THIRD SECTION<\/p>\n
CASE OF KOPYTOK v. RUSSIA
\n(Application no. 48812\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n15 January 2019<\/p>\n
This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Kopytok v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/p>\n Vincent A. De Gaetano, President, Having deliberated in private on 4 December 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 48812\/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Ms Alla Nikolayevna Kopytok (\u201cthe applicant\u201d), on 21 August 2009.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms O.\u00a0Yegorova, a lawyer practising in Lipetsk. The Russian Government (\u201cthe Government\u201d) 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.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, an unjustified interference with her right to the peaceful enjoyment of her possessions.<\/p>\n 4.\u00a0\u00a0On 15 May 2014 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1962 and lives in Lipetsk.<\/p>\n 6.\u00a0\u00a0On 18 September 2007 the applicant signed a private contract for the purchase of a flat in Lipetsk. The seller was Ms E.M.T., acting on behalf of herselfand her daughter Maria, a minor. The contract stipulated that the property was not \u201cmortgaged, encumbered by any claims of third parties, disputed or charged\u201d.<\/p>\n 7.\u00a0\u00a0The flat in question had been allocated as social housing to Ms\u00a0E.M.T. and her husband, Mr V.A.V., in 1979. They had lived there with their four children: Yelena, Mikhail, Dmitriy and Maria. Mikhail and Dmitriy were given long prison sentences in 1998 and 2004 respectively and were still serving them at the material time. Yelena moved out in 1997 to continue her studies in Dagestan. In 2006, Ms E.M.T and Maria became the sole owners of the property by way of privatisation, while Mr V.A.V., Mikhail, Dmitry and Yelena declined in writing to exercise their right to obtain their shares of the privatised flat.<\/p>\n 8.\u00a0\u00a0As the sellerMsE.M.T. delayed submitting the contract for State registration, the applicant sought a court order upholding her full title to the property. The sellerMs E.M.T. brought a counterclaim. She submitted that she was unable to move out because the purchase of the new flat for herself and her daughter Maria had not yet been finalised. However, after Ms\u00a0E.M.T. failed to appear in court, on 2 April 2008 the Oktyabrskiy District Court in Lipetsk struck out the counterclaim and granted the applicant relief in the form of an order compelling State registration of her full title to the property. On 12\u00a0November 2008 the title was registered.<\/p>\n 9.\u00a0\u00a0The applicant then sued the former ownerMsE.M.T. and members of her family, seeking termination of their right to use the flat, annulment of the registration of their residence at that address, and their eviction.<\/p>\n 10.\u00a0\u00a0On 7 April 2009 the Oktyabrskiy District Court allowed her claim in part. It ordered the eviction of Ms E.M.T. and Maria,as they were no longer owners of the property, but dismissed the claim in respect of Yelena, Mikhail and Dmitriy on the following grounds:<\/p>\n \u201cAccording to the parties, the contested property contains personal belongings and chattels of the defendants [Mikhail, Dmitriy and Yelena]; it appears from their written statements that, in declining their shares of the contested property during its privatisation, they did not intend to stop using the flat. Since there was no arrangement between the owner of the contested property and the defendants regarding the discontinuation of the right to use the property, the court considers that [Mikhail, Dmitriy and Yelena] hada right of use over the flat which was identical [in its scope] to that of the owner; accordingly, there are no legal grounds for allowing [the applicant\u2019s] claim to declare their right of use over the flat terminated.<\/p>\n A change in ownership of the contested property cannot serve as an independent ground for terminating [their] right to use the flat …<\/p>\n The plaintiff\u2019s argument to the effect that [Mikhail, Dmitriy and Yelena] do not actually live in the contested property cannot serve as an independent ground for terminating [their] right of use over the flat …<\/p>\n Since the defendants\u2019 right of use over the flat is not terminated, there are no grounds for ordering their eviction …\u201d<\/p>\n 11.\u00a0\u00a0On 27 May 2009 the Lipetsk Regional Court dismissed the applicant\u2019s appeal, endorsing the District Court\u2019s judgment.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0Residential Property Privatisation Act (Law no. 1541-I of 4 July 1991)<\/strong><\/p>\n 12.\u00a0\u00a0Privatisation of residential property is defined as a free transfer of residential properties into the ownership of social tenants in State and municipal housing (sections 1 and 2). Privatisation requires the consent of all resident adult family members and children aged fourteen to eighteen (section\u00a02).<\/p>\n B.\u00a0\u00a0Civil Code<\/strong><\/p>\n 13.\u00a0\u00a0The Civil Code, as in force at the material time, reads as follows:<\/p>\n Article 131. State registration of immovable property<\/p>\n \u201c1.\u00a0\u00a0Rights of ownership and other proprietary rights to immovable property, restrictions on such rights, their creation, transfer and termination are subject to State registration in the Unified State Register … The following rights are subject to registration: the right of ownership, the right of economic control, the right of operative management, the right of inheritable possession, the right of permanent use [over a plot of land], mortgages, [praedial] servitudes, and other rights in cases listed in this Code orany other statute…\u201d<\/p>\n Article 178. Voidability ex nunc of agreements entered into as a consequence of a\u00a0misconception<\/p>\n \u201c1.