Communicated on 13 October 2014

FIRST SECTION

Application no. 58647/14 Igor Nikolayevich LOGINOV against Russia lodged on 15 August 2014

STATEMENT OF FACTS

The applicant, Mr Igor Nikolayevich Loginov , is a Russian national, who was born in 1976 and lives in Moscow. He is represented before the Court by Mr K. Terekhov , a lawyer practising in Moscow.

A. The circumstances of the case

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

On 20 September 2010 the applicant and his son, Mr D.L., acquired a flat at 53/4 Festivalnaya street , Moscow (“the flat”) under an exchange agreement with his brother who, in turn, acquired rights to another flat from the applicant. As it later transpired, one of the previous transactions with the flat had been fraudulent. The facts relating to the ownership of the flat prior to the applicant ’ s acquisition of it and the subsequent decision to declare his title null and void may be summarised as follows.

1. Transactions with the flat

The flat had been previously owned and occupied by Ms F., who died in 2008.

Later Mr M. forged a contract of sale of the flat between him and Ms F. and dated it 13 August 2009.

On 26 August 2009 the contract of sale was registered by the State authorities despite the fact of Ms F. ’ s death in 2008. Mr M. property rights to the flat were registered on the same date.

On 19 December 2009 Mr M. sold the flat to Mr S. The contract of sale and Mr S. ’ s property rights to the flat were registered by the State authorities on 12 January 2010.

On 28 April 2010 the applicant ’ s brother purchased the flat from Mr S. The contract of sale and the applicant ’ s brother ’ s property rights to the flat were registered by the State authorities on 27 May 2010.

On 20 September 2010 the applicant and his son, Mr D.L., concluded with the applicant ’ s brother the above mentioned exchange agreement, pursuant to which they acquired property rights to the flat. Their property rights were registered by the State authorities on 6 October 2010 .

The applicant subsequently moved into the flat with Mr D.L. It appears that Ms N.V., the applicant ’ s wife, has also moved into the flat. The applicant ’ s daughter, Ms V.L., born in June 2013, has also been living in the flat.

2. Criminal proceedings against Mr M.

On 15 March 2012 the Tushinskiy District Court of Moscow found Mr M. and two co-accused guilty of swindling. The court found, in particular, that Mr M. had forged the contract of sale between him and Ms F.

3. Challenge to the applicant ’ s ownership and eviction proceedings

On 18 October 2010 the Moscow Housing Department ( Управление департамента жилищной политики и жилищного фонда г . Москвы ) instituted proceedings against the applicant, Mr D.L., Ms V.L. and Ms N.V. seeking to have the sale of the apartment in 2009 declared void, the applicant and his family members evicted and the flat returned to the City of Moscow.

On 29 November 2013 the Golovinskiy District Court of Moscow granted the claim. The court found that the sale of the flat in 2009 had constituted a fraudulent transaction and therefore declared it null and void. The applicant argued that the State was duly informed about Ms F. ’ s death, however, and took no steps to have the flat declared heirless property with a view to its subsequent transfer into State property. The court dismissed this argument as follows:

“The [applicant ’ s] argument that [the flat] left the claimant ’ s ownership as a result of the claimant ’ s failure to take due measures to secure it and to register its rights cannot be taken into consideration and serve as a basis of the judgment as the claimant ’ s failure to take these measures does not as such prove its intention to divest itself of [the flat]. Furthermore, in [a judgment in the criminal case against Mr M.] the [fact of the] theft of [the flat] has been established.

The [applicant ’ s] representatives ’ argument that the claimant failed to prove its title to [the flat] cannot be taken into consideration and serve as a basis of the judgment either.”

The court further stated as follows:

“Since the claim is based on factual circumstances, the fact that the claimant relied on a particular provision is not decisive for the court ’ s choice of applicable law for the resolution of the dispute. In such circumstances the court finds that Article 302 of the Civil Code applies to the [present case].”

The court found that the Moscow Housing Department could protect its rights by way of a vindication claim against the defendants under Article 302 of the Civil Code and that, in the circumstances, this claim should be granted. The court also dismissed the defendant ’ s argument that the Moscow Housing Department missed the statutory time-limits for bringing the claim and noted that the defendants could claim damages from the applicant ’ s brother. The court thus ordered to terminate the applicant ’ s and Mr D.L. ’ s property rights to the flat, to grant the title to the flat to the Moscow Housing Department and to evict the applicant, Ms V.L. and Ms N.V. The court dismissed the claim in the part concerning Mr D.L. ’ s eviction having established that he was actually living with his mother at a different address.

The applicant appealed.

On 24 March 2014 the Moscow City Court upheld the judgment on appeal.

B. Relevant domestic law

1. Civil Code

1 . The relevant provisions of the Civil Code read as follows:

Article 167 General Provisions on Consequences of Invalidity of a Transaction

“1. An invalid transaction shall not entail legal consequences, with the exception of those connected with its invalidity, and shall be invalid from the moment of its conclusion.

