THIRD SECTION
CASE OF
DANIELYAN AND OTHERS v. ARMENIA
(Application no.
25825/05)
JUDGMENT
STRASBOURG
9 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 Danielyan and Others 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,
Ján Šikuta,
Luis López Guerra,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
25825/05) 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 eight Armenian nationals, Mr Sisak Danielyan, Ms Kima
Danielyan, Mr Andranik Danielyan, Ms Naira Danielyan, Ms Seda Danielyan,
Ms Sona Danielyan, Ms Meri Danielyan and Ms Kristine Mnatsakanyan (“the
applicants”), on 14 July 2005.
The applicants were represented by Mr V.
Grigoryan, a lawyer practising in Yerevan. 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.
On 29 June 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 applicants were born in 1949, 1951, 1976,
1977, 1984, 1993, 2003 and 1981 respectively and live in Yerevan.
Mr Sisak Danielyan, Ms Kima Danielyan, Mr
Andranik Danielyan, Ms Naira Danielyan, Ms Seda Danielyan and Ms Sona Danielyan
jointly owned a house measuring 130 sq. m. situated at 11 Byuzand Street, Yerevan. The applicants alleged that Ms Meri Danielyan and Ms Kristine Mnatsakanyan,
as members of their family, enjoyed a right of use in respect of this house,
while the Government contested this allegation and claimed that they did not
enjoy the right of use in respect of the house and simply had the right to live
in it.
On 1 August 2002 the Government adopted Decree
no. 1151-N, approving the expropriation zones of the immovable property (plots
of land, buildings and constructions) situated within the administrative
boundaries of the Central District of Yerevan to be taken for the needs of the
State for the purpose of carrying out construction projects, covering a total
area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling
within such expropriation zones.
On 17 June 2004 the Government adopted Decree no.
909-N, contracting out the construction of one of the sections of Byuzand Street - which was to be renamed as Main Avenue - to a private company, Glendale
Hills CJSC.
On 28 July 2004 Glendale Hills CJSC and the
Yerevan Mayor’s Office signed an agreement which, inter alia, authorised
the former to negotiate directly with the owners of the property subject to
expropriation and, should such negotiations fail, to institute court
proceedings on behalf of the State, seeking forced expropriation of such
property.
It appears that Glendale Hills CJSC attempted to
organise a measuring and valuation of the applicants’ house in order to offer
them compensation for the purposes of expropriation, unsuccessfully, since the
applicants created obstacles.
On 10 March 2005 Glendale Hills CJSC instituted
proceedings on behalf of the State against all the applicants except one (Ms Kristine Mnatsakanyan),
seeking to oblige them to allow a valuation of their house and sign an
agreement on taking of their property for State needs based on the results of
such valuation, and to evict them.
On 15 March 2005 all the applicants except one
(Ms Meri Danielyan) lodged a counter-claim in which they contested
the constitutionality of Government Decree no. 1151-N. They submitted, inter
alia, that this Decree contradicted Article 28 of the Constitution,
according to which property could be expropriated only through the adoption of
a law concerning the property in question. They further submitted that the
Government was not authorised under the same Article to decide on the
expropriation of property.
On the same date the Kentron and Nork-Marash
District Court of Yerevan granted the claim of Glendale Hills CJSC, ordering that
the defendants be evicted through payment of compensation. The amount of
compensation was to be estimated according to the market value following the
relevant valuation. The District Court also ordered that they pay court fees in
the amount of 4,000 Armenian drams (AMD). It appears that the District Court
refused to admit the applicants’ counter-claim on the ground that it was not
competent to decide upon the constitutionality of Government Decree no. 1151-N.
On 29 March 2005 the defendant applicants lodged
an appeal.
It appears that on 18 April 2005 Orran Ltd real
estate company carried out a valuation of the house in question, which was
valued at the Armenian dram equivalent of USD 82,600.
On 21 April 2005 the Court of Appeal granted the
claim of Glendale Hills CJSC. The Court of Appeal found that the defendants
were obliged to give up their ownership through payment of compensation and
decided to terminate their ownership by awarding them the Armenian dram
equivalent of USD 82,600.