\u00a0\u00a0The court may declare void ex nuncanagreement which was entered into as a consequence of a significant misconception, at the request of the party acting under such a misconception…\u201d<\/p>\n Article 216.\u00a0Proprietary rights held by persons other than owners<\/p>\n \u201c1.\u00a0\u00a0Proprietary rights … are, in particular, the following: the right of inheritable possession to a plot of land…; the right of permanent use over a plot of land…;[praedial] servitudes…; the right of economic control or operative management…<\/p>\n 2.\u00a0\u00a0Proprietary rights may be held by persons other than the owner of the property.<\/p>\n 3.\u00a0\u00a0The transfer of ownership of a property shall not be a ground for terminating other proprietary rights to the property …\u201d<\/p>\n Article 292. Rights of family members of the owner of residential property<\/p>\n \u201c1.\u00a0\u00a0Members of an owner\u2019s family living in the residential property which heor she owns have a right of use over the property in accordance with the housing laws …<\/p>\n 2.\u00a0\u00a0The transfer of ownership of a residential house or flat to a new owner shall be a ground for terminating the right of use over the residential property held by the family members of the previous owner, unless statute stipulates otherwise.\u201d<\/p>\n C.\u00a0\u00a0Housing Code<\/strong><\/p>\n 14.\u00a0\u00a0The Housing Code, as in force at the material time, reads as follows:<\/p>\n Article 31. Rights and obligations of individuals living together with the owner of a\u00a0residential property<\/p>\n \u201c1.\u00a0\u00a0The owner\u2019s spouse, children and parents living together with the owner in the residential property which he or she owns shall be considered his or her family members …<\/p>\n 2.\u00a0\u00a0The owner\u2019s family members have the right to use the property in the same way as the owner, unless an agreement between the owner and family members stipulates otherwise …<\/p>\n 4.\u00a0\u00a0If a family relationship with the owner of the property breaks down, the former member of the owner\u2019s family does not maintain the right of use over the property unless an agreement between the owner and former family member stipulates otherwise …\u201d<\/p>\n 15.\u00a0\u00a0Section 19 of the Housing Code Enactment Act (Law no. 189-FZ of 29 December 2004) establishes that Article 31 \u00a7 4 of the Housing Code does not apply to the former family members of the owner of a privatised residential property, provided that on the date of privatisation the family members and person exercising the right to privatisation had the same right of use overthe property in question, unless otherwise provided for by law or contract.<\/p>\n D.\u00a0\u00a0Code of Civil Procedure<\/strong><\/p>\n 16.\u00a0\u00a0Article 446\u00a71 contains a list of the types of property which are immune from enforcement. The first item on the list is residential property owned by a debtor, provided that it is the sole residence of the debtor and his or her family.<\/p>\n E.\u00a0\u00a0Case-law of the Russian courts<\/strong><\/p>\n 1.\u00a0\u00a0Supreme Court of the Russian Federation<\/em><\/p>\n 17.\u00a0\u00a0The Questions and Answers (Housing law) section of the Supreme Court\u2019s Case-law Review for the Fourth Quarter of 2005 (approved by the Presidium of the Supreme Court on 1 March 2006) reads as follows:<\/p>\n \u201cQuestion 45. Does a former family member of the owner of a residential property who did not exercise his right to privatisation retain the right of use over the residential property indefinitely after a change in ownership of the property … ?<\/p>\n Answer. …Consent by the individual living together with the property owner is a mandatory condition of privatisation. It must be borne in mind that, by consenting to privatisation of the property, the individual assumed that his right of use over the property would be indefinite; accordingly, his right must be safeguarded during a transfer of ownership to another party. Any other interpretation would be in breach of Article 40 of the Constitution, which establishes that everyone has the right to housing and that no one may be arbitrarily deprived of housing.<\/p>\n … It follows that a former family member who on the date of privatisation had rights identical to those of the person who subsequently became the owner of the property and who did not exercise his right to privatisation but consented to their being exercised by that other person, may not be evicted from the property after a change in ownership because he has a right of use over the property. It is also necessary to mention that [his] right of use over the property is unlimited in time.\u201d<\/p>\n 18.\u00a0\u00a0On 2 July 2009 the Plenary Supreme Court of the Russian Federation issued Ruling no. 14 on certain issues arising in judicial practice in the application of the Housing Code of the Russian Federation. It provides, in the relevant part, as follows:<\/p>\n \u201c18.\u00a0\u00a0…Paragraph 2 of Article 292 of the Civil Code does not apply to former members of the owner\u2019s family … since, by giving their consent to privatisation of the residential property \u2013 [in the absence of] which privatisation would not have been possible … \u2013 they acted on the assumption that they would retain a right of use over the property indefinitely; accordingly, [their right of use over the flat] must be taken into account when ownership of the property is transferred to another person on relevant grounds (for instance, sale-purchase, exchange, giving, reverse mortgage, inheritance).\u201d<\/p>\n 2.\u00a0\u00a0Constitutional Court of the Russian Federation<\/em><\/p>\n 19.