THIRD SECTION
CASE OF ANTONYAN
v. ARMENIA
(Application no. 3946/05)
JUDGMENT
STRASBOURG
2 October 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Antonyan v. Armenia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Egbert Myjer,
Corneliu Bîrsan,
Alvina Gyulumyan,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 11 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
3946/05) against the Republic of Armenia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Armenian national, Ms Venera Antonyan (“the
applicant”), on 17 January 2005.
The applicant, who had been granted legal aid,
was represented by Ms N. Karapetyan, a lawyer practising in Hoenheim, France. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan,
Representative of the Republic of Armenia at the European Court of Human Rights.
The applicant alleged that the Armenian authorities,
by refusing to cancel the registration at her flat of her late niece’s two
children and requiring her to pay them compensation in order to terminate their
right of use of accommodation in respect of that flat, interfered with the
peaceful enjoyment of her possessions, as guaranteed by Article 1 of Protocol
No. 1.
On 2 February 2007 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1937 and lives in Yerevan. She is a second-degree disabled person.
On an unspecified date during the Soviet period,
the State allocated to the applicant a flat in Yerevan on the right of tenancy.
In 1981 the applicant’s niece, who had moved to Yerevan to study, obtained registration at the applicant’s flat with the latter’s consent.
In 1986 she moved back to the town of Hrazdan without cancelling her
registration. In 1989 the applicant’s niece was married, and she gave birth to
two children in 1989 and 1991 respectively. Upon the applicant’s consent, the
children were also registered at the applicant’s flat so that they could
receive medical care from her address.
On 11 February 1993 the applicant acquired
ownership of the flat, which was notarised on 19 February 1993.
In 1996 the applicant’s niece passed away. Her
registration at the applicant’s flat was subsequently cancelled.
On 26 December 2003 the applicant applied to the
Kanaker-Zeytun District Police Department of Yerevan (hereafter the District
Police Department) seeking to cancel the children’s registration.
By a letter of 20 January 2004 the District
Police Department informed the applicant of its refusal to cancel the children’s
registration on the ground that, according to the relevant rules, the
registration of minors could be cancelled only together with the cancellation
of the registration of one of their parents; upon an application by the parents
or the children’s lawful representatives; in connection with studies; or upon a
relevant court order.
On an unspecified date, the applicant contested
this refusal before the courts, seeking to oblige the District Police
Department to deregister the children and claiming that the latter had never
lived in her flat.
On 15 March 2004 the Arabkir and Kanaker-Zeytun
District Court of Yerevan dismissed the applicant’s complaint, finding that the
refusal was lawful as the District Police Department had acted in accordance
with Government Decree no. 821 of 25 December 1998. According to the text of
the judgment, the parties had been duly notified of the hearing but had failed
to appear. According to the applicant, she was not notified of that hearing.
On 25 March 2004 the applicant lodged an appeal.
On 8 June 2004 the Civil Court of Appeal
dismissed the applicant’s appeal on the same ground. According to the text of
this judgment, the applicant and her representative made oral submissions at
the court hearing. According to the applicant, neither she nor her
representative was given the opportunity to make any oral submissions. It
further appears that the children’s father was present at the appeal hearing and
petitioned to dismiss the applicant’s claim.
On an unspecified date, the applicant lodged an
appeal on points of law.
On 23 July 2004 the Court of Cassation dismissed
her appeal finding that:
“According to Article 225 of the Civil Code, if no agreement is
reached regarding the termination of the right of use of accommodation, this
right can be terminated upon the owner’s request through court proceedings by
paying compensation equivalent to the market value.
In such circumstances, the arguments raised in the appeal on
points of law are unsubstantiated, since the right of use of accommodation
enjoyed by [the children] can be terminated only in accordance with Article 225
of the Civil Code...”
II. RELEVANT DOMESTIC LAW
A. The Housing Code of 1982 (no longer in force from
26 November 2005)
According to Article 4, apartment buildings and
accommodation in other constructions situated on the territory of Armenia comprise the housing fund.
