CEDH · CASELAW;COMMUNICATEDCASES;ENG — 31 janvier 2017

.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 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 31 January 2017   FIRST SECTION Application no. 112/11 Tigran PILOYAN against Armenia lodged on 21 December 2010 STATEMENT OF FACTS The applicant, Mr Tigran Piloyan, is an Armenian national who was born in 1962 and lives in Yerevan. He is 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 applicant, may be summarised as follows. 1.     Background to the case The applicant lived in a house situated at 38 Arami Street, Yerevan, since he was born. The applicant is his father’s legal heir, and his father was a co ‑ owner of the house. It appears that other co-owners of the property did not reside in the house, but the applicant lived there with his family and took care of the property. According to the certificate of ownership delivered on 26 September 2005, the applicant’s father owned one-third of the house measuring 187   sq.   m., which was situated on a plot of land measuring 413 sq. m. The certificate of ownership also stated that there existed an occupied plot of land measuring 687 sq. m. and constructions built without permission measuring 124.5 sq. m. in total. It appears that the constructions in question had been built by the applicant in 1990, without permission, on a plot of land adjacent to his own. According to the applicant, he had occupied the adjacent plot of land, on which he had planted trees and built a fence, since 1989. 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 the 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. 2.     Proceedings concerning the expropriation of the applicant’s property On 4 April 2005 the Agency lodged a claim with the Kentron and Nork ‑ Marash District Court of Yerevan against the applicant and the remaining co-owners of the property, seeking to have them evicted upon payment of compensation. It appears that the Agency requested the District Court to oblige the defendants to allow a real estate valuation company to perform a valuation of the property, and the request was granted. However, no such valuation was obtained. According to the applicant, the valuation company failed to carry out the valuation. On 13 July 2005 the District Court granted the Agency’s claim and ordered the eviction of the applicant and the remaining co-owners of the property upon payment of compensation amounting to the property’s market value. The applicant lodged an appeal arguing, inter alia , that the District Court’s judgment had not mentioned the amount of compensation payable to him. In such circumstances, the amount of compensation subsequently to be paid to him was not clear. In the meantime, agreements were reached between the Agency and the remaining co-owners and their property rights were terminated based on those agreements. The Agency therefore pursued its claim only in respect of the applicant, who had refused to reach an agreement. It appears that on 26 July 2005 the real estate valuation company assigned to determine the value the property at 38 Arami Street delivered its valuation report, according to which the market value of the property was AMD   86,224,000 (approximately EUR 160,000). On 16 December 2005 the Civil Court of Appeal granted the Agency’s claim in its part concerning the applicant. It terminated the applicant’s ownership rights upon compensation amounting to the property’s market value and ordered his eviction, together with his family. The applicant lodged an appeal on points of law. On 27 January 2006 the Court of Cassation rejected the applicant’s appeal on points of law and fully upheld the findings of the Court of Appeal. On 27 February 2006 the Department for Execution of Judicial Acts (the DEJA) instituted enforcement proceedings. By letter of 7 March 2006 the Agency informed the DEJA that it had transferred to its account AMD 28,741,333 (approximately EUR 53,000) which constituted one third of the total amount of the market value of the property as determined by the valuation report of 26 July 2005. On 13 March 2006 the applicant and his family were evicted. It appears that the house and the unauthorised buildings were demolished shortly afterwards. It also appears that the applicant tried to obtain higher compensation, claiming that the value of the property had been underestimated. However, in 2008, he was eventually obliged to accept the proposed amount. On 17 November 2009 the applicant lodged an administrative claim against the State, disputing the lawfulness of the expropriation of his property and the amount of compensation awarded. On 21 June 2010 the Administrative Court rejected the applicant’s claim finding, in particular, that the applicant had failed to challenge the proposed amount of compensation at the relevant time. Furthermore, he had also had the possibility of challenging the actions of the Agency, as well as those of the DEJA, had he considered that the amount of compensation offered to him had been inadequate. The applicant lodged an appeal on points of law, which was declared inadmissible for lack of merit by the Court of Cassation’s decision of 25   August 2010. 3.     Proceedings concerning the legalisation of unauthorised constructions On 23 October 2003 the applicant applied to the State Real Estate Registry (“the SRER”), seeking to have his title registered in respect of the constructions built by him without permission. By letter of 12 November 2003 the SRER informed the applicant that it was not possible to submit a plan of the constructions in question to the Mayor of Yerevan in accordance with Article 8 § 2 of the Law on the Legal Status of Unauthorised Buildings and Constructions and Plots of Land Occupied without Authorisation (the Law) since the constructions had not been registered prior to 15 May 2001. The letter further stated that the applicant could apply to have his unauthorised constructions registered. On 4 December 2003 the applicant lodged a claim with the Kentron and Nork-Marash District Court of Yerevan (“the District Court”), seeking to oblige the SRER to register his unauthorised construction and legalise it. By a decision of 8 December 2003 Judge A. of the District Court accepted the applicant’s claim for examination and scheduled the first hearing for 14 January 