Communicated on 11 May 2016
FIRST SECTION
Application no. 5337/13
Artur SEDRAKYAN
against Armenia
lodged on 29 December 2012
STATEMENT OF FACTS
The applicant, Mr Artur Sedrakyan, is an Armenian national who was born in 1976 and lives in Burbank. He is represented before the Court by Mr A. Voskanyan, a lawyer practising in Vanadzor.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant had owned a two-room flat in Gugark village since 1999. It was situated in a building which had been damaged as a result of the earthquake of 1988.
It appears that in December 2004 Y.E., the then Head of Gugark community, sold the building where the applicant’s flat was situated to a third person at auction, without the prior approval of the local council. Following this transaction the building, including the applicant’s flat, was demolished by the buyer, based on permission that Y.E. had subsequently granted.
It further appears that at some point a criminal investigation was carried out into possible abuse of authority by Y.E., who was no longer the head of the village community, in relation to the above events. Within the framework of these proceedings a forensic construction examination had been assigned which concluded, inter alia, that it had not been possible for the experts to determine the degree of damage and the market value of the building in question.
On 11 December 2009 the applicant lodged a claim with the Lori Regional Court against the local council of Gugark community, the head of the village community, the regional council and Y.E. seeking compensation for damage suffered as a result of the demolition of his flat. In particular, he requested to be provided with a two-room flat in Gugark village.
The applicant paid AMD 4,000 in respect of court fees, which corresponded to the rate of court fees payable for non‑pecuniary claims before first instance courts.
On 17 December 2009 judge B.G. of the Regional Court made a decision to admit the applicant’s claim and set the case down for trial. This decision stated, in particular, the following:
“... The claim complies with the requirements of Articles ... 87, 88 of the Code of Civil Procedure ...
In view of the foregoing ... [I] decide to admit the claim lodged by [the applicant] ...”
On 16 March 2012 the Regional Court rejected the applicant’s claim in full. The relevant parts of the judgment read as follows:
“... in the course of the criminal proceedings against the former head of Gugark village community [Y.E.] it had been established that on 15.12.2004 he had sold [the building where the applicant’s flat was situated] ... for AMD 1,200,000 to [V.A.], the winner of the auction ... based on the invalid decision of the local council of 24 December 2004 taken in gross violation of the requirements of ... the Law on Self‑governance bodies ...
Thereafter, by his decision of 16.03.2005 [Y.E.] granted [V.A.] permission to demolish the ... buildings in question... As a result, [the applicant’s] two-room flat ... was demolished.
It was found out that in the beginning [the applicant’s father] with the family of five was on the waiting list [to receive a certificate issued by the State to obtain a flat] and afterwards only [the applicant] remained on the list of those whom the commission had refused to provide with a certificate to obtain a flat.
[The applicant] is still on the waiting list but [the applicant] cannot obtain a flat with State support and because he is away from the Republic of Armenia for a long term, his housing issues are being carried over to a more favourable period, that is, after his return to Armenia.
Within the framework of the criminal proceedings a technical construction examination was assigned to find out ... the market value of the building as of 2004 which had been impossible to determine ...
Thus, the court finds it established that as a result of being damaged and looted after the earthquake [the applicant’s flat], at the moment of registration of the title in its respect in 1999, was not suitable for living in and was not subject to reconstruction; it could not be used as a flat and did not represent any value as a flat. In such circumstances, ... [the applicant] has not suffered loss ...
The court finds that although [Y.E.] acted unlawfully, nevertheless [the applicant] has not suffered real loss as a result of his actions.
... the court decides ...
1. To reject [the applicant’s] claim...
2. To consider the issue of court fees resolved.”
The applicant lodged an appeal. He submitted with his appeal proof of payment of court fees in the amount of AMD 10,000 which corresponded to the rate of court fees payable in respect of non-pecuniary claims before appellate courts.
On 7 May 2012 the Civil Court of Appeal made a decision to return the applicant’s appeal stating, in particular, the following:
“... Having examined the appeal, the documents attached to it, the Court of Appeal finds that it must be returned for the following reasons:
According to Article 213 § 1 (1) of the Code of Civil Procedure, an appeal is returned if the provisions of Article 210 have not been complied with. In the instant case the appellant has not observed the requirements of Article 210 § 4, that is he has paid the state duty partially, i.e. in the amount of AMD 10,000 whereas Article 9 § 8 (a) of the Law on State Fees provides that in the case of appeals lodged against courts’ judicial acts as regards pecuniary claims, the rate of three per cent of the disputed amount stated in the appeal or, if the claims granted or not granted by the first instance court are disputed in their entirety or the granted or not granted claims are not disputed, then the rate of three per cent of the value of the claim lodged with the first instance court should be paid as court fees.
