This week, on 6 December 2011, the ECHR delivered its judgment in the case of Gladysheva v. Russia concerning dispossession of the applicant’s title to the flat and the eviction order issued against her by Russian authorities.[1] The ECHR found Russia responsible for violating the applicant’s rights guaranteed by Article 1 Protocol No. 1 to the Convention (protection of property) and Article 8 of the Convention (respect for home) and ordered the Russian Government to ensure “full restitution of the applicant’s title to the flat and the annulment of her eviction order” once the ECHR judgment becomes final. The applicant is also entitled to EUR 9,000 in respect of non-pecuniary damage and EUR 11,245 in respect of costs and expenses.Facts of the case
In September 2005 the applicant bought a flat in Moscow from V. for 990,000.00 Roubles. V. was the second owner of this flat, since earlier he had bought it from Ms. Ye. Ms. Ye had acquired this flat after her husband’s death in the course of a privatization procedure, since initially the flat was social housing and belonged to the City of Moscow. In 2005 Ms. Gladysheva’s title to the flat was officially registered by the relevant registration authorities in Russia. Since then she has been living in this flat with her teenage son.
However, in 2008 the Moscow Housing Department submitted an application to a court against Ms. Gladysheva and all other previous owners of the flat. Moscow authorities asked the court to establish that the flat had been fraudulently acquired by Ye. and, thus, to declare the privatization of the flat and all subsequent transactions with the flat null and void. In particular, the Moscow authorities claimed that Ms. Ye. had no right to privatize her husband’s flat after his death, since she was not in fact married to her “husband” and the marriage certificate had been forged.
This fact was later confirmed by the national courts that also found the privatization of the flat by Ms. Ye. to be fraudulent. And though the courts recognized that Ms. Gladysheva was a bona fide buyer of this flat, they also concluded that this flat had been removed from the City of Moscow’s possession without its intention to give it up. In support of this position the courts applied Article 302 paragraph 1 of the Civil Code of the Russian Federation[2]. The courts also ordered the applicant’s eviction without compensation or an offer of alternative housing. The applicant’s appeal to this decision was not successful. However, the courts agreed to adjourn the eviction order twice; last time it was extended until 1 June 2011. The applicant has not been evicted yet, but she claims it might happen any day soon.
Applicant’s claims
On 15 January 2010 the applicant submitted her application to the ECHR claiming that she had been dispossessed of her flat contrary to Article 1 of Protocol No. 1 to the Convention and that she faced eviction in violation of Article 8 of the Convention.
The applicant alleged, inter alia, that the courts should not apply Article 302 of the Civil Code and grant the Moscow authorities’ claim, since “any fraud on the part of Ye… had no link with the presence, or absence, of an intention on the part of the Moscow Housing Department to divest itself of the property.”
She also considered the measures taken by the Russian authorities disproportionate, since “after paying the full market price for the flat she would be stripped of the property for no fault on her part and would have to pay for housing at the market rate.”
The applicant’s claims were supported by the Deputy Prosecutor General and the Moscow City Ombudsman. Both of them considered the revocation of her ownership of the flat unlawful and unjustified. They also pointed out that the State was a party to the privatization transaction, and thus could not be unaware of the transfer of its ownership title to Ms. Ye and, thus the national courts were wrong to apply Article 302 paragraph 1 of the Civil Code of the Russian Federation in this case. However, the intervention of these two officials in the applicant’s case did not bring positive results either.
Russian Government’s position
The Government claimed that their actions pursued the legitimate aim to protect the rights of those who were eligible for social housing. According to the Government “the dispossession in the present case was therefore necessary and did not place an individual excessive burden on the applicant.” In any case the Government believed that the applicant “would not have to be put on to the street, because she could move in with her parents, who also lived in Moscow.” Moreover, the Government suggested the applicant to sue V., the seller of the flat, for damages.
