ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 18.11.2004<ДЕЛО ПРОКОПОВИЧ (prokopovich) ПРОТИВ РОССИИ> [англ.]

(Application No. 58255/00)
(Strasbourg, 18.XI.2004)
In the case of Prokopovich v. Russia,
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mrs {N. Vajic} <*>,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs E. Steiner, judges,
and Mr S. Nielsen, Section Registrar,
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 28 October 2004,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (No. 58255/00) 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 Margarita Semenovna Prokopovich.
2. The Russian Government ("the Government") were represented by Mr P. Laptev, representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged a violation of Article 8 of the Convention in that she had been evicted from her home in her late partner"s flat without a court order.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 8 January 2004, the Court declared the application partly admissible.
6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).
I. The circumstances of the case
7. The applicant was born in 1940 and lives in Vladivostok.
A. The applicant"s life with her partner
8. In 1988 the applicant and her partner, Mr Filippov, together moved into a flat provided by Mr Filippov"s employer, a State enterprise. The applicant left the flat where she had previously lived to her daughter and her daughter"s family.
9. Although the applicant and Mr Filippov never married, from 1988 onwards they lived together as husband and wife. They purchased all household items for the new flat jointly. Between 1992 and 1995 Mr Filippov supported their family financially because the applicant was unemployed. According to the applicant, Mr Filippov"s relatives and their neighbours considered them to be a family. Postcards and letters were addressed to Mr and Ms Filippov and the applicant received correspondence at the new address.
10. The applicant retained her residence registration at her old address. The applicant explains that she suffered from an ear ailment and wanted to remain under the observation of her former ear-specialist. Had she changed her residence registration, she would no longer have been entitled to visit the doctor practising in her former neighbourhood.
B. Death of the applicant"s partner
11. The applicant and Mr Filippov spent the summer of 1998 in their country cottage. On 18 August 1998 Mr Filippov returned to the town for a week.
12. On 24 August 1998 Mr Filippov died and his body was found by a neighbour. On 26 August 1998 Mr Filippov was buried in the presence of his son and his two sisters who had been summoned by a telegram.
13. The applicant was not notified of her partner"s death or funeral service. She only learnt of it when she returned to the city late in the day on 26 August 1998.
C. Re-allocation of the flat and the removal
of the applicant"s effects
14. On 27 August 1998 the applicant received a phone call from the local housing maintenance authority (жилищно-эксплуатационное управление), requesting an explanation as to why the flat was not empty. The applicant responded that she did not have formal residence registration in the flat, but she had lived there for more than ten years. On 1 September 1998 a representative of the housing maintenance authority visited the applicant at the flat and drafted a report to the effect that the flat was not empty. The applicant was not given a copy of the report. The representative advised the applicant to secure her right to use the flat through a court.
15. On 2 September 1998 the applicant filed a request with the housing maintenance authority to be given an occupation certificate (ордер) for the flat. Her request was refused because on 1 September 1998 an occupation certificate had already been issued to Mr Valetov, the head of the local police department and hierarchical superior of Mr Filippov"s son.
16. On 4 September 1998, on returning to the flat, the applicant found that the door had been broken open and that books and other household items were being loaded onto a lorry. The applicant states that the possessions were removed in the presence of Mr Valetov, Mr Filippov"s son, several policemen in civilian clothing, and a representative of the housing maintenance authority. Once the removal was completed, the applicant was told to vacate the premises immediately. When the applicant refused to comply with the request, she was thrown out of the flat by force. The door was replaced and the applicant was not given keys.
D. Court proceedings brought by the applicant
17. On 7 September 1998 the applicant filed a complaint against Mr Valetov with the prosecutor"s office of the Sovietskiy District of Vladivostok. The applicant requested a criminal investigation into her forcible eviction and the removal of her possessions. On 14 September 1998 the prosecutor"s office informed the applicant that her allegations were unsubstantiated and refused to open criminal proceedings.
18. On 1 October 1998 the applicant filed a civil action against the Vladivostok City Council and Mr Valetov. The applicant claimed that she should be recognised as a member of her late partner"s household and asked for the occupation certificate issued to Mr Valetov to be declared void. The applicant submitted in evidence many witness statements by relatives, by neighbours living in the same block of flats and by summer house neighbours, as well as personal photographs, letters, postcards and mail receipts.
19. On 27 November 1998 the applicant complained to the Vladivostok city prosecutor"s office about the refusal to open a criminal investigation into Mr Valetov"s actions. By a letter of 17 December 1998 the applicant was informed that the prosecutor"s office had reversed the refusal and ordered the Sovietskiy District prosecutor"s office to carry out an inquiry.
20. On 5 January 1999 the Sovietskiy District prosecutor"s office reported that an inquiry had not established any indication of a criminal offence. On 7 May 1999, after the applicant had complained again, the Vladivostok city prosecutor"s office examined the matter and confirmed this conclusion.
21. On 9 August 1999 the Sovietskiy District Court of Vladivostok dismissed the applicant"s civil action, finding as follows:
"Under these circumstances, the court considers that it has been established in court that [the applicant] lived in the contested flat, which [fact] is corroborated by postcards addressed to Mr Filippov and [the applicant], a parcel delivery notice; however, [the applicant"s] residence was of a temporary nature.
