CASE OF SARUKHANYAN v. ARMENIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Partly admissible;Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
4. The applicant was born in 1962 and lives in Yerevan. 5. The applicant had shared a flat with his parents since 1973. It measured 64.7 sq. m. and had been provided for them by the authorities under the Soviet housing legislation. It was registered in the name of the applicant’s father (the tenant), who died in 1982. In 1988 the applicant’s wife moved in with the applicant. They had two children, who were born in 1989 and 1992. 6. On 10 June 1993 the then Supreme Council (ՀՀ գերագույն խորհուրդ) adopted the Law on Privatisation of the State and Public Housing Fund (Հայաստանի Հանրապետության պետական և հանրային բնակարանային ֆոնդի սեփականաշնորհման մասին ՀՀ օրենք), which outlined the procedure for privatisation of State-owned housing. 7. On 21 February 1994 the applicant’s mother filed an application with the then Executive Committee of People’s Deputies of the Shahumyan District Council of Yerevan (Երևան քաղաքի ժողովրդական պատգամավորների Շահումյանի շրջանային խորհրդի գործադիր կոմիտե) for a declaration that she was the tenant of the flat in question and an order for its privatisation. The relevant sections of this application were filled out in the following manner: “10. We, the adults having the right to accommodation, agree that: (a) the flat be privatised in the name of the tenant, [the applicant’s mother’s name]... 11. We, the adults having the right to accommodation, wish the flat to be privatised as (underline as necessary): (a) a joint tenancy of all family members; [or] (b) a tenancy in common of all family members. [Note: none of these two options was underlined.] 12. Written consent of the adults enjoying the right to the accommodation that is to be privatised: [three signatures, including those of the applicant, his mother and his wife]. 8. On 27 October 1994 the Executive Committee decided to grant the application. This decision stated: “In accordance with the Law on Privatisation of the State and Public Housing Fund of 29 June 1993 ... The Executive Committee decides: 1. To allow the tenancy card of [the flat in question] to be changed from [the applicant’s father’s] name to the name of his wife, [the applicant’s mother], and to privatise [the flat] ...” 9. On 18 November 1994 the authorities furnished an ownership certificate (no. 15351 – թիվ 15351 սեփականության վկայագիր), which indicated: “The entire /share/ [flat in question] is owned by [the applicant’s mother].” 10. On 25 May 2003 a general election to the National Assembly of Armenia was to be held to elect 131 members for a term of four years. Of these, 75 seats were to be allocated by proportional representation (համամասնական ընտրակարգ) to candidates nominated on the party voting lists. The remaining 56 members were to be elected by a single constituency vote (մեծամասնական ընտրակարգ) from single-mandate district constituencies. 11. On 15 March 2003 the applicant submitted the required documents, including a declaration of property (սեփականության մասին հայտարարագիր), to District Election Commission no. 12 (թիվ 12 ընտրատարածքային ընտրական հանձնաժողով) in order to be registered as a single constituency candidate for the relevant constituency. 12. On 19 April 2003 the District Election Commission registered the applicant as a single constituency candidate for constituency no. 12. 13. On 28 April 2003 Election Commission no. 12 addressed a letter to the State Committee of the Real Estate Registry (ՀՀ կառավարությանն առընթեր անշարժ գույքի կադաստրի պետական կոմիտե), inquiring about the property status of several candidates registered in its constituency, including the applicant. 14. On 29 April 2003 the Malatia-Sebastia District Council of Yerevan (Երևանի Մալաթիա-Սեբաստիա թաղապետարան) issued an archival extract addressed to the Shengavit District Division of the State Committee of the Real Estate Registry, informing it that six persons were registered and residing in the flat at the time it was privatised: “1. Sarukhanyan Kerob [the applicant’s father], who was born in 19...; 2. Sarukhanyan Yeghisapet [the applicant’s mother], who was born in 1938; 3. Sarukhanyan Gagik [the applicant], who was born in 1962; 4. Sarukhanyan Yevgenya [the applicant’s wife], who was born in 1966; 5. Sarukhanyan Yelizaveta [the applicant’s older daughter], who was born in 1989; [and] 6. Sarukhanyan Tatevik [the applicant’s younger daughter], who was born in 1992.” 15. On the same date the Real Estate Registry issued a memorandum in reply to the Election Commission’s inquiry stating that the flat was co-owned by six people, including the applicant, on a joint tenancy. 16. On 3 May 2003 the District Election Commission held a meeting at which it decided to annul the registration of the applicant’s candidacy with reference to Article 108 § 7(2) of the Electoral Code, since there was a discrepancy between the memorandum and the applicant’s declaration of property, which contained no mention of the flat. 17. The applicant contested the decision of 3 May 2003 before the Shengavit District Court of Yerevan (Երևան քաղաքի Շենգավիթ համայնքի առաջին ատյանի դատարան). In his application, he stated that he had not falsified any documents and had not, therefore, contravened Article 108 § 7(2). He explained that he had been living in the flat since 1973 and that it had been privatised in his mother’s name by the decision of the Executive Committee of People’s Deputies of the Shahumyan District Council of Yerevan of 27 October 1994. According to the ownership certificate of 18 November 1994, the entire flat was owned solely by his mother. The memorandum of 29 April 2003 contradicted those two documents and did not correspond to the reality. There were not six people in his family, since his father had died in 1982. He finally submitted that he had been unaware of these discrepancies and had filled out the declaration of property in reliance upon the official documents he had in his possession. The District Election Commission had wrongly equated the notions of falsification and inaccuracy. 