AS TO THE ADMISSIBILITY OF
Application no. 32718/02
by Maksut Netkaliyevich TULESHOV and Others
The European Court of Human Rights (Fourth Section),
21 March 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr A. Kovler,
Mr L. Garlicki,
Mr J. Borrego Borrego,
Ms L. Mijović, judges,
and Mr M. O’Boyle, Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 10 August 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Mr Maksut Netkaliyevich Tuleshov,
Mrs Aslganym Kalikovna Tuleshova, Mr Viktor Maksutovich Tuleshov,
Mr Sergey Maksutovich Tuleshov and Mr Kalik Isayev are Russian nationals, who were born in 1953, 1955, 1979, 1977 and 1929 respectively and live in Marx of Saratov Region. 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.
In 1993 Mr Kh bought a house from company B. It was a former shop at 8 Third Avenue, Marx of Saratov Region which Kh intended to convert into a dwelling. The house was free from any third party claim.
In 1996 the Marx Town Court of the Saratov Region examined an unrelated commercial dispute between company B and a third party and found that B had failed to perform under contract. The house was listed as pledged property in the contract and the court ordered its sale. Apparently the court was not aware that the house had already been sold to Kh.
The sale was administered by the court bailiff. The price was set at 13,600,000 roubles (RUR), a pre-denomination equivalent of RUR 13,600, or approximately USD 2,800. The first applicant offered to buy the house, and on 12 April 1996 the Marx Town Court approved the sale. This decision took effect on 23 April 1996. The first applicant was registered with the land registry (Бюро технической инвентаризации) as the owner of the house. Apparently the first applicant was not aware of Kh’s right to the house and Kh was not aware of the sale to the first applicant.
On 22 July 1996 the Marx local administration granted a reconstruction permit pursuant to which the first applicant converted the shop into a dwelling of about 78 m². He moved into it with seven members of his family including other applicants.
In 1998 Kh seized the Marx Town Court with a property claim in respect of the house and challenged its sale by the bailiff. The first applicant lodged a counterclaim invoking his title to the house.
On 28 June 1999 the Marx Town Court found that the bailiff had acted unlawfully and declared the house sale to the first applicant null and void. It annulled the first applicant’s title and ordered his and his family’s eviction. The first applicant was awarded RUR 13,600 as reimbursement of the house purchase price by company B and its contractual counterparty, and RUR 113,161 of reconstruction costs payable by Kh. The first applicant and Kh appealed.
On the same day the applicants were served with an eviction order.
On 27 August 1999 the Saratov Regional Court upheld the first instance judgment as to the substance, but reversed the award of the reconstruction costs because such claim had never been made by the applicants.
On 15 November 1999 the Presidium of the Saratov Regional Court quashed on supervisory review the decision of 12 April 1996 by which the sale of the house to the first applicant was ordered.
On 9 August 2000 the Marx Town Court, apparently following the applicant’s request for supervisory review, appointed an expert assessment of the market value of the house. It was estimated at RUR 245,000. On 31 August 2000 the Saratov Regional Court rejected the request for supervisory review.
On unspecified date the applicants brought proceedings for damages against Kh, the Ministry of Finance, the Ministry of Justice and the Judicial Administration Department. They claimed pecuniary damages of RUR 317,654 including the reconstruction costs (RUR 146,461), the amount due under the judgment of 28 June 1999 (RUR 13,600) which had not been paid due to the liable parties’ insolvency, and non-pecuniary damages. In support of their claims they referred to the expert evaluation of the house made on 9 August 2000.
On 14 December 2001 the Marx Town Court examined the case. It dismissed the claim against Kh for the reimbursement of the reconstruction costs because Kh had never authorised these works on his premises. The court held that the reconstruction costs had to be reimbursed by the state because these expenses were incurred as a result of the authorities’ unlawful conduct. The first applicant was awarded RUR 89,522 to be paid by the Ministry of Finance. The remaining claims including those by other applicants were dismissed as unsubstantiated.
On 15 February 2002 the Saratov Regional Court upheld this judgment.
On 26 November 2002 the applicants were ordered to leave the house by 6 December 2002.
