ITEMID: 001-70905
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: EDER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The applicant, Mr Josef Eder, is a German national who was born in 1938 and lives in Regen.
The applicant was the owner of several plots of land near Regen. The Regen Municipality planned the construction of week-end houses, sport and play grounds and a restaurant on this site which was composed of marshes and wetland. On 18 April 1974 the Lower Bavarian Planning Authority decided that the intended development did not comply with the objectives of spatial planning. One of the main grounds for that refusal was that the site was located in a nature preserve. There was also the danger of dissection of landscape by secondary residences and of an undesirable effect on the promotion of tourism.
On 19 September 1980 and 27 April 1981, when purchasing further plots of land (parcels nos. 334/6, 339, 340, 345/4 and 361/4) located in this area, the applicant was informed by the Regen Regional Administrative Authority (Landratsamt) that the land in question was part of a natural habitat intended to be designated as a nature conservation area.
On 5 August 1981 the Regen Municipality published a development plan despite the objections of the Lower Bavarian Planning Authority.
By decisions of 24 April, 14 May and 25 May 1982 the Regen Regional Administrative Authority prohibited the applicant from altering the natural condition of the land (parcels nos. 339, 340 and 361/4), ordered him to refill the drainage ditches and informed him that the decisions would be implemented by the administrative authority at his own expense if he failed to carry out the expected activity within the time-limits fixed at one week and one month respectively. On 24 and 25 May 1982 the Regen Regional Administrative Authority proceeded to refill the ditches on one of the land parcels concerned (no. 339).
After a suspension for several years of appeal proceedings brought by the applicant, the Regensburg Administrative Court (Bayerisches Verwaltungsgericht), by a judgment of 4 June 2003, found that the limitation periods were too short and that the implementation of the decisions was unlawful.
On 29 April 1982 the Regen Regional Administrative Authority refused to grant the applicant a planning permission for the development of the land. This decision became final.
By a decree of 7 June 1983 the Government of Lower Bavaria designated the area, including in part the applicant’s land (parcels nos. 334/6, 339, 340, 345/4 and 361/4), as a nature conservation area.
On 10 April 1984 the Regen Regional Administrative Authority transferred, as requested by the applicant, his real property situated in this area to the State of Bavaria fixing the compensation to be awarded to him at 115,513 Deutschmarks (DEM). It refused to purchase parcel number 361/4 on the ground that the use for agriculture on this respective plot of land remained unaffected by the Nature Conservation Decree of 7 June 1983. It also refused to purchase the other remaining plots of the applicant’s land.
By a judgment of 28 April 1986 the Regensburg Administrative Court dismissed the appeals lodged by the applicant and the State of Bavaria against this decision. The judgment became final, the parties having withdrawn their respective appeals.
In 1988 the applicant sold the land not included in the area covered by the nature conservation decree (parcels nos. 332/3, 337 and 335) as pasture respectively forest land.
On 27 November 1992 the Regen Administrative Authority supplemented its decision of 10 April 1984, taking into account changes brought about in respect of the applicant’s land, such as the construction of a new road. No appeal was filed against this decision by the applicant. It accordingly became final.
By a judgment of 28 September 1989 the Munich Court of Appeal (Oberlandesgericht München) quashed a judgment of the Deggendorf Regional Court (Landgericht) of 28 October 1987 and increased the amount of compensation initially awarded to the applicant from DEM 115,513 to DEM 900,000. It refused to grant compensation in respect of parcel number 361/4, having regard to the binding effect of the judgment of the Regensburg Administrative Court of 28 April 1986. On 17 June 1991 the Bavarian Regional Supreme Court (Bayerisches Oberstes Landesgericht) dismissed the applicant’s appeal on points of law. In 1992 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint lodged against these decisions for adjudication.
On 11 March 1993 the applicant requested that the proceedings be re-opened and he be awarded compensation.
By a judgment of 20 February 1995 the Regensburg Administrative Court dismissed the applicant’s application for the re-opening of the proceedings. It ordered, however, the administrative authorities to decide on the applicant’s compensation claim in respect of the remaining plots of land (parcels nos. 332/3, 335, 337 and 361/4).
On 12 December 1997 the Regen Regional Administrative Authority dismissed the applicant’s compensation claim. It found that the land was situated outside the nature conservation area and was thus not affected by restrictions of the land use. The development plan for the week-end residences had never been validated, nor had the applicant ever been the owner of building land. Furthermore, with the exception of parcel number 361/4 he had sold the plots of land (parcels nos. 332/3, 335 and 337) in 1988. At the time of filing the compensation claim with the Administrative Authority in 1993 he did not own the land any longer. In any event, his compensation claim had not been filed within the period of three years after the date on which the nature protection decree had been issued.
The applicant appealed against this decision claiming to be entitled to be awarded by the State of Bavaria an adequate compensation for all the parcels of his land.
By a judgment of 24 January 2002 the Landshut Regional Court dismissed the applicant’s claim.
The applicant appealed against this judgment.
By a judgment of 20 January 2003 the Munich Court of Appeal dismissed the appeal. It found that the Regensburg Administrative Court, by a final judgment of 28 April 1984, had confirmed the decision of the Regen Administrative Authority of 10 April 1984 concerning the question of the transfer of the applicant’s land. The question of compensation in respect of that land had been definitively settled by the judgment of the Munich Court of Appeal of 28 September 1991 following the dismissal of the applicant’s appeal on points of law by the Bavarian Regional Supreme Court on 17 June 1991.
According to the Court of Appeal, the same reasoning applied to the applicant’s request to re-open the proceedings with a view to being granted a higher compensation under the compensation provisions of the Federal Building Code (Bundesbaugesetz). By a final judgment of 20 February 1995 – the applicant’s appeal on points of law had been dismissed by the Bavarian Court of Appeal (Bayerischer Verwaltungsgerichtshof) on 16 January 1997 – the Regensburg Administrative Court had refused to re-open the proceedings with a view to reassessing the amount of compensation in respect of the land whose property had been transferred to the State of Bavaria.
The remaining plots of land (parcels nos. 332/3, 335 and 337 361/4) were situated outside the area originally zoned for development and were thus neither adversely affected by the nature conservation decree nor by the decisions of the Regen Administrative Authority of 24 April and 14 and 25 May 1982 prohibiting the applicant from altering the natural conditions of this land (parcels nos. 339, 340 345/4 and 361/4).
According to the Court of Appeal, important considerations of nature conservation made the proposed development incompatible with the preservation of the valuable wetland in the area concerned. The applicant had never enjoyed a right to develop the land in question nor had he ever had a legitimate expectation of carrying out the proposed development since the development plan had been invalid from the beginning. Furthermore the applicant was not entitled to compensation because agricultural use of the land was not prohibited. The Court of Appeal advised the applicant to accept the numerous court decisions given in his case which confirmed that the development plan had no legally binding effect and that the land in question was never designated for construction purposes.
On 20 November 2003 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant’s appeal against the decision refusing him leave to appeal on the ground that the case raised no issue of principle.
On 23 January 2004 the Federal Constitutional Court, sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint for adjudication.
In the meantime, by notices of 17 March and 18 July 1997, the Zwiesel Tax Office (Finanzamt) had assessed the applicant’s income tax taking into account the compensation paid to him by the State of Bavaria. The applicant’s appeals lodged against these decisions were dismissed by the Zwiesel Tax Office on 18 July 1997, the Munich Finance Court (Finanzgericht) on 14 July 2000 and the Federal Finance Court (Bundesfinanzgericht) on 28 June 2001. On 20 September 2001 the Federal Constitutional Court, sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint for adjudication.