According to Article 9, citizens are entitled to
receive accommodation in houses of the State and the public housing fund
through a prescribed procedure.
According to Article 49, on the basis of the
decision to allocate accommodation in a building of the State or public housing
fund, the relevant executive committee shall provide the citizen with an order
which shall serve as the sole basis for occupying the allocated accommodation.
According to Article 51, the accommodation
tenancy agreement in respect of the buildings of the State and public housing
fund shall be concluded in writing, on the basis of the accommodation order,
between the lessor, namely, the organisation managing the maintenance of the
building, and the tenant, namely, the citizen in whose name the voucher has
been provided. Accommodation in the buildings of the State and public housing
fund shall be used in accordance with the accommodation tenancy agreement.
According to Article 53, the tenant’s family
members who live with him shall equally enjoy all the rights and bear all the
responsibilities stemming from the accommodation tenancy agreement.
According to Article 54, the tenant’s family
members include his spouse, their children and parents. Other individuals may
be recognised as the tenant’s family members, if they live with the tenant and
run a common household.
According to Article 55, the tenant has the
right, with the consent of members of the family residing with him, to
accommodate his spouse, children, parents and other persons in the
accommodation occupied by him. Persons who have been accommodated in the
accommodation according to this Article shall acquire the right of use of that
accommodation equally with other persons residing there, unless some other
agreement has been reached, at the time when these persons were accommodated,
between the tenant and members of his family residing with him.
According to Article 59, in case of the tenant’s
or his family member’s temporary absence, the accommodation shall be kept for
them for a period not exceeding six months. A person may lose his right of use
of accommodation by a court decision as a result of being absent for a period
exceeding the prescribed time-limit on the basis of an application filed by the
tenant or other permanent users of the accommodation in question.
B. The Civil Code (in force from 1 January 1999)
According to Article 23 § 2, the place of
residence of minors under the age of fourteen shall be considered the place of
residence of their lawful representatives, such as, inter alia, their
parents.
According to Article 163 § 1, the right of use
implies the possibility afforded by law to reap the useful natural qualities of
a property and to “benefit” from it.
According to Article 225 § 1, as in force at the
material time, the family members of the owner of accommodation and other
individuals have the right to use the accommodation, if that right has been
registered in accordance with the procedure prescribed by the Law on the State
Registration of Property Rights.
According to Article 225 § 2, as in force at the
material time, the right of use of accommodation shall originate, be
implemented and terminated through a notarised written agreement with the
owner. If no agreement is reached regarding the termination of the right of use
of accommodation, this right can be terminated upon the owner’s request through
court proceedings by paying compensation equivalent to the market value.
In accordance with Article 225 § 4, as in force at the material time, a
person enjoying the right of use of accommodation can demand that any person,
including the owner, eliminate the breaches of his right in respect of the accommodation.
C. Decree no. 272 of the Council of Ministers of the
Armenian Soviet Socialist Republic and the Armenian Republican Council of Trade
Unions adopted on the Sale of Flats in Buildings of the State and Public
Housing Fund to Citizens as Private Property (13 June 1989)
According to Paragraph 20, flats in buildings of
the State and public housing fund shall be sold as private property to the
tenants of the flats in question and their family members indicated in Article
54 of the Housing Code, if there is written consent from all the adult family
members. The flat may be sold to them as a common property, if they so wish.
D. Government Decree no. 821 of 25 December 1998
Approving the Regulations of the Passport System of Armenia and the Description
of Passport of a Citizen of Armenia (in force from 25 December 1988)
According to Paragraph 20, as in force at the
material time, registration and deregistration of citizens shall be implemented
for the purpose of ensuring necessary conditions for the enjoyment by them of
their rights and freedoms as well as for the performance of their obligations
before the State and other citizens.
According to Paragraph 21, as in force at the
material time, citizens shall be registered at only one address at their
temporary or permanent place of residence.