\u00a0\u00a0On 24 March 2015 the Constitutional Court gave judgment in a case concerning Mr Bogatyrev, who had bought a flat at auction. The original owners, a husband and wife, had purchasedthe flatfrom a housing co\u2011operative, and had later used it as collateral to secure repayment of a loan. They defaulted on the loan and the flat was auctioned off and sold to Mr\u00a0Bogatyrev. However, when he sought the eviction of the former owners and their family members, the courts agreed to evict the parents but not their adult children. Noting that the children had had a right of use over the flat at the time their parents\u2019 title had been registered, the courts held that their right of use was unaffected by a change in ownership.<\/p>\n The Constitutional Court held that section 19 of the Housing Code Enactment Act was incompatible with the Constitution to the extent that it undermined the effective judicial protection of the rights and lawful interests of a purchaser of residential property who was not and could not be aware that there existed family members of the former owner who had retaineda right of use over theproperty. It directed the legislature to establish an appropriate legal framework for securing maximum transparency of information about any rights that third parties may have toa property, including by means of introducing State registration of such rights and interests in property.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1<\/p>\n 20.\u00a0\u00a0The applicant complained of a violation of her right to peaceful enjoyment of her possessions on account of the fact that the domestic courts had established that unrelated third parties had a right of permanent use over her property. Article 1 of Protocol No. 1 to the Convention reads as follows:<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 21.\u00a0\u00a0The Government claimed that the applicant had failed to exhaust the effective domestic remedies. She should have asked the court to declare the sales contract voidex nunc on the basis of Article 178 of the Civil Code which provided for the invalidation of contracts entered into as a consequence of a misconception, and to have the purchase price refunded to her.<\/p>\n 22.\u00a0\u00a0The applicant submitted that her claim to full title had been upheld by the domestic courts, whose judgments were final and enforceable. She further pointed out that, even if the action suggested by the Government had been successful, the purchase money could not have been refunded. Ms\u00a0E.M.T. had used it to buy a new flat for herself and her daughter, and Russian law prohibited theenforcement of a judgment debt where the dwelling constituted the debtor\u2019s sole residence (see paragraph 16 above).<\/p>\n 23.\u00a0\u00a0The Court reiterates that the remedy which in the Government\u2019s view the applicant should have exhausted had to be capable of providing redress in respect of her complaints and offer reasonable prospects of success (see Selmouni v. France [GC], no. 25803\/94, \u00a7 76, ECHR 1999-V). In the instant case, the applicant obtained an enforceable judicial decision establishing her full and clear title to the property (see paragraph 8 above, compare Gladysheva v.\u00a0Russia, no.\u00a07097\/10, \u00a7 61, 6\u00a0December 2011). The opposing party did not challenge that judgment by way of appeal and the applicant\u2019s title to the property was recorded in the State register.<\/p>\n 24.\u00a0\u00a0Assuming that the remedy suggested by the Government offered any prospects of success \u2013 even though they did not corroborate their claim with any examples of how that provision was interpreted and applied in practice \u2013 it could only do so much, reversing the legal effects of the sales contract and returning the parties to their original position. However, there is no indication that the applicant ever wished to divest herself of the title to the property she had acquired or to reinstate the status quo ante. Rather, she complained about the fact that that an allegedly deficient legal framework and judicial decisions had allowedthird parties\u2019 claims to her purchased property to be established ex post facto, after her full title had already been registered. The provision invoked by the Government would not have allowed the courts to address that grievance. Accordingly, the applicant was not required to exhaust that remedy and that the Government\u2019s objection must be dismissed.<\/p>\n 25.\u00a0\u00a0The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 26.\u00a0\u00a0The Government submitted that the case had been correctly adjudicated by the domestic courts. Pursuant to Resolution no. 14 of the Plenary Supreme Court of 2 July 2009, a change in ownership did not terminate the right of permanent use over the flat which Yelena, Mikhail, Dmitriy had accrued on account of their refusal to take part in its privatisation.The Russian Constitution guarantees the right to housing to everyone, including former convicts. The Government claimed that the Court should not act as a \u201ccourt of fourth instance\u201d and review the facts of the case and give an interpretation of national law.<\/p>\n 27.\u00a0\u00a0The applicant pointed out that the Plenary Supreme Court\u2019s resolution had been published after the first-instance court had already given judgment in her case. Moreover, it had not been a source of law but a set of recommendations for the lower courts. The only applicable provision had been set out in Article 292\u00a72 of the Civil Code, which provided for the termination of any rights of former family members following a change in ownership. As E.M.T. had bought a new flat elsewhere, other members of her family, including her adult children, upon their release from prison, would be able to continue living with her there.<\/p>\n 28.\u00a0\u00a0The general principles concerning the protection of property are well established in the Court\u2019s case-law (see Gladysheva, cited above, \u00a7\u00a7 64-68).<\/p>\n
\nBranko Lubarda,
\nHelen Keller,
\nDmitry Dedov,
\nPere Pastor Vilanova,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nMar\u00eda El\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n