2004. At the hearing of 14 January 2004 the applicant requested a forensic technical examination to determine the age of the construction and its technical condition. On the same date the District Court decided to order a forensic technical examination in order to determine the age of the construction built by the applicant, its technical condition and seismic resistance. The relevant decision stated that the forensic examination was assigned to a State open joint stock company (“the State company”) and the proceedings were stayed pending receipt of the expert report. On 13 December 2004 the applicant once again applied to the SRER asking to register the constructions built by him without authorisation. On 17 December 2004 the SRER refused the applicant’s request, referring to Article 221 of the Civil Code and Government Decree no.   1748 ‑ N of 15 May 2003, on the ground that the unauthorised constructions were located in an expropriation zone. On 13 November 2009 the applicant’s case was assigned to Judge K. of the District Court, who accepted it for examination on the same day. On 9 February 2010 Judge K. sent an enquiry to the State company in order to clarify the status of the forensic technical examination ordered in 2004. In reply, the State company stated that its staff had changed several times since 2004 and that it had not operated in 2005 and 2006. The State company also stated that it could not provide any further information since no such forensic examination had been conducted in 2004 and that it was not able to conduct a new one since it no longer had a licence to deliver reports on the technical condition of a building. On 10 May 2010 the applicant requested the District Court to resume the proceedings. By a decision of 12 May 2010 the District Court resumed the proceedings. By another decision, given on the same date, the District Court decided to transfer the applicant’s claim to the Administrative Court, concluding that the dispute between the parties was of a public nature and, therefore, fell within the jurisdiction of that court. On 8 June 2010 the Administrative Court took over the applicant’s case. On 24 August 2010 the applicant submitted a request to the Administrative Court, seeking to change the subject matter of his claim, taking into account that the unauthorised constructions had already been demolished. The applicant therefore requested the recognition of the unlawfulness of the SRER’s failure to register the constructions built by him without permission and of its further failure to acknowledge his property rights. It appears that, in the course of the proceedings, the representative of the SRER justified the failure to register the unauthorised construction in question prior to 15 May 2001 by the large volume of land measurement work and the shortage of staff available to complete the work in time. On 30 March 2011 the Administrative Court rejected the applicant’s claim. It found, in particular, that the failure by the SRER to register the applicant’s unauthorised construction had not violated his property rights. In the circumstances where the unauthorised constructions built by the applicant had remained unregistered before 15 May 2001 or the entry into force of the Law, the relevant provisions of the Law were not applicable. The applicant should have re-applied to the SRER to have the constructions registered by virtue of Government Decree no 1748-N of 15   May 2003, which he had failed to do. The applicant lodged an appeal. He argued, inter alia , that, pursuant to Article 2 of Government Decree no. 422 of 27 July 2000, the SRER was under an obligation to register the construction built by him without permission before 15 May 2001. Furthermore, he argued that, contrary to the District Court’s finding, the case file contained his second application to the SRER dated December 2004 whereby he had requested registration of the construction. On 20 July 2011 the Civil Court of Appeal rejected the applicant’s appeal. It found that the failure by the SRER to register the applicant’s unauthorised construction prior to 15 May 2001 had not breached his property rights since he had the possibility to request the registration of the construction without it having been registered by the SRER by virtue of Government Decree no 1748-N. The applicant lodged an appeal on points of law raising similar arguments to those submitted in his previous appeal. On 22 September 2011 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. B.     Relevant domestic law 1.     The Civil Code According to Article 188, as in force at the material time, an unauthorised structure was a habitable building, construction, other structure or other immovable property built on a plot of land not allocated for that purpose in accordance with a procedure prescribed by law and other legal acts or built without the requisite permission or built with serious contraventions of town planning norms and rules. The person who had built an unauthorised structure did not acquire ownership rights. He was not entitled to dispose of the structure, including by selling, donating and renting or carrying out other transactions, except for cases prescribed by law. The recognition of the title of such persons could be refused if the maintenance of the structure violated the rights and interests of others or posed threats to the life and health of others. 2.     