THIRD SECTION
\nCASE OF TITOVA AND OTHERS v. RUSSIA
\n(Applications nos. 4919\/16 and 2 others \u2013 see appended list)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n15 May 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Titova and Others 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 10 April 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 three applications (nos.\u00a04919\/16, 16430\/16 and\u00a039274\/16) 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).Their details appear in Appendix\u00a0I below.<\/p>\n 2.\u00a0\u00a0The applicants were represented by Ms A. Maralyan, a lawyer admitted to practise in Armenia. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr G.\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 23 and 28\u00a0November 2016 complaints under Article\u00a08 of the Convention and Article\u00a01 of Protocol No.\u00a01 to the Convention were communicated to the Government and the remainder of the applicationswere declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicants are Russian nationals. They were owners of flats in Moscow. The municipal authorities reclaimed the flats, and the applicants\u2019 title to the real property in question was annulled.<\/p>\n A.\u00a0\u00a0Transactions in respect of the flats later purchased by the applicants<\/strong><\/p>\n 5.\u00a0\u00a0In 1977 a number of flats in a residential building located at 15-3 Ulitsa Tsyurupy, Moscow,were assigned by the City of Moscow to the Ministry of Communications. The flats were used as temporary housing for foreign specialists seconded to the Ministry. In 1991 the flats were transferred to the Rostelekom Open Joint Stock Company, the Ministry\u2019s successor.On 18\u00a0February 2009 the flats were transferred from Rostelekom to the City of Moscow. It appears that the flats remained vacant.<\/p>\n 6.\u00a0\u00a0In 2008-2009 a group of people, including a police officer, a lawyer, a notary and several Rostelekom employees, forged documents pertaining to three flats located at 15-3 Ulitsa Tsyurupy, Moscow, showing that the flats were owned by private individuals and, following their deaths, were inherited by their \u201cheirs\u201d. The relevant property deeds were forged by notary K. and then registered by the City Registration Department. Then the \u201cheirs\u201d sold the flats to private parties. Subsequently the flats were bought by the applicants. Each transaction with the flats was reviewed and approved by theCity Registration Department.<\/p>\n B.\u00a0\u00a0Criminal proceedings on the fraud charges<\/strong><\/p>\n 7.\u00a0\u00a0On 8\u00a0August 2012 a criminal investigation was opened into the City\u2019s loss of title to the flats.<\/p>\n 8.\u00a0\u00a0On 7\u00a0December 2012 the Housing Department of the City of Moscow (the \u201cHousing Department\u201d) was recognised as a victim of the crime.<\/p>\n 9.\u00a0\u00a0On 9\u00a0December 2013 the Perovskiy District Court of Moscow found nine defendants, including several Rostelekom employees, guilty of fraud. The court established, inter alia, that the defendants had forged the documents and had had unlawfully registered the flats as private property to the detriment of the City of Moscow. Notary K. was questioned as a witness.<\/p>\n 10.\u00a0\u00a0On 11\u00a0March 2014 the Moscow City Court upheld the judgment of 9\u00a0December 2013 on appeal.<\/p>\n 11.\u00a0\u00a0According to the Government, notary K. was also found guilty of fraud and sentenced to a term of imprisonment.<\/p>\n C.\u00a0\u00a0Termination of the applicants\u2019 title to the flats<\/strong><\/p>\n 12.\u00a0\u00a0In 2014 the Housing Department brought civil actions seeking restitution of the flats.<\/p>\n 13.\u00a0\u00a0The Cheremushkinskiy District Court of Moscow granted the Housing Department\u2019s claims. The court invalidated the transactions in respect of the flats and the applicants\u2019 title to the flats and ordered their eviction. The court applied the domestic law provisions which allowed the owner to recover its property from a bona fide purchaser if the said property left the owner\u2019s possession against its will. The court considered that the City of Moscow had not had intent to divest itself of the flats and had a right to recover the stolen flats from the applicants.<\/p>\n 14.\u00a0\u00a0The Moscow City Court upheld the judgmentsof the District Court on appeal. As regards Ms Titova (application nos.