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THIRD
SECTION
CASE OF MINASYAN AND SEMERJYAN v. ARMENIA
(Application
no. 27651/05)
JUDGMENT
(merits)
STRASBOURG
23 June 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Minasyan and
Semerjyan v. Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Boštjan
M. Zupančič,
Alvina Gyulumyan,
Ineta
Ziemele,
Luis López Guerra,
Ann Power,
judges,
and Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27651/05) against the Republic
of Armenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Armenian nationals, Ms Nelli Minasyan (“the
first applicant”) and Ms Yelena Semerjyan (“the
second applicant”), on 1 July 2005.
- The first and the second applicants (jointly, “the
applicants”) were represented by Ms L. Grigoryan, a lawyer
practising in Yerevan. The Armenian Government (“the
Government”) were represented by their Agent, Mr G. Kostanyan,
Representative of the Republic of Armenia at the European Court of
Human Rights.
- On
2 July 2007 the President of the Third Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first and the second applicants, who are mother and daughter, were
born in 1960 and 1990 respectively and live in Los Angeles, USA.
- The
first applicant was the owner of a 26 sq. m. flat in an apartment
building situated at 9 Byuzand Street, Yerevan. The flat was acquired
by the first applicant on 30 May 1995. The building in question was
situated on a plot of land owned by the State.
- The
applicants alleged that the second applicant enjoyed a right of use
in respect of the above flat as the first applicant's family member
residing in it.
- The
Government contested this allegation and claimed that the second
applicant did not enjoy the right of use in respect of the first
applicant's flat and simply had the right to live in it.
- On
5 October 2001 the Government adopted Decree no. 950, approving the
procedure for taking plots of lands and immovable property situated
within expropriation zones of Yerevan and for preparing the relevant
price offers. The Mayor of Yerevan was entrusted with its
implementation. According to that Decree, the amount of compensation
was to be determined on the basis of the market value of the
immovable property, which was to be determined by a licensed
valuation organisation or organisations selected through a tender
process. Financial incentives were envisaged for those proprietors
who, within ten days of receiving the price offer, gave their consent
to hand over their property. Persons who were registered within the
expropriation zones and their minor children were to be awarded
2,000,000 Armenian drams (AMD) as a support.
- On
1 August 2002 the Government adopted Decree no. 1151-N, approving the
expropriation zones of the immovable property (plots of land,
buildings and constructions) situated within the administrative
boundaries of the Central District of Yerevan to be taken for the
needs of the State for the purpose of carrying out construction
projects, covering a total area of 345,000 sq. m. Byuzand Street was
listed as one of the streets falling within such expropriation zones.
- On
4 March 2004 the Government adopted Decree no. 399-N, authorising the
Mayor of Yerevan, for the purpose of facilitating the construction
works in the expropriation zones, to include in the compensation
offers in specific cases the grant of construction permits without a
tender process through direct negotiations.
- On
17 June 2004 the Government adopted Decree no. 909-N, authorising the
Mayor of Yerevan to grant such a construction permit for one of the
sections of Byuzand Street – which was to be renamed Main
Avenue – to a private company, Glendale Hills CJSC.
- On
28 July 2004 Glendale Hills CJSC and the Yerevan Mayor's Office
signed an agreement which, inter alia, authorised the former
to negotiate directly with the owners of the property subject to
expropriation and, should such negotiations fail, to institute court
proceedings on behalf of the State, seeking forced expropriation of
such property.
- On
23 December 2004 Glendale Hills CJSC informed the first applicant
that her flat was situated in the expropriation zones approved by
Government Decree no. 1151-N. An independent licensed organisation,
Orran Ltd, had carried out a valuation of her property, in accordance
with the procedure prescribed by Government Decree no. 950. According
to the valuation report prepared by Orran Ltd, the sum of
compensation to be paid to her was the Armenian dram equivalent of
7,000 US dollars (USD). An additional sum equivalent to USD 6,720
would be paid to her as a financial incentive, if she agreed to sign
an agreement and to hand over the property within the following five
days. The sum of compensation and the financial incentive to be paid
to the second applicant, pursuant to Government Decree no. 950,
amounted to the equivalent of USD 2,000 and USD 1,500 respectively.
- It
appears that the applicants did not accept this offer.
- On
an unspecified date, Glendale Hills CJSC instituted court proceedings
against the applicants on behalf of the State. Referring to, inter
alia, Government Decree no. 1151-N, the plaintiff argued that the
construction project of the Main Avenue, which was supposed to
replace Byuzand Street, was impossible without demolition of the
building in which the flat in question was situated and sought to
terminate the applicants' rights through payment of compensation and
to evict them. In support of its claim, the plaintiff submitted the
valuation report prepared by Orran Ltd.
