Published on 20 September 2021

THIRD SECTION

Application no. 49791/20 OOO DV SOVREMENNAYA STROITELNAYA KOMPANIYA against Russia lodged on 6 November 2020 communicated on 3 September 2021

SUBJECT MATTER OF THE CASE

In 2006 the applicant company bought a garage from the State (regional) property as a result of a bidding procedure. On behalf of the seller the State unitary enterprise “Gosnedvizhimost” signed the contract. At some point, criminal proceedings on suspicion of fraud were instituted against the fonctionnaires of “Gosnedvizhimost” and of the respective State bodies, and in 2010 the Administration of the Primorskiy Region was granted victim status. In 2016 the mentioned persons were convicted for fraud that had consisted of the sale of several objects, including the applicant company’s garage, at artificially low prices. The application concerns the annulment by the commercial courts in 2019-2020 of a bidding procedure, of a purchase contract as well as of the applicant company’s property title on the basis of that criminal conviction, without any compensation. The courts recognized that the authorities lodged their claim outside the statutory limitation period of three years but did not apply it relying on an “abuse of rights”.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention, in terms of annulment of the applicant company’s property title to the garage?

2. If yes, was the interference with the applicant company’s property rights carried out “subject to the conditions provided for by law” (see Vistiņš and Perepjolkins [GC], no. 71243/01, §§ 95-97, 25 October 2012, with further references)?

In particular:

(a) Did the authorities comply with the time limit for introducing an action for annulment of the bidding procedure and the purchase contract (see Arzamazova v. the Republic of Moldova , no. 38639/14, § 47, 4 August 2020)?

(b) What was the legal basis for applying vindication and not applying restitution by the domestic courts, namely for not providing the applicant with any compensation for the annulled property title?

(c) Did the applicant company act as a bona fide buyer when it signed the purchase contract? In particular, did it pay the contract price in due terms? Was any of the persons convicted by the sentence of the Primorskiy Regional Court of 5 December 2016 (rectified on appeal by the Supreme Court of Russia on 28 December 2017) those of the applicant’s directors / shareholders / employees (see, mutatis mutandis , OOO Avrora Maloetazhnoe Stroitelstvo v. Russia , no. 5738/18, § 74, 7 April 2020, with further references, and mutatis mutandis , Agapov v. Russia , no. 52464/15, § 60, 6 October 2020)?

3. Did the interference serve a legitimate public (or general) interest, within the meaning of Article 1 of Protocol No. 1 to the Convention (see Vistiņš and Perepjolkins , cited above, § 106)?

4. Was the interference reasonably proportionate to the aim sought to be realised? In particular:

(a) Did the interference impose an excessive individual burden on the applicant, taking into account the deprivation of property without compensation (see, mutatis mutandis, Arzamazova , cited above, § 52)?

(b) Did the authorities envisage the possibility of less restrictive alternative measures, such as recovery of the difference between the “real” price of the building and the “artificially low” price paid by the applicant (see, mutatis mutandis , G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 301, 28 June 2018)?

5. Did the applicant have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, was the refusal of the domestic courts to apply the rules concerning the limitation period with reference to the prohibition of abuse of rights compatible with the principle of legal certainty as guaranteed by Article 6 of the Convention (see Baroul Partner-A v. Moldova , no. 39815/07, § 41, 16 July 2009, and Sanofi Pasteur v. France , no. 25137/16, § 50, 13 February 2020, with further references)?