ZAYKINA v. RUSSIA - 14620/09 (Judgment : Article 8 - Right to respect for private and family life : Third Section Committee) [2019] ECHR 367 (21 May 2019)

In the case of Zaykina v. Russia ,

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

Alena Poláčková , President,
Dmitry Dedov ,
Jolien Schukking , judges,
and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 30 April 2019 ,

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

PROCEDURE

1. The case originated in an application (no. 14620/09) 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 a Russian national, Ms Dinara Vyacheslavovna Zaykina ("the applicant") [1] , on 17 November 2008.

2. The applicant was represented by Mr A.N. Sherstnev , a lawyer practising in St Petersburg. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

3. On 19 September 2016 notice of the complaint concerning the alleged violation of the applicant ' s right to respect for her home was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The Government objected to the examination of the application by a Committee. After having considered the Government ' s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and lives in St Petersburg.

6. In 1972 the applicant ' s grandmother M. was provided with a flat under a social tenancy agreement. Her son, the applicant ' s uncle, lived in the flat until his death in November 1998.

7. In 1995 the applicant ' s uncle admitted that he was the father of a newborn baby boy A., whose mother was G., and at his request the boy was registered as living in the flat as the grandson of M.

8. In November 1998 the applicant ' s uncle died.

9. In December 1998 the applicant moved into the flat with her grandmother and, with the written consent of her grandmother, the authorities registered her as living in the flat as M. ' s granddaughter.

10. In October 2004 the applicant and her grandmother brought court proceedings against G., as she was the legal representative of A., who was a minor. Their statement of claim, as far as relevant, read as follows:

"My son, Moshkin Yuriy ..., had close relations with the defendant [G.]. In May 1995 she [G.] gave birth to a baby boy, A. Moshkin Yu. M. acknowledged his paternity in respect of his son A., and registered him as living in our dwelling.

A., a minor, never moved into our flat, since his mother, the defendant in the present case, lives in a neighbouring apartment building in a three-room flat, together with her parents. ...

Moshkin Yuriy, the father of A., a minor, died in November 1998.

The charges for the flat increase every year. We, the claimants, have an income which is below the minimum wage. I have been classed as having a second-degree disability, whereas Ansimova Dinara [the applicant] is a student...

The defendant does not pay communal charges for her son, who is registered as living in the flat...

Taking into account that A., a minor born in 1995, was registered as living in our dwelling but never moved in, he has not acquired any right to those living premises, since registration is an administrative act.

In accordance with Article 20 of the Civil Code, the place of residence of minors under the age of 14 is the place of residence of their legal representatives - their parents. A., born in 1995, has acquired a right to the living premises where his mother [G.] lives..."

11 . The applicant and her grandmother asked the court to declare that G. 's son had not acquired any right to use the flat. Later, they submitted additional claims, seeking to recover from G. the amounts they had paid for communal charges. In particular, they submitted that G. had started paying charges in April 2005, after they had brought court proceedings against her. They also submitted that they had already accumulated debts for communal charges.

12. G. brought a counterclaim against the applicant and her grandmother, seeking the applicant ' s eviction from the flat. She submitted in particular that after the death of her son ' s father, the applicant, who had been living in the flat, and her grandmother had changed the locks and had not let her and her son into the flat. She submitted that in 2003 she had got married and that she and her son were now living in her husband ' s flat.

13 . In October 2005 the applicant ' s grandmother died. Following her death, the applicant amended her claims. She asked the court to acknowledge that she was the tenant of the flat and to oblige the district administration to conclude a social tenancy agreement with her. The applicant submitted the following arguments in support of her claims.

(a) She had been living in the flat with her grandmother since 1984 and since 1998 had been registered there as M. ' s granddaughter. They had lived as a family in a shared household, and she had taken care of her grandmother. On several occasions the authorities had acknowledged that she and her grandmother were a low-income family, and had awarded them a housing allowance.

(b) She had renovated the flat at her own expense.

(c) G. ' s son had been registered as living in the flat, but had never lived there. He had always lived with G. in the three-room flat which she owned.

