Communicated on 30 June 2014

FIRST SECTION

Application no. 21363/09 Roman Aleksandrovich STREKALEV against Russia lodged on 9 March 2009

STATEMENT OF FACTS

The applicant, Mr Roman Aleksandrovich Strekalev, is a Russian national, who was born in 1978 and lives in Moscow.

A. The circumstances of the case

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

On 19 November 2002 the applicant bought a flat at 103 Dmitrovskoe Shosse, Moscow (“the flat”) and has been living there with his wife and her son, who was born in 1999. The seller of the flat, Mr K., had acquired it under the privatisation scheme, which it later transpired 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. Privatisation and sale of the flat

The flat had been occupied since 1968 by Ms N. and her son Mr B., who had lived there under a social tenancy agreement. Ms N. died in 1993 and Mr B. died in 1994. However, their names were not removed from the residential register.

On 7 June 2002 the authority supervising real property transactions in Moscow ( Moszhilservice ) received an application submitted in the name of Ms N. for exchange of the flat for one in the town of Staritsa, in the Tver Region.

On 10 June 2002 Mr K. applied to Moszhilservice for the exchange of his flat in Staritsa for that of Ms N. As proof of his title to the flat in Staritsa, Mr K. enclosed a contract of sale of 6 June 2002 certified by a notary and a property certificate of the same date.

By a decision of 11 June 2002 Moszhilservice authorised the exchange of flats. Mr K. was subsequently issued with documents that entitled him to move into the flat.

On 16 May and 23 July 2002 respectively Mr B. and Ms N. were removed from the residential register as occupants of the flat.

On 25 July 2002 Mr K. was registered as residing in the flat.

On 16 October 2002 Mr K. privatised the flat and on 11 November 2002 he was issued with a property certificate.

On 18 November 2002 the applicant and Mr K. concluded a contract of sale of the flat. The contract was entered in the register of property transactions on 19 November 2002, and the applicant was issued with a property certificate on 22 November 2002.

The applicant subsequently moved into the flat with his family.

2. Criminal proceedings against Mr K.

On 14 August 2003 criminal proceedings were instituted in respect of the fraudulent exchange of flats. Other incidents of fraudulent property transactions were identified in the context of criminal case no. 245617. It was established, in particular, that Mr K. had been acting with Mr T. as part of an organised criminal group. The latter, following a similar pattern, had exchanged a flat in Moscow for a non-existent flat elsewhere and had then sold the Moscow flat to Mr A.

Both Mr K. and Mr T. absconded from the investigation.

On 14 February 2004 the criminal proceedings were suspended pending the search for the suspects.

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

In 2006 the prosecutor of the Central District of Moscow, acting on behalf of the Moscow Housing Department, instituted proceedings against the applicant and Mr K. seeking to have the exchange of flats carried out in 2002 and the sale of the apartment in 2006 declared void, and to have the flat returned to the City of Moscow.

On 17 April 2006 the Timiryazevskiy District Court of Moscow granted the claim. The court found that the exchange of flats in 2002 had constituted fraudulent misrepresentation, as Ms N. had been dead for several years prior to the transaction whereas the flat in Staritsa had never existed, and the documents submitted by Mr K. as proof of his title to that flat had been forged. It therefore declared the exchange of flats null and void. On those grounds the court declared null and void the privatisation of the flat by Mr K., the sale thereof to the applicant and his title to that flat, and ordered the applicant ’ s eviction. The court restored the title to the flat to the Moscow Housing Department, to which it had belonged before it was privatised by Mr K.

The applicant appealed.

On 24 October 2006 the Moscow City Court upheld the judgment on appeal.

4. Proceedings against the Moscow Housing Department

In the course of the above civil proceedings the applicant brought a claim for damages against the Moscow Housing Department, arguing that the Moscow authorities had failed to ensure that the exchange of flats had been lawful. The proceedings were stayed on the ground that the claim was premature.

After the decision to declare the applicant ’ s title to the flat void had become final, the applicant resubmitted his claim against the Moscow Housing Department. He asked them to provide him with a flat of equal value.

On 12 May 2008 the Presnenskiy District Court dismissed the claim, finding no link between the authorities ’ actions and the alleged damage.

On 18 September 2008 the Moscow City Court upheld the judgment on appeal.

The subsequent applications submitted by the applicant for supervisory review of the decisions were unsuccessful.

5. Eviction proceedings

On 5 February 2007 execution proceedings were instituted.

