FIRST SECTION
CASE OF TAMRAZYAN v. ARMENIA
(Application no. 42588/10)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
19 March 2020
 
This judgment is final but it may be subject to editorial revision. In the case of Tamrazyan v. Armenia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
 Krzysztof Wojtyczek, President,
 Armen Harutyunyan,
 Pere Pastor Vilanova, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to:
the above application 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, Mr Babken Tamrazyan (“the applicant”), on 21 July 2010
the parties’ observations,
Noting that on 19 May 2014 the Government were given notice of the complaints concerning the alleged violation of the applicant’s right to a fair trial and his right to the peaceful enjoyment of his possessions and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court,
Having deliberated in private on 25 February 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. In his application the applicant complained of the alienation to a third person of a plot of land which had been in his possession for around twenty‑three years and in respect of which he had, under domestic law, a pre-emptive right of acquisition by virtue of adverse possession. The applicant also complained of the failure of the Court of Cassation to meet its obligation to give reasons for its decision in the impugned proceedings. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. THE FACTS
2. The applicant was born in 1931 and lives in Teghut village. The applicant was represented by Mr A. Ghazaryan and Ms A. Yesayan, lawyers practising in Yerevan. 3. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia before the European Court of Human Rights. 4. For about twenty-three years, from 1986 until 2009, the applicant had been in possession of a plot of land measuring about 1,300 sq.m. adjacent to Teghut village, in the Tavoush region. He had put up a fence and a garden shed, planted fruit trees and made the necessary arrangements for water supply. According to the applicant, the land in question measured 1,294 sq.m. However, in the majority of official documents its size is stated to be 1,300 sq.m. 5. Teghut village was previously situated within the administrative boundaries of Haghartsin village (formerly known as Kuybishev). From 1986 until 1990 the land was registered in the applicant’s name, according to the Kuybishev collective farms register (Կույբիշևի սովխոզի տնտեսությունների գրանցման մատյան). 6. In 1994 Teghut village was separated from Haghartsin, becoming a separate administrative unit. However, the plot of land in the applicant’s possession was not included within the administrative boundaries of either Haghartsin or Teghut. 7. From 1995 until 2007 (except for 1998 and 1999) the applicant paid rent for the use of the land to the community administration of Teghut, which regularly transferred the money paid to the State budget. 8. In April 2008 the applicant, who continued to possess and cultivate the plot of land at issue, was informed that a year before, in April 2007, the Tavoush Regional Administration had sold it to a third person, A.H., at public auction. 9. By a letter of 3 February 2009 the Dilijan territorial division of the State Real Estate Registry informed the applicant that on 23 April 2007 A.H. had registered his title in respect of the land. The letter further referred, inter alia, to an announcement in the newspaper and the decision of the Governor of Tavoush Region (hereinafter - “the Governor”) of 27 March 2007 about the alienation of land to A.H. by public auction. 10. The applicant subsequently found out that the announcement referred to in the above letter had been placed in the Republic of Armenia newspaper issue of 21 February 2007. The announcement stated, in particular, that on 20 March of the same year the Tavoush Regional Administration had organised a public auction for the sale of a plot of land situated within the administrative boundaries of the region. The plot of land was said to measure 1,394 sq. m. 11. According to the applicant, he managed to obtain a copy of the Governor’s decision of 27 March 2007 only in 2009. This decision stated that A.H. was the winner of the auction of 20 March 2007 and that the plot of land was to be sold to him. Accordingly, on 3 April 2007 the Tavoush Regional Administration had concluded a contract of sale of land with A.H. 12. On 21 April 2009 the applicant lodged a claim with the Administrative Court seeking to have the sale of the plot of land by the Governor and the subsequent registration of A.H.’s title annulled, and oblige the Governor to conclude with him an agreement on direct sale of the land. In his claim the applicant submitted, inter alia, that since 1986 he had been in possession of the plot of land measuring 1,300 sq.m. adjacent to Teghut village where he had made significant improvements over the years. Given that, albeit without legal registration, he had used the State land continuously, openly and in good faith for more than ten years, he had thus obtained a pre-emptive right to acquire this property. In this regard the applicant relied on Articles 65, 66, 67 and 72 of the Land Code and the case-law of the Court of Cassation, in particular its decision no. 3-357 of 30 March 2007 stating the criteria for acquisition of State and community property by virtue of adverse possession. 13. On 8 July 2009 the Administrative Court granted the applicant’s claims in their entirety. With reference to the relevant certificate issued by the Head of Teghut village community, evidence showing the payments of rent to the community budget and witness evidence, the Administrative Court found it substantiated that from at least 1995 until the decision of the Governor to sell the plot of land by public auction, the applicant had for more than ten years been in possession of it continuously, openly and in good faith. Relying on paragraph 2 of Article 72 of the Land Code, the court concluded that the applicant had had a pre-emptive right to acquire the property in dispute. The court further concluded that, contrary to the requirements of Article 66 of the Land Code, the Governor had authorised the sale of the land at public auction while that land was subject to direct sale to the person who had a pre-emptive right to acquire it. Finally, the court referred to the decision no. 3-537 (VD) of the Court of Cassation of 30 March 2007 to state that for recognition of the existence of a pre-emptive right to acquire property, the fact that a person had been in possession of a property continuously, openly and in good faith for ten years prevailed over evidence of the existence of ownership rights of another person in respect of that property. 14. A.H. lodged an appeal on points of law. He argued, in particular, that in the course of the proceedings it had not been substantiated that the applicant had the right of use in respect of the land and that the Governor had the authority to alienate it to a third person, to him in this particular case, if he wished. In his reply the applicant argued, inter alia, that the plot of land in question was subject to direct sale to him as the person having a pre‑emptive right to acquire it and that accordingly the Governor’s decision to alienate it by auction had been unlawful. The applicant also submitted that he met all the requirements of Article 72 § 2 of the Land Code and those of the case-law of the Court of Cassation, in particular those set out in its decision no. 3-357 of 30 March 2007, to claim that he had a pre-emptive right to acquire the land in question by virtue of adverse possession. 15. On 2 April 2010 the Court of Cassation quashed the judgment of the Administrative Court and rejected the applicant’s claims. The decision, which was not subject to appeal, stated in particular the following:
“... the fact that ... [the applicant] has paid rent to the community of Teghut cannot be essential for the present case since the plot of land in question is not situated within the administrative boundaries of Teghut community, therefore the fact of payment of rent to Teghut community cannot serve to substantiate the fact of having been in possession of the plot of land in a continuous and open manner and in good faith for more than ten years. According to paragraph 3 of Article 72 of the Land Code, the right to property by virtue of adverse possession in respect of a plot of land owned by another person is regulated by the Civil Code. According to Article 187 § 1 the citizen or the legal entity who is not the owner of the real estate but has possessed it as his own property continuously, openly and in good faith for ten years, acquires a right of ownership in respect of that property (adverse possession). It follows from the examination of the said provision that Article 187 of the Civil Code is not applicable to land owned by the State and the communities (see Grigor Khachatryan v. Tamo Tamoyan, ... the decision of the Court of Cassation no. 3-153 (VD) of 27 March 2007).”
RELEVANT LEGAL FRAMEWORK AND PRACTICE
Relevant domestic lawThe Land Code (in force from 15 June 2001)

