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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Avetik YERANOSYAN v Armenia - 3309/06 [2011] ECHR 1993 (15 November 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1993.html Cite as: [2011] ECHR 1993 |
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THIRD SECTION
DECISION
Application no.
3309/06
by Avetik YERANOSYAN
against
Armenia
The European Court of Human Rights (Third Section), sitting on 15 November 2011 as a Chamber composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and
Santiago Quesada,
Section Registrar,
Having regard to the above application lodged on 17 January 2006,
Having regard to the declaration submitted by the respondent Government on 5 June 2009 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
B. Relevant domestic law
COMPLAINT
THE LAW
“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.”
16. Following unsuccessful friendly settlement negotiations the Government informed the Court, by letter dated 5 June 2009, that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
17. The declaration provided as follows:
“...the Government hereby wish to express – by way of the unilateral declaration – its acknowledgement of the deprivation of the [applicant’s] possessions not in compliance with the requirements of Article 1 of Protocol No. 1 [to] the Convention.
In these circumstances, and having regard to the particular facts of the case, the Government, declare that they offer to pay, instead of the amount of 10,327,606 AMD, transferred to the [applicant’s] bank account on the basis of the court judgment, to the applicant the amount of USD 120,000 or as an alternative give an apartment, two apartments or three apartments [measuring] 150 sq. m. in total instead of his previous apartment and plot of land that measued 60.2 sq. m. and 70 sq. m. respectively and in addition to pay the amount of 100,000 AMD per month for rent of another apartment until the time when the above mentioned apartment or apartments will be allocated to him. The Government consider this declaration to be reasonable in the light of the Court’s case law.
The sum or the apartment or apartments referred to above, that are to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. The sum will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the [Convention]. In the event of failure to pay the sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.
...
Consequently, the Government are of the opinion that the circumstances of the above application may lead to the conclusion set out in sub-paragraph (c) of Article 37 § 1 of the Convention, thus that it is no longer justified to continue the examination of the application in the light of the Government’s unilateral declaration.”
18. In a letter of 28 July 2009 the applicant objected against the Government’s declaration, claiming that Article 37 § 1 (c) was not applicable to the particular circumstances of his case. He further submitted that the compensation offered was inadequate, while the offer of a flat lacked necessary details.
20. The Court notes that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
21. It also notes that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
22. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; also WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
23. The Court has already established in a case against Armenia the nature and extent of the obligations which arise for the respondent State under Article 1 of Protocol No. 1 as regards the deprivation of property in the centre of Yerevan for the purposes of implementation of town-planning projects under the Government Decree no. 1151-N (see Minasyan and Semerjyan, cited above, §§ 69-72). It notes that the circumstances of the present case and the nature of the applicant’s complaint are almost identical.
24. Turning to the nature of the proposed redress, the Court notes that the Government have proposed two alternatives: payment of a sum of money or provision of a flat/flats, both of which are proposed instead of the amount already paid to the applicant. Having regard to the second alternative, the Court is not convinced that this is an acceptable proposal, since the undertaking to provide a flat was made conditional on the return of the sum of money already paid to the applicant. Thus, this undertaking could not be considered truly unilateral as its implementation was predicated on the other party’s fulfillment of certain additional requirements (see Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et seq., 23 March 2006). Furthermore, the Government failed to provide sufficient details of the flat in question. The Court therefore rejects this alternative.
25. The Court, however, is of a different opinion as far as the first alternative is concerned, namely the payment of USD 120,000 minus AMD 10,327,606. The Court considers that the nature and the amount of the redress proposed in this alternative, even after the sum of AMD 10,327,606 has been deducted, is consistent with the principles established and the amount awarded in the just satisfaction judgment in the case of Minasyan and Semerjyan ((just satisfaction), no. 27651/05, §§ 17-21, 7 June 2011). For the purposes of facilitating the implementation of the Government’s declaration and avoiding any ambiguity in the calculation of the resulting amount, the Court points out that the sum of AMD 10,327,606 is to be deducted from the amount resulting from the conversion of USD 120,000 into Armenian drams at the rate applicable at the date of settlement.
26. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed which the Court finds reasonable in the circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
27. Moreover, in light of the above considerations, and in particular given the existing case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 1 of Protocol No. 1, the terms of the redress proposed in the first alternative contained in that declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Santiago Quesada Josep
Casadevall
Registrar President