European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF GHASABYAN AND OTHERS v. ARMENIA

 

(Application no. 23566/05)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

13 November 2014

 

 

 

 

 

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 Ghasabyan and Others v. Armenia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Josep Casadevall, President,
          Alvina Gyulumyan,
          Ján Šikuta,
          Luis López Guerra,
          Kristina Pardalos,
          Johannes Silvis,
          Valeriu Griţco, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 21 October 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 23566/05) 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 four Armenian nationals, Mr Levon Ghasabyan, Mrs Gohar Ghasabyan, Mr Arsen Ghasabyan and Mrs Lilit Grigoryan (“the applicants”), on 28 June 2005.

2.  The applicants were represented by Mr A. 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.

3.  On 3 December 2007 the application was communicated to the Government.

4.  On 15 November 2011 the Court decided to strike part of the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention on the basis of the Government’s unilateral declaration and not to rule on the remainder of the application.

5.  On 10 July 2012 the Court decided to restore the application to its list of cases in accordance with Article 37 § 2 of the Convention.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicants were born in 1945, 1981, 1971 and 1972 respectively and live in Yerevan.

7.  The applicant Levon Ghasabyan (hereafter, the first applicant) owned a flat which measured 57 sq. m. and was situated at 25 Byuzand Street, Yerevan. The remaining three applicants - the first applicant’s family members who resided in the same flat - allege that they enjoyed a right of use in respect of that flat.

8.  On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs for town-planning purposes, having a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. A special body, the Yerevan Construction and Investment Project Implementation Agency (hereafter, the Agency) was set up to manage the implementation of the construction projects.

9.  On 1 December 2004 the first applicant’s flat was valued upon the request of the Agency by a valuation organisation. The market value of the flat was estimated at 23,640 United States dollars (USD).

10.  By a letter of 14 January 2005 the Agency informed the first applicant that his flat was subject to expropriation and that it had been valued at USD 23,640, and offered him this amount as compensation. An additional sum of USD 14,827.01 was offered to him as a financial incentive if he signed an agreement within five days.

11.  By a letter of 18 January 2005 the first applicant expressed his consent to sign an agreement but disagreed with the amount of compensation offered.

12.  On 20 January 2005 the Agency lodged a claim against the first applicant, seeking to oblige him to sign an agreement on the taking of his flat for State needs and to have him and his family members evicted.

13.  On 3 March 2005 the Kentron and Nork-Marash District Court of Yerevan granted the Agency’s claim, ordering the first applicant to sign an agreement for the total amount of USD 23,640 and that he and his family members be evicted.

14.  On 15 March 2005 the first applicant lodged an appeal. The remaining three applicants allege that they unsuccessfully sought to be recognised as parties to the proceedings, despite the fact that they enjoyed a right of use in respect of the flat in question and the fact that their eviction was ordered by the District Court.

15.  On 12 April 2005 the Civil Court of Appeal granted the Agency’s claim upon appeal and dismissed that of the first applicant.

16.  On 27 April 2005 the applicants jointly lodged an appeal.

17.  On 26 May 2005 the Court of Cassation examined the appeal only in its part concerning the first applicant and decided to dismiss it.

18.  On an unspecified date the awarded sum was paid to the applicants.

II.  RELEVANT DOMESTIC LAW

19.  For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23-25, 23 June 2009).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

20.  The applicants complained under Article 1 of Protocol No. 1 and Article 8 of the Convention that the deprivation of their flat had not been prescribed by law. The Court considers that their complaint falls to be examined under Article 1 of Protocol No. 1 which, in so far as relevant, provides 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.”

A.  Admissibility

21.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

22.  The applicants submitted that the deprivation of their possessions had not been carried out under the conditions provided for by law since it had been effected in violation of the guarantees of Article 28 of the Constitution.

