CASE OF VARDANYAN AND NANUSHYAN v. ARMENIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing;Equality of arms;Impartial tribunal);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Pecuniary damage - reserved (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - reserved (Article 41 - Non-pecuniary damage;Just satisfaction)
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
6. The applicants are a family who lived in Yerevan in a house on a plot of land measuring 1,385.6 sq. m. in total and situated at 13 Byuzand Street. The second and third applicants are the first applicant’s wife and son. 7. On an unspecified date the first applicant lodged a request with the Spandaryan District People’s Court of Yerevan seeking to invalidate an agreement concluded in 1933 between his grandparents and a state agency according to which their house, comprising the house itself and the plot of land, was transferred to that state agency. He thus sought recognition of his ownership rights for the above-mentioned house and the plot of land. 8. On 19 August 1994 the Spandaryan District Court granted the claim by annulling the above agreement and recognising the applicant as the owner of the house and the plot of land. No appeal was made against this judgment and it became final. 9. It appears that on 3 November 1994 an ownership certificate for the house and the plot of land was issued to the applicant by virtue of the judgment of 19 August 1994. 10. Upon application by the First Deputy to the President of the Supreme Court, on 9 February 1995 the Civil Panel of the Supreme Court quashed the judgment of 19 August 1994. 11. On 8 December 1995 the first applicant lodged a claim with the Civil Panel of the Supreme Court seeking recognition of his inheritance and ownership rights in respect of the house situated at 13 Byuzand Street. In the concluding part of the claim, the first applicant mentioned that he sought recognition of his inheritance rights both in respect of the house and the plot of land. 12. On 11 December 1995 the Civil Panel of the Supreme Court of Armenia examined the first applicant’s claim and decided to dismiss it. 13. On 22 September 1997 the Presidium of the Supreme Court quashed the judgment of 11 December 1995 and decided to grant the claim. 14. On 29 December 1998 the Plenary Session of the Court of Cassation (the highest judicial instance established by the Constitution of 1995 and functioning since 10 July 1998) examined the decision of 22 September 1997 upon a supervisory appeal lodged by the General Prosecutor’s Office and decided to leave it in force. 15. It appears that the first applicant was given a new ownership certificate in respect of the house and the plot of land which mentioned the decision of 22 September 1997 as a ground for the ownership right. 16. On an unspecified date the first applicant lodged a claim against third persons who owned two small premises situated on his plot of land. 17. On 18 July 2000 the Kentron and Nork-Marash District Court of Yerevan granted the first applicant’s claim. In particular, it found that the applicant’s ownership right to the plot of land situated at 13 Byuzand Street had been restored by the decision of of the Presidium of the Supreme Court of 22 September 1997, therefore any premises situated on it had to be recognised as being under his ownership as well. 18. 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, 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. 19. On 17 June 2004 the Government decided to contract out the construction of one of the sections of Byuzand Street to a private company, Vizkon Ltd. The latter was authorised to negotiate directly with the owners regarding the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State seeking forcible expropriation of such property. It appears that on 8 December 2004 Vizkon Ltd reached an agreement with Tosp Ltd, a valuation agency, for the latter to carry out a valuation of the immovable property situated at 13 Byuzand Street. 20. On 19 May 2005 Tosp Ltd carried out a valuation, according to which the market value of the applicants’ house was 54,494,000 Armenian Drams (AMD), while that of the plot of land was AMD 276,230,000. 21. On 15 April 2005 the Agency held a meeting of its governing board, which included representatives of the Government, the State Real Estate Registry (the SRER), the Ministry of Finance and Economy, the Mayor’s Office and the Police Department, at which it was decided to issue a new type of ownership certificate to the first applicant for the house and the plot of land situated at 13 Byuzand Street. 22. On 13 May 2005 a new ownership certificate for the house and the plot of land was issued to the first applicant. As a ground for registration of the ownership right, it mentioned the judgment of the Spandaryan District People’s Court of Yerevan of 19 August 1994, the decision of the Presidium of the Supreme Court of 22 September 1997, the decision of the Plenary Session of the Court of Cassation of 29 December 1998 and the judgment of the Kentron and Nork-Marash District Court of Yerevan of 18 July 2000. 