Available in Russian
Authors: Dmitry Stepanov, Olga Podoplelova
Keywords: execution of ECtHR judgments; горизонтальный эффект норм конституционного права; защита частной собственности; конституционализация частного права; стратегическая судебная защита
This article addresses the case of Aleksander Dubovets, which was reviewed by the Russian Constitutional Court in June 2017. The case concerns the revocation of title to an apartment and the subsequent eviction of a bona fidepurchaser as a result of proceedings initiated by state authorities under Article 302(1) of the Civil Code of the Russian Federation. Indeed, the case was an important milestone in the Court’s 2017 case law. By the time Alexander Dubovets lodged his complaint to the Constitutional Court, hundreds of bona fide purchasers all over Russia had been stripped of home ownership, and since 2011 the European Court of Human Rights has decided dozens of similar cases in favor of bona fide purchasers of apartments. However, the Russian government failed to take any steps to protect these citizens. While agreeing with Judgment No.16-P of June 22, 2017, delivered by the Constitutional Court, the authors analyze the reasons that caused this crisis situation, and the factors contributing to its solution. They argue that this case illustrates the constitutionalization of private law, as civil law norms cannot effectively address the issue of property seizures in suits filed by public authorities. Particular attention is given to the legal effects of the court’s decision, with special emphasis on its judicial implementation in the courts of general jurisdiction. The authors also suggest possible further actions needed to ensure the full protection of all those who have been deprived of their property under the provision of Article 302(1) of the Civil Code.
About the authors: Olga Podoplelova – Senior lawyer, Institute for Law and Public Policy, Moscow, Russia; Dmitry Stepanov – Candidate of Sciences in Law, LL.M., MPA, assistant professor, National Research University “Higher School of Economics”, Moscow, Russia.
Citation: Podoplelova O., Stepanov D. (2017) Dobrosovestnye priobretateli protiv nedobrosovestnogo gosudarstva: delo Aleksandra Dubovtsa v Konstitutsionnom Sude Rossii: Kommentariy k Postanovleniyu ot 22 iyunya 2017 goda N16-P [Good-Faith purchasers v. bad-faith government: the case of Aleksander Dubovets before the Russian Constitutional Court: Commentary on Judgment No.16-P of June 22, 2017]. Sravnitel’noe konstitutsionnoe obozrenie, no.6, pp.101–114. (In Russian).
Alexy R. (2002) A Theory of Constitutional Rights, Oxford: Oxford University Press.
Gadzhiev G.A. (2004) Konstitutsionnye printsipy rynochnoy ehkonomiki: Razvitie osnov grazhdanskogo prava v resheniyakh Konstitutsionnogo Suda Rossiyskoy Federatsii [Constitutional principles of market economy: development of the foundations of civil law in decisions of the Constitutional Court of the Russian Federation], Moscow: Yurist. (In Russian).
Dolzhikov A.V. (2012) Vliyanie konstitutsionnykh prav na rossiyskuyu pravovuyu sistemu [Influence of constitutional rights on the Russian legal system]. Sravnitel'noe konstitutsionnoe obozrenie, no.6, pp.109–120. (In Russian).
Gardbaum S. (2003) The “Horizontal Effect” of Constitutional Rights. Michigan Law Review, vol.102, no.3, pp.387–459.
Kumm M. (2006) Who Is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law. German Law Journal, vol.7, no.4, pp.341–370.
Pokrovsky I.A. (1998) Osnovniye problemy grazhdanskogo prava [Key problems of civil law]. Moscow: Statut. (In Russian).
Tushnet M. (2003) The Issue of State Action / Horizontal Effect in Comparative Constitutional Law. International Journal of Constitutional Law, vol.1, no.1, pp.79–98.