On 24 October 2001 the Zwiesel Tax Office issued a new revised tax assessment claiming payment of income tax for the fiscal year 1991. The appeals lodged by the applicant were dismissed by the Zwiesel Tax Office on 24 October 2001 and the Munich Finance Court on 24 January 2003. On 10 December 2003 the Federal Finance Court rejected the applicant’s appeal against the decision refusing him leave to appeal on points of law. It found that the applicant’s grounds of appeal did not satisfy the procedural requirements of the relevant provisions of the Finance Court Act (Finanzgerichtsordnung). It noted in particular that the complaints concerning the fairness of the proceedings and the interpretation of the facts allegedly in contrast to the clear contents of the files had not been submitted within the statutory time-limit.
On 9 January 2004 the Zwiesel Tax Office notified the applicant an enforcement decision of 16 December 2003 in respect of his tax liability relating to the period from 1991 to January 2003 in an amount of EUR 310,440.02, including interests, penalties for late payment and costs of the proceedings.
On 8 March 2004 the Federal Constitutional Court, sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint for adjudication.
Simultaneously the Landshut Regional Court claimed from the applicant the payment of court costs. On 22 December 2003 the Viechtach District Court (Amtsgericht) issued a warrant of arrest against the applicant because he did not make an affidavit (eidesstattliche Versicherung) as to his assets.
On 21 April 2004 the Deggendorf District Court assessed the value of the applicant’s real estate at Regen and fixed the date for its compulsory sale at 16 November 2005.


ITEMID: 001-5668
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ATANASSOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Bulgarian national born in 1963 and residing in Varna. Before the Court he is represented by Mrs Z. Kalaydjieva, a lawyer practising in Sofia.
The facts of the case, as submitted by the applicant and account being taken of the information provided by the parties (Rule 48 § 2 (a) of the Rules of Procedure of the European Commission of Human Rights and Rule 54 § 3 (a) of the Rules of Court), may be summarised as follows.
At about 3 a.m. on 9 November 1995 the applicant was implicated in a fight in a night bar in Varna and was beaten by Mr P., the private security guard at the bar. The applicant claims that at some point he fell and lost consciousness and that he does not remember clearly the events during the remaining part of the night. He remembers that at about 9 a.m. he was on the premises of the district police, third district of Varna (Трето Районно Управление на МΒР), and that soon thereafter he went back home by taxi.
When the applicant was examined at the Regional Hospital (Окръжна болница) at about noon that day, the doctors found that he had a rupture in the small intestines with a resulting haemorrhage in the abdominal area, about 500 ml of blood having been found therein. Also, the applicant had suffered from peritonitis. Moreover, he had received a blow on the head with a resulting concussion and also had several bruises on his face and chest. The applicant underwent surgery without which his life would have been in danger.
Following the incident criminal proceedings were instituted against the private security guard. The applicant’s requests for the institution of criminal proceedings against police officers were refused.
The procedural steps in all relevant proceedings, the applicant’s allegations, and the findings of the prosecutors, may be summarised as follows.
Immediately after the incident, on 9 and 10 November 1995, written statements were taken from two witnesses and also from four police officers, who had been dispatched to the scene upon a call from the bar.
On 10 November 1995 the local District Prosecutor’s Office (Районна Прокуратура) opened ex officio preliminary investigation proceedings (дознание) against Mr P., the private security guard. In these proceedings several witnesses were questioned, some of them repeatedly. The applicant was also heard. Mr P. was initially questioned as a witness. He was then charged with bodily assault and again questioned. A confrontation between the applicant and Mr P. was organised.
Ms M., the bar tender, and Ms S., a waitress, testified that the applicant had entered the bar at around midnight and, in the course of the following three hours, had drunk about 300 or 400 centilitres of cognac. At 3.30 a.m. he had insisted to be served tea although he had been told that the bar had closed. Irritated by the invitations to leave the bar he had thrown a serving tray on the ground. When Mr P., the security guard, had then tried to lead him out of the bar, the applicant had seized a chair and had tried to hit Mr P. There had followed a fight between the two. A glass table had been broken. Mr P. had finally managed to tie the hands of the applicant. Mrs S. had in the meantime called a friend, a taxi driver, to come and help. Upon his arrival the taxi driver had called the police. The police had arrived and had called for an ambulance which had taken the applicant.
The taxi driver, who was also questioned, stated that upon his arrival at the bar he had seen the applicant lying on the ground and had called the police.
Mr P. pleaded guilty but emphasised that he had acted in self defence. He confirmed the sequence of events as described by the bar tender and the waitress. Mr P. testified that during the fight he had kicked the applicant in the stomach and that he had then hit him again in the stomach with his knee.
Three police officers, who had been dispatched to the scene, and the officer on duty at the police station reported in writing that at about 4 a.m. a call from the bar had been received, alerting the police about the incident. Upon their arrival, officers T., B. and A., who had been patrolling the area, had found the applicant lying on the ground, his hands tied with a shirt, visibly seriously injured and drunk. They had then called for an ambulance which had arrived at about 4.30 a.m. and had taken the applicant to the emergency unit of the local hospital. Officers T., B. and A. had remained at the scene and had taken the written statements of two witnesses. The applicant had stayed at the hospital until about 7 a.m. At that time a police officer had visited the hospital and, having been told by Doctor K., who had examined the applicant, that he had not been in need of hospitalisation, had brought him to the police station for questioning.
In his testimony the applicant stated that at about 1.30 a.m., while drinking cognac in the bar, he had suddenly lost consciousness. He could not remember whether he had been hit. He had regained consciousness in the morning, in a cell at the police station. A police officer had told him that he had been seen by a doctor during the night and had then brought him to another officer. The latter had considered that the applicant had not been fit for questioning and had called a taxi for him. A summons for questioning on the following Monday had been given to the applicant.
On 13 November 1995 the applicant was examined by a forensic doctor. He found a cut on the applicant’s head, which had been surgically treated and bruises of purple-bluish colour around the left eyebrow, the eyelids, the nose and the chin. There was also a superficial cut of the skin of the cheek 2 cm long and a 15 mm long cut on the upper lip. The rim of a tooth had been broken. Several small cuts were found on the palm and a finger of the applicant’s left hand. Bruises were also found on the chest and the left side of the waist. The forensic expert concluded that the injuries must have been caused on 8/9 November, as stated by the applicant. Another medical opinion, ordered in the course of the investigation, found, inter alia, that there was no indication of a complete loss of consciousness having occurred as a result of the injuries.
On 2 April 1996 the preliminary investigation was completed. The investigator proposed to the competent prosecutor to indict Mr P.
On 17 April 1996 the District Prosecutor’s Office ordered the discontinuation of the criminal proceedings against Mr. P.
Based on the evidence collected in the course of the investigation it was established inter alia that the applicant had been heavily drunk and had attacked Mr. P. when he had attempted to lead him out of the bar; that Mr. P. had reacted by kicking the applicant in the abdominal area and that a fight had followed. At some point a taxi driver had called the police who had then called an ambulance.
The prosecutor concluded from these findings that Mr P., albeit having acted in self- defence, had administered blows which had not been strictly necessary to counter the attack. Mr P. had thus caused bodily harm of medium level gravity, temporarily endangering the applicant’s life. Since under the relevant law bodily harm caused in such circumstances was a crime punishable by way of private prosecution, it was unnecessary to continue the public prosecution in the case.
It appears that at least until March 1996 the applicant had not mentioned any suspicion on his part that he might have been beaten by the police.
