NERSESYAN v. ARMENIA
Inadmissible
Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Beniamin Nersesyan, is a Canadian national who was born in 1954 and lives in Misissauga, Canada. He was represented before the Court by Ms A. Atoyan, a lawyer practising in Yerevan. The respondent Government were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Since 1993 the applicant has been living in Canada. 4. On 2 August 2006 he instituted civil proceedings against his brother, seeking to have annulled a number of documents relating to his brother’s acquisition of their deceased father’s estate and to be recognised as one of the heirs. He alleged that his father, prior to his death in September 1998, had made a will which named him and his brother as heirs. The notary, when formalising the inheritance in March 1999 pursuant to the law, had failed to verify this circumstance before issuing his brother and mother with an inheritance certificate. 5. On 18 October 2006 the Kentron and Nork-Marash District Court of Yerevan (Երևանի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) examined and dismissed the applicant’s claim as unsubstantiated. The District Court found that the applicant had been aware of his father’s death and was therefore aware that an inheritance procedure had been opened. In spite of this, he had missed the six month time-limit prescribed by law to claim the inheritance. 6. On an unspecified date the applicant lodged an appeal. 7. On 13 December 2006 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) upheld the judgment of the District Court, reaching similar conclusions. 8. On 25 December 2006 the applicant lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան), claiming various substantive violations of the law. Pursuant to Article 231.2 § 1 of the Code of Civil Procedure (“the CCP”), he argued that these violations would have grave consequences, namely the loss of his property. He further argued that the decision to be adopted by the Court of Cassation would have a significant impact on the uniform application of the law, claiming that a person was not obliged to know about the existence of a will on the day of the testator’s death. He finally argued that the judgment of the Court of Appeal contradicted a decision of the Court of Cassation adopted on 3 March 2005 in connection with another dispute. A copy of that decision was attached to the applicant’s appeal. 9. On 15 January 2007 the Court of Cassation, sitting in camera as a panel of seven judges, decided to return the appeal, that is, to declare it inadmissible. The reasons provided were as follows: “The Civil Chamber of the Court of Cassation ... having examined the question of admitting [the applicant’s appeal lodged against the judgment of the Civil Court of Appeal of 13 December 2006], found that it must be returned with the following reasoning: Pursuant to Article 230 § 1 (4.1) of [the CCP] an appeal on points of law must contain any of the grounds [required by] Article 231.2 § 1 of [the CCP]. 10. The relevant provisions of the Constitution read as follows: “Everyone has the right to an effective remedy to have his rights and freedoms protected by the judicial and other public authorities. Everyone has the right to defend his rights and freedoms by any means not prohibited by law. ...” “Everyone has the right to a public hearing of his case by an independent and impartial court within a reasonable time in conditions of equality and with respect for all fair trial requirements in order to have his violated rights restored, as well as the validity of the charge against him determined. ...” “...The highest judicial instance in Armenia, except matters falling within constitutional jurisdiction, is the Court of Cassation which is called upon to ensure the uniform application of the law. ...” 11. The relevant provisions of the CCP, as in force at the material time, read as follows: Article 219: Entry into force of judgments of the Court of Appeal “Judgments of the Court of Appeal enter into force from the moment of their delivery.” Article 222: Review of judicial acts through cassation proceedings “1. Judgments of the first instance courts, the Commercial Court and the Court of Appeal which have entered into force ... can be reviewed through cassation proceedings based on the appeals brought by persons indicated in Article 223 of this Code.” Article 223: Persons entitled to bring appeals on points of law “2. Appeals on points of law against judgments of lower courts which have entered into force can be brought by (1) the parties to the proceedings; [and] (2) persons who were not parties to the proceedings but whose rights and obligations were affected by the judicial act deciding on the merits of the case.” “1. Appeals on points of law lodged against judgments of the first instance courts, the Commercial Court and the Court of Appeal which have entered into force ... are examined by the Civil Chamber of the Court of Cassation (hereafter, Court of Cassation). 