- On
3 February 2005 the Kentron and Nork-Marash District Court of Yerevan
(Երևան
քաղաքի Կենտրոն
և Նորք-Մարաշ
համայնքների
առաջին ատյանի
դատարան) granted
the claim of Glendale Hills CJSC. The District Court found that it
had been decided by the authorities to take the relevant plot of land
for State needs, which was impossible without terminating the
applicants' rights in respect of the immovable property situated on
that land. It decided to terminate the first and the second
applicant's rights and to award them the Armenian dram equivalent of
USD 7,000 and USD 2,000 respectively as compensation. The court based
its findings on Articles 218, 225 § 2 and 283 of the Civil Code,
while the amount of compensation awarded to the first applicant was
determined on the basis of the valuation report prepared by Orran
Ltd.
- On
an unspecified date, the applicants lodged an appeal.
- The
first applicant alleged that, in the proceedings before the Civil
Court of Appeal, she filed a motion requesting the court to order a
commodity expert opinion in order to contest the valuation carried
out by Orran Ltd. This motion was allegedly rejected by the Court of
Appeal.
- On
18 April 2005 the Civil Court of Appeal (ՀՀ
քաղաքացիական
գործերով վերաքննիչ
դատարան) upheld
the judgment of the District Court.
- On
29 April 2005 the applicants lodged an appeal on points of law. In
their appeal they argued, inter alia, that the ownership in
respect of the flat had been unlawfully terminated by a Government
decree and not a statute, as required by the domestic law.
- On
27 May 2005 the Court of Cassation (ՀՀ
վճռաբեկ դատարան)
dismissed the applicants' appeal, referring to the findings of the
lower courts.
- On
an unspecified date the flat in question was demolished.
II. RELEVANT DOMESTIC LAW
A. The domestic provisions related to the question of
lawfulness of the interference
1. The Constitution of Armenia (adopted on 5 July 1995
through a referendum)
- The
relevant provisions of the Constitution, as in force at the material
time, read as follows:
Article 5
“...Public authorities and public officials are
competent to perform only such actions as authorised by law.”
Article 6
“Armenia is a State based on rule of law.
The Constitution of [Armenia] has a supreme legal force
and its provisions are directly applicable.
Laws which are found to be incompatible with the
Constitution, as well as other legal acts which are found to be
incompatible with the Constitution and laws, have no legal force.
...”
Article 28
“Every one has the right to property and the right
to bequeath. ...[A person] can be deprived of [his or her] property
only by a court in cases prescribed by law.
Property can be expropriated for the needs of society
and the State only in exceptional cases of paramount public interest,
on the basis of a law and with prior equivalent compensation.”
Article 100
“The Constitutional Court, in accordance with a
procedure prescribed by law: (1) decides on the conformity of
the laws, the resolutions of the National Assembly, the edicts and
directives of the President of [Armenia] and the decrees of the
Government with the Constitution; ...”
2. The Law on Legal Acts (in force from 31 May 2002)
- The
Law on Legal Acts prescribes the types and hierarchy of legal acts in
Armenia. The relevant provisions of the Law, as in force at the
material time, provided as follows.
- Section
4 listed the legal acts adopted in Armenia which included, inter
alia, the Armenian Constitution, the Armenian laws and the
decrees of the Government.
- Section
8 provided that the Constitution laid down the principles of legal
regulation on the territory of Armenia and was the legal foundation
of the Armenian legislation. It had supreme legal force and its
provisions were directly applicable. The laws and other legal acts
were adopted on the basis of the Constitution or for the purpose of
its implementation and were not to contradict it.
- Section
9 provided that laws regulated the most important, inherent and
stable social relations and were enacted in compliance with the
Constitution through a referendum or by the National Assembly. They
were not to contradict the Constitution, the active laws and the
decisions of the Constitutional Court.
- Section
14 provided that the Government adopted decrees within the scope of
the powers vested in it by the Constitution and the laws. The decrees
of the Government were not to contradict the Constitution, the laws
and the decisions of the Constitutional Court. They were to regulate
any relations not regulated by the laws, unless those relations,
pursuant to the Constitution and the laws or the edicts and
directives of the President of Armenia, were to be regulated by other
legal acts.
3. The Constitutional Court Act (in force from 8
December 1995 to 1 July 2006)
- Section
64 of the Constitutional Court Act provided that the decisions of the
Constitutional Court were final and not subject to appeal. They
entered into force from the moment of their delivery and had a
binding effect on the territory of Armenia.
4. The Civil Code (in force from 1 January 1999) and
the Land Code (in force from 15 June 2001)
- Articles
218-221 of the Civil Code and Articles 104 and 108 the Land Code, as
in force at the material time, stipulated the conditions for taking
plots of land for the needs of society and the State.
