EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF NATALYA GERASIMOVA v. RUSSIA
(Application No. 24077/02)
JUDGMENT <*>
(Strasbourg, 21.VII.2005)
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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.
In the case of Natalya Gerasimova v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs N. {Vajic} <*>,
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having deliberated in private on 30 June 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 24077/02) 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 Natalya
Nikolayevna Gerasimova, on 21 May 2002.
2. The Russian Government ("the Government") were represented
by their Agent, Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. On 25 March 2004 the Court decided to communicate the
complaint about non-enforcement of a final judicial decision to
the Government and declared the remainder of the application
inadmissible. Under the provisions of Article 29 з 3 of the
Convention, the Court decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. The circumstances of the case
4. The applicant was born in 1942 and lives in Moscow.
5. In June 2001 the applicant was advised by the Housing Policy
Department of the North-Eastern Administrative District Council
that the building in which she owned a flat had been scheduled for
demolition within the framework of a city-wide programme for
reconstruction of Soviet-era housing. The applicant was offered a
substitute flat in a remote area of Yuzhnoye Butovo. After the
applicant had rejected the offer, the Council sued her for
eviction and resettlement.
6. On 27 September 2001 the Babushkinskiy District Court of
Moscow found for the Council. It ordered the applicant's eviction
from her old flat and transferred her title in it to the Council's
account. It also held that the new flat in Yuzhnoye Butovo should
be transferred into the applicant's ownership. On 6 December 2001
the Moscow City Court upheld the judgment of 27 September 2001.
7. On 24 January 2002 enforcement proceedings were opened. On 2
April 2002 bailiffs relocated the applicant into the new flat.
8. The applicant asked the court to clarify the judgment of 27
September 2001. She submitted that title in the new flat had not
been transferred to her because the local council had asked her to
pay for additional living surface and to advance the registration
fee.
9. On 26 August 2002 the Babushkinskiy District Court delivered
a procedural order (определение). It interpreted Article 49.3 of
the Housing Code (see below) in the sense that, where eviction was
required because of demolition of a building, registration fees
were to be borne by the party who sought eviction, that is the
North-Eastern District Council.
10. On 10 April 2003 a court bailiff requested the Municipal
Housing Department of the North-Eastern Administrative District
Council to report why the judgment of 27 September 2001, as
clarified on 26 August 2002, remained unenforced in the part
concerning the transfer of title to the applicant.
11. On 7 May 2003 the Municipal Housing Department responded to
the bailiff that the judgment had not imposed the obligation to
transfer title on the Department and that it was not competent to
act on behalf of the North-Eastern Administrative District
Council.
12. According to the Government, on 4 December 2003 the
Presidium of the Moscow City Court quashed, by way of supervisory-
review proceedings, the procedural order of 26 August 2002 and
remitted the matter for a fresh examination. On 20 May 2004 the
Babushkinskiy District Court refused the applicant's request for a
clarification of the judgment of 27 September 2001. Copies of
these decisions were not made available to the Court.
II. Relevant domestic law
Civil Code of the Russian Federation
13. Article 223 з 2 establishes that where the transfer of
property is subject to State registration, the purchaser acquires
title from the moment of such registration.
Housing Code of the RSFSR (in force at the material time)
14. Article 49.3 established that in case of demolition of a
block of flats, the local authority, company or organisation that
performed the demolition should grant the evicted owners title in
an equivalent flat or any other compensation.
Law on State Registration of Rights to Immovable Property or
Transactions with It (No. 122-FZ of 21 July 1997)
15. Sections 13 з 1 and 16 з 4 provide that State registration
may be carried out upon production of the required documents and
payment of the registration fee.
16. Pursuant to section 17 з 1, a final judicial decision is a
basis for State registration of a right to immovable property or a
transaction with it. Section 28 з 3 (as amended on 9 June 2003)
requires judicial bodies to submit final judgments and decisions
concerning rights to immovable property to the registration
authorities within three days of their delivery.
THE LAW
I. Alleged violation of article 6
Of the convention and article 1 of protocol No. 1
17. The applicant complained that the judgment of 27 September
2001, as upheld on 6 December 2001, has not been enforced in the
part requiring the transfer of title in the new flat. The Court
considers that these complaints fall to be examined under Article
6 з 1 of the Convention and Article 1 of Protocol No. 1 (see
Burdov v. Russia, No. 59498/00, з 26, ECHR 2002-III). Article 6,
in the relevant part, provides as follows:
"In the determination of his civil rights and obligations...,
everyone is entitled to a fair... hearing... by [a]...
tribunal..."
Article 1 of Protocol No. 1 reads 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."