18. On 8 May 2003 the Shengavit District Court of Yerevan dismissed the applicant’s application. The judgment stated: “The court, having heard the parties and having , [namely] the protocol decision ... of 3 May 2003 of District Election Commission no. 12, the declaration filled in on 15 March 2003 by G. Sarukhanyan concerning the property (possessions) of the citizen nominated as a parliamentary candidate in the single constituency vote to the National Assembly and his and his family’s income in the last year, the decision ... [adopted] on 27 October 1994 by [the Executive Committee of People’s Deputies of the Shahumyan District Council of Yerevan], ownership certificate no. 15351 of 18 November 1994, the memorandum ... [issued] on 29 April 2003 by the [Real Estate Registry], the memorandum ... [issued] on 29 April 2003 by the Malatia-Sebastia District Council of Yerevan, and the memorandum [issued] on 6 May 2003 by the Charbakh Unit of the Shengavit Police Department, finds that the applicant’s claim is unfounded and must be rejected on the ground that District Election Commission no. 12, in adopting the decision ... of 3 May 2003, was guided by the requirements of Article 108 § 7(2) of the Electoral Code, according to which the district election commission must annul the registration of a parliamentary candidate if it is disclosed following the registration that the documents submitted for registration have been falsified[. I]n particular, the applicant G. Sarukhanyan, by falsifying the declaration, concealed his right of joint tenancy in respect of [the flat in question].” 19. The judgment further stated that, in accordance with Article 155 of the Code of Civil Procedure (ՀՀ քաղաքացիական դատավարության օրենսգիրք), it was final and not subject to appeal. 20. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows: “1. The parties have the right to ... [inter alia] appeal against judicial acts.” “1. A court judgment in which a violation of a citizen’s or party’s (union of parties) electoral rights is found shall provide grounds ... for putting an end to ... [the] violations of the right to vote and to stand for election. 2. The court judgment shall become effective on the date of its delivery and shall not be subject to appeal.” 21. The relevant provisions of the Electoral Code, as in force at the material time, read as follows: “1. ...[T]he decisions, acts or omissions of an election commission ... may be appealed against to a higher election commission or to a court within two days from the [date of] delivery of the decision, performance of the act or disclosure of the violation caused by the omission... The decision [(որոշում)] of the first-instance court shall be final with the exception of disputes concerning the non-registration or the annulment of a registration of candidates for the [presidential and parliamentary] elections, including party electoral lists in the vote by proportional representation. In such disputes the court of appeal and the Court of Cassation shall take a decision within three and two days respectively. Court decisions concerning electoral disputes shall become effective from the moment of their delivery...” “1. The decision of ... a party and the application (decision) of an initiative group to nominate a parliamentary candidate to the National Assembly in the single constituency vote shall contain the number of the constituency and the following information about the nominated candidate: (1) surname, first name, patronym; (2) date of birth; (3) place of registration; (4) place of work and post (occupation); (5) party affiliation; (6) declaration of his property (possessions) and of his and his family’s income in the previous year; and (7) passport number...” “1. Candidates to the National Assembly nominated in the single constituency vote shall be registered by a decision of a district election commission. 2. At least 45 days before the election to the National Assembly, the parties and initiative groups, shall submit the following [documents] for the purpose of registering candidates in the single constituency vote: (1) 500 signatures of voters residing in the constituency concerned, confirming with their signatures the nomination of the citizen; (2) the invoice for the election deposit in the amount of one hundred times the minimum wage; (3) a certificate of Armenian nationality for the previous five years; and (4) a certificate of permanent residence in Armenia for the previous five years... ... 7. The district election commission shall annul the registration of a parliamentary candidate, if it is disclosed following the registration that: (1) restrictions provided by this Code are applicable to the candidate; and (2) the documents submitted for registration have been falsified. The registration of a candidate shall be annulled by a decision ... of a district election commission... ... 9. The decision of the district election commission ... annulling the registration of a parliamentary candidate may be contested before a court...” 22. The relevant provisions of the Civil Code (ՀՀ քաղաքացիական օրենսգիրք) read as follows: “1. A property owned by two or more persons shall belong to them through the right of common ownership. 2. A property in common ownership may be in shares divided between each of the owners (tenancy in common) or in undivided shares (joint tenancy).” 23. The relevant provisions of the Housing Code (ՀՀ բնակարանային օրենսգիրք) read as follows: “Apartment buildings and accommodation in other constructions situated on the territory of Armenia shall comprise the housing fund...” “Armenian citizens shall be entitled to receive accommodation in State or public housing fund houses... through a prescribed procedure...” “On the basis of the decision to allocate accommodation in a State or public housing fund property, the [relevant] executive committee shall provide the citizen with a certificate which shall serve as the sole basis for occupying the allocated accommodation...” “Accommodation tenancy agreements in respect of State and public housing fund properties shall be concluded in writing, on the basis of the accommodation certificate, between the lessor, that is the organisation responsible for the maintenance of the building ..., and the tenant, that is the citizen in whose name the certificate has been issued...” “Member of the tenant’s family living with him or her shall jointly enjoy all the rights and bear all the obligations arising under the accommodation tenancy agreement...” “Members of the tenant’s family shall include his spouse, their children and their parents...” 24. The relevant provisions of the Law on Privatisation of the State and Public Housing Fund, as in force at the material time, read as follows: “The privatisation of flats (accommodation) belonging to the State and public housing fund shall be effected on the basis of an application filed by the tenant with the executive body of deputies of the relevant city council, the governor or the mayor of Yerevan provided there is written consent from the adult family members sharing the accommodation...” “The privatisation of housing fund flats shall, with the consent of the adult members of the tenant’s family, be registered in the name of the tenant or any adult member of the tenant’s family as a joint tenancy or as a tenancy in common of all family members. The members of the tenant’s family living with him or her shall enjoy ... all the rights arising from the privatisation of the flat.”