THIRD SECTION
\nCASE OF FAKHRUTDINOVA v. RUSSIA
\n(Application no. 5799\/13)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n9 October 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Fakhrutdinova v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Alena Pol\u00e1\u010dkov\u00e1, President, Having deliberated in private on 18 September 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. 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 (\u201cthe Convention\u201d) by a Russian national, Ms NailyaMaratovnaFakhrutdinova (\u201cthe applicant\u201d), on 24 December 2012.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr G.Zubovskiy and Ms\u00a0O.\u00a0Pershina, lawyers practising in Moscow and Oryol respectively. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr\u00a0G.\u00a0Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr\u00a0M. Galperin.<\/p>\n 3.\u00a0\u00a0On 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 inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1974 and lives in Kazan.<\/p>\n A.\u00a0\u00a0Background information concerning the ownership of the plot of land<\/strong><\/p>\n 5.\u00a0\u00a0In 1969 the Shumelkariver in Tveretinovka, Republic of Tatarstan, was dammed and an artificial lake was created.<\/p>\n 6.\u00a0\u00a0The original owner of the plot of landthat contained thelake was a State fur farm.<\/p>\n 7.\u00a0\u00a0In 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\u2019s title to the plot of land was registered in the State land register.<\/p>\n 8.\u00a0\u00a0On 5\u00a0May 2008 the company sold the land to the applicant through a public sale by tender. The applicant\u2019s title to the plot of land was registered in the State land register and on 28\u00a0June 2008 the applicant was issued with the relevant certificate.<\/p>\n 9.\u00a0\u00a0On 18\u00a0October 2011, following bankruptcy proceedings, the limited liability company was de-registered as a legal entity.<\/p>\n B.\u00a0\u00a0Litigation concerning the plot of land<\/strong><\/p>\n 10.\u00a0\u00a0On 29\u00a0March 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.<\/p>\n 11.\u00a0\u00a0On 5\u00a0May 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\u2019s claims.<\/p>\n 12.\u00a0\u00a0On 5\u00a0July 2012 the Supreme Court of the Republic of Tatarstan quashed the judgment of 5\u00a0May 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\u2019s claim should be dismissed for its failure to bringits actionwithin 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\u2019s title to the property had been registered in theState land register and (2) the State had been aware that the applicant had owned the plot of land since 2008 when the applicant\u2019s title to the property had been registered in theState land register. The agency appealed.<\/p>\n 13.\u00a0\u00a0On 14\u00a0September 2012 the Supreme Court referred the matter for a review of points of law.<\/p>\n 14.\u00a0\u00a0On 10\u00a0October 2012 the Presidium of the Supreme Court quashed the appeal judgement of 5\u00a0July 2012 and upheld the judgment of 5\u00a0May 2008, by way of a points-of-law review. It rejected the applicant\u2019s request to apply the statute of limitations, considering that the agency had learnt about the infringement of the State\u2019s rights in respect of the plot of land only in 2012 after receivinga letter from the Federal Water Resources Agency (\u0424\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u043e\u0435\u0430\u0433\u0435\u043d\u0442\u0441\u0442\u0432\u043e\u0432\u043e\u0434\u043d\u044b\u0445\u0440\u0435\u0441\u0443\u0440\u0441\u043e\u0432\u0420\u043e\u0441\u0441\u0438\u0438).<\/p>\n 15.\u00a0\u00a0On 22\u00a0February 2013 the plot of land was registered as federal property in theState land register.<\/p>\n C.\u00a0\u00a0Litigation concerning the fine imposed on the applicant<\/strong><\/p>\n 16.\u00a0\u00a0On 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.<\/p>\n 17.\u00a0\u00a0On 19\u00a0April 2013 the Vakhitovskiy District Court of Kazan dismissed the applicant\u2019s 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.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0Compulsory purchase or transfer of property to the State<\/strong><\/p>\n 18.\u00a0\u00a0Pursuant to the Civil Code of the Russian Federation (Article\u00a0238\u00a0\u00a7\u00a7\u00a01 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 compulsorypurchase of the property. In such a case the former owner of the property is eligible for compensation in the amount determined by the court.<\/p>\n B.\u00a0\u00a0Statute of limitations<\/strong><\/p>\n 19.\u00a0\u00a0Pursuant to Ruling No.\u00a010\/22 adopted by the Plenary of the Supreme and Commercial Courts of the Russian Federation dated 29\u00a0April 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 theState 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.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.\u00a01 TO THE CONVENTION<\/p>\n 20.\u00a0\u00a0The applicant complained that she had been deprived of the title to real property in contravention of Article 1 of Protocol No.\u00a01 to the Convention, which 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 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 21.