VASILYAN AND PILOYAN v. ARMENIA (European Court of Human Rights)

Communicated on 15 January 2019

FIRST SECTION

Application no.9047/14
Narine VASILYAN and PILOYAN
against Armenia
lodged on 20 December 2013

STATEMENT OF FACTS

The applicants, Ms NarineVasilyan (the first applicant), Ms Irina Piloyan (the second applicant), Ms Kristina Piloyan (the third applicant) and Mr Suren Piloyan (the fourth applicant) are Armenian nationals who were born in 1967, 1990, 1986 and 1968 respectively and live in Yerevan. They are represented before the Court by Mr T. Hayrapetyan, a lawyer practising in Yerevan.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants lived in a house situated at 38 Arami Street, Yerevan. The house in question was co-owned by T., who is the first applicant’s husband and the father of the second and third applicants. The fourth applicant is T.’s brother.

According to the applicants, they enjoyed a right of use of accommodation in respect of the house in question.

On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs, having a total area of 345,000 sq. m. Arami Street was listed as one of the streets falling within such expropriation zones. A special body, the Yerevan Construction and Investment Project Implementation Agency (hereafter, “the Agency”) was set up to manage the implementation of the construction projects.

On 4 April 2005 the Agency lodged a claim with the Kentron and Nork‑Marash District Court of Yerevan against T. and the remaining co‑owners of the property, seeking to have them evicted upon payment of compensation.

On 13 July 2005 the District Court granted the Agency’s claim and ordered the eviction of T. and the remaining co-owners of the property.

T. lodged an appeal against the District Court’s judgment.

By the judgment of 16 December 2005 the Civil Court of Appeal (‘the Court of Appeal’) terminated T.’s ownership rights upon compensation amounting to the property’s market value and ordered his eviction, together with his family.

T. lodged an appeal on points of law.

On 27 January 2006 the Court of Cassation rejected T.’s appeal and upheld the judgment of 16 December 2005.

According to the applicants, they were not aware of the above proceedings. They were not made party to the proceedings or notified thereof.

By letter of 7 March 2006 T. was requested by the bailiff to vacate the premises, failing which he would be evicted. At the same time, it was suggested that T. present himself to the Department for Enforcement of Judicial Acts (‘the DEJA’) to receive the compensation due to him pursuant to the Court of Appeal’s judgment of 16 December 2005.

On 13 March 2006 the applicants and T. were evicted.

In the summer of 2007 the house was demolished.

On 3 March 2009 the applicants lodged a claim with the District Court against the State and the Mayor of Yerevan seeking compensation for termination of their right of use of accommodation.

At some point the Agency was also involved in the proceedings as a co‑defendant.

In the course of the proceedings the Ministry of Finance, the State’s representative in the proceedings, and the Agency requested the District Court to reject the applicants’ claim as time-barred on the grounds that they had been aware that a writ of execution had been issued on the basis of the decision of the Court of Cassation dated 27 January 2006 and enforcement proceedings had been instituted by the DEJA on 27 February 2006. They had therefore been aware of the violations of their rights.

On 6 October 2009 the District Court rejected the applicants’ claims, finding that it had been introduced outside the three-year statutory time-limit.

The applicants lodged an appeal.

On 5 February 2010 the Court of Appeal quashed the judgment of 6 October 2009 and remitted the case to the District Court for examination. It found, in particular, that the District Court had failed to determine the date when the applicants had allegedly become aware of the decision of 27 February 2006 to institute enforcement proceedings when it made a decision to consider the applicants’ claims time-barred.

By the judgment of 24 September 2010 the District Court granted the applicants’ claims in part. In doing so, it found that the first, second and third applicants, being members of T.’s family, had no right under the law to receive compensation and a financial incentive for the expropriation of the property in question. At the same time, the District Court found that the fourth applicant was entitled to compensation in the amount of 2,000,000 Armenian Drams (AMD) since he was not considered to be a member of T.’s family under the applicable provisions of domestic law. As regards the issue of application of statutory time-limits to the applicants’ claims, the District Court stated that the defendant parties which had asked for the applicants’ claims to be considered as time-barred, had failed to provide any evidence whereby it could determine the beginning of the running of the relevant time-limits, that is the exact time when T. or the members of his family had been served with the decision of the Court of Cassation of 27 January 2006 or the bailiff’s decision of 27 February 2006. The District Court therefore refused to apply statutory time-limits to the applicants’ claims.

