CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 avril 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sCA386EC { margin-top:14pt; margin-left:27.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.6pt; font-family:Arial; font-size:11pt; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s7A11F50B { margin-left:6.52pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.83pt; font-weight:normal; font-style:italic } .s6846D3D8 { margin-top:14pt; margin-left:35.72pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.83pt; font-family:Arial; font-size:11pt; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sD0682254 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sB2ED4664 { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .sB6ED799D { margin-top:0pt; margin-bottom:14pt; text-indent:14.2pt; text-align:justify } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } Communicated on 5 April 2020 Published on 8 June 2020   FIRST SECTION Application no. 44092/15 Lyubov PILOYAN against Armenia lodged on 27 August 2015 STATEMENT OF FACTS The applicant, Ms Lyubov Piloyan, is an Armenian national who was born in 1940 and lives in Yerevan. She is represented before the Court by Mr A. Grigoryan and Mr A. Ghazaryan, lawyers practising in Yerevan. The circumstances of the case Background to the case The facts of the case, as submitted by the applicant, may be summarised as follows. 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 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. According to the certificate of ownership delivered on 26   September 2005, the applicant owned one-third of the house measuring 187 sq. m., which was situated within the area to be expropriated. 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 (“the District Court”) against the applicant and the remaining co-owners of the property, seeking to have them evicted upon payment of compensation. On 13 July 2005 the District Court granted the Agency’s claim and ordered the eviction of the applicant and the remaining co-owners. On 24 July 2005 an appeal was brought by one of the co-owners of the property in question. In the course of the proceedings before the Civil Court of Appeal (“the Court of Appeal”), on 25 November 2005 the Mayor of Yerevan adopted decision no. 2594-A granting the applicant a right of lease and a building permit in respect of a plot of land measuring 332.6 sq. m. at a specified address in the Kentron (central) District of Yerevan. According to the decision, the lease agreement in respect of the specified plot of land was to be concluded for a period of 99 years while the Agency was designated as being responsible for the implementation of the decision. On 30 November 2005 the applicant received the zoning plan of the plot of land specified in decision no. 2594-A. On 16 December 2005 a friendly settlement agreement between the applicant and the Agency was signed, with reference to the Mayor’s decision no. 2594-A. By a judgment adopted on the same date, the Court of Appeal affirmed the settlement agreement between the applicant and the Agency and her property rights were terminated based on that agreement. No appeal was lodged and the judgment became final. In February 2006 the Mayor of Yerevan and the applicant concluded a 99-year lease agreement in respect of the plot of land in question. On 16 March 2006 the Mayor adopted decision no. 357-A by which he annulled decision no. 2594-A. On 23 March 2006 the Agency requested the reopening of the proceedings concluded by the Court of Appeal’s judgment of 16   December   2005 on the basis of a new circumstance, namely the Yerevan Mayor’s decision no. 357-A. On 21 April 2006 the Court of Cassation rejected the Agency’s request finding, in particular, that the Mayor’s decision no. 357-A was not a valid ground to review the judgment of the Court of Appeal of 16   December 2005. On 6 April 2006 the Mayor adopted decision no. 623-A ordering the head of the Legal Department of the Mayor’s office and the Agency to pay the applicant a certain sum of money in compensation for the expropriation of her property and her eviction. It appears that on 5 May 2006 the Agency addressed a letter to the applicant containing an offer of 37,363,733 Armenian drams (AMD) [1] in compensation for the expropriation of her property. It further appears that the applicant did not reply to that offer. On 20 January 2005 the Agency lodged a claim against the applicant, seeking to oblige her to sign an agreement on the taking of her share in the property for State needs and to have her evicted. On 3 July 2006 the District Court granted the Agency’s claim, ordering that the applicant sign the compensation agreement for the total amount of AMD 37,363,733 and that she be evicted. The applicant refused to sign the compensation agreement in question. It appears that she did not accept the amount stated in that agreement. On 17 July 2006 the applicant lodged an appeal against the judgment of the District Court of 3 July 2006. By the judgment of 14 September 2016 the Civil Court of Appeal upheld the judgment of 3 July 2006 in full. The applicant lodged an appeal on points of law. On 24 October 2006 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit. Proceedings against the Department for Execution of Judicial Acts (a)    The first set of proceedings Meanwhile, on 29 May 2006 the Civil Court of Appeal issued a writ of execution for its judgment of 16 December 2005 which the applicant submitted to the Department for Execution of Judicial Acts (DEJA). On 30 May 2006 the DEJA instituted enforcement proceedings. On 26 July 2006 the DEJA adopted a decision to oblige the Agency to grant the applicant a building permit. In parallel to this, the Agency requested from the Court of Appeal a writ of execution in respect of its judgment of 14 September 2006. Based on this request, on 27 