British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
HOVHANNISYAN AND SHIROYAN v. ARMENIA - 5065/06 [2010] ECHR 1135 (20 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1135.html
Cite as:
[2010] ECHR 1135
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
THIRD
SECTION
CASE OF HOVHANNISYAN AND SHIROYAN v. ARMENIA
(Application
no. 5065/06)
JUDGMENT
(merits)
STRASBOURG
20
July 2010
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 Hovhannisyan and
Shiroyan v. Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Alvina Gyulumyan,
Ineta
Ziemele,
Luis López Guerra,
Ann Power,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 29 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 5065/06)
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 three Armenian nationals,
Mr Hovhannes Hovhannisyan, Ms Astghik Hovhannisyan and
Ms Diana Shiroyan (“the applicants”), on 17
January 2006.
The applicants were represented by Mr V. 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
3 September 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
applicants were born in 1976, 1973 and 1999 respectively and live in
Yerevan.
According
to the applicants, they enjoyed a right of use of accommodation in
respect of 33.8 sq. m of a flat which in total measured 66.8 sq. m.
and was situated at 17 Byuzand Street, Yerevan. It appears that the
flat was owned by their family member, K.H. The Government contested
this allegation and claimed that only the applicants
Hovhannes Hovhannisyan and Astghik Hovhannisyan (“the
first applicant” and “the second applicant”)
enjoyed such a right, while the applicant Diana Shiroyan (“the
third applicant”), who was a minor, was only entitled to live
in the flat in question.
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
17 June 2004 the Government decided to contract out the construction
of one of the sections of Byuzand Street – which was to be
renamed Main Avenue – to a private company, Vizkon Ltd.
On
1 October 2004 Vizkon Ltd 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.
By
a letter of 25 February 2005 Vizkon Ltd informed the first and second
applicants that the flat in question was situated within the
expropriation zone of the Main Avenue area and was to be taken for
State needs. Each applicant was offered a total of the Armenian dram
(AMD) equivalent of 3,500 United States dollars (USD) as financial
assistance, pursuant to paragraphs 7(c) and 8(e) of the compensation
procedure approved by Government Decree no. 950 of 5 October 2001
(see paragraphs 26 and 27 below; hereafter, “the compensation
procedure”).
It
appears that the first and second applicants did not accept this
offer.
On
an unspecified date, Vizkon Ltd instituted proceedings against the
first and second applicants on behalf of the State, seeking to
terminate their right of use through payment of financial assistance
and to evict all the applicants with reference to, inter alia,
Articles 218 and 220 of the Civil Code. The plaintiff claimed that
persons enjoying a right of use were entitled, pursuant to paragraph
8 of the compensation procedure, to receive assistance in the
Armenian dram equivalent of USD 3,500.
It
appears that in the course of the court proceedings Vizkon Ltd
offered the same amount of compensation also to the third applicant,
since she was also registered at the flat in question. The third
applicant joined the proceedings as a co-defendant.
On
2 March 2005 a contract was signed between Vizkon Ltd and the owner
of the flat, K.H., according to which she agreed to cede the flat to
the State in exchange for another flat. It appears that two other
persons who also enjoyed a right of use in respect of the same flat
accepted the price offers made to them and gave up their rights.
On
16 March 2005 the Kentron and Nork-Marash District Court of Yerevan
(Երևան
քաղաքի Կենտրոն
և Նորք-Մարաշ
համայնքների
աոաջին ատյանի
դատարան) granted
the claim of Vizkon Ltd, terminating the applicants' right of use and
awarding them a total of the Armenian dram equivalent of USD 10,500
as compensation. In doing so, the court referred to Article 218 §§
1 and 2 and Article 220 § 1 of the Civil Code, as well as
paragraph 10 of the compensation procedure.
On
31 March 2005 the applicants lodged an appeal.
On
3 June 2005 the Civil Court of Appeal (ՀՀ
քաղաքացիական
գործերով վերաքննիչ
դատարան) granted
the claim of Vizkon Ltd on the same grounds as the District Court.