2. The objective of the Court of Cassation’s activity is to ensure the uniform application of the law and its correct interpretation, and to promote the development of the law.” “An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights...” “1. An appeal on points of law can be lodged within six months from the date of entry into force of the judicial act of a lower court deciding on the merits of the case.” “1. An appeal on points of law must contain (1) the name of the court to which the appeal is addressed; (2) the appellant’s name; (3) the name of the court that has adopted the judgment, the case number, the date on which the judgment was adopted, the names of the parties, and the subject-matter of the dispute; (4) the appellant’s claim, with reference to the laws and other legal acts and specifying which provisions of substantive or procedural law have been violated or wrongly applied ...; (4.1) arguments required by any of the subparagraphs of paragraph 1 of Article 231.2 of this Code; [and] (5) a list of documents enclosed with the appeal. 2. An appeal on points of law shall be signed by the appellant. 3. A document certifying payment of the State fee shall be attached to the appeal.” “1. An appeal on points of law shall be returned if it does not comply with the requirements of Article 230 and paragraph 1 of Article 231.2 of this Code or if it has been lodged by a person whose rights have not been violated. 2. The Court of Cassation shall adopt a decision to return an appeal on points of law within ten days after the receipt of the appeal. 3. In its decision to return an appeal on points of law the Court of Cassation may fix a time-limit for correcting the shortcoming and lodging the appeal anew.” “1. The Court of Cassation shall admit an appeal on points of law, if (1) the judicial act to be adopted on the given case by the Court of Cassation may have a significant impact on the uniform application of the law, or (2) the contested judicial act contradicts a judicial act previously adopted by the Court of Cassation, or (3) a violation of the procedural or the substantive law by the lower court may cause grave consequences, or (4) there are newly discovered circumstances. 2. The Court of Cassation sitting as a panel composed of the President of the Court of Cassation and the judges of the chamber shall decide whether appeals on points of law lodged with the Court of Cassation comply with the requirements of Article 230 of this Code and paragraph 1 of this article and should be admitted. 3. An appeal on points of law shall be admitted if at least three of the judges of the Court of Cassation vote in favour of admitting it. This decision of the Court of Cassation is not subject to appeal.” 12. The above Articles 231.1 and 231.2 of the CCP were amended into Articles 233 and 234 by the Law of 28 November 2007 with effect from 1 January 2008, following the Constitutional Court’s decision of 9 April 2007 (see paragraph 14 below), and read as follows: “... 2. The Civil and Administrative Chamber of the Court of Cassation shall adopt a decision to return an appeal on points of law within ten days after the receipt of the case file by the Court of Cassation. The decision to return an appeal on points of law must be reasoned, except for the cases in which an appeal on points of law is returned for the lack of the ground stipulated by Article 234 § 1 (1). ...” “1. The Court of Cassation shall admit an appeal on points of law if, in its opinion, the appeal substantiates that (1) the decision of the Court of Cassation concerning the question raised in the appeal may have a significant impact on the uniform application of the law, or (2) the contested judicial act prima facie contradicts a decision previously adopted by the Court of Cassation, or (3) a prima facie judicial error made by the lower court which may cause or have caused grave consequences. ...” 13. The new Article 233 § 2 of the CCP was further amended by the Law of 26 December 2008 with effect from 1 January 2009, following the Constitutional Court’s decision of 8 October 2008 (see paragraph 15 below) and currently reads as follows: “... 2. The Court of Cassation shall adopt a decision to return an appeal on points of law within one month after the receipt of the case file by the Court of Cassation. The decision to return an appeal on points of law must be reasoned. ...” 14. The Constitutional Court found paragraph 2 of Article 231.1 in its part concerning the lack of a requirement to provide reasons for a decision to return an appeal on points of law incompatible with, inter alia, Articles 18 and 19 of the Constitution, because it failed to ensure legal safeguards for an effective and accessible administration of justice. The remaining contested provisions were found to be compatible with the Constitution. 15. The Constitutional Court found paragraph 2 of Article 233 in its part reading “except for the cases in which an appeal on points of law is returned for the lack of the ground stipulated by Article 234 § 1 (1)” incompatible with Articles 18 and 19 of the Constitution. The Constitutional Court noted that the amendments introduced following its decision of 9 April 2007 did not sufficiently ensure the relevant legal guarantees. It found that the legislature, by including the exception in question, failed to ensure the implementation of the above-mentioned decision. The Constitutional Court explained that the requirement of a reasoned decision did not concern this or that particular admissibility ground of an appeal on points of law, but concerned all such grounds. This requirement aimed at ensuring the legitimate and lawful exercise of the court’s discretionary powers and an individual’s confidence in a judicial act.