CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 mars 2018

.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 } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid }   Communicated on 6 March 2018   FIRST SECTION Application no. 16480/13 Henrik HOVHANNISYAN against Armenia lodged on 27 February 2013 STATEMENT OF FACTS The applicant, Mr Henrik Hovhannisyan, was an Armenian national who was born in 1938 and lived in Yerevan. On 29 March 2016 the applicant’s son, Mr Hrachya Hovhannisyan, informed the Court of the death of the applicant. He requested the Court to allow him to pursue the applicant’s case. The applicant was represented before the Court by Mr. H. Alumyan, a lawyer practising in Yerevan, whose authority was confirmed by Mr   Hrachya Hovhannisyan in his letter of 29 March 2016. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 14 April 1992 the authorities allotted to the applicant a plot of land and issued a certificate of ownership in respect of that land. It stated that that certificate was a temporary one and it had to be exchanged for a certificate of state registration of the title in respect of the plot of land. On 15 April 1997 the local authority provided the applicant with a certificate confirming that the applicant had been allotted a plot of land and that, since 1991, he had made investments and a number of improvements to the plot of land. In particular, the applicant had drilled a well, built an apartment and installed electricity and a telephone line, constructed a cattle shed and poultry yard and planted orchards of apple, peach and apricot trees in 1996. On 3 October 2011 the applicant asked the authorities to register his ownership rights in respect of the plot of land acquired in 1992 and to provide a certificate of state registration of his title. On 7 October 2011 the authorities refused the applicant’s request on the ground that on 18 November 2004 the Government had adopted a normative decree (“the Government decree”), whereby the State had transferred its ownership rights to a local community in respect of the land situated within its boundaries. The plot of land belonging to the applicant, according to the certificate of 14 April 1992, was located within those boundaries. On 30 December 2011 the applicant filed a claim with the Administrative Court seeking to declare partly void the Government decree as regards his plot of land. The applicant submitted that his ownership rights in respect of the disputed land were protected under the Land Code, the Convention and the Constitution of 1995. As regards the Land Code, the applicant submitted that the authorities had lawfully issued the certificate of 14 April 1992 on the basis of Article 13 of the Land Code of 1991. Moreover, Article 52 § 4 of the Land Code of 2001 prescribed that land ownership certificates issued before 6 May 1999 should remain valid. As regards the Constitution of 1995, the applicant argued that Article 28 prescribed exclusively judicial procedure for deprivation of property, while he was deprived of the property pursuant to a Government decree. As regards the Convention, he argued that the deprivation of his property was unlawful and did not pursue a legitimate aim as required by Article 1 of Protocol   No.   1. On 16 January 2012 the Administrative Court refused to admit the applicant’s claim for lack of jurisdiction. The Administrative Court reasoned that the applicant had failed to file his claim in accordance with the procedure prescribed by Article 135 of the Code of Administrative Procedure (the CAP). In particular, he had failed to mention any legal act of higher legal force with which the Government decree was incompatible. On 1 February 2012 the applicant appealed against that decision, arguing that it had breached his right of access to a court under the Constitution and the Convention. He stressed that the Government had not been authorised to take the land, which had belonged to him since 1992. As a result, he had applied to the Administrative Court for judicial protection. The applicant stressed that under domestic law, the Administrative Court was the only effective remedy, as the courts of general jurisdiction lacked competence over his dispute. On 16 March 2012 the Administrative Court of Appeal quashed the decision of 16 January 2012 and remitted the case for new examination on the ground that the reason for refusing to admit the claim pointed out by the Administrative Court was a basis for returning the claim to the applicant for correcting the shortcomings of his claim: but the Administrative Court had refused to admit it, which deprived the applicant of the opportunity to file the amended claim. On 2 May 2012 the Administrative Court, upon a fresh examination, refused to admit the applicant’s claim on the ground that the applicant had failed to argue that the Government decree was incompatible with any legal act of higher legal force as required by Article 135 of the CAP. On 30 May 2012 the applicant appealed