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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
42702/05
by Shushaniki HOVHANNISYAN and Gegham GEVORGYAN
against
Armenia
The
European Court of Human Rights (Third Section), sitting on
29 June 2010 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,
Registrar,
Having
regard to the above application lodged on 23 November 2005,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The applicants, Ms Shushaniki Hovhannisyan and Mr
Gegham Gevorgyan, are Armenian nationals who were born in 1945 and
1968 respectively and live in Verin Ptghni, Armenia. They are
represented before the Court by Mr T. Atanesyan, a lawyer practising
in Yerevan. The Armenian Government (“the Government”)
are represented by their Agent, Mr G. Kostanyan, Representative of
the Republic of Armenia at the European Court of Human Rights.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicants jointly owned a house which measured 49.2 sq. m and was
situated at 15 Byuzand Street, Yerevan. It appears that they also
enjoyed a right of lease in respect of the underlying plot of land.
- 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.
- It
appears that Vizkon Ltd unsuccessfully attempted to organise a
valuation of the applicants' house in order to offer them
compensation for the purpose of expropriation, since the applicants
created obstacles.
- On
an unspecified date Vizkon Ltd instituted proceedings against the
applicants on behalf of the State. Referring to, inter alia,
Government Decree no. 1151-N, the plaintiff sought to oblige them to
allow a valuation of their house, to terminate their ownership of the
house through payment of compensation based on the results of such
valuation, and to have them evicted.
- On
an unspecified date the applicants lodged a counter-claim with the
Kentron and Nork-Marash District Court of Yerevan (Երևան
քաղաքի Կենտրոն
և Նորք-Մարաշ
համայնքների
աոաջին ատյանի
դատարան) in
which they contested the constitutionality of Government Decree no.
1151-N. It appears that this counter-claim was not admitted on the
ground that the District Court was not competent to decide upon the
constitutionality of Government decrees. The applicants further
requested the court to put into motion the procedure for testing the
constitutionality of the above Decree, which was similarly rejected.
- It
appears that at some point the value of the applicants' house was
estimated at USD 21,000 by a valuation company.
- On
17 March 2005 the District Court granted the claim of Vizkon Ltd,
terminating the applicants' ownership in respect of the house,
awarding them the Armenian dram (AMD) equivalent of USD 21,000 and
ordering their eviction. The court based its findings on Articles 218
and 283 of the Civil Code, while the amount of compensation was
determined on the basis of the above valuation report.
- On
30 March 2005 the applicants lodged an appeal.
- On
13 May 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
26 May 2005 the applicants lodged an appeal on points of law. In
their appeal they argued, inter alia, that the deprivation of
their property was unlawful and contravened Article 28 of the
Constitution.
- On
8 July 2005 the Court of Cassation (ՀՀ
վճռաբեկ դատարան)
dismissed the applicants' appeal.
- On
8 August 2005 the relevant enforcement proceedings were instituted.
- On
20 October 2005 the applicants signed an agreement with Vizkon Ltd
on termination of their ownership in respect of the immovable
property situated on a plot of land to be taken for State needs and
payment of compensation. According to this agreement, which was
concluded for the purpose of implementation of construction projects
envisaged by Government Decrees nos. 1151-N and 909-N, the applicants
agreed to give up their ownership of the house and their lease of the
underlying plot of land in favour of Vizkon Ltd for a compensation in
the net total amount of AMD 13,433,310 and to vacate the premises by
20 November 2005.
B. Relevant domestic law
1. The domestic provisions related to the question of
lawfulness of the alleged interference
- For
a summary of the relevant domestic provisions see the judgment in the
case of Minasyan and Semerjyan v. Armenia (no.
27651/05, §§ 23-35, 23 June 2009).
2. Other relevant domestic provisions
The Law on Enforcement of Judicial Acts
- Section
8 provides that the parties are entitled to reach a friendly
settlement in the course of enforcement proceedings.
- According
to Section 42 § 1 (3), the bailiff shall terminate the
enforcement proceedings if the creditor and the debtor have reached a
friendly settlement which has been approved by a court.
COMPLAINTS
- The
applicants complained under Article 1 of Protocol No. 1 that the
deprivation of their property had not been effected in accordance
with a law and that there had been no public interest for this
deprivation.