On 22 March 1996 he wrote to the Regional Military Prosecutor’s Office (Окръжна Βоенна Прокуратура) requesting an investigation against the police. On 23 April 1996 he appealed to the Regional Prosecutor’s Office (Окръжна Прокуратура) against the discontinuation of the criminal proceedings against Mr P. In these submissions he stated, inter alia, that he had decided to verify himself certain facts about the events in the night of 9 November 1995 and that he had sought information from the Regional Hospital and from the local ambulance service. The applicant enclosed medical certificates reflecting entries in the registers of the Hospital and of the ambulance service.
The register of the ambulance service recorded that a sergeant M. from the police had called on 9 November 1995 at 4.25 and had asked for an ambulance to be dispatched to the bar where the fight had taken place that night. According to the certificate the ambulance had arrived at 4.34 at the bar. The applicant had been examined on the spot by Doctor R. from the ambulance service. Doctor R. had noted that the applicant had received a blow on the head with a resulting concussion and also that there had been an appearance of food poisoning. The certificate further recorded that the applicant had been brought by the ambulance to the urgent surgery unit at the Regional Hospital, to Doctor K. The ambulance had then returned to the premises of the ambulance service, at 5 a.m.
The records of the urgent surgery unit of the Regional Hospital revealed that the applicant had been brought there and had been examined by Doctor K. The certificate stated that the applicant had been injured in the head which had necessitated stitching up, performed by Doctor K. There had been no indication of an acute abdominal condition. The applicant’s arrival had been recorded as having happened at 3.45 a.m. on 9 November 1995. The preceding record in the register was for the examination of a Ms N. at 2.25 a.m. The entry which followed the registration of the applicant’s arrival was for a Ms G., who had been admitted at 5.40 a.m.
The register of the ambulance service did not mention any stitching on the applicant’s head having been found when he had been examined by Doctor R. at about 4.34 a.m.
On the basis of these certificates, and referring to the findings of the forensic examination of 13 November 1995 (see above), the applicant claimed that it had been apparent that he had been beaten for a second time following his visit to the urgent surgery unit of the Regional Hospital at 3.45 a.m. and that this had been done by the police in whose hands he had been at that time. The applicant considered that after his examination by Doctor K. at 3.45 a.m. he must have been transported back to the bar and beaten again, whereupon an ambulance had been called. The applicant accordingly requested the reopening of the investigation or the transmission of the file to the Regional Military Prosecutor’s Office, which was competent to open criminal proceedings against police officers.
On 2 May 1996 the Regional Prosecutor’s Office refused to reopen the criminal proceedings, stating that the applicant could bring a private prosecution action in court and that the facts as regards Mr P. had been established. Insofar as the applicant had made new allegations these had been within the competence of the Military Prosecutor’s Office. Upon the applicant’s appeal this decision was confirmed on 13 September 1996 by the Chief Public Prosecutor’s Office (Главна Прокуратура).
In view of the applicant’s allegations that he had been beaten by police officers the file was transmitted to the Regional Military Prosecutor’s Office. The Office conducted a preliminary inquiry (предварителна проверка). Five police officers were questioned. They confirmed their testimony given during the investigation against Mr P. and added that the applicant had not been beaten by the police. They also stated that the applicant had not been put in a cell at the police station, but had waited for a while in the corridor.
On 30 May 1996 the opening of criminal proceedings against the police officers was refused. The decision stated that the applicant had been beaten by Mr P., that he had been brought to the hospital and that the five police officers questioned had denied having beaten the applicant. Furthermore, the applicant having been drunk and in a helpless state, it was illogical to consider that using force against him could have become necessary.
On 12 June 1996 the applicant appealed against this decision to the General Military Prosecutor’s Office (Прокуратура на въоръжените сили) stating inter alia that the facts had not been clarified, that he had not been questioned and that Doctors K. and R. had not been questioned either. The Regional Military Prosecutor’s Office replied that they had taken into account the applicant’s testimony given in the course of the investigation against Mr P.
By decision of 1 July 1996 a prosecutor of the General Military Prosecutor’s Office dismissed the appeal stating that the witnesses examined in the course of the criminal proceedings against Mr P., Mr P.’s own admissions, and the applicant’s testimony showed that all injuries had been caused by Mr P.
On 24 September 1996 the applicant appealed against this decision. The appeal was examined on the merits and dismissed on 16 October 1996 by decision of a senior prosecutor at the General Military Prosecutor’s Office who in substance repeated the findings of the lower prosecutor. He stated, inter alia, that the applicant’s allegations were devoid of any serious foundation.
None of the decisions addressed the applicant’s allegation that he had been brought to the hospital twice during the night. Nor did any of the decisions deal with the applicant’s request that Doctors K. and R. be questioned.
On 21 March 1997 the applicant instituted private prosecution proceedings against Mr P. The Varna District Court heard witnesses, including Doctors R. and K. and the police officers involved, and collected other evidence.
By judgment of 19 May 1999 Mr P. was convicted of bodily assault committed in circumstances of overstepping the necessary defence against an attack. He was acquitted insofar as it had been alleged that he had also caused a loss of consciousness, as it had not been proven that the applicant had lost consciousness at any moment. Mr P. was ordered to pay 300,000 old Bulgarian levs (about 1,050 FRF) to the applicant and a fine.
The District Court found, inter alia, that after the call for an ambulance the applicant had been seen by Doctor R. who had noted a head injury and the applicant’s intoxication. Doctor K., who had seen the applicant at the hospital, had treated the wound on the applicant’s head and had examined his general state of health. He had not detected an acute abdominal condition. That had been diagnosed later, when the applicant’s condition had deteriorated.
The District Court further found that there were no contradictions arising from the evidence in the case, including all medical certificates. It rejected Mr P.’s assertion that it had been unclear whether the applicant’s injuries had been caused by him.
The applicant did not appeal. Upon the appeal of Mr P., on 18 April 2000 the Regional Court quashed the District Court’s judgment as it found that the amount of the fine had been unclear, different figures having been mentioned in the operative part and in the reasoning of the judgment. The proceedings are pending before the District Court, where a hearing was listed for 7 December 2000.


ITEMID: 001-103108
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GEORGI GEORGIEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: The applicant, Mr Georgi Todorov Georgiev, is a Bulgarian national who was born in 1929 and lives in the village of Trud, in the Plovdiv region. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
At about 6.30 p.m. on 22 April 1996 the applicant’s son, who had earlier consumed alcohol, entered a pub in the centre of Trud. There he met Mr I.M., whom he apparently knew, who had also consumed a considerable amount of alcohol. The applicant’s son sat down at Mr I.M.’s table and asked him to lend him some money. Mr I.M. refused, but offered to buy him a drink instead. The applicant’s son became angry and started swearing at Mr I.M. He went outside and returned several times, visibly enraged. At one point he said to his cousin, who was also in the pub: “Just watch me slap the halva-seller around in two minutes”. The quarrel escalated. The applicant’s son grabbed Mr I.M.’s clothes and pulled him up from his chair. After that the two stood opposite each other, shouting. A waitress asked them to take their quarrel outside. The applicant’s son pushed Mr I.M. through the door causing him to fall on his back. The applicant’s son then proceeded to kick him in the midriff and jump on top of him, pinning him to the ground with his knee. According to the findings of the prosecutors who later dealt with the case, he also grabbed Mr I.M. by the throat and started strangling him. The applicant strongly disputed that finding. The prosecutors also found that Mr I.M. had tried to free himself from the applicant’s son’s grip, but to no avail.
