RAYEVA v. RUSSIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
The applicant, Ms Galina Nikolayevna Rayeva, is a Russian national who was born in 1940 and lives in Moscow. The respondent Government were represented by Mr P. Laptev, a former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In 1993 the applicant married Mr M. and they started living together at the applicant’s flat on the Menjinsky Street in Moscow. In 1997 they moved into a two-room flat on the Tkatskaya Street in Moscow (“the flat”). The flat was owned by the district council; M. and his son D., born in 1974, had their “registered place of residence” in the flat. In 1998 D.’s wife gave birth to a son and D. moved with his family to his wife’s flat. As D. never consented to privatisation of the flat, it remained in the ownership of the district council. The applicant contributed to payment of rent and maintenance charges. In 2001 D. asked his father and the applicant either to repay him one half of the flat’s value, or to exchange it for two smaller ones. The applicant and M. had no money, so D. sought a court order for exchange. On 17 January 2002 the Izmaylovskiy District Court of Moscow refused to issue the order as the terms of exchange offered by D. were not satisfactory. On 27 November 2002 the applicant brought separate proceedings against D., seeking a court declaration upholding her right of residence in the flat. On 6 February 2003 the District Court granted D.’s claim and ordered that M. move to a 17-square-metre room in a two-room “communal” flat. It dismissed M.’s objections to the move relating to the applicant’s frail health, finding as follows: “M.’s wife [the applicant] has not acquired the right of residence in the contested flat in accordance with the established procedure, her right to reside [in the flat] has not been confirmed, whereas the plaintiff [D.] does not recognise that she should have such a right.” The court concluded that in these circumstances the move would not impair M.’s rights and interests. On 31 March 2003 the District Court refused the applicant’s claim for recognition of her right of residence. M. joined the proceedings as a third party and supported the applicant’s claim. The court found as follows: “It has been established at the hearing that in November 1997 the plaintiff [the applicant] moved into the contested flat as the tenant M.’s family member and that she has lived in the flat up to the present day. The defendant [D.] has not contested these circumstances. However, the plaintiff’s claim... cannot be granted because... there is no evidence that [D.] had contented to her moving-in and residing in the contested flat and [D.] denies that he has ever consented... Moreover, the plaintiff is a registered tenant of a flat on the Menjinsky Street, she is on the waiting list for improvement of her housing conditions and contributes to payment of maintenance charges at her registered place of residence.” On 2 June 2003 the Moscow City Court upheld that judgment on appeal. On 20 October 2003 the Moscow City Court also upheld the judgment of 6 February 2003. The RSFSR Housing Code of 24 June 1983 (as amended on 28 March 1998, effective at the material time) provided: “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.” “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 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.” “If family members fail to agree to an exchange, any family member may seek a court order for a forced exchange of the flat occupied by them for living premises in different blocks of flats. In these proceedings regard must be had to meritorious arguments and interests of the residents of the exchanged flat.”