According to Paragraph 22, as in force at the
material time, accommodation in respect of which a citizen does not have the
right of ownership, tenancy or sub-tenancy, and which is not his permanent
place of residence shall be considered his temporary place of residence.
According to Paragraph 23, as in force at the
material time, the place where a citizen lives permanently or predominantly
shall be considered his permanent place of residence.
According to Paragraph 29, a citizen’s
application to be registered at a temporary place of residence can be refused
if there is no written consent from, inter alia, the owner of the
accommodation. Minor children shall be registered, irrespective of whether
there is written consent from the owner, at the place of registration of one of
the parents or their lawful representative.
According to Paragraph 39, the registration of
minors below the age of sixteen who live with their parents shall be made
through a relevant entry in the accommodation card or the parent’s registration
card on the basis of the parents’ identity documents and the minor’s birth
certificate.
According to Paragraph 44, the registration of
citizens registered at a temporary or permanent place of residence shall be
cancelled in case of, inter alia, change of place of residence, death,
or if the documents and information which served as a basis for the
registration were false. The authorities in charge of registration shall cancel
the citizen’s registration at the permanent place of residence on the basis of
documents within three days and make a relevant entry in his passport.
THE LAW
I. SCOPE OF THE CASE
The Court notes that on 12 September and 13
October 2007 the applicant, in her observations on the complaint under Article
1 of Protocol No. 1, also alleged a violation of her rights under Article 6 and
8 of the Convention.
In the Court’s view, these new complaints are
not an elaboration of the applicant’s original complaints raised in the
application form lodged with the Court more than two years before. The Court
considers, therefore, that it is not appropriate now to take these matters up
in the present context (see Skubenko v. Ukraine (dec.), no. 41152/98, 6
April 2001).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL
No. 1
The applicant complained that the Armenian
authorities, by refusing to cancel the children’s registration at her flat and
requiring her to pay them compensation in order to terminate their right of use
of accommodation in respect of the flat, interfered with the peaceful enjoyment
of her possessions. In this respect, she invoked Article 1 of Protocol No.1,
which reads as follows:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
A. Admissibility
The Government submitted that the applicant
failed to exhaust the domestic remedies. In particular, they claimed that,
despite the fact that the applicant alleged a violation of her right to the
peaceful enjoyment of her possessions because the children of her late niece
enjoyed a right of use of accommodation in respect of her flat, the proceedings
instituted by her before the domestic courts concerned exclusively the issue of
cancelling their registration. However, a right of use of accommodation
originated from the moment of state registration of that right, in accordance
with the procedure prescribed by law, and not from the moment of obtaining
registration at a flat. In addition, the only body competent to terminate that
right was a court. This was in fact mentioned by the Court of Cassation in its
decision of 23 July 2004, in which it informed the applicant about a
possibility to restore her property right by instituting separate court
proceedings. Hence, the applicant did not avail herself of the only effective
remedy under the domestic law to terminate the children’s alleged right of use
of accommodation in respect of her flat. Moreover, it was still open for the
applicant to apply to a court and to restore her rights through the court
proceedings as suggested by the Court of Cassation.
The applicant claimed that she had exhausted all
the domestic remedies by lodging a claim against the unlawful acts of the state
officials.
The Court would like to note at the outset that
the finding that the children of the applicant’s late niece enjoyed a right of
use of accommodation in respect of the applicant’s flat was made by the Court
of Cassation in the proceedings concerning the lawfulness of the refusal by the
District Police Department to deregister the children from the applicant’s flat
(see paragraph 17 above). The applicant, when lodging the present application
with the Court, expressed her grievances with the general situation in which
she had found herself, namely the refusal by the authorities to cancel the
children’s registration at her flat and the requirement, made therewith, that
she pay compensation to the children in order to terminate their right of use
of accommodation in respect of her flat. Hence, contrary to what the Government
suggested, the applicant complained of a violation of her right to the peaceful
enjoyment of her possessions not just because the children of her late niece
had been found to enjoy a right of use of accommodation in respect of her flat,
but in the context of, and because of, the refusal by the authorities to cancel
the children’s registration at her flat.
