THIRD SECTION

CASE OF KLIMENKO v. RUSSIA

(Application no. 18561/10)

JUDGMENT

STRASBOURG

2 May 2017

This judgment is final but it may be subject to editorial revision.

In the case of Klimenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helen Keller, President,
	Pere Pastor Vilanova,
	Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 30 March 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 18561/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Pavel Aleksandrovich Klimenko (“the applicant”), on 15 March 2010.
2.  The applicant was represented by Mr V. Kalikin, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  On 3 September 2015 the complaints concerning the transfer of the ownership of the applicant’s flat to the City of Moscow and his eviction were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1978 and lives in Moscow.
Section 1.01	A.  Transactions with the flat later purchased by the applicant
5.  The flat at 137A-9-267 Samarkandskiy Boulevard, Moscow, had been owned by the City of Moscow. G. had resided there as a tenant under the social housing agreement with the City. On 21 February 2007 G. died.
6.  On an unspecified date G.’s daughter Get. submitted to a local real estate registration body a forged copy of a court’s decision recognising her as G.’s heir and asked the latter to confirm her title to the flat at 137A-9-267 Samarkandskiy Boulevard, Moscow. On 19 March 2008, following the expert review of her application, she obtained the relevant certificate.
7.  On 17 April 2008 Get. sold the flat to N. On 28 May 2008, following the expert review of the transaction, N. was issued with a certificate confirming his title to the flat.
8.  On 28 July 2008 N. sold the flat to the applicant. On 28 August 2008, following the expert review of the transaction, the applicant obtained a certificate confirming his ownership in respect of the flat. He and his family moved into the flat and resided there.
Section 1.02	B.  Annulment of the applicant’s title to the flat and eviction proceedings
9.  On 15 May 2009 the police opened a criminal investigation into the fraudulent acquisition of the flat by Get. The Government did not inform of the outcome of the proceedings.
10.  On an unspecified date the Department for Municipal Housing and Housing Policy of the City of Moscow (the “Housing Department) brought a civil claim seeking (1) the annulment of the entry in the real estate register confirming the existence of Get.’s title to the flat; (2) annulment of the flat purchase agreements between Get. and N. and N. and the applicant; (3) transfer of the ownership to the flat to the City of Moscow; and (4) the applicant’s eviction.
11.  On 19 June 2009 the Kuzminskiy District Court of Moscow granted the Housing Department’s claims. The court ruled that the case fell under one of the two exceptions to the protection of a bona fide purchaser’s title, which required that precedence be given to the City of Moscow as a previous owner who had been deprived of the property against its will. The applicant’s title to the flat was annulled and the ownership of the flat was transferred to the City of Moscow. The court also ordered the applicant’s eviction. The applicant appealed.
12.  On 29 September 2009 the Moscow City Court upheld the judgment of 19 June 2009 on appeal.
13.  On 25 January and 12 May 2011 the applicant unsuccessfully lodged an application with the Housing Department asking for provision of housing.
14.  On 13 December 2011 the applicant was evicted from the flat.
15.  According to the Government, on 16 July 2012 the Housing Department assigned the flat as social housing to a family of four. On 25 April 2014 the ownership of the flat was transferred to them under the privatisation scheme.
Section 1.03	C.  The applicant’s claims against N.
16.  On 19 June 2009 the District Court granted the applicant’s claims against N. and awarded him 990,000 Russian roubles (RUB) in damages.
17.  On 12 October 2011 the bailiff opened enforcement proceedings.
18.  On 15 March 2006 the bailiff discontinued enforcement proceedings as it was impossible to establish N.’s whereabouts or to obtain information about his assets.
19.  According to the Government, the enforcement proceedings are still pending. The judgment in the applicant’s favour has not been yet enforced.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
20.  The applicant complained that he had been deprived of his flat in violation of Article 1 of Protocol No. 1 to the Convention, which provides, in so far as relevant, as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