- The
applicants complained under Article 6 of the Convention that the
courts had unlawfully refused to admit their counter-claim and to put
into motion the procedure for testing the constitutionality of
Government Decree no. 1151-N.
THE LAW
- The
applicants complained that the deprivation of their house 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.”
1. The parties' submissions
(a) The Government
(i) Claim of non-exhaustion of domestic
remedies
- The
Government submitted that the applicants' house was not expropriated
by the State but that they gave up their ownership in favour of the
State of their own free will. In particular, as a result of the court
proceedings on 20 October 2005 the applicants signed an agreement
with Vizkon Ltd and sold their house. This was done on the basis of
Section 8 of the Law on Enforcement of Judicial Acts, which provides
that the parties are entitled to reach a friendly settlement in the
course of enforcement proceedings. Thus, the sole ground for
termination of the applicants' ownership was the above agreement
which they had signed with the State and thereby voluntarily
abandoned their ownership. That agreement was reached through
negotiations and mutual understanding and contained terms which were
not included in the court judgments, such as higher compensation and
compensation for terminating the right of lease of land. The
applicants' allegation that they had been compelled to enter into
this agreement was therefore unsubstantiated. In this respect they
had also failed to exhaust the domestic remedies, since it was open
to them to contest the terms of the above allegedly forced and
unfavourable transaction before the courts and to seek its annulment,
which they failed to do.
(ii) Request to strike the application out
of the list
- The
Government further requested the Court to strike the application out
of its list of cases under Article 37 § 1 (b) of the Convention
on the ground that the matter had been already resolved, taking into
account that the agreement signed between the applicants and the
State on 20 October 2005 amounted to a friendly settlement
between the parties.
(b) The applicants
- The
applicants submitted that they were forced to sign the above
agreement, because the courts had already ordered the termination of
their ownership. They were in a desperate situation and were at risk
of being homeless.
2. The Court's assessment
- The
Court notes at the outset that the applicants raised the allegation
that the underlying plot of land was also their property and that it
was unlawfully taken from them together with their house for the
first time in their observations to the Court submitted on 30
November 2007. It follows that this complaint was lodged out of time
and must be rejected in accordance with Article 35 §§ 1 and
4 of the Convention.
- As
regards the complaint concerning the alleged deprivation of the
applicants' house, the Court notes that the parties disagreed whether
there was an interference with the applicants' possessions. The
Government claimed that the applicants voluntarily sold their house
to the State, while the applicants claimed that it was a forced
expropriation. In the Court's opinion, this issue raises questions
regarding the applicants' victim status.
- The
Court notes that under Article 34 of the Convention it may
receive applications from any person claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto. The applicants in
the present case allege a violation of their rights guaranteed by
Article 1 of Protocol No. 1 which, inter alia, covers
deprivation of possessions and subjects it to certain conditions. The
concept of “deprivation” covers both formal expropriation
and also measures which amount to a de facto expropriation
(see, among other authorities, Fredin v. Sweden (no. 1), 18
February 1991, § 42, Series A no. 192).
- The
Court observes that in the present case the applicants agreed to give
up ownership of their house by entering into a civil transaction with
Vizkon Ltd, which acted on behalf of the State. Thus, there was no
expropriation of the applicants' property as such, but rather a
consensual termination of their ownership through payment of
compensation. It is true that prior to the conclusion of the
agreement between the applicants and Vizkon Ltd the domestic courts
had issued judgments ordering termination of the applicants'
ownership of their house. However, ultimately it was not these
judgments but the above-mentioned agreement which constituted the
legal basis for the termination of the applicants' ownership. In such
circumstances, the Court considers that the applicants cannot claim
to be victims of an alleged violation of Article 1 of Protocol No. 1.
- It follows that this complaint is incompatible ratione
personae with the provisions of the Convention within the
meaning of Article 35 § 3, and must be rejected
in accordance with Article 35 § 4 of the Convention.
- The
applicants further complained under Article 6 of the Convention that
the domestic courts unlawfully refused to admit their counter-claim
and to put into motion the procedure for testing the
constitutionality of Government Decree no. 1151-N.
- 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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall Registrar President
