Communicated on 19 May 2014
THIRD SECTION
Application no. 22662/10
Karine KHACHATURYAN
against Armenia
lodged on 19 February 2010
STATEMENT OF FACTS
The applicant, Ms Karine Khachaturyan, is a Russian national who was born in 1958 and lives in Moscow. She is represented before the Court by Mr V. Grigoryan, 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.
1.ººBackground to the case
Since 1995 the applicant had owned a flat measuring 42.7 sq. m situated on the second floor of a multi-storey building at 85 Byuzand Street in the centre of Yerevan (hereinafter - “the first flat”). She also co-owned with her daughters a flat measuring 46.3 sq. m situated on the first floor of the same building (hereinafter - “the second flat”).
On 25 January 2007 the Government adopted Decree no. 108-N (hereinafter - “the Decree”) approving the expropriation zones of territories situated within the administrative boundaries of Yerevan to be taken for State needs and approving the procedure for recording the description of property situated in those territories and the format of the description record. The building at 85 Byuzand Street was not included in the list of addresses of property to be taken for State needs which was appended to the Decree.
2.ººThe proceedings concerning the expropriation of the second flat
On an unspecified date a private entrepreneur, H.B., lodged a claim against the applicant and her daughters seeking to deprive them of ownership of the second flat situated on the first floor of the building at 85 Byuzand Street. In his claim H.B. relied, inter alia, on the Decree to state that he had the right to acquire their property.
On 29 December 2007 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան – “the District Court”) granted H.B.’s claim, stating that the second flat was included in the Decree as property to be taken for State needs and should be alienated to the latter. It appears that this judgment entered into force and became final.
On an unspecified date H.B. lodged another claim against the applicant and her daughters seeking to terminate their right to ownership, recognise his own title in respect of the second flat and evict them.
On 26 May 2008 the District Court granted H.B.’s claims. In doing so, it relied, inter alia, on its above judgment of 29 December 2007. Although the judgment as well as the findings expressed therein concerned the second flat, the District Court concluded that the title in respect of the entire property owned by the applicant and her daughters at 85 Byuzand Street was to be terminated and that H.B.’s title was to be recognised in respect of the entire building situated at this address.
On 16 November 2009 the applicant’s counsel lodged an appeal against the District Court’s judgment of 26 May 2008 complaining in particular about the fact that the applicant had not been duly notified about the date and time of the hearing. Counsel also requested that the missed time-limits for lodging the appeal be restored taking into account that the existence of the judgment had come to their knowledge only at the hearing before the Court of Appeal which had taken place on 16 October 2009 within the framework of other proceedings.
On 23 November 2009 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) declared the appeal inadmissible and refused to restore the missed time-limits. It stated in this regard that the case file did not contain any information on the applicant’s place of registration or residence and that the District Court had summoned the defendants including the applicant several times at the address mentioned in the case file, which was 85 Byuzand Street, but the postal receipts had been returned. It was indicated in the decision that it was subject to appeal to the Court of Cassation within two weeks. It appears that the applicant did not lodge an appeal on points of law against this decision.
3.ººThe proceedings concerning the expropriation of the first flat
On an unspecified date the “Yerevan Construction and Investment Project Implementation Agency” («Երևանի կառուցապատման ներդրումային ծրագրերի իրականացման գրասենյակ» պետական ոչ առևտրային կազմակերպություն – “the Agency”) lodged a claim against the applicant seeking to terminate her right to ownership in respect of the first flat through payment of compensation for its market value, recognise the title of the State in its respect and evict the applicant.
On 27 September 2006 the District Court granted the Agency’s claim in its entirety. No information has been provided on the outcome of this judgment.
On 5 October 2007 H.B. lodged a claim against the applicant seeking to deprive her of ownership of the first flat. In his claim H.B. relied, inter alia, on the Decree to state that he had the right to acquire the applicant’s property.
On 29 December 2007 the District Court granted H.B.’s claim, stating that the first flat was included in the Decree as property to be taken for State needs and that it should become the latter’s property against a compensation of AMD 9,556,500 (approximately EUR 17,400).
On 20 June 2008 the applicant’s counsel lodged an appeal against the judgment of 29 December 2007. He complained, in particular, that the District Court had failed duly to notify the applicant about the proceedings and that the Decree referred to in the judgment did not concern the applicant’s property.
On 29 July 2008 the Mayor of Yerevan granted H.B. permission to demolish the first flat and this was done shortly thereafter.
On 6 November 2008 the Civil Court of Appeal quashed the judgment of 29 December 2007 and remitted the case for a fresh examination on the ground that the applicant had not been duly notified about the proceedings. The Court of Appeal did not address the arguments raised in the appeal as to the merits.
On 22 April 2009 the District Court rejected H.B.’s claim on the ground that the first flat was not listed in the Decree as a unit of property to be taken for State needs. At the same time, the District Court ruled that the compensation of AMD 9,556,500 transferred to its deposit account by H.B. was to be returned to him.
On an unspecified date H.B. lodged an appeal stating, inter alia, that the absence of a mention of the exact address of property to be taken for State needs could not per se be an obstacle for its expropriation. He further argued that according to the scheme of the description of the given property which was drawn up after the Decree came into force, the building at 85 Byuzand Street fell within the territory surrounding the property that he had a right to acquire according to the Decree.
In reply to H.B.’s submissions the applicant insisted that the address of the first flat had not been expressly mentioned in Appendix 1 to the Decree which contained an exhaustive list of addresses of various property units to be taken for State needs. She further argued that the Decree could not be supplemented by the scheme referred to by the plaintiff since it did not constitute its integral part, had not been officially published and in any event it could not contain an address which was not included in Appendix 1 to the Decree.