According to the prosecutors’ findings, at that point Mr I.M., who was choking, drew a knife from a sheath attached to his belt and stabbed the applicant’s son in the chest. Seeing the knife, a bystander intervened and separated the two men. The applicant’s son got up and took a few steps towards a car parked nearby. Mr I.M. followed him with the bloodstained knife, but did not try to hit him again. He said “Now see who you have sworn at and what it is to hit someone”. According to the applicant, the stabbing took place after his son had already been separated from Mr I.M.
After that two eyewitness, Mr Z.P. and Mr T.K., put the applicant’s son in a car to take him to hospital. They came across a police car and told the officers about the incident. The police called an ambulance, but the applicant’s son died before it arrived.
A test revealed that at the time of the incident the alcohol content in the applicant’s son’s blood was 2.06 mg per ml. Mr I.M.’s bloodalcohol content, measured three hours after the incident, was 2.39 mg per ml.
At about 7 p.m. the same day the police dispatched two officers to the scene of the incident. They impounded I.M.’s knife, arrested him, took him to a police station in Plovdiv and took a statement from him.
Later that day the authorities opened an official investigation into the incident. Between 8.20 p.m. and 8.50 p.m. the investigator to whom the case was assigned and a forensic technician inspected the body of the applicant’s son. Between 8.55 p.m. and 9.15 p.m. they inspected the scene of the incident.
At the investigator’s request, at about 9.30 p.m. a medical doctor examined Mr I.M. Between 9.45 p.m. and 10.50 p.m. two police officers, acting on the investigator’s instructions, interviewed five eyewitnesses (Mr H.G., Mr Z.P., Ms Y.K., Mr T.K. and Ms E.B.).
The next day, 23 April 1996, a forensic pathologist performed an autopsy on the body of the applicant’s son. He found that he had died as a result of the stabbing, which had ruptured key blood vessels, causing massive loss of blood. He found that the angle of entry of the wound was upwards, from front to back and from right to left.
The same day, 23 April 1996, the case was taken up by another investigator. He placed Mr I.M. in pretrial detention, charged him with murder under Article 115 of the Criminal Code (see Relevant domestic law below) and interviewed him, first alone and then in the presence of his counsel. Mr I.M. chose not to make a statement, saying that he did not feel very well.
On 24 April 1996 the investigator ordered an expert report on the blood found on the knife impounded from Mr I.M. and on a blood sample taken from the scene of the incident. The results were ready on 8 May 1996.
On 25 April 1996 the investigator asked a forensic expert to examine Mr I.M. for injuries and express his opinion on how they had been inflicted. In his report, filed the same day, the expert said, inter alia, that although Mr I.M. complained of pain in the neck, he bore no visible traces of strangulation.
On 29 April 1996 the investigator interviewed Mr H.G. and Mr Y.K. Both of them said that their earlier statements had not been comprehensive and gave fuller accounts of their versions of the events. Mr H.G. mentioned that the hands of the applicant’s son had left red marks on Mr I.M.’s throat. On 30 April 1996 the investigator interviewed Mr I.M., who gave a full account of his version of the events. On 2 May 1996 the investigator interviewed Ms E.B., Mr T.K. and Mr Z.P. On 13 and 14 May 1996 he interviewed three other witnesses who had not directly seen the incident.
On 14 May 1996 the investigator ordered a psychiatric expert report on Mr I.M.’s state of mind at the time of the incident. In their report, filed the same day, three experts said that at the time of the incident Mr I.M. had been in a state of fear which had influenced his conduct, additionally affected by his state of alcoholic intoxication.
On 23 May 1996 the investigator amended the charges against Mr I.M. to murder committed through the use of excessive force in selfdefence, contrary to Article 119 of the Criminal Code (see Relevant domestic law below).
On 27 May 1996 the investigator asked a forensic expert to express his opinion, based on the materials in the case file, on the relative positions of the applicant’s son and Mr I.M. at the time of the stabbing and on the strength of the blow. In his report, filed on 29 May 1996, the expert said that the wound could have been inflicted while the applicant’s son had been pinning Mr I.M. to the ground and strangling him, or if the two had been standing opposite each other, or if Mr I.M. had been standing behind the applicant’s son. However, the manner in which the incident had unfolded suggested that the most likely version was that the stabbing had taken place while the two men had been struggling on the ground.
In February 1997 the case was assigned again to the investigator who had dealt with it initially. On 7 February and 2 April 1997 he interviewed Mr T.K., Mr H.G. and Mr Z.P., as well as another eyewitness, Ms S.P., in the presence of counsel for the applicant and his wife and of counsel for Mr I.M. While on 7 February 1997 Ms S.P. had maintained that Mr I.M. had stabbed the applicant’s son long after the two had been separated, on 2 April 1997 she said that she had not seen clearly how the stabbing had taken place. When asked to explain the divergence, she said that she had been frightened, had not seen the stabbing directly, and was too frail psychologically and burdened with other problems to be able to have a clear recollection of the events.
Meanwhile, on 2 April 1997 the applicant and his wife applied to join the proceedings as civil parties. The investigator granted their application the same day.
On 16 June 1997 the investigator interviewed the former wife and the child of the applicant’s son.
On 25 June 1997 the investigator allowed the applicant and his wife, assisted by their counsel, to inspect the case file.
On 26 June 1997 the investigator allowed Mr I.M. and his counsel to inspect the case file. They objected against the investigator’s decision to allow the applicant and his wife to join the proceedings as civil parties, pointing out that they had failed to specify the amount of their claim.
The same day, 26 June 1997, the investigator sent the case file to the Plovdiv Regional Prosecutor’s Office, proposing that Mr I.M. be put on trial. He described in detail his findings of fact and concluded that by resorting to a knife Mr I.M. had used excessive force in selfdefence.
However, on 11 July 1997 the Plovdiv Regional Prosecutor’s Office decided to discontinue the investigation. It reasoned that Mr I.M.’s act fell within the ambit of Article 12 § 3 of the Criminal Code (see Relevant domestic law below), because he had used excessive force out of fear. He had acted under the influence of fear induced by the applicant’s son’s attack, which had significantly reduced his ability to assess the situation correctly and adapt his conduct so as to remain within the limits of selfdefence. His act, which had consisted in a single blow with a knife, had essentially been defensive, in spite of his words after the fight. It was apparent from the statements of the eyewitnesses that the applicant’s son had pinned Mr I.M. to the ground and grabbed him by the throat, preventing him from breathing normally. He had at first unsuccessfully tried to free himself from that robust grip, which had caused him to fear for his life and safety.
On 28 July 1997 the applicant and his wife appealed against the discontinuance to the Chief Prosecutor’s Office. They argued that the stabbing had taken place after their son had already been separated from Mr I.M. and that the latter had continued chasing him with a bloodstained knife. They argued that the witnesses had said so in their initial interviews, and had changed their statements only later. Moreover, the fight had been brief and Mr I.M. was physically the stronger. In those circumstances, there was no room for the application of Article 12 § 3 of the Criminal Code.
On 20 August 1997 a prosecutor from the Chief Prosecutor’s Office allowed the appeal and ordered the Plovdiv Regional Prosecutor’s Office to resume its work on the case. He reasoned that the investigation had failed to elucidate the exact timing of the stabbing and the applicant’s son’s and Mr I.M.’s relative positions at that moment. The witnesses’ initial and subsequent statements on that point were contradictory. It was also unclear whether or not the applicant’s son had in fact been able to walk after the stabbing and at what point he had halted his assault on Mr I.M. Finally, it had not been clarified whether or not the fatal blow was delivered while the two men were still wrestling on the ground and whether or not it had been indeed feasible for Mr I.M. to draw the knife from its sheath and administer a forceful upward blow, as described in the medical expert report.
