THIRD SECTION

DECISION

Application no . 24349/05 Karen Sergeyevich POGOSYAN against Russia

The European Court of Human Rights (Third Section), sitting on 4 July 2017 as a Committee composed of:

Luis López Guerra, President, Dmitry Dedov , Jolien Schukking , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 9 June 2005,

Having regard to the formal declarations accepting a friendly settlement of the case,

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

1. The applicant, Mr Karen Sergeyevich Pogosyan , is a Russian national, who was born in 1954 and lives in Moscow. He was represented before the Court by Mr Y.A. Bobrov , a lawyer practising in Moscow.

2. The Russian Government (“the Government”) are represented 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 .

A. The circumstances of the case

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

4. In 1990 following an upheaval in Baku the applicant fled to Moscow . The local authorities provided him, along with the other refugees, with a room in a hotel and temporarily registered him there. It appears that the authorities have been prolonging the temporary registration until now.

5. In June 2003, in accordance with the judgment of the Gagarinskiy District Court of Moscow of 11 March 2003, the applicant was issued a Russian passport.

1. Proceedings concerning the applicant ’ s registration

6. In 2002 and 2003 the applicant applied to the passport department at the “ Lomonosovskiy ” police station in Moscow ( паспортный стол ОВД “ Ломоносовский ” г. Москвы ) for “permanent residence registration”. By the letters of 15 January 2003 and 15 May 2003 the application was refused. The applicant brought court proceedings against the police station.

7. On 16 February 2004 the Gagarinskiy District Court of Moscow found for the applicant and ordered the police station to make “permanent residence registration” at the hotel.

8. A joint-stock company (“the Company”), which at the time had become an owner of the hotel, lodged an appeal. The courts refused to consider it as the Company was not a party to the proceedings.

9. On an unspecified date the Company requested reconsideration of the case by way of supervisory review. On 9 December 2004 the Presidium of the Moscow City Court allowed the request and quashed the judgment of 16 February 2004 noting that the Company ’ s rights were violated as it was the owner of the hotel but was not a party to the proceedings. The court also noted that the inferior court had misinterpreted the material law.

10. On 11 October 2005 the Gagarinskiy District Court rejected the applicant ’ s claims. It noted, inter alia , that the applicant failed to provide the police station with a document confirming his right to move into his room in the hotel; that a hotel room can be used only as a temporary residence and the applicant ’ s permanent registration therein was impossible; that, despite the applicant ’ s assertions, his social and political rights, including the rights to vote, to medical and employment assistance, were not violated, as the applicant had a temporary registration in the hotel.

11. The applicant appealed against the judgment without referring to the alleged violations of his social and political rights.

12. On 24 November 2005 the Moscow City Court upheld the judgment on appeal.

2. Proceedings concerning the applicant ’ s eviction

13. In another set of proceedings, the Company sought the applicant ’ s eviction. On 6 July 2004 the Gagarinskiy District Court rejected the Company ’ s claim. It found that until 2000 the applicant was a refugee, had been lawfully moved in the hotel by a decision of the local authorities. The court also noted that the applicant had not been provided with “place of residence”.

14. On 10 November 2004 the Moscow City Court upheld the judgment on appeal.

15 . In December 2009 the Company offered the applicant a flat under a deed of gift. It appears that the applicant did not respond to this offer.

B. Relevant domestic law

16. The relevant domestic law governing the supervisory review procedure in force between 1 February 2003 and 7 January 2008 is summarised in Kot v. Russia (no. 20887/03, § 17, 18 January 2007).

17. On 25 June 1993 Russia adopted a Law on the right of Russian citizens to liberty of movement and freedom to choose their place of stay and place of residence within the Russian Federation (Law no. 5242-I – “the Law on Registration”).

18 . Article 2 of the Law on Registration provides main terms used in the law. Particularly it envisaged a “place of stay” as a hotel, a sanatorium, a camping ... and a “place of residence” as a flat, a house ...

19 . Under Article 3 of the Law on Registration the absence of a registration does not restrict the rights and freedoms of the Russian citizens provided by the Constitution of the Russian Federation, federal and regional laws.

COMPLAINTS

20. The applicant complains under Article 6 § 1 of the Convention about the quashing of the final judgment in his favour . He also complains under Articles 13 and 14 of the Convention and Article 2 of Protocol No. 4 to the Convention about the refusal of “permanent residence registration” and ensuing violations of his social rights, including the right to work, to medical assistance, and to housing.