23. On 22 November 2005 Vizkon Ltd lodged a claim on behalf of the Mayor of Yerevan against the SRER, seeking to invalidate the registration of the first applicant’s ownership of the plot of land, claiming that it had never been recognised by any judicial act. It also requested that the first applicant be involved in the proceedings, as a third person whose rights were affected by the claim. 24. On 13 January 2006 the Kentron and Nork-Marash District Court of Yerevan granted the claim, finding that the first applicant’s ownership of the plot of land had never been recognised by a judicial act. 25. On 24 January 2006 the first applicant lodged an appeal against this judgment. 26. On 27 February 2006 the Court of Appeal dismissed the claim as unsubstantiated. In particular, it found that the first applicant’s right to the plot of land had been recognised by the decision of the Presidium of the Supreme Court of 22 September 1997 and the judgment of the Kentron and Nork-Marash District Court of 18 July 2000. 27. On an unspecified date, Vizkon Ltd lodged an appeal on points of law against this judgment. 28. On an unspecified date, the rapporteur, Judge H. of the Court of Cassation, presented to the first applicant an agreement of a friendly settlement with the Agency, Vizkon Ltd and the SRER. According to the proposal, the first applicant was to receive USD 390,000, a flat measuring 160 sq. m. and office premises measuring 40 sq. m. in the centre of Yerevan in exchange for his revocation of ownership of the house and the plot of land. 29. On 19 April 2006 the applicant sent a reply to the judge informing her of his refusal to sign a friendly settlement. 30. On 21 April 2006 the Court of Cassation held a hearing of the appeal with the participation of the parties. Having heard that the first applicant had refused to sign a friendly settlement with the Government, the Chairman of the Civil Chamber of the Court of Cassation, Judge M., who ex officio presided over the examination of the appeal, stated: “Each party should come to a solution through compromise... If we continue dragging out this dispute, we will celebrate its hundredth anniversary... Name the day and the hour when it is convenient for you to come and express all your ideas in the presence of the parties before Judge H...but try to have an efficient discussion before Judge H. ... you have a lot of time until [then]. Have a meeting and a discussion, and try to find common points in the friendly settlement so that your discussion is efficient.” With this, Judge M. closed the hearing. 31. On 5 May 2006 the Court of Cassation held another hearing of the appeal. On learning that the first applicant still refused to sign a friendly settlement, Judge M. stated: “You have many times participated in the Chamber hearings and must have noticed that the Chamber always attaches importance to the fact of which party has refused to sign a reasonable friendly settlement. So this is the last time that we, the Chamber, give you an opportunity until the next hearing ... to discuss once more [the friendly settlement] issues and submit your reply to ... [Judge] H.” With this, Judge M. closed the hearing. 32. It appears that the first applicant persisted in his reluctance to sign a friendly settlement. 33. On 28 July 2006 the Civil and Economic Chamber of the Court of Cassation, composed of Judge M., president, and Judges H., G. and A., quashed the judgment of 27 February 2006 and remitted the case for a fresh examination. The relevant parts of this decision read as follows: “...It follows from the examination of [the relevant court decisions] that no ownership right of [the first applicant] had ever been recognised in respect of any plot of land, therefore there are no legal grounds for the registration of [the first applicant’s] ownership to the land. ... In these circumstances, the arguments with regard to the violations of the substantive and procedural law raised in the appeal on points of law are substantiated since the above-mentioned court decisions have not recognised [the first applicant’s] ownership right to any plot of land, therefore there are no legal grounds for the registration of [the first applicant’s] title. Moreover, [the first applicant’s] title had been registered in respect of State-owned land without any legal basis.” 34. On 15 September 2006 the Civil Court of Appeal examined the claim anew and granted it, finding that the first applicant’s ownership right to the plot of land had not been recognised. In particular, it held: “... it follows from the examination of [the relevant court decisions] that no ownership right of [the first applicant] had ever been recognised in respect of any plot of land ... Therefore, [the first applicant’s] ownership right in respect of the Stateowned plot of land was registered without any legal ground.” 35. On 12 February 2007 the first applicant lodged an appeal on points of law against this judgment arguing, inter alia, that the Court of Appeal had not been independent and impartial since it had been bound by the findings of the Court of Cassation expressed in the decision of 28 July 2006. 36. On 2 March 2007 the Court of Cassation declared the appeal inadmissible for lack of merit. 