FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40265/03
by Galina RAYEVA
against Russia
The European Court of Human Rights (First Section), sitting on 18 September 2008 as a Chamber composed of:
	Christos Rozakis, President,
	Nina Vajić,
	Anatoly Kovler,
	Elisabeth Steiner,
	Khanlar Hajiyev,
	Giorgio Malinverni,
	George Nicolaou, judges,
and  Deputy Section Registrar,
Having regard to the above application lodged on 7 October 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Galina Nikolayevna Rayeva, is a Russian national who was born in 1940 and lives in Moscow. The respondent Government were represented by Mr P. Laptev, a former Representative of the Russian Federation at the European Court of Human Rights.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1993 the applicant married Mr M. and they started living together at the applicant’s flat on the Menjinsky Street in Moscow. In 1997 they moved into a two-room flat on the Tkatskaya Street in Moscow (“the flat”). The flat was owned by the district council; M. and his son D., born in 1974, had their “registered place of residence” in the flat. In 1998 D.’s wife gave birth to a son and D. moved with his family to his wife’s flat. As D. never consented to privatisation of the flat, it remained in the ownership of the district council. The applicant contributed to payment of rent and maintenance charges.
In 2001 D. asked his father and the applicant either to repay him one half of the flat’s value, or to exchange it for two smaller ones. The applicant and M. had no money, so D. sought a court order for exchange.
On 17 January 2002 the Izmaylovskiy District Court of Moscow refused to issue the order as the terms of exchange offered by D. were not satisfactory.
On 27 November 2002 the applicant brought separate proceedings against D., seeking a court declaration upholding her right of residence in the flat.
On 6 February 2003 the District Court granted D.’s claim and ordered that M. move to a 17-square-metre room in a two-room “communal” flat. It dismissed M.’s objections to the move relating to the applicant’s frail health, finding as follows:
“M.’s wife [the applicant] has not acquired the right of residence in the contested flat in accordance with the established procedure, her right to reside [in the flat] has not been confirmed, whereas the plaintiff [D.] does not recognise that she should have such a right.”
The court concluded that in these circumstances the move would not impair M.’s rights and interests.
On 31 March 2003 the District Court refused the applicant’s claim for recognition of her right of residence. M. joined the proceedings as a third party and supported the applicant’s claim. The court found as follows:
“It has been established at the hearing that in November 1997 the plaintiff [the applicant] moved into the contested flat as the tenant M.’s family member and that she has lived in the flat up to the present day. The defendant [D.] has not contested these circumstances.
However, the plaintiff’s claim... cannot be granted because... there is no evidence that [D.] had contented to her moving-in and residing in the contested flat and [D.] denies that he has ever consented...
Moreover, the plaintiff is a registered tenant of a flat on the Menjinsky Street, she is on the waiting list for improvement of her housing conditions and contributes to payment of maintenance charges at her registered place of residence.”
On 2 June 2003 the Moscow City Court upheld that judgment on appeal.
On 20 October 2003 the Moscow City Court also upheld the judgment of 6 February 2003.
B.  Relevant domestic law
The RSFSR Housing Code of 24 June 1983 (as amended on 28 March 1998, effective at the material time) provided:
Article 53. Rights and obligations of the tenant’s family members
“The tenant’s family members shall include the tenant’s spouse, children and parents. Other relatives, disabled dependants, and – in exceptional circumstances – other persons may be recognised as the tenant’s family members if they live together with the tenant and maintain a joint household.”
Article 54. The tenant’s right to accommodate other persons in his premises
“The tenant shall be entitled to accommodate in his living premises, in accordance with the established procedure, his spouse, children, parents, other relatives, disabled dependants and other persons, subject to written consent of all adult members of his family...
The persons accommodated by the tenant in accordance with the rules of the present article shall have the same right to use the living premises as the tenant or other members of his family provided that such persons are, or have been recognised as, members of the tenant’s family (Article 53) and that no other agreement on the use of the premises has been signed between these persons, the tenant and his family members.”
Article 68. Exchange of living premises in case of disagreement between family members
“If family members fail to agree to an exchange, any family member may seek a court order for a forced exchange of the flat occupied by them for living premises in different blocks of flats. In these proceedings regard must be had to meritorious arguments and interests of the residents of the exchanged flat.”
COMPLAINTS
The applicant complained under Article 8 of the Convention that the domestic courts had no regard to her interests when issuing the order for an exchange. She could no longer live with her husband because the room, to which he had been ordered to move, was too small.
The applicant complained under Article 1 of Protocol No. 1 that the room, to which her husband was ordered to move, has insufficient floor space to accommodate their belongings.

THE LAW
1.  The applicant complained that the domestic authorities had ordered a forced exchange of the flat in which she had lived with her husband without due regard to her right to respect for her home enshrined in Article 8 of the Convention which reads as follows:
“1.  Everyone has the right to respect for ... his home...