Following a request by the applicant, on 1 June 2007 the Timiryazevskiy District Court of Moscow extended the time-limit for the execution of the judgment on his eviction by six months.

The applicant ’ s requests for further extensions were refused. He and his family then moved out of the flat, leaving most of their belongings there, and were temporarily accommodated by a friend.

Subsequently, the applicant found out that no changes had been made to the property register, in which he remained registered as the owner of the flat, and the demands to vacate the flat ceased. Therefore, he moved back into the flat, where he continued living undisturbed for several years and made regular payments for the communal charges as the flat ’ s owner.

However, on 30 March 2012 the Moscow Housing Department applied to the Timiryazevskiy District Court of Moscow for a duplicate of the writ of execution. They stated that the original documents had been lost in the course of an internal reorganisation of the bailiff service.

On 29 May 2012 the Timiryazevskiy District Court of Moscow granted the request to issue a duplicate of the writ of execution. The applicant argued that the three-year time-limit for execution of the judgment had expired. The court dismissed the argument, having found that the time-limit applied to the submission of the writ for execution. In the applicant ’ s case the writ had been submitted for execution on 5 February 2007, which had interrupted the running of the time-limit. The execution had not been completed because the writ had been lost by the bailiff service, namely owing to circumstances independent of the claimant ’ s will.

The applicant appealed.

On 22 June 2012 the Moscow City Court upheld the decision to issue a duplicate of the writ of execution.

The applicant lodged a cassation appeal.

On 29 August 2012 the Moscow City Court, in cassation proceedings, upheld the decisions of 29 May and 22 June 2012.

On 31 August 2012 the duplicate of the writ of execution was submitted to the bailiff service and execution proceedings were instituted on the same date.

The applicant received the writ of execution on 26 September 2012 and applied to the court for an extension of the time-limit for its execution.

On 12 October 2002 the Timiryazevskiy District Court of Moscow dismissed the application. The applicant lodged an appeal.

Meanwhile, on 4 October 2012, the bailiff service ordered the applicant to comply with the writ of execution within five days. The order stated that the applicant had failed to comply with the writ submitted for execution on 31 August 2012.

The applicant appealed against the order and requested a new time-limit for execution. He claimed, firstly, that he had not received the order of 4 October 2012 until 10 November 2012. Secondly, he argued that he could not be held responsible for non-compliance with the writ submitted for execution on 31 August 2012 as he had applied to the court for an extension of the time-limits for execution, of which the bailiff service had been informed. Although his application had been refused, the proceedings concerning his appeal against the refusal to extend the time-limits were still pending.

On 4 December 2012 the Timiryazevskiy District Court of Moscow dismissed the applicant ’ s appeal.

In a different decision of the same date the Timiryazevskiy District Court of Moscow ordered the applicant to pay a fine of 500 Russian roubles (approximately 12 euros (EUR)) for his failure to comply with the writ of execution in due time.

The applicant appealed against both decisions.

On 14 February 2013 the Moscow City Court dismissed the applicant ’ s appeal and upheld both decisions.

On 20 December 2013 the bailiffs tried to evict the applicant. However, the eviction was unsuccessful because victims of similar fraudulent transactions came to support the applicant, together with journalists who were covering the events for the media. Eventually, by an order of the same date, the bailiff service extended the time-limit for execution until 10 January 2014.

6. Applications to reopen the proceedings in the light of newly discovered evidence and application to the Constitutional Court

The applicant sought the reopening of the proceedings on the grounds that new evidence had been discovered in view of the Court ’ s judgment in the case of Gladysheva v. Russia (no. 7097/10 , 6 December 2011), which had become final on 6 March 2012. He argued that the circumstances of the Gladysheva case, in which the Court had found a violation of Article 8 of the Convention and of Article 1 of Protocol No. 1 to the Convention, were similar to those in his case and, therefore, constituted grounds for reopening the proceedings.

On 19 July 2012 the Timiryazevskiy District Court of Moscow dismissed the application. It stated that since the applicant was not a party to the Gladysheva case he could not rely on it as a ground for reopening the proceedings in his case.

The applicant appealed.

On 14 August 2012 the Moscow City Court upheld the decision on appeal.

Further cassation appeals and supervisory review requests lodged by the applicant were dismissed.

On 1 February 2013 the applicant lodged an application with the Constitutional Court, arguing that the legal norms on which the courts had relied when refusing his application to reopen the proceedings were unconstitutional.

