FAKHRUTDINOVA v. RUSSIA - 5799/13 (Judgment : Article 1 of Protocol No. 1 - Protection of property : Third Section Committee) [2018] ECHR 812 (09 October 2018)

THIRD SECTION

CASE OF FAKHRUTDINOVA v. RUSSIA

(Application no. 5799/13)

JUDGMENT

STRASBOURG

9 October 2018

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

In the case of Fakhrutdinova v. Russia,

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

Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 18 September 2018,

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

PROCEDURE

1. The case originated in an application (no. 5799/13) 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 a Russian national, Ms Nailya Maratovna Fakhrutdinova ("the applicant"), on 24 December 2012.

2. The applicant was represented by Mr G. Zubovskiy and Ms O. Pershina, lawyers practising in Moscow and Oryol respectively. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, former 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 complaint concerning the loss of title to the plot of land 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

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1974 and lives in Kazan.

A. Background information concerning the ownership of the plot of land

5. In 1969 the Shumelka river in Tveretinovka, Republic of Tatarstan, was dammed and an artificial lake was created.

6. The original owner of the plot of land that contained the lake was a State fur farm.

7. In 2003 the fur farm sold the plot of land and the lake to a private limited liability company through a public sale by tender. The new owner's title to the plot of land was registered in the State land register.

8. On 5 May 2008 the company sold the land to the applicant through a public sale by tender. The applicant's title to the plot of land was registered in the State land register and on 28 June 2008 the applicant was issued with the relevant certificate.

9. On 18 October 2011, following bankruptcy proceedings, the limited liability company was de-registered as a legal entity.

B. Litigation concerning the plot of land

10. On 29 March 2012 the regional agency for management of State property brought a civil action against the applicant, seeking to reclaim the plot of land and the lake.

11. On 5 May 2012 the Pestrechinskiy District Court of the Republic of Tatarstan granted the claims in full. The Court noted that, pursuant to the applicable legislation, the lake could not be owned by a private entity or a person and should be returned to the State. The court further noted that the public sale by tender in 2008 had been conducted in contravention of certain regulations (in particular, the announcement concerning the sale had not been published in the newspapers indicated in the State-approved list) and refused to apply the three-year statute of limitations to the agency's claims.

12. On 5 July 2012 the Supreme Court of the Republic of Tatarstan quashed the judgment of 5 May 2012 on appeal and rejected the claims in full. The court considered that the District Court had erred in the interpretation of the applicable legislation and that the plot of land with the lake could be owned by a private party. It further noted that, in any event, the agency's claim should be dismissed for its failure to bring its action within the three-year time-limit. In this connection the court referred to the fact that (1) the State had been aware that the contested property had left its possession back in 2003 when the plot of land had been sold by the State farm to a private company and the new owner's title to the property had been registered in the State land register and (2) the State had been aware that the applicant had owned the plot of land since 2008 when the applicant's title to the property had been registered in the State land register. The agency appealed.

13. On 14 September 2012 the Supreme Court referred the matter for a review of points of law.

14. On 10 October 2012 the Presidium of the Supreme Court quashed the appeal judgement of 5 July 2012 and upheld the judgment of 5 May 2008, by way of a points-of-law review. It rejected the applicant's request to apply the statute of limitations, considering that the agency had learnt about the infringement of the State's rights in respect of the plot of land only in 2012 after receiving a letter from the Federal Water Resources Agency ( Федеральное агентство водных ресурсов России ).

15. On 22 February 2013 the plot of land was registered as federal property in the State land register.

C. Litigation concerning the fine imposed on the applicant

16. On an unspecified date the applicant challenged the imposition of a fine on her in 2011 as the owner of the plot of land. She claimed that she had not been the owner of the plot of land.

17. On 19 April 2013 the Vakhitovskiy District Court of Kazan dismissed the applicant's claims. It noted that the applicant had been the owner of the plot of land in 2011 and that the parties had not furnished any evidence to the contrary.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Compulsory purchase or transfer of property to the State

18 . Pursuant to the Civil Code of the Russian Federation (Article 238 §§ 1 and 2), if a person lawfully acquired property which, as a matter of law, cannot be in his or her possession, such a person should dispose of the property within one year of its acquisition. Upon expiration of the said period, the State may apply to the court for compulsory purchase of the property. In such a case the former owner of the property is eligible for compensation in the amount determined by the court.

B. Statute of limitations

19. Pursuant to Ruling No. 10/22adopted by the Plenary of the Supreme and Commercial Courts of the Russian Federation dated 29 April 2010, the three-year time-limit for claims challenging the registered title to real property should be calculated from the date when the plaintiff learnt or should have learnt of the relevant entry in the State land register. An entry should not be construed, however, as sufficient to prove that the person has learnt or should have learnt that his or her property right had been infringed.

THE LAW

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

20. The applicant complained that she had been deprived of the title to real 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."

A. Admissibility

1. The parties' submissions

21. The Government submitted that the applicant had not appealed against the judgments of 5 July and 10 October 2012 and that her complaint should be dismissed for her failure to exhaust effective domestic remedies. It had also been open to the applicant to bring an action for damages against the company which had sold the plot of land to her. The Government further argued that the applicant had abused her right of petition. They submitted that the applicant had claimed in a set of unrelated proceedings that she had not been the owner of the impugned property, which was information she had concealed from the Court.

22. The applicant considered the Government's arguments unsubstantiated. She pointed out that she had introduced her application prior to the Court's decision in which it had recognised the new appeal system in Russia as an effective remedy to be exhausted prior to lodging the application with the Court. She further argued that it had been impossible for her to sue the seller of the plot of land for damages given that it had ceased to exist in 2011.

