CASE OF DNGIKYAN v. ARMENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Aleš Pejchal;Armen Harutyunyan
4. The applicant was born in 1951 and lives in Los Angeles. 5. The applicant was born in Armenia and grew up in a house in Yerevan which had been built by his grandfather in the 1940s. After the grandfather’s death the applicant’s uncle lived with his family on the first floor of the house, while the applicant’s family lived on the second floor. The entrance to the house is common to the occupants of the first and second floors, and there is a common plot of land adjacent to it. 6. In the 1970s the applicant’s uncle sold the first floor of the house to M.G. 7. The applicant later moved to the United States with his father, who died there in 1993, leaving all his property to the applicant. 8. In 1997 the applicant submitted his father’s will to a notary in Armenia. The notary then issued a certificate of inheritance and the State Real Estate Registry registered his title in respect of the second floor of the house. 9. In 2003 M.G. sold the first floor of the house to E.T., who registered her title in respect of the first floor. She also obtained the right of common ownership in respect of the adjacent land. 10. It appears that E.T. and her family carried out construction works in the house and on the plot of land adjacent to it, modifying both the house and the surrounding area. They have built and are running a restaurant there. 11. On an unspecified date the applicant lodged a civil claim against E.T., M.G. and the State Real Estate Registry, seeking to annul E.T.’s title in respect of the first floor and the adjacent land, and to oblige her to demolish the buildings constructed without the permission of the authorities and to restore the stone wall that she had destroyed. E.T. in her turn lodged a counterclaim against the applicant, seeking to annul the will and the subsequent registration of his title as regards the plot of land adjacent to the house. 12. By a judgment of 1 July 2003 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան – “the District Court”) partially allowed the applicant’s claim and dismissed E.T.’s counterclaim. 13. On 22 August 2003 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) re-examined the case on the merits. It granted the applicant’s claims in their entirety and rejected E.T.’s counterclaim. 14. E.T. subsequently lodged an appeal on points of law against the judgment of the Civil Court of Appeal. 15. On 24 October 2003 the Civil and Economic Chamber of the Court of Cassation (ՀՀ վճռաբեկ դատարանի քաղաքացիական և տնտեսական գործերի պալատ) dismissed E.T.’s appeal on points of law and upheld the judgment of the Court of Appeal. The judgment of 22 August 2003 thereby became final and binding and a writ of execution was issued in this respect. 16. On 4 December 2003 enforcement proceedings were instituted by the Department for the Enforcement of Judicial Acts (Դատական ակտերի հարկադիր կատարման ծառայություն – “the DEJA”). 17. Thereafter the head of the Kentron division of the State Real Estate Registry (Անշարժ գույքի կադաստրի պետական կոմիտեի Կենտրոն տարածքային ստորաբաժանում) requested the Civil Court of Appeal to clarify the judgment of 22 August 2003. 18. On 22 October 2004 the Civil Court of Appeal issued a clarification of the above-mentioned judgment. It stated, in particular, that the title to the plot of land adjacent to the house was to be registered in the applicant’s name. This decision became final and was also submitted for enforcement. 19. On 11 April 2006 the applicant lodged a civil claim against the Kentron division of the State Real Estate Registry, the DEJA and E.T., seeking to oblige the Kentron division of the Real Estate Registry to comply with the requirements of the judgment of the Court of Appeal of 22 August 2003 and the decision of 22 October 2004 concerning its clarification, to evict E.T. and other persons who were unlawfully occupying his property, and to terminate the activities of the restaurant situated therein. 20. By the judgment of 28 August 2006 the District Court allowed the applicant’s claim in its entirety. It stated, in particular, that the applicant’s title was to be registered in respect of the plot of land adjacent to the house and the constructions situated therein, that E.T. and the other persons occupying the applicant’s property were to be evicted, and that these persons should terminate the activities of the restaurant. 