POPOV AND OTHERS v. RUSSIA - 44560/11 (Judgment : Article 8 - Right to respect for private and family life : Third Section) [2018] ECHR 965 (27 November 2018)

In the case of Popov and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Vincent A. De Gaetano, President,
Branko Lubarda,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Jolien Schukking,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 23 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 44560/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by twelve Russian nationals and one Ukrainian national. ("the applicants"), on 23 May 2011. A list of applicants is set out in the Appendix.

2. The applicants were represented by Ms M. Voskobitova, a lawyer practising in Moscow. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The adult female applicants complained of a violation of their right to respect for their home. All the applicants complained that their right to respect for their private and family life had been breached as a result of the eviction of the adult female applicants.

4. On 29 September 2016 the adult female applicants' complaint concerning the violation of their right to respect for their home and the applicants' complaint concerning the violation of their right to respect for their private and family life were communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. Written submissions were received from the Government of Ukraine, which had been granted leave to intervene as a third party in the written proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

6. The applicants are from four families.

7. On various dates in the 1990s the employer of the adult male applicants (applicants 1, 3, 5 and 10), the security service of the Ministry of Finance, provided them with accommodation in its dormitory building in Moscow. They were registered as living in the building on a temporary basis.

8. In 2001 the right of operational management in respect of the dormitory building was transferred to the Federal Treasury ("the Treasury").

9. The adult female applicants (applicants 4, 8, 11 and 13) submitted that they had been residing in the dormitory building with their husbands since their marriages in 2002, 2004, 2003 and 2005 respectively.

10. Between 2003 and 2009 applicants 2, 6, 7, 9 and 12 were born and started living in the dormitory building with their parents.

11. The third and fifth applicants resigned from the security service in 2004 and 2009 respectively, but continued to live in the dormitory building. According to the Government, the first applicant was dismissed from the security service in 2014. The tenth applicant is still employed by the security service.

12. The adult male applicants are registered as living in the dormitory building on a permanent basis. Each family occupies a room in the building.

13. The Government submitted that they had not disposed of any information as regards the exact dates when the applicants had moved into the dormitory building.

B. First set of proceedings for the eviction of the adult female applicants

14. In 2007 the Treasury brought court proceedings against the adult female applicants, seeking their eviction from the particular rooms which they occupied in the dormitory building. The Treasury submitted that the respondents had moved in unlawfully, without its permission.

15 . On 14 September 2007 the Simonovskiy District Court of Moscow ("the District Court") ordered the eviction of applicants 4, 8, 11 and 13 without providing them with any alternative accommodation. In particular, the District Court established the following:

(i) the building in question was federal property; it was used as a dormitory building under the operative management of the Treasury;

(ii) the dormitories had been designed for the temporary accommodation of persons during the period of their work, service or studies;

(iii) the adult female applicants had been moved into the dormitory building by their husbands when the old Housing Code had been in force, prior to 1 March 2005;

(iv) the Ministry of Finance had never issued any decision providing the adult female applicants with accommodation in that dormitory building;

(v) no tenancy agreements had been concluded with the adult female applicants' husbands in respect of the premises which they occupied;

(vi) social tenancy agreements could be concluded with people living in dormitory buildings only in the event that the property was liquidated, however such a decision had not been taken in respect of the dormitory building in question.

Having regard to the above, the District Court concluded that Articles 53 and 54 of the old Housing Code and Articles 69 and 70 of the new Housing Code, which allowed tenants under a social tenancy agreement to move members of their families into a property, were not applicable to the adult female applicants, and therefore they had to be evicted from the occupied housing without any alternative accommodation being provided. The District Court noted that it had also taken into account that the adult female applicants had been registered as living in various regions of Russia and the Republic of Moldova, where they retained a right of occupation in respect of living premises.

16. On 22 November 2007 the Moscow City Court ("the City Court") upheld the eviction order.

17. In January 2008 bailiffs instituted enforcement proceedings. In March 2008 those proceedings were terminated, as the creditor recalled the writ of execution.

18. On 5 February 2009 new enforcement proceedings were instituted. However, on 28 August 2009 they were terminated, on the grounds that it was impossible to enforce the writ of execution.

C. Second set of proceedings for the eviction of the adult female applicants

19. In 2009 the Treasury brought new eviction proceedings against the adult female applicants. This time, the Treasury sought to evict them from the dormitory building, regardless of which rooms they were occupying. The Treasury claimed that those applicants had started living on the premises without its permission.

20 . The applicants concerned lodged a counterclaim, seeking to have their right to occupy the dormitory building premises recognised. They submitted that they had been residing in the building lawfully as spouses of the persons to whom the housing had been provided, and in any event, under domestic law (Article 20 of the Civil Code, and Articles 31 and 54 of the Family Code (see "Relevant domestic law" below), they had a right to live together with their husbands and children.

