CASE OF MKHCHYAN v. RUSSIA
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1933 and lives in Moscow. 6. On 15 March 1994 the Russian Ministry of Railways (“the MPS”) approved the construction of garages alongside the Oktyabrskaya railway in Moscow. The decision read as follows: “Taking into consideration that the garages on [a 1.3 km] stretch of the Oktyabrskaya railway must carry out the function of a noise shield, the Moscow testing section of the Oktyabrskaya railway of the Ministry of Railways approves the construction of garages 5.5 metres away from the outer rail, on the following conditions: 1. the garages shall be built alongside the railway using reinforced concrete, in a line; 2. the construction of the garages shall be in strict compliance with technical safety rules for construction works in a railway zone; 3. 10% of the garages shall be allocated to railway employees as compensation for the use of railway territory.” 7. On 14 April 1994 the Main Directorate for Architecture and Planning of the Architecture and Urban Development Committee of the Government of Moscow (Главное архитектурно-планировочное управление комитета по архитектуре и градостроительству г. Москвы) (hereinafter “the Moscow architecture and planning directorate”) issued a town-planning assignment (градостроительное заключение) for the design and construction of garages alongside the Oktyabrskaya railway. The document mentioned, in particular, that the land on which the garages were to be built belonged to the City of Moscow (Горземфонд) and that the garages were intended to serve as a noise shield along the railway line. 8. On 31 October 1994 the local administration (Управление муниципального округа “Марфино” Северо-Восточного административного округа Правительства Москвы) confirmed that they had no objections to assigning the land in question for the construction of garages by garage-building cooperative “Kashenkin Lug” (garage owners’ partnership, “the GSK”), in accordance with the town-planning assignment. 9. On 3 December 1994 the applicant joined the GSK and paid his share for a garage (6,500 United States dollars (USD) at the material time). 10. The garages were constructed accordingly, and on 30 December 1996 the local administration’s inspection board certified that one-storeyed capital (immovable) garages built by the GSK were ready for use. On 31 December 1996 the prefect of the local administration gave his approval. 11. Garage no. 169 was allotted to the applicant. The local administration issued him with a certificate attesting to his possession of the said garage as from 3 December 1994 (свидетельство о владении гаражным боксом). The applicant, however, never had his property rights to the garage registered in the real estate register. 12. On 13 January 2000 Moscow Land Committee concluded a lease agreement with the GSK in respect of the land occupied by the garages. The lease provided that the land plot was allocated for further use of 324 garage boxes and 86 open parking spaces situated on it. That lease agreement remained in force until 31 August 2004. 13. On 3 March 2003 the Federal State unitary enterprise “Oktyabrskaya Railway of the MPS” (“the Oktyabrskaya Railway of the MPS”) concluded a lease agreement with the GSK in respect of the land occupied by the garages. Under the agreement the lease was valid until 28 February 2004. The parties subsequently extended the validity of the agreement on three occasions: until 28 July, 30 September and 31 December 2004 respectively. Thereafter they tacitly renewed the agreement for an indefinite duration. The GSK continued to pay the rent due under the lease until 31 July 2007. 14. Under clause 1.3 of the lease agreement, the land plot was allocated for placement of garage boxes. Clause 2.2.5 of the agreement proscribed the construction of permanent structures on the land and provided that temporary structures could be built only upon written approval by the Oktyabrskaya Railway of the MPS. Clause 2.2.10 stipulated that at the end of the lease, all temporary structures were to be removed. Clause 5.2 provided that the lease could be terminated unilaterally in the event of breach of the terms of the lease agreement by the GSK or failure to pay the lease for two months, and in the event that the land in question was required for the purposes of the railway, with one month’s prior notice. Clause 6.2 stipulated that the GSK had no right to modify federal ownership of railway rights of way. 15. In the meantime, on 18 September 2003 the Russian Government decided to establish an open joint stock company called “Russian Railways” (“the RZD”), to succeed the MPS. 16. On 5 March 2008 the Federal Agency for State Property Management responsible for Moscow signed a lease agreement with the RZD in respect of the plot of land on which the garages were situated. 17. On 14 July 2010 the RZD notified the GSK of the unilateral termination of the lease agreement, with reference to a need that had arisen to use the land in question for the purposes of the railway. The RZD invited the GSK to vacate the plot by 20 August 2010. 18. The GSK refused to do so and provided the RZD with a list of its members, from which it transpired that the applicant was the owner of garage no. 169. 