CASE OF STOLYAROVA v. RUSSIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)
Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1962 and lives in Moscow. 6. On 17 March 2005 the applicant bought a flat in Moscow at 69/42 Bolshaya Filevskaya Street (“the flat”). The seller of the flat, Mr S., had acquired it under the privatisation scheme in 2004. 7. Before its privatisation the flat was owned by the City of Moscow. On an unspecified date it was allocated to Mr P. as social housing. 8. On 17 April 2001 Mr P. died. 9. On 14 December 2001 the Moscow City housing authorities authorised a certain exchange of flats which resulted in Mr M. moving into the flat which had previously been allocated to Mr P. 10. On 20 November 2002 and 5 March 2003 respectively Mr M. registered his grandfather, Mr S., and his grandmother, Mrs S., as also living in the flat. 11. On 23 March 2004 Mr M. and Mrs S. moved out of the flat. 12. On 18 May 2004 Mr S. signed a social tenancy contract with the Housing Policy and Housing Fund Department of the City of Moscow (Департамент жилищной политики и жилищного фонда г. Москвы, hereinafter “the Moscow Housing Department”). 13. On 10 September 2004 the Moscow Housing Department transferred the ownership of the flat to Mr S. under the privatisation scheme. 14. On 1 November 2004 Mr S. registered his ownership of the flat in the State register (Единый государственный реестр прав на недвижимое имущество и сделок с ним). 15. On 25 January 2005 an “informational ban” (информационный запрет) was imposed in respect of the flat by the criminal investigations service of the Moscow Department of the Interior (УУР ГУВД г. Москвы) in view of the possible illegal alienation of the flat. 16. On 17 March 2005 Mr S. sold the flat to the applicant. The terms of the purchase included an undertaking by the seller to buy the applicant an equivalent flat in the event that she lost the title for reasons relating to any defects in the title which pre-dated her purchase of the flat. 17. According to the Government, on 18 April 2005 the applicant’s representative was informed that the registration of her ownership of the flat had been postponed for one month. 18. On 17 May 2005, at the request of Mr S., the “informational ban” in respect of the flat was lifted. 19. On 18 May 2005 the applicant’s ownership of the flat was entered in the State register. 20. The applicant moved into the flat and has been living there ever since. 21. On 25 November 2008 the criminal investigations service of the Moscow Department of the Interior informed the Moscow Housing Department that it had discovered that the exchange of flats between Mr P. and Mr M. had taken place after the former’s death (see paragraph 9 above). 22. On 25 May 2009 the Moscow Housing Department instituted proceedings against Mr M., Mr and Mrs S. and the applicant, asking the court to declare null and void the flat exchange between Mr P. and Mr M. of 14 December 2001, the social tenancy contract between Mr S. and the Moscow Housing Department of 18 May 2004, the privatisation of the flat in favour of Mr S. of 10 September 2004 and its subsequent sale to the applicant of 17 March 2005. They further sought the applicant’s eviction, the termination of her title to the flat, and the return of the flat to the city of Moscow. 23. On 27 September 2010 the applicant lodged a counterclaim seeking to have her title to the flat recognised by the court. She contended that she had purchased the flat in good faith (as a bona fide buyer) and that she had not known that Mr S. had had no right to sell it. 24. On 8 December 2010 the Dorogomilovskiy District Court of Moscow (“the District Court”) granted the claim of the Moscow Housing Department. The court found that, since Mr P. had died on 17 April 2001, the flat exchange and all the subsequent transactions in respect of the flat should be declared null and void. The court refused to recognise the applicant as a bona fide buyer, having found that she could and should have known of the “informational ban” imposed on the flat, of which the registration service had informed her representative on 18 April 2005. 25. By an additional judgment of 31 March 2011 the District Court dismissed the counterclaims lodged by the applicant. 26. On 14 June 2011 the Moscow City Court quashed the judgments of 8 December 2010 and 31 March 2011 on appeal and remitted the case to the District Court for a fresh examination by a different bench. In particular, the court held that the District Court’s refusal to recognise the applicant as a bona fide buyer had not been based on sufficient grounds. Furthermore, having recognised the Moscow Housing Department as the owner of the flat and having found that the flat had left the City of Moscow’s possession without the latter’s intention to divest itself of it, the District Court had not taken into consideration that the flat exchange had not stripped the owner of its title, and that the subsequent transfer of the flat to Mr S. under the privatisation scheme had taken place with the participation of the Moscow Housing Department. Therefore, in violation of the principle of equality of arms the District Court had failed to examine why, in transferring the title to the flat to Mr S. on 10 September 2004, the Moscow Housing Department had failed to check the circumstances under which Mr S. had acquired the right to own the flat. The court further noted in this connection that by 10 September 2004 Mr P. had no longer been registered as living in the flat, as the information on his death had already been available. 27. On 31 January 2012 the District Court granted the claim of the Moscow Housing Department and dismissed the applicant’s counterclaims. The court found the flat exchange and all the subsequent transactions in respect of the flat null and void. It refused to recognise the applicant as a bona fide buyer, holding that she should have known of the existence of the “informational ban” imposed on the flat, as it had caused a month’s delay in the registration of her title with the State. The court also pointed out that the flat had been owned by Mr S. for only six months before being sold to the applicant and that the applicant had bought it below the market price, which should have raised reasonable doubts as to the legal status of the acquired property. 28. On 22 August 2012 the Moscow City Court, in appellate proceedings, upheld the judgment, having endorsed the District Court’s reasoning. It appears from the record of the appeal hearing that the plaintiff explicitly stated that it had no grounds to doubt that the applicant had bought the flat in good faith. 29. On 24 December 2012 the Moscow City Court refused to institute cassation proceedings, having found no violations of material or procedural norms in the previous proceedings. 30. The applicant requested a suspension of the execution of the judgment of 31 January 2012 in so far as it concerned her eviction. On 18 March 2013 the District Court dismissed her request. On 8 July 2013 the Moscow City Court upheld that decision on appeal. 31. According to the applicant’s latest submissions, she has not yet been evicted but considers it imminent.