CASE OF LEKHANOVA v. RUSSIA
Violation of Article 6 - Right to a fair trial
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1930 and lives in the town of Voronezh. 5. The applicant was a member of a housing cooperative. Having paid a sum of money, she expected to receive a certain flat from the cooperative in a newly built block of flats. However, the applicant was then expelled from the cooperative. The flat was given to Mr L instead. The latter sold the flat to Mr Ch. 6. On 16 March 1998 the applicant brought proceedings against the housing cooperative in the Kominternovskiy District Court of Voronezh. She sought the annulment of the cooperative's decision to expel her and give the flat to L. She also sought compensation in respect of non-pecuniary damage and recognition of her title to the flat. 7. In the meantime, Mr Ch resold the flat to Ms K. On 7 May 1998 the judge issued a charging order in respect of the flat. 8. In September 1998 the applicant amended her claims, seeking the annulment of the purchase contracts by Ch and K and recognition of her right to live in the flat in question. 9. According to the Government, several hearings between September and November 1998 had to be adjourned in order to take account of the applicant's amended claims and enable the parties to collect evidence in support of their claims. 10. According to the Government, in 1999 one hearing was adjourned because of the defendants; another one was adjourned on account of their and the lay judges' failure to attend; and two further hearings were adjourned to enable the applicant to submit amended claims. 11. By a judgment of 6 September 1999, the District Court rejected her claims. The applicant appealed. After complying with the court's instructions concerning court fees, on 20 April 2000 the Voronezh Regional Court examined her appeal and upheld the above judgment as regards the rejection of the non-pecuniary claim but ordered a fresh hearing in respect of the remaining claims. 12. Upon the applicant's complaint about the length of proceedings before the District Court, a judge of the Regional Court carried out a preliminary inquiry and concluded on 31 January 2001 that a further inquiry would be appropriate. Its outcome remains unclear. 13. In the meantime, having re-examined the remaining claims, on 27 June 2001 the District Court upheld most of the claims against the defendant, including the applicant's claim for title to the flat in question. On 15 August 2001 the District Court issued an additional judgment amending the earlier one and ordering Ms K's eviction. On 11 October 2001 the Regional Court upheld the judgment of 27 June 2001. 14. On an unspecified date the applicant applied for registration of her title to the flat. On 18 January 2002 the State Property Registry refused to issue a title certificate to the applicant because there was a valid charging order in respect of the flat. However, on 29 January 2002 the applicant was provided with the title certificate. 15. On 5 February 2002 the President of the Regional Court lodged a request for supervisory review of the judgment of 15 August 2001. On 11 February 2002 the Presidium of the Regional Court quashed the judgment on the ground that the defendant had not been informed of the hearing. 16. Upon a request of the Acting President of the Regional Court, on 14 October 2002 the Presidium court quashed the judgments of 27 June and 11 October 2001 in part and ordered a re-examination of the relevant claims. 17. It appears that, on an unspecified date, the title registration in respect of the flat at issue was revoked in view of the annulment of the court decisions on which it had been based. 18. In view of her advancing age and declining health, the applicant was represented by her daughter, Ms P, at most hearings throughout the proceedings. 19. According to the Government, in 2004 at least six hearings were listed and adjourned because the parties had failed to appear. One hearing was adjourned because the judge was on sick leave, and another one because the defendants failed to attend. Each adjournment resulted in delays of up to two months. 20. In 2005 at least three hearings were listed but adjourned because the parties failed to attend or sought to adduce evidence or appoint new representatives. On 3 August 2005 the applicant submitted amended claims. 21. By a judgment of 5 October 2005 the District Court ruled on the merits of the applicant's claims as amended. With reference to the judgment of 27 June 2001 in its valid part, the court reconfirmed the unlawfulness of the cooperative's decisions to expel the applicant and give the flat to L. The court accepted that the applicant had honoured her contract with the cooperative and had thus acquired a claim to a particular flat, the one which was given to L. Referring to a 2003 ruling by the Constitutional Court, the court refused to annul the flat purchases by Ch. and then K. because they were protected “purchasers in good faith” within the meaning of Article 167 of the Civil Code; the court indicated, however, that a claim under Article 302 of the Code would be a proper course of action (see paragraphs 29 and 30 below). The court also observed that any of the above claims could be brought by an “owner”. The court reiterated that only an official certificate from the State register could prove ownership title (see paragraph 31 below). Accordingly, the court refused to accept the applicant's membership card as valid proof of her title to the flat at issue (see, however, paragraphs 14 and 17 above). The court also rejected the applicant's eviction claim against Ms K, because only the proven owner could seek eviction. However, the court awarded the applicant 3,000 Russian roubles (RUB) in respect of non-pecuniary damage and RUB 2,000 in litigation costs (lawyer's fees, photocopying fees, compensation for loss of time). The court refused to award the applicant's representative P's travel expenses between her residence town (Moscow) and Voronezh. 22. The applicant appealed, contending that the 2003 ruling of the Constitutional Court could not be applied to events in the 1990s. On 16 February 2006 the Regional Court set aside the judgment in the part concerning compensation in respect of non-pecuniary damage and upheld it in the remaining part. The appeal court held that the Constitutional Court had only determined the constitutional meaning of the relevant provisions of the Civil Code in force at the material time. 23. In May 2006 Ms K obtained an official certificate confirming her title to the flat. It appears that she sold it to another person in the same month. 24. By an order of 6 September 2006, the District Court lifted the charging order in respect of the flat in question. The applicant appealed. On 16 January 2007 the Regional Court upheld this order. 25. On an unspecified date the applicant applied to the Bailiffs' Service for enforcement of the judgment of 5 October 2005. On 19 April 2007 the Bailiffs' Service indicated that the judgment could not be enforced against the housing cooperative because it had ceased its activity in January 2007. 26. On 20 April 2007 the Regional Court refused leave for supervisory review of the judgments of 5 October 2005 and 16 February 2006. 27. In reply to the applicant's complaint concerning the above civil dispute, by a letter of 12 February 2007 the Prosecutor General's Office advised her to sue the housing cooperative for damages in view of their failure to honour their contractual obligations. 28. In separate proceedings, on an unspecified date, the authorities opened a criminal investigation into the applicant's allegations that the private company's acts had deprived her of her flat. In August 2008 the case was discontinued because the statutory time-limit for criminal prosecution had expired. 29. Under Article 167 of the Civil Code 1994, a voided transaction does not give rise to any legal consequences beyond those related to its annulment, and is void ab initio. In a voided transaction the parties should return to each other what was received or, if not practicable, they should pay compensation. Under Article 302 of the Civil Code, the first owner can claim property back from a purchaser in good faith who has acquired it from an unauthorised seller without knowing or being in a position to know that the seller was unauthorised. However, such a claim can only arise if the property was lost, stolen or otherwise taken out of the first owner's control. 30. By a ruling of 21 April 2003, the Constitutional Court interpreted Article 167 of the Code as not allowing the first owner to reclaim his property from a purchaser in good faith unless there is a special legislative provision to this effect. Instead, a claim vindicating prior rights (виндикационный иск) could be lodged under Article 302 of the Code. 31. Under Article 219 of the Civil Code, ownership title to a building or other newly built premises requiring State registration, arises from the time of such registration.