- Article
283 of the Civil Code provided that, if it was impossible to take a
plot of land for the needs of society and the State without
terminating the ownership in respect of buildings, constructions and
other immovable property situated on it, the State could take such
property from the owner by compensating its value.
5. The Immovable Property Act (in force from 25 January
1996 to 1 January 1999)
- The
provisions of the Immovable Property Act, the conformity of which
with the Constitution was examined by the Constitutional Court on 27
February 1998 (see paragraph 33 below), provided:
Section 22: Expropriation of immovable property for
the needs of society and the State
“...[2.] The equivalent amount of
compensation for expropriation of immovable property for the needs of
society and the State is determined by a decree of the Government of
[Armenia] on the basis of the results of the negotiation between the
Government of [Armenia] and the owner of the property subject to
expropriation and upon [the owner's] written consent.
[3.] If the owner of the property disagrees
with the expropriation of the property by the Government of [Armenia]
or the amount of compensation, then the immovable property may be
expropriated by the Government of [Armenia] only through court
proceedings.
[4.] The owner of the immovable property
subject to expropriation for the needs of society and the State must
abstain from causing damage to the immovable property before the
entry into force of the court decision.
[5.] The procedure for expropriation of
immovable property for the needs of society and the State is
established by the Government of [Armenia], pursuant to the
provisions of this Section. ...”
6. The Decision of the Constitutional Court of 27
February 1998 on the Conformity of Paragraphs Two, Three, Four and
Five of Section 22 of the Immovable Property Act adopted by the
National Assembly on 27 December 1995 with Articles 8 and 28 of the
Constitution (ՀՀ
սահմանադրական
դատարանի 1998 թ.
փետրվարի 27-ի
որոշումը Ազգային
ժողովի կողմից
1995 թ.
դեկտեմբերի
27-ին ընդունված
«Անշարժ գույքի
մասին» ՀՀ օրենքի
22 հոդվածի երկրորդ,
երրորդ, չորրորդ
և հինգերորդ
մասերի` ՀՀ
սահմանադրության
8 հոդվածին և 28
հոդվածի երկրորդ
մասին համապատասխանության
հարցը որոշելու
վերաբերյալ
գործով)
- When
deciding on the conformity of paragraphs 2, 3, 4 and 5 of Section 22
of the Immovable Property Act with, inter alia, Article 28 of
the Constitution, the Constitutional Court provided the following
interpretation of that provision. Since the phrases “for the
needs of society and the State” and “only in exceptional
cases” were concepts requiring assessment and concerned a
fundamental constitutional right, the Constitution stipulated that
expropriation of property on such grounds could be carried out only
on the basis of a law, thereby creating necessary legislative
safeguards. The phrase “on the basis of a law” implied
not a normative legal act which regulated the expropriation procedure
in general, but a law pursuant to which the property in question was
to be expropriated. Thus, a person's property could be expropriated
and – in the absence of his consent – his ownership could
be terminated by the State only through the adoption of a law in
respect of the concrete immovable property, which would substantiate
the exceptional importance and significance of the expropriation and
which would indicate the needs of society and the State to be
satisfied by the expropriation. The law would also oblige the
Government to fix the amount of compensation, taking market prices
into account, on the basis of a financial-economic assessment, the
results of the negotiation between the Government and the owner of
the property subject to expropriation, and upon the owner's written
consent. The Government was not entitled to establish a procedure for
expropriation of property for the needs of society and the State that
would authorise it to expropriate immovable property.
7. Government Decree no. 1151-N of 1 August 2002
Concerning the Implementation of Construction Projects Within the
Administrative Boundaries of the Kentron District of Yerevan (ՀՀ
կառավարության
2002 թ. օգոստոսի
1-ի թիվ 1151-Ն որոշումը
Երևանի Կենտրոն
թաղային համայնքի
վարչական սահմանում
կառուցապատման
ծրագրերի իրականացման
միջոցառումների
մասին)
- For
the purpose of implementation of construction projects in Yerevan,
the Government decided to approve the expropriation zones of the
immovable property (plots of land, buildings and constructions)
situated within the administrative boundaries of the Central District
of Yerevan to be taken for the needs of the State, with a total area
of 345,000 sq. m. Byuzand Street was listed in Annex 2 to this Decree
as falling within these expropriation zones.
- The
Mayor of Yerevan was instructed to determine the boundaries of the
plots of land to be taken for the needs of the State and to register
them at the Real Estate Registry. The owners and users of the
immovable property situated within the expropriation zones were to be
informed about the deadlines, sources of financing and the procedure
for taking their immovable property. Valuation of the immovable
property in question was to be organised and carried out by the
relevant licensed organisations.
