Last Updated on May 30, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 52226/14
Yevgeniy Aleksandrovich FEDOROV
against Russia
The European Court of Human Rights (Third Section), sitting on 4 September 2018 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
andStephen Phillips, Section Registrar,
Having regard to the above application lodged on 10 July 2014,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr YevgeniyAleksandrovichFedorov, is a Russian national, who was born in 1974 and lives in St Petersburg.
The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
The applicant complained under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention about the loss of title to the flat and eviction of his family.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Transactions with the flat later purchased by the applicant
Prior to its privatisation, the flat at 12-33, FonarnyyPereulok, St Petersburg, was owned by the City of St Petersburg. Brothers N.Sh. and L.Sh. resided there as tenants.
In 2005 L.Sh. was permanently placed in a psychiatric institution where he had resided since then. The psychiatric institution was registered as L.Sh.’s place of residence. On 13 April 2006 the Nevskiy District Court of St Petersburg decided to deprive L.Sh. of legal capacity.
On 26 May 2010 the City of St Petersburg and N.Sh signed a privatisation agreement which stipulated that N.Sh. acquired ownership of the flat. According to a notarised declaration signed by L.Sh. and submitted as part of the privatisation application package, L.Sh. chose not to participate in the privatisation of the flat in favour of his brother. The privatisation agreement and N.Sh.’s title to the flat were registered in the state register.
On 23 December 2010 N.Sh. sold the flat to N.N. The sale of the flat and N.N.’s title to the flat were registered in the state register.
On an unspecified date N.Sh. died.
On 18 May 2011 N.N. sold the flat to the applicant and his partner Ch. According to the agreement, the applicant became the owner of 2/3 of the flat and Ch. acquired 1/3 of the flat. The registration authorities registered the transaction and issued the relevant deed confirming the new owners’ title to the flat. The applicant and his family moved into the flat and resided there.
On an unspecified date the applicant married Ch.
2. Annulment of the applicant’s title to the flat
On an unspecified date the district prosecutor brought a civil action on behalf of L.Sh. seeking (1) invalidation of the privatisation agreement and subsequent transactions with the flat and (2) restoration of L.Sh.’s right to reside in the flat.
On 6 February 2013 the Oktyabrskiy District Court of St Petersburg established that the declaration submitted to the city authorities stating that L.Sh. chose not to participate in the privatisation of the flat had been forged. The court further reasoned that, in any event, L.Sh. had lacked legal capacity to sign such declaration and granted the prosecutor’s claims in full. The applicant appealed.
On 18 September 2013 the St Petersburg City Court delivered a new judgment on the matter. The City Court (1) invalidated the privatisation agreement and all the subsequent transactions with the flat, (2) annulled the applicant’s and his wife’s title to the flat and reinstated the City of St Petersburg’s ownership of the flat and (3) recognised L.Sh.’s right to reside in the flat.
On 16 January 2014 the City Court rejected the applicant’s cassation appeal.
On 8 May 2014 the Supreme Court of the Russian Federation refused to allow the applicant’s second cassation appeal.
3. Further developments
The judgments delivered in the applicant’s case were not enforced. Neither L.Sh. nor his legal guardian applied for the enforcement of the judgments in L.Sh.’s favour. At no time were the enforcement proceedings opened.
On an unspecified date N.Sh. died.
The applicant’s and his wife’s title to the flat was not annulled. Pursuant to the state real property register the applicant is indicated as the owner of the share in the flat to date.
B. Relevant domestic law and practice
Pursuant to the Federal Law on Enforcement Proceedings (No. 229-FZ) adopted on 2 October 2007 with further amendments, the bill of enforcement in respect of the judgment delivered by the court of general jurisdiction can be submitted for execution within three years after the said judgment becomes final (Article 21). In the absence of successors, the enforcement proceedings are discontinued upon the death of the creditor (Article 43).
THE LAW
A. Alleged violation of the Convention
The applicant complained about the loss of housing. 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 interference with the applicant’s possession had been in accordance with law, pursued a legitimate aim and had been proportionate and necessary in a democratic society. The applicant maintained his complaints.
The Court observes that, following the introduction of the application on 10 July 2014, there have been new factual developments in the present case. The judgment ordering the revocation of the applicant’s title to the impugned real property was not enforced. The time-limit for opening the enforcement proceedings expired and the person who had a right to have such proceedings instituted died, his right to social housing being non-transferrable or alienable. The applicant and his family continue to reside in the flat and he is registered as a lawful owner of his share in the flat.
The Court will therefore ascertain whether these new developments are such as to lead it to decide to strike the application out of its list of cases pursuant to Article 37of the Convention, which reads, in so far as relevant, as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
…
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
The Court reiterates that, in order to decide whether the application should be struck out of the list pursuant to Article 37 § 1 (c) of the Convention, it must consider whether the circumstances lead it to conclude that “for any other reason … it is no longer justified to continue the examination of [it]”. The Court further reiterates that it enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case (see Association SOS Attentats and de Boëry v. France (dec.) [GC], no. 76642/01, §§ 36-37, ECHR 2006-XIV).
Turning to the circumstances of the present case, the Court observes that, as matters stand, the material facts complained of by the applicant have ceased to exist. The judgment against the applicant is no longer enforceable. Nor was any attempt made to enforce it at any time during the statutory three years’ period prescribed for such enforcement. Following the death of the person in whose favour the judgment was delivered, the applicant does not face any real and imminent risk of eviction or loss of title to real property.
The Court therefore concludes that it is no longer justified to continue the examination of the application. It further considers that no particular reason relating to respect for human rights as defined in the Convention requires it to continue its examination of the application under Article 37 § 1 in fine. Lastly, it would refer to Article 37 § 2 of the Convention, which allows it to restore an application to its list of cases if it considers that the circumstances justify taking such a course.
Accordingly, the application should be struck out of the Court’s list of cases.
B. Application of Rule 43 § 4 of the Rules of the Court
Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court. …”
The Court points out that, unlike Article 41 of the Convention, which comes into play only if the Court has previously found “that there has been a violation of the Convention or the Protocols thereto”, Rule 43 § 4 allows the Court to make an award solely for costs and expenses (see Sisojeva and Others v. Latvia (striking out) [GC],no. 60654/00, § 132, ECHR 2007‑I).
The applicant claimed the costs and expenses incurred before the Court. In particular, he claimed the following amounts: 25,000 Russian roubles (RUB) (preparation of his observations in the present case), RUB 3,500 (assessment of the flat’s current value) and RUB 13,500 (translation of his observations into English). He submitted copies of the relevant agreements and payment receipts.
The Government conceded that the applicant had duly substantiated his claims for costs and expenses.
The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention. In other words, in order to be reimbursed, the costs must relate to the alleged violation or violations and be reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see, for example,Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 55, 7 December 2007).
Regard being had to the documents in the Court’s possession and the above criteria, the Court grants the applicant’s claims in full. It awards the applicant, accordingly, EUR 595, plus any tax that may be chargeable to the latter on that amount.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases;
Holds that the respondent State is to pay the applicants EUR 595 (five hundred ninety-five euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant, in respect of costs and expenses.
Done in English and notified in writing on 27 September 2018.
Stephen Phillips Alena Poláčková
Registrar President
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