THIRD SECTION

CASE OF RASTORGUYEV AND OTHERS v. RUSSIA

(Applications nos. 11808/15 and 4 others - see appended list)

JUDGMENT

STRASBOURG

25 July 2017

This judgment is final but it may be subject to editorial revision.
In the case of Rastorguyev and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Luis López Guerra, President,
	Dmitry Dedov,
	Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 July 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in five applications (nos. 11808/15, 12068/15, 12253/15, 12472/15 and 25624/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Their details appear in Appendix I below.
2.  The applicants were represented by Mr K. Terekhov (applications nos. 11808/15, 12068/15, 12253/15, 12472/15) and Ms M. Samorodkina (application no. 25624/15), lawyers practising in Moscow. The Russian Government (“the Government”) 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.
3.  On 2 September 2015 and 5 February 2016 the applications were communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  On 18 January 2007 the Moscow City authorities, the Ministry of the Defence of the Russian Federation and a private construction company signed an investment contract for the construction of a number of residential buildings in Moscow. Pursuant to the contract, a title to 3,823 flats was to be transferred to the Ministry of the Defence. The rest of the flats were to remain the city’s property.
5.  In 2008 the city authorities commissioned, as part of the said investment contract, several residential buildings. It appears that a number of flats in those buildings were transferred to the Ministry of the Defence.
6.  In 2009 the city authorities had their title to a number of flats, including those in residential buildings nos. 8 and 26-1 at Ulitsa Marshala Savitskogo, Moscow, registered by the state authorities.
7.  In 2010 the Ministry of the Defence assigned five of those flats to private individuals and entered into social housing agreements with them. Subsequently those people successfully applied to the Zyuzinskiy District Court of Moscow seeking recognition of their title to the flats by way of privatisation. Once the court’s judgments became final, they had their ownership in respect of the flats registered in the state register and then sold the flats to other persons, including the applicants. The relevant transactions and transfer of the title to the property were duly registered by the authorities. The applicants moved into the flats and resided there.
8.  According to the Government, in 2012 and 2013 the police opened criminal investigation in respect of the fraudulent transactions with the flats. The Government did not inform of its outcome.
9.  On an unspecified date city authorities asked the District Court to re‑open the cases concerning the flats privatised by the tenants who sold them to the applicants in 2011. The authorities claimed that the flats owned by the applicants were the city’s property. The District Court granted the request, quashed the earlier judgments allowing the privatisation of the flats and re-examined the cases. The court established, inter alia, that the Ministry of the Defence had never owned the flats and, accordingly, had not had a right to assign them to private individuals. It granted the city’s claims in full invalidating the decisions of the Ministry of the Defence in respect of the flats and ordering the applicants’ eviction. The court also found that the applicants had acquired the flats in good faith. However, it ruled that the cases fell under one of the two exceptions to the protection of a bona fide purchaser’s title, which required that precedence be given to the City of Moscow given that the flats had left the City’s possession against the latter’s will.
10.  The applicants’ appeals were to no avail. The Moscow City Court and the Supreme Court of the Russian Federation rejected them as unsubstantiated.
11.  According to the Government, the judgments ordering the applicants’ eviction were not enforced. The applicants continue to reside in the flats.
12.  The details pertaining to each case are summed up in Appendix II below.
THE LAW
Article II.	I.  JOINDER OF THE APPLICATIONS
13.  The Court decides to join the applications, given their similar factual and legal background.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
14.  The applicants complained that they had been deprived of their property in contravention of Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“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.”
15.  The Government contested that argument. While they acknowledged that the invalidation of the relevant applicants’ title to the flats had constituted an interference with their possessions, they considered that such interference had been in strict compliance with the requirements set forth in Article 1 of Protocol No. 1. It had pursued the legitimate aim of providing affordable housing to people in Moscow. Lastly, the Government submitted that the flats had not been recovered by the City of Moscow and the applicants continued to reside there.
16.  Relying on the Court’s findings in the case of Gladysheva (see Gladysheva v. Russia, no. 7097/10, 6 December 2011) the applicants maintained their complaints.
Section 3.01	A.  Admissibility