2. Court's assessment

(a) Exhaustion of domestic remedies

23. As regards the Government's argument that the applicant should have appealed against the judgment in her favour, the Court finds it without merit. As to their assertion that the applicant had failed to make use of the second appeal on points of law to the Supreme Court of Russia, the Court reiterates that it has consistently rejected similar objections by the Russian Government in many cases in which the applicants had lodged their applications prior to the delivery of the Court's decision in the case of Abramyan and others (see Abramyan and others v. Russia (dec.), nos. 38951/13and 59611/13, §§ 76-96, 12 May 2015), where it recognised the recently reformed two-tier appeal-on-points-of-law procedure as an effective remedy (see, for example, Novruk and Others v. Russia , nos. 31039/11and 4 others, §§ 70-76, 15 March 2016; Kocherov and Sergeyeva v. Russia , no. 16899/13, §§ 64-69, 29 March 2016; and McIlwrath v. Russia , no. 60393/13, §§ 85-95, 18 July 2017).

24. The Court does not see any reason to reach a different conclusion in the present case. The applicant lodged her application with the Court on 24 December 2012, that is to say before the Court delivered the decision in the case of Abramyan and others, cited above. She could no longer avail herself of the remedy in question, as the time-limit for using it has expired.

25. As regards the Government's argument that the applicant should have brought an action for damages against the seller of the property, the Court reiterates that such an action cannot be regarded as necessary for compliance with the rule of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention in the circumstances where the owner of the property was deprived of a title to it by a final and enforceable judgment and there was no further recourse that might potentially lead to the reinstatement of the title (see, for example, Gladysheva v. Russia , no. 7097/10, §§ 60-62, 6 December 2011).

(b) Alleged abuse of petition

26. As regards the Government's argument that the applicant was not the owner of the plot of land, a fact she had failed to disclose to the Strasbourg Court, the Court observes that the issue as to the ownership of the plot of land at the relevant time was examined by the national judicial authorities, which established that the applicant held the title to the property in question.

27. In view of the above, the Court rejects the Government's objections as to the non-exhaustion of domestic remedies or abuse of petition. It 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. Parties' submissions

28. The applicant maintained her complaint. She had bought the plot of land in good faith and had been its lawful owner. The State had recovered the said property from her in the absence of a compelling public interest and without paying her compensation. Lastly, the applicant argued that the domestic courts should have applied the statute of limitations to dismiss the State's claims.

29. The Government considered that the State had recovered the plot of land from the applicant in strict compliance with the applicable national laws and the Convention provisions. According to the applicable domestic rules, it had not been possible for the artificial lake located on the plot of land to have been owned by a private party; it should have remained federal property. The applicant had bought the plot in bad faith from a private company that had not been authorised to sell it. In addition, when conducting the public sale by tender, the selling company had failed to comply with the statutory requirements as regards the public announcement of the sale. No such announcement had been made in the newspapers indicated on the approved list. As a result, the State had been unable to exercise its pre-emptive right to buy the land.

2. Court's assessment

(a) Existence of possessions within the meaning of Article 1 of Protocol No. 1

30. The Court accepts, and the Government have not argued to the contrary, that the plot of land constituted the applicant's possession for the purposes of Article 1 of Protocol No. 1 to the Convention and that the revocation of her title to it amounted to an interference with her rights set out in the said Article.

(b) Compliance with Article 1 of Protocol No. 1

31. Article 1 of Protocol No. 1 to the Convention comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia , to control the use of property in accordance with the general interest (see, among other authorities, Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).

32. The Court considers that the particular circumstances of the case prevent it from falling into any of the categories covered by the second sentence of the first paragraph or by the second paragraph of Article 1 of Protocol No. 1 (compare Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I) and will examine the facts complained of in the light of the general rule set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

33. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only "subject to the conditions provided for by law", while the second paragraph recognises that States have the right to control the use of property by enforcing laws (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). It also reiterates that its power to review compliance of impugned actions with national law is limited and it is not its task to take the place of the domestic courts. However, that does not dispense with the need for the Court to determine whether the interference in issue complied with the requirements of Article 1 of Protocol No. 1 ( Capital Bank AD v. Bulgaria , no. 49429/99, § 132, ECHR 2005-XII (extracts)).

34. Accordingly, the Court will examine whether the interference with the applicant's possessions was in accordance with law and will address the Government's argument that, as a matter of law, (1) the applicant should not have had the plot of land in her possession given that it had been possible for the lake located on the property to have been owned only by the State, and (2) the national courts rightfully recovered the plot of land from the applicant and transferred it to the State.

35. In this connection, the Court notes that the general rules governing the mandatory transfer of property which cannot be in private possession to the State are set out in Article 238 of the Civil Code of the Russian Federation. The relevant provisions stipulate that such property is subject to a compulsory purchase by the State, the price being determined by the courts (see paragraph 18 above).

36. In the present case, however, the applicant did not receive any compensation from the authorities who recovered the plot on the grounds that it could be owned only by the State. The judicial authorities considering the dispute did not furnish any explanation as to why the relevant civil-law provisions did not apply in the applicant's case or, alternatively, why the applicant did not have a right to access such compensation from the State.

37. As to the Government's argument that the applicant bought the plot of land in bad faith, the Court notes that it was referred to for the first time in the proceedings before the Court; the domestic courts did not mention it in their decisions. Accordingly, the Court finds it without merit.

38. The foregoing considerations are sufficient to enable the Court to conclude that the transfer of the plot of land owned by the applicant to the State was not in accordance with the domestic law and, therefore, was unlawful. There has been accordingly a violation of Article 1 of Protocol No. 1 to the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. 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."

40. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

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

Done in English, and notified in writing on 9 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Alena Poláčková
Deputy Registrar President