FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58255/00 by Margarita Semenovna PROKOPOVICH against Russia

The European Court of Human Rights (First Section), sitting on 8 January 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 17 March 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Margarita Semenovna Prokopovich, is a Russian national, who was born in 1940 and lives in Vladivostok.  The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation in the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant’s life with her partner

In 1988 the applicant and her partner, Mr Filippov, moved together into the flat provided by Mr Filippov’s employer, a State enterprise. The applicant left the flat where she had lived before to her daughter and her daughter’s family.

Although the applicant and Mr Filippov never registered their marriage officially, from 1988 onwards they lived together as husband and wife. They jointly purchased all household items for the new flat. Between 1992 and 1995 Mr Filippov financially supported their family because the applicant was unemployed. According to the applicant, Mr Filippov’s relatives and their neighbours considered them to be a family. Postcards and letters were addressed to Mr and Ms Filippov and the applicant received correspondence at the new address.

The applicant retained her residence registration at her old address. The applicant explains that she suffered from an ear ailment and wanted to remain under the observation of her former ear-specialist. Had she changed her residence registration, she would no longer be entitled to visit the doctor practising in her former neighbourhood.

2. Death of the applicant’s partner

In summer 1998 the applicant and Mr Filippov lived in their summer house. On 18 August 1998 Mr Filippov returned to the city for a week.

On 24 August 1998 Mr Filippov passed away and his body was found by a neighbour. On 26 August 1998 Mr Filippov was buried in the presence of his son and his two sisters who had been summoned by telegram.

The applicant was never notified of her partner’s death or funeral service. She only learnt of it when she returned to the city late in the day on 26 August 1998.

3. Re-allocation of the flat and the removal of the applicant’s effects

On 27 August 1998 the applicant received a phone call from the local housing maintenance authority ( жилищно-эксплуатационное управление ) which requested an explanation as to why the flat was not empty. The applicant explained that she was not officially registered in the flat, but she had lived there for more than ten years. On 1 September 1998 a representative of the housing maintenance authority visited the applicant at the flat and drafted a report to the effect that the flat was not empty. The applicant was not given a copy of the report. The representative advised the applicant to “secure” her right to use the flat through a court.

On 2 September 1998 the applicant filed a request with the housing maintenance authority to be given an occupation certificate ( ордер ) for Mr Filippov’s flat. Her request was refused because on 1 September 1998 an occupation certificate had already been issued to Mr Valetov, the head of the local police department and the hierarchical superior of Mr Filippov’s son.

On 4 September 1998, on returning to the flat, the applicant found that the door had been broken open and that books and other household items were being loaded onto a lorry. The applicant states that the possessions were removed in the presence of Mr Valetov, Mr Filippov’s son, several policemen in civilian clothing, and a representative of the housing maintenance authority. Once the removal was completed, the applicant was ordered to vacate the premises immediately. When the applicant refused to comply with the request, she was thrown out of the flat by force. The door was replaced and the applicant was not given keys.

4. Court proceedings brought by the applicant

On 7 September 1998 the applicant filed a complaint against Mr Valetov with the prosecutor’s office of the Sovietskiy District of Vladivostok. The applicant requested a criminal investigation into her forcible eviction and deprivation of possessions. On 14 September 1998 the prosecutor’s office informed the applicant that her allegations were unsubstantiated and refused to open criminal proceedings.

On 1 October 1998 the applicant filed a civil action against the municipal authority of Vladivostok and Mr Valetov. The applicant requested that she be recognised as a member of her late partner’s household and sought a declaration of nullity of the occupation certificate issued to Mr Valetov. The applicant submitted in evidence many witness statements provided by relatives, neighbours living in the block of flats and their neighbours where they had the summer house, as well as personal photographs, letters, postcards and mail receipts.

On 27 November 1998 the applicant complained to the Vladivostok City prosecutor’s office about the refusal to open a criminal investigation into Mr Valetov’s actions. By a letter of 17 December 1998 the applicant was informed that the city prosecutor’s office had reversed the refusal and ordered the Sovietskiy District prosecutor’s office to carry out an inquiry.

On 5 January 1999 the Sovietskiy District prosecutor’s office reported that an inquiry had not established any evidence of the commission of a criminal offence. After the applicant had complained again, the Vladivostok City prosecutor’s office on 7 May 1999 examined the matter and confirmed this conclusion.

On 9 August 1999 the Sovietskiy District Court of Vladivostok dismissed the applicant’s action. The court held that it was not established that the applicant had lived permanently with her partner in the contested flat. The court based its conclusion on the testimonies of Mr Filippov’s son and daughter-in-law; however, the court rejected the testimony of the applicant’s daughter on the ground that she was an interested witness. The court held that five neighbours’ testimonies produced at the hearing were not sufficient to establish that the applicant and Mr Filippov had maintained a joint household. The court pointed out that the applicant retained her residence registration at the old flat and could return there. The applicant argued that the old flat measuring 26.5 square metres was occupied by her daughter, her son-in-law and her grandchildren. The court did not address this argument in the judgment. Finally, the court referred to the above mentioned decisions of the prosecutor’s offices to conclude that the contested flat did not contain any possessions belonging to the applicant.