On
16 June 2005 another contract was signed between Vizkon Ltd and the
owner of the flat, K.H., similar to that of 2 March 2005.
On
21 June 2005 the applicants lodged an appeal on points of law which
they supplemented on 15 July 2005.
On
24 June 2005 the State's ownership in respect of the flat was
formally registered on the basis of the contract of 16 June 2005.
On
18 July 2005 the Court of Cassation (ՀՀ
վճռաբեկ դատարան)
dismissed the applicants' appeal.
II. RELEVANT DOMESTIC LAW
A. The domestic provisions related to the right of use
of accommodation
For
a summary of the relevant domestic provisions see the judgment in the
case of Minasyan and Semerjyan v. Armenia (no.
27651/05, §§ 23 and 34-43, 23 June 2009).
B. Other relevant domestic provisions
1. The Civil Code (as in force at the material time)
According
to Article 135, the right of ownership and other property rights in
respect of immovable property, their limitations, origin, transfer
and termination are subject to State registration.
According
to Article 176, in cases when a right in respect of property is
subject to State registration, the acquirer's right of ownership
arises from the moment of such registration.
Article
218 §§ 1 and 2 provided that a plot of land might be taken
from the owner for the needs of the State or the community by
compensating its value. Depending on for whose needs a plot of land
was to be taken, its value was to be compensated by either the State
or the community. The decision to take a plot of land for the needs
of the State or the community was to be taken by a public authority.
Article
220 § 1 provided that, if no agreement could be reached with the
owner of the plot of land to be taken for State needs concerning the
amount or other conditions of compensation, the relevant public
authority might institute court proceedings seeking to take the plot
of land.
2. Government Decree no. 950 of 5 October 2001
Approving the Procedure for Purchasing, Taking, Fixing the Price
Offer and Realising the Plots of Land and Immovable Property Situated
in the Northern Avenue's and Other Expropriation Zones of Yerevan (as
in force at the material time)
According
to paragraph 7(c) of the compensation procedure, persons and their
minor children – who were registered, including in unauthorised
constructions, prior to the date on which State registration was made
(28 August 2001) on the basis of the competent public
authority's decision to take the plot of land for the needs of the
State – shall each receive assistance in the amount of the
Armenian dram equivalent of USD 2,000, based on the document
confirming the fact of registration (passport, birth certificate or a
certificate provided by the competent authority in charge of the
registration).
According
to paragraph 8(e) of the compensation procedure, persons mentioned in
Paragraph 7(c) of this Procedure shall receive assistance in the
amount of the Armenian dram equivalent of USD 1,500.
According
to paragraph 10 of the compensation procedure, persons who have
acquired a right of use or of lease in accordance with the procedure
prescribed by law in respect of a plot of land situated in an
expropriation zone shall receive as compensation the assessed value
of the right of use or of lease of the given plot of land.
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. The parties' submissions
The
Government submitted that the applicants did not have “possessions”
within the meaning of Article 1 of Protocol No. 1. At the time of
expropriation the sole owner of the flat was the State, as evidenced
by the two contracts signed between the State and its former owner,
K.H. The applicants, on the other hand, enjoyed only a right of use
of accommodation in respect of the flat, which was equal to an
entitlement to reside there and could not be considered as
“possessions”. This right was not absolute and could be
terminated under Article 225 of the Civil Code upon request by the
owner, which happened in the present case.
Furthermore,
the third applicant did not enjoy independently even a right of use
because she was a minor and enjoyed only the right to live in the
house together with her mother – the second applicant –
by virtue of Section 16 of the Children's Rights Act. In sum, given
that the applicants did not have possessions, their complaint was
incompatible ratione materiae with the provisions of Article 1
of Protocol No. 1.