The court has established that Mr Filippov, while still alive, did not recognise [the applicant"s] tenancy right in respect of the contested flat; [the applicant] did not produce evidence showing that Mr Filippov had recognised her right to tenancy. Besides, it has been established that [the applicant] retained her tenancy right in respect of [her daughter"s flat] and that she had moved into the contested flat in breach of the procedure established by Article 54 § 1 of the RSFSR Housing Code...
Furthermore, [the applicant"s] assertion about the presence of her personal effects (250 items) in the contested flat... is rebutted by the results of the inquiries carried out by the Sovietskiy District and Vladivostok City prosecutor"s offices, as well as the housing maintenance authority report of 4 September 1998.
Under these circumstances, the court finds that [the applicant] has not acquired the tenancy right to [the contested flat]..."
The court grounded its findings on the statements of Mr Filippov"s son and daughter-in-law; however, the court rejected a statement by the applicant"s daughter on the ground that she was an interested witness. It also determined that statements by five neighbours produced at the hearing were not sufficient to establish that the applicant and Mr Filippov had maintained a joint household.
22. The applicant appealed against the judgment. In her statement of the grounds of appeal of 17 August 1999 the applicant pointed to a very substantial body of evidence proving her residence in the flat (statements by witnesses, postcards, mail receipts, etc.). She alleged that her late partner"s son had conspired with his police superior to acquire the flat, which explained why they had managed to obtain in just two days the decisions of the City Council and of the housing maintenance authority, as well as the occupation certificate and residence registration stamp. She complained that she had been thrown out by force, contrary to the applicable provisions of the Housing Code.
23. On 6 October 1999 the Civil Section of the Primorskiy Regional Court upheld the decision of 9 August 1999. The Regional Court endorsed the arguments of the first instance court.
24. The applicant submitted several requests for supervisory review, all of which were turned down.
25. According to the applicant, the flat was privatised in 1999 and sold to a third party.
II. Relevant domestic law
26. The RSFSR Housing Code of 24 June 1983 (as amended on 28 March 1998, effective at the material time) provided:
Article 53. Rights and obligations of the tenant"s family members
"The tenant"s family members shall include the tenant"s spouse, children and parents. Other relatives, disabled dependants, and - in exceptional circumstances - other persons may be recognised as the tenant"s family members if they live together with the tenant and maintain a joint household."
Article 54. The tenant"s right to accommodate other persons in his premises
"The tenant shall be entitled to accommodate in his living premises, in accordance with the established procedure, his spouse, children, parents, other relatives, disabled dependants and other persons, subject to the written consent of all adult members of his family...
The persons accommodated by the tenant in accordance with the rules of the present article shall have the same right to use the living premises as the tenant or other members of his family provided that such persons are, or have been recognised as, members of the tenant"s family (Article 53) and that no other agreement on the use of the premises has been signed between these persons, the tenant and his family members."
Article 90. Eviction from living premises
"Eviction from occupied living premises in state or public housing shall only be permissible on the grounds set out in the law.
Eviction shall be ordered by a court..."
I. The government"s preliminary objection
27. The Government, in their additional observations of 23 March 2004 following the Court"s decision as to the admissibility of the application on 8 January 2004, contended for the first time that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention in respect of her complaint under Article 8 of the Convention. They submitted that it had been open to her, pursuant to Article 46 §§ 1 and 2 of the Russian Constitution and section 4 of the Russian law "On appeals to a court against acts and decisions violating citizens" rights", to lodge a complaint with a court about the unlawful acts of the police officers who had enforced her eviction on 4 September 1998. However, the applicant had not used this remedy.
28. The applicant disagreed. She indicated that she had complained to, among others, the head of the local police department and the chief inspector of the Ministry of the Interior.
29. The Court reiterates that, according to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see K. and T. v. Finland [GC], No. 25702/94, § 145, ECHR 2001-VII; N.C. v. Italy [GC], No. 24952/94, § 44, ECHR 2002-X). The Government"s submissions referred to the events that had occurred before the application was lodged with the Court and there had been no relevant legal developments thereafter. There are no exceptional circumstances which would have absolved the Government from the obligation to raise their preliminary objection before the Court"s decision as to the admissibility of the application on 8 January 2004.
30. Consequently, the Government are estopped from raising a preliminary objection of non-exhaustion of domestic remedies at the present stage of the proceedings. The Government"s objection must therefore be dismissed.
II. Alleged violation of Article 8 of the Convention
31. The applicant complained that her eviction from her late partner"s flat had been unlawful. She invoked Article 8 of the Convention which reads as follows:
"1. Everyone has the right to respect for his... home...
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. The parties" submissions
1. The applicant
32. The applicant submitted that she had moved into her partner"s flat as a member of his family. They had jointly furnished the flat, purchased household goods together and shared maintenance expenses. She had therefore been entitled to succeed to the tenancy under Articles 53 and 54 of the RSFSR Housing

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