Having said this, the Court further considers that
the Government’s claim of non-exhaustion is closely linked to the substance of this complaint and should therefore be
joined to the merits.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Whether there was an interference with the
applicant’s right to the peaceful enjoyment of her possessions
(a) The parties’ submissions
The applicant claimed that there had been an
interference with the peaceful enjoyment of her possessions. In particular, she
could not rent out her flat because of the fact that the children were
registered there.
The Government submitted that there had been no
interference with the applicant’s possessions since the proceedings instituted
by the applicant concerned exclusively the issue of cancelling the children’s
registration at her flat. In this respect, the Government reiterated that,
under Armenian law, the registration of a person at a flat by a passport
section of the police did not serve as a legal basis for establishing any
property rights in respect of that flat. In particular, registration at the
police was nothing but a system of data on permanent, temporary or factual
place of residence kept to promote an effective realisation of citizens’ rights
and freedoms such as, for example, to vote in an election or to be served a
court summons. As to the right of use of accommodation, such right originated
only from the moment of its state registration in a manner prescribed by law.
Besides, the applicant’s allegation that she was unable to rent out her flat
was groundless since there was no evidence in the case indicating that she was
ever deprived de jure or de facto of the possibility to do so.
(b) The
Court’s assessment
The Court reiterates that the essential object of
Article 1 of Protocol No. 1 is to protect a person against unjustified
interference by the State with the peaceful enjoyment of his or her
possessions. However, by virtue of Article 1 of the Convention, each
Contracting Party “shall secure to everyone within [its] jurisdiction the
rights and freedoms defined in [the] Convention”. The discharge of this general
duty may entail positive obligations inherent in ensuring the effective
exercise of the rights guaranteed by the Convention. In the context of Article
1 of Protocol No. 1, those positive obligations may require the State to take
the measures necessary to protect the right of property (see Broniowski v.
Poland [GC], no. 31443/96, § 143, ECHR 2004-V).
In the present case, the applicant complained
that the Armenian authorities, by refusing to deregister the children of her
late niece from her flat and requiring her to pay them compensation in order to
terminate their right of use of accommodation in respect of the flat,
interfered with the peaceful enjoyment of her possessions. Hence, the Court
considers that the present case concerns a dispute which falls into the sphere
of public law and administrative discretion as opposed to private law. In this
sense, the question of possible interference is closely linked to the further
examination of the merits of the complaint. Therefore, the Court must examine
as a whole the applicant’s complaint concerning a violation of her right to the
peaceful enjoyment of possessions due to the impossibility to deregister the
children from her flat.
As to the nature of the interference, the Court
notes that there was no deprivation of property in the present case.
Furthermore, the children’s continued registration at the applicant’s flat did
not amount de jure to a control of use of property since Armenian
legislation did not impose any restrictions in this respect on the applicant’s
ownership rights. It must be noted that the applicant had failed to submit any
proof in support of her allegation that she had been unable to rent out her
flat. On the other hand, the children’s continued registration at the applicant’s
flat against her will can be considered as causing considerable annoyance to
the applicant as the owner of the flat and therefore, by itself, requiring
protection under Article 1 of Protocol No. 1. Moreover, the children’s
continued registration can be considered as de facto depriving the
applicant of a realistic opportunity to sell her flat to another person. In
such circumstances, the Court finds that the alleged interference with the
applicant’s right to the peaceful enjoyment of her possessions must be
considered as falling under the first sentence of the first paragraph of this
Article, namely the peaceful enjoyment of possessions.
2. Whether the interference was justified
(a) Lawfulness
The applicant submitted that the refusal to
cancel the registration of the children at her flat was unlawful as Government Decree
no. 821 did not envisage such ground for refusing removal from the register.