(d) G. had not been paying her son ' s share of the charges for the flat.

14. G. also submitted additional claims, seeking to have her son ' s entitlement to the flat acknowledged and asking for the applicant to be deregistered from the flat. This time, G. submitted that the applicant had never moved into the flat and had never lived there.

15. On 25 April 2007 the Nevskiy District Court of St Petersburg ("the District Court") ordered the applicant ' s eviction from the flat. The District Court further held that G. ' s son had a right of occupation and that the district administration had to conclude a social tenancy agreement with him.

16. On 19 July 2007 the St Petersburg City Court ("the City Court") quashed the judgment of 25 April 2007 as regards the part concerning the applicant ' s eviction and the obligation on the district administration to conclude a social tenancy agreement with G. ' s son. The matter was remitted to the District Court for fresh examination. The City Court held in particular that, in coming to the conclusion that the applicant had not proved that she had moved into the flat as a family member of her grandmother and in taking a decision to evict the applicant, the District Court had not made any assessment of the fact that the applicant ' s grandmother had initially brought the court proceedings together with the applicant and had never challenged the applicant ' s right to occupy the flat. The City Court also pointed out that the District Court had not assessed other evidence submitted by the applicant confirming that she had carried out repair and decoration works in the flat, photographs of the applicant with her grandmother which had been taken in the disputed flat, or other evidence submitted by the applicant.

17 . On 5 March 2008 the District Court ordered the applicant ' s eviction, following a fresh examination. The District Court found, with reference to Articles 53 and 54 of the Housing Code of the Russian Soviet Federative Socialist Republic (see "Relevant domestic law" below) that both the applicant and G. ' s son were registered as living in the flat as the grandchildren of M., the previous tenant. The court considered that G. had proved that her son had moved into the flat and had lived there for some time, but had not been able to move back because the applicant had not let him in. The court considered that the applicant had not proved that she had moved into the flat as her grandmother ' s family member and had shared the same household and taken care of her. The court concluded that the applicant had to be evicted from the flat without being provided with alternative accommodation.

18 . The applicant appealed against that judgment. She submitted in particular that the District Court had not made any assessment of the fact that she and her grandmother had initially brought court proceedings together as members of the same family, and that her grandmother had never challenged her right to occupy the flat. Nor had the District Court taken into account her submissions that she had been living in the flat in question since childhood, that her grandmother had asked the authorities to register her as living in the flat, and that in 2000 and 2001 the welfare authorities had declared that they were a poor family. A., a minor, had always lived with his mother G. in a three-room flat which G. owned.

19. On 19 June 2008 the City Court upheld that judgment. The City Court held in particular that in taking its decision in the case, the court of first instance had assessed all the evidence in the case, including the witness testimony, and had reasonably indicated that A. had acquired the right to use the disputed living premises because he had been moved into the flat as a tenant ' s family member in accordance with the procedure provided for by law. Therefore, the court of first instance had come to the right conclusion that the claims brought by G., the mother of A., had to be granted. The City Court agreed with the conclusion of the court of first instance that the applicant ' s claims had to be dismissed because the applicant had not proved that she had moved into the disputed flat and had shared the same household as the tenant, M., her grandmother. Her registration as living in that flat had been of an administrative nature and had not provided her with any right to live there. In such circumstances, the judgment of the court of first instance had been lawful and duly reasoned. The City Court further held that the grounds of the applicant ' s appeal had aimed to reassess the evidence in the case, and that, given the fresh conclusion that the court of first instance had duly assessed the evidence before it, those grounds could not serve as a basis for quashing the judgment .

20. On an unspecified date the applicant was evicted from the flat.

21. In January 2009 the administration of the Nevskiy District of St Petersburg concluded a social tenancy agreement with A. in respect of the flat in question.

22. On 17 February 2009 the applicant was registered as living in a communal flat in which her husband owned a room.

23. On 30 December 2009 the flat from which the applicant had been evicted was transferred to A. by way of privatisation.

24. On 31 December 2009 the applicant, her husband and her daughter were placed on the municipal housing list as persons in need of housing.

