Published on 7 June 2021

FOURTH SECTION

Application s no s . 273/15 and 3214/15 Erik Anastasi SEDRAKYAN against Armenia and ELAGRA LLC against Armenia communicated on 21 May 2021

STATEMENT OF FACTS

The applicant in case no. 273/15 , Mr Erik Sedrakyan , is an Armenian national who was born in 1987 and lives in Abovyan . The applicant in case no. 3214/15 , ELAGRA LLC (“the applicant company”), was set up in 2008 and has its registered office in Noyemberyan . They are represented before the Court by Mr G. Mughnetsyan , a lawyer practising in Yerevan.

The facts of the cases, as submitted by the applicant and the applicant company, may be summarised as follows.

On 27 April 2010 the Head of Bagratashen village made a decision to allocate a plot of land measuring 2907.42 sq. m to the applicant, who was a private entrepreneur at the relevant time. The plot of land was situated in the Tavoush region, close to the border between Armenia and Georgia.

On 12 May 2010 the Head of Bagratashen village and the applicant concluded a lease agreement for a period of ninety-nine years which stated that the land was to be used for the purpose of operating a marketplace. According to the agreement, the Head of Bagratashen was entitled to request the termination of the agreement and claim damages if the applicant used the plot of land other than for the indicated purpose.

On 12 October 2012 the applicant concluded a sublease agreement with the applicant company in respect of the plot of land in question.

On 17 October 2012 the Tavoush territorial division of the State Real Estate Registry registered the applicant company ’ s rights in respect of the plot of land in question.

On 29 October 2012 the applicant company, in its turn, entered into sublease agreements with private entrepreneurs A., G., V., A., E.H., M., V.B., J. and S.M. The sublease agreements stipulated that the plot of land in question was to be used for operating a marketplace.

It appears that the applicant company was responsible for managing the organisation of the marketplace.

On an unspecified date the applicant company applied to the Ijevan territorial division of the State Revenue Committee (“the SRC”) seeking to obtain an authorisation to carry out a business activity.

On 10 January 2013 the commander of the border guard control troops of the National Security Service (NSS) informed the head of the Ijevan territorial division of the SRC that the address indicated by the applicant company was not suitable for carrying out a business activity since it was located at a distance of approximately fifty to one hundred metres from the State border between Armenia and Georgia.

On 21 May 2013 the head of the SRC addressed a letter to the Governor of Tavoush Region (“the Governor”), stating that the decision of 27 April 2010 was unlawful since it had been adopted in breach of Section 22 of the Law on the State Border, which required that the authorisation to enter the border area and to stay there temporarily was to be given by the NSS border guard control troops . However, prior to the adoption of the relevant decision, the Head of Bagratashen village had failed to obtain the required authorisation. Therefore, the Governor was requested to amend the decision of 27 April 2010 in compliance with the requirements of the relevant legislation.

Based on the above letter, on 18 July 2013 the Governor addressed a written request to the Head of Bagratashen village, seeking to have the decision of 27 April 2010 annulled.

By decision of 5 August 2013 the Council of Elders of Bagratashen village (the Council) rejected the Governor ’ s request as unsubstantiated. It found that, pursuant to Government Decree 871-N of 20 April 2006, which governed the special status inherent to State-owned land within the administrative boundaries of the Bagratashen village, the plot of land allocated to the applicant was not considered as State-owned land with a specific purpose. Consequently, it was not under the protection of the NSS border guard control troops. In such circumstances, the Council found it established that the Head of Bagratashen village had not been under any obligation to obtain prior authorisation from the NSS border guard control troops.

On an unspecified date the Tavoush Regional Administration lodged a claim with the Administrative Court against the Council seeking to annul the decision of 27 April 2010 and the resulting lease agreement of 12 May 2010 concluded between the Head of Bagratashen village and the applicant. The applicant company and the applicant became involved in the proceedings as third parties.

In its claim the Tavoush Regional Administration submitted, inter alia , that the decision adopted by the Head of Bagratashen village to allocate a plot of land to the applicant had been unlawful since it did not comply with the requirements of Section 22 of the Law on the State Border. In particular, it was adopted without the required prior authorisation from the NSS border guard control troops. Hence, in the absence of the relevant authorisation, the applicant and the applicant company could not carry out the planned business activity.

The Council, the applicant and the applicant company submitted their objections arguing, inter alia , that neither Section 22 of the Law on the State Border nor other articles of the said Law contained any provision requiring the Council to obtain authorisation from the NSS border guard control troops prior to the adoption of a decision to allocate a plot of land. In addition, they argued that, pursuant to Government Decree 871-N dated 20 April 2006, the plot of land in question was not State-owned land with a specific purpose under the protection of the NSS border guard control troops. Therefore there was no need to obtain an authorisation prior to adoption of the decision to allocate the said land to the applicant.