September 2006 the Court of Appeal issued a writ of execution. Accordingly, on 3 October 2006 the DEJA instituted enforcement proceedings in respect of the Court of Appeal’s judgment of 14   September 2006. On 6 October 2006 the DEJA decided to terminate the enforcement proceedings as regards the judgment of 16 December 2005 with reference to the enforcement proceedings concerning the judgment of 14   September 2006. According to this decision, the applicant was to sign a compensation agreement and be evicted. On 28 April 2007 the applicant lodged a claim with the Ajapnyak and Davtashen District Court of Yerevan against the DEJA, seeking to have the decision of 6 October 2006 annulled. She argued, inter alia , that in its judgment of 14 September 2006 the Civil Court of Appeal had referred to certain legal provisions that had been found unconstitutional by the decision of the Constitutional Court of 18 April 2006. Accordingly, the DEJA should have terminated the enforcement proceedings in respect of the judgment of 14 September 2006 rather than those concerning the judgment of 16   December 2005. By a judgment of 27 June 2008 the Ajapnyak and Davtashen District Court of Yerevan partially granted the applicant’s claims. In particular, it declared the DEJA’s decision of 6 October 2006 null and void, albeit on different grounds: with reference to Article 42 of the Law on the Enforcement of Judicial Acts it found that there was no ground for the termination of the enforcement proceedings. The applicant appealed. On 24 October 2008 the Court of Appeal allowed the applicant’s appeal by obliging the DEJA to resume the enforcement proceedings in respect of the judgment of 16 December 2005 having regard to the decision of the Constitutional Court of 18 April 2006. On 2 December 2008 the Ajapnyak and Davtashen District Court of Yerevan issued a writ of execution in respect of the judgment of 16   December 2005 based on which the DEJA initiated enforcement proceedings on 5 December 2008. By another decision adopted on the same date, the DEJA terminated the enforcement proceedings in respect of the judgment of the Kentron and Nork-Marash District Court of Yerevan of 14 September 2006. It appears that shortly thereafter, on 12 January 2009, the DEJA decided to terminate the enforcement proceedings instituted on 5 December 2008 on the grounds that the subject matter of the judgment of the Civil Court of Appeal of 16 December 2005 had been executed. It reasoned that, in accordance with the settlement agreement affirmed by the judgment of the Court of Appeal of 16 December 2005, the lease agreement between the Mayor and the applicant had already been concluded. On 26 January 2009 the applicant disputed this decision before the Administrative Court. On 18 May 2009 the Administrative Court declared the DEJA’s decision of 12 January 2009 null and void. On 30 October 2009 the Agency lodged an appeal on points of law. On 16 December 2009 the Court of Cassation in the final instance declared the applicant’s appeal inadmissible for lack of merit. (b)    The second set of proceedings Having witnessed the inaction on the part of the DEJA regarding enforcement of the judgment of 16 December 2005, the applicant lodged a further claim with the Administrative Court seeking to oblige the DEJA to undertake the relevant measures for its enforcement. On 1 December 2010 the Administrative Court granted the applicant’s claim. The Mayor’s office lodged an appeal against this judgment. On 11 May 2011 the Administrative Court of Appeal quashed the judgment of 1 December 2010 and decided to terminate the proceedings due to lack of jurisdiction. On 20 May the applicant lodged an appeal on points of law. On 29 June 2011 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit. On 18 May 2011, relying on Articles 28 and 41 § 8 of the Law on the Enforcement of Judicial Acts, the DEJA decided to discontinue the enforcement proceedings in respect of the judgment of 16 December 2005. According to the decision, it had become impossible to enforce the judgment of 16 December 2005 since by decision 623-A of 26 April 2006 the Mayor had annulled his decision 2594-A which had constituted the basis for the settlement agreement affirmed by that judgment. (c)    The third set of proceedings On 27 May 2011 the applicant challenged the DEJA’s decision of 18   May 2011 before the Administrative Court. On 12 October 2012 the Administrative Court annulled the decision in question finding, in particular, that regardless of the fact of the annulment of the Mayor’s decision no. 2594-A, the settlement between the applicant and the Agency was regulated by that decision. Furthermore, compliance with the principle of the finality of judgments necessitated the enforcement of the judgment of the Court of Appeal of 16 December 2005, which affirmed the settlement agreement between the applicant and the Agency. On 12 November 2012 the Mayor lodged an appeal against this judgment. On 7 March 2013 the Administrative Court of Appeal fully upheld the findings of the Administrative Court. No further appeal was lodged, and the Administrative Court’s judgment of 12 October 2012 became final. Proceedings against the Mayor In the meantime, on 3 February 2012 the applicant learned that on 15   May 2008 the Mayor had adopted decision no. 2249-A according to which the plot of land that was to be allocated to the applicant was to be sold to S.