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government submitted, firstly, that the applicant did not have the status as a “victim” of the alleged violation because she still lived in the contested flat with her husband. A failure to enforce the exchange order had been the result of D.’s inaction for which the State cannot be held responsible. The Government pointed out that the exchange order had been issued in accordance with Article 68 of the RSFSR Housing Code with regard to the fact that Mr D. had never consented to the applicant’s moving-in. Lacking such consent, the applicant’s residence in the flat on the Tkatskaya Street could not become lawful in accordance with Article 54 of the RSFSR Housing Code. The Government maintained that “the humanitarian considerations which might have supported another outcome at national level cannot be used as the basis for a finding by the Court” (here they referred to the case of Chapman v. the United Kingdom [GC], no. 27238/95, § 115, ECHR 2001‑I). The Government further submitted that the assessment of proportionality depended on the availability of suitable alternative accommodation (they referred to Chapman, § 103). In the instant case the applicant had a registered residence in the flat on the Menjinsky Street and had also been listed for improvement of housing conditions. In such circumstances, the national authorities enjoyed a wide margin of appreciation and had been better placed to make the requisite assessment (they referred to Chapman, § 104).
The applicant submitted that the exchange order had not been yet enforced and that she continued to live together with her husband in the flat on the Tkatskaya Street. She pointed out that she could not exercise “any rights” without residence registration at that address and that her interest in continuing to live with her husband had not been taken into account by the domestic courts.
The Court reiterates that the concept of “home” within the meaning of Article 8 is not limited to those which are lawfully occupied or which have been lawfully established (see Prokopovich v. Russia, no. 58255/00, §§ 36-39, 2004‑XI (extracts), and , judgment of 24 November 1986, Series A no. 109, § 46). In the instant case, it is not in dispute that the contested flat constituted the applicant’s “home” for the purposes of that Article. The Court is satisfied that the applicant has been occupying it since 1997 and has not established any other home elsewhere. Accordingly, it may be regarded as her “home” for the purposes of Article 8 of the Convention.
The Court need not determine whether the fact that the exchange order has not yet been enforced has any effect on the applicant’s status as a “victim” of the alleged violation because the complaint is inadmissible for the following reasons.
The legal basis for the alleged interference was Article 68 of the RSFSR Housing Code which provided for a court-mandated exchange of council flats in case of irreconcilable disagreements between family members. An exchange order pursued a legitimate aim in that it protected the rights and freedoms of other family members, such as Mr D. in the instant case.
The Court further notes that the flat at issue was municipal – rather than private – property. It reiterates that in socio-economic matters such as housing the margin of appreciation available to the State is necessarily a wide one (see  judgment of 21 February 1986, Series A no. 98, p. 32, § 46; and  judgment of 19 December 1989, Series A no. 169, p. 25, § 45; and, mutatis mutandis, Fadeyeva v. Russia, no. 55723/00, ECHR 2005‑...). Bearing that in mind, the Court has to assess whether in the circumstances of the applicant’s case the measure employed was proportionate to the legitimate aim pursued.
The Court notes at the outset that only the applicant’s husband and his adult son D. were registered as tenants in the contested flat. Pursuant to Article 54 of the RSFSR Housing Code, the applicant could have acquired the legal right to live in the flat upon written consent of all the adult members of the tenant’s family. It has been established by the domestic courts, and in fact never contested by the applicant, that D. had withheld his consent to her moving-in. Thus, although her de facto residence was tolerated for a considerable period of time, the applicant could not have any legitimate expectation to be able to remain in the flat indefinitely.
Considering whether the applicant was afforded a reasonable opportunity of putting her case before the responsible authorities for the purposes of effectively challenging the measures interfering with her rights, the Court observes that she could have applied for a judicial order recognising her right to live in the flat at any time after having moved in. However, she had not made an attempt to formalise her residence in the flat until such time as Mr D. had instituted judicial proceedings for a forced exchange of the flat. Only after he sought an exchange order in court in 2001, in November 2002 she brought a separate claim for the legal recognition of her right to reside in the flat. Her claim was examined on the merits and rejected because she was unable to prove that D., as a tenant in his own right, had given consent to her residence. Furthermore, the Court notes that, although it was open to the applicant to petition the court to join the exchange proceedings as a third party, it does not appear that she ever made such a request. Nevertheless, the court hearing the case examined her husband’s objections to the move relating to her frail health. In these circumstances, it appears therefore that the applicant had at her disposal adequate legal avenues of presenting her claim which she either omitted to use or used unsuccessfully. In the latter case the decisions by the domestic courts were reached after weighing the evidence presented by the applicant and it is not for this Court to sit in appeal on the merits of those decisions (compare Chapman, cited above, § 114 in fine).
Finally, the Court notes that the court issued an exchange order rather than an eviction notice. Under the approved terms of exchange the applicant’s husband would be provided with alternative accommodation in a room in a different flat. The Court does not see any reason why the applicant would not be able to continue living with him. As to her argument that the room is too small, the Court reiterates that Article 8 does not necessarily go so far as to allow individuals’ preferences as to their place of residence to override the general interest.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2.  The applicant also complained under Article 1 of Protocol No. 1 that the room provided to her husband had been too small.
The Court notes that the applicant does not own the flat in which she currently resides and that she cannot claim any rights to the room granted to her husband. Thus, there are no property rights of the applicant which could be at stake in the present case.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to declare the application inadmissible.
André Wampach	Christos Rozakis
	Deputy Registrar	President