Communicated on 17 April 2014
THIRD SECTION
Application no. 66328/12
Gevorg DNGIKYAN
against Armenia
lodged on 1 October 2012
STATEMENT OF FACTS
The applicant, Mr Gevorg Dngikyan, is an American national, who was born in 1951 and lives in Los Angeles. He is represented before the Court by Mr T. Atanesyan, a lawyer practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Background to the case
The applicant was born in Armenia and grew up in a house in Yerevan which had been built by his grandfather in the 1940s. After the grandfather’s death the applicant’s uncle lived with his family on the first floor of the house while the applicant’s family lived on the second floor. The entrance to the house is common and there is a common plot of land adjacent to it.
In the 1970s the applicant’s uncle sold the first floor of the house to M.G.
The applicant later moved to the United States with his father who died there in 1993, leaving all his property to the applicant.
In 1997 the applicant submitted his father’s will to the notary in Armenia and obtained title in respect of the second floor of the house.
In 2003 M.G. sold the first floor of the house to E.T. who registered her title in respect of the first floor. She also obtained a right of common ownership in respect of the adjacent land.
It appears that E.T. and her family carried out construction works in the house and on the plot of land adjacent to it, modifying both the house and the surrounding territory. They have built and are running a restaurant there.
The first set of civil proceedings
On an unspecified date the applicant lodged a civil claim against E.T., M.G. and the State Real Estate Registry seeking to annul E.T.’s title in respect of the first floor and the adjacent land, oblige her to demolish the buildings constructed without permission and recover the stone wall that she had destroyed. E.T. in her turn lodged a counterclaim against the applicant seeking to annul the will and the subsequent registration of his title as regards the plot of land adjacent to the house.
By judgment of 1 July 2003 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան – “the District Court”) partially granted the applicant’s claims and rejected E.T.’s counterclaim.
On 22 August 2003 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) re-examined the case on the merits. It granted the applicant’s claims in their entirety and rejected E.T.’s counterclaim.
E.T. subsequently lodged an appeal on points of law against the judgment of the Civil Court of Appeal.
On 24 October 2003 the Civil and Economic Chamber of the Court of Cassation (ՀՀ վճռաբեկ դատարանի քաղաքացիական և տնտեսական գործերի պալատ) rejected E.T.’s appeal on points of law and upheld the judgment of the Court of Appeal. The judgment of 22 August 2003 thereby became final and binding and a writ of execution was issued in its respect.
On 4 December 2003 enforcement proceedings were instituted by the Department for Execution of Judicial Acts (Դատական ակտերի հարկադիր կատարման ծառայություն - “the DEJA”).
Thereafter the head of the Kentron District Division of the Real Estate Registry (Անշարժ գույքի կադաստրի պետական կոմիտեի Կենտրոն տարածքային ստորաբաժանում) requested the Civil Court of Appeal to clarify the judgment of 22 August 2003.
On 22 October 2004 the Civil Court of Appeal issued a clarification of the above judgment. It stated, in particular, that the title to the plot of land adjacent to the house was to be registered in the applicant’s name. This decision became final and was also submitted for enforcement.
The second set of civil proceedings
On 11 April 2006 the applicant lodged a civil claim against the Kentron District Division of the Real Estate Registry, the DEJA and E.T. seeking to oblige the Real Estate Registry to comply with the requirements of the judgment of the Court of Appeal of 22 August 2003 and the decision of 22 October 2004 concerning its clarification, evict E.T. and other persons who were unlawfully occupying his property and terminate the activity of the restaurant situated therein.
By the judgment of 28 August 2006 the District Court granted the applicant’s claim in its entirety. It stated, in particular, that the applicant’s title was to be registered in respect of the plot of land adjacent to the house and the constructions situated therein, that E.T. and the other persons occupying the applicant’s property were to be evicted and that these persons should terminate the activity of the restaurant.
On 22 December 2006 the Civil Court of Appeal re-examined the case upon an appeal lodged by E.T. and granted the applicant’s claims. In doing so, it stated that the judgment of 22 August 2003 and the decision of 22 October 2004 were not enforced yet since the applicant’s title had not been registered and the constructions had not been demolished. The Court of Appeal went on to state that the non-enforcement of the above judicial acts was in violation of Article 6 of the Convention and Article 1 of Protocol No. 1 in that the applicant’s right to peaceful enjoyment of his possessions was being violated by the illegal occupation of his property by E.T. without the applicant’s permission. This judgment became final and binding on the day of its delivery and on 26 January 2007 enforcement proceedings were instituted in its respect.
