EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF PROKOPOVICH v. RUSSIA
(Application No. 58255/00)
JUDGMENT <*>
(Strasbourg, 18.XI.2004)
In the case of Prokopovich v. Russia,
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<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mrs {N. Vajic} <**>,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs E. Steiner, judges,
and Mr S. Nielsen, Section Registrar,
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<**> Здесь и далее по тексту слова на национальном языке
набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 28 October 2004,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 58255/00) 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, Ms Margarita
Semenovna Prokopovich.
2. The Russian Government ("the Government") were represented
by Mr P. Laptev, representative of the Russian Federation at the
European Court of Human Rights.
3. The applicant alleged a violation of Article 8 of the
Convention in that she had been evicted from her home in her late
partner's flat without a court order.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a decision of 8 January 2004, the Court declared the
application partly admissible.
6. The applicant and the Government each filed observations on
the merits (Rule 59 з 1).
THE FACTS
I. The circumstances of the case
7. The applicant was born in 1940 and lives in Vladivostok.
A. The applicant's life with her partner
8. In 1988 the applicant and her partner, Mr Filippov, together
moved into a flat provided by Mr Filippov's employer, a State
enterprise. The applicant left the flat where she had previously
lived to her daughter and her daughter's family.
9. Although the applicant and Mr Filippov never married, from
1988 onwards they lived together as husband and wife. They
purchased all household items for the new flat jointly. Between
1992 and 1995 Mr Filippov supported their family financially
because the applicant was unemployed. According to the applicant,
Mr Filippov's relatives and their neighbours considered them to be
a family. Postcards and letters were addressed to Mr and Ms
Filippov and the applicant received correspondence at the new
address.
10. The applicant retained her residence registration at her
old address. The applicant explains that she suffered from an ear
ailment and wanted to remain under the observation of her former
ear-specialist. Had she changed her residence registration, she
would no longer have been entitled to visit the doctor practising
in her former neighbourhood.
B. Death of the applicant's partner
11. The applicant and Mr Filippov spent the summer of 1998 in
their country cottage. On 18 August 1998 Mr Filippov returned to
the town for a week.
12. On 24 August 1998 Mr Filippov died and his body was found
by a neighbour. On 26 August 1998 Mr Filippov was buried in the
presence of his son and his two sisters who had been summoned by a
telegram.
13. The applicant was not notified of her partner's death or
funeral service. She only learnt of it when she returned to the
city late in the day on 26 August 1998.
C. Re-allocation of the flat and the removal
of the applicant's effects
14. On 27 August 1998 the applicant received a phone call from
the local housing maintenance authority (жилищно-эксплуатационное
управление), requesting an explanation as to why the flat was not
empty. The applicant responded that she did not have formal
residence registration in the flat, but she had lived there for
more than ten years. On 1 September 1998 a representative of the
housing maintenance authority visited the applicant at the flat
and drafted a report to the effect that the flat was not empty.
The applicant was not given a copy of the report. The
representative advised the applicant to secure her right to use
the flat through a court.
15. On 2 September 1998 the applicant filed a request with the
housing maintenance authority to be given an occupation
certificate (ордер) for the flat. Her request was refused because
on 1 September 1998 an occupation certificate had already been
issued to Mr Valetov, the head of the local police department and
hierarchical superior of Mr Filippov's son.
16. On 4 September 1998, on returning to the flat, the
applicant found that the door had been broken open and that books
and other household items were being loaded onto a lorry. The
applicant states that the possessions were removed in the presence
of Mr Valetov, Mr Filippov's son, several policemen in civilian
clothing, and a representative of the housing maintenance
authority. Once the removal was completed, the applicant was told
to vacate the premises immediately. When the applicant refused to
comply with the request, she was thrown out of the flat by force.
The door was replaced and the applicant was not given keys.
D. Court proceedings brought by the applicant
17. On 7 September 1998 the applicant filed a complaint against
Mr Valetov with the prosecutor's office of the Sovietskiy District
of Vladivostok. The applicant requested a criminal investigation
into her forcible eviction and the removal of her possessions. On
14 September 1998 the prosecutor's office informed the applicant
that her allegations were unsubstantiated and refused to open
criminal proceedings.
18. On 1 October 1998 the applicant filed a civil action
against the Vladivostok City Council and Mr Valetov. The applicant
claimed that she should be recognised as a member of her late
partner's household and asked for the occupation certificate
issued to Mr Valetov to be declared void. The applicant submitted
in evidence many witness statements by relatives, by neighbours
living in the same block of flats and by summer house neighbours,
as well as personal photographs, letters, postcards and mail
receipts.