21. After an appeal lodged by E.T. on 22 December 2006 the Civil Court of Appeal re-examined the case and allowed the applicant’s claim. In doing so, it stated that the judgment of 22 August 2003 and the decision of 22 October 2004 had not yet been enforced since the applicant’s title had not been registered and the constructions had not been demolished. The Court of Appeal went on to state that the non-enforcement of the above-mentioned judicial acts was in violation of Article 6 of the Convention and Article 1 of Protocol No. 1 in that the applicant’s right to peaceful enjoyment of his possessions was being violated by the illegal occupation of his property by E.T. without the applicant’s permission. This judgment became final and binding on the day of its delivery and on 26 January 2007 enforcement proceedings were instituted in its respect. 22. Since 2003 a number of decisions have been made by the bailiffs in respect of obliging E.T. to comply with the requirements of the judgment in the applicant’s favour within certain time-limits. However, each time E.T. has failed to comply with these decisions, for which failure the bailiffs have each time imposed a fine. It appears that she has also failed to pay the fines. 23. In 2005 enforcement activities were postponed on the grounds that various measures applied in respect of E.T. had been ineffective in view of the fact that the DEJA needed to suspend the proceedings in order to conclude a contract with a construction company, given the absence of technical equipment necessary for conducting the compulsory construction works. It appears that at some point the proceedings were resumed. 24. By a letter of 25 December 2008 the Minister of Justice informed the applicant’s lawyer that the Kentron division of the State Real Estate Registry had justified the non-registration of the applicant’s title in respect of his property by pointing to the fact that the constructions situated therein had not been demolished because the DEJA did not have the appropriate technical equipment and workforce at its disposal. 25. It appears that until 2010 other measures were initiated by the DEJA, such as obliging the Kentron division of the State Real Estate Registry to perform the registration of the applicant’s title, in accordance with the judgments in his favour, and setting new time-limits for E.T. to comply with her obligations. However, it appears that these measures did not lead to the full enforcement of the judicial acts in question. 26. On an unspecified date the applicant applied to the General Prosecutor’s Office (ՀՀ գլխավոր դատախազություն), seeking to have criminal proceedings instituted against those responsible for not enforcing the judicial acts in question. His request was refused. 27. Following a complaint lodged by the applicant, on 3 July 2007 the District Court annulled the decision of the General Prosecutor’s Office to refuse to institute criminal proceedings, on the grounds that the investigator had not taken proper action to verify whether the bailiffs had carried out their duties properly with a view to securing the enforcement of the above-mentioned judicial acts in favour of the applicant. As a result, criminal proceedings were instituted against the bailiffs and officials of the Kentron division of the State Real Estate Registry. 28. On 26 December 2007 the investigator terminated the proceedings on the grounds that the judicial acts in question had not – for objectively justifiable reasons – been enforced. 29. On 25 February 2008 the District Court annulled the investigator’s decision of 26 December 2007, stating, inter alia, that the investigator had failed to determine why for more than four years E.T. and other persons had not been evicted, the constructions on the applicant’s property had not been demolished, and the activities of the restaurant had not been terminated – even after E.T. had been fined for not complying with the requirements of the judicial acts in question. 30. The prosecutor appealed against the above-mentioned decision of the District Court. 31. On 28 April 2008 the Criminal Court of Appeal (ՀՀ վերաքննիչ քրեական դատարան) upheld the decision of 25 February 2008. As a result, the criminal proceedings were resumed on 14 May 2008. 32. Thereafter, the criminal proceedings were again terminated three times, namely on 14 June 2008, 17 July 2009 and 23 April 2010. The first two termination decisions were successfully challenged by the applicant at two levels of jurisdiction, following which the criminal proceedings were re-opened on the orders of those courts. As for the final decision by which the proceedings were once again terminated, the applicant lodged a complaint with the General Prosecutor’s Office, but his complaint was rejected for failure to comply with the time-limits for lodging an application for supervisory review. According to the applicant, he did not pursue this last complaint any further. 33. According to the latest information received from the applicant, the enforcement proceedings were closed on 5 September 2016 because the enforcement of the judgments was impossible. The judgments of the Civil Court of Appeal of 22 August 2003 and 22 December 2006, as well as the decision of 22 October 2004, therefore remain unenforced today.