THE LAW

21. The applicant complained that by the final judgment in his favour the first instance court had ordered the public authorities to make “permanent residence registration” at the hotel. The quashing by way of supervisory review of that judgment constituted infringement of his right to fair trial under Article 6 of the Convention.

22. The Government contested the applicant ’ s claims arguing that the refusal of the applicant ’ s “permanent residence registration” was in accordance with the domestic law insofar as the hotel, where the applicant lived, was considered as “place of stay” rather than “place of residence” within the meaning of the Law on Registration. The Government further submitted that the District Court failed to invite the Company, the owner of the hotel, to take part in the proceedings. As a result, it delivered a judgment which adversely affected the interests of the Company. They further argued that the applicant ’ s rights had never been restricted or infringed with regard to the absence of registration and that the applicant ’ s “temporary registration” at his “place of stay” was being prolonged. Finally the Government argued that the Company offered the applicant a flat under the deed of gift. However the applicant refused to reside.

23. The applicant maintained his claims.

24. The Court notes at the outset that in the instant case the applicant ’ s main grievances concern the quashing of the final judgment in his favour by way of supervisory review.

25. The Court has found a violation of an applicant ’ s “right to a court” guaranteed by Article 6 § 1 of the Convention in many cases in which a judgment that had become final and binding was subsequently quashed by a higher court with the view of carrying out a fresh examination (see Dovguchits v. Russia , no. 2999/03 , §§ 26-31, 7 June 2007; Kudrina v. Russia , no. 27790/03 , §§ 15-20, 21 June 2007; Sidorenko v. Russia , no. 3519/05 , §§ 12-19, 26 July 2007; and Kot , cited above, §§ 23 ‑ 30).

26. The Court has to assess whether in the present case the quashing of the final judgment in the applicant ’ s favour by way of supervisory review was justified by the circumstances and whether a fair balance between the interests of the applicant and the need to ensure the proper administration of justice, which includes the interest of the third party, has been achieved.

27. The Court observes that the judgment of 16 February 2004 in the applicant ’ s favour was set aside by way of a supervisory review on the ground that the District Court had failed to identify all the parties to the proceedings and to invite the Company, as the owner of the hotel, to participate in the proceedings, with the result that the rights of the latter were adversely affected by the above judgment.

28. The Court further observes that the Company knew about the judgment of 16 February 2004 only after it had become final and that even it lodged an ordinary appeal against that judgment, its appeal was dismissed as the Company was not a party to the proceedings .

29. Therefore, through no fault of the Company which was not a party to the proceedings the domestic court rendered a judgment which directly affected its rights.

30. The Court considers that the circumstances referred to were in their nature and significance such as to justify the quashing of the final judgment and that this was not inconsistent with the principle of legal certainty (see, for the similar reasoning, Protsenko v. Russia , no. 13151/04, §§ 30-33, 31 July 2008 ).

31. The Court finds, therefore, that th is complaint should be declared inadmissible pursuant to Article 35 § 3(a) and 4 of the Convention as manifestly ill-founded.

32. As regards the applicant ’ s complaint under Article 2 of Protocol No. 4 to the Convention the Court considers that unlike other similar cases (see, for instance, Tatish vili v. Russia , no. 1509/02, ECHR 2007 ‑ I ) the applicant holds a temporary registration which is being prolonged annually. The Court takes a note that under domestic law (see paragraph 19 above) the rights and freedoms of the applicant cannot be restricted due to the absence of the permanent registration. In this regard the applicant did not substantiate to what extent does the authorities interfered with his right to liberty of movement and freedom to choose his residence guaranteed by Article 2 of Protocol No. 4 to the Convention.

33. It thus follows that this complaint should also be declared inadmissible pursuant to Article 35 § 3(a) and 4 of the Convention as manifestly ill-founded.

34. The applicant also complains about violations of his social rights (to work, to medical assistance, to housing, etc.), as a result of the refusal in “permanent residence registration”. The applicant failed to raise the issue before the domestic courts. Therefore this complaint should be declared inadmissible pursuant to Article 35 § 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 July 2017 .

FatoÅŸ Aracı Luis López Guerra              Deputy Registrar President