CASE OF AMIRKHANYAN v. ARMENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
5. The applicant was born in 1941 and lives in Yerevan. 6. A third person, G., owned a plot of land, a part of which, with her consent, was separated by a fence and used by another person, J. 7. On 21 April 1998 G. concluded an agreement with J., according to which she gave a part of her plot of land, measuring 285 sq. m., to him. It appears that the plot of land actually used by J., as separated by the fence, was 38.75 sq. m. bigger than the 285 sq. m. plot given by G. The 38.75 sq. m. also belonged to G. In this connection, another agreement was reached between G. and J., according to which G. gave her consent for J. to become the owner of the whole plot of land used by him. However, it appears that J.’s ownership rights were officially registered only in respect of the plot of land measuring 285 sq. m. 8. On 28 April 1998 the applicant bought the larger plot of land from J. and, since the fence was still in place, continued to use also the 38.75 sq. m. strip of land. 9. In 2004 G. instituted proceedings against the applicant, seeking to take the 38.75 sq. m. strip of land used by the applicant, claiming her ownership rights. 10. On 14 December 2006 the Erebuni and Nubarashen District Court of Yerevan granted the claim, ordering the applicant to release the strip of land to G. 11. On an unspecified date the applicant lodged an appeal. 12. On 9 March 2007 the Civil Court of Appeal granted the appeal and dismissed G.’s claim. In particular, the Court of Appeal found that since G. had agreed that J. become the owner of the plot of land used by him, as separated by the fence, she had relinquished her rights in respect of the strip of land in favour of J. and, consequently, in favour of the applicant. 13. This judgment was subject to appeal on points of law within six months from the date of its delivery. 14. On 26 March 2007 G. lodged an appeal on points of law against the judgment of 9 March 2007 with the Court of Cassation, claiming that it had been adopted in violation of substantive and procedural law. As a ground for admitting her appeal on points of law, G. submitted, pursuant to Article 231.2 § 1 (3) of the Code of Civil Procedure (the CCP), that the violations of the substantive and procedural law might have grave consequences, such as deprivation of her ownership rights in respect of the plot of land. 15. On 7 April 2007 amendments were introduced to the CCP which stipulated that there was no right to bring an appeal on points of law more than once, unless the Court of Cassation – when returning an appeal – fixed a time-limit to correct and re-submit it (see paragraph 26 below). 16. On 12 April 2007 the Court of Cassation decided to return G.’s appeal as inadmissible for lack of merit. The reasons provided were as follows: “The Civil Chamber of the Court of Cassation ... having examined the question of admitting [G.’s appeal lodged against the judgment of the Civil Court of Appeal of 9 March 2007], found that it must be returned for the following reasons: 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]. ... At the same time, the Court of Cassation does not find it appropriate to fix a timelimit for correcting the shortcomings and lodging the appeal anew.” 17. This decision entered into force from the moment of its delivery and was not subject to appeal. 18. On 7 September 2007 G. lodged another appeal on points of law with the Court of Cassation against the judgment of the Court of Appeal of 9 March 2007, alleging violations of substantive and procedural law. As a ground for admitting her appeal G. indicated, in addition to the ground mentioned in her appeal of 26 March 2007, that the judicial act to be adopted by the Court of Cassation on her case might have a significant impact on the uniform application of the law, and that the contested judgment of the Court of Appeal contradicted a judicial act previously adopted by the Court of Cassation. 19. On 1 October 2007 the Court of Cassation decided to admit the appeal for examination. The reasons provided were as follows: “[The appeal] must be admitted for examination since it satisfies the requirements of Articles 230 and 231.2 § 1 of [the CCP].” 20. On 8 October 2007 the applicant lodged a reply to G.’s appeal with the Court of Cassation where, inter alia, he stated that the admission of G.’s second appeal by the Court of Cassation was in violation of the principle of res judicata and his property rights. When the Court of Cassation, by its decision of 12 April 2007, had returned G.’s appeal without fixing a timelimit to correct any shortcomings and to re-submit the appeal, the judgment of the Court of Appeal of 9 March 2007 became final and binding. 21. On 12 December 2007 the Court of Cassation examined G.’s appeal on the merits and decided to grant it partially by quashing the judgment of the Court of Appeal of 9 March 2007 in its part related to G.’s property claim in respect of the plot of land and remitting the case for a fresh examination. The Court of Cassation found that the Civil Court of Appeal, when reaching its conclusions, had failed to take into account an expert opinion which was among the materials of the case file, as well as to indicate the provisions of the domestic law on which its judgment had been based. 22. On 1 April 2008 the General Jurisdiction Court of Erebuni and Nubarashen Districts of Yerevan conducted a fresh examination of G.’s claim and granted it by recognising G.’s ownership rights in respect of the strip of land in question. 23. On an unspecified date the applicant lodged an appeal. 24. On 10 July 2008 the Civil Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the District Court.