On 5 May 2005 the seven applicants in question
lodged an appeal on points of law. On 13 May 2005 they filed additional
submissions to their appeal, arguing, inter alia, that the deprivation
of their property was in violation of Article 28 of the Constitution.
On 27 May 2005 the Court of Cassation dismissed
the applicants’ appeal.
II. RELEVANT DOMESTIC LAW
For a summary of the relevant domestic provisions
see the judgment in the case of Minasyan
and Semerjyan v. Armenia (no. 27651/05, §§ 23-43,
23 June 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.
1 TO THE CONVENTION
The applicants complained that the deprivation
of their possessions was in violation of the guarantees of 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
1. Request to strike out the application
Following unsuccessful friendly settlement
negotiations the Government informed the Court, by letter dated 10 September
2009, that they proposed to make a unilateral declaration with a view to
resolving the issue raised by the application by offering the applicants,
instead of the amount of AMD 37,206,344 transferred to their bank account on
the basis of the court judgment, a redecorated apartment measuring 130 sq. m.
in a building in Yerevan, the construction works of which would be finished in
2010, and also a sum of money. They further requested the Court to strike out
the application in accordance with Article 37 of the Convention.
In an undated letter the applicants objected to
the Government’s declaration. They submitted that, firstly, their case raised
issues which had not been determined by the Court in the past. Secondly, there
was a disagreement between the parties regarding the facts of the case, namely
the scope of their possessions. Thirdly, the redress proposed by the Government
was inadequate and insufficient. It was not comparable to the size and location
of the expropriated property and did not take into account the de facto
deprivation of land. Furthermore, the proposal lacked concrete details and involved
a lengthy implementation period and an arbitrary calculation of the amount of
rent.
The Court observes at the outset that the
parties were unable to agree on the terms of a friendly settlement of the case.
It reiterates that, according to Article 38 § 2 of the Convention,
friendly-settlement negotiations are confidential and that Rule 62 § 2 of the
Rules of Court further stipulates that no written or oral communication and no
offer or concession made in the framework of the attempt to secure a friendly
settlement may be referred to or relied on in contentious proceedings (see Meriakri v. Moldova (striking out), no.
53487/99, § 28, 1 March 2005). The Court will therefore proceed on the basis of
the Government’s unilateral declaration and the parties’ observations submitted
outside the framework of friendly-settlement negotiations, and will disregard
the parties’ statements made in the context of exploring the possibilities for
a friendly settlement of the case and the reasons why the parties were unable
to agree on the terms of a friendly settlement (see Estate of Nitschke v. Sweden, no.
6301/05, § 36, 27 September 2007).
The Court points out that Article 37 of the
Convention provides that it may at any stage of the proceedings decide to
strike an application out of its list of cases where the circumstances lead to
one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that
Article. Article 37 § 1 (c) enables the Court in particular
to strike a case out of its list if:
“for any other reason established by the Court, it is no longer
justified to continue the examination of the application”.
It also notes that in certain circumstances, it
may strike out an application under Article 37 § 1 (c) on the basis of a
unilateral declaration by a respondent Government even if the applicants wish
the examination of the case to be continued.
To this end, the Court will examine carefully the
declaration in the light of the principles emerging from its case-law, in
particular the Tahsin Acar judgment
(see Tahsin Acar v. Turkey,
[GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; also WAZA Spółka z o.o. v. Poland (dec.)
no. 11602/02, 26 June 2007; and Sulwińska
v. Poland (dec.) no. 28953/03). It does not, however, consider it
necessary to rule on the entirety of the parties’ arguments on the matter for
the following reason.
Turning to the nature of the proposed redress,
the Court notes that the Government have proposed, instead of the amount
already paid to the applicants, to provide them with a new flat and a sum of
money. The Court is not convinced that this is an acceptable proposal, since
the undertaking to provide a flat was made conditional on the return of the sum
of money already paid to the applicants. Thus, this undertaking could not be
considered truly unilateral as its implementation was predicated on the other
party’s fulfilment of certain additional requirements (for an identical
situation, see Yedigaryan v. Armenia
(dec.), no. 10446/05, § 35, 15 November 2011, and Yeranosyan
v. Armenia (dec.), no. 3309/06, § 24, 15 November 2011). Furthermore,
the Government failed to provide sufficient details of the flat in question
(similarly, see Yedigaryan, cited
above, and Yeranosyan, cited above).
