CASE OF KAREN POGHOSYAN v. ARMENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Robert Spano
5. The applicant was born in 1969 and lives in Yerevan. 6. In 1991 the applicant, without permission, constructed a building consisting of a shop/storage and an unfinished construction and measuring in total 500 sq. m., on a 1000 sq. m. plot of land situated in a suburb of Yerevan. The applicant alleged that this land was not being used by anyone so he had cleaned it and constructed the building using his own means. It appears that the applicant used this property for the following ten years. 7. In 2001 the applicant instituted special (non-contentious) proceedings in the Shengavit District Court of Yerevan seeking recognition of his ownership right in respect of that building by virtue of acquisitive prescription under Article 187 of the Civil Code (CC), as well as his right of use in respect of the plot of land. 8. On 8 June 2001 the Shengavit District Court decided to recognise the applicant’s ownership right in respect of the building and to leave the plot of land under his use. The District Court found that the building in question had no registered owners and the applicant had openly and in good faith had it in his possession and used it without interruption for over ten years, which entitled him to become its owner under Article 187 of the CC. 9. No appeal was lodged within the prescribed 15-day time-limit, so this judgment became final. 10. On 9 April 2002 a certificate was issued by the local branch of the State Real Estate Registry on the basis of this judgment, confirming the applicant’s ownership in respect of the building. The certificate further stated that, by virtue of Article 118 § 4 of the Land Code (LC), the applicant enjoyed a right of lease in respect of the plot of land for a period of 99 years. 11. On 20 May 2003 the applicant, pursuant to Article 118 § 7 of the LC, paid the cadastral value of the plot of land which amounted to AMD 1,465,500 Armenian drams (AMD). 12. On 22 May 2003 the applicant’s right of ownership was registered in respect of the plot of land and a relevant ownership certificate was issued. 13. The applicant regularly paid property tax on both the building and the plot of land in the following years. 14. On 27 July 2008 а topographic examination of the land was carried out by a representative of “Townplanning” State Closed Joint-Stock Company founded by, and acting on behalf of, the Yerevan Mayor’s Office. The relevant diagram mentioned the applicant as the owner of the land in question. 15. On 11 November 2008, a third person addressed a letter to the Yerevan Mayor’s Office, stating that she had bought a plot of land at an auction held on 16 June 2008. When she later applied to the local branch of the State Real Estate Registry to have her ownership right registered, she was informed that the plot of land in question overlapped with the neighbouring plot of land. She requested that the auction be cancelled in its part concerning the overlapping part of the plot, the money paid for that part be returned and a new sale contract be concluded in respect of the remaining part of her plot. 16. The Government alleged that the neighbouring plot of land was the applicant’s and that following this letter there was an exchange of correspondence between the Yerevan Mayor’s Office and the local branch of the Real Estate Registry. 17. On 24 February 2009 the local branch of the State Real Estate Registry addressed a letter to the Mayor’s Office stating, in reply to an inquiry by the Mayor dated 17 February 2009, that the registration of the applicant’s ownership and lease rights had been performed on 9 April 2002 on the basis of the judgment of the Shengavit District Court of Yerevan of 8 June 2001. This letter was received by the Mayor’s Office on 18 March 2009 and attached to it was a copy of the judgment of 8 June 2001. 18. On 7 May 2009 the Deputy Prosecutor General lodged an appeal against the judgment of 8 June 2001 seeking to quash it and to dismiss the applicant’s acquisitive prescription claim, arguing that the District Court had erred in its interpretation and application of the relevant provisions of the substantive law. The land had belonged to the State and hence had not been ownerless at the material time, so the District Court should not have applied the acquisitive prescription rules to the case. As a result, the judgment had damaged the State’s pecuniary interests. The Deputy Prosecutor General further argued that the District Court had been obliged to involve, as parties to the proceedings, the local branch of the Real Estate Registry, as well as the Yerevan Mayor’s Office as the authority vested with management of land. By failing to do so, and adopting a judgment affecting their rights in their absence, the District Court had also violated the procedural law. The Deputy Prosecutor General requested the Court of Appeal to restore the expired time-limit for appeal, arguing that the Yerevan Mayor’s Office had not been aware of the judgment of 8 June 2001 and therefore had been deprived of the possibility of lodging an appeal, while the Prosecutor’s Office had been informed about that judgment by the Mayor’s letter of 24 February 2009. 19. On 18 May 2009 the Yerevan Mayor’s Office also lodged an appeal against the judgment of 8 June 2001, raising similar substantive and procedural arguments. As regards the procedural issues, it claimed that the Shengavit District Court had violated the relevant provisions by examining the case through special proceedings and not involving it as a party, despite the fact that the Mayor’s Office was the authority vested with management of public land in Yerevan and therefore the judgment affected its rights. The Mayor’s Office further claimed that it had become aware of the contested judgment by a letter from the local branch of the State Real Estate Registry dated 24 February 2009, which had been received by the Mayor’s Office on 18 March 2009. It finally added that the letter of the Judicial Department of Armenia of 6 February 2009 had been accompanied by a copy of another judgment of the Shengavit District Court, dated 26 June 2001, which was unrelated to the present case. 20. On an unspecified date, the applicant lodged a reply to the appeals. He argued, inter alia, that on 20 May 2003 he had paid the cadastral value of the plot of land and bought it through direct sale. Furthermore, the fact that the Yerevan Mayor’s Office had been aware of his becoming the new owner of the plot of land was confirmed by the compulsory payments he had to make for that property. Thus, on the one hand, by virtue of Article 61 of the LC, the Yerevan Mayor’s office had alienated the plot of land to him, received a sum of money and since then had continued to levy property tax and, on the other hand, it now claimed to be unaware of that transaction. Moreover, the Yerevan Mayor’s Office had been notified of his becoming the new owner of the plot of land by virtue of the Law on the State Registration of Rights in Respect of Property. Hence, the Mayor’s Office had been aware of the registration of his property rights on the basis of the court judgment of 8 June 2001 and of the direct sale of the plot of land, and had not – as it claimed – become aware of that judgment from a letter of 24 February 2009. 21. On 12 June 2009 the Civil Court of Appeal decided, with reference to Article 207 § 5 of the Code of Civil Procedure (CCP), to admit the appeals, stating: “The Yerevan Mayor’s Office and the General Prosecutor have missed the timelimit for appeal prescribed by law and they submitted motions seeking to find this to be valid, arguing that the Mayor’s Office found out about the judgment [of 8 June 2001] from a copy of the judgment attached to the letter of the Judicial Department of Armenia of 6 February 2009, while the General Prosecutor’s Office from the letter of the Yerevan Mayor’s Office of 24 February 2009. ... The court finds that the motions of the Yerevan Mayor’s Office and the General Prosecutor’s Office are substantiated and must be granted.” 22. On 18 July 2009 the Civil Court of Appeal decided to grant the appeals, to quash the judgment of 8 June 2001 and to dismiss the applicant’s acquisitive prescription claim. The Court of Appeal found, in particular, that the Shengavit District Court had applied Articles 178 and 187 of the CC, which were not applicable to the case, and failed to apply Articles 168 and 188 of the CC, thereby reaching incorrect findings. The building in question was an unauthorised construction built on a plot of land belonging to the State. Hence, only the State could have acquired ownership rights in respect of that building. 23. The applicant lodged an appeal on points of law. 24. On 9 September 2009 the Court of Cassation decided to return the appeal as inadmissible for lack of merit. 25. Following these decisions, the authorities instituted proceedings against the applicant seeking annulment of registration of his ownership rights in respect of the building and the plot of land, which was granted by the courts.