POGHOSYAN v. ARMENIA
Inadmissible
David Thór Björgvinsson
The applicant, Mr Vardan Poghosyan, is an Armenian national who was born in 1932 and lives in Yerevan. He was represented before the Court by Ms L. Hakobyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date, the applicant instituted civil proceedings against three individuals, A., P. and H., seeking to recover certain property and damages for lost profit. On 21 June 2002 the Avan and Nor Nork District Court of Yerevan (Երևանի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարան) partially granted the applicant's claim and ordered that the property belonging to him be returned. His claim for damages was rejected. On 26 August 2002 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) upheld this judgment. On 25 October 2002 the Court of Cassation (ՀՀ վճռաբեկ դատարան) quashed this judgment in its part concerning damages and remitted for a new examination. On 26 March 2003 the Civil Court of Appeal partially granted the applicant's claim for damages and awarded him 1,238,160 Armenian drams (AMD) (approx. EUR 1,960 at the material time) to be paid jointly by the co-defendants. On 25 April 2003 the Court of Cassation upheld this judgment in the final instance. The judgment entered into force. On 7 May 2003 the Court of Appeal issued a writ of execution. On 12 May 2003 the Department for the Enforcement of Judicial Acts (the DEJA) (Դատական ակտերի հարկադիր կատարումն ապահովող ծառայություն) instituted enforcement proceedings. On the same date, the Bailiff (հարկադիր կատարող) made a decision to arrest any immovable and movable property belonging to the co-defendants. On 18 May 2003 the Bailiff made inquiries with various public authorities, seeking to disclose such property. On 23 May 2003 and 18 June 2003 the Bailiff was informed by the vehicle registration authorities that no cars were registered in the co-defendants' names. On 2 and 12 June 2003 the Bailiff was informed by the tax authorities that the co-defendants were not registered as tax payers. On 19 June 2003 the Bailiff visited the co-defendants for enforcement purposes and the same day drew up records on the failure to disclose any movable property to be confiscated. As to immovable property, the only such property disclosed was a quarter share in a flat belonging to co-defendant P. Another share in the same flat belonging to co-defendant A. had been already confiscated by the courts for him to be able to meet another judgment debt. On 8 July 2003 the Bailiff decided to arrest the share in the flat belonging to defendant P. By a letter of 11 July 2003 the Bailiff instructed the applicant to apply to the relevant court, to have this share severed and confiscated in accordance with Article 200 of the Civil Code. On 15 August 2003 the applicant lodged an application with the Avan and Nor Nork District Court of Yerevan addressed to the President and the judge who had presided over his case, with the following content: “To: The President of the Avan and Nor Nork District Court, [Mr. K], and the judge who had presided over the trial, [Mr. B.] From: [The applicant (address)] 15.08.03 Application-claim Dear [Mr. K. and B.], A sum of 1,238,160 drams was awarded to me by a final judgment made against [co-defendants A., P. and H.]. The court seized the flat ... belonging to the above mentioned persons. However, the DEJA has been informed in writing that by a judgment of 20 August 2002 ... [co-defendant A.] lost his ownership in respect of this flat, despite the fact that this flat should have been seized [already] on 5 August 2002. For this reason, the DEJA instructs me to have the share in the flat belonging to [co-defendant P.] severed and confiscated by applying to [your court]. Based on the above, I ask you to fulfil the instruction given by the DEJA.” Attached to this application were a copy of the judgment of 26 March 2003 and the Bailiff's letter of 11 July 2003. By an undated letter the Acting President of the Avan and Nor Nork District Court of Yerevan (Երևանի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարանի նախագահի ժամանակավոր պաշտոնակատար) informed the applicant that: “In reply to your application I would like to inform you that the court examines civil cases and issues judgments, following which [the DEJA] enforces these judgments on the basis of execution writs.” On 8 September 2003 the applicant lodged an application with the Civil Court of Appeal addressed to judge K. who had presided over his case, with virtually the same content. At the end the applicant added: “I ask you to issue a decision to sever and confiscate the share belonging to [co-defendant P.], since, after having applied to the first instance court, I have received a meaningless reply.” On 19 October 2003 the applicant complained to the President of the Civil Court of Appeal that: “As instructed by the [relevant] branch of the DEJA, I applied to your court seeking to have a share in a flat belonging to [co-defendant P.] severed and confiscated, since, after having applied with this