THIRD SECTION

DECISION

Application no . 41148/11 Lyudmila Fedorovna and Anton Alekseyevich KONDRATYUK against Russia

The European Court of Human Rights (Third Section), sitting on 14 March 2017 as a Committee composed of:

Helen Keller, President, Pere Pastor Vilanova, Alena Poláčková, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 25 June 2011,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Lyudmila Fedorovna Kondratyuk and Mr Anton Alekseyevich Kondratyuk, are Russian nationals, who were born in 1952 and 1985 respectively and live in Moscow. They were represented before the Court by Ms K. Moskalenko and Ms A. Maralyan, lawyers practising in Moscow.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to 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.

The applicants were born in 1952 and 1985 respectively and live in Moscow. They are mother and son.

1. Transactions in respect of the flat later purchased by the first applicant

Prior to its privatisation, the flat at 17-1-189 Yeniseyskaya Ulitsa, Moscow, had been owned by the City of Moscow. L. had resided there as a tenant under the social housing agreement with the City. On 28 June 1993 the title to the flat was transferred to L. under a privatisation scheme.

On 4 June 2000 L. died.

On 23 May 2002 A. instituted proceedings against the Tax Inspectorate (which represented the State for the purposes of transferring bona vacantia assets into State ownership), claiming an inheritance on the grounds that he was L. ’ s heir according to her will of 30 December 1992, which had been certified by a notary.

On 14 November 2002 the Babushkinskiy District Court of Moscow allowed A. ’ s claim. The judgment was not appealed against and came into force on 25 November 2002.

On 17 January 2003 A. ’ s title to the flat was registered in the Unified State Register of Rights to Immovable Property and Transactions ( Единый государственный реестр прав на недвижимое имущество и сделок с ним – “the State Register”).

On 6 February 2003 A. sold the flat to the first applicant and on 7 February 2003 her title to the flat was registered in the State Register. The applicants moved into the flat.

2. Criminal proceedings against A.

On 31 August 2007 criminal proceedings were instituted against A., who had been accused of having fraudently acquired ownership of the flat.

On 5 December 2008 the Nikulinskiy District Court of Moscow convicted A. of fraud. It established that together with an unidentified person and F., a public notary, A. had forged L. ’ s will.

On 4 March 2009 the Moscow City Court upheld the judgment of 5 December 2008, in substance on appeal.

3. Termination of the first applicant ’ s title to the flat

On 4 June 2008 the Moscow Housing Department brought an action against the applicants seeking (1) the annulment of the first applicant ’ s title to the flat and the applicants ’ eviction and (2) restitution of the flat to the City of Moscow. The case was considered twice by the courts at two level of jurisdiction.

On 21 September 2010 Babushkinskiy District Court of Moscow allowed the Moscow Housing Department ’ s claim, terminated the first applicant ’ s ownership of the flat, ordered its restitution to the City of Moscow and the applicants ’ eviction. The court relied on Articles 301 and 302 of the Civil Code reasoning that, because A. had acquired L. ’ s flat fraudulently, he had, in fact, stolen it from the City of Moscow and the latter had the right to reclaim the flat from the first applicant.

On 28 March 2011 the City Court upheld the judgment of 21 September 2010 on appeal.

4. Eviction proceedings

On 19 May 2011 the District Court allowed the applicants ’ request for a one-year stay of execution of the judgment. The applicants ’ further requests for stay of execution were refused.

On 7 February 2013 the bailiff instituted enforcement proceedings.

On 20 August 2013 the second applicant was evicted. On an unspecified date he moved back into the flat.

According to the Government, the enforcement proceedings were discontinued on 16 September 2013.

5. Further developments

On 11 August 2014 the Housing Department authorised the transfer of the flat to the applicants under the social housing agreement which was signed by the parties on 18 August 2014.

On 25 September 2014 the second applicant applied for the privatisation of the flat. The first applicant chose not to apply giving her consent in writing for the transfer title to the flat to the second applicant only.

B. Relevant domestic law and practice

For a summary of the relevant domestic provisions and practice, see the case of Pchelintseva ( Pchelintseva and Others v. Russia , nos. 47724/07, 58677/11, 2920/13, 3127/13 and 15320/13, §§ 60-71, 17 November 2016 , not yet final ) .

COMPLAINTS

The applicants complained under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention about the loss of title to the flat and their eviction.

They complained under Article 6 of the Convention about the unfairness of the civil proceedings in their case.

Lastly, they alleged a violation of Article 14 of the Convention in respect of their grievances under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 of the Convention.

THE LAW

A. Alleged violation of the Convention

The applicants complained about the civil proceedings in their case resulting in their loss of housing. They relied on Articles 6, 8 and 14 of Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, which provide, in so far as relevant, as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 8

“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.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of Protocol No. 1

“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.”