B. The domestic provisions related to the right of use
of accommodation
1. The Housing Code (in force from 1 July 1983 to 26
November 2005)
- Article
54 provided that members of the tenant's family included his spouse,
their children and their parents. Other persons could be recognised
as the tenant's family members, if they lived with him or her and ran
a common household.
- Article
120 provided that family members of the owner of a house, whom the
owner had accommodated in his or her house, had the right, equally
with him or her, to use the accommodation, if no reservations had
been made at the time when the family members were accommodated.
Persons mentioned in the first sentence of Article 54 of this Code
were considered as members of the owner's family. These persons were
to continue to enjoy the right of use of accommodation even in case
of disruption of family ties with the owner.
2. The Civil Code (in force from 1 January 1999)
- Article
135, which concerns State registration of property rights, provides
that the right of ownership and other property rights in respect of
immovable property, including the right of use, are subject to State
registration.
- Chapter
14 of the Civil Code entitled “Ownership of Accommodation and
Other Property Rights” contained specific provisions related to
the right of use of accommodation which, at the material time, read
as follows:
Article 225: The right of use of accommodation
“1. The family members of the owner of
accommodation and other persons have the right of use of
accommodation, if that right has been registered in accordance with
the procedure prescribed by the Law on the State Registration of
Rights in Respect of Property.
2. The origination, implementation and
termination of the right of use of accommodation are stipulated by a
notarised written agreement concluded with the owner.
If no agreement is reached concerning the termination of
the right of use of accommodation, that right can be terminated upon
the owner's request by a court through payment of compensation
equivalent to the market value.
3. The right of use of accommodation may not
be an object of sale or purchase, mortgage and lease.
4. The person enjoying the right of use of
accommodation may demand from anybody, including the owner, to
redress the violations of his [or her] right in respect of the
accommodation.
5. The right of use of accommodation does not
terminate in case of transfer of ownership in respect of a house or a
flat to another person, except when the person enjoying the right of
use of accommodation has undertaken a notarised obligation to give up
that right prior to the transfer of ownership.”
- The
above Article 225 was amended following the circumstances of the
present case, namely on 4 October 2005, and its fourth paragraph read
as follows:
“4. The amount of compensation for a
one-month period is determined on the basis of the amount of rent
payable for given accommodation at the moment of termination of the
right [of use] and is calculated the following way: for each person,
whose right of accommodation is registered, the area [is calculated]
by means of dividing the living area by the total number of persons
enjoying the right of gratuitous use of accommodation and the owners,
but [should not be] less than five or more than nine square metres.
The compensation is calculated for a period of three
years and is paid at once, unless agreed otherwise by the parties.”
3. The Law on the State Registration of Rights in
Respect of Property (in force from 6 May 1999)
- Section
41 of the Law on the State Registration of Rights in Respect of
Property provides that rights of spouses, children and other
dependants in respect of property, which are conferred on them by
law, are effective even if they have not been registered separately.
4. The Children's Rights Act (in force from 27 June
1996)
- Section
16 of the Children's Rights Act provides that a child family member
of the tenant or owner of accommodation, regardless of his or her
place of residence, has the right to live in the accommodation
occupied by that tenant or owner.
5. The Family Code (in force from 19 April 2005)
- Article
47 of the Family Code provides, inter alia, that a child has
no ownership in respect of his or her parents' property, while the
parents have no ownership in respect of the child's property.
Children and parents living together may dispose of and use each
other's property by mutual agreement.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicants complained that the deprivation of their possessions was
in violation of the guarantees of Article 1 of Protocol No. 1, which
reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The Government submitted that the second applicant
could not claim to be a victim of an alleged violation of Article 1
of Protocol No. 1 because she did not have any “possessions”
within the meaning of that provision.
- The Court considers that the Government's objection
regarding the second applicant's victim status is closely linked to
the substance of her complaint under Article 1 of Protocol No. 1, and
should be joined to the merits.
- The Court notes that the applicants' complaints under
Article 1 of Protocol No. 1 are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further
notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. Whether the second applicant had “possessions”
within the meaning of Article 1 of Protocol No. 1
(a) The parties' submissions
- The
second applicant submitted that she enjoyed the right of use of
accommodation in respect of the flat owned by the first applicant.
There was well-established case-law of the appeal and cassation
courts in Armenia which, pursuant to Articles 54 and 120 of the
Housing Code, recognised the right of use of accommodation based on
three factors: (1) being a member of the family of the owner of
the accommodation, (2) living in that accommodation, and (3)
running a joint household with the owner. All these three factors,
which were not to be applied cumulatively, existed in her case.