16. Article 51 provides that citizens and legal entities may acquire rights in respect of plots of land and their rights of use of plots of land may be restricted by virtue of, inter alia, adverse possession. 17. Article 55 states that land which is not owned by citizens, legal entities and communities is the property of the State. 18. According to Article 63, plots of land owned by the State can be alienated via donation of the right of ownership, direct sale and auction. 19. Article 64 sets out the cases for alienation of plots of land owned by the State and the communities through donation of the right of ownership and Article 65 sets out the relevant procedure. 20. Article 66 § 1 (4) states that plots of land owned by the State and the communities are subject to direct sale to persons having a pre-emptive right of acquisition under the law. According to Article 66 § 2, the price for plots of land subject to direct sale is set at the cadastral value of the particular plot of land. 21. Article 67 § 1 provides that plots of land owned by the State and the communities are sold at auction with the exception of cases set out in Articles 65 and 66. 22. According to Article 72 § 2, citizens and legal entities who, although without legal recognition of their rights, have used lands owned by the State and the communities for more than ten years continuously, openly and in good faith, have a pre-emptive right to acquire plots from those lands if the acquisition of the plots of land as property is not forbidden. According to Article 72 § 3, the right to property by virtue of adverse possession in respect of a plot of land owned by another person, that is, not the State, is regulated by the Civil Code. The Civil Code (in force from 1 January 1999)
23. According to Article 187 § 1 the citizen or the legal entity who is not the owner of the real estate but has possessed it as his own property continuously, openly and in good faith for ten years, acquires a right of ownership in respect of that property (adverse possession).
relevant domestic practiceDecision no. 3-1835 (A) of the Civil Chamber of the Court of Cassation of 12 December 2007