The applicants challenged the eviction order claiming that the award had not been paid and that no other dwelling was made available to them.
On 9 December 2002 the Marx Town Court of the Saratov Region dismissed the applicants’ challenge to the eviction order. This decision was upheld on appeal by the Saratov Regional Court on 17 January 2003.
On 27 March 2003 the Marx Town Court of the Saratov Region examined another request by the applicants and adjourned the eviction until 4 April 2003. The applicants appealed claiming that it was insufficient and requested an adjournment until the grant of social housing. The extension was refused.
Between April and July 2003 the applicants were served the eviction order three times, each time with a new deadline. The applicants unsuccessfully challenged the order every time it was served.
On 12 September 2003 the bailiff of the Tsentralnyy District Court of Moscow informed the first applicant that the bailiff service was not competent to carry out the execution of the judgment of 14 December 2001. He instructed the first applicant to claim his award directly from the Ministry of Finance.
On 12 October 2003 the applicants and the rest of the family were evicted from the house.
On 19 November 2003 they were granted social housing. According to the applicants, this is a 45 m² flat in a municipal hostel where they moved in with the whole family which by then counted 11 persons. They submit that the quality of this residence is poor and they have to pay rent.
On 18 February 2004 the Ministry of Finance informed the second applicant that the payment due to the first applicant pursuant to the judgment was suspended because the enforcement documents had been sent to the Ministry’s Legal Department “for the inspection of the materials of the [applicants’] court dispute”. It promised to “keep the applicants informed about the outcome of the challenge and its legal assessment”.
The judgment of 14 December 2001 has not been enforced to date.
The applicants complained under Article 8 of the Convention that they have been evicted from their home without adequate compensation or provision of alternative housing.
They also complained that the annulment of their title to the house constituted a deprivation of their possessions contrary to Article 1 of Protocol 1 to the Convention.
The applicants complain that the authorities violated their right to respect for home and the right to the peaceful enjoyment of their possessions. They invoke Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.
Article 8 of the Convention provides 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.”
Article 1 of Protocol No. 1 to the Convention provides 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 disputed that there had been a violation of the applicants’ Convention rights. They consider that the annulment of the applicant’s title and their eviction were in accordance with law and necessary for the protection of the rights of the lawful owner. They allege that a full restitution has been carried out, since the first applicant had been awarded the amount equal to the purchase price he had paid for the house. In addition, the applicants have been granted social housing after their eviction. The Government consider that the damage caused to the applicants by the unlawful court sale has been in any event compensated by the award of reconstruction costs made on 14 December 2001.
The applicants maintain their complaints. They consider that as bona fide owners they should not have been evicted from the house, or at least should have been provided with an adequate replacement dwelling or compensation sufficient to buy such dwelling. They contest the Government’s allegation that the award made by the court, alone or in combination with the grant of social housing, provided them with an adequate compensation. As regards the award, they state that it has never been paid to them. They refer to the letter of the Ministry of Finance dated 18 February 2004 and claim that they have not heard anything ever since.
In any event, they claim that the awarded sum was insufficient to buy any dwelling because the calculations were made on the basis of the prices existing at the time of purchase and reconstruction and did not take account of inflation or market growth. In support of this view they submitted a directive issued in 2003 by the Russian agency for construction and planning listing the reference market rates for calculation of state construction subsidies. In relation to the Saratov Region the average market price of residential dwellings was set at RUR 8,200 per m². Accordingly, the applicants could purchase just over 10 m² if they were to pay a market price. Therefore the applicants believe that the award, even if it was paid, would not help to compensate for the loss of the house.
As for the social housing where they currently live, they consider that it cannot count as compensation because they were not granted ownership, but only a right to dwell in a municipal hostel for which they have to pay rent. Moreover, the allocated hostel accommodation is much smaller than the house (45 m² compared to 78 m²), making it insufficient for a family of eleven.
The Court considers, in the light of the parties’ submissions, that the case raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible without prejudging the merits of the case.
Michael O’Boyle Nicolas Bratza
TULESHOV AND OTHERS v. RUSSIA DECISION
TULESHOV AND OTHERS v. RUSSIA DECISION