CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 novembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 4 November 2016   FIRST SECTION Application no. 60524/12 TSITSERNAK-8 LTD against Armenia lodged on 17 September 2012 STATEMENT OF FACTS The applicant, Tsitsernak-8 Ltd (the applicant company), is a private limited company registered in Armenia. It is represented before the Court by Mr K. Mezhlumyan, a lawyer practising in Yerevan. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant company is a registered limited liability company engaged in the restaurant business. On 13 March 1997 the Government of Armenia adopted a decree allowing the transfer of ownership of a State-owned café located in a park which was then sold to the applicant company. An agreement in this respect was concluded between the applicant company and the Government on 12   August 1997. The applicant company’s title to the café and its adjacent buildings with a total surface area of 1581.3 sq. m. was registered at the State Real Estate Registry. The certificate of registration stated that the land beneath and surrounding the café, with a total area of 6,646 sq. m., was leased to the applicant company until 19 July 2006. By decision of the Mayor of Yerevan of 4 October 2000, the land measuring 6,646 sq. m. was leased to the applicant for a period of fifty years. On 15 July 2004 the Government adopted Decree no. 1043-N, whereby the Mayor of Yerevan was to provide a plot of land to “Karen Demirchyan Sports and Concerts Centre”, a State non-profit organisation (the Centre) located in the same park as the applicant’s company’s café. The relevant parts of the decree read as follows: “2.     To the Mayor of Yerevan: ... b)     grant permission to provide gratuitously to [the Centre] the terrains in the park, which are State-owned and not transferred to other persons with the right of use and are located within the plot of land necessary for the preservation and maintenance of [the Centre] according to the annex. ... 3.     State that [the Centre] would exercise on behalf of the State the rights of the lessor pursuant to the lease agreements in respect of the parks and gardens which are state-owned and have been transferred to other persons with the right of use and are located in the plot of land necessary for the preservation and maintenance of [the Centre] ...” On 25 August 2005 the Government adopted Decree no. 1321-N permitting the sale of the property of the Centre to BAMO Ltd, which was to set up “Karen Demirchyan Sports and Concerts Complex” commercial company and make certain investments with the aim of rebuilding and modernising the Centre. The decree stated, inter alia , that the buyer had the right to lease the plot of land measuring 19.54 ha that was occupied by the Centre for a period of fifty years, and also had a pre ‑ emptive right of purchase. The plot of land to be transferred to the newly-established company in accordance with the Government Decree of 25 August 2005 included the terrain leased to the applicant company for a period of fifty years. Based on Decree no. 1321-N on 2 November 2005, the Mayor of Yerevan made a decision to lease the plot of land measuring 19.54 ha to “Karen Demirchyan Sports and Concerts Complex” CJSC (the Complex) for a period of fifty years with the pre-emptive right of purchase. On 12 December 2006 the applicant company lodged a claim with the Kentron and Nork-Marash District Court of Yerevan (the District Court) against the Government of Armenia, the Mayor of Yerevan and the Complex as a third party, seeking the annulment of the Government Decree of 25 August 2005 and the Mayor’s decision of 2 November 2005 in so far as these acts concerned the land measuring 6,646 sq. m. that had been leased to it. The applicant company also sought the recognition of its pre-emptive right to purchase the land in question. By decision of 7 September 2007 the District Court transferred the applicant company’s case to the Commercial Court. On 1 January 2008 the Commercial Court ceased to exist and the applicant company’s case was transferred to the Administrative Court, which took over the case by decision of 6 February 2008. On 23 September 2008 the Administrative Court, sitting as a single judge, rejected the applicant company’s claim. The applicant company lodged an appeal on points of law against the judgment of 23 September 2008, claiming that, inter alia , its claim, whereby it had sought to dispute normative acts, should have been examined by a five-judge panel according to the law. The applicant company raised complaints also with regard to the merits of the judgment. By decision of 13 March 2009, the Court of Cassation quashed the judgment of 23 September 2008 and remitted the case to the Administrative Court for a fresh examination on the ground that the case had not been examined by a correct judicial formation. The Court of Cassation did not address the rest of the applicant company’s complaints. On 9 April 2009 a five-judge panel of the Administrative Court composed of Judges K.M., L.S., R.S., A.A. and Judge A.M., presiding judge, took over the applicant company’s case. The same formation subsequently decided to sever the applicant company’s claim as regards the Mayor’s decision of 2 November 2005 and suspend its examination until determination of the claim disputing the Government Decree of 25 August 2005. According to the applicant company, the examination of its case as regards the separated claim concerning the Mayor’s decision was still suspended when the present application was lodged. By decision of 30 April 2010 the Administrative Court rejected the applicant company’s claim against the Government Decree of 25 August 2005. The applicant company lodged an appeal on points of law against the decision of 30 April 2010 on two grounds. First, it complained that it had neither been notified of the hearings nor served with that decision. Second, as regards the merits of the decision, the applicant company complained