Similarly, the Court of Cassation’s findings that the children enjoyed the
right of use of accommodation and that she had to pay them compensation in
order to terminate that right were unsubstantiated as they were in
contradiction of Articles 54 and 59 of the House Code and the above Government
Decree.
The Government did not make any submissions in
this respect.
The Court reiterates that the first and most
important requirement of Article 1 of Protocol No. 1 is that any interference
by a public authority with the peaceful enjoyment of possessions should be
lawful (see Iatridis
v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). However, the
existence of a legal basis is not in itself sufficient to satisfy the principle
of lawfulness, which also presupposes that the applicable provisions of
domestic law are sufficiently accessible, precise and foreseeable in their
application. That principle also requires the Court to verify whether the way
in which the domestic law is interpreted and applied by the domestic courts
produces consequences that are consistent with the principles of the Convention
(see, for example, Apostolidi
and Others v. Turkey, no. 45628/99, § 70, 27 March 2007).
In the present case, the letter of the District
Police Department sent to the applicant did not indicate any legal ground on
which its refusal to deregister the children was based, but only stated that
“according to the relevant rules, the registration of minors could be cancelled
only together with the cancellation of the registration of one of their
parents; upon an application by the parents or the children’s lawful representatives;
in connection with studies; or upon a relevant court order” (see paragraph 11
above). The Arabkir nor Kanaker-Zeytun District Court of Yerevan and the Civil
Court of Appeal, when dismissing the applicant’s claim against the District
Police Department, found that the latter’s refusal was lawful as based on the
Government Decree no. 821 (see paragraphs 13 and 15 above). In turn, as was
already mentioned above, the Court of Cassation found that the applicant’s
appeal on points of law was unsubstantiated since the children enjoyed a right
of use of accommodation in respect of the applicant’s flat and that the
applicant could institute proceedings in accordance with Article 225 of the
Civil Code in order to terminate their right of use of accommodation by paying
them compensation.
The Court notes that no concrete provision of
the above Decree was specified by the domestic courts when dismissing the
applicant’s claim against the police. Instead, for considering that the refusal
was lawful, the domestic courts made a general reference to the above Decree.
In this respect, the Court would like to point out that the Government Decree
no. 821 contains no provision explicitly prohibiting deregistering
children from one’s flat on the grounds as mentioned in the letter of 20
January 2004.
Besides, the Court of Cassation, in turn, when
dismissing the applicant’s appeal on points of law, did not bring any reasons
for considering that the children enjoyed a right of use of accommodation in
respect of the applicant’s flat. The Court observes that Armenian legislation
did not - and does not - link one’s registration at a domicile with the establishment
of a right of use of accommodation in respect of that domicile by such person.
This was in fact maintained by the Government in their observations. In
particular, in accordance with Article 225 § 2 of the Civil Code, a right of
use of accommodation could originate only through conclusion of a written agreement
with the owner (see paragraphs 28 and 29 above). There was no such agreement
between the applicant and the children in the present case. Moreover, before
the entry into force of the Civil Code in 1999, the right of use of
accommodation was conferred by virtue of being accommodated at a given flat, as
provided for by Article 55 of the Housing Code. However, as it was established
in the present case, the children had never resided in the applicant’s flat.
Hence, it cannot be assumed that the children enjoyed the right of use of
accommodation by virtue of the Housing Code either.
It can therefore be concluded that both the
refusal by the police to deregister the children from the applicant’s flat and
the requirement to pay them compensation in order to terminate their right of
use of accommodation in respect of the flat in question lacked a clear legal
basis. Having reached such conclusion, the Court accordingly considers that the
applicant was not required to institute separate proceedings in accordance with
Article 225 § 2 in order to terminate the children’s right of use of
accommodation by paying them compensation. The Government’s corresponding
objection as to non-exhaustion must be therefore dismissed.