17.  The Court observes that Mr Rastorguyev (application no. 11808/15), Mr Shamshatdinov (application no. 12068/15), Ms Ye. Sokolina (application no. 12253/15), Ms Gubeydulina (application no. 12472/15) and Ms Ivanova and Mr Ivanov (application no. 25624/15) were the lawful owners of the flats later reclaimed by the City of Moscow. The Court concludes that these applicants enjoyed a property right in respect of the flats which constituted their “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention. The said provision is therefore applicable.
18.  However, the Court is unable to draw a similar conclusion in respect of the rest of the applicants (Ms Rastorguyeva, Ms Mukhamedova, Mr Sokolin, Ms Yu. Sokolina, Ms Presnyakova and Mr Presnyakov). They were not the owners of the flats and resided there only as the members of the owners’ family.
19.  The Court does not exclude a possibility that a person who has a right to use the housing without being its owner might have a proprietary right or interest, recognised under the domestic law, in respect of the housing, and such interest will constitute his or her “possession” attracting the protection of Article 1 of Protocol No. 1. However, as a general rule, the right to live in a particular property not owned by an applicant does not as such constitute a “possession” within the meaning of the said provision (see Durini v. Italy, no. 19217/91, Commission decision of 12 January 1994, Decisions and Reports (DR) 76B, pp. 76-79; H.F. v. Slovakia (dec.), no. 54797/00, 9 December 2003; Bunjevac v. Slovenia (dec.), no. 48775/09, 19 January 2006; Gaćeša v. Croatia (dec.), no. 43389/09, 1 April 2008; and Babenko v. Ukraine (dec.), no. 68726/10, 4 January 2012).
20.  The Court further notes that in their observations Ms Rastorguyeva, Ms Mukhamedova, Mr Sokolin, Ms Yu. Sokolina, Ms Presnyakova and Mr Presnyakov did not refer to any national law or factual information that would allow the Court to conclude that their occupancy right constituted a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see, by contrast, Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, § 78, 3 May 2012, § 78, 3 May 2012). Accordingly, the Court is not satisfied that those applicants can claim that the said Article is applicable in their case. It follows that the complaint lodged by the applicants indicated in the first sentence of this paragraph is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 §4.
21.  Regard being had to the above, the Court concludes that the complaint introduced by Mr Rastorguyev (application no. 11808/15), Mr Shamshatdinov (application no. 12068/15), Ms Ye. Sokolina (application no. 12253/15), Ms Gubeydulina (application no. 12472/15) and Ms Ivanova and Mr Ivanov (application no. 25624/15) is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
22.  The Court has, on a number of previous occasions, examined cases in which the Russian State or municipal authorities, being the original owners of housing, have been successful in reclaiming it from bona fide owners once it had been established that one of the prior transactions in respect of such property had been fraudulent (see Gladysheva, cited above, §§ 77-83; Stolyarova v. Russia, no. 15711/13, §§ 47-51, 29 January 2015; Andrey Medvedev v. Russia, no. 75737/13, §§ 42-47, 13 September 2016; Kirillova v. Russia, no. 50775/13, §§ 33-40, 13 September 2016; Anna Popova v. Russia, no. 59391/12, §§ 33-39, 4 October 2016; Alentseva v. Russia, no. 31788/06, §§ 55-77, 17 November 2016; Pchelintseva and Others v. Russia, nos. 47724/07 and 4 others, §§ 90-101, 17 November 2016; and Ponyayeva and Others v. Russia, no. 63508/11, §§ 45-57, 17 November 2016). Having examined the specific conditions and procedures under which the State had alienated its assets to private individuals, the Court noted that they were within the State’s exclusive competence and held that the defects in those procedures resulting in the loss by the State of its real property should not have been remedied at the expense of bona fide owners. The Court further reasoned that such restitution of property to the State or municipality, in the absence of any compensation paid to the bona fide owner, imposed an individual and excessive burden on the latter and failed to strike a fair balance between the demands of the public interest on the one hand and the applicants’ right to the peaceful enjoyment of their possessions on the other.
23.  Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. The Court notes that the flats left the City’s “possession” as a result of the alleged fraud committed by a third party. The Court further observes that there were safeguards in place to ensure that the flats changed hands in accordance with the domestic law. The lawfulness of each transaction and title in respect of the flats were subject to control by registration authorities. The Government, however, did not proffer any explanation, as to why those safeguards had not been effective in detecting the fraud and protecting the City’s interests. In particular, neither the domestic judicial authorities nor the Government clarified why it had been possible for the authorities to approve the transfer of title to the flats to new owners while the flats were still registered as the City’s property and the City had not been a party to the relevant transactions. In such circumstances, the Court considers that it was not for the applicants to assume the risk of the title to the flat being revoked on account of the said omissions on the part of the authorities in procedures specially designed to prevent fraud in real-property transactions. The Court reiterates that mistakes or errors on the part of State authorities should serve to benefit the persons affected. In other words, the consequences of any mistake made by a State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Stolyarova, cited above, § 49). The Court therefore concludes that the forfeiture of the title to the flat by the applicants and the transfer of the ownership of the flats to the City of Moscow, in the circumstances of the case, placed a disproportionate and excessive burden on them. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention.