24. Referring to Article 72 of the Land Code, the Court of Cassation noted that issues relating to adverse possession of land owned by the State and the communities are regulated by the Land Code while issues relating to adverse possession of plots of land owned by other persons are regulated by the Civil Code. In this case the Court of Cassation concluded that the lower court had erred in applying Article 187 of the Civil Code, given that the plot of land in dispute was the property of the State and therefore the provisions of Article 72 of the Land Code should have been applied. Decision no. 3-537 (VD) of the Civil Chamber of the Court of Cassation of 30 March 2007
25. The Court of Cassation stated that for recognition of the existence of a pre-emptive right to acquire property by virtue of adverse possession, the fact that a person had been in possession of a property for ten years continuously, openly and in good faith prevailed over evidence of the existence of ownership rights of another person in respect of that property. The Court of Cassation gave an interpretation of Article 72 § 2 of the Land Code by stating that the pre-emptive right to acquire plots of land by adverse possession derives from the following necessary conditions:
1) the person has been in possession of land owned by the State for more than ten years continuously, in an open manner and in good faith,
2) the acquisition of title to the given plots of land is not prohibited,
3) they are being sold or donated for use for the same purpose or if the plots of land meet the requirements of Article 64 § 2 of the Land Code. Decision no. 3-153 (VD) of the Civil Chamber of the Court of Cassation of 27 March 2007
26. The case concerned a property-related dispute between two private parties. The Court of Cassation concluded that even in the absence of a sale contract certified by a notary, the buyer who had been in possession of the land for more than ten years continuously, in an open manner and in good faith, had title to the property. The Court of Cassation also reiterated that in each case the court must state the factual and legal grounds for its judgment. The legal justification of a judgment is the choice and application of a substantive legal norm or of norms in respect of the established facts and legal issues. Not only should the provision of a normative act that contains the applicable norm be indicated in a judgment, but the reason for applying that particular norm should also be given. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
27. The applicant complained that the failure by the Court of Cassation to state the law applicable to his case, address important arguments raised by him and state reasons for departing from its own case-law had been in breach of Article 6 § 1 of the Convention which reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
28. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ arguments

29. The applicant complained that in its decision of 2 April 2010 the Court of Cassation did not state any reasons for not applying the relevant provisions of the Land Code in the circumstances where it had been established that the land in question was the property of the State. The Court of Cassation in general failed to state which legal provision was applicable to his case. In particular, having rejected the applicability of the two main legal provisions regulating the pre-emptive right to acquire property by adverse possession, that is Article 187 of the Civil Code and Article 72 of the Land Code, the Court of Cassation had not referred to any other legal provisions, either from the Civil Code or from the Land Code, which had formed the basis for its conclusion that the applicant did not enjoy a pre-emptive right to acquire the plot of land by adverse possession. Furthermore, the Court of Cassation had failed to address the important arguments raised by him that were essential for the examination of the case. In particular, he had asked the Court of Cassation to examine the facts and circumstances establishing his possession and use of the land openly, continuously and in good faith in the light of the principles enshrined in its own decision no. 3-537 (VD) of 30 March 2007. He had also asked the Court of Cassation to examine the case from the standpoint of Article 1 of Protocol No. 1 to the Convention. However, the Court of Cassation had disregarded those arguments. As opposed to the Administrative Court, the Court of Cassation failed to address the essential issue raised in the case – whether or not there existed evidence substantiating the fact that the land had been in his open, continuous possession in good faith for more than ten years, contrary to its own above-mentioned case-law. Instead, the Court of Cassation, without giving any reasons, merely focused on the evidence showing that the land was owned by the State and that it was situated outside the administrative boundaries of Teghut community. At the same time, the Court of Cassation did not state in the impugned decision the reasons for not applying its case-law concerning the pre-emptive right to acquire property owned by the State or the communities by adverse possession (decisions nos. 3-1835 (A) and 3-537 (VD)). Similarly, the Court of Cassation did not explain its choice of the decision no. 3-153 (VD) as applicable case-law. 30. The Government averred that the reasons given by the Court of Cassation in its decision of 2 April 2010 were sufficient to comply with the requirements of Article 6 § 1 of the Convention. Overall, having concluded as to the inapplicability of Article 187 of the Civil Code and Article 72 of the Land Code, the Court of Cassation had substantiated the application of some other legal norms, including the ones prescribed by the Land Code. The Government argued that, by rejecting the applicability of Article 187 of the Civil Code, the Court of Cassation had in fact established the applicability of certain provisions of the Land Code but not those referred to by the Administrative Court in its judgment of 8 July 2009 and in the applicant’s reply to the appeal on points of law lodged by A.H. Even if in its decision of 2 April 2010 the Court of Cassation had only stated the reasons for granting the appeal on points of law lodged by A.H. and quashing the findings of the lower court, this would still be sufficient for the purposes of Article 6 § 1 of the Convention. Having carried out a legal assessment of the arguments raised by A.H. in his appeal on points of law and of the findings of the lower court, the Court of Cassation directly referred to the essential arguments raised by the applicant in his reply to the appeal on points of law. Lastly, the Government submitted that the Court of Cassation had concluded that its decisions no. 3-1835 (A) of 12 December 2007 and no. 3‑537 (VD) of 30 March 2007 were not applicable to the applicant’s case due to the different factual circumstances. At the same time, the Court of Cassation had referred to its decision no. 3-153 (VD) of 27 March 2007, considering it applicable to the circumstances of the applicant’s case.

Article of the Convention at issue: Article 1
Outcome: violation