19. On 25 April 2011 the RZD notified the applicant of the necessity to vacate the garage. The applicant refused to comply. 20. On 27 September 2011 the RZD brought court proceedings against the applicant seeking the removal of garage no. 169 from the plot in question. 21. On 21 November 2011 the Ostankinskiy District Court of Moscow (“the District Court”) granted the above claim and ordered the applicant to remove the garage within ten days of the judgment becoming final. The District Court further authorised the RZD to remove the garage on their own if the applicant failed to comply with the court’s decision. The District Court held as follows: “It follows from the case-file material that on 3 March 2003 the Federal State unitary enterprise “Oktyabrskaya Railway of the MPS” and the GSK signed a lease agreement in respect of a plot of land situated within a railway right of way [полоса отвода железной дороги] for the purposes of reimbursement of its maintenance costs, valid until 28 February 2004, which was subsequently extended on the basis of additional agreements. Pursuant to clause 1.3 of the above lease agreement the land was allocated for the construction of garage boxes. The construction of permanent structures on the land was prohibited (clause 2.2.5). At present the lease agreement has been terminated, which is confirmed by notifications of 14 July and 26 August 2010 on the unilateral termination of the lease agreement with reference to the necessity to use the plot in question for the purposes of the railway. The case file contains a certificate provided by the plaintiff to the effect that the GSK had [paid rent under the lease] until 31 July 2007, and that since then no payments had been made for the use of the plot of land. The procedure for the use of land plots classified as federal property is determined by the Government of the Russian Federation in accordance with section 9 of Federal Law no. 17-FZ of 10 January 2003 on the Railway System in the Russian Federation. Government Resolution no. 264 of 29 April 2006 stipulates that the use of land classified as federal property and provided to the RZD must be based on a land lease agreement between the Federal Agency for State Property Management (its territorial body) and the RZD. Pursuant to Federal Law no. 17-FZ of 10 January 2003 on the Railway System in the Russian Federation, railway land is land used or intended for maintaining the activities of rail transport organisations and/or for buildings, constructions, structures and other rail transport facilities, including plots of land situated within railway rights of way and safety areas. Plots of land adjacent to railway tracks or intended for the placement of such tracks are classified as railway rights of way, as is land occupied by or intended for the placement of railway terminals, water drainage and protective facilities along railway tracks, communication lines, electric power supply facilities, production and other buildings, constructions, structures, equipment and other rail transport facilities. The plot of land with cadastral number 77:02:21017:032 is intended for the operation and development of the railways, [it] is situated within a railway right of way ... Before the lease agreement in respect of the railway right of way [between the RZD and the Russian Federation] was signed, the plot of land with cadastral number 77:02:21017:032 was classified as rail transport land in accordance with the Transport Land Act approved by decision no. 24 of the Council of Ministers of the Union of Soviet Socialist Republics of 8 January 1981; decision no. 3020-1 of the Supreme Soviet of the Russian Federation of 27 December 1991 on the division of State property in the Russian Federation; and Federal Law no. 153-FZ of 25 March 1995 on the Federal Railway System. MPS decree no. 26 “Ts” of 15 May 1999 approved the procedure for the use of federal railway land within railway rights of way. In accordance with this procedure, the size of a right of way is determined in accordance with standards and rules for the design of railway rights of way, approved by the MPS, as well as with design and budget documentation and general schemes for the development and reconstruction of federal rail transport facilities and stations. The revision of the borders and size of rights of way, the withdrawal of temporarily unused plots of land and their reclassification from one category to another is carried out by the competent authorities with the agreement of the railways, pursuant to the legislation of the Russian Federation. ... The court has established that on part of the plot of land with cadastral number 77:02:21017:032 in the right of way of the Oktyabrskaya railway ... there are garages, including garage no. 169. ... No information has been provided from the Consolidated State Register of Real Estate Titles and Transactions in respect of the garage. No documents have been provided by the defendant or the GSK confirming their right to use the land underneath the garage either. The RZD is the user of the plot of land in question. By virtue of Article 305 of the Civil Code of the Russian Federation it is entitled to seek the elimination of violations of its