Article IV.	III.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
24.  The applicants complained that their eviction had amounted to a violation of the right to respect for home. They relied on Article 8 of the Convention, which reads as follows:
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
25.  The Government admitted that the applicants’ eviction had constituted an inference with their right set out in Article 8 of the Convention. They considered, however, that such interference had been lawful, had pursued the legitimate aim of protecting the rights of persons eligible to social housing and had been proportionate to that aim. As regards Mr Presnyakov (application, no. 25624/15), the Government noted that he could not claim to be a victim of the violation alleged. He had not had the flat registered as his place of residence. Pursuant to the official documents, he resided elsewhere. Nor had he been a party to the civil proceedings concerning the determination of the applicants’ rights in respect of the flat.
26.  The applicants maintained their complaints. Mr Presnyakov (application, no. 25624/15) submitted that he had resided with his wife and parents-in-law in the flat owned by the latter and the flat, therefore, should be considered his home. In his opinion, it would have been ineffective for him to participate in the civil proceedings concerning the eviction of his family given that he had not registered the flat as his place of residence.
27.  As regards Mr Presnyakov, the Court accepts, in the light of the absence any evidence to the contrary, that Mr Presnyakov had lived together with his wife and parents-in-law and could claim that the flat had constituted his home for the purposes of Article of the Convention. In so far as the Government may be understood to argue that he did not exhaust domestic remedies in respect of the alleged violation of his rights, the Court observes that his family members took part in the proceedings and the national courts, having examined their arguments, found in favour of the city authorities and ordered their eviction. In such circumstances, the Court does not see how, if the complaint had also been raised by Mr Presnyakov, it could have led to a different outcome. Accordingly, it dismisses the Government’s objection. The Government’s objections are therefore dismissed.
28.  The Court further notes that the applicants’ complaint about their eviction is linked to the one examined above and must therefore likewise be declared admissible. However, having regard to the findings relating to Article 1 of Protocol No. 1 to the Convention (see paragraphs 22-23 above) and the fact that the eviction order has not been enforced to date and the applicants continue to reside in the flats, the Court considers that it is not necessary to examine the same facts from the standpoint of Article 8 of the Convention (compare Pchelintseva, cited above, §§ 102-05, 17 November 2016).
Article V.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
29.  Article 41 of the Convention provides:
“If 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.”
Section 5.01	A.  Damage
30.  The applicants’ claims in respect of non-pecuniary damage are summarised in the table below:
Application no.	Non-pecuniary damage in euros (EUR)	
11808/15	16,000	
12068/15	16,000	
12253/15	24,000	
12472/15	8,000	
25624/15	28,000	
31.  The Government considered the claims excessive and unreasonable.
32.  The Court has no doubt that Mr Rastorguyev (application no. 11808/15), Mr Shamshatdinov (application no. 12068/15), Ms Ye. Sokolina (application no. 12253/15), Ms Gubeydulina (application no. 12472/15) and Ms Ivanova and Mr Ivanov (application no. 25624/15) have suffered distress and frustration on account of the deprivation of their possessions. Making its assessment on an equitable basis, the Court makes the following awards in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount:
Application no.	Amount awarded	
11808/15 to Mr Rastorguyev	EUR 5,000	
12068/15 to Mr Shamshatdinov	EUR 5,000	
12253/15 to Ms Ye. Sokolina	EUR 5,000	
12472/15 to Ms Gubeyldulina	EUR 5,000	
25624/15 to Mr Ivanov and Ms Ivanova jointly	EUR 5,000	
Section 5.02	B.  Costs and expenses
33.  The applicants also submitted claims for the costs and expenses incurred before the domestic courts and the Court. They can be summarised as follows:
Application	Costs and expenses in Russian roubles (RUB)	
	Legal fee	Postal / Notary	
	Domestic proceedings	Proceedings before the Court		
11808/15	150,000	130,000	3,000	
12068/15		130,000	2,900	
12253/15		130,000	2,900	
12472/15		130,000	3,000	
25624/15	130,000	40,000	4,430	