II. RELEVANT DOMESTIC LAW

The 1983 Housing Code of the Russian Soviet Federative Socialist Republic

25. Article 53 of the Code provided that a tenant ' s family members living together with the tenant had the same rights and obligations as the tenant under the social tenancy agreement. Members of a tenant ' s family included his or her spouse, children and parents. Other relatives and disabled dependants could be recognised as members of the tenant ' s family if the tenant accommodated them as such and if they shared a common household with him or her. Article 54 of the Code provided that a tenant was entitled to move into living premises relatives or other persons who acquired the same rights as him or her to use the living premises.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

26. The applicant complained under Article 8 of the Convention of a violation of her right to respect for her home. Article 8 of the Convention 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

27. 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 Government ' s submissions

28. The Government submitted that the applicant ' s eviction had been in accordance with the law, it had pursued legitimate aims provided for in Article 8 § 2 of the Convention, and had been proportionate and necessary in a democratic society. The present case differed from Croatian cases concerning the eviction of applicants ( Ćosić v. Croatia , no. 28261/06, 15 January 2009, and Paulić v. Croatia , no. 3572/06 , 22 October 2009). The applicants in those cases had moved into their flats on lawful grounds and had had no alternative accomodation . After their eviction , the flats had become the property of the State . The applicant in the present case had moved into the flat unlawfully, without obtaining the written consent of her uncle. The State had not been a party to the proceedings in question, and after the applicant ' s eviction the flat in question had been given to a private individual - A., a minor. Prior to being registered as living in her grandmother ' s flat, the applicant had been registered as living in her mother ' s flat, and after her eviction she had been registered as living in a room - belonging to her husband - in a communal flat. Therefore, after her eviction from the disputed flat, the applicant had not been deprived of the opportunity to move into different housing. Under domestic law, being registered as living in a particular dwelling did not give rise to any rights or obligations in respect of that dwelling.

29. The domestic courts had examined the applicant ' s arguments and evidence in support of her claims, as well as witness submissions, and had come to the conclusion that she had never moved into the flat as a family member of her grandmother, had not shared the same household with her, and therefore had not acquired rights to use the flat which were equal to those of her grandmother. As far as A. was concerned, the courts had established that he had lawfully acquired the right to live in the flat, since he had been moved into the flat by his father (the applicant ' s uncle), and that if the applicant ' s claims were granted then his right to a home would be breached. Lastly, it was relevant that the applicant had initiated court proceedings with the aim of depriving A. of his right to a home, and not protecting her right to respect for her home.

2. The applicant ' s submissions

30. The applicant submitted that the fact that the eviction claims had been brought against her proved that she had been de facto living in the flat. In 1998 she had been moved into the flat lawfully by her grandmother, who had been the tenant of the flat. She had not needed consent from her uncle, since by that time he had died. That flat had been her only home, since after moving there she had lost her right to live in her mother ' s flat. The room to which she had been obliged to move after her eviction was part of a communal flat, and the room itself measured 21 square meters and accommodated five persons, including her and her newborn daughter. The applicant submitted that the Government had not duly justified the proportionality of her eviction.

3. The Court ' s assessment

31. The Government did not contest that the flat in question had been the applicant ' s "home" within the meaning of Article 8 of the Convention and that her eviction from that flat had amounted to an interference with her right to respect for her home. The Court accepts that that interference was in accordance with law and pursued the legitimate aim of protecting the rights of others, namely A. The central question in this case is therefore whether the interference was proportionate to the aim pursued and thus "necessary in a democratic society".

32. The Court set out the relevant principles in assessing the necessity of an interference with the right to "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 the 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."

33. In the present case, the applicant raised the issue of her right to respect for her home before the domestic courts, and presented arguments questioning the proportionality of her eviction (see paragraphs 13 and 18 above). The crux of her argument before the domestic courts was that she had been moved into the flat by her grandmother as a member of her family, and that was confirmed by the fact that they had initiated court proceedings against G. jointly, as members of one family, because they could no longer pay all the charges for the flat.