It appears that H.B made attempts to reach a friendly settlement of the dispute with the applicant during the hearings before the Court of Appeal but that she rejected his offers.
On 15 October 2009 H.B. submitted a request to the Court of Appeal stating that the applicant was not willing to reach a friendly settlement and asked for the judgment of 22 April 2009 to be quashed and his initial claim granted. He further stated that the applicant’s ownership right in respect of the first flat had been already terminated by the District Court judgment of 26 May 2008 and therefore the applicant’s argument that it was not mentioned in the Decree as property to be taken for State needs was groundless.
On 20 October 2009 the Civil Court of Appeal upheld the judgment of 22 April 2009. In doing so, however, the Court of Appeal referred, inter alia, to the District Court’s judgments of 29 December 2007 and 26 May 2008 concerning the second flat. The Court of Appeal concluded that these final and binding judgments were to be regarded as res judicata for the dispute concerning the first flat and therefore it would not address the arguments raised in the appeal.
On 20 November 2009 counsel lodged an appeal on points of law reiterating that the applicant had been deprived of ownership in respect of the first flat in violation of the law. He submitted that the District Court’s judgments of 29 December 2007 and 26 May 2008 referred to by the Court of Appeal concerned another flat measuring 46.3 sq. m in the same building, the second flat, and that these judgments had no connection whatsoever with the first flat which she solely owned according to a distinct certificate of ownership and which was the subject of dispute in the proceedings.
On 28 December 2012 the Court of Cassation (ՀՀ վճռաբեկ դատարան) declared the appeal on points of law inadmissible for lack of merit by re-stating the reasoning of the Court of Appeal as regards the existence of a final and binding judgment between the same parties over the same dispute. The Court of Cassation did not address the above arguments submitted by the applicant in her appeal on points of law.
B. Relevant domestic law
1.ººThe Constitution of 1995 (following the amendments introduced on 27 November 2005 with effect from 6 December 2005)
According to Article 31, everyone shall have the right to dispose of, use, manage and bequeath his property in the way he sees fit. No one can be deprived of his property, save 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, in a procedure prescribed by law and with prior equivalent compensation.
2.ººThe Law on Alienation of Property for the needs of Society and the State (in force from 30 December 2006)
According to Article 3 § 1, the constitutional basis for alienation of property for the needs of society and the State is the prevailing public interest.
According to Article 3 § 2, the constitutional requirements for alienation of property for the needs of society and the State are the following:
(a) alienation must be carried out in accordance with a procedure prescribed by the law,
(b) prior adequate compensation should be provided for property subject to alienation.
According to Article 7 § 1, alienation of property for the needs of society and the State is carried out in case of recognition by the Government of the existence of a prevailing public interest.
According to Article 7 § 2 (a), (b) and (c), the government decree on recognition of prevailing public interest should mention the prevailing public interest for which the property is to be alienated, the acquirer of the property and the units of property subject to alienation (the addresses or location or other information which identifies the given property).
According to Article 11 § 1, adequate compensation should be paid to the owner of property subject to alienation. The market value of the property plus an additional 15% is considered to be an adequate amount of compensation.
3.ººGovernment Decree No. 108-N of 25 January 2007 approving the expropriation zones of territories situated within the administrative boundaries of Yerevan to be taken for State needs and approving the procedure of recording the description of property situated in those territories and the format of the description record (ՀՀ Կառավարության 2007 թ. հունվարի 25-ի թիվ 108-Ն որոշումը Երևան քաղաքի վարչական սահմաններում որոշ տարածքներում բացառիկ՝ գերակա հանրային շահ ճանաչելու, գերակա հանրային շահ ճանաչված տարածքներում առկա սեփականության օբյեկտների նկարագրության արձանագրության կազմման կարգը և նկարագրության արձանագրության օրինակելի ձևը հաստատելու մասին)
The Decree acknowledges that there is a prevailing public interest in the implementation of town-planning projects in the territories mentioned in its Appendix 1.
Appendix 1 to the Decree contains a list of units of property and addresses within the administrative boundaries of Yerevan to be taken for State needs.
COMPLAINT
The applicant complains under Article 1 of Protocol No. 1 to the Convention that her deprivation of property was not in accordance with the law. In particular, she complains that the first flat was not subject to expropriation for State needs by virtue of Decree no. 108-N of 25 January 2007. The applicant also complains under the same Article that she was deprived of the first flat without any compensation.
QUESTIONs TO THE PARTIES
1. What legal consequences, if any, did the judgment of 27 September 2006 have as regards the applicant’s right to property in respect of the first flat (measuring 42.7 sq. m)? In particular, did it become final and binding? The parties are requested to provide copies of the relevant documents in this regard.
2. Did the applicant exhaust the domestic remedies available to her in relation to the complaint under Article 1 of Protocol No. 1? In particular, in view of the fact that the first flat had already been demolished before the proceedings concerning the lawfulness of the expropriation were terminated, did the applicant have an effective remedy to claim compensation for it? If so, did she avail herself of that remedy?
3. Was the applicant’s deprivation of the first flat compatible with the requirements of Article 1 of Protocol No. 1 to the Convention? In particular:
(a) was the deprivation of the applicant’s property carried out under the conditions provided for by law? In particular, was the first flat subject to alienation for State needs under Government Decree no. 108-N of 25 January 2007?
(b) did the expropriation of the first flat pursue a legitimate aim in the public interest?
(c) were the means employed proportionate to the aim sought to be achieved? In particular, did the applicant receive any compensation for the expropriation of the first flat?
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