\u00a04919\/16), the City Court discerned no evidence in the material of the case file that would substantiate her claim that she had bought the flat in good faith. The City Court took into account that she had bought the flat a month and a half after the previous transaction and that the purchase price of the flat had been obviously lower than its market value. In the City Court\u2019s view, Ms Titova, if having acted with due care and diligence, should have had doubts as to the legitimacy of seller\u2019s title and sale of the flat.<\/p>\n 15.\u00a0\u00a0Subsequently, the City Court refused to grant the applicants leave to bring a cassation appeal against the judgments in their respective cases.<\/p>\n 16.\u00a0\u00a0According to the Government, the applicants were not evicted and continue to reside in the flats.<\/p>\n 17.\u00a0\u00a0The details pertaining to each case are summed up in Appendix II below.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0JOINDER OF THE APPLICATIONS<\/p>\n 18.\u00a0\u00a0In accordance with Rule\u00a042\u00a0\u00a7\u00a01 of the Rules of the Court, the Court decides to join the applications, given their similar factual and legal background.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION<\/p>\n 19.\u00a0\u00a0The applicants complained that they had been deprived of their possessions in violation of Article 1 of Protocol No. 1 to the Convention, which provides, in so far as relevant, 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\u00a0Compatibility ratione personae<\/em><\/p>\n 20.\u00a0\u00a0The Government considered that the applicants had lost their property as a result of the unlawful actions of a private notary and, accordingly, the State could not be held responsible for their loss.<\/p>\n 21.\u00a0\u00a0The applicant argued that, as established by the Russian legislation, a notary performed the notarial acts, in the name of the Russian Federation and therefore, the State should be held responsible for the unlawful actions in their case.<\/p>\n 22.\u00a0\u00a0The Court observes that that the applicants\u2019 complaint is directed against the City of Moscow, a municipality for whose actions the Russian Federation may be held responsible. It was the action lodged by the City that led to the forfeiture of the property title by the applicants and its transfer to the City. The fact that the City had earlier lost its possession as a result of fraudulent actions of third parties, including the notary, has no bearing on the respondent State\u2019s standing. Accordingly, the Court dismisses the Government\u2019s objection as regards the compatibility of the applicants\u2019 complaint ratione personae.<\/p>\n 2.\u00a0\u00a0Compatibility ratione materiae<\/em><\/p>\n 23.\u00a0\u00a0The Government submitted that the complaints lodged by Ms\u00a0Ivanova, Ms Andriyakhina and Ms K. Demina should be dismissed as incompatible ratione materiae with the Convention provisions. At no time had they held a title to the flats.<\/p>\n 24.\u00a0\u00a0The applicants did not comment.<\/p>\n 25.\u00a0\u00a0The Court observes that, as pointed out by the Government, Ms\u00a0Ivanova, Ms Andriyakhina and Ms K. Demina were not owners of the flats. They presumably resided there only as members of the flat owner\u2019s family. Nor does the Court discern any information in the materials submitted by those applicants that would allow it to conclude that their occupancy right constituted a \u201cpossession\u201d within the meaning of Article\u00a01 of Protocol No.\u00a01 to the Convention. It follows that their complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35\u00a0\u00a7\u00a03 and must be rejected pursuant to Article\u00a035\u00a0\u00a7\u00a04 (compare, Pchelintseva and Others v.\u00a0Russia, nos. 47724\/07 and 4 others, \u00a7\u00a7\u00a077-79, 17\u00a0November 2016).<\/p>\n 3.\u00a0\u00a0Exhaustion of domestic remedies<\/em><\/p>\n 26.\u00a0\u00a0The Government considered that the complaint should be dismissed for the applicants\u2019 failure to bring an action for damages against the persons who had been found guilty of fraud in respect of the flats later purchased by the applicants. Alternatively, the applicants could have sued the persons who had sold the flats to them. The Government cited the cases ofUniya\u00a0OOO and Belcourt Trading Companyv. Russia(nos. 4437\/03 and\u00a013290\/03, \u00a7\u00a7\u00a0285 and 353, 19 June 2014, where the State paid the damages to the applicant company and the latter was found to have lost its victim status), and Beverley v. Hungary((dec.), no. 59403\/13, ECHR\u00a011\u00a0February 2014; where the applicant\u2019s flat was fraudulently acquired by a private party). The Government further suggested that the applicants could have brought an action for damages against notary K. who had forged property deeds. In that respect the Government cited national cases in which a private party had been successful in suing the notary for damages.