FIRST SECTION
 
 
 
 
 
 
CASE OF HAKOBYAN AND AMIRKHANYAN v. ARMENIA
 
(Application no. 14156/07)
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
17 October 2019
 
 
 
FINAL
 
17/01/2020
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hakobyan and Amirkhanyan v. Armenia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Krzysztof Wojtyczek,
 Aleš Pejchal,
 Pere Pastor Vilanova,
 Pauliine Koskelo,
 Tim Eicke,
 Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 17 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 14156/07) 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 Armenian nationals, Mr Versandik Hakobyan and Ms Heghine Amirkhanyan (“the applicants”), on 27 March 2007. 2. The applicants were represented by Mr A. Zohrabyan, Ms M. Ghulyan and Mr K. Mezhlumyan, lawyers practising in Yerevan. 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. 3. On 3 March 2009 the Court decided to communicate to the Government the part of the application regarding the applicants’ complaints concerning the deprivation of their property and the alleged unfairness of the ensuing civil proceedings under Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention. The remainder of the application was declared inadmissible. 4. Mr Armen Harutyunyan, the judge elected in respect of Armenia, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Chamber decided to appoint Pauliine Koskelo to sit as an ad hoc judge (Rule 29 § 2 (b)). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants Hakobyan and Amirkhanyan (hereafter, the first and the second applicants), who were born in 1950 and 1958 respectively and live in Yerevan, are husband and wife. They jointly owned a plot of land measuring 222 sq. m. and a house measuring 124.52 sq. m. situated in the centre of Yerevan. The applicants bought this property on 23 October 2001 for 84,466,500 Armenian drams (AMD) (approximately 167,250 euros (EUR) at the material time). On the ownership certificate issued in respect of this property on 7 November 2001 the first applicant was indicated as its sole owner. 6. On 25 November 2000 the Government adopted Decree no. 774 by which it approved a project presented by the Yerevan Mayor’s Office to construct an avenue, the Northern Avenue, in the centre of Yerevan which would link the two main squares, Liberty Square and Republic Square. It appears that the idea of constructing the Northern Avenue dated back to the 1920s when the original town plan of Yerevan was conceived. 7. On 16 July 2001 the Government adopted Decree no. 645 by which it approved the alienation zone of the real estate situated in the Northern Avenue strip to be taken for State needs, covering a total area of 82,700 sq. m. 8. On 1 August 2002 the Government adopted Decree no. 1151-N by which it modified its Decree no. 645 of 16 July 2001 and approved the alienation zone of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs, covering a total area of 345,000 sq. m. 9. A special body, the “Yerevan Construction and Investment Project Implementation Agency” (“the Agency”), was set up to manage the implementation of the project. 10. On an unspecified date the Agency requested a licensed valuation organisation, A.E. Ltd, to carry out a valuation of the property in question. 11. On 16 September 2005 A.E. Ltd prepared a preliminary valuation report without having had access to the premises. The market value of the property was found to be AMD 48,846,000 as at 15 September 2005. According to the covering letter of the manager of A.E. Ltd, this report could serve as a basis for a preliminary offer but not for the final agreement and compensation. 12. On 27 September 2005 the Agency informed the first applicant that the property in question was situated in the alienation zone and was to be taken for State needs. The first applicant was offered the above sum as compensation, plus a financial incentive in the amount of AMD 14,653,800, if he agreed to sign an agreement within ten days from the date of receipt of the offer, signed such an agreement within a month and handed over the property within the period stipulated by that agreement. 13. On 10 October 2005 the Agency lodged a claim against the first applicant seeking to oblige him to sign an agreement on taking the property for State needs for compensation in the amount of AMD 48,846,000. 14. On 28 October 2005 A.E. Ltd, upon a court order, carried out an additional valuation to determine the real market value of the property, having had access to it. 15. On 10 November 2005 A.E. Ltd prepared a valuation report, according to which the market value of the property was AMD 54,838,000 as at 28 October 2005. 16. On 16 November 2005 the Agency made a new proposal to the first applicant, offering him the above-mentioned sum plus a financial incentive in the amount of AMD 16,451,400. It appears that the first applicant did not accept this offer. 17. On 6 December 2005 the Kentron and Nork-Marash District Court of Yerevan granted the Agency’s claim, ordering the first applicant to sign an agreement for a total amount of compensation of AMD 54,838,000 and his eviction together with his family members. 18. On 21 December 2005 the first applicant lodged an appeal. 