21.  The Government contested that argument. They considered that the interference with the applicant’s property rights had been “in accordance with the law”. In their opinion, the City of Moscow had forfeited the ownership of the flat as a result of Get.’s fraudulent actions and, accordingly, had had a right to reclaim the flat from the applicant even though the latter had bought it in a good faith. The Government also considered that such interference had pursued the legitimate aim. The City of Moscow was responsible for providing affordable housing to people on low incomes. Accordingly, the City had reclaimed the flat in the interests of those people and assigned it to a family of four persons pursuant to the social housing waiting list. Lastly, the Government argued that the interference with the applicant’s rights could not be considered disproportionate given that the national courts had granted his claims against N. and it remained opened to him to bring any other claim for damages, if necessary. Besides, the applicant’s eviction had been suspended for over two years so that he had been able to make necessary housing arrangements. Lastly, they pointed out that should the applicant consider it necessary he could apply for social housing.
22.  The applicant maintained his complaints. He considered that the interference with his property rights had been unlawful and disproportionate. In particular, he pointed out that the city authorities had failed to ensure proper control over the transactions with the flat. The Government did not explain why the city authorities had not verified the validity of the judgment allegedly acknowledging Get.’s title to the flat. The omissions on the part of the authorities should not have been rectified at his expense. The applicant further argued that the loss of the flat had placed an excessive burden on him. Even though the authorities had suspended his eviction for some time, he had been deprived of his property which he had bought in a good faith, without any compensation. Following the loss of his property, he was unable to buy a new flat and currently had to rent a flat. The social housing policy implemented by the city authorities could not justify his loss.
Section 2.01	A.  Admissibility
23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 2.02	B.  Merits
(a)	1.  General principles
24.  The general principles concerning protection of property are well established in the Court’s case-law (see Gladysheva v. Russia, no. 7097/10, §§ 64-68, 6 December 2011).
(b)	2.  Application of these principles to the present case
25.  The Court has, on a number of previous occasions, examined cases in which the Russian State or municipal authorities, being the original owners of housing, have been successful in reclaiming it from bona fide owners once it had been established that one of the prior transactions in respect of such property had been fraudulent (see Gladysheva, cited above, §§ 77-83; Stolyarova v. Russia, no. 15711/13, §§ 47-51, 29 January 2015; Andrey Medvedev v. Russia, no. 75737/13, §§ 42-47, 13 September 2016; Kirillova v. Russia, no. 50775/13, §§ 33-40, 13 September 2016; and Anna Popova v. Russia, no. 59391/12, §§ 33-39, 4 October 2016). Having examined the specific conditions and procedures under which the State had alienated its assets to private individuals, the Court noted that they were within the State’s exclusive competence and held that the defects in those procedures resulting in the loss by the State of its real property should not have been remedied at the expense of bona fide owners of the property. The Court further reasoned that such restitution of property to the State or municipality, in the absence of any compensation paid to the bona fide owner, imposed an individual and excessive burden on the latter and failed to strike a fair balance between the demands of the public interest on the one hand and the applicants’ right to the peaceful enjoyment of their possessions on the other.
26.  Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. The Court notes that the flat was no longer held by the City as a result of the fraud committed by a third party. The Government’s submissions remain silent, however, as to when and how the fraud had been discovered and why, as argued by the applicant, the authorities had failed to verify the validity of the documents allegedly submitted by Get. when seeking the acknowledgement of her title to the flat.
27.  The Court further observes that there were safeguards in place to ensure that the flat changed hands in accordance with the domestic law. Each time it was sold it was encumbered on the registration authorities to verify the legitimacy of the transaction. The Government, however, did not proffer any explanation, as to why those safeguards had not been effective in detecting fraud and protecting the City’s interests. In such circumstances, the Court considers that it was not for the applicant 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 specially designed to prevent fraud in real-property transactions. The Court reiterates that the consequences of any mistake made by a State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Stolyarova, cited above, § 49). The Court therefore concludes that the forfeiture of the title to the flat by the applicant and the transfer of the ownership of the flat to the City of Moscow, in the circumstances of the case, placed a disproportionate and excessive burden on him. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