The enforcement proceedings
Since 2003 a number of decisions have been made by the bailiffs on obliging E.T. to comply with the requirements of the judgment in the applicant’s favour within certain time-limits. However, each time E.T. has failed to comply with these decisions, for which she has been fined by the bailiffs. It appears that she has also failed to pay the fines.
In 2005 enforcement activities were postponed on the ground that various measures applied in respect of E.T. had been ineffective whereas the DEJA needed to suspend the proceedings in order to conclude a contract with a construction company, given the absence of necessary technical equipment to conduct compulsory construction works. It appears that at some point the proceedings were resumed.
By letter of 25 December 2008 the Minister of Justice informed the applicant’s lawyer that the Kentron District Division of the Real Estate Registry had explained the non-registration of the applicant’s title in respect of his property by the fact that the constructions situated therein had not been demolished whereas the DEJA did not have the necessary construction machinery and work force at its disposal.
It appears that until 2010 other measures were initiated by the DEJA such as obliging the Kentron District Division of the Real Estate Registry to perform the registration of the applicant’s title in accordance with the judgments in his favour or setting new time-limits for E.T. to comply with her obligations. However, it appears that these measures did not lead to the full enforcement of the judicial acts in question.
The criminal proceedings
On an unspecified date the applicant applied to the General Prosecutor’s Office (ՀՀ գլխավոր դատախազություն) seeking to have criminal proceedings instituted against those responsible for not enforcing the judicial acts in question. His request was refused.
Upon the applicant’s complaint, on 3 July 2007 the District Court annulled the decision to refuse the institution of criminal proceedings on the ground that the investigator had not taken proper action to substantiate that the bailiffs had carried out their duties properly with a view to securing the enforcement of the judicial acts in favour of the applicant. As a result, criminal proceedings were instituted against the bailiffs and officials of the Kentron District Division of the Real Estate Registry.
On 26 December 2007 the investigator terminated the proceedings on the ground that the judicial acts in question had not been enforced for objective reasons.
On 25 February 2008 the District Court annulled the decision of 26 December 2007. In doing so, it stated, inter alia, that the investigator had failed to verify the reasons for which for more than four years E.T. and other persons had not been evicted, the constructions on the applicant’s property had not been demolished and the activity of the restaurant had not been terminated even after E.T. had been fined for not complying with the requirements of the judicial acts in question.
The above decision of the District Court was appealed against by the prosecutor.
On 28 April 2008 the Criminal Court of Appeal (ՀՀ վերաքննիչ քրեական դատարան) upheld the decision of 25 February 2008. As a result, the criminal proceedings were resumed on 14 May 2008.
Thereafter, the criminal proceedings were again terminated three times, namely on 14 June 2008, 17 July 2009 and 23 April 2010. The first two decisions were successfully challenged by the applicant in courts, following which the criminal proceedings were re-opened upon court orders. As for the last decision by which the proceedings were once again terminated, the applicant complained about it to the prosecutor but his complaint was dismissed for failure to comply with the time-limits for lodging complaints for supervisory review. According to the applicant, he did not pursue his complaints any further.
It appears that the judicial acts in question, namely the judgments of the Civil Court of Appeal of 22 August 2003 and 22 December 2006 and the ruling of 22 October 2004 remain unenforced today and the enforcement proceedings are still pending.
B. Relevant domestic law
1. The Code of Civil Procedure (in force from 1999)
According to Article 14, a final judicial act is binding upon all state entities, local self-government bodies, their officials, legal entities and citizens and is subject to execution within the entire territory of the Republic of Armenia.
2. The Law on the Enforcement of Judicial Acts (in force from 1 January 1999)
According to Article 62, after having instituted enforcement proceedings on the basis of a writ of execution obliging the judgment debtor to carry out or refrain from carrying out certain activities, the bailiff sets a time-limit for the debtor to comply with his obligations.
Where the judgment debtor does not comply with his obligations within the set time-limit, the bailiff organises the enforcement of the writ of execution by seizing from the debtor three times the amount of enforcement costs incurred.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the continuous non-enforcement of the final judgments of 22 August 2003 and 22 December 2006.
QUESTION TO THE PARTIES
Does the continuing non-enforcement of the final judgments of the Civil Court of Appeal of 22 August 2003 and 22 December 2006 violate the applicant’s rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1?
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