34. The Government claimed that the interference with the applicant ' s right to respect for her home had been proportionate and "necessary in a democratic society" because the applicant had moved into the flat unlawfully and she had had an alternative place in which to live. In addition, the interference had aimed to protect A. ' s right to respect for his home. In that respect, while the lawfulness of establishing one ' s home in a particular place and the availability of alternative accommodation might be relevant for the assessment of the proportionality of an eviction, the Court observes that those matters were not examined by the domestic courts in the present case. As regards A. ' s interests, the Court agrees that in the present case the domestic courts had to balance two competing private interests, namely A. ' s right and the applicant ' s right to occupy the State-owned flat under a social tenancy agreement following the death of the tenant. However, the Court is not convinced that in taking the decision to evict the applicant, the domestic courts balanced those interests in a way compatible with the requirements of Article 8 of the Convention.

35. The Court observes that the domestic courts established that both A. and the applicant were the grandchildren of M., the deceased tenant of the flat, and both had been registered as living in the flat as her grandchildren (see paragraph 17 above). They both claimed to have acquired the right to live in the flat after the death of their grandmother. In order to decide the case, the domestic courts had to establish whether the applicant and A. could be recognised as the tenant ' s family members. The applicant claimed that she and her grandmother had initially brought court proceedings together as members of the same family, that her grandmother had never challenged her right to occupy flat, and that on several occasions the welfare authorities had declared that she and her grandmother were a low-income family and had awarded them housing allowance (see paragraphs 13 and 18 above). However, neither the court of first instance - during the fresh examination of the case on 5 March 2008 - nor the appeal court which examined the case on 19 June 2008 examined those arguments. The Court considers that the mere fact that A. had acquired the right to live in the flat but did not actually live there was not sufficient to explain why the applicant ' s interests had to give way to A. ' s and why the applicant ' s eviction was justified. By failing to examine the crux of the applicant ' s arguments, the domestic courts thus failed to balance the competing rights and therefore failed to determine the proportionality of the interference with the applicant ' s right to respect for her home.

36. The Court therefore concludes that there has been a violation of Article 8 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

37. The Court has examined the other complaints submitted by the applicant after the Government were given notice of her application. 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.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

38. 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

39. The applicant claimed 35,711 euros (EUR) in respect of pecuniary damage, an amount which represented half of the value of the flat from which she had been evicted and the cost of repair works she had carried out in the flat. She further claimed EUR 10,000 in respect of non-pecuniary damage.

40. The Government submitted that there was no causal link between the applicant ' s complaint under Article 8 of the Convention and the claim in respect of pecuniary damage. They further submitted that her claims in respect of non - pecuniary damage were excessive and unreasonable.

41. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 9,750 in respect of non - pecuniary damage.

B. Costs and expenses

42. The applicant also claimed EUR 931 for costs and expenses incurred before the domestic courts and EUR 2,345 for those incurred before the Court.

43. The Government submitted that the applicant ' s claims for costs and expenses in the domestic proceedings were ill-founded, and her claims for costs before the Court were excessive.

44. 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 covering costs under all heads.

C. Default interest

45. 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, UNANIMOUSLY,

1. Declares the complaint concerning the applicant ' s right to respect for her home admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant , within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i ) EUR 9,750 (nine thousand seven hundred and fifty euros) , plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant , 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;

4. Dismisses the remainder of the applicant claim for just satisfaction.

Done in English, and notified in writing on 21 May 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Alena Poláčková
Deputy Registrar President

[1] . Prior to 2007 the applicant's name was Ansimova . Following her marriage in 2007 she took her husband's name.

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You are here: BAILII >> Databases >> European Court of Human Rights >> ZAYKINA v. RUSSIA - 14620/09 (Judgment : Article 8 - Right to respect for private and family life : Third Section Committee) [2019] ECHR 367 (21 May 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/367.html Cite as: [2019] ECHR 367, CE:ECHR:2019:0521JUD001462009, ECLI:CE:ECHR:2019:0521JUD001462009