37. On 25 December 2005 Vizkon Ltd informed the first applicant that the house he owned was situated within an alienation zone. It also informed him that his house had been valued by a licensed valuation organisation at AMD 54,494,000 and offered him, as the owner, this sum as compensation for alienation. An additional sum would be paid to him as a financial incentive in accordance with Government Decree no. 759-N of 19 May 2005, if he agreed to sign an agreement and to hand over the property within one month. 38. It appears that the first applicant did not accept the offer. 39. On 26 January 2006 the Yerevan Mayor’s Office instituted proceedings against the first applicant, seeking to terminate his ownership of the house by paying him compensation and to have him evicted. Vizkon Ltd also joined these proceedings as a third party. 40. On 18 April 2006 the Constitutional Court declared, inter alia, Government Decree no. 1151-N of 1 August 2002 and Article 218 of the Civil Code (the CC) to be unconstitutional, but decided that the impugned legal provisions had to remain effective until a law establishing a legal regime for expropriation was adopted but that, in any event, the latest date on which they would lose their legal force was 1 October 2006. 41. On 22 August 2006 the Kentron and Nork-Marash District Court of Yerevan examined the claim in the presence of the first applicant and a representative of the Mayor’s Office. The District Court decided to grant the claim, awarding the first applicant 54,494,000 Armenian drams and ordering his eviction. The District Court based its findings on Articles 218221 and 283 of the Civil Code. 42. On 4 September 2006 the first applicant lodged an appeal, which was scheduled to be examined by the Civil Court of Appeal on 25 September 2006. 43. During the night of 24 to 25 September 2006 the first applicant felt unwell and was taken by ambulance to hospital, where he was diagnosed with impaired cardiac function. 44. On 25 September 2006, before the beginning of the hearing, the Court of Appeal received a written request lodged by the first applicant seeking adjournment of the hearing because of his health problems. It appears that a hospital certificate stating that he was in hospital was attached to the request. 45. On 25 September 2006 the Court of Appeal held a hearing in the absence of the first applicant and his representative but in the presence of representatives of the Mayor’s Office and Vizkon Ltd, who made their submissions in relation to the first applicant’s appeal, asking that it be rejected. As regards the first applicant’s request to reschedule the hearing, according to the record of the hearing, the Court of Appeal refused to adjourn it on the ground that the first applicant had a representative who had participated in the proceedings before the District Court. By the judgment adopted on the same date the Court of Appeal upheld the judgment of 22 August 2006 confirming the amount awarded by the District Court. The judgment stated that the first applicant had failed to appear despite having been duly summoned to the hearing. 46. On 2 October 2006 the first applicant, having undergone medical treatment, was discharged from the hospital. 47. On 20 December 2006 the first applicant lodged an appeal on points of law against the judgment of 25 September 2006. 48. On 16 January 2007 the Court of Cassation declared the first applicant’s appeal inadmissible for lack of merit. 49. The judgment of the Court of Appeal of 25 September 2006 entered into force at the time of its delivery and was immediately enforceable. 50. In May 2007 the first applicant sought to terminate the enforcement proceedings in respect of the judgment of 25 September 2006 with reliance on the Constitutional Court’s Decision of 18 April 2006, which had found Governmental Decree no. 1151-N and Article 218 of the CC incompatible with the Constitution. 51. On 11 June 2007 the Department for Execution of Judicial Acts enforced the judgment by demolishing the house. 52. On 6 July 2007 the Court of Appeal dismissed the first applicant’s application, finding that on 11 June 2007 the judgment had been enforced and the enforcement proceedings had been terminated. 53. On 18 May 2007 the second and third applicants lodged an appeal with the Court of Cassation against the judgment of the Court of Appeal of 25 September 2006 alleging that they had learned of the house expropriation proceedings against the first applicant only on 19 February 2007. In the appeal, the second and third applicants argued that they enjoyed the right of use of accommodation in respect of the first applicant’s house, therefore the expropriation proceedings also affected their proprietary rights. They thus claimed that the authorities had failed to make them parties to these proceedings and that the alleged deprivation of their property was not lawful and in the public interest. 54. On 24 July 2007 the Court of Cassation declared the appeal of 18 May 2007 inadmissible for lack of merit finding, inter alia, that the second and third applicants’ rights were not affected as the first applicant was the sole owner of the house in question.