CASE OF SAFARYAN v. ARMENIA
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;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney
5. The applicant was born in 1934 and lives in Yerevan. 6. She owned a plot of land which measured 815 sq. m. and was situated in the centre of Yerevan. She also owned two houses and a garage situated on the plot. It appears that the applicant shared her household with her four children. 7. Before 1993 the applicant, without permission, built on her plot of land a pavilion (շվաքարան) measuring about 230 sq. m which she used as a venue for trade. The pavilion featured in the ownership certificate issued to the applicant on 30 November 1998 as a “half-ruined construction”. 8. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs, having a total area of 345,000 sq. m. It appears that the applicant’s plot of land fell within one such zone. 9. On 7 May 2004 the applicant applied to a notary office with a request to donate her property to her four children and seeking to make that transaction official. 10. The notary office refused this request, with reference to Government Decree no. 1151-N, stating that the applicant’s property was situated in an expropriation zone. 11. The applicant contested this refusal before the courts. It appears that on 14 June 2004 the Kentron and Nork-Marash District Court of Yerevan dismissed her claim. The applicant lodged an appeal. 12. On 28 July 2004 the Civil Court of Appeal granted the applicant’s claim and ordered the notary office to formalise the transaction. It found that the refusal was in violation of the law since the applicant’s request derived from Article 163 of the Civil Code. Besides, Government Decree no. 1151-N did not envisage any limitations on the type of transaction that the applicant sought to conclude. No appeal was lodged against this judgment, which entered into force. 13. On an unspecified date the applicant applied to the State Real Estate Registry (“SRER”), seeking to divide her property into four parts and to transfer ownership to her children. She also requested that her title be registered in respect of the pavilion. 14. It appears that on 23 February 2004 the SRER refused both requests. As regards the refusal of the second request, it appears that the SRER referred to Article 221 of the Civil Code and Government Decree no. 1748N. 15. The applicant contested this refusal before the courts. 16. In the proceedings before the Kentron and Nork-Marash District Court of Yerevan the representative of the SRER submitted that the applicant’s request had been refused because her property was situated in an expropriation zone and included unauthorised constructions. Its division would be contrary to Government Decrees nos. 1151-N and 2020N. 17. On 20 May 2004 the District Court decided to dismiss the applicant’s claim. It found that the applicant was the sole owner of the property in question and it was groundless to seek its division or sever any part of it. As regards the registration of ownership in respect of the pavilion, this claim was similarly groundless since the applicant’s plot of land was situated in an expropriation zone, while the procedure prescribed by Government Decree no. 1748-N, pursuant to its paragraph 3, did not apply to unauthorised constructions built on plots of land falling within such expropriation zones. 18. On 28 May 2004 the applicant lodged an appeal. 19. On 29 April 2005 the Civil Court of Appeal upheld the judgment of the District Court. The Court of Appeal found that the applicant had applied to the SRER with a request to have her property divided into four parts, which had been refused because the property was situated in an expropriation zone and included unauthorised constructions. Its division into four parts would be contrary to Government Decrees nos. 1151-N and 2020-N. As regards the refusal to register her title in respect of the pavilion, the Court of Appeal recapitulated the findings of the District Court. 20. On 12 May 2005 the applicant lodged an appeal on points of law. In her appeal she argued that the Court of Appeal had ignored the findings made in its final judgment of 28 July 2004. Furthermore, the fact that the plot of land was situated in an expropriation zone could not serve as a basis for restricting her rights as an owner which she enjoyed under Article 163 of the Civil Code. She further argued that the pavilion in question was immovable property and the refusal to register her title in its respect deprived her of the right to receive compensation at the time of expropriation. 21. On 17 June 2005 the Court of Cassation dismissed the applicant’s appeal on the same grounds.