The
applicants submitted that all three applicants enjoyed a right of use
of accommodation in respect of the flat. This was supported by the
evidence in the case and, in particular, the findings of the domestic
courts which decided to terminate the right of use of all three
applicants. This right was a property right and amounted to a
“possession” within the meaning of Article 1 of Protocol
No. 1.
The
applicants further submitted that the deprivation of their
possessions was not carried out under the conditions provided for by
law and violated, in particular, the requirements of Article 28 of
the Constitution and Article 225 of the Civil Code. The latter
provision, in particular, prescribed that a right of use of
accommodation could be terminated only upon request of the owner
of the flat. However, at the time when the Court of Appeal
granted the claim of Vizkon Ltd, namely on 3 June 2005, the flat did
not belong to the State yet and was owned solely by K.H. The State's
ownership in respect of the flat was registered only on 24 June 2005
and this issue was never even raised during the proceedings before
the Court of Cassation.
The
applicants finally argued that the deprivation of their possessions
did not pursue a legitimate aim in the general interest because it
was effected solely for the benefit of a private company, Vizkon Ltd.
Moreover, the amount of compensation offered to them was arbitrary
and unsubstantiated.
B. The Court's assessment
1. Admissibility
The
Court considers that the Government's objection regarding the
incompatibility of the applicants' complaint with the provisions of
Article 1 of Protocol No. 1 is closely linked to the substance of
their complaint under that Article, and should therefore be joined to
the merits.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) Whether there was an interference with
the applicants' possessions
The
Court notes that the Government claimed that the applicants did not
have “possessions” within the meaning of Article 1 of
Protocol No. 1. The Court points out, however, that it has already
found that the right of use of accommodation constituted a
“possession” within the meaning of that Article (see
Minasyan and Semerjyan v. Armenia,
cited above, § 56).
As
regards specifically the third applicant, the Court observes that the
Government's claim has no basis in the findings of the domestic
courts, which found that all the applicants enjoyed a right of use of
accommodation and decided to terminate that right through payment of
compensation.
The
Court concludes that all the applicants in the present case enjoyed a
right of use of accommodation in respect of the flat in question and
the termination of that right for the purpose of implementing
construction projects in the centre of Yerevan amounted to an
interference with the applicants' peaceful enjoyment of their
possessions in the form of deprivation of property (ibid., §§
59 and 61). The Government's objection regarding the incompatibility
of the applicants' complaint with the provisions of Article 1 of
Protocol No. 1 must therefore be dismissed.
(b) Whether the interference with the
applicants' possessions was justified
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
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).
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 and foreseeable domestic legal provisions (see
Lithgow and Others v. the United Kingdom, 8 July 1986,
§ 110, Series A no. 102; Hentrich v. France,
22 September 1994, § 42, Series A no. 296-A; and
Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR
2000-I).
The
Court notes that it has previously examined a complaint concerning
the termination of the right of use by the authorities for the
purpose of implementation of construction projects in the centre of
Yerevan and found that such interference with the applicant's
possessions – with reliance on Article 225 of the Civil Code –
was arbitrary and unlawful (see Minasyan and Semerjyan, cited
above, § 75-76). In the present case, the Government alleged
that the applicants' right of use was terminated similarly on the
basis of Article 225 and with full respect for the requirements of
that Article, since the State was the owner of the flat in question
at the material time and it was entitled under that Article to have
the applicants' right of use terminated through payment of adequate
compensation.
The
Court notes, however, that the State acquired ownership of the flat,
pursuant to Articles 135 and 176 of the Civil Code, only on
24 June 2005, when its right of ownership was formally
registered (see paragraph 19 above). Thus, at the time when Vizkon
Ltd instituted proceedings against the applicants seeking to
terminate their right of use, and when the District Court and the
Court of Appeal decided on the merits of that claim, namely on 16
March and 3 June 2005 respectively, the sole owner of the flat was a
third person, K.H. It is true that a contract had been signed between
K.H. and Vizkon Ltd before the merits of the above claim was
determined by the District Court and the Court of Appeal (see
paragraph 13 above). However, it appears that there was no follow-up
to that agreement and that the State's ownership was formally
registered only after a second contract was signed between the same
parties following the Court of Appeal's judgment (see paragraphs 16,
17 and 19 above). Furthermore, the examination of the case in the
Court of Cassation, which took place after the State had already
acquired the right of ownership, was limited only to points of law
and did not even touch upon this issue.
