Published on 10 May 2021

FOURTH SECTION

Application no. 30312/11 Yervand NALTAKYAN and Others against Armenia lodged on 2 May 2011 communicated on 22 April 2021

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. They are represented before the Court by Ms M. Ghulyan and Mr G. Margaryan , lawyers practising in Yerevan.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 25 February 2010 A&M RARE, a limited liability company (“the Company”), was established.

On the same date the Company filed an application with the Government on the basis of the Law on Alienation of Property for the needs of Society and the State (“the Law”), seeking to acquire plots of land in Artavaz village community, which included plots of land owned by the applicants. According to the application, the acquisition of the land was necessary for a prevailing public interest, namely the implementation of an investment project on the construction of a mineral water plant in the community.

On the same date the Government adopted Decree no. 241-N (“the Decree”) granting the Company ’ s application. By this decree the Government approved the expropriation zones of territories situated within the administrative boundaries of the rural community of Artavaz in Kotayk Region to be taken for State needs. The Decree stated that the expropriation of private plots of land was justified by a prevailing public interest in the implementation of an investment project aimed at ensuring proportionate regional development, which was important for the overall social-economic development of the country. According to the Decree, the Company was to acquire the units of land listed in its annexes, 95.87549 ha of land in total. The plots of land owned by the applicants were listed among the units of land falling within the expropriation zones defined by the Decree.

On 10 February 2011 the Government adopted Decree no. N-100 whereby it amended the Decree by correcting wrongly-indicated dimensions of some of the applicants ’ plots of land.

On 7 May 2010 the applicants, together with a number of other landowners in the community, lodged a claim with the Administrative Court against the Government, seeking the annulment of the Decree. They argued that the Decree did not comply with the Constitution and the requirements of the Law, and that the Government had failed to strike a fair balance between their interests and the public interest relied upon. The Law required that the acquiring entity submit an application with the Government containing reasons for an expropriation, while the Government had to examine those reasons, in consultation with other relevant authorities, and then make a decision. In their case, however, the establishment of the Company, submission of the application and the adoption of the Decree had taken place on the same day, which showed the perfunctory and arbitrary nature of the decision-making process in relation to the deprivation of their property.

On 16 June 2010 the Ministry of the Economy made written submissions to the Administrative Court, arguing that the Decree was in conformity with the Constitution and the Law. The Ministry was of the opinion that the establishment of the plant was in the public interest for the proportionate development of the region. Also, some of the plots of land had not been cultivated and, in any event, the owners of expropriated property would receive compensation allowing them to buy and cultivate other plots of land.

On 14 September 2010 the Administrative Court rejected the applicants ’ claim and upheld the Decree. It reasoned that the adoption of the Decree had pursued the prevailing public interest in the economic development of the community and the region through creation of jobs and use of its mineral resources. The fact that the establishment of the Company, its submission of the expropriation application and the adoption of the Decree had taken place on the same day did not render the Decree unlawful.

On 14 October 2010 the applicants filed an appeal on points of law with the Court of Cassation claiming various substantive and procedural violations of the law. They argued, in particular, that the Administrative Court had erred in the application of the requirements of the Law, the Constitution and Article 1 of Protocol No. 1 to the Convention in that it had failed to verify the existence of a public interest in the expropriation of their property considering that their property, which was the only source of income for the farmers of Artavaz village community, was being expropriated for the purpose of the construction of a private company. They further argued that the Administrative Court had failed to properly address their arguments with regard to the breach of the legal procedure for the adoption of the Decree.

On 3 November 2010 the Court of Cassation, sitting in camera as a panel composed of six judges, decided to return the appeal, that is, to declare it inadmissible. The reasons provided were as follows:

“T he Civil and Administrative Chamber of the Court of Cassation ... having examined the question of admitting [the applicants ’ appeal lodged against the judgment of the Administrative Court of 14 September 2010] ... having examined the arguments brought forward by [the applicants], finds that it must be returned with the following reasoning:

...

The Court of Cassation finds that the appellants ’ arguments concerning the violations of the substantive and procedural law by [the Administrative Court] are rebutted by the reasoning stated in the [Administrative Court ’ s] judgment.