that the Administrative Court had wrongly interpreted the relevant provisions of the law. On 4 March 2011 the Court of Cassation quashed the decision of 30   April 2010 on the ground that the applicant company had not been duly notified about the proceedings before the Administrative Court. The Court of Cassation remitted the case to the same court for a fresh examination and found it unnecessary to address the applicant company’s complaints with regard to the merits of the decision. On 13 April 2011 a new composition of judges of the Administrative Court took over the case and decided to examine the applicant company’s claim in written procedure. On 8 June 2011 and 3 August 2011 the applicant company submitted written requests to the Administrative Court asking it to conduct an oral hearing in the case. It claimed that the examination of its claim without holding a hearing would violate its right to a public hearing. It appears that the applicant company’s request was rejected and no hearing was held in the case. The applicant company’s representative was notified that the pronouncement of the court’s decision was to take place on 13 September 2011 at 5.50 p.m. According to the applicant company, on 13 September 2011 its representative appeared in the indicated hearing room in the Administrative Court earlier than the scheduled time. However, no judge appeared and the decision was not pronounced. By decision of 13 September 2011, the applicant company’s claim was rejected in full. The Administrative Court found, in particular, that the Government had acted in accordance with Article 75 § 1 of the Land Code and transferred its land to a State non-profit organisation with a right of lease. Furthermore, Article 48 of the Land Code was not applicable to the case since the lease agreement concluded between the applicant company and the Municipality of Yerevan had not been rescinded and the applicant company already had a registered right of lease in respect of the plot of land in question. On 27 September 2011 the applicant company’s representative applied to the Administrative Court, stating that he had appeared in court on the scheduled date but no meeting had been held and the decision had not been pronounced. He asked to be informed of the status of the applicant company’s claim and to be provided with the audio recording of the meeting. In reply, it was submitted that the decision of 13 September 2011 was pronounced on the same date at 5.50 p.m. However, because of technical problems with the computer, the record of the pronouncement of the decision had been made in paper form. The applicant company lodged an appeal against the decision of 13   September 2011 and requested that the case be examined at a public hearing. By decision of 25 January 2012 the Administrative Court of Appeal refused to hold a public hearing. On 26 January 2012 the Administrative Court of Appeal composed of Judges H.B., L.S., G.G., A. Ab. and A.S., presiding judge, rejected the applicant company’s appeal and fully upheld the decision of 13 September 2011. The applicant company lodged an appeal on points of law On 21 March 2012 the Court of Cassation declared the applicant company’s appeal on points of law inadmissible for lack of merit. B.     Relevant domestic law 1.     The Land Code Article 48 § 3 provides that the lessee of a State-owned plot of land has a pre-emptive right to acquire it if the lease agreement is being renewed on previous or new terms or in the case of alienation of the given plot of land. Article 62 §§ 2 and 3 provide that State-owned plots of land in respect of which natural and legal persons have a right of use (until the expiry of its time-limit) cannot be alienated to another person if the agreement has not been terminated in the prescribed manner. Ownership of a plot of land may be transferred to the owner (owners) of buildings and constructions located on that land. According to Article 75 § 1 land owned by the State may, without a competition, be transferred for gratuitous (indefinite) use to State or community institutions and organisations, charitable, non-governmental organisations and foundations and in cases prescribed by a law or other normative legal acts. 2.     The Code of Administrative Procedure Article 135 states that the Administrative Court has jurisdiction over disputes concerning the compliance of Government decisions with normative acts having higher legal force (except the Constitution). According to Article 138 the Administrative Court carries out written proceedings in cases envisaged by Article 135 with the exception of those cases where, in the court’s view, the given case has become high profile or where oral examination will contribute to the speedy discovery of the circumstances of the case. COMPLAINTS The applicant company complains under Article 6 § 1 of the Convention that it did not have a public hearing before the Administrative Court. The applicant company also complains under the same provision that the examination of its claim lasted five years and three months for reasons not attributable to it. The applicant company complains that the lease to the Complex of the plot of land beneath and surrounding its café was in breach of the requirements of Article 1 of Protocol No. 1 to the Convention.   QUESTIONS TO THE PARTIES 1.     Did the applicant company have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular:   -     was the refusal of the Administrative Court to hold a public hearing in the applicant company’s case compatible with the requirements of this Article?   -     was the length of the administrative proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?   2.     Has there been an interference with the applicant company’s peaceful enjoyment of its possessions, within the meaning of Article 1 of Protocol   No.   1? If so, was that interference prescribed by law? Did that interference pursue a legitimate aim and strike a fair balance between the interests of the applicant company and such aim?