Moreover, her enjoyment of that right was not disputed in the course
of the domestic proceedings.
- Admitting
that her right of use of accommodation was not registered at the Real
Estate Registry, the second applicant submitted that that right was
valid even without State registration since, pursuant to Section 41
of the Law on the State Registration of Rights in Respect of
Property, rights of spouses, children and other dependants in respect
of property, which were conferred on them by law, were effective
without such registration. In any event, she was not able to register
that right, even if she wanted to, because Government Decree no.
1151-N had placed limitations on the flat in question which precluded
any transactions from being registered at the Real Estate Registry.
- The
second applicant further submitted that it was explicitly stated in
the draft agreement on taking property presented by the plaintiff to
the domestic courts that “The implementer awards the registered
person financial incentive for terminating her rights and vacating
the immovable property”. Thus, the authorities recognised the
existence of a valuable right which they sought to terminate through
signing the above agreement. Furthermore, the right of use of
accommodation was considered a property right under the Armenian law.
It was an autonomous right which existed independently from the right
of ownership and could be terminated only through the payment of
adequate compensation. It therefore constituted an asset which was to
be regarded as a “possession” within the meaning of
Article 1 of Protocol No. 1.
- The
Government submitted that the second applicant did not enjoy any
property rights in respect of the flat owned by the first applicant,
including the right of use of accommodation. The latter right,
pursuant to Article 225 of the Civil Code, could arise only from the
moment of State registration. However, there was no evidence to show
that the second applicant had such a right registered at the Real
Estate Registry. Thus, the only right enjoyed by the second applicant
was the right to live in the flat in question, pursuant to Article 47
of the Family Code and Section 16 of the Children's Rights Act. This
right, however, could not be considered as “possessions”
within the meaning of Article 1 of Protocol No. 1.
(b) The Court's assessment
- The
Court notes at the outset that the main disagreement between the
parties concerns the question whether the second applicant enjoyed
the right of use of accommodation in respect of the flat owned by the
first applicant. In support of their arguments the parties referred
to various domestic legal provisions.
- In
this respect, the Court observes that the domestic courts, when
deciding to terminate the applicants' rights in respect of the flat
in question, made reference, inter alia, to the second
paragraph of Article 225 of the Civil Code which stipulates the
conditions for termination of the right of use of accommodation.
Thus, the enjoyment by the second applicant of the right of use of
accommodation was implicitly acknowledged by the domestic courts,
which decided to award her compensation for the termination of that
right. It follows that the Government's assertions to the contrary
have no basis in the findings of the domestic courts and must be
dismissed.
- While
it is not in dispute between the parties whether the right of use of
accommodation constitutes “possessions” within the
meaning of Article 1 of Protocol No. 1, the Court, nevertheless,
considers it necessary to address this question of its own motion.
- The
Court reiterates that the concept of “possessions” in the
first part of Article 1 of Protocol No. 1 has an autonomous meaning
which is not limited to the ownership of material goods and is
independent from the formal classification in domestic law. In the
same way as material goods, certain other rights and interests
constituting assets can also be regarded as “property rights”
and thus as “possessions” for the purposes of this
provision. In each case the issue that needs to be examined is
whether the circumstances of the case, considered as a whole,
conferred on the applicant title to a substantive interest protected
by Article 1 of Protocol No. 1 (see Iatridis v. Greece [GC],
no. 31107/96, § 54, ECHR 1999 II; Beyeler v. Italy
[GC], no. 33202/96, § 100, ECHR 2000 I; and Broniowski
v. Poland [GC], no. 31443/96, § 129, ECHR 2004 V).
- The
Court observes that under the Armenian law the right of use of
property is a distinct right listed among other property rights (see
the domestic provisions cited in paragraphs 38 and 39 above). At the
material time, a person having the right of use of accommodation
continued to enjoy that right even in case of transfer of ownership
in respect of the accommodation in question (Article 225 § 5 of
the Civil Code). Furthermore, that right could be terminated only
through payment of an adequate compensation (Article 225 § 2 of
the Civil Code). The Court therefore considers that the right of use
of accommodation enjoyed by the second applicant in respect of the
flat owned by the first applicant was a distinct property right which
involved a pecuniary interest and therefore constituted a
“possession” within the meaning of Article 1 of Protocol
No. 1. The fact that the second applicant was paid a sum of
money as a result of the expropriation proceedings only reaffirms the
Court's foregoing finding. Having reached this conclusion, the Court
considers that the Government's objection regarding the applicant's
victim status must be dismissed.
2. Whether there was an interference with the
applicants' possessions
- It
was not in dispute between the parties that there had been an
interference with the first applicant's peaceful enjoyment of her
possessions.
