September 18
2020
Dolores Utrilla
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15th September 2020
Human Rights Justice & Litigation

ECtHR: interferences with property purchased in the absence of good faith are in line with ECHR law, but right to fair trial must be respected

The European Court of Human Rights (ECtHR) has just handed down its judgment in Belova v. Russia (application no. 33955/08), a case concerning the recovery by Russian authorities of a public property years after purchase by the applicant following unauthorised sale to intermediate acquirers. The dispute revolves around the compatibility of such a recovery with the right to a fair trial (Article 6(1) of the European Convention on Human Rights, ECHR) and with the right to property (Article 1 of Protocol no. 1 to the ECHR).

The property at hand used to belong to the State and was managed by a State-owned company. In 2003 the company signed over the property to a private person in settlement of a debt. The property was then sold twice, and in 2004 came into the hands of the applicant. Each transaction was registered with the Property Registration Authority (ЕГРП) and deeds were issued. In 2012 the State Property Agency sought recovery of the property for construction for the 2014 Winter Olympics. After proceedings on several levels, the Supreme Court finally found that the applicant had not acquired the property in good faith and annulled her title to it. In a parallel case in 2011, the applicant sought cadastral survey of the property. After proceedings at two levels, an appeal at cassation level was heard on the matter following an appeal by the State Property Agency. The applicant was not informed of those proceedings and she asked the court for a postponement of the hearing, but the case was nevertheless heard in her absence and it was declared that the land belonged to the Russian authorities.

In its judgment today, the ECtHR found that no breach of the right to property existed, because it was the applicant’s duty to investigate the origin of the property in order to avoid possible confiscation claims. Therefore, the ECtHR accepted the respondent State’s argument that the acquisition of the land by the applicant was not made in good faith. Moreover, the ECtHR noted that the applicant was not prevented from seeking compensation from those responsible for her loss.

However, the ECtHR concluded that the right to a fair trial was infringed in the 2011 set of proceedings. The Strasbourg-based court recalled its settled case law, according to which Article 6(1) ECHR does not guarantee the right to appear in person in a civil court but rather a more general right to plead effectively and on an equal footing with the opponent, which means inter alia that a litigant must be notified of a hearing in a way which allows him or her enough time to prepare and to attend. In the case at hand, the ECtHR found these requirements to be violated for three reasons, namely because (i) the Russian authorities did not prove that the notifications of the hearing were delivered to either the applicant or her representative; (ii) the notifications were sent only eight days before the hearing, which was not enough notice given that the applicant and her lawyer lived in different cities to where the court was located; and (iii) it was not proved that the Presidium had duly considered the postponement request which had been faxed by the applicant’s lawyer on the eve of the hearing and which contained seemingly valid reasons for the postponement.

The judgment is available here.

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