FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16575/02 
by Galina BOGATKINA 
against Russia

The European Court of Human Rights (First Section), sitting on 12 January 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 2 April 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together;

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Galina Nikolayevna Bogatkina, is a Russian national, who was born in 1938 and lives in Nizhniy Novgorod. She is represented before the Court by Ms M. Voskobitova, a lawyer with the International Protection Centre in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Original civil proceedings

On 31 May 1996 the applicant bought a flat on the Artelnaya Street from Mr Zh. for 53,050,000 non-denominated Russian roubles (“RUR”). On the same day Zh. acquired for himself a new flat on the October Boulevard.

On 9 July 1996 Zh. sued the applicant, seeking to have declared the sale of the Artelnaya Street flat void ab initio.

On 12 August 1996 the applicant brought a counterclaim for clear title in the Artelnaya Street flat and Zh.’s eviction from it. She asked for an injunction on all transactions with the October Boulevard flat.

On 13 September 1996 the Nizhegorodskiy District Court of Nizhniy Novgorod issued an interim decision imposing a charging order in respect of the October Boulevard flat and prohibiting notaries public and the State registration authorities from registering any transactions with the flat.

On 16 September 1996 Zh. sold the October Boulevard flat to a third party. On 24 September 1996 the Directorate for Registration and Technical Inventory of the Town Property Management Committee of Nizhniy Novgorod (Управление регистрации и технической инвентаризации Комитета по управлению городским имуществом Администрации г. Н. Новгорода, “the Registration Directorate”) registered the sale.

On 2 October 1996 the applicant asked the Registration Directorate to declare the registration null and void.

On 31 March 1997 a deputy head of the Registration Directorate responded that the registration had been “erroneous” and that the person responsible had been disciplined. He advised the applicant to apply to a court for a declaration of nullity of the transaction and for compensation for the pecuniary damage.

On 29 January 1998 the Nizhegorodskiy District Court of Nizhniy Novgorod found for Zh. It held that the sale of the Artelnaya Street flat had been void ab initio. Zh. retained title to that flat but was ordered to repay the purchase price to the applicant. The applicant’s counterclaim was dismissed.

On 6 April 1998 the applicant instituted enforcement proceedings. As Zh. had little money and no assets, the amount due to her was not recovered in full until 2 April 2002.

2.  Tort action against the State registration agency

On 24 September 1999 the applicant sued in tort the State agency for registration of rights to, and transactions with, immovable property of the Nizhniy Novgorod Region (Государственное учреждение юстиции Нижегородской области по регистрации прав на недвижимое имущество и сделок с ним, “the Registration Agency”). She sought compensation for the pecuniary damage incurred through the unlawful registration carried out by the Registration Directorate on 24 September 1996.

On 19 June 2001 the Nizhegorodskiy District Court of Nizhniy Novgorod gave judgment. It found that Zh. was responsible for the fact that the applicant had not received in good time the amount due to her under the judgment of 29 January 1998. Moreover, although the applicant had become aware of the sale of the October Boulevard flat long before the judgment of 29 January 1998 was issued, she had not sought alternative interim measures. Hence, the Registration Directorate was not liable for the damage incurred by the applicant through Zh.’s persistent failure to repay the purchase price.

On 2 October 2001 the Nizhniy Novgorod Regional Court upheld the judgment, relying on the following grounds:

“As the charging order in respect of Zh.’s flat on the October Boulevard was issued on 13 September 1996, whereas Zh. sold the flat on 16 September 1996, at the moment of the sale the charging order had not yet become effective (the time-limit for lodging an appeal had not expired) and therefore Zh. could sell the flat; moreover, the court rightly found that at the moment of the sale [of the flat] the judgment debt had not yet arisen. The judgment was given on 29 January 1998, but only became effective in April 1998.

Between the date the judgment became effective and the date the enforcement began Zh. could dispose of the contested flat. Thus, it appears from the case file, even before Zh.’s claim was granted, [the applicant] had become aware of the sale of the flat but had failed to undertake any measures.”

The Regional Court confirmed the findings of the District Court as to the absence of the fault on the part of the Registration Directorate and Registration Agency.

B.  Relevant domestic law

Interim measures

Article 133 of the RSFSR Code of Civil Procedure of 11 June 1964 (effective until 1 February 2003) provided that a judge could order an interim measure at the request of a party or of his own initiative. Interim measures may include, in particular, a charging order in respect of the defendant’s property (Article 134).

An interim measure was to be implemented immediately in accordance with the procedure set out for enforcement of judgments (Article 137). An appeal lay against the decision indicating an interim measure; the lodging of an appeal did not suspend the implementation of the measure (Article 139).