On 20 December 2013 the Administrative Court found for the Tavoush Regional Administration. It held, inter alia , that the decision of the Head of Bagartashen village dated 27 April 2010 was null and void since it had been adopted in breach of the requirements of Section 22 of the Law on the State Border. Consequently, the lease agreement concluded between the Head of Bagratashen village and the applicant on 12 May 2010 was also null and void.

The Council, the applicant and the applicant company lodged an appeal reiterating their arguments submitted before the Administrative Court concerning the lack of any legal ground requiring the Council to obtain an authorisation from the NSS border guard control troops prior to making a decision on allocation of a plot of land.

On 27 March 2014 the Administrative Court of Appeal dismissed their appeal and upheld the judgment of the District Court in full, endorsing the reasons given therein.

On 28 April 2014 the Council, the applicant and the applicant company lodged an appeal on points of law.

On 25 June 2014 the Court of Cassation declared their appeal inadmissible for lack of merit.

The relevant provisions of the Civil Code are as follows:

Article 466

Grounds for amending and terminating a contract

“1. The amendment and termination of a contract can be carried out by agreement of the parties [concerned], unless otherwise stipulated by law or the contract.

2. A contract may be amended or terminated by a court at the request of one of the parties only in the event of an essential breach of the contract by the other party or in other circumstances provided by law or the contract.

3. ...”

According to Article 34, third parties who have their own claims on the subject matter of the dispute may join the proceedings before the adoption of a final ruling by a court. They enjoy all the rights of the plaintiff and bear all his responsibilities.

According to Article 35 § 1, third parties who do not have independent claims on the subject matter of the dispute may join the proceedings on behalf of the plaintiff or defendant before the adoption of a final ruling by a court, if the judicial act adopted as a result of the proceedings may affect their rights or obligations vis-à-vis one of the parties to a dispute.

According to Article 35 § 2, third parties who do not submit separate claims on the subject matter of the dispute shall enjoy all the rights of the party to a dispute, except for the right to change the grounds or the subject matter of the claim, to increase or decrease the amount of the claim, to withdraw the claim, to accept the claim or to conclude a friendly-settlement agreement as well as to demand the enforcement of a judicial act.

According to Section 22 § 1, permission to enter the border area and to stay there temporarily is given by the border guard control troops with the consent of the state competent bodies of the National Security Service and the Police of the Republic of Armenia. If necessary, the border troops command may impose additional temporary regime restrictions on temporary entry and stay in the border area.

According to Section 22 § 2, in case of imposition of temporary regime restrictions, local self-government bodies should be informed of restriction or prohibition of the entry of persons, vehicles, pets, cargo, other property and other activities in the border area.

According to Section 23 § 2, economic activity in the border area is conducted only during daylight hours. At night and in the dark, the conduct of an economic activity in the border area is prohibited, except in cases of necessity, with the permission of the head of the frontier detachment and with the consent of the command of the border troops.

Under Article 100 § 2, a land lease or right to use land may be terminated on the grounds provided by law or on the grounds prescribed in the contract governing that lease or such use.

COMPLAINTs

1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was unlawfully deprived of his possessions, since the early termination of the land lease had not been carried out in accordance with the law or for a legitimate purpose, while it imposed an excessive burden on him since he was denied usufruct rights attached to the plot of land he had legally rented. He further alleges loss of rental income because of the impossibility to execute the sublease contract between him and the applicant company.

2. The applicant company complains under the same provision that the early termination of the land lease constituted an interference with its right to the peaceful enjoyment of its possessions. In particular, it was prevented from using the business premises it had lawfully rented and receiving rental income pursuant to the sublease agreements concluded with several private entrepreneurs.

CASE-SPECIFIC QUESTION (application no. 3214/15)

1. Can the applicant company claim to be a victim of a violation of Article 1 of Protocol No. 1?

COMMON QUESTIONS

2. Has there been an interference with the applicants ’ right to the peaceful enjoyment of their possessions as guaranteed under Article 1 of Protocol No. 1 (see Kopecký v. Slovakia [GC], no. 44912/98, § 47, ECHR 2004‑IX; Stretch v. the United Kingdom , no. 44277/98, §§ 32-35, 24 June 2003; Bruncrona v. Finland , no. 41673/98, § 79, 16 November 2004; and Di Marco v. Italy , no. 32521/05, §§ 48-53, 26 April 2011) ?

3. In the affirmative, was that interference compatible with the requirements of Article 1 of Protocol No. 1 ?

The applicant and the applicant company are requested to provide copies of the following documents: the submissions before the Administrative Court in reply to the claim lodged by the Tavoush Regional Administration and a copy of the appeal lodged with the Administrative Court of Appeal .