CASE OF ZIMONIN AND OTHERS v. RUSSIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
4. The applicants are Russian nationals. They were owners of flats in Moscow. The State authorities reclaimed the flats, and the applicants’ title to the real property in question was annulled. 5. The flat at 21-110 Belovezhskaya Ulitsa, Moscow, was owned by K. On 5 January 2005 K. died intestate with no surviving kin. 6. On 18 May 2005 M. bought the flat from a person acting on K.’s behalf by virtue of a power of attorney. 7. On 28 October 2005 M. sold the flat to O. 8. On 7 April 2006 O. sold the flat to V. 9. On 19 April 2006 V. sold the flat to the applicant and his minor daughter. 10. On an unspecified date the police opened an investigation into the fraudulent sale of the flat after K.’s death. On 30 January 2008 the police informed the Moscow Department of Housing Policy and Housing Fund (the Housing Department) about the investigation. 11. On an unspecified date the Housing Department brought an action against the applicant seeking the transfer of the title to the flat to the City of Moscow and the applicant’s eviction. 12. On 18 December 2012 the Kuntsevskiy District Court of Moscow granted the Housing Department’s claims in full. The court established that K. had died intestate with no surviving kin and that the flat should have been considered bona vacantia. It considered all the transactions with the flat to be void and ordered the transfer of the title to the flat to the City of Moscow and the applicant’s eviction. 13. On 14 March 2013 the City Court upheld the judgment of 18 December 2012 on appeal. 14. On 16 May 2013 the City Court refused to allow the applicants’ cassation appeal. 15. On 14 August 2013 the Supreme Court of the Russian Federation refused to allow the applicants’ second cassation appeal. 16. On 24 December 2013 the City of Moscow had its title to the flat registered. 17. According to the Government, on 2 December 2014 the Housing Department entered into a social housing agreement with the applicant and his daughter who continued to reside in the flat. 18. The flat at 10-1-339, Orekhoviy Bulvar, Moscow, was owned by S. On 29 July 2009 S. died intestate with no surviving kin. 19. On 16 April 2010 an unidentified person sold the flat to B. 20. On 10 June 2010 B. sold the flat to K., the applicant’s father. 21. On 15 April 2011 the Nagatinskiy District Court of Moscow approved a friendly settlement agreement between the applicant and her father recognising the applicant’s title to the flat. 22. On 21 October 2011 the police opened an investigation into the fraudulent sale of the flat after S.’s death. On 29 February 2012 the police informed the Housing Department about the investigation. 23. On an unspecified date the Housing Department brought a civil action against the applicant seeking the transfer of the title to the flat to the City of Moscow and the applicant’s eviction. 24. On 19 June 2013 the District Court granted the Housing Department’s claims in full. The court established that S. had died intestate with no surviving kin and that the flat should have been considered bona vacantia. 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 previous owner who had been deprived of the property against his or her will. The applicant’s title to the flat was annulled and the title was transferred to the City of Moscow. 25. On 14 November 2013 the City Court upheld the judgment of 19 June 2013 on appeal. 26. On 25 March 2014 the City Court refused to allow the applicant’s cassation appeal. 27. According to the applicant, the judgment in the City’s favour has not been enforced and the applicant continues to reside in the flat. 28. The flat at 33-31, Stremyanniy Pereulok, Moscow, had been owned by N., who died intestate with no surviving kin on 14 April 2006. 29. On an unspecified date P. and other unidentified persons forged N.’s will, naming P. as N.’s heir. 30. On 19 October 2006 P. applied to a notary seeking to be recognised as N.’s heir. On 30 November 2006 the notary issued a certificate confirming that P. had inherited N.’s flat. 31. On 6 December 2006 the Moscow City Registration Board (the “Registration Board”) registered the certificate confirming P.’s title to the flat and issued the relevant deed. 32. On 30 January 2007 P. sold the flat to the first applicant. 33. On 6 February 2007 the Registration Board registered the flat purchase and issued the respective deed to the first applicant. The applicants moved into the flat and resided there. 34. On an unspecified date the authorities opened a criminal investigation concerning the forgery of the will issued on behalf of N. 35. On 26 April 2012 the Perovskiy District Court of Moscow found P. guilty of several counts of fraud and sentenced him to five and a half years’ imprisonment. In particular, the court established that P., acting in concert with other persons whose identity was not known, had fraudulently acquired N.’s flat and sold it to the first applicant on the basis of a forged will. The court also found that the flat was bona vacantia which therefore vested in the State and, by having fraudulently acquired title to it and then sold it to the first applicant, P. had caused damage to the State. 36. On 25 June 2012 the Moscow City Court upheld the judgment of 26 April 2012 on appeal. 37. On 25 March 2013 the Housing Department brought a civil action against the applicants seeking, inter alia, (1) revocation of the first applicant’s title to the flat; (2) the applicants’ eviction; and (3) restitution of the flat to the City of Moscow. 38. On 26 May 2014 the Zamoskvoretskiy District Court of Moscow granted the Housing Department’s claims. It established that the flat was bona vacantia and ordered its restitution to the City of Moscow. It also revoked the first applicant’s title to the flat and ordered the applicants’ eviction. 39. On 26 December 2014 the City Court upheld the judgment of 26 May 2014 on appeal. 40. On 17 March 2015 the Moscow City Court refused to allow the applicants’ cassation appeal. 41. On 17 April 2015 the Supreme Court of the Russian Federation refused to allow the applicants’ cassation appeal. 42. It appears that the judgment in the City’s favour has not been enforced to date. The applicants continue to reside in the flat.