The applicants lodged an appeal in respect of their rejected claims.

On 5 May 2011 the Court of Appeal quashed the judgment of 24 September 2010 and remitted the case to the District Court for a new examination. The Court of Appeal stated in its decision that, inter alia, the applicants had had a right of use of accommodation in respect of the house in question whereas they had not received compensation for the termination of that right.

The Ministry of Finance lodged an appeal on points of law with the Court of Cassation requesting it to uphold the District Court’s judgment of 24 September 2010.

On 7 July 2011 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit.

By its judgment of 5 February 2013 the District Court ruled that the first, second and third applicants’ claims were time-barred while the fourth applicant’s claims were rejected on the grounds that it had not been substantiated that he satisfied the relevant criteria in order to be awarded compensation. The District Court found, in particular, that the first, second and third applicants, being members of T.’s family, had been evicted together with the latter, based on the Court of Appeal’s judgment of 16 December 2005 as upheld by the decision of the Court of Cassation of 27 January 2006. The latter date should be considered as the starting point for the calculation of the three-year statutory time-limit, whereas they had lodged their claims on 3 March 2009.

The applicants lodged an appeal.

According to the applicants, the examination of their appeal was taken over by judges M., B. and A.T. of the Court of Appeal. In the course of the proceedings B. had been replaced by G., another judge of the same court. However, the case file did not contain a decision of the President of the Court of Appeal whereby the case would have been re-assigned to G. and there was no decision regarding G. having taken over the case.

In the applicants’ submission, the representative of the Ministry of Finance stated before the Court of Appeal that the State would be ready to pay compensation in the amount of AMD 6,000,000, whereas the Prosecutor General had not accepted the remainder of the sum claimed by the applicants. In this respect two letters were submitted to the Court of Appeal: one dated 31 January 2013, whereby the Ministry of Finance had updated the Deputy Prosecutor General about the course of the examination of the applicants’ case, and the second one dated 12 October 2012, whereby the Deputy Prosecutor General had submitted his objections to meeting the applicants’ claims in their entirety.

It appears that the applicants disagreed with the terms of the friendly settlement.

On 20 June 2013 the Court of Appeal rejected the applicants’ appeal and fully upheld the District Court’s judgment of 5 February 2013.

The applicants lodged an appeal on points of law which was declared inadmissible for lack of merit by the decision of the Court of Cassation dated 14 August 2013.

B.  Relevant domestic law

1.  The Civil Code (as in force at the material time)

Article 332 provides that the general statutory time-limit is three years.

According to Article 337 § 3 the running of the statutory time-limit in respect of claims the enforcement of which is not specified in time or which are enforceable upon request, starts from the moment when the creditor obtains the right to require enforcement, whereas in cases where the debtor has been provided with an additional period of time to enforce the claim, the calculation of the statutory time-limit starts after the termination of such period of time.

2.  The Judicial Code (in force until 7 February 2018)

According to Article 25 § 1 (6) the president of the first instance court makes a redistribution of the cases taken over by a judge in case of necessity during the latter’s holiday or other type of temporary absence.

3.  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 (in force from 1 August 2002 until 1 October 2006 –ՀՀ կառավարության 2002 թ. օգոստոսի 1-ի թիվ 1151-Ն որոշում` ԵրևանիԿենտրոնթաղայինհամայնքիվարչականսահմանումկառուցապատմանծրագրերիիրականացմանմիջոցառումներիմասին)

For the purpose of implementing 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. 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 of the deadlines, sources of financing and the procedure for taking their immovable property. The process of the valuation of the immovable property in question was to be organised and carried out by the relevant licensed organisations.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that the composition of the bench delivering the judgment of the Civil Court of Appeal of 20 June 2013 had not been in accordance with the law.

They further complain under the same provision that they did not have a fair trial as the General Prosecutor’s Office, not being a party to the proceedings, had influenced their outcome.

QUESTIONS TO THE PARTIES

1.  Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, had the composition of the bench delivering the decision of the Civil Court of Appeal of 20 June 2013 been in accordance with the law?

The parties are requested to explain the reasons and procedure for the replacement of judge B. by judge G. in the proceedings before the Civil Court of Appeal and provide copies of relevant documents.

2.  Having regard to the content of the correspondence between the Ministry of Finance and the Deputy Prosecutor General, were the courts which dealt with the applicants’ case independent, as required by Article 6 § 1 of the Convention?

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