23.  The Government accepted that applicants Gohar Ghasabyan, Arsen Ghasabyan and Lilit Grigoryan had possessions within the meaning of Article 1 of Protocol No. 1 by virtue of their right of use of the flat. They further admitted that the expropriation of the applicants’ flat had not been carried out under the conditions provided for by law and constituted a violation of Article 1 of Protocol No. 1.

24.  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 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 domestic legal provisions (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 110, Series A no. 102).

25.  The Court notes that it has already examined identical complaints and arguments in a number of cases against Armenia and concluded that the deprivation of property and the termination of the right of use were not carried out in compliance with “conditions provided for by law” (see, for example, Minasyan and Semerjyan, cited above, §§ 69-77; Hovhannisyan and Shiroyan v. Armenia, no. 5065/06, § 42-47, 20 July 2010 Tunyan and Others v. Armenia, no. 22812/05, §§ 35-39, 9 October 2012; and Danielyan and Others v. Armenia, no. 25825/05, §§ 35-39, 9 October 2012). The Court does not see any reason to depart from that finding in the present case.

26.  There has accordingly been a violation of Article 1 of Protocol No. 1.

II.  ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION

27.  The second, third and fourth applicants complained that they had not been made party to the expropriation proceedings and that they had been unlawfully evicted from their home. They invoked Articles 6 and 8 of the Convention which, in so far as relevant, provide:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing.”

Article 8

“Everyone has the right to respect for his ... home...

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

28.  The Government contested these allegations.

29.  Having regard to the facts of the case, the parties’ observations and its decision finding a violation of Article 1 of Protocol No. 1 concerning the deprivation of the applicants’ flat, the Court considers that it has examined the main legal question raised in the present application. It concludes, therefore, that there is no need to give a separate ruling on the second, third and fourth applicants’ complaints under Articles 6 and 8 of the Convention (see, mutatis mutandis, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION AND PROTOCOL No. 1

30.  The applicants also raised a number of other complaints under Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.

31.  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.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

32.  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

33.  The applicants claimed that they should be awarded as compensation the market value of the flat which had been promised to them by the Government’s unenforced unilateral declaration. The flat in question measured 117.7 sq. m. and the average market value per square metre amounted to USD 3,000. The applicants further claimed EUR 140,000 for non-pecuniary damage.

34.  The Government objected to the proposed method of calculation of compensation for pecuniary damage and submitted that such compensation should be based on the violation found and not on the offer made by the Government in their unilateral declaration. The Government further submitted that the amount of non-pecuniary damage claimed was excessive.

35.  The Court agrees with the Government that pecuniary damage must be calculated on the basis of the violation found. It notes that it has previously awarded pecuniary damage in an identical situation (see Minasyan and Semerjyan v. Armenia (just satisfaction), no. 27651/05, §§ 17-21, 7 June 2011), which it finds to be fully applicable to the present case. Using the same approach and making an assessment based on all the materials at its disposal, the Court estimates the pecuniary damage suffered at EUR 40,000. Furthermore, since the value of the right of use, at the material time, was equivalent to the market value of a corresponding share in a flat in whose respect such right was enjoyed (ibid., § 20), the Court decides to award this amount to the applicants jointly (see also Tunyan and Others, cited above, and Danielyan and Others, cited above), while dismissing the remainder of their claim. It further decides to award each applicant EUR 6,000 in respect of non-pecuniary damage.

B.  Costs and expenses

36.  The applicants did not claim any costs and expenses, legal services having been provided to them on a pro bono basis.

C.  Default interest

37.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the complaint concerning the deprivation of the applicants’ flat admissible;

 

2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

 

3.  Holds that it is not necessary to rule separately on the second, third and fourth applicants’ communicated complaints under Articles 6 and 8 of the Convention, and declares inadmissible the remainder of the application;

 

4.  Holds

(a)  that the respondent State is to pay, 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 the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 40,000 (forty thousand euros) to the applicants jointly, plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 6,000 (six thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

 

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Marialena Tsirli                                                                   Josep Casadevall
Deputy Registrar                                                                       President