DISSENTING OPINION OF JUDGE SAJÓ

In the present case and in related ones (see Alentseva v. Russia , no. 31788/06, and Pchelintseva and others v. Russia , no. 47724/07), the Court extended the responsibility of State organs and hence of the State in the context of Article 1 Protocol 1. I have difficulties in following this approach and therefore, with all due respect, I dissent.

In the present case O.I., a social housing tenant, lost his title to the apartment during his in-patient treatment. An unidentified person acting on a false power of attorney managed to sell the illegally privatised apartment to third parties, who sold it to applicant. This purchase was voided by a judgment because the first transfer had been forged, that is to say because O.I. never became the owner. The property was ordered returned to the City of Moscow. The applicant continues to reside in the apartment.

In an earlier case (see Gladysheva v. Russia , no. 7097/10, 6 December 2011), the Court found a violation in a comparable case. In that case it was argued that because the forgery had occurred in relation to various acts of official registration the public authorities should have been able to discover it. Therefore, the privatisation and other acts of property transfer resulting in the deprivation of the property of the original title-holder, namely the City of Moscow, are to be attributed to the State, which cannot claim back its possessions. [1]

This approach raises a number of issues:

1. The Court ’ s approach disregards the caveat emptor principle , and imposes a duty on the vendor, arguing that the State as vendor has public law duties. This, however, cannot change the caveat emptor rule that applies in Russia. The Court takes a different view: “it was not for the first applicant [the purchaser] to assume the risk of the title to the flat being revoked on account of the said omissions on the part of the authorities in procedures especially designed to prevent fraud in real-property transactions.” (see paragraph 56). In other words, for the Court, caveat vendor applies.

It follows that, contrary to case-law, the Court assumes the power to determine what amounts to possession, disregarding what constitutes a property claim in domestic law. That law states that a buyer assumes certain risks, and the fact that the scope of property rights is therefore limited is disregarded: the Court seems to be saying that a purchase implies lesser risks, irrespective of domestic law. Incidentally, in so doing it disregards over two thousand years of Roman-law tradition.

After this series of judgments the Court will have difficulties in rejecting the claims of unhappy purchasers from all over Europe who have happened to obtain property in fraud, claiming that the authorities failed to notice the fraud or perhaps any misrepresentation. The approach that applies to the purchase of flats that once upon a time were part of the Moscow social housing fund will apply to all acts of immovable sale.

2. Article 302 of the Russian Civil Code recognises certain exceptions from caveat emptor, designed to protect bona fide purchasers. While I have serious doubts as to the good faith of some of the (below the market price) purchasers, I have to accept the legal qualification of the domestic courts which considered the applicant as a bona fide purchaser.

The judgment refers to the interpretation of Article 302 of the Civil Code given by the Russian Supreme Court: “It is incumbent on the court to establish whether the owner expressed his or her will to convey [the property] to another person.”

In the present case, the domestic court did consider this matter and found that the owner did not intend to convey property. It found that the conditions of applicability of Article 302 of the Civil Code, as determined by the Supreme Court, were absent. I assume that Article 302 of the Civil Code and its interpretation is relevant in this case, as otherwise it would not have been mentioned under Relevant Domestic Law. However, this matter is not even mentioned in the judgment.

3. Instead, the Court has created a kind of absolute liability for the State authorities involved in civil and property registration. The Court did not allude to any European consensus in this matter. I find it astonishing to assume that the State has an apparently objective duty to ensure that property transactions and civil status registrations are correct as a positive obligation of the State under Article 1 Protocol 1. Of course, “[g]enuine, effective exercise of the right protected by that provision does not depend merely on the State ’ s duty not to interfere, but may require positive measures of protection, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions.” (see Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004 ‑ XII).

However, these positive measures are mostly general measures (lack of seismographic measures or other general measures can be a problem). This positive obligation cannot be equated with the State ’ s positive obligations to protect life or its obligations under Article 3 as regards inhuman and degrading treatment by private parties, namely to implement an effective legal system of protection. The positive duty to have an effective criminal investigation system (which does not trigger an obligation of result, only means) cannot be transposed to the protection of possession, with heightened duties, including ensuring watertight registration that forestalls any kind of mistake.

Moreover, in this mode of good-faith purchaser protection the Court undertakes to determine the responsibility of the domestic authorities for the mistaken registrations (see, Gladysheva v. Russia , no. 7097/10 , §§ 78-79 , 6 December 2011 ) [2] . It is not for this Court to act as a court of first instance and determine facts, or better, speculate about facts and possibilities, especially where a domestic legal remedy is available that could appropriately determine the responsibility of State agents even assuming that the State has an international law responsibility for such acts, under A1.P1. (I do not assume such things at all).

