CASE OF ANTONYAN v. ARMENIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
5. The applicant was born in 1937 and lives in Yerevan. She is a seconddegree disabled person. 6. On an unspecified date during the Soviet period, the State allocated to the applicant a flat in Yerevan on the right of tenancy. 7. In 1981 the applicant’s niece, who had moved to Yerevan to study, obtained registration at the applicant’s flat with the latter’s consent. In 1986 she moved back to the town of Hrazdan without cancelling her registration. In 1989 the applicant’s niece was married, and she gave birth to two children in 1989 and 1991 respectively. Upon the applicant’s consent, the children were also registered at the applicant’s flat so that they could receive medical care from her address. 8. On 11 February 1993 the applicant acquired ownership of the flat, which was notarised on 19 February 1993. 9. In 1996 the applicant’s niece passed away. Her registration at the applicant’s flat was subsequently cancelled. 10. On 26 December 2003 the applicant applied to the Kanaker-Zeytun District Police Department of Yerevan (hereafter the District Police Department) seeking to cancel the children’s registration. 11. By a letter of 20 January 2004 the District Police Department informed the applicant of its refusal to cancel the children’s registration on the ground that, according to the relevant rules, the registration of minors could be cancelled only together with the cancellation of the registration of one of their parents; upon an application by the parents or the children’s lawful representatives; in connection with studies; or upon a relevant court order. 12. On an unspecified date, the applicant contested this refusal before the courts, seeking to oblige the District Police Department to deregister the children and claiming that the latter had never lived in her flat. 13. On 15 March 2004 the Arabkir and Kanaker-Zeytun District Court of Yerevan dismissed the applicant’s complaint, finding that the refusal was lawful as the District Police Department had acted in accordance with Government Decree no. 821 of 25 December 1998. According to the text of the judgment, the parties had been duly notified of the hearing but had failed to appear. According to the applicant, she was not notified of that hearing. 14. On 25 March 2004 the applicant lodged an appeal. 15. On 8 June 2004 the Civil Court of Appeal dismissed the applicant’s appeal on the same ground. According to the text of this judgment, the applicant and her representative made oral submissions at the court hearing. According to the applicant, neither she nor her representative was given the opportunity to make any oral submissions. It further appears that the children’s father was present at the appeal hearing and petitioned to dismiss the applicant’s claim. 16. On an unspecified date, the applicant lodged an appeal on points of law. 17. On 23 July 2004 the Court of Cassation dismissed her appeal finding that: “According to Article 225 of the Civil Code, if no agreement is reached regarding the termination of the right of use of accommodation, this right can be terminated upon the owner’s request through court proceedings by paying compensation equivalent to the market value. In such circumstances, the arguments raised in the appeal on points of law are unsubstantiated, since the right of use of accommodation enjoyed by [the children] can be terminated only in accordance with Article 225 of the Civil Code...” 18. According to Article 4, apartment buildings and accommodation in other constructions situated on the territory of Armenia comprise the housing fund. 19. According to Article 9, citizens are entitled to receive accommodation in houses of the State and the public housing fund through a prescribed procedure. 20. According to Article 49, on the basis of the decision to allocate accommodation in a building of the State or public housing fund, the relevant executive committee shall provide the citizen with an order which shall serve as the sole basis for occupying the allocated accommodation. 21. According to Article 51, the accommodation tenancy agreement in respect of the buildings of the State and public housing fund shall be concluded in writing, on the basis of the accommodation order, between the lessor, namely, the organisation managing the maintenance of the building, and the tenant, namely, the citizen in whose name the voucher has been provided. Accommodation in the buildings of the State and public housing fund shall be used in accordance with the accommodation tenancy agreement. 22. According to Article 53, the tenant’s family members who live with him shall equally enjoy all the rights and bear all the responsibilities stemming from the accommodation tenancy agreement. 23. According to Article 54, the tenant’s family members include his spouse, their children and parents. Other individuals may be recognised as the tenant’s family members, if they live with the tenant and run a common household. 24. According to Article 55, the tenant has the right, with the consent of members of the family residing with him, to accommodate his spouse, children, parents and other persons in the accommodation occupied by him. Persons who have been accommodated in the accommodation according to this Article shall acquire the right of use of that accommodation equally with other persons residing there, unless some other agreement has been reached, at the time when these persons were accommodated, between the tenant and members of his family residing with him. 25. According to Article 59, in case of the tenant’s or his family member’s temporary absence, the accommodation shall be kept for them for a period not exceeding six months. A person may lose his right of use of accommodation by a court decision as a result of being absent for a period exceeding the prescribed time-limit on the basis of an application filed by the tenant or other permanent users of the accommodation in question. 26. According to Article 23 § 2, the place of residence of minors under the age of fourteen shall be considered the place of residence of their lawful representatives, such as, inter alia, their parents. 27. According to Article 163 § 1, the right of use implies the possibility afforded by law to reap the useful natural qualities of a property and to “benefit” from it. 28. According to Article 225 § 1, as in force at the material time, the family members of the owner of accommodation and other individuals have the right to use the accommodation, if that right has been registered in accordance with the procedure prescribed by the Law on the State Registration of Property Rights. 29. According to Article 225 § 2, as in force at the material time, the right of use of accommodation shall originate, be implemented and terminated through a notarised written agreement with the owner. If no agreement is reached regarding the termination of the right of use of accommodation, this right can be terminated upon the owner’s request through court proceedings by paying compensation equivalent to the market value. 30. In accordance with Article 225 § 4, as in force at the material time, a person enjoying the right of use of accommodation can demand that any person, including the owner, eliminate the breaches of his right in respect of the accommodation. 31. According to Paragraph 20, flats in buildings of the State and public housing fund shall be sold as private property to the tenants of the flats in question and their family members indicated in Article 54 of the Housing Code, if there is written consent from all the adult family members. The flat may be sold to them as a common property, if they so wish. 32. According to Paragraph 20, as in force at the material time, registration and deregistration of citizens shall be implemented for the purpose of ensuring necessary conditions for the enjoyment by them of their rights and freedoms as well as for the performance of their obligations before the State and other citizens. 33. According to Paragraph 21, as in force at the material time, citizens shall be registered at only one address at their temporary or permanent place of residence. 34. According to Paragraph 22, as in force at the material time, accommodation in respect of which a citizen does not have the right of ownership, tenancy or sub-tenancy, and which is not his permanent place of residence shall be considered his temporary place of residence. 35. According to Paragraph 23, as in force at the material time, the place where a citizen lives permanently or predominantly shall be considered his permanent place of residence. 36. According to Paragraph 29, a citizen’s application to be registered at a temporary place of residence can be refused if there is no written consent from, inter alia, the owner of the accommodation. Minor children shall be registered, irrespective of whether there is written consent from the owner, at the place of registration of one of the parents or their lawful representative. 37. According to Paragraph 39, the registration of minors below the age of sixteen who live with their parents shall be made through a relevant entry in the accommodation card or the parent’s registration card on the basis of the parents’ identity documents and the minor’s birth certificate. 38. According to Paragraph 44, the registration of citizens registered at a temporary or permanent place of residence shall be cancelled in case of, inter alia, change of place of residence, death, or if the documents and information which served as a basis for the registration were false. The authorities in charge of registration shall cancel the citizen’s registration at the permanent place of residence on the basis of documents within three days and make a relevant entry in his passport.