DISSENTING OPINION OF JUDGE DEDOV

1 . I completely understand and accept the reasons behind the decisions made by my colleagues in the majority and by the Russian Supreme Court regarding the issue of the bona fide purchaser. I decided to write an opinion because of the absence of any established case-law and standards of the Court on this issue by which to assess whether or not the national authorities imposed an excessive burden on the bona fide purchaser of the property in the present case.

2 . The general civil law doctrine is the following: the purchaser buys at his or her own risk in respect of title, and, to ensure that it is safe, must make enquiries; he or she may not with certainty accept the fact of prior possession at face value, but must ascertain how possession has been acquired. In other words, the purchaser is obliged to comply with the reasonable duty of care to verify the validity of the transaction. The position of the Court is that the applicant should have verified whether the property was subject to a dispute. However, the doctrine is limited and it works primarily for a purchase from a thief. If there is a chain of transactions, the burden to ensure the validity of all previous transfers of ownership becomes increasingly excessive.

3 . In my view the Court should not overlook the presumption of good faith in civil matters, although this doctrine is more complex and less protective than the presumption of innocence in the field of criminal law. Indeed, there is a presumption that the purchaser was acting in good faith (i.e. was genuinely unaware that the vendor was not authorised to sell the property), unless there are objective circumstances which prove otherwise, or which shift the burden to the purchaser to prove that he or she was acting in good faith. The objective circumstances relate to the possibility for the purchaser to know about the vendor ’ s lack of title. Such circumstances may include the existence of close relations between the parties or a conflict of interest.

4 . In the present case, the State enterprise and K. had entered into an amicable agreement to settle the debt owed to K. by the enterprise. The agreement was approved by the national court. I am not sure that the court proceedings against K. could amount to such objective circumstances. While the Presidium of the Regional Court was acting as a supervisory authority to examine the validity of the amicable agreement, K. sold the property to M. Neither M. nor the applicant were parties to the court proceedings in question. It was not proven that K., M. and the applicant were connected in any way. At that time there was no free access to a database of judicial acts, and such a database did not even exist. When the State Property Agency challenged the amicable agreement, it did not take the necessary action to impose interim measures to prevent the ensuing sale of the property to third parties by indicating those measures in the property register, so that the applicant could have known about the court proceedings. As a result of such omissions on the part of the State, the applicant did not have the possibility of making a full-scale inquiry and she objectively had to rely on the ownership certificate presented by M. Moreover, the validity of the transaction was not verified by the public notary, and I cannot blame the applicant for such an “omission” because at that time the State had annulled the requirement to notarise immovable property transactions. However, the Supreme Court did not take all those factors into consideration and it concluded that since the court proceedings were extant, it was the applicant ’ s duty to take cognisance of them and to refrain from purchasing the property.

5 . I believe that the burden imposed on the applicant was excessive. It appears that, according to the national courts, the State authorities did not know for more than 8 years about the ensuing transactions (sale of property from K. to M. and then from M. to the applicant), although those transactions were registered in the immovable property register. The national court refused to apply the three-year prescription rule and to find that the State had lost the right to claim the property from the applicant. At the same time, the applicant was obliged by the national court to exercise due diligence in order to obtain the information about pending proceedings against K., even though she was not in contact with him. I am not sure that the whole proceedings against the applicant were fair, or that the authorities sought to strike a fair balance between individual and general interests. The issue of the bona fide purchaser, as the key decisive factor in deciding the case against the applicant was adjudicated by a single judge at the level of the highest national court without any public hearings or adversarial proceedings which could have allowed the applicant to prove that she had acted in good faith and had exercised her duty of care. She was thus deprived of procedural safeguards. Otherwise, her case should have been referred back by the Supreme Court for a new examination.

6 . I also voted against the finding of a violation of Article 6 because the boundary delineation proceedings were not directly decisive for the property right of the applicant, and therefore, the application in this part should have been declared inadmissible ratione materiae .