CASE OF YEVGENIY ZAKHAROV v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1944 and lives in Kaliningrad. 6. Until 1999 the applicant was married to Z. and was living with her in a state-owned flat which had been provided to Z.’s parents. The applicant was registered as living in that flat. 7. In 1999 the applicant and Z. divorced and the applicant moved in with his new partner, B. At that time he did not apply for deregistration from the flat which he had occupied with his former wife. Later Z. privatised that flat, and the applicant lost occupational right to it. 8. B. occupied a room in a three-room communal flat under a social tenancy agreement. The other two rooms were occupied by her neighbours. The applicant and B. lived together in that room for the following ten years. They never married and the applicant was not registered as living in the room. 9. In May 2009 B. died and her neighbours locked the applicant out of the flat. The local housing authority informed the applicant that he had to vacate the room, since he had no legal right to occupy it. 10. On 28 September 2009 the applicant instituted court proceedings against the local administration, seeking recognition of his right to occupy the room as B.’s family member. He submitted that he and B. had been living in the room as husband and wife since 1988, but that after her death her neighbours had locked him out of the room. He considered that despite the fact that he had not been married to B. and had not been registered as living in the room, he should be regarded as a member of her family who had acquired the right to occupy her room. In particular, he raised the following arguments: - he had shared a common household with B.; - he had paid for the maintenance of the room; - he had assumed the cost of B.’s burial; - he had no other housing: he could not return to the flat of his former wife Z. since she had become the owner of that flat and lived there with her new family; - on 8 September 2009 he had asked the authorities to deregister him from the flat of his former wife Z.; - since his eviction, he had been obliged to live in the school in which he was working as a night watchman. 11. The local administration submitted that the applicant had not been registered as living in B.’s room, he was not a member of B.’s family and, therefore, he had not acquired any right to occupy her room. 12. B.’s neighbours were invited to participate in the proceedings as third parties. They confirmed that between 1999 and 2009 the applicant had lived in the room with B. and had provided her with financial support. However, they considered that B.’s room should be allocated to them and not to the applicant, since there were six of them living in two rooms and they needed to upgrade their living conditions. 13. On 6 May 2010 the Leninskiy District Court (“the District Court”) of Kaliningrad granted the applicant’s claim with reference to Articles 69 and 70 of the Housing Code (see Relevant domestic law and practice below). The District Court established, in particular, that between 1999 and 2009 the applicant had cohabited with B. in the room in question, had shared a common household with her and had been removed from the register at his previous place of residence. The District Court considered that the above circumstances should be regarded as exceptional within the meaning of Article 69 of the Housing Code and that the applicant should therefore be regarded as a member of B.’s family who had acquired the right to reside in the room previously occupied by her. 14. The local administration did not appeal against the judgment of 6 May 2010. 15. The third parties appealed against that judgment to the Kaliningrad Regional Court (“the Regional Court”). They submitted that B. had on several occasions chased the applicant away. She had not applied to the authorities with a request to register him as living in her room, and had not asked that his name be added to the social tenancy agreement as a member of her family. The applicant had not paid any utility charges for the room and had been registered as living elsewhere until B.’s death. 16. On 22 September 2010 the Regional Court quashed the judgment of 6 May 2010 and dismissed the applicant’s claims. The relevant part of the decision of 22 September 2010 reads as follows: “When granting the claims of Mr Zakharov Ye. N. [the applicant], the court [the District Court] proceeded from the premise that there existed exceptional circumstances allowing it to recognise him as a member of Ms Brazhnikova’s [B.’s] family in accordance with Article 69 § 1 of the Housing Code. The Civil Chamber [of the Kaliningrad Regional Court] cannot agree with such a decision. The court [the District Court] established on the basis of the plaintiff’s and witnesses’ submissions that the plaintiff had lived together with Ms Brazhnikova L.P. [B.] since 1999 and had shared a common household with her. The above circumstances are not in themselves exceptional, in particular given that no irrefutable evidence had been submitted to the court to prove that Ms Brazhnikova L. P. had let Mr Zakharov live in the flat as a family member rather than as a temporary resident. Throughout the period in which he lived together with Ms Brazhnikova L.P., the plaintiff had been registered as living in house no. 6, Pionerskaya street in the village of Aleksandrovka in the Zelenogradskiy district. He asked to be removed from the register on 8 September 2009 after the death of Ms Brazhnikova and just before applying to the court. the court to recognise Mr Zakharov Ye. N. as a family member of the social tenant Ms Brazhnikova L.P. as well as acknowledging his right to occupy the flat in question. It follows that the court judgment should be quashed and a new decision should be taken dismissing those claims.” 17. On 3 March 2011 a judge of the Supreme Court of Russia (“the Supreme Court”) refused to refer the applicant’s application for supervisory review of the decision of 22 September 2010 to the Civil Chamber of the Supreme Court for examination, finding no grounds for such review and relying on the principle of legal certainty.