34.  The Government submitted that the expenses incurred by the applicants in the domestic proceedings should not be taken into consideration as irrelevant to the proceedings before the Court. They did not contest the applicants’ claims as regards the proceedings before the Court, except for the claims submitted by Mr Ivanov and Ms Ivanova, which they considered unsubstantiated. Lastly, they noted that Mr Shamshatdinov had failed to submit a copy of the receipt to substantiate his claims in respect of the postal expenses and that his claims in that part should be dismissed.
35.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in the Court’s possession and the above criteria, the Court considers it reasonable to the following sums in respect of the applicants’ claims for costs and expenses under all heads:
Application no.	Amount awarded	
11808/15 to Mr Rastorguyev	EUR 2,000	
12068/15 to Mr Shamshatdinov	EUR 1,000	
12253/15 to Ms Ye. Sokolina	EUR 1,037	
12472/15 to Ms Gubeyldulina	EUR 1,000	
25624/15 to Mr Ivanov and Ms Ivanova	EUR 1,574	
Section 5.03	C.  Default interest
36.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Decides to join the applications;

2.  Declares the complaint lodged under Article 1 of Protocol No. 1 to the Convention by Mr Rastorguyev, Mr Shamshatdinov, Ms Ye. Sokolina, Ms Gubeydulina and Ms Ivanova and Mr Ivanov admissible and the complaint lodged under the same provision by the remaining applicants inadmissible;

3.  Declares the complaint under Article 8 of the Convention admissible;

4.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5.  Holds that there is no need to examine the complaint under Article 8 of the Convention;

6.  Holds
(a)  that the respondent State is to pay the applicants, within three months the amounts as indicated in Appendix III, plus any tax that may be chargeable to the applicants; the amounts are to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Luis López Guerra
	Deputy Registrar	President

APPENDIX I
Details of the applications

No.	Application no.	Date of introduction	Applicants’ details
(family relations, date of birth, place of residence)
	
1.		11808/15	04/03/2015	Vladilen Viktorovich Rastorguyev
15/08/1966
Moscow
Nataliya Mikhailovna Rastorguyeva
(first applicant’s wife)
21/04/1967
Moscow
	
2.		12068/15	03/03/2015	Ildar Kharisovich Shamshatdinov
19/04/1976
Moscow
Gulnara Saytovna Mukhamediarova
(first applicant’s wife)
24/05/1981
Moscow
	
3.		12253/15	27/02/2015	Yelena Yuryevna Sokolina
12/03/1977
Moscow
Igor Gennadyevich Sokolin
(first applicant’s husband)
01/11/1983
Moscow
Yuliya Igoriyevna Sokolina
(first and second applicants’ daughter)
29/08/2005
Moscow
	
4.		12472/15	03/03/2015	Ravilya Avzyalovna Gubeydulina
05/04/1956
Moscow	
5.		25624/15	18/05/2015	Valeriy Viktorovich Ivanov
23/07/1955
Moscow
Natalya Nikolayevna Ivanova
(first applicant’s wife)
27/06/1955
Moscow
Valeriya Valeryevna Presnyakova
(first and second applicants’ daughter)
21/02/1987
Moscow
Aleksey Igorevich Presnyakov
(third applicant’s husband)
03/04/1983
Moscow