- As
regards the second applicant, the Government submitted that, since
the only right enjoyed by her was the right to live in the flat in
question, there was no interference with her rights guaranteed by
Article 1 of Protocol No. 1.
- Having
already established that the second applicant had “possessions”
within the meaning of Article 1 of Protocol No. 1 (see paragraph 56
above), the Court considers that the termination of the first
applicant's ownership and the second applicant's right of use in
respect of the flat in question for the purpose of implementing
construction projects in the centre of Yerevan undoubtedly amounted
to an interference with the applicants' peaceful enjoyment of their
possessions.
3. Whether the interference with the applicants'
possessions was justified
(a) The applicable rule
- Article
1 of Protocol No. 1 comprises three distinct rules: the first rule,
set out in the first sentence of the first paragraph, is of a general
nature and enunciates the principle of the peaceful enjoyment of
property; the second rule, contained in the second sentence of the
first paragraph, covers deprivation of possessions and subjects it to
certain conditions; the third rule, stated in the second paragraph,
recognises that the Contracting States are entitled, inter alia,
to control the use of property in accordance with the general
interest. The three rules are not, however, distinct in the sense of
being unconnected. The second and third rules are concerned with
particular instances of interference with the right to peaceful
enjoyment of property and should therefore be construed in the light
of the general principle enunciated in the first rule (see, as a
recent authority, Broniowski v. Poland [GC],
no. 31443/96, § 134, ECHR 2004-V).
- The
Court considers that the termination of the first applicant's
ownership and the second applicant's right of use amounted to a
deprivation of their possessions. Accordingly, it is the second
sentence of the first paragraph of Article 1 of Protocol No. 1 which
is applicable in the instant case.
(b) Compliance with the conditions laid
down in the second sentence of the first paragraph
(i) The parties' submissions
- The
applicants submitted that the deprivation of the first applicant's
possessions was not carried out under “conditions provided for
by law”, namely Article 28 of the Constitution as in force at
the material time. That provision provided that property could be
expropriated “for the needs of society and the State in
exceptional cases of paramount public interest, on the basis of a law
and with prior equivalent compensation”. When interpreting that
provision in its decision of 27 February 1998 the Constitutional
Court stated that a person could be deprived of his property only
through the adoption of a law in respect of a concrete immovable
property, which would substantiate the exceptional importance of the
expropriation and which would indicate the needs of society and the
State to be satisfied by the expropriation. The Constitutional Court
further stated that the Government was not entitled to establish a
procedure for the expropriation of property for the needs of society
and the State.
- However,
no law was adopted in connection with the expropriation of the first
applicant's property and the entire expropriation process was based
on a number of Government decrees. Nor were the other conditions of
the above Article 28 met. In particular, no needs of society or the
State were mentioned in Government Decree no. 1151-N or the relevant
provisions of the Civil Code and the Land Code. Furthermore, the
first applicant was not offered a “prior equivalent
compensation”, while the amount of compensation offered to the
second applicant was determined in an arbitrary manner. Lastly, the
deprivation of the first applicant's property was in violation of the
then Article 5 of the Constitution, since the Government exceeded its
authority by unlawfully establishing the expropriation and valuation
procedures, and granting itself extensive powers to expropriate
property.
- The
applicants further submitted that the deprivation of the second
applicant's possessions was also not carried out under “conditions
provided for by law”, namely Article 225 of the Civil Code.
According to that provision, only the owner of a property could claim
the termination of the right of use enjoyed by another person in
respect of that property. In the present case, however, it was the
Government that initiated the proceedings seeking to terminate the
second applicant's right of use and therefore there was no legal
basis to grant this claim.
- The
Government submitted that Article 28 of the Constitution was not
applicable to the first applicant's case. That provision applied only
to property which was subject to expropriation for the needs of
society and the State. According to Articles 218-221 and 283 of the
Civil Code and Articles 104 and 108 of the Land Code, only plots
of land fell into the category of property subject to expropriation
for the needs of society and the State, but not the immovable
property situated on that land. The termination of ownership of
private persons in respect of houses or other constructions was
therefore the result of the State taking land which belonged to it.
In the present case, the first applicant did not own land but only a
flat in the building situated on a plot of land which had to be taken
for the needs of society and the State. Thus, her flat could not be
considered as an object of expropriation for those needs and the
compensation paid to her was to be viewed as damage awarded as a
result of expropriation of the plot of land. In sum, Article 28 of
the Constitution was not applicable to the present case.
