CASE OF PCHELINTSEVA AND OTHERS v. RUSSIADISSENTING OPINION OF JUDGE SAJÓ
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Document date: November 17, 2016
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DISSENTING OPINION OF JUDGE SAJÓ
To my regret, I have to dissent in these cases for the reasons set out in the case of Ponyayeva and others v. Russia (no. 63508/11).
I would just like to mention a few facts below which are particularly problematic.
1. In the case of Pchelintseva and others v. Russia (no. 47724/07) the fraudulent facts became public knowledge four years after the purchase. The applicant was clearly aware of the risk she undertook: she asked for a professional title check. A final judgment assigned responsibility to the company having checked the title. According to Government she recovered her loss but the Court found that the damages could not be enforced for reasons of insolvency.
2. In the case of Dedik v. Russia (no. 58677/11), the forgery became established after the conclusion of the purchase. The applicant was entitled to continue to reside in the apartment as social tenant. It is of relevance that this “bona fide” purchaser bought the property below the market price. Should that not be a consideration even for the majority which finds a violation in this case, at least as regards just satisfaction? Could someone who obtains property below the market price not assume that there are serious risks?
3. In the case of Polevoda v. Russia ( no. 2920/13), the fraudulent transaction was authorised by the Moscow City Bar Association “Exchange”. The Court considered that the State authorities were responsible for the failure to check and discover the fraud. Is the Court extending State responsibility to the acts of the Bar (and in a number of cases to the Notary)? I assume (although this is not discussed at all in the judgment) that the “Exchange” service to some extent operates on the State ’ s behalf. However, this is not made clear, and even assuming that this is the case, the special responsibilities and the statutory duty of care are not specified. It is highly problematic to attribute State responsibility to acts adopted by lawyers (and notaries) without further consideration and specification, even if their acts are a matter of public trust.
In this case, the fraudulent vendor was ordered to reimburse the plaintiff, measures to safeguard the assets that could be used for recovery were taken by the bailiff, and the State ’ s obligation in that regard was limited to assisting the creditor in enforcing the relevant court order. This matter is not even considered in the judgment. The Court noted that “a possibility to bring an action for damages ... could not deprive the applicant of victim status” (see paragraph 82). What we have here, however, is no mere possibility: the applicant successfully lodged the claim with a court, and the reason given in a different context that recovery is impossible because the assets of the vendor were confiscated does not apply in this case.
4. As to the case of Ms Dergacheva ( Dergasheva v. Russia , no . 3127/13) , she worked at Moscow Ho using Stock Department, like Mr Yo. who embezzled and sold th e property to Ms Dergacheva. Mr Yo. was convicted for the crime. Ms Dergacheva paid a price far below the market price (which fact was contested by the applicant).
APPENDIX I
Details of the applications
No.
Application no.
Date of introduction
Applicants ’ details
(family relations, date of birth, place of residence)
47724/07
19/09/2007
Mariya Nikolayevna PCHELINTSEVA
15/06/1979
Moscow
58677/11
02/08/2011
Tatyana Stanislavovna DEDIK
22/04/1973
Moscow Region
2920/13
25/12/2012
Oksana Aleksandrovna POLEVODA
14/06/1974
Moscow
Natalya Aleksandrovna POLEVODA
(first applicant ’ s daughter) 28/11/2002
Moscow
Yuriy Aleksandrovich POLEVODA
(first applicant ’ s son) 11/02/1999
Moscow
3127/13
21/12/2012
Svetlana Alekseyevna DERGACHEVA
29/09/1960
Moscow
15320/13
06/02/2013
Fakir Mukhamad Gulom Mukhamad KARIM
10/05/1968
Moscow
Svetlana Aleksandrovna KARIM
(first applicant ’ s wife) 06/07/1979
Moscow
Gleb Fakirovich KARIM
(first applicant ’ s son) 17/10/2008
Moscow
Timofey Fakirovich KARIM
(first applicant ’ s son) 16/ 0 6 /2010 [4]
Moscow
APPENDIX II
Awards made by the Court under Article 41 of the Convention
Application number and name of the applicant who receives the award
Non-pecuniary damage
Costs and expenses
1
47724/07
Pchelintseva
EUR 5,000
EUR 2,075
2
58677/11
Dedik
EUR 5,000
EUR 2,093
3
2920/13
Oksana Polevoda
EUR 5,000
EUR 2,075
4
3127/13
Dergacheva
EUR 5,000
5
15320/13
Fakir Karim
EUR 5,000
EUR 2,075
[1] Rectified on 11 January 201 7 : the text was “1967 ”.
[2] Rectified on 11 January 201 7 : the text was “October ”.
[3] Rectified on 11 January 2017: the text was “ 27-3-50 Kastanayevskaya ”.
[4] Rectified on 11 January 2017: the text was “16/10/2010”.