19. On 2 February 2006 the first applicant’s lawyer addressed a letter to the Real Estate Registry, enquiring about the evolution of real estate prices between the last quarter of 2001 and the last quarter of 2005. 20. By a letter of 7 February 2006 the Real Estate Registry informed the first applicant’s lawyer that, in the relevant period, the average real estate prices per square metre in apartment buildings had increased from AMD 134,000 to AMD 325,400 and in houses measuring up to 250 sq. m. and having an adjacent territory measuring up to 400 sq. m., from AMD 141,200 to AMD 340,700. 21. On 23 March 2006 a correction was made to the ownership certificate and the second applicant was added as joint owner. 22. On 18 April 2006 the Constitutional Court found, inter alia, Government Decree no. 1151-N of 1 August 2002 to be unconstitutional. 23. On 21 June 2006 the first applicant’s lawyers filed written submissions with the Civil Court of Appeal arguing, inter alia, that the market value of the property in question, as established by the valuation reports of A.E. Ltd, was seriously underestimated, given the increase in real estate prices during the previous five years as evidenced by the information provided by the Real Estate Registry. They also submitted that the second applicant was not engaged in the proceedings as a defendant, despite the fact that she was a joint owner of the property in question and the fact that the District Court’s judgment affected her ownership rights. 24. On 27 June 2006 A.E. Ltd carried out an additional valuation of the applicants’ property upon the Agency’s request. 25. It appears that, at some point during the proceedings before the Court of Appeal, the second applicant was engaged as a party, receiving a summons to appear at one of the hearings. It further appears that on 3 July 2006 she enquired with the Court of Appeal about her status in the proceedings. 26. On 4 July 2006 A.E. Ltd prepared a new valuation report, according to which the market value of the property was AMD 60,292,000 as at 27 June 2006 (approximately EUR 114,650 at the material time). 27. On 6 July 2006 the Agency made a new proposal to both applicants, offering them the above-mentioned sum plus a financial incentive in the amount of AMD 18,087,600. 28. On the same date the new valuation report was presented to the Civil Court of Appeal. 29. On 7 July 2006 a law was adopted introducing a number of amendments to the Code of Civil Procedure (“the CCP”). 30. By a letter of 7 July 2006 the Local Council informed the Court of Appeal that the first applicant had been summoned to appear at the hearing of 10 July 2006 but not the second applicant, due to her absence. 31. On 10 July 2006 the first applicant’s lawyers filed an application with the Civil Court of Appeal, requesting the court to order an expert opinion to determine, inter alia, the real market value of the property in question, taking into account the increase in prices between 2001 and 2006. It appears that this application was dismissed. 32. On 14 July 2006 the Civil Court of Appeal granted the Agency’s claim on appeal, ordering the applicants to sign an agreement for a total amount of AMD 60,292,000 in compensation and their eviction, together with their family members. Only the first applicant was present at this hearing. The judgment stated that the second applicant had been duly notified of the time and place of the hearing but had failed to appear. The judgment was to enter into force in 15 days and could be contested before the Court of Cassation. 33. On 28 July 2006 the applicants lodged two separate appeals on points of law with the Court of Cassation. The second applicant complained, inter alia, that she had not been engaged in the proceedings before the District Court. She further alleged that the Court of Appeal had failed to respond to her inquiry of 3 July 2006 and to summon her to its hearing of 14 July 2006. 34. On 5 August 2006 the amendments of 7 July 2006 to the CCP entered into force. 35. On 11 August 2006 the then Civil Chamber of the Court of Cassation decided not to admit the applicants’ appeals on the ground that they did not comply with the requirements of Article 230 §§ 1 (4.1) and 3 of the CCP. In particular, the appeals did not indicate any of the grounds required by Article 231.2 § 1. Furthermore, there was no evidence that copies of the appeals had been sent to the other parties and to the lower court which had examined the case. The Court of Cassation fixed a one-month time-limit from the date of receipt of its decisions by the applicants for them to correct the shortcomings in their appeals. 36. On 11 September 2006 the first applicant submitted a new appeal on points of law. In particular, he argued that the violations of the substantive and the procedural laws would cause grave consequences, namely the unlawful deprivation of his property. Furthermore, the judicial act to be adopted by the Court of Cassation would have a significant impact on the uniform application of the law, taking into account the Constitutional Court’s decision of 18 April 2006. Finally, the contested judgment contradicted another decision previously adopted by the Court of Cassation. He also argued that his initial appeal should have been admitted without applying the requirements of Article 231.2 § 1 since it was not yet effective at the time when the appeal was lodged. 37. On 28 September 2006 the Court of Cassation, sitting in camera as a panel of six judges, decided to declare the appeal inadmissible. The reasons provided were as follows:
