat were subject to control by registration authorities. The Government, however, did not proffer any explanation, as to why those safeguards had not been effective in detecting the fraud and protecting the municipality’s interests. In particular, neither the domestic judicial authorities nor the Government clarified how it had been possible for the authorities to approve the transfer of title to the flat to the second applicant while the flat was officially listed as the property for which the owners had received a compensation from the State and the latter was well aware of the fraudulent sale of the flat by M.’s husband. In such circumstances, the Court considers that it was not for the second 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 second applicant and the transfer of the ownership of the flat to the Town of Grozny, in the circumstances of the case, placed a disproportionate and excessive burden on her. 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
29.  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.”
30.  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. Lastly, the Government submitted that the flat had not been recovered by the municipality and the applicants continued to reside there.
31.  The applicants maintained their complaints.
32.  The Court notes that the applicants’ complaint about their eviction 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 27-28 above) and the fact that the eviction order has not been enforced to date and the applicants continue to reside in the flat, the Court considers that it is not necessary to examine the same facts from the standpoint of Article 8 of the Convention (compare Pchelintseva, cited above, §§ 102-05).
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
33.  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
34.  The applicants claimed 3,000,000 Russian roubles (RUB) and EUR 18,000 in respect of pecuniary and non-pecuniary damage respectively.
35.  The Government considered the applicants’ claims unsubstantiated and unreasonable.
36.  The Court takes into account that in the present case it has found a violation of the second 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.
37.  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 second 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 her title to the flat and to annul the eviction order. Thus, the second 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 Article 1 of Protocol No. 1 to the Convention (compare, Gladysheva, cited above, § 106).
38.  In addition, the Court has no doubt that the second applicant has suffered distress and frustration on account of the deprivation of property. Making its assessment on an equitable basis, the Court awards to the second 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
39.  The applicants also claimed RUB 320,000 for the costs and expenses incurred before the Court. They requested that this amount should be paid directly into the bank account of their representative.
40.  The Government submitted that the applicants had failed to provide any document confirming that they had actually incurred the costs and expenses claimed. In any event, they considered the claims excessive.
41.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 850 covering for costs and expenses for the proceedings before the Court to be paid directly into the bank account of Mr I. Timishev.
Section 4.03	C.  Default interest
42.  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 lodged under Article 1 of Protocol No. 1 to the Convention by Ms Yakubova admissible and the complaint lodged under the same provision by Mr Dzhantayev inadmissible;

2.  Declares the complaint under Article 8 of the Convention admissible;

3.  Holds that there has been a violation of Article 1 of 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 second applicant’s title to the flat and the annulment of the eviction order;
(b)  that the respondent State is to pay to the second 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 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the second applicant, in respect of costs and expenses, to be paid directly into the bank account of Mr I. Timishev;
(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 26 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Luis López Guerra
	Deputy Registrar	President