Решения Европейского Суда по делам
против России
На русском
FIRST SECTION
CASE OF
NATALYA GERASIMOVA v. RUSSIA
(Application no. 24077/02)
JUDGMENT
STRASBOURG
21 July 2005
This judgment will become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Natalya Gerasimova
v. Russia,
The European Court of Human Rights (First Section),
sitting as a Chamber composed of:
Mr C.L.
Rozakis,
President,
Mr L.
Loucaides,
Mrs F.
Tulkens,
Mr P.
Lorenzen,
Mrs N.
Vajić,
Mrs S.
Botoucharova,
Mr A.
Kovler,
judges,
and Mr S.
Quesada,
Deputy Section
Registrar,
Having deliberated in private on 30 June 2005,
Delivers the following judgment, which was adopted on
that date:
PROCEDURE
1. The case originated in an application (no. 24077/02)
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”) by a Russian national, Ms Natalya Nikolayevna
Gerasimova, on 21 May 2002.
2. The Russian Government (“the Government”) were
represented by their Agent, Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. On 25 March 2004 the Court decided to communicate the
complaint about non-enforcement of a final judicial decision to the Government
and declared the remainder of the application inadmissible. Under the provisions
of Article 29 § 3 of the Convention, the Court decided to examine the merits of
the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1942 and lives in Moscow.
5. In June 2001 the applicant was advised by the Housing
Policy Department of the North-Eastern Administrative District Council that the
building in which she owned a flat had been scheduled for demolition within the
framework of a city-wide programme for reconstruction of Soviet-era housing. The
applicant was offered a substitute flat in a remote area of Yuzhnoye Butovo.
After the applicant had rejected the offer, the Council sued her for eviction
and resettlement.
6. On 27 September 2001 the Babushkinskiy District Court
of Moscow found for the Council. It ordered the applicant's eviction from her
old flat and transferred her title in it to the Council's account. It also held
that the new flat in Yuzhnoye Butovo should be transferred into the applicant's
ownership. On 6 December 2001 the Moscow City Court upheld the judgment of 27
September 2001.
7. On 24 January 2002 enforcement proceedings were
opened. On 2 April 2002 bailiffs relocated the applicant into the new flat.
8. The applicant asked the court to clarify the judgment
of 27 September 2001. She submitted that title in the new flat had not been
transferred to her because the local council had asked her to pay for additional
living surface and to advance the registration fee.
9. On 26 August 2002 the Babushkinskiy District Court
delivered a procedural order (определение).
It interpreted Article 49.3 of the Housing Code (see below) in the sense that,
where eviction was required because of demolition of a building, registration
fees were to be borne by the party who sought eviction, that is the
North-Eastern District Council.
10. On 10 April 2003 a court bailiff requested the
Municipal Housing Department of the North-Eastern Administrative District
Council to report why the judgment of 27 September 2001, as clarified on 26
August 2002, remained unenforced in the part concerning the transfer of title to
the applicant.
11. On 7 May 2003 the Municipal Housing Department
responded to the bailiff that the judgment had not imposed the obligation to
transfer title on the Department and that it was not competent to act on behalf
of the North-Eastern Administrative District Council.
12. According to the Government, on 4 December 2003 the
Presidium of the Moscow City Court quashed, by way of supervisory-review
proceedings, the procedural order of 26 August 2002 and remitted the matter for
a fresh examination. On 20 May 2004 the Babushkinskiy District Court refused the
applicant's request for a clarification of the judgment of 27 September 2001.
Copies of these decisions were not made available to the Court.
II. RELEVANT DOMESTIC LAW
Civil Code of the Russian Federation
13. Article 223 § 2 establishes that where the transfer
of property is subject to State registration, the purchaser acquires title from
the moment of such registration.
Housing Code of the RSFSR (in force at the
material time)
14. Article 49.3 established that in case of demolition
of a block of flats, the local authority, company or organisation that performed
the demolition should grant the evicted owners title in an equivalent flat or
any other compensation.
Law
on State Registration of Rights to Immovable Property or Transactions with It (no.
122-FZ of 21 July 1997)
15. Sections 13 § 1 and 16 § 4 provide that State
registration may be carried out upon production of the required documents and
payment of the registration fee.
16. Pursuant to section 17 § 1, a final judicial
decision is a basis for State registration of a right to immovable property or a
transaction with it. Section 28 § 3 (as amended on 9 June 2003) requires
judicial bodies to submit final judgments and decisions concerning rights to
immovable property to the registration authorities within three days of their
delivery.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
17. The applicant complained that the
judgment of 27 September 2001, as upheld on 6 December 2001, has not been
enforced in the part requiring the transfer of title in the new flat. The Court
considers that these complaints fall to be examined under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 (see
Burdov v. Russia, no. 59498/00, § 26, ECHR 2002-III). Article 6, in the
relevant part, provides as follows:
“In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1 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.”