In the present case, the appellant disputes a judicial act which is of pecuniary nature, that is he should pay 3 per cent of the market value of the property (the market value of property is determined by a relevant certificate or conclusion delivered by a competent body which should be attached to the appeal) less AMD 10,000 which has already been paid.
...
Article 213 § 3 provides that in case of rectification of the errors in the appeal and its resubmission within two weeks from the date of the receipt of the decision whereby an appeal is returned, the appeal is considered to have been admitted in court. Once the appeal is resubmitted, no new time-limit is given to rectify errors.”
The applicant lodged an appeal on points of law against this decision arguing, inter alia, that the Court of Appeal had failed to state what, in its opinion, was the correct amount due to be paid when concluding that he had underpaid the state fee due. He further argued that according to the established practice court fees for pecuniary claims, the amount of which could not be determined, were paid according to the rates applicable to non‑pecuniary claims since the law did not contain any regulation with regard to state fees payable in respect of pecuniary claims which could not be subject to assessment. He claimed that this approach had been adopted by the Regional Court since it had admitted his claim while the Court of Appeal had arbitrarily returned his appeal. Furthermore, contrary to what the Court of Appeal had stated in its decision to return his appeal, there was no legal requirement to submit proof of the market value of property attached to an appeal. The list of documents to be submitted together with an appeal was exhaustive and did not include a certificate or conclusion concerning the market value of property.
On 4 July 2012 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
1. The Code of Civil Procedure (as in force at the material time)
According to Article 87 § 2 (3), a claim should mention the claim value if the claim is subject to assessment.
Article 88 § 1 provides that a document certifying the payment of the State fee in the manner and amount prescribed by law or a motion seeking postponement, deferral or reduction of the State fee should be attached to the claim.
Article 210 sets out the requirements of the content of an appeal and documents to be attached to it. It provides, inter alia, that proof of payment of the State fee should be attached to an appeal (Article 210 § 4).
Article 213 § 1 (1) provides that an appeal is returned if the requirements of Article 210 have not been met.
2. The Law on State Fees (as in force at the material time)
According to Article 8, rates of State fees are established in respect of the value of the property subject to assessment or the base fee established by this law. The amount of the base fee is AMD 1,000.
Article 9 sets out the rates of State fees paid for, inter alia, claims and appeals.
According to Article 9 § 1 (a) and (b), the rates for claims lodged with first instance courts are the following: if a pecuniary claim – at the rate of two per cent of the claim value but not less than one hundred and fifty per cent of the base fee; if a non-pecuniary claim – four times the base fee.
According to Article 9 § 8 (a) and (b), the rates for appeals lodged against courts’ judicial acts are the following: if a pecuniary claim – at the rate of three per cent of the disputed amount stated in the appeal or, if the claims granted or not granted by the first instance court are disputed in their entirety or the granted or not granted claims are not disputed, then at the rate of three per cent of the value of the claim lodged with the first instance court; if a non-pecuniary claim – ten times the base fee.
COMPLAINTS
The applicant complains that he was denied access to the Court of Appeal, in breach of the guarantees of Article 6 § 1 of the Convention.
He further complains under Article 1 of Protocol No. 1 to the Convention that he was unlawfully deprived of his property.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of effective access to a court, in breach of Article 6 § 1 of the Convention, as a result of the decision of the Court of Appeal of 7 May 2012 based on which his appeal was not admitted for examination?
2. Has the applicant exhausted the domestic remedies in respect of his complaint under Article 1 of Protocol No. 1 to the Convention and complied with the six-month time-limit, as required by Article 35 § 1 of the Convention? If so, was the applicant’s deprivation of his flat compatible with the requirements of Article 1 of Protocol No. 1?
The Government are requested to provide copies of the conclusions of forensic construction experts delivered during the criminal proceedings and any other relevant documents relating to the alienation of the applicant’s flat.
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