\u00a0\u00a0The Government submitted that the applicant had not appealed against the judgments of 5\u00a0July and 10\u00a0October 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.<\/p>\n 22.\u00a0\u00a0The applicant considered the Government\u2019s arguments unsubstantiated. She pointed out that she had introduced her application prior to the Court\u2019s 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.<\/p>\n 2.\u00a0\u00a0Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0Exhaustion of domestic remedies<\/p>\n 23.\u00a0\u00a0As regards the Government\u2019s 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 pointsof 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\u2019s decision in the case of Abramyan and others (see Abramyan and others v. Russia (dec.), nos.\u00a038951\/13 and 59611\/13, \u00a7\u00a7 76-96, 12\u00a0May 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.\u00a031039\/11 and 4 others, \u00a7\u00a7 70-76, 15 March 2016; Kocherov and Sergeyeva v. Russia, no.\u00a016899\/13, \u00a7\u00a7 64-69, 29 March 2016; and McIlwrath v. Russia, no.\u00a060393\/13, \u00a7\u00a7 85-95, 18 July 2017).<\/p>\n 24.\u00a0\u00a0The 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\u00a0December2012, that is tosay 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.<\/p>\n 25.\u00a0\u00a0As regards the Government\u2019s 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 \u00a7 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.\u00a07097\/10, \u00a7\u00a7 60-62, 6 December 2011).<\/p>\n (b)\u00a0\u00a0Alleged abuse of petition<\/p>\n 26.\u00a0\u00a0As regards the Government\u2019s 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.<\/p>\n (c)\u00a0\u00a0Conclusions<\/p>\n 27.\u00a0\u00a0In view of the above, the Court rejects the Government\u2019s 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 \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 1.\u00a0\u00a0Parties\u2019 submissions<\/em><\/p>\n 28.\u00a0\u00a0The applicant maintained her complaint. She had bought theplot 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\u2019s claims.<\/p>\n 29.\u00a0\u00a0The 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 hadnot been possible for the artificial lake located on the plot of landto have been owned by a private party;it should have remained federal property. The applicant had bought the plot in bad faith froma 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 indicatedon the approved list. As a result, the State had been unable to exercise its pre-emptive right to buy the land.<\/p>\n 2.\u00a0\u00a0Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0Existence of possessions within the meaning of Article 1 of Protocol No.\u00a01<\/p>\n 30.\u00a0\u00a0The Court accepts, and the Government have not arguedto the contrary, that the plot of land constituted the applicant\u2019s 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.<\/p>\n (b)\u00a0\u00a0Compliance with Article\u00a01 of Protocol No.\u00a01<\/p>\n 31.\u00a0\u00a0Article 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, \u00a7 134, ECHR 2004\u2011V).<\/p>\n 32.\u00a0\u00a0The 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\u00a01 of Protocol No.\u00a01 (compare Beyeler v. Italy [GC], no. 33202\/96, \u00a7\u00a098, ECHR\u00a02000\u2011I) 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.<\/p>\n 33.\u00a0\u00a0The 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 \u201csubject to the conditions provided for by law\u201d, 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, \u00a7\u00a058, ECHR 1999\u2011II). 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, \u00a7\u00a0132, ECHR 2005\u2011XII (extracts)).<\/p>\n 34.\u00a0\u00a0Accordingly, the Court will examine whether the interference with the applicant\u2019s possessions was in accordance with law and will address the Government\u2019s 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.<\/p>\n 35.\u00a0\u00a0In this connection, the Court notes that the general rules governing the mandatory transfer of propertywhich cannot be in private possession to the State are set out in Article\u00a0238 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 18above).<\/p>\n 36.\u00a0\u00a0In 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\u2019s case or, alternatively, why the applicant didnot have a right to access such compensation from the State.<\/p>\n 37.\u00a0\u00a0As to the Government\u2019s argument that the applicant bought the plot of land in bad faith, the Court notes thatit 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.<\/p>\n 38.\u00a0\u00a0The 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.\u00a01 to the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 39.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 40.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 1 of Protocol No.\u00a01 to the Convention.<\/p>\n Done in English, and notified in writing on 9\u00a0October 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Alena Pol\u00e1\u010dkov\u00e1
\nDmitry Dedov,
\nJolienSchukking, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n