In
any event, the Court notes that neither the plaintiff nor the courts
relied on Article 225 of the Civil Code when asking and deciding to
terminate the applicants' right of use. In fact, this was done with
reference to the provisions of the Civil Code, namely Articles 218
and 220, which regulated the question of forced expropriation of
land. Thus, the Government's allegation that the applicants' right of
use was lawfully terminated under Article 225 of the Civil Code is
not supported by the circumstances of the case.
The
Court observes that, as already indicated above, the applicants'
right of use in respect of the flat was terminated by the courts with
reference to Articles 218 and 220 of the Civil Code. The Court notes,
however, that these Articles spoke solely of the possibility of
terminating the right of ownership in respect of land and contained
no mention whatsoever of terminating the right of use of
accommodation (see paragraph 24 and 25 above). Thus, it appears that
the applicants' right of use was terminated with reliance on legal
rules which were not applicable to their case. The Court considers
that such termination of their right of use was bound to result in an
unforeseeable or arbitrary outcome and must have deprived the
applicants of effective protection of their rights. It therefore
cannot but describe the interference with the applicants' possessions
on such a legal basis as arbitrary and unlawful (see, mutatis
mutandis, Minasyan and Semerjyan, cited above, §
75-76).
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 Sporrong and Lönnroth v. Sweden,
23 September 1982, § 69, Series A no. 52, and Iatridis
v. Greece [GC], no. 31107/96, § 62, ECHR 1999-II).
There
has accordingly been a violation of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicants further complained that the deprivation of their
possessions amounted also to a violation of Article 8 of the
Convention and that the court proceedings were conducted in violation
of the fair trial guarantees of Article 6 of the Convention.
Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. It follows that this part
of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. 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.”
A. The parties' submissions
1. The applicants
(a) Damage
The
applicants alleged that they were unable to obtain any information
from public authorities necessary for the effective presentation of
their claims for pecuniary damage, because of public officials having
economic interests in the construction projects and therefore
blocking any access to the relevant official information, namely the
information concerning real estate prices in the centre of Yerevan.
In
view of the above, the applicants argued that the value of their
right of use was to be calculated using the method of capitalisation
of income and by applying the formula prescribed by the amended
Article 225 of the Civil Code. Based on such a calculation, the
applicants each claimed AMD 7,560,000 in respect of pecuniary damage
which, according to the applicable exchange rate, was equivalent to
EUR 16,666.30.
The
applicants further claimed EUR 10,000 each in respect of
non-pecuniary damage, alleging that they had suffered feelings of
frustration and helplessness as a result of unlawful expropriation
and becoming homeless.
(b) Costs and expenses
The
first applicant also claimed EUR 100 for postal costs.
2. The Government
The
Government claimed that the formula suggested by the applicants for
the calculation of pecuniary damage was not applicable to their case,
because the amendments to Article 225 of the Civil Code, which
introduced the formula in question, entered into force only on
26 November 2005, that is after the circumstances of the
present case.
The
Government asked the Court to reject the applicants' claims for
pecuniary and non-pecuniary damage and costs and expenses, because
their rights guaranteed by Article 1 of Protocol No. 1 had not been
violated.
2. The Court's assessment
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 incompatibility of the applicants' complaint
under Article 1 of Protocol No. 1 with the provisions of
that Article and to dismiss it;
Declares the complaint concerning the
deprivation of the applicants' possessions under Article 1 of
Protocol No. 1 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 20 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
