LAZAREV AND LAZAREV v. RUSSIA
Inadmissible
Christos Rozakis
The applicants, Mr Vladimir Ivanovich Lazarev and Mr Pavel Vladimirovich Lazarev, are Russian nationals who were born in 1955 and 1992 respectively and live in Moscow. The first applicant is the father and legal representative of the second applicant. The respondent Government were represented by Mr P. Laptev, 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. Both applicants live, together with the second applicant’s mother and his elder brother Vladimir (born in 1983), in a flat in Moscow which is not the subject of the present application (“the old flat”). Under the terms of a private ownership certificate dated 26 October 1998, the second applicant is the sole legal owner of the old flat. In March 1999 the first applicant invested money in the construction of a block of flats in Moscow. Once the work was completed, the first applicant registered title to a flat in that block (“the new flat”) in his own name and those of his two sons, Pavel (the second applicant) and Vladimir, in equal shares. In 2001 the applicant decided to sell the new flat and applied for clearance of the transaction to the guardianship and wardship department of Lefortovo District Council in south-eastern Moscow (отдел опеки и попечительства районной управы «Лефортово» ЮВАО г. Москвы, “the guardianship authority”). On 9 January 2002 a deputy head of Lefortovo District Council informed the applicant that clearance would not be given because the sale “would result in a reduction of your underage son’s property” and it would therefore be “not in the interests of the minor”. The applicant appealed to a court. On 17 April 2002 the Lefortovskiy District Court of Moscow gave judgment. It found that Article 60 § 3 of the Family Code did not apply because the new flat had not been (formally) donated to the second applicant, nor had it been inherited by him or acquired at his expense. The new flat had been purchased by the first applicant, who had invested his and his wife’s savings. Having regard to the fact that the second applicant was also the legal owner of the flat where the applicants’ family lived, the court found that the refusal by the guardianship authority had not been justified. On 10 May 2002 the Moscow City Court, on an appeal by the guardianship authority, quashed the judgment and remitted the case to the District Court. It pointed out that an interest in the new flat had been duly registered in the second applicant’s name and that the District Court had failed to verify what compensation would be made available to the second applicant following the sale of his share. On 21 October 2002 the Lefortovskiy District Court of Moscow delivered a new judgment and dismissed the complaint on the following grounds: “[The first applicant] confirmed before the court that onethird of [the new flat] had been transferred to [the second applicant] voluntarily. Accordingly, the sale of the flat, including [the second applicant’s share], would result in a reduction of his property. The court cannot take into account the [first applicant’s] argument that the sale of [the new flat] would not impair the minor’s rights because the minor is the legal owner of the [old flat]. The minor had acquired the right of ownership over the [old flat] in 1998, and in 2000 he acquired the right of ownership to onethird of the [new flat]. As by that time he already had title to the [old flat], the sale of onethird of the [new flat] would entail a reduction of the minor’s property, which is not permitted under the applicable legislation. Pursuant to Article 37 of the Civil Code and Article 60 of the Family Code, the underage child’s property may be disposed of only in his interests. Pursuant to letter no. 244/26-5 sent by the Ministry of Education (on 9 June 1999), the sale of residential premises must in all cases be accompanied by the purchase of residential premises in the minor’s name, if he is to lose his share of the property. [The first applicant] did not produce any evidence showing how [the second applicant] would be compensated for the loss of onethird of the [new flat].” On 18 November 2002 the Moscow City Court upheld the judgment of 21 October 2002. It endorsed the same line of reasoning: the transaction would result in a reduction in the minor’s property and was therefore not in the minor’s interests. Article 60 § 3 provides that a child acquires title to, inter alia, the property donated to him, inherited by him or acquired at his expense. The child’s rights to dispose of his property are governed by Articles 26 and 28 of the Civil Code. The parents may dispose of the child’s property in accordance with the rules set out in Article 37 of the Civil Code. Article 60 § 4 provides that the child’s parents have no title to the child’s property. Article 26 provides that, with certain exceptions concerning smallscale, routine transactions, transactions entered into by minors aged 14 to 18 are valid only if approved by their legal representatives, in other words their parents, adoptive parents or guardians. Article 28 provides that transactions on behalf of a minor under fourteen years of age must be carried out by his or her parents, adoptive parents or guardians. Transactions carried out by legal representatives of the minor in respect of the minor’s property are governed by Article 37 §§ 2 and 3. Article 37 § 2 provides that a guardian may not alienate his charge’s property or perform any transaction resulting in a reduction of the charge’s property without obtaining preliminary clearance of the planned transaction from the guardianship and wardship authority. Article 34 § 1 designates the local self-government bodies which are responsible for guardianship and wardship matters. On 9 June 1999 the Ministry of Education of the Russian Federation sent a letter (no. 244/26-5) entitled “On additional measures for the protection of minors’ right to housing” to all guardianship and wardship departments. The relevant part of the letter reads as follows: “If a guardianship and wardship authority issues advance clearance of a transaction which involves the sale of a flat followed by the subsequent purchase of a flat, the operative part of the clearance (resolution) must either specify that the transaction is to be carried out subject to the condition that the new flat will be purchased in the minor’s name if the minor loses his interest in the [sold] property, or indicate the address where the minor is to live if the minor is simply a member of the legal owner’s family.”