In general, the Court would like to point out
separately that, despite indicating that the registration of minors could be
cancelled only together with the cancellation of the registration of one of
their parents, neither the District Police Department nor the domestic courts
took into account that the children’s registration had not in fact been
cancelled together with the cancellation of the registration of their mother at
the applicant’s flat back in 1996, while the children had been living together
with their father at his place of residence in another town.
Based on the foregoing, the Court considers that
the manner in which the Armenian authorities refused to cancel the registration
of the children at the applicant’s flat, namely by making a general reference
to Government Decree no. 821 and requiring her to pay them compensation in
order to terminate their alleged right of use of accommodation in respect of
the flat, resulted in an unforeseeable application of the domestic law and
therefore failed to comply with the principle of lawfulness and the rule of
law. It follows that the interference with the applicant’s right to the
peaceful enjoyment of her possessions was not provided for by law.
Accordingly, there was a violation of Article 1
of Protocol No. 1.
III. ALLEGED
VIOLATION OF ARTICLE 6 OF THE CONVENTION
The applicant complained under Article 6 of the
Convention that the trial was unfair since she had not been notified of the
hearing before the Arabkir and Kanaker-Zeytun District Court of Yerevan and had
not been given an opportunity to make oral submissions before the Court of
Appeal.
Having regard to all the material in its
possession, and in so far as this complaint falls within its competence, the
Court finds that it does not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention
provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed EUR 8,060 in respect of
pecuniary damage which she calculated on the basis of lost income for flat
rent. She further claimed EUR 100,000 in respect of non-pecuniary damage
required for recovery of her poor health. In this respect, she claimed that she
had developed illnesses as a result of the suffering and stress sustained in
relation to the violation of her rights.
The Government submitted that the applicant’s
claim in respect of pecuniary damage had to be dismissed since there was no
violation of her rights, because she had not been deprived either de jure
or de facto of an opportunity to rent her flat and since there was no
causal link between the violation alleged and the pecuniary damage claimed. The
same criteria had to be applied in respect of non-pecuniary damage since the
applicant, by claiming it, was in fact seeking compensation for medical
treatment, which in essence constituted pecuniary damages. Furthermore, the
applicant had not adduced any evidence in support of her allegation that her
health problems had been linked to the alleged violation of her rights under
the Convention. In any event, she had not produced any documentary evidence to
substantiate the amount of non-pecuniary damage claimed.
The Court notes that there is nothing in the
case file to indicate that the applicant could not rent out her flat due to the
children’s registration there. There is therefore no causal link between the
violation found and the applicant’s claim for lost earnings. Hence, the
applicant’s claim for pecuniary damage must be dismissed. At the same time, the
Court takes the view that the applicant has suffered non-pecuniary damage as a
result of the impossibility to deregister her nephews from her flat. Ruling on
an equitable basis, it awards the applicant EUR 3,000 in that respect.
B. Costs and expenses
The applicant claimed a total of EUR 1,111 for
the costs and expenses including EUR 522 for the legal, notary and court fees
as well as transportation costs and different administrative costs, such as
postal, typewriting and photocopying incurred during the domestic proceedings
and EUR 589 for legal and notary fees as well as postal and translation fees
incurred before the Court.
The Government claimed that the applicant had
failed to submit any evidence that those expenses had been actually incurred.
Besides, as regards the payments to the legal representative and expenses
incurred in relation to the submission of the application to the Court, the
applicant failed to prove that those were necessary and reasonable.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In this respect, the Court notes that the applicant
had failed to submit any documentary proof substantiating her claims for costs
and expenses. In any event, the applicant had been granted legal aid by the
Court. The Court therefore decides not to make any award to the applicant under
this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join to the merits the
Government’s objection as to non-exhaustion of domestic remedies and rejects
it;
2. Declares the complaint concerning an
interference with the applicant’s right to the peaceful enjoyment of her
possessions admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 1 of Protocol No. 1;
4. Holds
(a) that the
respondent State is to pay the applicant, within three months from the date on
which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 2 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep
Casadevall Registrar President
