Communicated on 12 November 2014

FIRST SECTION

Application no. 46728/14 Yevgeniy Viktorovich VAGANOV and others against Russia lodged on 5 June 2014

STATEMENT OF FACTS

The first applicant, Mr Yevgeniy Viktorovich Vaganov , is a Russian national, who was born in 1956 and lives in Moscow. The second applicant, the first applicant ’ s daughter, Ms Anastasiya Yevgenyevna Vaganova , is a Russian national, who was born in 1997 and lives in Moscow. The third applicant, the first applicant ’ s son, Mr Dmitriy Yevgenyevich Vaganov , is a Russian national, who was born in 1986 and lives in Moscow.

A. The circumstances of the case

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

On 6 June 1994 the first applicant bought a flat at 2 Mayakovskogo Street, Moscow (“the flat”) and has been living there with his family, including the second and third applicants. The seller of the flat, Mr Ch., had bought it from Mr S., who had acquired it under a privatisation scheme, which it later transpired had been fraudulent. The facts relating to the ownership of the flat prior to the first applicant ’ s acquisition of it and the subsequent decision to declare his title null and void and to evict the applicants may be summarised as follows.

1. Privatisation and sale of the flat

The flat had initially been owned by the City of Moscow. On 9 December 1983 Ms I. was provided with the flat under the social tenancy agreement.

Ms I. died on 3 May 1994.

In May 1994 Mr S., who acted on Ms I. ’ s behalf on the basis of a power of attorney certified by a notary, submitted application for privatisation of the flat. The application was granted, and on 19 May 1994 Ms I. ’ s property rights to the flat were registered at the Moscow Department of Municipal Housing.

On 24 May 1994 Mr S., still acting on Ms I. ’ s behalf on the basis of the same power of attorney, sold the flat to Mr Ch. The latter ’ s property rights to the flat were registered at the Moscow Department of Municipal Housing on the same date.

On 6 June 1994 Mr Ch. sold the flat to the first applicant. The contract of sale was certified by a notary and the first applicant ’ s property rights to the flat were registered at the Moscow Department of Municipal Housing on the same date.

The first applicant obtained residential registration in the flat on 23 January 1997, his wife was registered there on 5 August 1998, and the second and third applicants on 10 August 1999 and 18 July 2000 respectively. The first applicant also registered in the flat his mother-in-law, Ms G. K., and his sister-in-law, Ms O. K., with her two sons, Mr Rom. K. and Mr Rus. K., who also moved into the flat.

2. Criminal proceedings against third persons

On 7 August 1997 the investigating authorities requested the Moscow Committee of Municipal Housing (which had been previously called the Moscow Department of Municipal Housing) to provide documents concerning property rights to the flat.

On 13 October 1997 the investigating authorities ordered attachment of the flat within the framework of criminal proceedings instituted against third persons.

On 4 August 2000 the attachment was lifted.

On 16 April 2001 the Kuzminskiy District Court of Moscow convicted a Mr T. of fraud with respect to forty-two flats, including the first applicant ’ s. The court noted in the judgment that the prosecutor did not request the restitution of the flats.

Neither the applicants nor other members of their family registered in the flat were granted victim status in the proceedings and they were unaware of the proceedings until 2011.

3. Challenge to the applicants ’ title and eviction proceedings

(a) Divorce proceedings and invalidity of the contract of sale

In 2011 the first applicant ’ s wife, Ms V., instituted proceedings for divorce and division of property. The first applicant brought a counter claim.

On 14 March 2012 the Taganskiy District Court of Moscow granted the claims for divorce and divided certain other property between the first applicant and Ms V. As regards the flat, the Moscow Housing Department (which had been previously called the Moscow Committee of Municipal Housing) submitted in the hearing that as a result of fraudulent actions the rights of the flat ’ s lawful owner, the City of Moscow, had been violated, and that it was going to institute separate court proceedings in this respect. The court noted that by the judgment of the Kuzminskiy District Court of Moscow of 16 April 2001 Mr T. had been found guilty of fraud, including fraudulent privatisation and subsequent sale of the flat, which infringed the rights of its lawful owner, the City of Moscow. It therefore dismissed the first applicant ’ s and Ms V. ’ s claims to divide the flat, declared the contracts of sale between Mr S. and Mr Ch. and between the first applicant and Mr Ch. null and void and noted that it was open to the Moscow Housing Department to institute proceedings so as to apply the consequences of the contract ’ s invalidity.

The first applicant and Ms V. appealed.

On 6 June 2012 the Moscow City Court upheld on appeal the judgment of the Taganskiy District Court of Moscow of 14 March 2012.

(b) Vindication and eviction proceedings

On 7 May 2013 the Moscow Housing Department instituted proceedings against the applicants, Ms V., Ms G. K., Ms O. K., Mr Rom. K. and Mr Rus. K. seeking termination of their rights to the flat and annulment of their residential registration in the flat, their eviction, and return of the flat to the City of Moscow.

In the proceedings the defendants argued that the first applicant was a bona fide acquirer, that the contract of sale and his property rights to the flat were duly registered by State authorities, that he has openly owned the flat since 1994 and paid all the communal charges, and that the Moscow Housing Department brought the claim outside the three-years statute of limitations.