19. On 27 November 1998 the applicant complained to the
Vladivostok city prosecutor's office about the refusal to open a
criminal investigation into Mr Valetov's actions. By a letter of
17 December 1998 the applicant was informed that the prosecutor's
office had reversed the refusal and ordered the Sovietskiy
District prosecutor's office to carry out an inquiry.
20. On 5 January 1999 the Sovietskiy District prosecutor's
office reported that an inquiry had not established any indication
of a criminal offence. On 7 May 1999, after the applicant had
complained again, the Vladivostok city prosecutor's office
examined the matter and confirmed this conclusion.
21. On 9 August 1999 the Sovietskiy District Court of
Vladivostok dismissed the applicant's civil action, finding as
follows:
"Under these circumstances, the court considers that it has
been established in court that [the applicant] lived in the
contested flat, which [fact] is corroborated by postcards
addressed to Mr Filippov and [the applicant], a parcel delivery
notice; however, [the applicant's] residence was of a temporary
nature.
The court has established that Mr Filippov, while still alive,
did not recognise [the applicant's] tenancy right in respect of
the contested flat; [the applicant] did not produce evidence
showing that Mr Filippov had recognised her right to tenancy.
Besides, it has been established that [the applicant] retained her
tenancy right in respect of [her daughter's flat] and that she had
moved into the contested flat in breach of the procedure
established by Article 54 з 1 of the RSFSR Housing Code...
Furthermore, [the applicant's] assertion about the presence of
her personal effects (250 items) in the contested flat... is
rebutted by the results of the inquiries carried out by the
Sovietskiy District and Vladivostok City prosecutor's offices, as
well as the housing maintenance authority report of 4 September
1998.
Under these circumstances, the court finds that [the applicant]
has not acquired the tenancy right to [the contested flat]..."
The court grounded its findings on the statements of Mr
Filippov's son and daughter-in-law; however, the court rejected a
statement by the applicant's daughter on the ground that she was
an interested witness. It also determined that statements by five
neighbours produced at the hearing were not sufficient to
establish that the applicant and Mr Filippov had maintained a
joint household.
22. The applicant appealed against the judgment. In her
statement of the grounds of appeal of 17 August 1999 the applicant
pointed to a very substantial body of evidence proving her
residence in the flat (statements by witnesses, postcards, mail
receipts, etc.). She alleged that her late partner's son had
conspired with his police superior to acquire the flat, which
explained why they had managed to obtain in just two days the
decisions of the City Council and of the housing maintenance
authority, as well as the occupation certificate and residence
registration stamp. She complained that she had been thrown out by
force, contrary to the applicable provisions of the Housing Code.
23. On 6 October 1999 the Civil Section of the Primorskiy
Regional Court upheld the decision of 9 August 1999. The Regional
Court endorsed the arguments of the first instance court.
24. The applicant submitted several requests for supervisory
review, all of which were turned down.
25. According to the applicant, the flat was privatised in 1999
and sold to a third party.
II. Relevant domestic law
26. 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 the 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 90. Eviction from living premises
"Eviction from occupied living premises in state or public
housing shall only be permissible on the grounds set out in the
law.
Eviction shall be ordered by a court..."
THE LAW
I. The government's preliminary objection
27. The Government, in their additional observations of 23
March 2004 following the Court's decision as to the admissibility
of the application on 8 January 2004, contended for the first time
that the applicant had not exhausted domestic remedies as required
by Article 35 з 1 of the Convention in respect of her complaint
under Article 8 of the Convention. They submitted that it had been
open to her, pursuant to Article 46 зз 1 and 2 of the Russian
Constitution and section 4 of the Russian law "On appeals to a
court against acts and decisions violating citizens' rights", to
lodge a complaint with a court about the unlawful acts of the
police officers who had enforced her eviction on 4 September 1998.
However, the applicant had not used this remedy.
28. The applicant disagreed. She indicated that she had
complained to, among others, the head of the local police
department and the chief inspector of the Ministry of the
Interior.
29. The Court reiterates that, according to Rule 55 of the
Rules of Court, any plea of inadmissibility must, in so far as its
character and the circumstances permit, be raised by the
respondent Contracting Party in its written or oral observations
on the admissibility of the application (see K. and T. v. Finland
[GC], No. 25702/94, з 145, ECHR 2001-VII; N.C. v. Italy [GC], No.