21. Local authorities - which had been invited to participate in the proceedings as third parties - were against the eviction of the adult female applicants. They claimed that the applicants who were minors were registered as living in the dormitory building and lived there with their families. The Family Code provided that parents had equal rights, obligations and responsibilities in raising their child, and therefore eviction of the mothers would make it difficult for them to comply with their parental duties. The local authorities asked the District Court to take the interests of the minor applicants into account when making its decision and to dismiss the eviction claims.

22. On 14 April 2010 the District Court ordered the eviction of applicants 4, 8, 11 and 13 from the dormitory building and dismissed their counterclaim. In particular, the District Court referred to its findings in the judgment of 14 September 2007, with reference to Articles 301 and 305 of the Civil Code (see "Relevant domestic law" below), and found that:

(i) irrespective of their status as family members of their husbands, the adult female applicants had no right to reside in the dormitory building, since it had been designed as temporary accommodation for persons working for the security service; and

(ii) no tenancy agreement on occupying the dormitory building premises had been concluded with their husbands, and therefore the provisions of Article 100 § 5 of the Housing Code, which allowed tenants to be joined by family members, were not applicable to them.

The District Court further stated that it had taken into account that the adult female applicants could decide themselves with which parent their minor children should live, especially as they (the adult female applicants) had been registered as living in various regions of Russia and the Republic of Moldova, where they retained a right of occupation in respect of living premises.

23 . The adult female applicants appealed against the eviction order. They submitted in particular that the courts had not indicated which rights, freedoms and interests of the claimant (the Treasury) had been breached when their husbands had moved them into the dormitory building, or which rights would be breached if they were allowed to stay living together with their children in the building. They also submitted that, by taking the decision to evict them, the District Court had breached their right to respect for their family life. In particular, they drew the attention of the appeal court to the position of the District Court as regards their minor children's place of residence, a position which, in their opinion, was in breach of Article 54 of the Family Code (see "Relevant domestic law" below).

24. On 24 November 2010 the City Court upheld the eviction order. The City Court referred to the findings of the District Court in the judgments of 14 September 2007 and 14 April 2010. The City Court found that the District Court had duly assessed the adult female applicants' arguments and dismissed them on the basis of the applicable domestic law. The City Court further held that the adult female applicants' argument that the eviction order had de facto prohibited their families from living together had aimed to reassess the conclusions of the judgment of the District Court and, given the fresh conclusion that the District Court had duly assessed the arguments before it, could not serve as a basis for quashing the judgment.

25. It appears that the eviction order has not yet been enforced, and applicants 4, 8, 11 and 13 continue to live in the dormitory building.

26. On an unspecified date the applicants were put on the municipal housing list.

D. Proceedings brought by the adult male applicants

27. On an unspecified date the adult male applicants brought court proceedings against various authorities, including the Government of Moscow and the Government of the Russian Federation, seeking to have their right to occupy the dormitory building indefinitely under a social tenancy agreement recognised. Those applicants brought proceedings on their own behalf, but also in the name of and on behalf of the minor applicants.

28. On 17 August 2011 the District Court granted the claims of the adult male applicants and the minor applicants in part. In particular, the court established that the adult male applicants had been moved into the dormitory building by their employer, the security service of the Ministry of Finance, between 1990 and 1995. Therefore, on the date the new Housing Code had entered into force, they had already worked for the security service for more than ten years. In accordance with the applicable law, the adult male applicants could not be evicted from the residential accommodation which they occupied without being provided with alternative accommodation, and therefore their right to reside there was not limited by the duration of their work contracts and was therefore unlimited in terms of duration. However, the District Court held that the claimants were not entitled to have social tenancy agreements in this respect.

29. On 16 February 2012 the City Court upheld that judgment.

E. Changes in the applicants' family situations

30 . On 15 August 2017 the applicants informed the Court of changes in their family situations. In particular, on 28 June 2012 the youngest son of the Popov family, Grigory, was born, and the Ozerov family had twin daughters, Valeria and Maria, on 15 June 2012, and a son, Maxim, on 7 October 2015.

II. RELEVANT DOMESTIC LAW

A. The Civil Code of the Russian Federation (Part 1)

31. Article 20 of the Code provides that a citizen's place of residence is his or her permanent or primary place of residence. The place of residence of minors under the age of 14 is the place of residence of their legal representatives - parents, adoptive parents or guardians.

32. Article 301 of the Code provides that an owner has the right to recover his property from the unlawful possession of a third party. Article 305 of the Code provides that a person who, although not an owner, has possession of the property by the right of operational management, also has such a right.