On 5 September 1997 Mr I.M. appealed against that decision. On 1 October 1997 the Head of the Investigations Division of the Chief Prosecutor’s Office quashed it and upheld the discontinuance. He found that the lower prosecutor’s misgivings about unclarified aspects of the incident were unsupported by the evidence. While it was true that there were discrepancies between the witnesses’ initial statements as to the timing of the stabbing, on requestioning one of the witnesses had maintained that the stabbing had taken place while the attack by the applicant’s son was still continuing and the others said that they had not seen the actual stabbing. Moreover, the medical expert report had concluded that the blow had been delivered in a horizontal position. Therefore, all possibilities of clarifying the facts had been exhausted and the decision to discontinue the investigation had been warranted.
The applicant and his wife appealed to the Chief Prosecutor. On 31 March 1998 the Deputy Chief Prosecutor, to whom the case had been referred, allowed the appeal and ordered the Plovdiv Regional Prosecutor’s Office to investigate further. He considered that it had not been made clear what had caused the eyewitnesses to change their statements. There were also serious discrepancies between the subsequent statements and the statements of other witnesses. These could have been cleared up by arranging a confrontation between the witnesses. Since the reports describing the crime scene were quite laconic, it would have been helpful to interview the persons present when they were drawn up. No efforts had been made to check the clothes and the shoes worn by the applicant’s son and Mr I.M. in order to determine whether the bloodstains on them corresponded to their relative positions and movements as described by the eyewitnesses. The persons who had taken the applicant’s son to hospital had not been asked whether he had said anything. No reconstruction had been staged to test the witnesses’ statements. The medical expert had not been asked clear and comprehensive questions. In view of the force of the blow, the expert should have been asked whether or not it was possible for an individual who was under the influence of drink, gripped by the throat to the point of strangling and had a damaged right elbow joint to draw a knife out of its sheath, swing it forcefully and administer a strong blow. The expert should also have been asked whether or not it would have been possible for the applicant’s son to walk after receiving such a blow. No consideration had been given to bringing in other experts whose specialist knowledge could have shed more light on the circumstances in which the applicant’s son had died.
On 20 May 1998 Mr I.M. appealed to the Chief Prosecutor. On 14 July 1998 the Chief Prosecutor quashed his deputy’s decision and upheld the discontinuance. He noted that all eyewitnesses had been questioned several times and all the discrepancies between their initial statements had been cleared up. Fresh interviews would not add anything. The clothes and shoes worn by the applicant’s son and Mr I.M. would not alter the findings either, because the manner of stabbing had been established through a medical expert’s report and the statements of witnesses. It was also clear that the applicant’s son had not spoken to the witnesses before his death. Mr I.M.’s act amounted to selfdefence, because he had used the only means at his disposal to repel the attack.
In February 1999 the Chief Prosecutor’s term of office came to an end and a new one was sworn in. The applicant and his wife challenged his predecessor’s decision. On 20 May 1999 the new Chief Prosecutor assigned the case to a prosecutor of the newly created Supreme Cassation Prosecutor’s Office. On 22 June 1999 that prosecutor upheld the challenge and ordered the Plovdiv Regional Prosecutor’s Office to resume the investigation and carry out various steps. Firstly, in view of the dubious validity of the medical expert report and its failure to take into account the eyewitnesses’ initial statements, it was necessary to order a further report to be drawn up by two forensic specialists and a surgeon. Secondly, in view of evidence by Mr H.G. that he had seen red marks on Mr I.M.’s throat, and of the fact that a medical expert who had examined Mr I.M. that same evening and two days later had not found any visible traces of injuries to his throat, it was necessary to clarify whether it was medically possible for them to have disappeared so fast. It was also not clear why the eyewitnesses had changed their statements and why the investigator who had initially taken up the case had been replaced. The applicant had alleged that the replacement was a friend of Mr I.M.’s son. It was therefore necessary to assign the case to another investigator with instructions to requestion the eyewitnesses and specifically ask them why they had changed their statements and whether they had been pressured into doing so.
After that the case was assigned to another investigator. On 14 July 1999 she interviewed Mr H.G., Mr Z.P. and Mr T.K.
On 15 July 1999 she interviewed Ms S.P. and Ms E.B. As Ms S.P.’s account differed from the one that she had given on 7 February 1997 but coincided with the one that she had given on 2 April 1997, the investigator asked her to explain the difference and to confirm which one was true. After a certain amount of hesitation, Ms S.P. said that her statement of 7 February 1997 was true and that her statement on 2 April 1997 had been made under pressure by counsel for Mr I.M., who had talked to her just before the interview. However, she then said that she had not clearly seen the stabbing.
On 23 July 1999 the investigator interviewed Ms Y.K. On 3, 7, 8 and 16 September 1999 she interviewed the police officers who had seen the applicant’s son in the car on his way to hospital and the police officers who had arrested Mr I.M.
On 25 August 1999 Mr I.M. appealed to the Chief Prosecutor against the investigation’s renewal. The appeal was rejected on 22 March 2001 and the case file was sent back to the investigator on 29 March 2001.
On 1 June 2001 the investigator interviewed Mr I.M. On 5 June 2001 she interviewed the applicant and his wife and their other son, the deceased’s brother.
At the request of Mr I.M., on 6 June 2001 the investigator revoked the earlier decision to accept the application by the applicant and his wife to join the proceedings as civil parties (see above). She found that the application had been defective, as it had only mentioned their names and their wish to join the proceedings as civil parties, whereas under Article 61 § 1 of the 1974 Code of Criminal Procedure (see Relevant domestic law below) it should have contained a number of other items. On 10 April 2002 the Plovdiv Regional Prosecutor’s Office endorsed that decision. The applicant appealed, but the decision was upheld by the Plovdiv Appellate Prosecutor’s Office on 25 April 2002. The applicant appealed further. On 6 June 2002 a prosecutor of the “Investigations” division of the Supreme Cassation Prosecutor’s Office also upheld the decision. In his view, there was no legal impediment preventing the investigator from revoking an earlier procedural decision.
On 27 June 2001 the applicant and his wife lodged a fresh application to join the proceedings as civil parties. On 26 July 2001 the investigator allowed their application.
In the meantime, on 7 June 2001 the investigator asked three forensic experts to express their opinion on the exact mechanism of the stabbing, based on the materials in the case file. She asked three other experts to explain whether it was possible for Mr I.M. to have been strangled and to have had no marks of that on his throat, and, if so, to determine how strong the strangling had been.
In their report, filed on 19 June 2001, the first three experts said that the stabbing had occurred from a close distance. It was entirely possible that it had occurred while the applicant’s son was strangling Mr I.M. However, it could not be excluded that the blow had been delivered when the two were standing upright, or when Mr I.M. was chasing the applicant’s son.
In their report, also filed on the same date, the second group of experts said that the red marks on Mr I.M.’s throat mentioned by Mr H.G. could have many explanations, and that no trace of them had been found during the later medical examinations. It was however possible that they had disappeared in the meantime.
On 12 October 2001 the investigator amended the charges against Mr I.M., accusing him of an offence under Article 118 of the Criminal Code (see Relevant domestic law below), and interviewed him.
On 27 November 2001 the investigator allowed the applicant and his wife, assisted by their counsel, to inspect the case file. The same day she allowed the wife of the deceased to inspect the file as well.
On 29 November 2001 Mr I.M. was allowed to inspect the case file, in the presence of his counsel. He made a number of objections and requests. The investigator rejected them on 22 March 2002.