Law on the Legal Status of Unauthorised Buildings and Constructions and Plots of Land Occupied without Authorisation (in force from 22 February 2003 until 22 February 2005 – «Ինքնակամ կառուցված շենքերի, շինությունների և ինքնակամ զբաղեցված հողամասերի իրավական կարգավիճակի մասին» ՀՀ օրենք) The Law envisaged the grounds and procedure for recognition of ownership rights in respect of unauthorised buildings and constructions. According to Article 2, this Law applied to unauthorised buildings and constructions which had been built without permission prior to the entry into force of this Law and had been registered at the SRER prior to 15   May 2001, including semi-structures whose construction had been completed by 50% or more. According to Article 4 § 1, the ownership rights of private persons or legal entities are recognised in respect of unauthorised constructions built on their plots of land as well as on plots of land attributed to them for the purpose of building and using a private house. According to Article 4 §§ 2 and 6, the ownership right in respect of unauthorised buildings and constructions built on plots of land owned by private persons or legal entities could be recognised, if such recognition was not contrary to town planning norms. This right was to be recognised by the Mayor of Yerevan as regards the city of Yerevan. According to Article 5 § 1 persons who have built unauthorised habitable constructions on land owned by the State or the communities can have their ownership rights to them recognised if those constructions are situated within urban areas, are not built on plots of land stated in Article 60 of the Land Code (historical or cultural heritage, public parks, roads etc.) as well as in the areas of alienation or security of engineering and transport structures, do not restrict the rights of others, do not create servitude and are not contrary to town planning norms. These rights could be recognised by the Mayor of Yerevan as regards the city of Yerevan. According to Article 5 § 3 persons who have built unauthorised constructions for personal use on land owned by the State or the communities can have their ownership rights to them recognised if those constructions satisfy the requirements of the first paragraph of the same Article. Plots of land situated underneath unauthorised constructions built in cities could be attributed only by the right of lease for a period up to ten years. According to Article 8 §§ 1 and 2, applications for recognition of ownership rights were to be submitted to the local department of the SRER. Within five days from the date of receipt of an application, the local department of the SRER was to submit a plan of the building or construction in question to the Mayor of Yerevan, who would then decide to reject or grant the application. According to Article 10 § 4, the procedure for examination of applications and requests concerning unauthorised buildings and constructions which had not been registered with the SRER prior to 15   May 2001, as well as before the entry into force of this Law, was to be established by the Government. 3.     Government Decree no. 422 of 27 July 2000 Concerning the Stocktaking of Unauthorised Buildings, Constructions, Plots of Land occupied without Permission and Ownerless (Abandoned) Real Estate (in force from 25 November 2000 until 1 January 2012 - ՀՀ կառավարության 2000թ. հուլիսի 27-ի թիվ 422 որոշում` ինքնակամ կառուցված շենքերը, շինությունները, ինքնակամ զբաղեցված հողամասերը, տիրազուրկ (լքված) անշարժ գույքը հաշվառելու մասին) By this decree the Government assigned the SRER to complete the stocktaking of unauthorised buildings, constructions, plots of land occupied without permission and ownerless (abandoned) real estate by 15 May 2001. Other relevant State agencies were ordered to provide support to the SRER in performing this task. 4.     Government Decree no. 1748-N of 15 May 2003 (Մինչև «Ինքնակամ կառուցված շենքերի, շինությունների և ինքնակամ զբաղեցված հողամասերի իրավական կարգավիճակի մասին» ՀՀ օրենքն ուժի մետ մտնելը հաշվառումից դուրս մնացած ինքնակամ կառուցված շենքերի, շինությունների, ինքնակամ զբաղեցված կամ ՀՀ օրենսդրության խախտումներով օտարված (տրամադրված, ձեռք բերված) պետական սեփականության հողամասերի վերաբերյալ դիմումների և հայտերի քննարկման կարգը հաստատելու մասին) By this decree the Government approved the procedure envisaged by Article 10 § 4 of the Law on the Legal Status of Unauthorised Buildings and Constructions and Plots of Land Occupied without Authorisation. According to paragraph 2, unauthorised buildings and constructions which had been registered prior to 15 May 2001 and were shown on the maps prepared as a result of mapping carried out for the purpose of the initial State registration, as well as those which had been properly recorded on ownership certificates prior to the introduction of the system of State registration of property rights (1 March 1998), were considered “registered prior to the entry into force of the Law”. Applications and requests seeking to determine the status of unregistered, unauthorised buildings and constructions could be filed until the Law was effective. According to paragraph 3, this procedure did not apply to unauthorised buildings and constructions which, according to Government decrees, were situated within the boundaries of plots of land to be taken for the needs of the State or society. According to paragraph 2 of the approved procedure, the owners of unregistered buildings and constructions were to apply to the local department of the SRER to have their rights recognised in respect of such buildings and constructions. 5.     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` Երևանի Կենտրոն թաղային համայնքի վարչական սահմանում կառուցապատման ծրագրերի իրականացման միջոցառումների մասին) 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 1.     The applicant complains that the refusal of the authorities to recognise his ownership rights in respect of the unauthorised constructions has violated Article 1 of Protocol No. 1. to the Convention. 2.     The applicant also complains under Article 6 of the Convention of the excessive length of the proceedings concerning the legalisation of the unauthorised constructions.     QUESTIONS TO THE PARTIES 1.     As regards the refusal of the authorities to recognise the applicant’s title in respect of the constructions built by him without permission, can those constructions be considered the applicant’s “possession”, within the meaning of Article 1 of Protocol No. 1 to the Convention(see, mutatis mutandis , Öneryıldız v. Turkey [GC], no. 48939/99, § 124, ECHR   2004 ‑ XII)?   2. If so, did the refusal to recognise the applicant’s title in respect of the constructions amount to an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of that Article? Was this interference “lawful” for the purposes of that Article, did it pursue a legitimate aim in the general interest and did it strike a fair balance between the demands of the general interest and the requirements of the protection of the applicant’s rights guaranteed by that Article?   3.     Was the length of the proceedings concerning the authorities’ refusal to register the unauthorised constructions in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?