The Government submitted that the case had been resolved at the domestic level and that the applicants could no longer claim to be the victims of the alleged violations. The applicants continued to reside in the flat, the second applicant being its lawful owner, while the first applicant chose not to apply for its privatisation and consented that the title to the flat be transferred to the second applicant only. The applicants maintained their complaints.

The Court does not consider it necessary to rule on whether at the time the applicants lodged the application they could claim to be “victims” of the alleged violations of the Convention, or even to determine whether they can claim that status now. In the light of the developments in the case, the Court is of the view that there is no longer any justification for examining the merits of the applicants ’ complaint, for the reasons set out below (compare Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 44, 7 December 2007 ) .

The Court reiterates that, under Article 37 § 1 (b) of the Convention, it may “at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved...”. To be able to conclude that this provision applies to the instant case, the Court must answer two questions in turn: firstly, it must ask whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy [GC] (striking out), no. 36732/97, § 42, 24 October 2002).

As regard the first question, the Court notes that, as matters stand, the material facts complained of by the applicants have ceased to exist. The applicants do not face any real and imminent risk of eviction. The enforcement proceedings in respect of the judgment delivered in the favour of the City of Moscow were closed and the title to the flat transferred to the second applicant, while the first applicant chose not to participate in the privatisation of the housing.

As to the second question, the Court notes that from 19 May 2012, when the one-year stay of the execution of the judgments in their case was lifted, to 11 August 2014, when the Moscow authorities decided to enter into a social housing agreements with the applicants, the latter experienced insecurity and legal uncertainty as regards their housing situation. The second applicant was forced to leave the flat. Nevertheless, the Court does not consider that this fact alone, in the circumstances of the case, makes the measures taken by the authorities to resolve the applicant ’ s housing problem inadequate. Regard being had to the circumstances of the case, the Court accepts that the authorities ’ decision to regularise the applicants ’ situation by transferring the flat to them, first under the social housing agreement and then by a privatisation scheme, constituted an adequate and sufficient remedy for their grievances.

Having regard to the above considerations, the Court concludes that both conditions for the application of Article 37 § 1 (b) of the Convention are met in the instant case. The matter giving rise to this complaint can therefore now be considered to be “resolved ” within the meaning of Article 37 § 1 (b). The Court also considers that no particular reason relating to respect for human rights as defined in the Convention requires it to continue its examination of the application under Article 37 § 1 in fine .

Accordingly, the application should be struck out of the Court ’ s list of cases.

B. Application of Rule 43 § 4 of the Rules of the Court

3. Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

The Court points out that, unlike Article 41 of the Convention, which comes into play only if the Court has previously found “that there has been a violation of the Convention or the Protocols thereto”, Rule 43 § 4 allows the Court to make an award solely for costs and expenses (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 132, ECHR 2007 ‑ I ).

The applicants claimed the costs and expenses incurred before the domestic courts and the Court. As regards the domestic proceedings, they claimed legal fees in the amount of 169,555 Russian roubles (RUB). They claimed RUB 150,000 in respect of the work carried out by their representatives in the proceedings before the Court. The applicants also claimed the reimbursement of (1) a fee paid to the State Register in the amount of RUB 1,000, and (2) a fee paid for the assessment of the flat ’ s value in the amount of RUB 4,500. They submitted copies of relevant receipts and agreements with the lawyers representing them. Lastly, the applicants submitted (1) a copy of the agreement of intent for a lease of a flat according to which they would have had to pay RUB 25,000 per month if they had rented the flat and (2) a copy of a letter from a bank agreeing to open a credit line for the second applicant in the amount of RUB 275,000.

The Government considered that the applicants had failed to substantiate their legal costs and expenses and that their claims should be rejected in that respect. They further submitted that the applicants ’ claims in part relating to a possibility to rent a flat or obtain a credit from the bank should be dismissed too. The applicants had not sustained those expenses and were not under any obligation to pay those amounts. Lastly, the Government conceded that the remainder of the applicants ’ claims could be granted.

The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention. In other words, in order to be reimbursed, the costs must relate to the alleged violation or violations and be reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see, for example , Shevanova , cited above, § 55) .

Regard being had to the documents in the Court ’ s possession and the above criteria, the Court considers it reasonable to award the applicants 5,000 euros (EUR), plus any tax that may be chargeable to the applicants on that amount, under all heads.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases;

Holds that the respondent State is to pay the applicants EUR 5,000 (five thousand euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant, in respect of costs and expenses.

Done in English and notified in writing on 6 April 2017 .

FatoÅŸ Aracı Helen Keller              Deputy Registrar President