Last Updated on September 22, 2021 by LawEuro
THIRD SECTION
DECISION
Application no. 30423/16
Aleksandr Nikolayevich DUBOVETS
against Russia
The European Court of Human Rights (Third Section), sitting on 5 March 2019 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 25 May 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Aleksandr Nikolayevich Dubovets, is a Russian national, who was born in 1955 and lives in Moscow. He was represented before the Court by Mr I. Vakhitov, a lawyer practising in Vniissok, Moscow Region.
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.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Transactions in respect of the flat later purchased by the applicant
On 28 April 2008 the applicant bought a flat located at 59-57 Ulitsa Udaltsova. On 29 May 2008 the City Registration Committee registered the transaction and issued the relevant deed, confirming the applicant’s title to the flat. The applicant and his daughter moved in and resided in the flat. In 2011 the applicant’s daughter gave birth to a boy who resided in the flat with the applicant and his daughter.
2. Criminal proceedings concerning the fraudulent acquisition of the flat by V.S.
On an unspecified date the authorities opened a criminal investigation concerning the fraudulent transactions in respect of the flat purchased by the applicant. It was established that B.S., the original owner of the flat, had died intestate and without heirs and that the documents submitted to the authorities to have V.S. recognised as B.S.’s heir had been forged.
On 10 June 2013 the Moscow City Court found T., F. and A. guilty of fraud in respect of the flat. On 5 November 2013 the judgment became final.
3. City’s claims in respect of the flat
On 5 November 2014 the Department for Housing of the City of Moscow (the “Housing Department”) brought an action against the applicant seeking, inter alia, (1) the annulment of the applicant’s title to the flat and his eviction; and (2) restitution of the flat to the City of Moscow.
On 26 May 2015 the Nikulinskiy District Court established that (1) B.S. had died intestate and without heirs; (2) that the flat was a bona vacantia and ordered its restitution to the City of Moscow. The court also ordered the applicant’s eviction.
The final decision on the matter was taken by the Supreme Court of the Russian Federation on 18 May 2016. The applicant and his family continued to reside in the flat.
On 22 June 2017 the Constitutional Court of the Russian Federation granted the applicant’s complaint. The court recognised that the civil-law provisions underlying the judgments in the applicant’s case were not compatible with the Constitution of the Russian Federation and ordered the revision of the judgments in his case.
On 7 September 2017 the District Court quashed the judgment of 26 May 2015 and re-opened the case.
On 3 October 2017 the District Court re-examined the Housing Department’s claims and dismissed them. The parties did not appeal and the judgment came into force on 11 November 2018.
COMPLAINTS
The applicant complained under Article 8 of the Convention and under Article 1 of Protocol No. 1 about the transfer of the title to his flat to the City of Moscow.
THE LAW
The applicant complained about the loss of the title to the flat. He relied on Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, which provide, in so far as relevant, as follows:
Article 8
“1. Everyone has the right to respect for … his home … .
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.”
Article 1 of Protocol No. 1
“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.”
The Government submitted that the applicant could no longer claim to be a victim of the alleged violations. The applicant and his family had not been de facto evicted from the flat and the judgments ordering the transfer of the title to the flat to the City of Moscow and the applicant’s eviction had been quashed. Following the delivery of a new judgment in the applicant’s failure, all his rights had been reinstated at the domestic level.
The applicant maintained his complaints. He considered that he could still claim to be a victim of the violations of the Convention.
The Court reiterates that under Article 34 of the Convention it may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention. A decision or measure favourable to an applicant is not, in principle, sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-80, ECHR 2006‑V).
Turning to the circumstances of the present case, the Court notes from the outset, that, as claimed by the Government and not contested by the applicant, the judgment ordering his eviction and restitution of the flat to the City of Moscow has never been enforced. The applicant continued to reside in the flat even after the final judgments on the matter was delivered in the City’s favour.
The Court further notes that, following the ruling of the Constitutional Court,the judgment in the applicant’s case was set aside and the City’s claims against the applicant were dismissed. The effect of the proceedings which formed the basis for the applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 has thus been annulled (compare, Varin and Others v. Russia (dec.), nos. 78544/13 and 46728/14, 28 March 2017). The Constitutional Court acknowledged a violation of the applicant’s rights and the District Court adopted a new judgment favourable to the applicant. In the circumstances of the case, the Court considers that such a redress was sufficient and adequate, having the effect of rendering the applicant “no longer a victim” of the alleged violation.
It follows that the application must be rejected in accordance with Article 35 §§ (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the applications inadmissible.
Done in English and notified in writing on 28 March 2019.
Fatoş Aracı Alena Poláčková
Deputy Registrar President
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