The Court therefore rejects the Government’s
request to strike the application out under Article 37 § 1 (c) of the
Convention.
2. Victim status of the applicants Meri Danielyan and
Kristine Mnatsakanyan
The Government submitted that the applicants
Meri Danielyan and Kristine Mnatsakanyan could not claim to be victims of an
alleged violation of Article 1 of Protocol No. 1 because they did not have any
“possessions” within the meaning of that provision. In particular, the
applicants Meri Danielyan and Kristine Mnatsakanyan did not enjoy any
property rights in respect of the house owned by the remaining applicants,
including the right of use of accommodation. The latter right, pursuant to
Article 225 of the Civil Code, could arise only from the moment of State
registration. However, there was no evidence to show that the applicants Meri
Danielyan and Kristine Mnatsakanyan had such a right registered at the Real
Estate Registry. Thus, the only right enjoyed by them was the right to live in
the house in question, pursuant to Article 47 of the Family Code and Section 16
of the Children’s Rights Act. This right, however, could not be considered as
“possessions” within the meaning of Article 1 of Protocol No. 1.
The applicants Meri Danielyan and Kristine
Mnatsakanyan submitted that they enjoyed the right of use of accommodation in
respect of the house owned by the remaining applicants. There was
well-established case-law of the appeal and cassation courts in Armenia
which, pursuant to Articles 54 and 120 of the Housing Code, recognised the
right of use of accommodation based on three factors: (1) being a member
of the family of the owner of the accommodation, (2) living in that
accommodation, and (3) running a joint household with the owner. All these
three factors existed in their case. The applicant Meri Danielyan, who was the
daughter of the applicant Andranik Danielyan, acquired this right upon her
birth in 2003, while the applicant Kristine Mnatsakanyan, who was his spouse, acquired
this right following their marriage. Moreover, their enjoyment of that right
was not disputed in the course of the domestic proceedings.
Admitting that their right of use of
accommodation was not registered at the Real Estate Registry, the applicants
Meri Danielyan and Kristine Mnatsakanyan submitted that that right was valid
even without State registration since, pursuant to Section 41 of the Law on the
State Registration of Rights in Respect of Property, rights of spouses,
children and other dependants in respect of property, which were conferred on
them by law, were effective without such registration. In any event, they were
not able to register that right, even if they wanted to, because Government
Decree no. 1151-N had placed limitations on the house in question which
precluded any transactions from being registered at the Real Estate Registry.
The applicant Meri Danielyan lastly submitted
that her enjoyment of the right of use of accommodation was also confirmed by
the fact that the plaintiff sought to terminate her property rights in respect
of the house through payment of monetary compensation by resorting to courts.
The Court observes that the applicant Meri
Danielyan was engaged as a plaintiff in the court proceedings seeking to
terminate the ownership right in respect of the house. Furthermore, the
domestic courts, when ordering such termination, explicitly referred, among
other applicants, to the applicant Meri Danielyan. Thus, the enjoyment by the
applicant Meri Danielyan of property rights, in this case the right of use
of accommodation, was acknowledged by the domestic courts, which decided to
award her compensation for the termination of that right. It follows that the
Government’s assertions to the contrary have no basis in the findings of the
domestic courts. The Court reiterates in this respect that it has already found
the right of use of accommodation to constitute a “possession” within the
meaning of Article 1 of Protocol No. 1 (see Minasyan and Semerjyan,
cited above, § 56). The Government’s objection, as far as it concerns the
applicant Meri Danielyan, must therefore be dismissed.
