CASE OF PROKOPOVICH v. RUSSIA
Preliminary objection rejected (estoppel);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Christos Rozakis
7. The applicant was born in 1940 and lives in Vladivostok. 8. In 1988 the applicant and her partner, Mr Filippov, together moved into a flat provided by Mr Filippov’s employer, a State enterprise. The applicant left the flat where she had previously lived to her daughter and her daughter’s family. 9. Although the applicant and Mr Filippov never married, from 1988 onwards they lived together as husband and wife. They purchased all household items for the new flat jointly. Between 1992 and 1995 Mr Filippov supported their family financially because the applicant was unemployed. According to the applicant, Mr Filippov’s relatives and their neighbours considered them to be a family. Postcards and letters were addressed to Mr and Ms Filippov and the applicant received correspondence at the new address. 10. The applicant retained her residence registration at her old address. The applicant explains that she suffered from an ear ailment and wanted to remain under the observation of her former ear-specialist. Had she changed her residence registration, she would no longer have been entitled to visit the doctor practising in her former neighbourhood. 11. The applicant and Mr Filippov spent the summer of 1998 in their country cottage. On 18 August 1998 Mr Filippov returned to the town for a week. 12. On 24 August 1998 Mr Filippov died and his body was found by a neighbour. On 26 August 1998 Mr Filippov was buried in the presence of his son and his two sisters who had been summoned by a telegram. 13. The applicant was not notified of her partner’s death or funeral service. She only learnt of it when she returned to the city late in the day on 26 August 1998. 14. On 27 August 1998 the applicant received a phone call from the local housing maintenance authority (жилищно-эксплуатационное управление), requesting an explanation as to why the flat was not empty. The applicant responded that she did not have formal residence registration in the flat, but she had lived there for more than ten years. On 1 September 1998 a representative of the housing maintenance authority visited the applicant at the flat and drafted a report to the effect that the flat was not empty. The applicant was not given a copy of the report. The representative advised the applicant to secure her right to use the flat through a court. 15. On 2 September 1998 the applicant filed a request with the housing maintenance authority to be given an occupation certificate (ордер) for the flat. Her request was refused because on 1 September 1998 an occupation certificate had already been issued to Mr Valetov, the head of the local police department and hierarchical superior of Mr Filippov’s son. 16. On 4 September 1998, on returning to the flat, the applicant found that the door had been broken open and that books and other household items were being loaded onto a lorry. The applicant states that the possessions were removed in the presence of Mr Valetov, Mr Filippov’s son, several policemen in civilian clothing, and a representative of the housing maintenance authority. Once the removal was completed, the applicant was told to vacate the premises immediately. When the applicant refused to comply with the request, she was thrown out of the flat by force. The door was replaced and the applicant was not given keys. 17. On 7 September 1998 the applicant filed a complaint against Mr Valetov with the prosecutor’s office of the Sovietskiy District of Vladivostok. The applicant requested a criminal investigation into her forcible eviction and the removal of her possessions. On 14 September 1998 the prosecutor’s office informed the applicant that her allegations were unsubstantiated and refused to open criminal proceedings. 18. On 1 October 1998 the applicant filed a civil action against the Vladivostok City Council and Mr Valetov. The applicant claimed that she should be recognised as a member of her late partner’s household and asked for the occupation certificate issued to Mr Valetov to be declared void. The applicant submitted in evidence many witness statements by relatives, by neighbours living in the same block of flats and by summer house neighbours, as well as personal photographs, letters, postcards and mail receipts. 19. On 27 November 1998 the applicant complained to the Vladivostok city prosecutor’s office about the refusal to open a criminal investigation into Mr Valetov’s actions. By a letter of 17 December 1998 the applicant was informed that the prosecutor’s office had reversed the refusal and ordered the Sovietskiy District prosecutor’s office to carry out an inquiry. 20. On 5 January 1999 the Sovietskiy District prosecutor’s office reported that an inquiry had not established any indication of a criminal offence. On 7 May 1999, after the applicant had complained again, the Vladivostok city prosecutor’s office examined the matter and confirmed this conclusion. 21. On 9 August 1999 the Sovietskiy District Court of Vladivostok dismissed the applicant’s civil action, finding as follows: “Under these circumstances, the court considers that it has been established in court that [the applicant] lived in the contested flat, which [fact] is corroborated by postcards addressed to Mr Filippov and [the applicant], a parcel delivery notice; however, [the applicant’s] residence was of a temporary nature. The court has established that Mr Filippov, while still alive, did not recognise [the applicant’s] tenancy right in respect of the contested flat; [the applicant] did not produce evidence showing that Mr Filippov had recognised her right to tenancy. Besides, it has been established that [the applicant] retained her tenancy right in respect of [her daughter’s flat] and that she had moved into the contested flat in breach of the procedure established by Article 54 § 1 of the RSFSR Housing Code... Furthermore, [the applicant’s] assertion about the presence of her personal effects (250 items) in the contested flat... is rebutted by the results of the inquiries carried out by the Sovietskiy District and Vladivostok City prosecutor’s offices, as well as the housing maintenance authority report of 4 September 1998. Under these circumstances, the court finds that [the applicant] has not acquired the tenancy right to [the contested flat]...” The court grounded its findings on the statements of Mr Filippov’s son and daughter-in-law; however, the court rejected a statement by the applicant’s daughter on the ground that she was an interested witness. It also determined that statements by five neighbours produced at the hearing were not sufficient to establish that the applicant and Mr Filippov had maintained a joint household. 22. The applicant appealed against the judgment. In her statement of the grounds of appeal of 17 August 1999 the applicant pointed to a very substantial body of evidence proving her residence in the flat (statements by witnesses, postcards, mail receipts, etc.). She alleged that her late partner’s son had conspired with his police superior to acquire the flat, which explained why they had managed to obtain in just two days the decisions of the City Council and of the housing maintenance authority, as well as the occupation certificate and residence registration stamp. She complained that she had been thrown out by force, contrary to the applicable provisions of the Housing Code. 23. On 6 October 1999 the Civil Section of the Primorskiy Regional Court upheld the decision of 9 August 1999. The Regional Court endorsed the arguments of the first instance court. 24. The applicant submitted several requests for supervisory review, all of which were turned down. 25. According to the applicant, the flat was privatised in 1999 and sold to a third party. 26. 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 the 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.” “Eviction from occupied living premises in state or public housing shall only be permissible on the grounds set out in the law. Eviction shall be ordered by a court...”