24952/94, з 44, ECHR 2002-X). The Government's submissions
referred to the events that had occurred before the application
was lodged with the Court and there had been no relevant legal
developments thereafter. There are no exceptional circumstances
which would have absolved the Government from the obligation to
raise their preliminary objection before the Court's decision as
to the admissibility of the application on 8 January 2004.
30. Consequently, the Government are estopped from raising a
preliminary objection of non-exhaustion of domestic remedies at
the present stage of the proceedings. The Government's objection
must therefore be dismissed.
II. Alleged violation of Article 8 of the Convention
31. The applicant complained that her eviction from her late
partner's flat had been unlawful. She invoked 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."
A. The parties' submissions
1. The applicant
32. The applicant submitted that she had moved into her
partner's flat as a member of his family. They had jointly
furnished the flat, purchased household goods together and shared
maintenance expenses. She had therefore been entitled to succeed
to the tenancy under Articles 53 and 54 of the RSFSR Housing Code.
She contended that the domestic courts had wrongly rejected the
statements by six witnesses on her behalf who had confirmed the
she and her late partner had lived together as husband and wife.
The applicant maintained that on 4 September 1998 police officers
had evicted her by force, without a court order, in breach of
Article 90 of the RSFSR Housing Code.
2. The Government
33. The Government, in their memorandum of 9 July 2003,
submitted that the applicant had not been a victim of the alleged
violation. They claimed that the applicant had lived in the
contested flat without any legal title. She had not been the
spouse of the tenant of the flat and she had had no legal
entitlement to continuation of the tenancy after his death.
Therefore, in the Government's opinion, there was no interference
with her rights under Article 8 з 1 of the Convention.
34. In their additional observations of 23 March 2004, the
Government conceded that in the circumstances of the case the
applicant had been evicted from her late partner's flat in the
absence of a court decision. They further accepted that the
procedure for eviction established by the second paragraph of
Article 90 of the RSFSR Housing Code had not been complied with.
B. The Court's assessment
1. Whether the flat in question was the applicant's "home"
within the meaning of Article 8 of the Convention
35. The Government disputed that the applicant's right to
respect for her home was at issue because her residence in the
contested flat had not been legally established.
36. The Court recalls the Convention organs' case-law 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. "Home" is an autonomous concept which does not depend
on classification under domestic law. Whether or not a particular
habitation constitutes a "home" which attracts the protection of
Article 8 з 1 will depend on the factual circumstances, namely,
the existence of sufficient and continuous links with a specific
place (see the following authorities: Buckley v. the United
Kingdom, judgment of 25 September 1996, Reports of Judgments and
Decisions 1996-IV, зз 52 - 54, and Commission's report of 11
January 1995, з 63; Gillow v. the United Kingdom, judgment of 24
November 1986, Series A No. 109, з 46; Wiggins v. the United
Kingdom, No. 7456/76, Commission decision of 8 February 1978,
Decisions and Reports (DR) 13, p. 40).
37. According to the applicant, she had established the
contested flat as her home in 1988 when she had moved in with her
partner. She produced receipts and other financial documents
showing that they had purchased furniture and household items
together and that they had jointly borne housing charges and
maintenance expenses. It also appears that the applicant received
letters and postcards sent to her and to her partner at the
mailing address of the contested flat. Statements by several
witnesses, the accuracy of which the Court has no cause to doubt,
indicate that the applicant had been frequently seen in and around
Mr Filippov's place. Moreover, the domestic courts established
that the applicant had in fact lived in the contested flat (see з
21 above). The Government did not dispute that the flat at issue
was the applicant's actual place of residence. Having regard to
the co-existence of the convincing, concordant and unrebutted
factual circumstances outlined above, the Court finds that the
applicant had sufficient and continuing links with Mr Filippov's
flat for it to be considered her "home" for the purposes of
Article 8 of the Convention.
38. Furthermore, the Court is satisfied that the applicant had
not established any other home elsewhere. Although the Government
refused to consider Mr Filippov's flat as the applicant's "home",
they omitted to indicate what other premises could have been her
"home". Indeed, it notes that, although the domestic courts
premised their findings on the fact that the applicant had
retained the legal right to take up residence in her daughter's
flat, they did not maintain that that flat was the applicant's
actual home.
39. Therefore the Court concludes that Mr Filippov's flat was
the applicant's home for the purposes of Article 8 of the
Convention.