rights, namely the removal of the [applicant’s] garage from the plot. ... To support his assertion about the lawfulness of his possession of the disputed garage, the defendant submitted to the court a certificate issued by the GSK confirming that he had paid in full his share for the garage. Also, at the request of the defendant the court joined to the case file the following evidence: a copy of the act certifying that the garages were ready for use; notification from the federal service for State registration, inventory and cartography responsible for Moscow about the absence of any information in the Consolidated State Register of Real Estate Titles and Transactions about the disputed plot; the approval by the prefect of [the local administration] of the inspection certificate issued in respect of the garages; correspondence from the Moscow section of the Oktyabrskaya railway of 25 November 1993 on the approval of the construction of the garages within the railway right of way; the town-planning assignment issued by the Moscow architecture and planning directorate on 13 April 1994; the decision of the federal service for State registration, inventory and cartography of 27 April 2011 refusing to issue a cadastral certificate for the disputed plot. However, these documents do not prove that the applicant acquired property rights in respect of the garage, nor do they prove the lawfulness of the use of the land underneath it. The defendant’s garage [is] an unauthorised construction because it was built on a plot of land that was not allocated for that purpose in accordance with the procedure provided for by law and in the absence of permission issued by a competent authority, whereas a railway right of way can be used exclusively for the construction of rail transport facilities. The [documents provided by the defendant] do not prove that the garage was not an unauthorised construction, because the construction was carried out on land within a railway right of way and therefore was not intended for the building of garages. The approval by the prefect of the local administration of the inspection certificate does not confirm the existence of permission by the federal authorities to use the plot of land in question for building garages, regard being had [to the fact] that the owner of the plot is the Russian Federation and not the City of Moscow. The management of land owned by the State, including giving permission for construction of immovable property, can be done only by the competent federal authority. A garage for parking a car by an individual is not a rail transport facility, therefore a plot of land within a railway right of way cannot be considered to be intended for the construction of such a garage (garages). Besides, the defendant has failed to submit evidence to the effect that the competent federal authority issued an administrative act on the transfer of a part of the land situated within a railway right of way to the defendant. It therefore follows that the plot of land was not provided to the defendant by the owner, and therefore at the present time the defendant has no legal grounds to use federal property. ... The applicant would have acquired title to garage no. 169 had it not been an unauthorised construction. ... Having assessed all the evidence in the case, taking into consideration [the fact] that the defendant did not acquire property rights in respect of the plot of land classified as federal property and located within a railway right of way, on which the disputed garage is situated, that the plot was provided for temporary use, and that it is being used at the present time without any contractual basis, the court comes to the conclusion that the rights of the RZD have been violated in that the plaintiff is prevented from using the land in accordance with its intended purpose. The court therefore considers that there are lawful grounds for granting the plaintiff’s claim for removal of garage no. 169 from the plot of land with cadastral number 77:02:21017:032 ...” 22. The applicant appealed. He claimed, in particular, that he was entitled to compensation. 23. On 10 February 2012 the Moscow City Court upheld the above judgment on appeal. The City Court held that the law did not provide for the possibility of claiming compensation for the demolition of an unauthorised construction. 24. On 3 April 2012 the Ostankinskiy District bailiffs’ service in Moscow instituted enforcement proceedings. The applicant was notified on 12 April 2012. 25. As the applicant refused to comply voluntarily with the judgment of 21 November 2011, as upheld on appeal on 10 February 2012, the RZD proceeded to demolish his garage. 26. On 13 June 2012 the Ostankinskiy District bailiffs’ service was informed accordingly. 27. On 19 June 2012 the enforcement proceedings were terminated. 28. According to the Government, in August 2013 the construction of the fourth main track of the Oktyabrskaya railway between Moscow and Khimki was completed on the land previously occupied by the garages of the GSK and was opened for circulation of the suburban electric train. In December 2014 noise-reduction barriers were installed along the Oktyabrskaya railway line in the area of the Marfino residential district.