“The Court of Cassation finds that the arguments raised in the appeal on points of law [, as required by] Article 231.2 § 1 of [the CCP], are not sufficient to admit the appeal.”
38. On 30 October 2006 the Civil Court of Appeal issued a writ of execution in respect of its judgment of 14 July 2006. 39. On 22 November 2006 the second applicant submitted a new appeal on points of law which also contained arguments similar to those raised by the first applicant. She also raised a similar argument in connection with her initial appeal. 40. According to the information provided by the Government, on 1 December 2006 the applicants’ property was handed over to the Agency. 41. On 15 December 2006 the Court of Cassation, sitting in camera as a panel of seven judges, decided to declare the appeal inadmissible. The reasons provided were as follows:
“The Court of Cassation finds that the admissibility grounds raised in the appeal on points of law [, as required by] Article 231.2 § 1 of [the CCP], are absent. In particular, the judicial act to be adopted by the Court of Cassation in this case cannot have a significant impact on the uniform application of the law. Furthermore, the Court of Cassation considers the arguments raised in the appeal on points of law concerning a possible judicial error and its consequences, in the circumstances of the case, to be unfounded.”
II. RELEVANT DOMESTIC LAW
A. The Constitution of 1995 (following the amendments introduced on 27 November 2005 with effect from 6 December 2005)
42. Article 31 of the Constitution read as follows:
“Everyone shall have the right to dispose of, use, manage and bequeath his property in the way he sees fit. ... No one can be deprived of his property save by a court in cases prescribed by law. Property can be expropriated for the needs of society and the State only in exceptional cases of paramount public interest, in a procedure prescribed by law and with prior equivalent compensation. ...”
B. The Decision of the Constitutional Court of 27 February 1998 on the Conformity of Article 22 of the Law on Real Estate adopted by the National Assembly on 27 December 1995 with Articles 8 and 28 of the Constitution (ՀՀ սահմանադրական դատարանի 1998 թ. փետրվարի 27-ի որոշումը Ազգային ժողովի կողմից 1995 թ. դեկտեմբերի 27-ին ընդունված «Անշարժ գույքի մասին» ՀՀ օրենքի 22 հոդվածի երկրորդ, երրորդ, չորրորդ և հինգերորդ մասերի` ՀՀ սահմանադրության 8 հոդվածին և 28 հոդվածի երկրորդ մասին համապատասխանության հարցը որոշելու վերաբերյալ գործով)
43. In interpreting Article 28 of the Constitution, prior to the amendments introduced on 27 November 2005, the Constitutional Court noted that a person’s property could be expropriated and – in the absence of his consent – a person could be deprived of his property on the grounds envisaged by Article 28 of the Constitution only through the adoption of a law on the immovable property in question, which would substantiate the exceptional importance and significance of the expropriation and which would indicate the needs of society and the State to be satisfied by the expropriation. The law should also oblige the Government to fix the amount of compensation on the basis of a financial-economic assessment, taking into account market prices, the results of the negotiation between the Government and the owner of the property subject to expropriation and upon his written consent. The Constitutional Court further noted that the Government was not entitled to establish a procedure for the expropriation of property for the needs of society and the State that would grant them the right to expropriate such immovable property. C. Government Decree no. 950 of 5 October 2001 Approving the Procedure for the Taking of Plots of Land and Real Estate Situated within the Alienation Zones of Yerevan, their Compensation, Elaboration of Price Offers and their Realisation (ՀՀ կառավարության 2001 թ. հոկտեմբերի 5-ի թիվ 950 որոշումը Երևան քաղաքի օտարման գոտիներում գտնվող հողամասերն ու անհշարժ գույքը վերցնելու, փոխհատուցելու, գնայնի առաջարկը ձևավորելու և իրացնելու կարգը հաստատելու մասին)
44. Paragraph 7 provides that the market value of the real estate, which is determined by a licensed valuation organisation selected through a tender, shall serve as a basis for the determination of the amount of compensation for the real estate (land plots, buildings and constructions) situated within the alienation zone. D. Government Decree no. 1151-N of 1 August 2002 Concerning the Implementation of Construction Projects within the Administrative Boundaries of the Kentron District of Yerevan (ՀՀ կառավարության 2002 թ. օգոստոսի 1-ի թիվ 1151-Ն որոշում Երևանի Կենտրոն թաղային համայնքի վարչական սահմանում կառուցապատման ծրագրերի իրականացման միջոցառումների մասին)