2. Whether there was an interference by a public
authority with the applicant's right to respect for her home
40. Having established that the flat in question was the
applicant's home for the purposes of Article 8 of the Convention,
the Court has to determine whether there was an interference with
her right to respect for her home by a public authority.
41. The Government claimed that the applicant should have
lodged a complaint against the police officers who had locked her
out of the contested flat in accordance with the procedure for
lodging complaints about acts and decisions by public officials
and agencies. The Court interprets this statement as an
acknowledgment that the persons who had executed the applicant's
eviction had acted in their capacity as State officials.
42. The Court finds that the applicant's eviction from the
contested flat by State officials constituted an interference with
her right to respect for her home by a public authority.
3. Whether the interference was justified
43. In order to determine whether the interference was
justified under paragraph 2 of Article 8, the Court will first
examine whether it was "in accordance with the law" (see Gillow v.
the United Kingdom, cited above, з 48).
44. The Court notes that Article 90 of the RSFSR Housing Code
permitted eviction only on the grounds established by law and only
on the basis of a court order. That provision introduced an
important procedural safeguard against arbitrary evictions and its
wording permitted no exceptions.
The Government have conceded that the procedure established by
Article 90 of the RSFSR Housing Code should have been followed in
the applicant's case, even though her residence had not been
legally established. The Court sees no reason to dissent. It
cannot discern any circumstances that could have justified in the
instant case a departure from the normal procedure of eviction and
the remarkably hasty re-allocation of the flat to a police officer
just seven days after the death of the former tenant.
45. It follows that the interference in the present case cannot
be considered to be "in accordance with the law", as required by
Article 8 з 2 of the Convention. Accordingly, there has been a
violation of Article 8. In the light of this conclusion, the Court
is not required to determine whether the interference was
"necessary in a democratic society" for one of the aims enumerated
in paragraph 2 of Article 8.
III. Application of Article 41 of the Convention
46. 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."
A. Damage
47. The applicant claimed 1,132,614 Russian roubles ("RUR",
approximately 32,620 euros) in respect of pecuniary damage, of
which RUR 348,614 represent the value of her personal effects left
behind in the contested flat, the remaining RUR 784,000 being the
value of a one-room flat measuring 30 sq. m. in a standard block
of flats. The applicant also claimed RUR 226,000 (approximately
EUR 6,500) in respect of non-pecuniary damage.
48. The Government contended that the claims for damage were
not reasonable because the applicant was not a victim of the
alleged violation.
49. The Court notes that the applicant did not have title to
her late partner's flat and there is therefore no cause to
reimburse her for its value. It further notes that the applicant's
complaint about the loss of her personal effects was declared
inadmissible on 8 January 2004.
In the Court's view, the applicant undoubtedly sustained
significant non-pecuniary damage which cannot be compensated
solely by the finding of a violation. Less than a week after the
sudden death of her partner she was evicted by force from the flat
where they had lived for ten years and locked out of it. She found
herself in a precarious housing situation exacerbated by feelings
of frustration and injustice. The applicant must have experienced
considerable stress and anxiety in consequence of that and in
settling elsewhere. Taking all the relevant factors into account
and making an assessment on an equitable basis, the Court awards
the sum of EUR 6,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
50. The applicant claimed RUR 39,200 as her costs and expenses.
Those include RUR 33,200 for the purchase of basic essentials
after her eviction and RUR 6,000 (approximately EUR 175) for legal
expenses.
51. The Government did not comment.
52. The Court accepts that the applicant incurred some expenses
in order to obtain redress both in the domestic legal order and at
the European level. The amount of legal expenses does not appear
excessive or unreasonable. The Court however observes that at the
admissibility stage one of the applicant's complaints was declared
inadmissible. It is therefore appropriate to reimburse the costs
and expenses alleged by the applicant only in part. Having regard
to the elements at its disposal, the Court awards the applicant
EUR 120 for the costs incurred in the domestic and European
proceedings, plus any tax that may be chargeable on that amount,
whereas it rejects the part of the applicant's claim which refers
to the purchase of basic essentials.
C. Default interest
53. The Court considers it appropriate that the default
interest 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. Dismisses the Government's preliminary objection;
2. Holds that there has been a violation of Article 8 of the
Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final
according to Article 44 з 2 of the Convention, EUR 6,120 (six
thousand one hundred and twenty euros) in respect of non-pecuniary
damage and costs and expenses, to be converted into Russian
roubles at the rate applicable at the date of settlement, plus any
tax that may be chargeable;
(b) 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;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 18 November 2004,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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