against that decision, raising the same arguments as in his appeal of 1 February 2012. In the meantime, on 1 June 2012 the applicant filed an amended claim with the Administrative Court, raising the same arguments as in his initial claim. On 8 June 2012 the Administrative Court refused to admit the applicant’s amended claim on the ground that he had failed to correct the shortcomings of his initial claim. On 28 June 2012 the applicant appealed against that decision, raising the same arguments as in his appeals of 1 February and 30 May 2012. On 11 July 2012 the Administrative Court of Appeal rejected the applicant’s appeal of 30 May 2012. It reasoned that the applicant had failed to comply with the main requirement of Article 135 of the CAP, namely that the applicant had failed to argue that the Government decree was incompatible with any legal act of higher legal force. The Administrative Court of Appeal admitted that the applicant had substantiated his claim with reference to the Constitution and the Convention. However, it noted that disputes on the constitutionality of Government decrees were within the competence of the Constitutional Court. As regards the Convention, the court held that Article 135 referred only to domestic law and excluded international treaties, including the Convention. On 23 July 2012 the Administrative Court of Appeal rejected the appeal of 28 June 2012, reasoning that the applicant had failed to correct the shortcomings of his initial claim. On 24 July and 8 August 2012 the applicant filed appeals on points of law against the decisions of 11 July and 23 July 2012 which were declared inadmissible for lack of merit by the Court of Cassation in its decisions of 8   and 22 August 2012. The decision of 22 August 2012 was served on the applicant on 5   September 2012. B.     Relevant domestic law 1.     Constitution of 1995 Article 6 provides that international treaties of the Republic of Armenia shall form part of the domestic law. In case of conflict between the rules of those treaties and the rules of domestic law, the former shall apply. Article 28 provides that a person may be deprived of his/her property only by a court in cases prescribed by law. 2.     Land Code of 1991 Article 13 provides that provision of a plot of land as property shall be carried out by way of allotment by the competent executive committee of the Council of Peoples’ Deputies. 3.     Land Code of 2001 Article 52 § 4 provides that official documents granting rights in respect of land that had been issued or obtained before 6 May 1999 should preserve their legal force, should not be subject to re-registration and should be considered a lawful basis for transactions. 4.     Code of Administrative Procedure (in force from 2008 to 2014) Article 3 provides that every physical or legal person who believes that his or her rights and freedoms guaranteed by the Constitution, international treaties, laws and other legal acts have been breached by the decisions, actions or omissions of public or local authorities or their officials, may apply to the Administrative Court in accordance with the procedure prescribed by the Code. Article 135 § 2 provides that the Administrative Court shall have jurisdiction over disputes concerning the compatibility of normative decrees of the Government with normative acts of higher legal force (except the Constitution). Article 136 provides that in cases provided for by Article 135, every physical or legal person who believes that a normative legal act breached his or her rights guaranteed by Chapter 2 of the Constitution, the rules of international human rights law and the national laws, may apply to the Administrative Court. 5.     Law on Legal Acts (in force since 2001) Section 14 § 2 provides that normative decrees of the government shall be compatible with the ratified international treaties. Section 21 § 2 provides that the ratified treaties of the Republic of Armenia shall form part of the domestic legal system. 6.     The Government decree of 18 November 2004 no. 1555-N According to the decree, the Government transferred the state’s ownership title in respect of several plots of land situated within the boundaries of a rural community to Arevashat village. COMPLAINT The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of the lack of access to court to contest the Government decree of 18 November 2004 depriving him of his land and of the alleged breach of his property rights. QUESTIONS TO THE PARTIES 1.     Was the applicant’s right of access to court, guaranteed by Article 6 §   1 of the Convention, breached as a result of the courts’ refusal to examine his claim against the Government decree of 18 November 2004? 2.     Has there been an interference with the applicant’s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol   No.   1? If so, was the deprivation of the applicant’s property, on the basis of the Government decree of 18 November 2004, compatible with the requirements of Article 1 of Protocol No. 1?