Tort liability of State agencies

A State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failures to act. Such damage is to be compensated for at the expense of the federal or regional treasury (Article 1069 of the Civil Code of the Russian Federation).

COMPLAINTS

The applicant complained under Article 6 of the Convention that the domestic courts had unfairly dismissed her tort claim and that the proceedings had been excessively long.

The applicant complained under Article 1 of Protocol No. 1 that the unlawful registration of the sale of the October Boulevard flat and the refusal of her claim for damages against the registration authority had deprived her of a significant part of her possessions.

THE LAW

1.  The applicant complained under Article 6 of the Convention about unfair findings of the domestic courts in her claim for damages and about the excessive length of these proceedings. Article 6 provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Furthermore, the Court reiterates that non-observance of the domestic procedural time-limits does not automatically lead to a finding of a violation of the “reasonable time” requirement of Article 6 § 1 (see Mamon v. Ukraine (dec.), no. 6493/03, 19 May 2005, with further references).

Turning to the facts of the present case, the Court finds that there is nothing to indicate that the manner in which the domestic courts conducted the proceedings, was contrary to Article 6 of the Convention. The applicant was fully able to present her case and challenge the evidence of the other parties, public hearings were held and the courts’ decisions were satisfactorily reasoned. The global duration of the proceedings that lasted two years and nine days, cannot be said to have exceeded a “reasonable time”. Having regard to the facts as submitted by the parties, the Court has not found any reason to believe that the proceedings did not comply with the guarantees of Article 6 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The applicant complained under Article 1 of Protocol No. 1 that the unlawful registration of the sale of the October Boulevard flat and the refusal of her claim for damages had deprived her of the money she had expected to receive. Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submitted, firstly, that the interim measure had been ordered in the framework of the applicant’s claim for Zh.’s eviction and resettlement into the October Boulevard flat. It had not been ordered to secure recovery of the purchase price from Zh. For that reason there had been no causal link between the unlawful registration of the sale and the protracted enforcement of the judgment in the applicant’s favour. Moreover, the applicant had not taken any further steps to protect her financial interests. She had not applied to the courts for a declaration of nullity of the sale carried out in breach of the interim measure. She had instituted enforcement proceedings only two months after the judgment in her favour had been given. In any event, she had eventually received the judgment debt in full.

The applicant did not deny that the purchase price had been recovered from Zh. However, the award had lost a significant part of its value as the enforcement proceedings had lasted four years and two months. There had been an obvious causal link between the unlawful registration of the sale of the October Boulevard flat and the pecuniary damage she had incurred. Had the flat not been sold, she could have obtained recovery from that asset within few months after the judgment had been given. Pursuant to Articles 137 and 139 of the then Code of Civil Procedure, the decision indicating interim measures had immediate effect and thus the Registration Department had unlawfully registered the sale of the flat eleven days after the decision had been issued.

The Court first has to determine whether it is competent ratione temporis to deal with this complaint. It reiterates that in accordance with the generally recognised rules of international law, the Convention is binding on each of the Contracting Parties only in respect of facts occurring after its entry into force in respect of that Party (see, e.g., X. v. Portugal, no. 6453/81, Commission decision of 13 December 1982, Decisions and Reports 31, pp. 204, 208).

The Convention came into force in respect of the Russian Federation on 5 May 1998. Accordingly, the Court is competent to examine the present application only in so far as it refers to events that occurred after that date.

The sale of the October Boulevard flat in breach of the interim measure took place in 1996 and the final judgment in the dispute between the applicant and Zh. was issued in January 1998. On the other hand, the tort action against the State registration authority ended with the Regional Court’s judgment of 2 October 2001, that is after the Convention had entered into force in respect of the Russian Federation. That judgment addressed in substance the same complaint that is now before the Court – an alleged violation of the applicant’s property rights as a result of the authority’s failure to abide by the interim measure. However, it has been the Court’s constant case-law that, divorcing the domestic courts’ decisions from the events which gave rise to these proceedings would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law (see Litovchenko v. Russia (dec.), no. 69580/01, 18 April 2002; Jovanović v. Croatia (dec.), no. 59109/00, 28 February 2002).

The Court finally observes that it has not been claimed that the slow progress of the enforcement proceedings following their institution on 6 April 1998 and until their completion on 2 April 2002 was due to any other action or failure to act for which any State authority or agent could be responsible.

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

BOGATKINA v. RUSSIA DECISION


BOGATKINA v. RUSSIA DECISION