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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Irina YEDIGARYAN v Armenia - 10446/05 [2011] ECHR 1995 (15 November 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1995.html Cite as: [2011] ECHR 1995 |
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THIRD SECTION
DECISION
Application no.
10446/05
by Irina YEDIGARYAN
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 12 March 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the declaration submitted by the respondent Government on 15 January 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
1. Proceedings concerning the expropriation of the applicant’s flat
2. Proceedings concerning the recognition of the applicant’s inheritance
B. Relevant domestic law
COMPLAINTS
(a) the deprivation of her property had not been effected in accordance with the conditions provided for by law, namely Article 28 of the Constitution and the rules applicable to historical and cultural monuments;
(b) she had not received the compensation awarded to her by the courts;
(c) the amount of compensation awarded had been inadequate; and
(d) no compensation had been awarded for the plot of land in respect of which she enjoyed a right of use.
THE LAW
A. Deprivation of the applicant’s flat
24. The applicant complained about the deprivation of her property. She relied on Article 1 of Protocol No. 1 of the Convention which, in so far as relevant, provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
25. Following unsuccessful friendly settlement negotiations the Government informed the Court, by letter dated 15 January 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.
26. The declaration provided as follows:
“...the Government hereby wish to express – by way of the unilateral declaration – its acknowledgement of the deprivation of the applicants’ 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, instead of the amount of USD 12,870 transferred to the applicant’s bank account on the basis of the court judgment, to give to the applicant an apartment, measuring 70 sq. m., in a building the construction works of which will be finished in 2010. The building will be situated within the administrative boundaries of Kentron District of Yerevan. In addition to the apartment the amount of AMD 120,000 per month will be paid to the applicant from October 2004 till the date when the construction of the building will be finished (August 2010) for rent of another apartment (AMD 8,520,000 in total). Or as an alternative the Government offer to pay the amount of AMD 29,520,000. The Government consider this declaration to be reasonable in the light of the Court’s case law.
The sum referred to above, that is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It 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 this 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.”
27. In an undated letter the applicant objected to the Government’s declaration. She submitted that, firstly, her case raised issues which had not been determined by the Court in the past, such as the question of whether her inheritance rights could be considered as possessions. Secondly, there was a disagreement between the parties regarding the facts of the case, namely the scope of her possessions. In particular, she claimed that her possessions included the entire flat and also the underlying plot of land, while the Government contested this. Thirdly, the wording of the Government’s admissions was very broad, while the proposed redress was inadequate and insufficient to strike out the case.
29. The Court points out 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”.
30. 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.
31. 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).
32. The Court will first address the applicant’s objection. It notes at the outset that her argument that the case raises issues which had not been previously determined by the Court concerns issues which fall beyond the scope of the present application. More specificially, the applicant had never alleged in her application that her inheritance rights constituted possessions within the meaning of Article 1 of Protocol No. 1 or raised any complaints in this respect. Her complaints under that Article were limited exclusively to questions of expropriation of her flat, as well as the alleged termination of her right of use in respect of the land, which will be addressed below. As far as the expropriation of the applicant’s flat is concerned, the Court notes that it 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.
33. As to the alleged disagreement regarding the facts, the Court does not consider that any dispute between the parties concerning the facts of the case is capable of automatically preventing it from striking out an application under Article 37 § 1 (c) on the basis of a unilateral declaration. The dispute must be serious and genuine; it must fall within the scope of the application and the issues raised in it, and must be consistent with the parties’ earlier submissions.
34. In the present case, the Court notes that the applicant herself admitted explicitly before the domestic courts that questions of legal succession in respect of her late mother’s share in the flat had not been resolved (see paragraphs 8 and 10 above). Similarly, in her application to the Court she admitted that her ownership had been registered only in respect of half of the flat. The same concerns the underlying plot of land: the applicant never claimed during the expropriation proceedings that the land in question was her property. Similarly, in her application to the Court she explicitly stated that she only enjoyed a right of use in respect of the land. Moreover, the applicant instituted a separate set of proceedings in the domestic courts seeking unsuccessfully to have her ownership recognised in respect of her late mother’s share in the flat and the plot of land (see paragraphs 15-19 above). It was only in her observations and just satisfaction claim submitted on 16 November 2007 that the applicant claimed ownership in respect of those properties. Thus, the Court finds that there is no genuine dispute regarding the facts of the case, since the applicant’s allegations are not supported by the materials of the case and are in direct conflict with her own earlier submissions.
35. Lastly, turning to the nature and scope of the proposed redress, the Court notes that the Government have proposed two alternatives: provision of a flat or payment of a sum of money, both of which are proposed instead of the amount already paid to the applicant. Having regard to the first 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.
36. The Court, however, is of a different opinion as far as the second alternative is concerned, namely the payment of AMD 29,520,000 minus USD 12,870. The Court considers that the nature and the amount of the redress proposed in this alternative, even after the sum of USD 12,870 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 USD 12,870 to be deducted from AMD 29,520,000 is to be converted into Armenian drams at the rate applicable at the date of settlement.
37. 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)).
38. 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).
B. Other alleged violations of the Convention and Protocol No. 1
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 second alternative contained in that declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application in its part concerning the deprivation of the applicant’s flat out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares inadmissible the remainder of the application.
Santiago Quesada Josep
Casadevall
Registrar President