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THIRD
SECTION
CASE OF MINASYAN AND SEMERJYAN v. ARMENIA
(Application
no. 27651/05)
JUDGMENT
(Just
satisfaction)
STRASBOURG
7 June
2011
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,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Mihai Poalelungi, judges,
and
Santiago Quesada,
Registrar,
Having
deliberated in private on 17 May 2011,
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.
- In
a judgment delivered on 23 June 2009 (“the principal
judgment”), the Court held that deprivation of the applicants’
possessions had not been compatible with the principle of lawfulness
and that, consequently, there had been a violation of Article 1 of
Protocol No. 1 (see paragraphs 69-77 of the principal judgment).
- Under
Article 41 of the Convention the first applicant, as the owner of the
flat, sought compensation corresponding to the value of the flat on
the date of the Court’s judgment, amounting to 133,467 euros
(EUR), and the loss of income, amounting to EUR 16,683. The second
applicant, who enjoyed a right of use in respect of the flat, sought
pecuniary damages of EUR 6,930. They also sought non-pecuniary
damages of EUR 25,000 and costs and expenses.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicants to submit, within three months from the
date on which the judgment became final in accordance with
Article 44 § 2 of the Convention, their written
observations on that issue and, in particular, to notify the Court of
any agreement they might reach (see paragraph 91 of the principal
judgment and point 4 (a) and (b) of the operative provisions).
- The
applicants and the Government each filed observations.
THE LAW
- 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.”
A. Damage
1. Pecuniary damage
(a) The applicants’ submissions
- The
first applicant maintained her claim of EUR 133,467. She argued that
the assessment of the compensation was to be based on the value of
her flat during the period when the Court found a violation of
Article 1 of Protocol No. 1, namely 23 June 2009, and alleged that
the market value per square metre in buildings in the area in
question during that period fluctuated between 4,000 United States
dollars (USD) and USD 7,000 (approximately EUR 2,880 and EUR 5,040 at
the material time). In support of this claim the first applicant
relied on several documents:
(a) a
letter dated 19 November 2007 from a private real estate company,
according to which a square metre on the ground floor – the
so-called commercial space – in newly constructed buildings in
the area in question cost between USD 7,000 and USD 10,000
(approximately EUR 4,770 and EUR 6,820 at the material time) and on
the first and higher floors – the so-called office space –
between USD 3,000 and USD 5,000 (approximately EUR 2,045 and EUR
3,410 at the material time);
(b) a
valuation report by another private real estate company dated
28 August 2008 of a specific flat measuring 185.2 sq. m situated
on the ground floor on a nearby street and having a basement
measuring 159.8 sq. m, according to which a square metre of
the ground floor space as of 28 February 2008 cost 1,830,375 Armenian
drams (AMD) (approximately EUR 3,960 at the material time). According
to that report a square metre of comparable property on nearby
streets, based on newspaper advertisements and the company’s
own database, cost between AMD 2,000,000 and AMD 2,500,000
(approximately EUR 4,325 and EUR 5,405 at the material
time);
(c) a
real estate sale/purchase contract concluded on 8 June 2007 between
two third parties in respect of a flat measuring 26.8 sq. m
and situated on a nearby street, according to which a square metre of
the property in question cost about AMD 1,634,890 (approximately EUR
3,500 at the material time); and
(d) a
letter dated 20 April 2010 from another private real estate company,
according to which the cost per square metre on the ground floor in
newly constructed buildings in the area in question fluctuated
between AMD 710,000 and AMD 2,200,000 (approximately
EUR 1,340 and EUR 4,145 at the material time).
- The
first applicant argued that, since her flat was situated on the
ground floor, it could easily have been transformed into office space
and could have been enlarged by means of a basement, which
substantially raised its market value. She also argued that she was
unable to submit any valuation of the market price of her property as
at the date of expropriation because valuation companies refused to
value property which had been demolished and no longer existed.
- The
first applicant further sought EUR 26,683 for lost income,
claiming that she could have let the flat for that total amount since
May 2005, had it not been expropriated.
- The
second applicant sought EUR 13,000. This amount was calculated
based on the formula prescribed by the amended Article 225 of the
Civil Code, which – following the circumstances of the present
case – introduced a new method of calculation of the amount of
compensation for termination of the right of use (see paragraph 40 of
the principal judgment).
(b) The Government’s submissions
- The
Government, relying on the valuation report which provided basis for
calculating the compensation awarded by the domestic courts (see
paragraph 13 of the principal judgment), submitted that the market
value per square metre of the expropriated flat as of 27 November
2004, that is around the period when an offer was made to the
applicants, amounted to USD 269.2 (approximately EUR 200 at the
material time). Based on that assessment, a total of USD 7,000
(approximately EUR 5,265 at the material time) was offered to the
first applicant as compensation, plus – if she agreed to give
up the flat within the next few days – USD 6,720 (approximately
EUR 5,055 at the material time) as a financial incentive.
- The
Government further submitted that the average market value per square
metre of a flat similar in size, location and quality to the
expropriated flat as at 21 April 2010 amounted to AMD 320,000 or
USD 820 (approximately EUR 600 at the material time). In support
of this submission the Government relied on a letter dated 21 April
2010 apparently from a private real estate company which indicated
the above sums as the probable price per square metre of a flat on
Byuzand Street measuring 26 sq. m.
- The
Government also provided a description of the expropriated flat with
reference to the above-mentioned valuation report, according to which
the flat was situated in an apartment building constructed in 1905.
It had a toilet but no bathroom. The partitions between the floors of
the building were made of wood and filled with earth. The building
was on an official list of buildings having third degree damage which
meant that substantial renovation was required to make possible its
further exploitation.
