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19/02/2012

Glad To See Y’Back Again?

Gladysheva v Russia (App. No. 7097/10)

Courtesy of the always excellent ECHR blog, comes an interesting Strasbourg decision, particularly in relation to the question of just satisfaction. It has, regrettably, taken me ages to write this up. Any students who have had to write essays about it in the meantime clearly have sadistic tutors.

The facts of the case bear some similarity with Tuleshov v Russia, but there are a few differences and what is quite interesting about this case is what the ECtHR does about just satisfaction.

The basic facts are that Ms Gladysheva was a bona fide purchaser of a flat in Moscow. The previous owner had bought the flat from someone referred to as Ms Ye, who had, in turn, acquired the title to the flat from the City of Moscow through a privatisation scheme (which appears to be not a million miles away from right to buy).

Unfortunately for Ms Gladysheva, there appear to have been some shady goings on, err, going on when Ms Ye acquired the flat, which all started to be investigated after Ms Gladysheva had bought it. In July 2009 a court in Russia found that the privatisation had been fraudulent. Applying domestic law the court ordered the return of the flat to the City and Ms Gladysheva’s eviction. She was not entitled to compensation or the offer of alternative accommodation.

Although the Deputy Prosecutor General and the Moscow City Ombudsman have both intervened in support of Ms Gladysheva, that decision stood. At the time that her case came to Strasbourg she had not yet been evicted, but considered that eviction was imminent.

She brought the case to Strasbourg in reliance on A1P1 (which provides for protection of property) and Article 8 (which provides for protection of a home).

The ECtHR dealt first with A1P1. Russia argued that it did not apply as Ms Gladysheva’s dispute was really with the person who sold her the flat. The ECtHR said that this argument was “misguided”. It was the Housing Department that had brought the case to recover the flat, so the dispute was clearly between the applicant and a municipal body. It cannot be said that it was a purely private dispute between the City and Ms Gladysheva as the alleged frauds that had taken the flat out of the City’s ownership involved residential registration, social tenancies and privatisation.

When considering the merits of the A1P1 claim, the ECtHR held that the interference with Ms Gladysheva’s rights was not proportionate. Much of the blame had to be attached to the failure of the authorities to prevent the fraudulent privatisation of the flat. In addition, Ms Gladysheva was being “stripped of ownership without compensation, and … [had] no prospect of receiving replacement housing from the State.” The court went on to note that “mistakes or errors of the State authorities should serve to the benefit of the persons affected, especially where no other conflicting private interest is at stake. In other words, the risk of any mistake made by the State authority must be borne by the State and the errors must not be remedied at the expense of the individual concerned … It therefore concludes that dispossessing her of her flat placed an excessive individual burden on her, and that the public interest was not sufficient justification for doing so.”

Therefore A1P1 had been breached. For pretty much the same reasons there had also been a breach of Art 8. In the court’s analysis of Art 8 it is interesting that some significance appears to be attached to the fact that “no goodwill had been shown by the Moscow Housing Department in that it would not provide her with permanent, or even temporary, accommodation when she had to move out. The Government’s suggestion that the applicant move in with her parents aside, the authorities made it clear that they would not contribute to a solution of her housing need.”

Where this case does get interesting is what happened next. Ms Gladysheva claimed an amount of money for non-pecuniary damage and also an amount to allow her to purchase another flat. Russia resisted both of these and argued alternatively for a lower award in respect of the loss of the flat. However, the ECtHR did something a bit different. At [106] the court said that

having due regard to its findings in the instant case, and in particular having noted the absence of a competing third-party interest or other obstacle to the restitution of the applicant’s ownership, the Court considers that the most appropriate form of redress would be to restore the applicant’s title to the flat and to reverse the order for her eviction. Thus, the applicant would be put as far as possible in a situation equivalent to the one in which she would have been had there not been a breach of Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.

In other words, she gets to keep the flat. While not a new development in relation to A1P1 (Bulgaria has been on the receiving end of a couple of such decisions), it is interesting to see this being applied to residential property.

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.

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