The applicant appealed against the judgment. In the points of appeal of 17 August 1999 the applicant pointed to a very substantial body of evidence showing her residence in the contested flat (statements of witnesses, postcards, mail receipts, etc.). She alleged that her late partner’s son colluded with his police superior to acquire the flat in question, which explained why they had managed to obtain in just two days the decisions of the city administration and of the housing maintenance authority as well as the occupation certificate and residence registration stamp. She complained that she had been thrown out by force, contrary to the applicable provisions of the housing laws.

On 6 October 1999 the Civil Chamber of the Primorskiy Regional Court ( Судебная коллегия по гражданским делам Приморского краевого суда ) upheld the decision of 9 August 1999. The regional court recounted the arguments advanced by the first instance court.

The applicant submitted several requests for supervisory review, all of which were turned down.

The applicant submits that in late 1999 the flat was sold to a third party.

B. Relevant domestic law

The RSFSR Housing Code of 24 June 1983 (as amended on 28 March 1998) provides:

Article 53.  Rights and obligation of the tenant’s family members

“The tenant’s family members shall include the tenant’s spouse, their children and parents. Other relatives, disabled dependants, and – in exceptional circumstances – other persons may be recognised as the tenant’s family members if they live together with the tenant and maintain the joint household.”

Article 54. The tenant’s right to accommodate other persons in his premises

“The tenant shall be entitled to accommodate in his living premises, in accordance with the established procedure, his spouse, children, parents, other relatives, disabled dependants and other persons, subject to a written consent of all adult members of his family...

The persons accommodated by the tenant in accordance with the rules of the present article shall have the same right to use the living premises as the tenant or other members of his family provided that such persons are, or have been recognised as, members of the tenant’s family (Article 53) and that no other agreement on the use of the premises has been signed between these persons, the tenant and his family members.”

Article 90. Eviction from living premises

“Eviction from the occupied living premises in state or public housing shall only be permissible on the grounds set out in the law.

Eviction shall be sanctioned by a court...”

COMPLAINTS

The applicant complains under Article 8 of the Convention that her eviction from the flat, where she had lived with her partner for ten years, violated her right to respect for her family life and her home. The applicant complains that she was thrown out of her flat by force without this being sanctioned by a court, and that her personal effects in the flat were taken away with the result that she was unable to prove her residence in the contested flat.

The applicant also complains that the deprivation of her belongings imposed an excessive individual burden on her because the amount of her old age pension was not sufficient to purchase new furniture or life necessities.

THE LAW

1. The applicant claims to be a victim of a violation of Article 8 of the Convention, which provides 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.”

The Government submit that the applicant is not a victim of the alleged violation. According to the Government, the applicant lived in the contested flat without any legal title. She was not a spouse of the tenant of the flat and she had no legal entitlement to continuation of the tenancy. Therefore, there was no interference with her right under Article 8 § 1 of the Convention. The Government refer to the Commission decision in the S. v. the United Kingdom case (no. 11716/85, 14 May 1986, Decisions and Reports (DR) 47, p. 274).

The applicant submits that she moved into her partner’s flat as a member of his family pursuant to Article 54 of the Housing Code. She and her partner jointly furnished the flat, purchased household goods and shared maintenance expenses. She was therefore entitled to succession to the tenancy under Articles 53 and 54 of the Housing Code. She contends that the domestic courts wrongly rejected the statements of six of her witnesses who confirmed the she and her late partner enjoyed joint household maintenance. Moreover, the courts accepted without question the version presented by her partner’s son who had been an interested witness because his father had earlier refused his request to privatise the flat and bequeath it to his grandson. Also, the partner’s son was a subordinate of the police officer who obtained the occupation certificate for the flat. The applicant submits that her eviction was carried out without a court sanction as required under Article 90 of the Housing Code and Article 687 § 3 of the Civil Code, which fact violated her right to respect for her home.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The Court considers that the applicant’s complaint about the removal of her personal effects from the contested flat falls to be examined under Article 1 of Protocol No. 1 to the Convention, which provides, in the relevant part, 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 Government observe that there was no interference with the applicant’s property rights because the inquiries carried out by the prosecutor’s offices of the Sovietskiy District of Vladivostok and of the town of Vladivostok had not confirmed the applicant’s statements about the presence of her personal effects in the contested flat.

The applicant responded that the domestic courts did not examine the conclusions of these inquiries and did not give her an opportunity to make any submissions on this aspect of her claim.

Even assuming that in removing the household items from the contested flat Mr Valetov acted not as an individual to whom the premises had been re-allocated, but rather in his professional capacity as a police officer with the consequence that there was a State interference with the applicant’s right to peaceful enjoyment of her possessions, the Court is not required to examine this complaint for the following reason.

The Court observes that the applicant never brought a claim before the domestic courts for the return of her belongings. It transpires from the applicant’s statement of claim of 1 October 1998 that the scope of her civil action was limited to a request to be recognised as a family member of her late partner and a declaration of nullity of the occupation certificate of 1 September 1998. In her subsequent submissions to the first instance and appeal courts the applicant only referred to her personal effects by way of proof of her residence in the contested flat and she did not seek a court order against Mr Valetov or her late partner’s son for the return of her belongings.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning an alleged violation of her right to respect for her home ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President