On 5 April 2002 the investigator sent the case file to the Plovdiv Regional Prosecutor’s Office with a recommendation to bring Mr I.M. to trial. She analysed the statements of the witnesses in detail, noting that they were quite contradictory and, save for those of Mr S.P., unclear as to the exact timing and mechanism of the stabbing. She also analysed the expert reports and concluded that Mr I.M. could not have genuinely feared for his life and had stabbed the applicant’s son when the two had already been separated. Based on that, she found that by pulling out his knife and administering a blow with it Mr I.M. had used excessive force in selfdefence, contrary to Article 118 of the Criminal Code (see Relevant domestic law below).
On 19 July 2002 the Plovdiv Regional Prosecutor’s Office, disagreeing with the investigator’s proposal, discontinued the proceedings. It noted that the medical expert report had concluded that the applicant’s son’s wound could have been inflicted either while he and Mr I.M. were wrestling on the ground, or later, when they had been already separated. Whereas the first scenario was consistent with the statements of three witnesses – Mr H.G., Ms Y.K. and Ms E.B. –, the second scenario was not supported by any evidence save for the account of one witness – Ms S.P. – whose statement had been changed several times and was therefore not credible. The experts had, moreover, found that the applicant’s son would not have lost all his strength immediately and would have been able to take a few steps before falling to the ground. It could therefore be concluded that in stabbing the applicant’s son Mr I.M. had used excessive force in his selfdefence on account of the fear caused by the applicant’s son’s attack. Mr I.M.’s inability to assess the facts correctly had been exacerbated by the influence of drink. His act had been intended to repel a direct attack posing a threat to his life, not to cause the death of the applicant’s son. This was borne out by the fact that before drawing the knife he had tried to free himself from the latter’s grip.
On 26 July 2002 the applicant sought judicial review of that decision. He argued that it was almost identical to the previous decision to discontinue the investigation and failed to take into account the newly gathered evidence. No consideration had been given to the explanation which Ms S.P. had provided for changing her statement. It would, moreover, have been impossible to deliver such a strong blow while being strangled and pinned to the ground. In addition, Mr I.M. had been so heavily intoxicated that his actions had been driven entirely by drink and not by fear. It was necessary to order an additional expert report on that point.
On 2 September 2002 the Plovdiv Regional Court decided to examine the case at a public hearing, which took place on 18 February 2003. The applicant appeared together with his counsel. Mr I.M. also appeared with his counsel. The court heard the public prosecutor, counsel for the applicant, counsel for Mr I.M. and Mr I.M.
On 5 March 2003 the court upheld the prosecutor’s decision. It found that the investigation had not been characterised by significant omissions and that the authorities had taken the necessary steps to establish the facts. The higher prosecutor’s offices had ordered further investigatory measures – requestioning of witnesses and fresh expert reports – which had been carried out. The prosecutor’s findings, based on the evidence thus obtained, were correct, and the applicant’s arguments were not sufficient to cast serious doubt on them. The main issue in determining whether Mr I.M.’s act had been justified under Article 12 of the Criminal Code, was at which point the applicant’s son had stopped attacking him. The available evidence categorically showed that he had used the knife at a time when the attack was still going on. That was confirmed by the accounts of the eyewitnesses Mr H.G. and Ms S.P., who had clarified the discrepancies between their various statements. Moreover, their statements supporting the version that Mr I.M. stabbed the applicant’s son when he was still strangling him fully coincided with the statements of the other eyewitnesses (Mr Z.P., Mr T.K., Ms E.B. and Ms Y.K.), and the remaining witnesses. The second medical expert report came to the conclusion that the blow could have been administered when the applicant’s son had been on top of Mr I.M. and had been strangling him. That conclusion, as well as the report’s other conclusions, fully matched the statements of the witnesses. The court went on to say that there was no need for an additional psychiatric expert report. There was enough evidence to allow the conclusion that Mr I.M. had used excessive force out of fear.
On 18 March 2003 the applicant appealed to the Plovdiv Court of Appeal, reiterating his arguments. However, an amendment to the 1974 Code of Criminal Procedure which came into force on 2 June 2003 (see Relevant domestic law below) removed the possibility of appealing against firstinstance court decisions reviewing discontinuances of preliminary investigations. Accordingly, on 3 June 2003 the Plovdiv Court of Appeal terminated the proceedings.
According to information produced by the Government, the applicant has not tried to bring separate civil proceedings against Mr I.M.
Article 12 of the 1968 Criminal Code provides for a defence of selfdefence. Under paragraph 1 of that provision, an act committed in selfdefence and not inflicting disproportionate damage on the attacker is not criminal. Excessive force is used if the defence is clearly out of proportion to the nature and dangerousness of the assault (paragraph 2). The use of excessive force is nevertheless not punishable if committed out of fear or bewilderment (at the relevant time paragraph 3, now paragraph 4).
Article 115 of the Code makes it an offence to wilfully take the life of another. The penalty on conviction is ten to twenty years’ imprisonment.
Article 118 of the Code provides that murder committed under provocation is punishable by one to eight years’ imprisonment. Aggravated cases carry a penalty of three to ten years’ imprisonment.
Article 119 of the Code provides that homicide committed through the use of excessive force in selfdefence is punishable by up to five years’ imprisonment.
Persons who have suffered damage from a publicly prosecutable criminal offence have a choice of either bringing an action against the alleged tortfeasor in the civil courts, with the result that the proceedings will be stayed in anticipation of the outcome of the pending or impending criminal investigation against the tortfeasor (Article 182 § 1 (d) of the 1952 Code of Civil Procedure, superseded by Article 229 § 1 (5) of the 2007 Code of Civil Procedure), or making a civilparty claim in the context of the criminal proceedings instituted by the prosecuting authorities (Article 60 § 1 of the 1974 Code of Criminal Procedure, superseded by Article 84 § 1 of the 2005 Code of Criminal Procedure). Until June 2003 a civilparty claim could be made even during a preliminary investigation, before the case had gone to trial (Article 60 § 1 of the 1974 Code, as in force until June 2003). At present it can be made only after the case has already been brought to trial (Article 60 § 1 of the 1974 Code, as in force after June 2003, and Article 84 § 1 of the 2005 Code). The claim can be made in writing or orally, and has to specify the claimants’ and the defendants’ names, the number of the criminal case, the offence which has caused the damage, and the nature and extent of the damage (Article 61 §§ 1 and 2 of the 1974 Code and Article 85 §§ 1 and 2 of the 2005 Code). In a judgment of 28 October 2002 the Supreme Court of Cassation accepted that it could be made even by simply taking an active part in the preliminary investigation (реш. № 541 от 28 октомври 2002 г. по н. д. № 420/2002 г., ВКС, I н. о.).
Civilparty claimants are entitled to take part in the proceedings, inspect the case file and make copies, adduce evidence, make requests and objections, and challenge rulings which impinge on their rights and legitimate interests (Article 63 § 1 of the 1974 Code, superseded by Article 87 § 1 of the 2005 Code). Those rights can be exercised only in so far as necessary for establishing the wellfoundedness of the claim and the extent of the damage suffered (Article 63 § 2 of the 1974 Code, superseded by Article 87 § 2 of the 2005 Code).
Under Article 64 § 2 of the 1974 Code (superseded by Article 88 § 2 of the 2005 Code) the examination of the civilparty claim cannot cause the criminal case to be adjourned. If the proceedings are discontinued, the claim is not determined, but can be lodged separately with the civil courts (Article 64 § 3 of the 1974 Code, superseded by Article 88 § 3 of the 2005 Code). The criminal court rules on the claim only when giving judgment on the merits of the criminal case, even if in that judgment it finds that the accused’s criminal liability has been extinguished (Article 305 of the 1974 Code, superseded by Article 307 of the 2005 Code; and реш. № 225 от 20 септември 2004 г. по н. д. № 849/2003, ВКС, II н. о.).