(ii) The Court's assessment
- The
Court reiterates that the first and most important requirement of
Article 1 of Protocol No. 1 is that any interference by a public
authority with the peaceful enjoyment of possessions should be
lawful: the second sentence of the first paragraph authorises a
deprivation of possessions only “subject to the conditions
provided for by law” and the second paragraph recognises that
the States have the right to control the use of property by enforcing
“laws”. Moreover, the rule of law, one of the fundamental
principles of a democratic society, is inherent in all the Articles
of the Convention (see Former King of Greece and Others v. Greece
[GC], no. 25701/94, § 79, ECHR 2000 XII). It follows
that the issue of whether a fair balance has been struck between the
demands of the general interest of the community and the requirements
of the protection of the individual's fundamental rights (see
Sporrong and Lönnroth v. Sweden, 23 September 1982,
§ 69, Series A no. 52) becomes relevant only once it has been
established that the interference in question satisfied the
requirement of lawfulness and was not arbitrary (see Iatridis v.
Greece [GC], no. 31107/96, § 58, ECHR 1999 II).
- The
Court further reiterates that the phrase “subject to the
conditions provided for by law” requires in the first place the
existence of and compliance with adequately accessible and
sufficiently precise domestic legal provisions (see Lithgow and
Others v. the United Kingdom, 8 July 1986, § 110,
Series A no. 102).
- Turning
to the circumstances of the present case, the Court notes that the
first and the second applicants enjoyed and were deprived of two
distinct rights, that of ownership and that of use of accommodation.
The Court will therefore examine the question of compliance with the
guarantees of Article 1 of Protocol No. 1 in respect of each
applicant separately.
(α) The first applicant
- The
Court observes that the first applicant was the owner of a flat which
measured 26 sq. m. and was part of a building situated at 9 Byuzand
Street in the centre of Yerevan. On 1 August 2002 the Government of
Armenia adopted a decree, namely Decree no. 1151-N, deciding to
expropriate the immovable property, such as plots of land, buildings
and constructions, situated in certain central areas of Yerevan which
were identified as “expropriation zones”. This property
was to be expropriated for the purpose of carrying out construction
projects in Yerevan and Byuzand Street was listed as falling within
one of these expropriation zones.
- The
Court further observes that, at the material time, the main domestic
legal provision regulating the expropriation of property for public
needs was Article 28 of the Constitution. The Government argued that
this provision was not applicable to the first applicant's case. The
Court, however, is not convinced by this argument. It notes that the
first applicant was deprived of her property on the basis of an
application lodged with the courts by a private company acting on
behalf of the State for the purpose of implementation of Government
Decree no. 1151-N. Hence, her ownership in respect of her flat was
terminated for no other purpose than implementing the Government
policy of carrying out construction projects in the centre of
Yerevan. Furthermore, the domestic courts explicitly stated in their
judgments that the first applicant's ownership was being terminated
because the land on which her property was situated was to be taken
for State needs. Here the Court does not share the Government's
interpretation, according to which only the land but not the property
situated on it should be considered as an object of expropriation.
Moreover, it is not clear on what grounds the Government make such an
assertion given that in the instant case the plot of land in question
was public property and the only private property which was being
taken by the State was that owned by the first applicant. Thus, the
first applicant's case clearly falls into the category of situations
covered by Article 28 of the Constitution.
- The
Court observes that one of the requirements of that constitutional
provision, which had supremacy over all other legal acts, was that
any expropriation of property for public needs be carried out “on
the basis of a law”. When interpreting this phrase in its
decision of 27 February 1998 the Constitutional Court,
whose decisions had binding effect, pointed out, in particular, that
private property could be expropriated for public needs only through
the adoption of a law in respect of the concrete property. Moreover,
the word “law” (օրենք),
as used by the Constitutional Court, denoted not just any legal act
but a statute adopted by the parliament, thereby reserving the
question of decision-making on specific cases of expropriation for
public needs to the legislature. This interpretation was further
reinforced by the Constitutional Court's finding that the Government,
that is the executive branch, was not authorised to decide on the
expropriation of private property for public needs (see paragraph 33
above).
- Turning
to the circumstances of the present case, the Court observes that no
law was ever adopted by the Armenian parliament in respect of the
first applicant's property, as required by Article 28 of the
Constitution, and the entire expropriation process, including the
procedure for determination of the amount of compensation, was
governed by a number of Government decrees. It follows that the
deprivation of the first applicant's property was not carried out in
compliance with “conditions provided for by law”.
(β) The second applicant
- The
Court observes that the second applicant enjoyed the right of use in
respect of the flat owned by the first applicant and this right was
terminated by the courts with reference to second paragraph of
Article 225 of the Civil Code.