On 17 September 2013 the Taganskiy District Court of Moscow granted the claim of the Moscow Housing Department. It noted that in its judgment of 14 March 2012, which became final and enforceable, it had found the contracts of sale between Mr S. and Mr Ch. and between Mr Ch. and the first applicant null and void. It also found the privatisation of the flat null and void and restored the title to the flat to the Moscow Housing Department, to which it had belonged before it was privatised. It further found that, as the City of Moscow had lost title to the flat as a result of fraudulent actions, the statute of limitations did not apply. The court noted that it was open to the first applicant to institute proceedings for damages against Mr Ch. It also ordered eviction of the defendants.

The defendants appealed.

On 18 December 2013 the Moscow City Court upheld the judgment of the Taganskiy District Court of Moscow of 17 September 2013 on appeal. The court noted, in particular, that the Moscow Housing Department had brought the claim within the statute of limitations as it only had become aware of the violation of its property rights in 2012, in the course of the divorce proceedings between the applicant and Ms V., as it had not participated in the criminal proceedings which had resulted in Mr T. ’ s conviction in 2001.

The first applicant lodged cassation appeal before the Presidium of the Moscow City Court.

On 15 May 2014 judge K. of the Moscow City Court refused to refer the first applicant ’ s cassation appeal to the Presidium.

The first applicant then lodged cassation appeal before the Russian Supreme Court. It is not clear whether it has been examined.

B. Relevant domestic law

1. Civil Code

Article 167 General provisions on the consequences of declaring a transaction void

“1. A void transaction shall not entail legal consequences, except those connected with the decision to declare it void, and shall be considered void from the time of its conclusion.

2. If a transaction has been declared void, the parties shall return to each other everything they received as part of the transaction, or if that is impracticable (including where the transaction concerns the use of property, work performed or services rendered), they shall pay compensation – unless other consequences of the decision to declare the transaction void have been stipulated by law.

3. If it follows from the content of the impugned transaction that it may not be terminated until a future date, the court, while recognising the transaction as void, shall fix a future date for the termination of its operation.”

Article 302 Reclaiming property from a bona fide acquirer

“1. If a property has been purchased from a person who had no right to alienate it, and the acquirer is unaware and could not have been aware of that fact (the bona fide acquirer, or the acquirer in good faith), the original owner has the right to reclaim the property from the acquirer. Such a claim can arise only if the said property was lost by the owner or a person into whose possession the owner had passed the property; or if it was stolen from one or the other; or if it left their possession in some other way, without an intention on their part to divest themselves of it.

2. If the property has been acquired without consideration from a person who had no right to alienate it, the original owner has the right to reclaim the property in all cases.

3. Money and securities in respect of the property shall not be reclaimed from a bona fide acquirer.”

2. Constitutional Court, Supreme Court and High Commercial Court

By its ruling no. 6-P of 21 April 2003 the Constitutional Court interpreted Article 167 of the Civil Code as not allowing the original owner to reclaim his property from a bona fide buyer unless there was a special legislative provision to that effect. Instead, a claim vindicating prior rights ( виндикационный иск ) could be lodged under Article 302 of the Code if the conditions indicated in paragraphs 1 and 2 had been met, in particular if the property had left the owner ’ s possession without an intention on his part to divest himself of it, or if the property had been acquired without consideration.

The Plenaries of the Supreme Court of the Russian Federation and of the High Commercial Court of the Russian Federation provided a further interpretation of Article 302 of the Civil Code in the second paragraph of item 39 of their joint ruling of 29 April 2010, no. 10/22 “On questions arising in judicial practice concerning resolution of disputes connected with the protection of property rights” and in the Constitutional Court ’ s ruling of 27 January 2011, no. 188 ‑ O ‑ O. They held in particular that there was no automatic link between declaring a transaction void and an owner ’ s intention to divest himself or herself of the property. The Constitutional Court ’ s ruling held, in so far as relevant, as follows:

“... the uncertainty of the legal provisions [including Article 302] challenged by the claimant is eliminated by the interpretation of the Plenary of the Supreme Court of the Russian Federation and the Plenary of the High Commercial Court of the Russian Federation, contained in the second paragraph of item 39 of the [ruling of 29 April 2010, no. 10/22]: ‘ the decision to declare void the transaction in which the property was transferred does not by itself prove that the property left the possession of the owner without an intention on his part to divest himself of it; the courts need to establish whether the owner intended to transfer possession to another person ’ ”.

COMPLAINTS

1. The first applicant complains, under Article 1 of Protocol No. 1 to the Convention, that he was deprived of his possessions. He argues that the State was aware of Mr Ch. ’ s transactions in respect of the flat, that his property rights were duly registered by the State authorities, and that the first applicant should be protected as a bona fide acquirer.

2. The applicants complain, under Article 8 of the Convention, about the forthcoming eviction, alleging that it would be unlawful and disproportionate.

QUESTIONS TO THE PARTIES

1. In the light of the judgment by the Taganskiy District Court of Moscow of 17 September 2013 (upheld on 18 December 2013 ), is the applicants ’ eviction from the flat imminent? Where would the applicants be lodged after eviction?

2. Are the applicants able to request postponement of the eviction on the ground that they cannot afford substitute housing or that an application is pending before the Court?

3. Has the first applicant been deprived of his possessions in the public interest, in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1?

If so, was that deprivation necessary to control the use of the property in accordance with the general interest? In particular, did that deprivation impose an excessive individual burden on the applicant?

4. Has there been an interference with the applicants ’ right to respect for their home, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?