On 4 April 2013 the Constitutional Court refused to accept the application for consideration, as it did not disclose an alleged violation of the applicant ’ s constitutional rights by the legal norms relied upon by the court when refusing his request to reopen the proceedings. Nevertheless, the Constitutional Court went on to note that where, under Article 167 of the Civil Code, a contract of sale was declared null and void, under Article 302 of the Civil Code a claim by the original owner for the return of the property from a bona fide acquirer should be dismissed unless it was established that the owner had had no intention of divesting himself of the property . The decision to declare the transaction void as such did not prove the absence of such an intention. The opposite would lead to a situation where, after the initial transaction had been declared void, the owner could claim the return of the property following a number of subsequent transactions, thereby infringing the constitutional rights of the bona fide acquirer. The Constitutional Court concluded that, when deciding on particular cases, the courts should follow this interpretation of Articles 167 and 302 of the Civil Code.

On 9 September 2013, relying on the Constitutional Court ’ s response, the applicant again applied for the reopening of the proceedings on the grounds of newly discovered evidence. He argued that in his case the courts had failed to examine whether the owner had intended to divest himself of the property. The applicant also referred to the ruling of the Plenum of the Supreme Court of 27 June 2013, which stated in paragraph 2 that the Court ’ s findings in its final judgments delivered against Russia were binding for the domestic courts. He argued that, therefore, the decisions in his case should be reviewed in the light of Gladysheva , cited above.

On 22 October 2013 the Timiryazevskiy District Court of Moscow dismissed the application. It reiterated its earlier finding that since the applicant had not been a party to the Gladysheva case, he could not rely on it as a ground for the reopening of the proceedings in his case.

On 1 November 2013 the applicant appealed. It is not clear whether the appeal has been examined.

7. Civil proceedings in a similar case

Mr A., who bought a flat from Mr T. following a similar fraudulent exchange of flats (see Criminal proceedings against Mr K. above) was also sued by a prosecutor on behalf of the Moscow Housing Department.

On 6 April 2007 the Kuzminskiy District Court of Moscow declared the underlying transactions null and void, having applied reasoning similar to that of the Timiryazevskiy District Court of Moscow in the applicant ’ s case, and ordered Mr A. ’ s eviction.

On 24 July 2007 the Moscow City Court upheld the judgment on appeal.

However, on 13 January 2009 the Supreme Court of Russia reviewed the judgments within supervisory review proceedings. The Supreme Court held that the courts had erred in the interpretation of the domestic law. In particular, Article 302 of the Civil Code enabled an owner to reclaim a property from a bona fide acquirer only if he could prove that he had had no intention of divesting himself of it. In this regard, the Supreme Court noted that Moszhilservice was the only entity authorised by the Moscow Housing Department to supervise real property transactions. Therefore, by approving the exchange of flats, it had expressed the will of the owner of the flat in question, namely the City of Moscow. Subsequently, the flat had been sold to Mr A., who had duly registered his property rights. The Supreme Court further noted that the responsibilities of the agency registering property rights included verification of the authenticity of the documents submitted as well as of the title of the person or competence of the State authority submitting them. Only incontestable titles should therefore have been registered. The sale of Mr A. ’ s flat and his title to it were registered by the competent authorities acting on behalf of the City of Moscow. However, the courts failed to take that into account, or to check whether Moszhilservice had acted with due diligence when it had approved the exchange of flats on the same date as the application to that effect had been submitted. The Supreme Court thus quashed the part of the lower courts ’ decisions to declare null and void the exchange of flats, the sale of the Moscow flat to Mr A. and the registration of his title, as well as his eviction, and remitted the case for fresh examination.

8. Other developments

According to the applicant, as a result of the stress caused by the constant threat of eviction from their only dwelling, his wife had suffered a miscarriage and was undergoing medical treatment.

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 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 K. ’ s transactions in respect of the flat and that the applicant should be protected as a bona fide acquirer.

2. The applicant complains, under Article 8 of the Convention, about the forthcoming eviction, alleging that it would be unlawful and disproportionate. He maintains that his family has no means to rent other housing, and that their eviction would entail the loss of medical care for his wife and interrupt her son ’ s school studies.

3. Relying on Article 6 of the Convention, the applicant complains about the domestic courts ’ refusal to reopen the proceedings in his case in the light of the Court ’ s findings in Gladysheva , cited above .

QUESTIONS TO THE PARTIES

1. In the light of the judgment by the Timiryazevskiy District Court of Moscow of 17 April 2006 (upheld on 24 October 2006 ), is the applicant ’ s eviction from the flat imminent? Where would the applicant be lodged after eviction?

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

3. Has the 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 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?