- The
Court reiterates that the requirement of lawfulness means that rules
of domestic law must be sufficiently accessible, precise and
foreseeable (see, among other authorities, Hentrich v. France,
22 September 1994, § 42, Series A no. 296 A;
Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR
2000 I; and Carbonara and Ventura v. Italy, no. 24638/94,
§ 64, ECHR 2000 VI).
- The
Court notes that the above Article 225 § 2 contained rules on
termination of a person's right of use of accommodation. Those rules,
however, spoke of the possibility of terminating the right of use
upon the owner's request and contained no mention whatsoever
of terminating that right upon an application lodged by any person
other than the owner, be it the State or, like in the present case, a
private company acting on behalf of the State. Thus, it appears that
the second applicant's right of use was terminated with reliance on
legal rules which were not applicable to her case. The Court
considers that such termination of her right of use was bound to
result in an unforeseeable or arbitrary outcome and must have
deprived the second applicant of effective protection of her rights.
It therefore cannot but describe the interference with the second
applicant's possessions on such a legal basis as arbitrary.
(γ) Conclusion
- The
Court concludes that the deprivation of the applicants' possessions
was incompatible with the principle of lawfulness. This conclusion
makes it unnecessary to ascertain whether a fair balance has been
struck between the demands of the general interest of the community
and the requirements of the protection of the individual's
fundamental rights (see, for example, Iatridis v. Greece [GC],
no. 31107/96, § 62, ECHR 1999 II).
- There
has accordingly been a violation of Article 1 of Protocol No. 1 in
respect of both applicants.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that they had been placed at a substantial
disadvantage vis-à-vis their opponent, because Glendale Hills
CJSC was able to submit a valuation report in support of its
arguments concerning the amount of compensation, while the first
applicant's motion requesting a commodity expert opinion was
arbitrarily rejected by the Civil Court of Appeal. The applicants
relied on Article 6 § 1 of the Convention which, in so far as
relevant, provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Court notes that the applicants did not submit any evidence in
support of this complaint, such as copies of the alleged motion or of
the Court of Appeal's alleged rejection of that motion. The Court
observes that the case file as it stands contains no evidence to
suggest that the trial was conducted in violation of the guarantees
of Article 6 § 1 of the Convention.
- The
Court concludes that this complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that the deprivation of their possessions
amounted also to a violation of Article 8 of the Convention which
provides:
“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.”
- Having
regard to the conclusion reached on the applicants' complaint under
Article 1 of Protocol No. 1 (see paragraphs 76 and 77 above), the
Court does not need to examine their complaint under Article 8 of the
Convention, for which reason it must be rejected pursuant to
Article 35 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
first applicant claimed a total amount of 150,150 euros (EUR) in
respect of pecuniary damage. This amount was comprised of the market
value of the flat amounting to EUR 133,467 and the loss of income
amounting to EUR 16,683.
- As
regards the calculation of these amounts, the applicants alleged that
they were unable to obtain any information from public authorities
necessary for the effective presentation of their claims, because of
public officials having economic interests in the construction
projects and therefore blocking any access to the relevant official
information. Nor was it possible to order an independent valuation of
the expropriated property, since the valuation companies, being
licensed by the authorities, feared reprisals, including a possible
withdrawal of a licence, and refused to provide information.
- In
view of the above, according to the first applicant, the market value
of the expropriated flat was to be calculated using the method of
capitalisation of income and would therefore amount to AMD
62,400,000, which, according to the applicable exchange rate, was
equivalent to EUR 133,467.
- The
first applicant further submitted she could have rented out her flat
since May 2005, had it not been expropriated, for AMD 10,000 per
square metre. Thus, her loss of income from that date until the
submission of the claim for just satisfaction, namely November 2005,
amounted to AMD 7,800,000 which, according to the applicable exchange
rate, was equivalent to EUR 16,683.
- The
second applicant argued that the amount of compensation payable to
her was to be calculated pursuant to the formula prescribed by the
amended Article 225 of the Civil Code (see paragraph 40 above). Based
on such a calculation, she claimed EUR 6,930 in respect of pecuniary
damage, the Armenian equivalent of that sum, according to the
applicable exchange rate, amounting to AMD 3,240,000.
- The
applicants also claimed EUR 25,000 for non-pecuniary damage and EUR
1,700 for costs and expenses.
- The
Government did not comment on these claims.
- The
Court considers that the question of the application of Article 41
is not ready for decision. The question must accordingly be reserved
and the further procedure fixed with due regard to the possibility of
agreement being reached between the Government and the applicants.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the Government's
objection concerning the second applicant's victim status and to
dismiss it;
- Declares the complaint concerning the
deprivation of the applicants' possessions admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds that the question of the application of
Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question;
(b) invites
the Government and the applicants to submit, within the three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 23 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