A. Arguments by the parties
18. The Government submit that there has been no
violation of the Convention or the Protocols thereto because the applicant has
obtained title in the new flat from the moment of coming into force of the
judgment of 27 September 2001. From that moment she has been able to use,
possess and alienate the flat. At present the State registration of her right of
ownership has not been performed, but the applicant may apply for registration
at any moment, subject to the payment of the registration fee. The Council may
not apply for registration in the applicant's stead.
19. The applicant submits that she was evicted contrary
to her wishes. In such circumstances it would be reasonable to expect that the
domestic authorities would gather the required documents and perform the
registration. Moreover, the amount of the registration fee is commensurate with
her monthly pension. On the other hand, she never refused to come and collect
the ownership certificate from the registration authority.
B. Admissibility
20. The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. Merits
21. Turning to the merits of the case, the Court
observes that on 27 September 2001 the domestic court issued a judgment,
according to which the applicant was to obtain the right of ownership of the
substitute flat. Enforcement proceedings were instituted, the applicant got the
keys to the flat and moved into it, but the State registration of the transfer
has not been performed to date.
22. The Government's submission that the applicant
acquired title from the moment of coming into force of the judgment appears to
be at variance with Article 223 of the Russian Civil Code, pursuant to which
title to immovable property is considered to have been acquired from the moment
of State registration. The Court notes that the Government did not refer to any
provision of the domestic law supporting their interpretation or to any other
legal rule which could have been more appropriately applied to the applicant's
case. It follows that the transfer of the flat cannot be deemed completed until
the State registration has been performed. Accordingly, the judgment of 27 September
2001, as upheld on 6 December 2001, has not been enforced in the part concerning
the transfer of title.
23. The Court further notes that the failure to enforce
the judgment of 27 September 2001 at the initial stage could have been due to
the court's omission to specify which of the applicant or the Council was to
carry out State registration of the applicant's title and bear the associated
costs. However, even after the same court issued a special clarification
imposing the duty to register the transfer of title on the Council, the domestic
authorities do not appear to have taken any steps to enforce the judgment.
Instead, they chose to attack the clarification by way of supervisory-review
proceedings. As the Government failed to submit copies of the judicial decisions
of 4 December 2003 and 20 May 2004, it is impossible to determine the domestic
courts' current approach to the distribution of the obligation to perform State
registration. In any event, the Government have not contested that the
enforcement proceedings are now pending, but the judgment has remained without
enforcement to date, that is for more than four years since it was issued.
24. The Court has frequently found violations of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues
similar to the ones in the present case (see, e.g.,
Gizzatova v. Russia, no. 5124/03, § 19 et seq., 13 January 2005;
Wasserman v. Russia,
no. 15021/02, § 35 et seq., 18 November 2004;
Burdov, cited
above, § 34 et seq.).
25. Having examined the material submitted to
it, the Court notes that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in the present
case. Having regard to its case-law on the subject, the Court finds that by
failing for years to comply with the enforceable judgment in the applicant's
favour the domestic authorities prevented her from obtaining title in property
she could reasonably have expected to acquire.
26. There has accordingly been a violation of
Article 6 of the Convention and Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
27. 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.”
A. Damage
28. The applicant claimed 1,900 US dollars (USD) in
respect of pecuniary damage, representing the expenses incurred in connection
with her move into the new flat. She claimed a further USD 50,000 in respect of
non-pecuniary damage.
29. The Government did not comment.
30. The Court notes that the claim for the pecuniary
damage refers to the applicant's eviction and resettlement into the new flat.
However, it declared the complaints relating to these events inadmissible in its
decision of 25 March 2004. As the applicant did not claim that the
non-enforcement of the judgment of 27 September 2001, as upheld on 6 December
2001, caused her pecuniary damage, the Court rejects her claims in that part. As
regards the claim for non-pecuniary damage, the Court, deciding on an equitable
basis, considers that the finding of a violation constitutes sufficient just
satisfaction.
B. Costs and expenses
31. The applicant claimed 1,175 Russian roubles for
postal and copying expenses. The Government did not comment.
32. Having regard to all
materials in its possession, the Court is satisfied that these expenses have
been actually and necessarily incurred and were reasonable as to quantum. It
awards the applicant 1,175 Russian roubles in respect of costs and expenses,
plus any tax that may be chargeable on that amount.
C. Default interest
33. The Court considers it appropriate that the default
interest 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. Declares
the application admissible;
2. Holds
that there has been a violation of Article 6 of the Convention;
3. Holds
that there has been a violation of Article 1 of Protocol No. 1;
4. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention, RUR 1,175 (one thousand one
hundred seventy-five Russian roubles) in respect of costs and expenses, plus any
tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
5. Dismisses
the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 21 July
2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Christos
Rozakis
Deputy Registrar President