APPENDIX II
Facts in respect of each application

Application no.	Address of the flat in Moscow	Transactions in respect of the flat	Annulment of the applicants’ title to the flat	
		Assignment of the flats by the Ministry of the Defence	Judicial recognition of the private parties’ title to the flats	Subsequent transactions with the flat.	Re-opening of the case by the District Court	New judgment ordering the applicants’ eviction	Appeal proceedings	
11808/15	26-1-129, Ulitsa Marshala Savitskogo	On 1 September 2010 the Ministry of Defence assigned the flat to I. and on 15 December 2010 they entered into a social housing agreement.	On 22 November 2011 the District Court recognised I.’s title to the flat.	On 2 January 2012 I. sold the flat to the first applicant.	15 April 2013	10 May 2014	On 24 September 2014 the City Court rejected the applicant’s appeal.
On 23 May 2015 the City Court rejected the applicants’ cassation appeal.
On 12 May 2015 the Supreme Court rejected the applicants’ second cassation appeal.	
12068/15	26-1-78, Ulitsa Marshala Savitskogo	On 1 September 2010 the Ministry of Defence assigned the flat to Kh. and on 15 December 2010 they entered into a social housing agreement.	On 22 November 2011 the District Court Kh.’s title to the flat.	On 19 January 2012 Kh. sold the flat to G.
On 8 August 2012 G. sold the flat to the first applicant.	18 April 2013	26 March 2014	On 22 September 2014 the City Court rejected the applicants’ appeal.
On 18 May 2015 the City Court rejected the applicants’ cassation appeal.
On 24 April 2015 the Supreme Court rejected the applicants’ second cassation appeal.	
12253/15	8-1-7, Ulitsa Marshala Savitskogo	On 1 September 2010 the Ministry of Defence assigned the flat to P. and on 15 December 2010 they entered into a social housing agreement.	On 23 May 2011 the District Court recognised P.’s title to the flat,	On 15 July 2011 P. sold the flat to the first applicant.	23 May 2013	24 March 2014	On 22 September 2014 the City Court rejected the applicants’ appeal.
On 18 March 2015 the City Court rejected the applicants’ cassation appeal.
On 7 May 2015 the Supreme Court rejected the applicants’ second cassation appeal.	
12472/15	26-1-77, Ulitsa Marshala Savitskogo	On 1 September 2010 the Ministry of Defence assigned the flat to A. and on 15 December 2010 they entered into a social housing agreement.	On 22 November 2011 the District Court recognised A.’s title to the flat.	On 19 January 2012 P. sold the flat to the applicant.	18 April 2013	24 March 2014	On 4 December 2014 the City Court rejected the applicant’s appeal.
On 2 April 2015 the City Court rejected the applicant’s cassation appeal.	
25624/15	26-1-184, Ulitsa Marshala Savitskogo	On 1 September 2010 the Ministry of Defence assigned the flat to T. and on 15 December 2010 they entered into a social housing agreement.	On 14 September 2011 the District Court recognised T.’s wife as the owner of the flat.
	On 21 November 2011 T.’s wife sold the flat to the first and second applicants.	22 April 2013	17 March 2014	On 18 November 2014 the City Court rejected the first, second and third applicants’ appeal.
On 25 May 2015 the City Court rejected the first, second and third applicants’ cassation appeal.
On 27 July 2015 the Supreme Court rejected the first, second and third applicants’ second cassation appeal.	

APPENDIX III
Awards made by the Court under Article 41 of the Convention

No.	Application number and name of the applicant who receives the award	Non-pecuniary damage	Costs and expenses	
1.	11808/15
Mr Rastorguyev	EUR 5,000	EUR 2,000	
2.	12068/15
Mr Shamshatdinov	EUR 5,000	EUR 1,000	
3.	12253/15
Ms Ye. Sokolina	EUR 5,000	EUR 1,037	
4.	12472/15
Ms Gubeydulina	EUR 5,000	EUR 1,000	
5.	25624/15
Mr Ivanov and
Ms Ivanova jointly	EUR 5,000	EUR 1,574