B. The Family Code of the Russian Federation

33. Article 31 of the Code provides that each spouse shall be free to choose where to stay and where to reside. Issues concerning motherhood and fatherhood, a child's upbringing and education, and other issues involved in family life, shall be resolved by the spouses jointly, starting from the principle of equality between spouses. Spouses shall be obliged to build their family relations on the basis of mutual respect and mutual assistance, to facilitate the welfare and consolidation of the family, and to take care of their children's well-being and development.

34. Article 54 provides that every child shall have the right to live and to be brought up in a family in so far as this is possible, the right to know his parents, and the right to enjoy his parents' care and the right to live with them, except when this is contrary to his interests. A child shall have the right to be raised by his parents and to have them provide for his interests, his all-round development, and respect for his dignity.

THE LAW

I. ALLEGED VIOLATION OF THE ADULT FEMALE APPLICANTS' RIGHT TO RESPECT FOR THEIR HOME

35. The adult female applicants complained that there had been a violation of their right to respect for their home as provided for in Article 8 of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

A. Admissibility

36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

(a) The Government's submissions

37. The Government submitted that there had been no interference with the adult female applicants' right to respect for their home, since they had never acquired any right to reside in the dormitory building. In particular, the building in question was federal property and had been intended to be used for administrative purposes and not as accommodation. The adult male applicants' employer had provided them with accommodation in the building in breach of procedure, in the absence of any "housing order" ( ордер ), on the basis of oral instructions from their superiors. Therefore, there had been no legal grounds allowing the adult male applicants or the members of their families to move into the dormitory building and live there on a permanent basis. In any event, the eviction order of 14 April 2010 had never been enforced, since the Treasury had decided to provide the applicants with the opportunity to solve their housing problems on their own, by applying for social housing.

38. The Government further submitted that if the Court were to decide that there had been an interference, such an interference had been in accordance with the law, had pursued the legitimate aim of protecting the rights of other persons living in the dormitory building who had moved in lawfully, and had been necessary in a democratic society. In particular, in taking the decision to evict the adult female applicants, the domestic courts had taken into account that those applicants had moved into the building unlawfully and had been registered as living in other premises. The courts had also duly examined the adult female applicants' arguments as regards their right to live together with their husbands and children, and had dismissed those arguments as ill-founded. The Government also pointed out that the adult male applicants had never applied to the authorities with a request to acquire ownership of the rooms in the dormitory building by way of privatisation, and had not asked to conclude a special tenancy agreement in respect of the rooms they occupied. Lastly, the eviction order had not placed a disproportionate burden on the adult female applicants.

(b) The adult female applicants' submissions

39. The adult female applicants submitted that the dormitory premises were their "home" within the meaning of Article 8 of the Convention, and that the eviction order had amounted to an interference with their right to respect for their home. Their eviction had not pursued any legitimate aim and had not been necessary in a democratic society.

2. The third party's submissions

40. The Government of Ukraine submitted that the interference had been in accordance with the law and had pursued the legitimate aim of protecting the rights of federal authorities and their employees. However, the interference had not been necessary in a democratic society.

3. The Court's assessment

41. It was established in the first set of the eviction proceedings that the adult female applicants had been moved into the residential accommodation in the dormitory by their husbands prior to 1 March 2005 (see paragraph 15 above). Therefore, by the time when their eviction was ordered on 14 April 2010, the adult female applicants had already lived in the residential accommodation in the dormitory building for at least five years. Therefore, that accommodation was their "home" for the purposes of Article 8 of the Convention.

42. The Court considers that the obligation on the adult female applicants to vacate their accommodation in the dormitory building amounted to an interference with their right to respect for their home, notwithstanding the fact that the judgment of 14 April 2010 has not yet been executed (see, for instance, Ćosić v. Croatia , no. 28261/06, § 18, 15 January 2009). The Court accepts that the interference had a legal basis in domestic law and pursued the legitimate aim of protecting the rights of other persons living in the dormitory building. The central question is therefore whether the interference was proportionate to the aim pursued and thus "necessary in a democratic society".

43. The Court set out the relevant principles as regards assessing the necessity of an interference with the right to respect for one's "home" in the case of Connors v. the United Kingdom , (no. 66746/01, §§ 81-84, 27 May 2004), which concerned the eviction of a Roma family from a local-�authority caravan site by way of summary possession proceedings. Subsequently, in McCann v. the United Kingdom (no. 19009/04, § 50, ECHR 2008), the Court held that the reasoning in the case of Connors was not confined to cases involving the eviction of Roma, or to cases where an applicant had sought to challenge a law itself rather than its application in his particular case, and further held as follows:

"The loss of one's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end."

44. In the present case, the adult female applicants raised the issue of their right to respect for their home before the domestic courts and presented arguments questioning the proportionality of their eviction (see paragraphs 20 and 23 above). The crux of their argument before the domestic courts was that, in their situation, if their husbands and minor children were allowed to continue living in the dormitory building, their eviction would be disproportionate.