2. If a transaction has been recognised as invalid, each of the parties shall be obliged to return to the other party all it has received as part of the transaction, and if return is impossible in kind (including where the transaction concerns the use of property, work performed or services rendered), its cost shall be reimbursed in money - unless other consequences of the invalidity of the transactions have been stipulated by law.

3. If it follows from the content of the disputed transaction that it may only be terminated for the future, the court, while recognising the transaction as invalid, shall terminate its operation for the future.”

Article 196 General time-limit of the statute of limitations

1. General time-limit of the statute of limitations is three years since the date determined in accordance with Article 200 of the Code ...

Article 197 Special time-limits of the statute of limitations

1. Special time-limits may be set by law for certain types of claims ...

Article 199 Application of the statute of limitations

1. The court shall accept the claim for examination irrespective of the expiry of the statute of limitations.

2. The statute of limitations shall only be applied upon a party ’ s request made before the delivery of the court ’ s judgment. The expiry of the statute of limitations ... constitutes a ground for the court ’ s decision to dismiss the claim ...

Article 200 Running of the statute of limitations

1. Unless the law provides otherwise, the statute of limitations begins to run on the date when the person learned or must have learned of the breach of his right and of the identity of the due defendant ...

Article 301 Reclaiming property from a third party ’ s unlawful possession

The owner has a right to reclaim his property from a third party ’ s unlawful possession.

Article 302 Reclaiming property from a bona fide acquirer

“1. If the property has been purchased for a price from a person who had no right to alienate it, and the acquirer is unaware and could not have been aware (the bona fide acquirer, or the acquirer in good faith), the owner shall have the right to reclaim this property from the acquirer, if the said property was lost by the owner or by the person into whose possession the owner has passed the property, or if it was stolen from one or the other, or if it has left their possession in another way, in the absence of 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 owner shall have the right to reclaim the property in all cases.

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

Article 1151 Inheritance of heirless property

1. If there are no heirs under either the legal succession or the testamentary succession, or if none of the heirs has the right to inherit, or if all of them are disinherited, or if all of them refused the inheritance and none of them indicated that he/she refused it in favour of another heir, the property is considered heirless.

2. Heirless property consisting of residential premises in the territory of the Russian Federation shall be transferred under legal succession into property of the municipality in whose territory it is situated; if it is situated in the constituent entity of the Russian Federation or in a federal city, i.e. Moscow or St.-Petersburg, [it shall be transferred] into property of such entity. Such premises shall be included in the residential fund for social housing. Other heirless property shall be transferred under legal succession into property of the Russian Federation.

3. The procedure for succession and registration of heirless property transferred under legal succession into property of the Russian Federation, as well as its transfer into property of constituent entities of the Russian Federation and municipalities shall be governed by the law.

Article 1154 Time -limits for acceptance of inheritance

1. Inheritance must be accepted within six month since the date of the opening of the inheritance ...

3. Persons, whose inheritance rights only arise by virtue of non-acceptance of the inheritance by other heirs, may accept the inheritance within three months since the expiry of the time-limit set forth in paragraph 1 of the present Article.

2. Constitutional Court

2 . By its ruling no. 6-P of 21 April 2003 the Constitutional Court interpreted Article 167 of the Code as not allowing the first owner to reclaim his property from a bona fide buyer unless there is a special legislative provision to this 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 are met, in particular if the property has left the owner ’ s possession in the absence of intention on the part of him or her to divest themselves of it, or if the property has been acquired without consideration.

3. Plenary of the Supreme Court and Plenary of the High Commercial Court

3 . Further interpretation of Article 302 of the Civil Code was provided by 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 their joint ruling of 29 April 2010, no. 10/22 “On certain questions arising in judicial practice in respect of resolution of disputes connected with the protection of property rights and other real rights” and in the Constitutional Court ’ s ruling of 27 January 2011, 188 ‑ O ‑ O. They held in particular that there was no automatic link between the invalidity of a transaction and an owner ’ s intention or otherwise, to divest himself/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 invalidity of the transaction in execution of which the transfer of property was effected does not by itself prove that it left the possession of the owner in the absence of intention to divest on their part; the courts need to establish whether the owner intended to transfer possession to another person ’ ”.

4. Fundamentals of Legislation on Notaries

4 . Under Article 1 of the Fundamentals of Legislation on Notaries of 1993, amended in 2014, notaries are responsible for protecting rights and lawful interests of individuals and legal entities in accordance with the Constitution of the Russian Federation and applicable legislation by means of carrying out notarial acts on behalf of the Russian Federation.

COMPLAINTS

The applicant complains under Article 8 of the Convention about his imminent eviction and under Article 1 of Protocol No. 1 that he was deprived of his possessions .

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s peaceful enjoyment of his possessions, within the m eaning of Article 1 of Protocol No. 1?

If so, has the interference been 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? Did that interference impose an excessive individual burden on the applicant (see Gladysheva v. Russia , no. 7097/10, §§ 64-83, 6 December 2011) ?

2. Has there been an interference with the applicant ’ s right to respect for his 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? ( see Gladysheva v. Russia , cited above , §§ 94-97)