Paragraph 18 of the judgment refers to the Federal Law on State registration, which requires an expert review as to the lawfulness of transactions. [3] The Government were not invited to comment on the meaning of that obligation. The Law requires an “expert review”. There is nothing in the file to indicate that such review did or did not take place. We do not even know if this requirement can be satisfied by the expertise of the land registration office (as is the case in many national land registry systems) or whether independent expertise is required.

To argue that the authorities are to be blamed for accepting fraudulent documents disregards the fact that a domestic court (the Tushinsky Court) had the opportunity to review these documents and did not find them illegal.

It is true that the Russian case law requires public authorities to verify the authenticity of the documents submitted in support of agreements. However, the Russian Supreme Court does not consider this to be a matter of strict liability. On the contrary, in the Supreme Court case quoted in paragraph 30 of the judgment the Supreme Court took into consideration the fact that the information concerning the fraud was available in accessible public records (in the list of missing persons). Only a domestic court (or the domestic legislature) is in the position to determine which public data collections can be relevant for such purposes.

In the present case there is no finding by a domestic authority pointing to a lack of care, nor does the Court refer to such an incident. In fact, there is no indication that there existed any public record indicating any shortcoming or duplicity that should have been consulted by the authorities. In fact, the investigation started four days after the applicant bought the apartment.

It is not clear to me why the duty to inquire does not fall on the applicant in line with the caveat emptor principle, although this remains a matter of domestic law. [4]

4. If the Court takes the view that the State is liable for the acts of State authorities in matters of registration, the applicant has a remedy under Russian law: it can sue those authorities. Article 53 of the Constitution of the Russian Federation reads: “Everyone shall have the right to State compensation for damage caused by unlawful actions (inaction) of bodies of State authority and their officials.” As the Government argued, applicant did in fact sue a number of State agencies, but those claims were dismissed because the parties failed to attend hearings and did not request that the hearing be held in their absence. Therefore, the application should have been rejected for non-exhaustion of remedies. This Government argument was simply not considered; the Court only deals with remedies against the final judgment and recourse against third (fraudulent) parties.

5. The judgment, in its analysis of proportionality, disregards the interests of O.I., who has a mental disorder and is therefore a particularly vulnerable person in the circumstances of the case. The Court admits this special interest, but turns it to the applicant ’ s advantage. The lack of protection of the interests of the particularly vulnerable person increases the State ’ s responsibility, and therefore the applicant ’ s interest must prevail against the public interest (to protect social housing) and the interest of the original tenant. But the alleged lack of State responsibility vis-à-vis the applicant does not diminish the public interest! When it comes to balancing the various interests, and contrary to the judgment (see paragraph 56), the burden on the applicant should not be considered as being imposed solely for the sake of the City of Moscow as the original owner. The City held that property for the use of a person who was in need of social housing. O.I. ’ s private interest is not mentioned in the balancing exercise. The Court is content to state that it would be “unfair” ‘ to correct O.I. ’ s loss at the first applicant ’ s expense. But even a conclusion of fairness needs reasons; fairness in law is not a matter of pure sentiment. If fairness is intuition, as it should not be in law, than the undeniable right of a particularly vulnerable person to social housing is perhaps more important on a human scale than the property title, which is not recognised in domestic law, of a person who acquired it from crooks.

I find that this case raises serious issues of European property law and of the margin of appreciation that is applicable to a domestic system when it comes to the protection of the social housing fund. It is surprising that the stunning ease with which the Court applies a broad margin of appreciation in matters of economic and social policy did not find its place in the present case.

[1] I n the present case , t his meant that O . I . , who had a residence title and a title to receive the apartment un der a privati s ation scheme, also lost his possession s and home (see Article 8 right to home).

[2] Just one example of this speculation: “ It appears from the file that the forgery could be, and eventually was, established by making simple enquiries at the Kaluga civil registry, whose stamp was used for the forged marriage certificate, and with the notary in Moscow who had supposedly attested the application by M. ”

[3] According to the Written Observations of the lawyer in the case of Dergacheva v. Russia , no. 3127/13 , Article 9 of the Federal Statute on Registration No. 122 requires a legal examination. A duty of legal examination hardly means a duty to invite an expert to certify the authenticity of signatures or ID, unless otherwise provided by legislation or case-law.

[4] Once again , th e alleged duty to inquire does not apply in the present case as there is no available public register, nor is there any data that could have been entered into such register before the purchase.