<\/p>\n 27.\u00a0\u00a0The applicants submitted that, by lodging an appeal against the judgment recalling the first applicant\u2019s title to the flat, they have exhausted effective domestic remedies in respect of their complaint.<\/p>\n 28.\u00a0\u00a0The Court notes that it has already examined the issue of exhaustion of effective domestic remedies in a case where the applicant was deprived of her housing as a result of the revocation of her title to a flat by a final and enforceable judgment (see Gladysheva v. Russia, no. 7097\/10, \u00a7\u00a7\u00a060-62 and\u00a089, 6 December 2011). The Court concluded that, under Russian law, there was no further recourse against that judgment that might potentially lead to reinstatement of the applicant\u2019s title to the flat. It further noted that the possibility of bringing an action for damages, in those circumstances, could not deprive the applicant of victim status for the purpose of complaints under Article\u00a01 of Protocol No. 1 to the Convention. Nor could doing so 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. Lastly, the Court considered that any damages that the applicant might have been able to recover against the seller of the flat might only be taken into account for the purposes of assessing the proportionality of the interference and, calculation of pecuniary damage if a violation of Article\u00a01 of Protocol\u00a0No.\u00a01 to the Convention was found by the Court, and if just satisfaction was awarded under Article 41 of the Convention (ibid., \u00a7\u00a062).<\/p>\n 29.\u00a0\u00a0The Court considers that those findings hold true in the context of the present case. The Government have not put forward any fact or argument capable of persuading it to reach a different conclusion. Accordingly, it was not incumbent on the applicants to pursue the civil remedies referred to by the Government. The Government\u2019s objection in this regard is, therefore, dismissed.<\/p>\n 4.\u00a0\u00a0Conclusion<\/em><\/p>\n 30.\u00a0\u00a0The Court notes that the complaint introduced by Ms T.\u00a0Titova, Mr\u00a0M.\u00a0Andriyakhin and MsO. Deminais 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\u00a0The parties\u2019 submissions<\/em><\/p>\n 31.\u00a0\u00a0The applicants submitted that their cases bore close resemblance to the case of Gladysheva (cited above), in which the Court had found that the transfer of the flat acquired by the applicant in good faith to the municipality had not been proportionate to the legitimate aim pursued and had placed an excessive burden on her. They also doubted that the interference with their rights had not been in accordance with law or that it had pursued a legitimate aim.<\/p>\n 32.\u00a0\u00a0The Government submitted that there had been no interference with the applicants\u2019 possessions. In their view, the judgments delivered by the national courts concerned the issues of private law and should not be construed as unjustified interference with the applicants\u2019 property rights. The flats purchased by the applicants and later recovered by the City of Moscow were not the applicants\u2019 \u201cpossessions\u201d within the meaning of Article\u00a01 of Protocol No.\u00a01 to the Convention. When considering the disputes between the City and the applicants, the national courts had applied the law correctly. The flats owned by the City had been misappropriated as a result of fraudulent actions and the City had a right to reclaim them. The applicants could not be recognised as bona fide purchasers of the flats given that they had bought them for a price significantly lower than the flats\u2019 market value. In addition, Ms Titova had bought the flat only a month a half after the previous transaction. The applicants had done nothing to minimise their losses. They had not asked the city authorities for provision of social housing. They had not sued the persons who had sold them the flats to them to recover the lost money or the perpetrators who had been found guilty of having fraudulently acquired the City\u2019s property or the insurance company which had insured notary K.\u2019s professional responsibility. Lastly, the Government argued that the interference with the applicants\u2019 rights had been proportionate to the legitimate aim pursued.<\/p>\n
\nDmitry Dedov,
\nJolien Schukking, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n