45. The Government claimed that the interference with the adult female applicants' right to respect for their home had been necessary in order to protect the rights of other individuals to whom the accommodation in the dormitory building had been attributed on lawful grounds. The Court observes that those individuals were not sufficiently individualised to allow their personal circumstances to be balanced against those of the adult female applicants. Therefore, the only interests at stake were those of the Treasury, which wished to recover its property from the adult female applicants' unlawful possession.

46. In deciding to evict the adult female applicants, the domestic courts took into account that they had been occupying the dormitory building premises unlawfully, that they had been registered as living elsewhere and retained the right to use other accommodation, and lastly that they could decide themselves which parent their minor children would live with. While the fact that those applicants had established their home in the dormitory building without legal grounds was relevant for the assessment of the proportionality of their eviction, as was the availability of alternative accommodation, the Court considers that the domestic courts did not give sufficient weight to those applicants' particular circumstances. Their eviction was sought, whereas their husbands and minor children were allowed to stay in the disputed accommodation. In particular, the case material indicated that each family occupied a room, and that in the event of the adult female applicants being evicted, their husbands and children would continue to occupy the same space per family. The Treasury did not claim before the domestic courts that those rooms would be allocated to someone else, or that third parties could be moved into the space created by the eviction of the adult female applicants. In such circumstances, the Court considers that the national courts failed to balance the competing rights and therefore to determine the proportionality of the interference with the adult female applicants' right to respect for their home.

47. The Court concludes that the interference complained of was not "necessary in a democratic society". There has accordingly been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF THE APPLICANTS' RIGHT TO RESPECT FOR THEIR PRIVATE AND FAMILY LIFE

48. The applicants complained under Article 8 of the Convention that the eviction order of 14 April 2010 had infringed their right to respect for their private and family life. On 15 August 2017 the applicants asked the Court to take into account that there had also been an interference with the right to respect for private and family life of children born after the application had been lodged with the Court in 2011 (see paragraph 30 above).

49. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 8 of the Convention as regards the violation of the adult female applicants' right to respect for their home, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the complaints under Article 8 of the Convention regarding the alleged breach of the applicants' right to respect for their private and family life (see, among other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

50. The Court has examined the other complaints submitted by the applicants after the communication of their application to the Government. Having regard to all the material in its possession and in so far as these complaints fall within the Court's competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

52. The applicants claimed the following amounts in respect of non-pecuniary damage:

(i) The adult female applicants claimed 15,000 euros (EUR) each to compensate for the non-pecuniary damage they had sustained as a result of the violation of their right to respect for their home and right to respect for private and family life;

(ii) The other applicants claimed EUR 7,500 each to compensate for the non-pecuniary damage they had sustained as a result of the violation of their right to respect for their private and family life.

53. The Government contested those claims.

54. The Court awards EUR 7,500 to each adult female applicant (applicants 4, 8, 11 and 13) in respect of the non-pecuniary damage sustained as a result of the violation of their right to respect for their home, and dismisses the remainder of the applicants' claims.

B. Costs and expenses

55. The applicants also claimed EUR 2,000 for costs and expenses incurred before the Court, and asked for that amount to be paid directly to their representative.

56. The Government submitted that the applicants' claim was not supported by any receipt confirming the payment of that sum under a contract for legal services.

57. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 to the adult female applicants jointly for costs and expenses incurred in the proceedings before the Court.

C. Default interest

58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1. Declares , unanimously, the complaint under Article 8 of the Convention concerning the adult female applicants' right to respect for their home admissible, and the complaints submitted by the applicants after the communication of the application to the Government inadmissible;

2. Holds , unanimously, that there has been a violation of Article 8 of the Convention on account of the violation of the adult female applicants' right to respect for their home;

3. Holds , by six votes to one, that it is not necessary to examine the admissibility and merits of the complaint under Article 8 of the Convention concerning the applicants' right to respect for their private and family life;

4. Holds , unanimously,

(a) that the respondent State is to pay the adult female applicants (applicants 4, 8, 11 and 13 in the appendix), within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) 7,500 EUR (seven thousand five hundred euros) to each adult female applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros) to the adult female applicants jointly, plus any tax that may be chargeable to those applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses , unanimously, the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 27 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Vincent A. De Gaetano
Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pastor Vilanova is annexed to this judgment.

V.D.G.
F.A.

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You are here: BAILII >> Databases >> European Court of Human Rights >> POPOV AND OTHERS v. RUSSIA - 44560/11 (Judgment : Article 8 - Right to respect for private and family life : Third Section) [2018] ECHR 965 (27 November 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/965.html Cite as: [2018] ECHR 965, ECLI:CE:ECHR:2018:1127JUD004456011, CE:ECHR:2018:1127JUD004456011