28.  The applicant complained that his eviction had amounted to a violation of his right to respect for home. He relied on Article 8 of the Convention, which reads as follows:
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
29.  The Government admitted that the applicant’s eviction had constituted an inference with his rights set out in Article 8 of the Convention. They considered, however, that such interference had been lawful, had pursued the legitimate aim of protecting the rights of persons eligible to social housing and had been proportionate to that aim.
30.  The applicant maintained his complaint.
31.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. However, having regard to the findings relating to Article 1 of Protocol No. 1 to the Convention (see paragraphs 25-27 above), the Court considers that it is not necessary also to examine the same facts from the standpoint of Article 8 of the Convention (see, mutatis mutandis, Akhverdiyev v. Azerbaijan, no. 76254/11, § 101-05, 29 January 2015).
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
32.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 4.01	A.  Damage
33.  The applicant’s claims in respect of pecuniary and non-pecuniary damage are summarised in the table below:
Pecuniary damage	Non-pecuniary damage	
The price the applicant paid for the flat	 8,000,000 Russian roubles (RUB)	100,000 euros (EUR)	
Realtor’s fee for the purchase of the flat	RUB 47,300		
The rent (2011- present)	RUB 2,920,000		
Realtor’s fee in connection with the rent of the flat	RUB 20,000		
34.  The Government considered the applicant’s claims excessive and unreasonable.
35.  The Court takes into account that in the present case it has found a violation of the applicant’s rights guaranteed by Article 1 of Protocol No. 1 to the Convention. It considers that there is a clear link between the violation found and the damage caused to the applicant.
36.  The Court reiterates that, normally, the priority under Article 41 of the Convention is restitutio in integrum, as the respondent State is expected to make all feasible reparation for the consequences of the violation in such a manner as to restore as far as possible the situation existing before the breach (see, among other authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85; Tchitchinadze v. Georgia, no. 18156/05, § 69, 27 May 2010; Fener Rum Patrikliği (Ecumenical Patriarchy) v. Turkey (just satisfaction), no. 14340/05, § 35, 15 June 2010, § 198; and Stoycheva v. Bulgaria, no. 43590/04, 19 July 2011). Consequently, having due regard to its findings in the instant case and to the fact that the City of Moscow no longer owns the flat and that it has been transferred to third parties under social housing/privatisation scheme, the Court considers that the Government should ensure that the applicant receives an equivalent flat. The Court further considers that the applicant’s claims in part concerning the rent of the flat and the related realtor’s fee should be compensated in full. Accordingly, it awards the applicant EUR 38,321 in respect of pecuniary damage, plus any tax that may be chargeable on that amount.
37.  In addition, the Court has no doubt that the applicant has suffered distress and frustration on account of the deprivation of his possessions. Making its assessment on an equitable basis, the Court awards to the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
Section 4.02	B.  Costs and expenses
38.  The claims applicant’s claims for costs and expenses are summarised as follows:
Legal fee in domestic proceedings	RUB 241,500	
Legal fee in the proceedings before the Court	RUB 1,643,984	
Postal expenses	RUB 13,093	
Cartridge	RUB 5,990	
Translation costs	RUB 38,814	

39.  The Government argued that the applicant’s claims for reimbursement of legal costs and expenses incurred before the domestic courts should be dismissed as not being relevant to the proceedings before the Court. The Government considered the applicant’s claims and expenses incurred before the Court to be excessive and not substantiated. The Government did not challenge the applicant’s claims of reimbursement of postal expenses.
40.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in the Court’s possession and the above criteria, the Court considers it reasonable to award the applicant EUR 2,250 in respect of all his claims for costs and expenses.
Section 4.03	C.  Default interest
41.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3.  Holds that there is no need to examine separately the complaint under Article 8 of the Convention;

4.  Holds
(a)  that the respondent State shall ensure, by appropriate means, as soon as possible, that the applicant receives an equivalent flat;
(b)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 38,321 (thirty-eight thousand three hundred and twenty‑one euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii)  EUR 2,250 (two thousand two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(c)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helen Keller
	Deputy Registrar	President