Under Article 237 § 1 (1) of the Code, as in force until 31 December 1999, public prosecutors were to discontinue proceedings if they found that, inter alia, the acts alleged did not constitute an offence. Copies of the decision were to be served on the accused and the victim (paragraph 5 of the same Article), who were entitled to challenge it before a more senior prosecutor (paragraph 6 of the same Article).
As worded after May 2001, Article 237 provided that the decision to discontinue the proceedings was reviewable by a firstinstance court, whose decision was in turn subject to appeal to a higher court (Article 344 § 1 of the Code, as in force between May 2001 and June 2003, and Article 345 § 1 of the Code) and, from there, on points of law (Article 349 § 5 of the Code, as in force between May 2001 and June 2003, and Article 353 of the Code). An amendment which came into force on 2 June 2003 removed the possibility of appealing against the firstinstance court’s decision.
Section 46 of the 1951 Obligations and Contracts Act provides that no tort liability arises in cases of selfdefence. In a binding interpretative decision of 12 November 1973 (пост. № 12 от 29 ноември 1973 г. по н. д. № 11/ 73 г., Пленум на ВС) the former Supreme Court held that in cases where excessive force has been used in self-defence the individual defending himself is liable in tort, even if not subject to a criminal sanction under Article 12 § 4 (former § 3) of the 1968 Criminal Code (see above).
The limitation period for bringing a tort claim is five years (section 110 of the 1951 Obligations and Contracts Act). By section 115(1)(h) of the Act, time ceases to run during the “pendency of the judicial proceedings relating to the [tort] claim”. In some cases the courts construed that phrase as meaning that time stops running not only during the pendency of a civil suit, but also during the pendency of criminal proceedings relating to the same facts, even at their preliminary investigation phase (реш. № 456 от 18 май 2000 г. по н. д. № 435/1999 г., ВКС, І н. о.). In other cases they held that even the bringing of a civil claim in the context of a preliminary investigation does not stop the running of time, because these proceedings are not “judicial” (реш. № 2110 от 28 март 2005 г. по гр. д. № 3159/ 2002 г., ВКС, ІІІ г. о.). The matter was settled by the General Assembly of the Civil and the Commercial Chambers of the Supreme Court of Cassation, which held, in a binding interpretative decision of 5 April 2006, that time stops running under section 115(1)(h) of the Act only when the victim brings a claim against the tortfeasor, whether in the context of the criminal proceedings or in separate civil proceedings (тълк. реш. № 5 от 5 април 2006 г. по тълк. д. № 5/2005 г., ОСГК и ОСТК на ВКС).


ITEMID: 001-93184
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MINASYAN AND SEMERJYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of P1-1;Just satisfaction reserved
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The first and the second applicants, who are mother and daughter, were born in 1960 and 1990 respectively and live in Los Angeles, USA.
5. The first applicant was the owner of a 26 sq. m. flat in an apartment building situated at 9 Byuzand Street, Yerevan. The flat was acquired by the first applicant on 30 May 1995. The building in question was situated on a plot of land owned by the State.
6. The applicants alleged that the second applicant enjoyed a right of use in respect of the above flat as the first applicant’s family member residing in it.
7. The Government contested this allegation and claimed that the second applicant did not enjoy the right of use in respect of the first applicant’s flat and simply had the right to live in it.
8. On 5 October 2001 the Government adopted Decree no. 950, approving the procedure for taking plots of lands and immovable property situated within expropriation zones of Yerevan and for preparing the relevant price offers. The Mayor of Yerevan was entrusted with its implementation. According to that Decree, the amount of compensation was to be determined on the basis of the market value of the immovable property, which was to be determined by a licensed valuation organisation or organisations selected through a tender process. Financial incentives were envisaged for those proprietors who, within ten days of receiving the price offer, gave their consent to hand over their property. Persons who were registered within the expropriation zones and their minor children were to be awarded 2,000,000 Armenian drams (AMD) as a support.
9. 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.
10. On 4 March 2004 the Government adopted Decree no. 399-N, authorising the Mayor of Yerevan, for the purpose of facilitating the construction works in the expropriation zones, to include in the compensation offers in specific cases the grant of construction permits without a tender process through direct negotiations.
11. On 17 June 2004 the Government adopted Decree no. 909-N, authorising the Mayor of Yerevan to grant such a construction permit for one of the sections of Byuzand Street – which was to be renamed Main Avenue – to a private company, Glendale Hills CJSC.
12. 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.
13. On 23 December 2004 Glendale Hills CJSC informed the first applicant that her flat was situated in the expropriation zones approved by Government Decree no. 1151-N. An independent licensed organisation, Orran Ltd, had carried out a valuation of her property, in accordance with the procedure prescribed by Government Decree no. 950. According to the valuation report prepared by Orran Ltd, the sum of compensation to be paid to her was the Armenian dram equivalent of 7,000 US dollars (USD). An additional sum equivalent to USD 6,720 would be paid to her as a financial incentive, if she agreed to sign an agreement and to hand over the property within the following five days. The sum of compensation and the financial incentive to be paid to the second applicant, pursuant to Government Decree no. 950, amounted to the equivalent of USD 2,000 and USD 1,500 respectively.
14. It appears that the applicants did not accept this offer.
15. On an unspecified date, Glendale Hills CJSC instituted court proceedings against the applicants on behalf of the State. Referring to, inter alia, Government Decree no. 1151-N, the plaintiff argued that the construction project of the Main Avenue, which was supposed to replace Byuzand Street, was impossible without demolition of the building in which the flat in question was situated and sought to terminate the applicants’ rights through payment of compensation and to evict them. In support of its claim, the plaintiff submitted the valuation report prepared by Orran Ltd.
16. On 3 February 2005 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) granted the claim of Glendale Hills CJSC. The District Court found that it had been decided by the authorities to take the relevant plot of land for State needs, which was impossible without terminating the applicants’ rights in respect of the immovable property situated on that land. It decided to terminate the first and the second applicant’s rights and to award them the Armenian dram equivalent of USD 7,000 and USD 2,000 respectively as compensation. The court based its findings on Articles 218, 225 § 2 and 283 of the Civil Code, while the amount of compensation awarded to the first applicant was determined on the basis of the valuation report prepared by Orran Ltd.
17. On an unspecified date, the applicants lodged an appeal.
18. The first applicant alleged that, in the proceedings before the Civil Court of Appeal, she filed a motion requesting the court to order a commodity expert opinion in order to contest the valuation carried out by Orran Ltd. This motion was allegedly rejected by the Court of Appeal.
19. On 18 April 2005 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) upheld the judgment of the District Court.
20. On 29 April 2005 the applicants lodged an appeal on points of law. In their appeal they argued, inter alia, that the ownership in respect of the flat had been unlawfully terminated by a Government decree and not a statute, as required by the domestic law.
21. On 27 May 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicants’ appeal, referring to the findings of the lower courts.
22. On an unspecified date the flat in question was demolished.
23. The relevant provisions of the Constitution, as in force at the material time, read as follows:
“...Public authorities and public officials are competent to perform only such actions as authorised by law.”
“Armenia is a State based on rule of law.
The Constitution of [Armenia] has a supreme legal force and its provisions are directly applicable.
Laws which are found to be incompatible with the Constitution, as well as other legal acts which are found to be incompatible with the Constitution and laws, have no legal force. ...”