-A., a private company (“the company”). Thereafter, on 27   May 2008 a sale agreement was signed between the company and the Mayor’s Office. After the conclusion of that agreement, the company had obtained State registration of its property rights in respect of the plot of land which was to be allocated to the applicant. On 27 February 2012 the applicant lodged a claim in the Administrative Court seeking to annul the Mayor’s decision no. 2249-A. On 2 August 2013 the Administrative Court rejected the applicant’s claim finding, in particular, that the applicant had never contested decision no. 357-A of 16 March 2006 by which the Mayor had annulled his decision no. 2594-A; neither had the applicant contested the Mayor’s decision no.   623-A ordering the head of the Legal Department of the Mayor’s office and the Agency to pay her compensation for the expropriation of her property and her eviction. The applicant appealed against this judgment. On 27 February 2014 the Administrative Court of Appeal granted the applicant’s appeal. It annulled decision no. 2249-A, finding that the Mayor had no right to sell the plot of land in question to a third party since the applicant had had a legitimate expectation to obtain it. On 30 April 2015, upon the company’s appeal, the Court of Cassation quashed the decision of the Court of Appeal of 27 February 2014 and upheld the Administrative Court’s judgment of 2 August 2013. The Court of Cassation found, in particular, that due to the Mayor’s decision no. 623-A of 26 April 2006, it had become impossible to enforce the Court of Appeal’s judgment of 16 December 2005. Consequently, neither the contested decision no. 2249-A, nor the agreement between the Mayor’s office and the company were subject to annulment. The Court further stated that the applicant had never contested the Mayor’s decision no. 357-A of 16   March 2006 by which he had annulled decision no. 2594-A. In such circumstances, the applicant had not had a legitimate expectation in respect of the plot of land at issue. The proceedings before the Constitutional Court On 17 August 2015 the applicant lodged an application with the Constitutional Court challenging the compatibility with the Constitution of certain provisions of the Code of Administrative Procedure and of the Law on the Fundamentals of Administrative Action and Administrative Proceedings relied on by the Court of Cassation in its decision of 30   April 2015. On 1 December 2015 the Constitutional Court found that the legal provisions relied upon by the applicant were in compliance with the Constitution. At the same time, the Constitutional Court stated that by virtue of the Mayor’s decision no. 2594-A the applicant had in fact acquired, in respect of the contested plot of land, a right to be granted a building permit, lease rights and a legitimate expectation to acquire a right of ownership. It further stated that the bailiffs had not undertaken all the measures necessary for the execution of the judicial decision in the applicant’s favour. The proceedings initiated after the decision of the Constitutional Court of 1 December 2015 It appears that by application of 9 December 2015 the applicant sought the re-opening of the proceedings concluded by the decision of the Court of Cassation of 30 April 2015, on the grounds of a new circumstance. It further appears that on 3 February 2016 the Court of Cassation refused to examine the applicant’s application. On 19 April 2016 the applicant lodged a claim with the Administrative Court seeking to have the Mayor’s decisions nos. 357-A and 2249-A declared null and void. On 1 September 2017 the Administrative Court rejected the applicant’s claim on the grounds that she had lodged the wrong type of request. In particular, instead of requesting a declaration of the annulment of the decisions in question, the applicant had requested that the Administrative Court declare those decisions null and void. The applicant lodged an appeal. At the time when the applicant lodged the present application, the relevant appeal proceedings were still pending before the Administrative Court of Appeal. Relevant domestic law The Code of Civil Procedure (as in force at the material time) According to Article 33 §§ 1 and 3, the parties may terminate the proceedings at any stage by reaching a friendly settlement. Prior to the approval of the friendly settlement agreement, the court explains its procedural consequences to the parties. Article 120 provides that the presiding judge informs the parties to the proceedings of their rights and obligations and starts the examination of the merits of the case. The presiding judge ascertains whether the plaintiff maintains his claims, whether the respondent admits the plaintiff’s claims and whether the parties are willing to reach a friendly settlement. Law on Compulsory Enforcement of Judicial Acts Section 41 of the Law of 5 May 1998 on Compulsory Enforcement of Judicial Acts prescribes the grounds for termination of the enforcement procedure by the bailiff. According to paragraph 1(8), the bailiff shall discontinue an enforcement procedure if, during an enforcement procedure concerning non-proprietary claims, it becomes evident that the enforcement of the judgment has become impossible. COMPLAINT The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the competent authorities have failed to enforce the final and binding judgment of the Civil Court of Appeal of 16   December 2005. QUESTIONS TO THE PARTIES 1.     Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention in respect of her complaint concerning the alleged non-enforcement of the judgment of the Civil Court of Appeal of 16   December 2005 (see Tripcovici v. Romania (dec.), no. 21489/03, 22   September 2009; Kravchenko v. Russia , no. 34615/02, § 34, 2 April 2009; and Babich and Azhogin v. Russia (dec.), no. 9457/09, §§ 48‑49, 15   October 2013)? 2.     If so, was the non-enforcement of the judgment of the Civil Court of Appeal of 16 December 2005 in breach of the applicant’s rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Khachatryan v. Armenia , no. 31761/04, §§ 66-70, 1 December 2009; Papoyan v.   Armenia , no. 7205/11, §§ 38-43, 11 January 2018; and Nikoghosyan v. Armenia , no.   75651/11, §§ 53-58, 18 May 2017)? [1] Approximately EUR 70,391.25 at the material time.