Thus, [quotation from the Administrative Court ’ s judgment]...

At the same time, the Court of Cassation finds that the appellants have not justified that the judicial act to be adopted by the Court of Cassation in this case can have a significant impact on the uniform application of the law.

...

In those circumstances, the admissibility grounds raised by the appellants in the appeal on points of law arguing that [the Administrative Court has committed] a judicial error and that the judicial act to be adopted by the Court of Cassation in this case can have significant impact on the uniform application of the law are unfounded since it has not been substantiated that there has been such violation of the substantive or procedural law which could have had decisive influence on the outcome of the case.

Thus, the Court of Cassation finds that the appeal on points of law does not satisfy the requirements of Article 234 § 1 of the Code of Civil Procedure and those of Article 118.6 § 1 of the Code of Administrative Procedure. Accordingly, it must be returned pursuant to Article 233 § 1 (1) of the Code of Administrative Procedure... ”

According to Article 118 the relevant provisions of the Code of Civil Procedure are applicable to the procedure for lodging appeals against judicial acts adopted by the administrative court.

Article 118.6 §§ 1 and 3 state that the Court of Cassation shall admit an appeal on points of law for examination if the judicial act to be adopted on the given case may have a significant impact on the uniform application of the law or there has been a violation of the substantive or procedural law which has resulted in a judicial error.

According to Article 233 § 1 (1) an appeal on points of law shall be returned if it does not comply with the requirements of Articles 231 and 234 § 1.

According to Article 234 § 1 the Court of Cassation shall admit an appeal on points of law if, in its opinion, the appeal substantiates that (1) the decision of the Court of Cassation concerning the question raised in the appeal may have a significant impact on the uniform application of the law, or (2) the contested judicial act prima facie contradicts a decision previously adopted by the Court of Cassation, or (3) a prima facie judicial error made by the lower court may cause or have caused grave consequences.

COMPLAINT

The applicants complain under Article 6 § 1 of the Convention that they had been deprived of access to the Court of Cassation.

QUESTIONS TO THE PARTIES

Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?

If so, did the applicants have effective access to judicial review, in accordance with Article 6 § 1 of the Convention (see Zubac v. Croatia [GC], no. 40160/12, §§ 80-82 and § 84, 5 April 2018)?

APPENDIX

No.

Applicant ’ s Name

Birth date

Nationality

Place of residence

1Yervand NALTAKYAN

1958Armenian

Artavaz village

2Arshaluys ABRAHAMYAN

1950Armenian

Pyunik village

3Mekhak ABRAHAMYAN

1948Armenian

Pyunik village

4Radik ABRAHAMYAN

1982Armenian

Pyunik village

5Arturik ARUSTAMYAN

1964Armenian

Artavaz village

6Hranush ARUSTAMYAN

1968Refugee status

Artavaz village

7Levon ARUSTAMYAN

1987Refugee status

Artavaz village

8Nikolay ARUSTAMYAN

1989Refugee status

Artavaz village

9Arkadi BADALYAN

1961Armenian

Hrazdan

10Margush BADALYAN

1935Armenian

Artavaz village

11Haykaz GAZARYAN

1929Armenian

Artavaz village

12Gurgen GHAZARYAN

1968Armenian

Artavaz village

13Sasun MIKAYELYAN

1957Armenian

Hrazdan

14Hambardzum NALTAKYAN

1985Armenian

Artavaz village

15Khoren NALTAKYAN

1956Armenian

Artavaz village

16Naira NALTAKYAN

1979Refugee status

Artavaz village

17Serozh NALTAKYAN

1981Armenian

Artavaz village

18Tonik NALTAKYAN

1936Armenian

Artavaz village

19Vardanush NALTAKYAN

1961Armenian

Artavaz village

20Varsenik NALTAKYAN

1982Armenian

Artavaz village

21Yurik NALTAKYAN

1929Armenian

Artavaz village

22Grisha SAHAKYAN

1954Armenian

Artavaz village

23Lyova SAMSONYAN

1962Armenian

Yerevan

24Aleksan TAVAKALYAN

1979Armenian

Hrazdan