CASE OF NIKOGHOSYAN v. ARMENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Armen Harutyunyan;Ledi Bianku
4. The applicant was born in 1953 and lives in Yerevan. 5. The applicant is a former employee of a State Revenue Committee (hereinafter “the Committee”). By an order of the Head of the Committee of 27 February 2009 the applicant was dismissed from his job. 6. On 20 March 2009 the applicant brought an action against the Committee, requesting reinstatement in his job and payment for forced absence up to the day of his reinstatement. 7. On 11 August 2009 the Kentron and Nork-Marash District Court of Yerevan found in the applicant’s favour. In particular, it decided to declare the order of 27 February 2009 void. Moreover, it ordered the applicant’s reinstatement in his previous position and awarded him compensation for lost earnings. 8. On 2 September 2009 the Committee appealed against the District Court’s judgment. By a decision of 7 October 2009 the Civil Court of Appeal rejected the appeal and upheld the District Court’s judgment. 9. On 2 November 2009 the Committee lodged an appeal on points of law against the decision of 7 October 2009 with the Court of Cassation. 10. On 9 December 2009 the Court of Cassation decided to declare the appeal inadmissible for lack of merit, so the judgment of 11 August 2009 became final. 11. On 27 January 2010 the Kentron and Nork-Marash District Court of Yerevan issued a writ of execution in respect of its judgment of 11 August 2009. 12. On 5 February 2010 the bailiff instituted enforcement proceedings. On the same date he decided to oblige the Committee to comply with the requirements of the writ within two weeks. 13. By a letter dated 11 February 2010 the bailiff requested that the Committee comply with the requirements of the writ. 14. On 23 March 2010 the bailiff received a response from the Committee, stating that it was impossible to reinstate the applicant in his job, since the structure of the Committee had been modified and the applicant’s former position did not exist anymore. 15. On 20 April 2010 the applicant was paid 937,114 Armenian drams (AMD) for his forced absence, calculated from 27 February 2009 until 9 December 2009, the date on which the judgment in his favour became final. 16. The applicant sent several letters to the Committee and to different officials, complaining that no measures had been taken to enforce the final judgment of 11 August 2009 and requesting that the Committee be compelled to comply with that judgment. 17. On 18 July 2011 the bailiff decided to terminate the enforcement proceedings on the grounds that it was impossible to enforce the judgment of 11 August 2009. In particular, the applicant could not be reinstated because his previous position was no longer vacant. 18. On 25 July 2011 the applicant contested the bailiff’s decision before the Administrative Court. 19. On 5 December 2011 the Administrative Court found in favour of the applicant and cancelled the bailiff’s decision of 18 July 2011. 20. On 20 January 2012 the supervising bailiff decided to set aside the bailiff’s decision of 18 July 2011 and reopen the enforcement proceedings. 21. By a letter dated 5 March 2012 the bailiff again requested that the Committee reinstate the applicant in his previous position and award him compensation for lost earnings until the date of his reinstatement. The Committee replied that the applicant’s former position had ceased to exist as a result of the Governmental decree of 15 December 2011. 22. On 26 April 2012 the bailiff again decided to terminate the enforcement proceedings on the grounds that it was impossible to enforce the judgment of 11 August 2009, since the structural unit of the Committee where the applicant had been working had ceased to exist. 23. On 7 May 2012 the applicant contested that decision before the Administrative Court. He alleged, in particular, that the judgment of 11 August 2009 had not been enforced: firstly, he had not been awarded the full sum for his forced absence, and secondly, he had not been reinstated in his previous position. 24. By a judgment of 16 October 2012 the Administrative Court decided to grant the applicant’s claim in respect of the payments for his forced absence, stating that the period should be calculated up to 15 December 2011, the day on which that particular unit of the Committee had ceased to exist. As to the applicant’s second claim, the Administrative Court stated that the bailiff’s decision in this respect was lawful, since the applicant’s reinstatement had been impossible. 25. On 9 November 2012 the applicant lodged an appeal against the judgment of the Administrative Court. 26. On 21 February 2013 the Administrative Court of Appeal dismissed the applicant’s claim and upheld the Administrative Court’s decision of 16 October 2012. 27. On 11 March 2013 the applicant lodged an appeal on points of law against the decision of 21 February 2013 with the Court of Cassation. 28. On 27 March 2013 the Court of Cassation decided to declare the appeal inadmissible for lack of merit. 29. On 19 April 2013 the bailiff decided to reopen the enforcement proceedings. 30. On 4 November 2013 the applicant was invited to the Committee and the Committee made him a verbal offer of a similar position in another tax inspectorate unit, but this offer was later turned down by the applicant. 31. Three days later, via telephone, the applicant was again invited to the Committee, but he failed to appear. 32. On 8 November 2013 the Head of the Human Resources Department of the Committee sent a letter to the applicant, offering to reinstate him in a position similar to his previous one, that is, the position of a tax inspector in Current Control Division no. 2 of the Shengavit Tax Inspectorate. The letter also stated that the compensation for the applicant’s forced absence up to that date amounted to AMD 4,017,860. 33. On the same day the applicant refused to accept the Committee’s offer. He claimed that the compensation for his forced absence should amount to AMD 9,975,970. In response, the Committee informed the applicant that it would consider the above-mentioned sum if the applicant submitted substantiating calculations. 34. On 9 June 2015 the amount of AMD 4,017,860 was transferred by the Committee to the bailiff’s account. On 18 June 2015 the enforcement proceedings were terminated by the bailiff as this amount had been further transferred to the applicant’s bank account. 35. On 22 July 2015 the applicant appealed to the Administrative Court, requesting that the bailiff’s decision be quashed. 36. On 22 May 2016 the Administrative Court allowed the applicant’s appeal and quashed the bailiff’s decision of 18 June 2015. That judgment became final on 26 May 2016.