- The
Government further claimed that the market value of the right of use
in respect of a square metre of the expropriated flat, if shared by
two persons, as of 27 November 2004 amounted to USD 1.5, while
as of April 2010 – to AMD 60,000 (approximately
EUR 115 at the material time).
- The
Government lastly submitted that real estate prices between the
period when a price offer was made to the applicants and April 2010
grew by three to six times and more, depending on the location, size
and quality of the property. In this particular case, the growth
amounted to about 300% from USD 269.2 to USD 820.
(c) The Court’s assessment
- The
Court has held on a number of occasions that a judgment in which it
finds a breach imposes on the respondent State a legal obligation to
put an end to the breach and make reparation for its consequences in
such a way as to restore as far as possible the situation existing
before the breach (see Iatridis v. Greece (just satisfaction)
[GC], no. 31107/96, § 32, ECHR 2000-XI). The Contracting States
that are parties to a case are in principle free to choose the means
whereby they will comply with a judgment in which the Court has found
a breach. This discretion as to the manner of execution of a judgment
reflects the freedom of choice attached to the primary obligation of
the Contracting States under the Convention to secure the rights and
freedoms guaranteed (Article 1). If the nature of the violation
allows of restitutio in integrum it is the duty of the State
held liable to effect it, the Court having neither the power nor the
practical possibility of doing so itself. If, however, national law
does not allow – or allows only partial – reparation to
be made for the consequences of the breach, Article 41 empowers
the Court to afford the injured party such satisfaction as appears to
it to be appropriate (see Brumărescu v. Romania (just
satisfaction) [GC], no. 28342/95, § 20, ECHR 2001 I).
- In
the present case, a violation of Article 1 of Protocol No. 1 was
found in respect of the first applicant on the ground that the entire
expropriation process, including the procedure for determination of
the amount of compensation, was unlawful (see paragraphs 69-72 of the
principal judgment). The Court notes that no restitution in
integrum is possible due to the demolition of the flat.
Furthermore, it appears that it has not been possible to compensate
the first applicant’s loss through provision of a similar flat.
Consequently, the Court considers that an award for pecuniary damage
must be made.
- In
this respect, the Court notes that it faces a unique situation of
unlawful dispossession in which the first applicant, in contrast to
other cases of unlawful dispossession, was actually offered, in
December 2004, a sum of money as compensation for the taking of her
flat. This sum consisted of the alleged market value of the flat at
the material time, namely USD 7,000 (approximately EUR 5,265
at the material time), and a financial incentive in the amount of
USD 6,720 (approximately EUR 5,055 at the material time)
which was to be paid to her on the condition that she agreed to hand
over her property within five days following the offer. The
applicant, who declined the offer, was eventually awarded USD 7,000
in May 2005.
- The
Court does not have sufficient material at its disposal which would
enable it to conclude that the sum awarded to the first applicant had
been adequate and reflected the market value of her flat. The first
applicant alleged that it had not. Taking into account that this sum
was determined according to a procedure which was found to be
unlawful, the Court cannot rule out the possibility that this may
have led to an inadequate award. In any event, the Court notes that,
since the expropriated flat no longer exists, it is impossible to
calculate precisely the amount of the pecuniary damage. Therefore,
the assessment of any such damage will have to be made on an
equitable basis.
- Having
regard to the relevant principles established in its case-law, the
Court considers that, in the particular circumstances of the case,
the most appropriate and fair solution would be to award the probable
value of the flat at the material time converted to current value to
offset the effects of inflation, less the sum already awarded at the
domestic level. Making such estimate based on all the materials at
its disposal, the Court assesses the amount of the pecuniary damage
at EUR 8,000. The Court further considers that this amount must
be awarded to the applicants jointly since, according to Article 225
of the Civil Code as in force at the material time, the right of use
enjoyed by the second applicant was equivalent to a corresponding
share in the first applicant’s flat. Consequently, the Court
decides to reject the second applicant’s claim based on the
formula contained in the amended Article 225.
- The
Court lastly notes that the first applicant also claimed damages for
lost income, such as potential lost rent. It considers, however, that
this particular claim is of a speculative nature and must be
rejected.
2. Non-pecuniary damage
- The
first applicant claimed EUR 40,000 and the second applicant
claimed EUR 20,000 in respect of non-pecuniary damage.
- The
Government did not comment on these claims.
- The
Court considers that the feelings of powerlessness and frustration
arising from the unlawful deprivation of their possessions has caused
the applicants non-pecuniary damage that should be compensated in an
appropriate manner. Ruling on an equitable basis, as required by
Article 41 of the Convention, it decides to award EUR 2,000 to
each of the applicants under this head, or EUR 4,000 in total.
B. Costs and expenses
- The
applicants claimed EUR 2,800 for costs and expenses, including
EUR 2,500 lawyer’s fees and EUR 300 postal charges.
They submitted a contract of legal services signed with their lawyer
and a detailed time-sheet in support of this claim.
- The
Government did not comment on this claim.
- The
Court reiterates that legal costs are only recoverable in so far as
they relate to the violation found (see Beyeler v. Italy [GC],
no. 33202/96, § 27, ECHR 2000-I). It notes that in the
present case the application also concerned complaints which were
declared inadmissible (see paragraphs 78-82 of the principal
judgment). Therefore, the claim cannot be allowed in full and a small
reduction must be applied. Ruling on an equitable basis, the Court
awards the applicants EUR 2,500 for all costs and expenses
incurred.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into Armenian drams at the
rate applicable at the date of settlement:
(i) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage;
(ii) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(iii) EUR
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Registrar President