As regards application of Article 302 of the Civil Code of the Russian Federation, the Government expressed no doubt “that the flat had left the possession of the Moscow Housing Department in the absence of intention to divest.”
The Court’s reasoning
The Court upheld the applicant’s allegations and found violations of Article 1 Protocol No.1 to the Convention and Article 8 of the Convention.
With respect to Article 1 Protocol No. 1 to the Convention the ECHR reasoned as follows:
1. According to the Court’s case-law in order to comply with the general rule of Article 1 of Protocol No. 1, a State interference with the peaceful enjoyment of one’s property must meet each of the following requirements: it must be lawful, pursue a legitimate aim and be reasonably proportionate to the aim sought to be realized.
2. The Court did not make any conclusions regarding the lawfulness of the State interference due to the fact that it was not “sufficiently clear” if “there may have been a certain deficiency, either in the application of the domestic law or in the quality of the law.” Though the Court did mention that, contrary to official interpretation of Article 302 of the Civil Code and explicit instructions given by the national highest courts, the national courts had failed to examine the intentions of the Moscow Housing Department as regards the transfer of property title.
3. The Court assumed that the State interference with the applicant’s title to the flat pursued the public interest, “in that it catered for the needs of those on the waiting list for social housing.”
4. However, the State interference at issue did not meet the third requirement of proportionality. The Court pointed out that Ms. Ye’s title had been checked by the registration authorities at least three times during the legalization of three transactions with the flat. In this connection the Court stressed out that:
“With so many regulatory authorities having granted clearance to Ye.’s title it was not for the applicant, or any other third-party buyer of the flat, to assume the risk of ownership being revoked on account of defects which should have been eliminated in procedures specially designed to do so. The authorities’ oversight could not justify subsequent retribution against a bona fide buyer of the property in question.”
The Court also noted that the applicant was deprived of her title to the flat without any compensation or housing equivalent to her flat due to the mistake made by the State authorities during privatization of the flat by Ms. Ye. In this respect the Court pointed out that “the risk of any mistake made by the State authority must be borne by the State and the errors must not be remedied at the expense of the individual concerned.”
With respect to Article 8 of the Convention the Court provided the following reasoning:
1. According to the Court’s case-law any interference with an applicant’s right to respect for his or her home must be based on the law and be proportionate to the legitimate aim pursued.
2. The Court accepted that the eviction was lawful (under a domestic law it is an automatic consequence of termination of ownership) and pursued a legitimate aim.
3. However, the eviction order did not meet the proportionality requirement. The Court noted as follows:
“The Court also attaches weight to the fact that the applicant’s home has been repossessed by the State, and not by another private party whose interests in that particular flat would have been at stake (see Orlić, cited above, § 69). The allegedly intended beneficiaries on the waiting list were not sufficiently individualised to allow their personal circumstances to be balanced against those of the applicant. In any event, no individual on the waiting list would have had the same attachment to the flat as the applicant, or would hardly have had a vested interest in that particular dwelling, as opposed to a similar one.”
Moreover, the Court was also convinced that the applicant would not be provided with accommodation when she had to move out.
Case of Svetlana Gladysheva is not the only one
As follows from the text of the ECHR judgment the applicant’s case is not the only one.[3] According to the Moscow City Ombudsman there are a growing number of cases where flats were repossessed by the City of Moscow against bona fide buyers due to fraudulent privatisation by the previous owners of the flats. In all of these cases the bona fide owners were denied any compensation or substitute housing. Gladysheva’s case may bring hope to all these bona fide buyers who were victims of the Moscow authorities’ actions. Many other bona fide buyer that face eviction or have been evicted already can refer to the ECHR judgment in Ms. Gladysheva’s case to defend their rights before the national courts or in the ECHR.
[1] The full text of the judgment can be found at the official site of the Court in its HUDOC database.
[2] Article 302, paragraph 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.”
[3] See paragraph 33 of the judgment.
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