45. For the purpose of the implementation of construction projects in Yerevan, the Government decided to approve the expropriation zones of the real estate (plots of land, buildings and constructions) situated within the administrative boundaries of the Kentron District of Yerevan to be taken for the needs of the State, with a total area of 345,000 sq. m. E. The Decision of the Constitutional Court of 18 April 2006 on the Conformity of Article 218 of the Civil Code, Articles 104, 106 and 108 of the Land Code and the Government Decree no. 1151-N adopted on 1 August 2002 Concerning the Implementation of Construction Projects within the Administrative Boundaries of the Kentron District of Yerevan with Article 31 of the Constitution (ՀՀ սահմանադրական դատարանի 2006 թ. ապրիլի 18-ի որոշումը «Երևանի Կենտրոն թաղային համայնքի վարչական սահմանում կառուցապատման ծրագրերի իրականացման միջոցառումների մասին» թիվ 1151-Ն որոշման` ՀՀ սահմանադրության 31 հոդվածին համապատասխանության հարցը որոշելու վերաբերյալ գործով)
46. The Constitutional Court, deciding on the application of the Armenian Ombudsmen, found that Article 31 of the Constitution, as amended on 27 November 2005, required that the expropriation process be regulated by a law. Such law should establish in clear terms the legal framework for expropriation of property for the needs of society and the State. The contested legal provisions, including Government Decree no. 1151-N, failed to meet this requirement and were therefore incompatible with, inter alia, Article 31 of the Constitution. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
47. The applicants complain that the deprivation of their property was unlawful and did not pursue any public interest, while the amount of compensation awarded was inadequate. Furthermore, they were deprived of the financial incentive because the judgment of the Court of Appeal was adopted less than ten days after they had received the Agency’s proposal of 6 July 2006. They rely on 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. The Government’s request to strike out the application under Article 37 § 1 of the Convention
48. The Government submitted a unilateral declaration requesting the Court to strike the application out of its list of cases pursuant to Article 37 § 1 of the Convention. In the light of the criteria established in its jurisprudence, the Court considers that the unilateral declaration submitted by the Government does not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). Hence, the Court rejects the Government’s request to strike the application out and will accordingly pursue its examination of the merits of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI). B. Admissibility
49. 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. C. Merits
50. The applicants submitted that the deprivation of their property had not been carried out under the conditions provided for by law since it had been effected in violation of the guarantees of Article 31 of the Constitution. They also argued that the expropriation of their property had not been based on any prevailing public interest. The applicants further submitted that the market value of their property had been grossly underestimated in the domestic proceedings. They lastly argued that no compensation had been paid to them for their expropriated property. The first applicant had neither signed an agreement on the taking of his property nor had he ever attempted to claim the amount of AMD 54,838,000 allegedly transferred to the deposit account of the public notary following the Kentron and Nork-Marash District Court’s judgment of 6 December 2005. 51. The Government refrained from making any submissions concerning this complaint. 52. The Court notes that it has already examined complaints concerning the application of the same provisions of domestic law in a number of cases against Armenia and concluded that the deprivation of property at the material time was not carried out in compliance with “conditions provided for by law” (see, among other cases, Minasyan and Semerjyan v. Armenia, no. 27651/05, §§ 69-77, 23 June 2009; Tunyan and Others v. Armenia, no. 22812/05, §§ 35-39, 9 October 2012). The Court does not see any reason to depart from that finding in the present case. 53. In view of this finding, it is unnecessary to examine whether the interference in question pursued a legitimate aim and was proportionate to that aim (see, for example, Vijatović v. Croatia, no. 50200/13, § 58, 16 February 2016; Gubiyev v. Russia, no. 29309/03, § 83, 19 July 2011). 54. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
55. Relying on Article 6 of the Convention, the applicants complained of the lack of access to the Court of Cassation and the lawfulness of the Court of Cassation’s composition when it decided to return their appeals of 28 July 2006. Again relying on the same provision, the first applicant complained that the principle of equality of arms had not been respected, while the second applicant raised a number of other complaints concerning the lack of a fair hearing. 56. Having regard to the facts of the case and its finding of a violation of Article 1 of Protocol No. 1 concerning the deprivation of the applicants’ property, the Court considers that it has examined the main legal question raised in the present application. It concludes, therefore, that there is no need to give a separate ruling on the applicants’ complaints under Article 6 of the Convention (see Ghasabyan and Others v. Armenia, no. 23566/05, § 29, 13 November 2014).

Outcome for Article P1-1: violation