Different considerations, however, apply to the
applicant Kristine Mnatsakanyan. She was never engaged as a plaintiff in
the expropriation proceedings, nor did the court judgments refer to or
otherwise explicitly affect her rights. She herself never attempted to join the
proceedings in question and to claim a violation of her alleged right of use of
accommodation. There is no material before the Court which would indicate that
she indeed enjoyed such a right. The Court therefore accepts the Government’s
objection as far as the applicant Kristine Mnatsakanyan is concerned and
declares the application in this part inadmissible.
3. Conclusion
The Court notes that this complaint, as far as
it concerns the first seven applicants, 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
The applicants submitted that the deprivation of
their possessions was not carried out under the conditions provided for by law
since it had been effected in violation of the guarantees of Article 28 of the
Constitution.
The Government submitted that Article 28 of the
Constitution was not applicable to the applicants’ case.
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: the second sentence of the first paragraph authorises a deprivation of
possessions only “subject to the conditions provided for by law” and the second
paragraph recognises that the States have the right to control the use of
property by enforcing “laws”. Moreover, the rule of law, one of the fundamental
principles of a democratic society, is inherent in all the Articles of the
Convention (see Former
King of Greece and Others v. Greece [GC], no. 25701/94, § 79,
ECHR 2000-XII). The Court further reiterates that the phrase “subject to the
conditions provided for by law” requires in the first place the existence of
and compliance with adequately accessible and sufficiently precise domestic
legal provisions (see Lithgow
and Others v. the United Kingdom, 8 July 1986, § 110,
Series A no. 102).
The Court notes that it has already examined identical
complaints and arguments in another case against Armenia and concluded that the
deprivation of property and the termination of the right of use were not
carried out in compliance with “conditions provided for by law” (see Minasyan
and Semerjyan, cited above, §§ 69-77). The Court does not see any reason to
depart from that finding in the present case.
There has accordingly been a violation of
Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants also raised a number of
complaints under Articles 6 and 8 of the Convention.
Having regard to all the material in its
possession, and in so far as these complaints fall within its competence, the
Court finds that they do 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.
III. 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
In respect of pecuniary damage the applicants Sisak
Danielyan, Kima Danielyan, Andranik Danielyan, Naira Danielyan, Seda Danielyan
and Sona Danielyan claimed 3,002,092.90 euros (EUR) as the value of the
expropriated property, while the applicant Meri Danielyan claimed EUR 14,565.40
as the value of her terminated right of use. They left the question of
non-pecuniary damage to the Court’s discretion.
The Government did not comment on these claims.
The Court notes that it has previously awarded
pecuniary damages in an identical situation (see Minasyan
and Semerjyan v. Armenia (just satisfaction), no.
27651/05, §§ 17-21, 7 June 2011), which it finds to be fully applicable to the
present case. Using the same approach and making an assessment based on all the
materials at its disposal, the Court estimates the pecuniary damage suffered at
EUR 85,000 and decides to award this amount jointly to the applicants Sisak
Danielyan, Kima Danielyan, Andranik Danielyan, Naira Danielyan, Seda
Danielyan, Sona Danielyan and Meri Danielyan, while dismissing the remainder of
their claim. It further decides to award each of these applicants EUR 1,500 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed AMD 4,000 for the
costs and expenses incurred before the domestic courts, namely the court fee
they had been obliged to pay.
The Government did not comment on this claim.
The Court decides to award the sum of EUR 6 for
costs and expenses in the domestic proceedings.
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. Declares the complaint concerning the
deprivation of property of all the applicants, except the applicant Kristine
Mnatsakanyan, admissible under Article 1 of Protocol No. 1 and the remainder of
the application inadmissible;
2. Holds that there has been a violation of
Article 1 of Protocol No. 1;
3. Holds
(a) that the respondent State is to pay, within
three months from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts, to
be converted into Armenian drams at the rate applicable at the date of
settlement:
(i) EUR 85,000 (eighty-five thousand euros) to the
applicants jointly, plus any tax that may be chargeable, in respect of
pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros) to
each applicant, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(iii) EUR 6 (six euros) to the applicants jointly,
plus any tax that may be chargeable to them, in respect of costs and expenses;
(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;
4. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 9 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