A. Arguments by the parties
18. The Government submit that there has been no violation of
the Convention or the Protocols thereto because the applicant has
obtained title in the new flat from the moment of coming into
force of the judgment of 27 September 2001. From that moment she
has been able to use, possess and alienate the flat. At present
the State registration of her right of ownership has not been
performed, but the applicant may apply for registration at any
moment, subject to the payment of the registration fee. The
Council may not apply for registration in the applicant's stead.
19. The applicant submits that she was evicted contrary to her
wishes. In such circumstances it would be reasonable to expect
that the domestic authorities would gather the required documents
and perform the registration. Moreover, the amount of the
registration fee is commensurate with her monthly pension. On the
other hand, she never refused to come and collect the ownership
certificate from the registration authority.
В. Admissibility
20. The Court notes that the application is not manifestly ill-
founded within the meaning of Article 35 з 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
C. Merits
21. Turning to the merits of the case, the Court observes that
on 27 September 2001 the domestic court issued a judgment,
according to which the applicant was to obtain the right of
ownership of the substitute flat. Enforcement proceedings were
instituted, the applicant got the keys to the flat and moved into
it, but the State registration of the transfer has not been
performed to date.
22. The Government's submission that the applicant acquired
title from the moment of coming into force of the judgment appears
to be at variance with Article 223 of the Russian Civil Code,
pursuant to which title to immovable property is considered to
have been acquired from the moment of State registration. The
Court notes that the Government did not refer to any provision of
the domestic law supporting their interpretation or to any other
legal rule which could have been more appropriately applied to the
applicant's case. It follows that the transfer of the flat cannot
be deemed completed until the State registration has been
performed. Accordingly, the judgment of 27 September 2001, as
upheld on 6 December 2001, has not been enforced in the part
concerning the transfer of title.
23. The Court further notes that the failure to enforce the
judgment of 27 September 2001 at the initial stage could have been
due to the court's omission to specify which of the applicant or
the Council was to carry out State registration of the applicant's
title and bear the associated costs. However, even after the same
court issued a special clarification imposing the duty to register
the transfer of title on the Council, the domestic authorities do
not appear to have taken any steps to enforce the judgment.
Instead, they chose to attack the clarification by way of
supervisory-review proceedings. As the Government failed to submit
copies of the judicial decisions of 4 December 2003 and 20 May
2004, it is impossible to determine the domestic courts' current
approach to the distribution of the obligation to perform State
registration. In any event, the Government have not contested that
the enforcement proceedings are now pending, but the judgment has
remained without enforcement to date, that is for more than four
years since it was issued.
24. The Court has frequently found violations of Article 6 з 1
of the Convention and Article 1 of Protocol No. 1 in cases raising
issues similar to the ones in the present case (see, e.g.,
Gizzatova v. Russia, No. 5124/03, з 19 et seq., 13 January 2005;
Wasserman v. Russia, No. 15021/02, з 35 et seq., 18 November 2004;
Burdov, cited above, з 34 et seq.).
25. Having examined the material submitted to it, the Court
notes that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion
in the present case. Having regard to its case-law on the subject,
the Court finds that by failing for years to comply with the
enforceable judgment in the applicant's favour the domestic
authorities prevented her from obtaining title in property she
could reasonably have expected to acquire.
26. There has accordingly been a violation of Article 6 of the
Convention and Article 1 of Protocol No. 1.
II. Application of article 41 of the convention
27. 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
28. The applicant claimed 1,900 US dollars (USD) in respect of
pecuniary damage, representing the expenses incurred in connection
with her move into the new flat. She claimed a further USD 50,000
in respect of non-pecuniary damage.
29. The Government did not comment.
30. The Court notes that the claim for the pecuniary damage
refers to the applicant's eviction and resettlement into the new
flat. However, it declared the complaints relating to these events
inadmissible in its decision of 25 March 2004. As the applicant
did not claim that the non-enforcement of the judgment of 27
September 2001, as upheld on 6 December 2001, caused her pecuniary
damage, the Court rejects her claims in that part. As regards the
claim for non-pecuniary damage, the Court, deciding on an
equitable basis, considers that the finding of a violation
constitutes sufficient just satisfaction.
B. Costs and expenses
31. The applicant claimed 1,175 Russian roubles for postal and
copying expenses. The Government did not comment.
32. Having regard to all materials in its possession, the Court
is satisfied that these expenses have been actually and
necessarily incurred and were reasonable as to quantum. It awards
the applicant 1,175 Russian roubles in respect of costs and
expenses, plus any tax that may be chargeable on that amount.
C. Default interest
33. 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. Declares the application admissible;
2. Holds that there has been a violation of Article 6 of the
Convention;
3. Holds that there has been a violation of Article 1 of
Protocol No. 1;
4. 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, RUR 1,175 (one
thousand one hundred seventy-five Russian roubles) in respect of
costs and expenses, plus any tax that may be chargeable on the
above amounts;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amount 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 21 July 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
Santiago QUESADA
Deputy Registrar
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