request to the Avan and Nor Nork District Court, I have received an indefinite reply. However, your judge [K.] avoids giving any written reply, whether positive or negative.” By a letter of 23 October 2003 judge K. replied that the Appeal Court had no competence to deal with obstacles arising in the enforcement stage and advised the applicant to apply to the relevant first instance court. On an unspecified date, following the communication of the present application to the respondent Government, i.e. 25 February 2005, co-defendant P. voluntarily paid the sum of money he owed to the applicant. On an unspecified date, the Bailiff decided to terminate the enforcement proceedings. According to Article 34, the Bailiff must implement the enforcement activities within two months from the date of receipt of the execution writ, which does not include the period when the enforcement activities are in the process of an auction or the period required for finding the debtor or disclosing any property belonging to him, unless the law prescribes a shorter period for the enforcement or an immediate enforcement. According to Article 200 §§ 1 and 2, if a co-owner of a shared or joint property does not have other sufficient means, the creditor can seek to have the debtor's share severed from the common property in order to have it confiscated. If it is impossible to sever the share in kind or if the other co-owners of the shared or joint property object to it, the creditor can require the other co-owners of the common property to buy the debtor's share at the market price in order to pay the debt. If the other co-owners of the common property refuse to buy the debtor's share, the creditor can have the debtor's share in the common property confiscated through court proceedings and sold at a public auction.” According to Article 3, the court institutes civil proceedings only on the basis of a claim or an application. Article 87 §§ 1, 2 and 3 provides that an application to court must be submitted in writing. The application must contain: 1) the name of the court applied to; 2) names and addresses of the parties; 3) the sum sought, if the claim has a value; 4) circumstances on which the claims are based; 5) documents substantiating the claims; 6) an estimate of the contested sum or the sum to be confiscated; 7) the applicant's demands, and if several defendants are sued, the applicant's demands directed against each of them; and 8) a list of attached documents. The application may also contain other relevant information, if they are necessary for the proper determination of the case, as well as the applicant's motions. The application must be signed by the applicant or an authorised representative. According to Article 92 §§ 1, 2, 3 and 4, the judge shall return the application if, inter alia, the requirements contained in Article 87 as to its form and substance have not been complied with. The court shall adopt a decision to return the application within three days of its receipt. If the application is returned, the applicant could re-apply after having corrected its defects. If disagreeing with the decision to return the application, the applicant can apply to the president of the court for a review, within three days of its receipt. The president of the court shall examine the application within three days and adopt a decision on it. Article 144 §§ 1 and 2 provides that a judicial act, which does not determine the case on its merits, shall be adopted in the form of a decision. A decision adopted as a separate document shall contain: 1) the name of the court, its composition, the case number, the date, the subject of the dispute; 2) the names of the parties; 3) the question to be decided; 4) the reasons which led to the court's conclusions, including references to laws and other legal acts; 5) the conclusion on the question being decided; and 6) the procedure and time-limit for lodging an appeal, if the decision is subject to appeal. According to Article 1, this Law regulates the relations connected with the examination, in a procedure and within the time-limits prescribed by law, of proposals, applications and complaints of citizens and legal persons by the State, public and other authorities, the local self-government, the relevant officials and organisations, with the response to the facts of violations of rights and lawful interests of citizens and legal persons, and with the elimination and prevention of such violations. This Law does not apply to the procedure for the examination of proposals, applications and complaints of citizens prescribed by the Code of Criminal Procedure, the Code of Civil Procedure, the labour and other laws. Article 4 provides that the State authorities, the local self-government and the relevant officials are obliged, inter alia, to admit and to examine, within the scope of their competence and in the procedure and within the time-limits prescribed by law, the proposals, applications and complaints of citizens, to reply to them and to take other relevant measures.