“Every one has the right to property and the right to bequeath. ...[A person] can be deprived of [his or her] property only 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, on the basis of a law and with prior equivalent compensation.”
“The Constitutional Court, in accordance with a procedure prescribed by law: (1) decides on the conformity of the laws, the resolutions of the National Assembly, the edicts and directives of the President of [Armenia] and the decrees of the Government with the Constitution; ...”
24. The Law on Legal Acts prescribes the types and hierarchy of legal acts in Armenia. The relevant provisions of the Law, as in force at the material time, provided as follows.
25. Section 4 listed the legal acts adopted in Armenia which included, inter alia, the Armenian Constitution, the Armenian laws and the decrees of the Government.
26. Section 8 provided that the Constitution laid down the principles of legal regulation on the territory of Armenia and was the legal foundation of the Armenian legislation. It had supreme legal force and its provisions were directly applicable. The laws and other legal acts were adopted on the basis of the Constitution or for the purpose of its implementation and were not to contradict it.
27. Section 9 provided that laws regulated the most important, inherent and stable social relations and were enacted in compliance with the Constitution through a referendum or by the National Assembly. They were not to contradict the Constitution, the active laws and the decisions of the Constitutional Court.
28. Section 14 provided that the Government adopted decrees within the scope of the powers vested in it by the Constitution and the laws. The decrees of the Government were not to contradict the Constitution, the laws and the decisions of the Constitutional Court. They were to regulate any relations not regulated by the laws, unless those relations, pursuant to the Constitution and the laws or the edicts and directives of the President of Armenia, were to be regulated by other legal acts.
29. Section 64 of the Constitutional Court Act provided that the decisions of the Constitutional Court were final and not subject to appeal. They entered into force from the moment of their delivery and had a binding effect on the territory of Armenia.
30. Articles 218-221 of the Civil Code and Articles 104 and 108 the Land Code, as in force at the material time, stipulated the conditions for taking plots of land for the needs of society and the State.
31. Article 283 of the Civil Code provided that, if it was impossible to take a plot of land for the needs of society and the State without terminating the ownership in respect of buildings, constructions and other immovable property situated on it, the State could take such property from the owner by compensating its value.
32. The provisions of the Immovable Property Act, the conformity of which with the Constitution was examined by the Constitutional Court on 27 February 1998 (see paragraph 33 below), provided:
“...[2.] The equivalent amount of compensation for expropriation of immovable property for the needs of society and the State is determined by a decree of the Government of [Armenia] on the basis of the results of the negotiation between the Government of [Armenia] and the owner of the property subject to expropriation and upon [the owner’s] written consent.
[3.] If the owner of the property disagrees with the expropriation of the property by the Government of [Armenia] or the amount of compensation, then the immovable property may be expropriated by the Government of [Armenia] only through court proceedings.
[4.] The owner of the immovable property subject to expropriation for the needs of society and the State must abstain from causing damage to the immovable property before the entry into force of the court decision.
[5.] The procedure for expropriation of immovable property for the needs of society and the State is established by the Government of [Armenia], pursuant to the provisions of this Section. ...”
33. When deciding on the conformity of paragraphs 2, 3, 4 and 5 of Section 22 of the Immovable Property Act with, inter alia, Article 28 of the Constitution, the Constitutional Court provided the following interpretation of that provision. Since the phrases “for the needs of society and the State” and “only in exceptional cases” were concepts requiring assessment and concerned a fundamental constitutional right, the Constitution stipulated that expropriation of property on such grounds could be carried out only on the basis of a law, thereby creating necessary legislative safeguards. The phrase “on the basis of a law” implied not a normative legal act which regulated the expropriation procedure in general, but a law pursuant to which the property in question was to be expropriated. Thus, a person’s property could be expropriated and – in the absence of his consent – his ownership could be terminated by the State only through the adoption of a law in respect of the concrete immovable property, 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 would also oblige the Government to fix the amount of compensation, taking market prices into account, on the basis of a financial-economic assessment, the results of the negotiation between the Government and the owner of the property subject to expropriation, and upon the owner’s written consent. The Government was not entitled to establish a procedure for expropriation of property for the needs of society and the State that would authorise it to expropriate immovable property.
34. For the purpose of implementation of construction projects in Yerevan, the Government decided to approve 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, with a total area of 345,000 sq. m. Byuzand Street was listed in Annex 2 to this Decree as falling within these expropriation zones.
35. The Mayor of Yerevan was instructed to determine the boundaries of the plots of land to be taken for the needs of the State and to register them at the Real Estate Registry. The owners and users of the immovable property situated within the expropriation zones were to be informed about the deadlines, sources of financing and the procedure for taking their immovable property. Valuation of the immovable property in question was to be organised and carried out by the relevant licensed organisations.
36. Article 54 provided that members of the tenant’s family included his spouse, their children and their parents. Other persons could be recognised as the tenant’s family members, if they lived with him or her and ran a common household.
37. Article 120 provided that family members of the owner of a house, whom the owner had accommodated in his or her house, had the right, equally with him or her, to use the accommodation, if no reservations had been made at the time when the family members were accommodated. Persons mentioned in the first sentence of Article 54 of this Code were considered as members of the owner’s family. These persons were to continue to enjoy the right of use of accommodation even in case of disruption of family ties with the owner.
38. Article 135, which concerns State registration of property rights, provides that the right of ownership and other property rights in respect of immovable property, including the right of use, are subject to State registration.
39. Chapter 14 of the Civil Code entitled “Ownership of Accommodation and Other Property Rights” contained specific provisions related to the right of use of accommodation which, at the material time, read as follows:
“1. The family members of the owner of accommodation and other persons have the right of use of accommodation, if that right has been registered in accordance with the procedure prescribed by the Law on the State Registration of Rights in Respect of Property.
2. The origination, implementation and termination of the right of use of accommodation are stipulated by a notarised written agreement concluded with the owner.
If no agreement is reached concerning the termination of the right of use of accommodation, that right can be terminated upon the owner’s request by a court through payment of compensation equivalent to the market value.
3. The right of use of accommodation may not be an object of sale or purchase, mortgage and lease.
4. The person enjoying the right of use of accommodation may demand from anybody, including the owner, to redress the violations of his [or her] right in respect of the accommodation.
5. The right of use of accommodation does not terminate in case of transfer of ownership in respect of a house or a flat to another person, except when the person enjoying the right of use of accommodation has undertaken a notarised obligation to give up that right prior to the transfer of ownership.”
40. The above Article 225 was amended following the circumstances of the present case, namely on 4 October 2005, and its fourth paragraph read as follows:
“4. The amount of compensation for a one-month period is determined on the basis of the amount of rent payable for given accommodation at the moment of termination of the right [of use] and is calculated the following way: for each person, whose right of accommodation is registered, the area [is calculated] by means of dividing the living area by the total number of persons enjoying the right of gratuitous use of accommodation and the owners, but [should not be] less than five or more than nine square metres.
The compensation is calculated for a period of three years and is paid at once, unless agreed otherwise by the parties.”
41. Section 41 of the Law on the State Registration of Rights in Respect of Property provides that rights of spouses, children and other dependants in respect of property, which are conferred on them by law, are effective even if they have not been registered separately.
42. Section 16 of the Children’s Rights Act provides that a child family member of the tenant or owner of accommodation, regardless of his or her place of residence, has the right to live in the accommodation occupied by that tenant or owner.
43. Article 47 of the Family Code provides, inter alia, that a child has no ownership in respect of his or her parents’ property, while the parents have no ownership in respect of the child’s property. Children and parents living together may dispose of and use each other’s property by mutual agreement.