Communicated on 24 February 2017

FIRST SECTION

Application no. 46664/10 Stepan SAHAKYAN against Armenia lodged on 30 July 2010

STATEMENT OF FACTS

The applicant, Mr Stepan Sahakyan , is an Armenian national who was born in 1945 and lives in Yerevan. He is represented before the Court by Ms H. Harutyunyan, 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. De facto seizure of the applicant ’ s property

In June 2009 the Ministry of Culture, in cooperation with the National Art Gallery of Armenia (hereinafter “the NAGA”), which is a non-profit State organisation, organised an exhibition devoted to the 100th anniversary of the birth of Armenian painter Khachatur Yesayan .

In May 2009 the director of the NAGA and the painter ’ s daughter asked the applicant to provide some paintings by Yesayan from his private collection for the temporary exhibition. The applicant agreed and, on 29 May 2009, he took seven works of art, namely four paintings and three drawings, to the NAGA, seeking no payment. In the presence of the applicant and the painter ’ s daughter the treasurer of the NAGA examined and received the paintings and wrote out a receipt.

On 5 June 2009 the exhibition was officially opened. All the paintings were displayed and presented to the public as works of art belonging to a private collection.

On 1 July 2009, the applicant, several days after the exhibition had closed, went to the NAGA to retrieve his paintings. The treasurer, without any explanation, refused to return two of them, September and Morning in Sevan (hereinafter “the paintings”).

The applicant states that he protested about the refusal to return his paintings and that at some point an official from the Ministry of Culture and a police officer were involved. Eventually, the police officer informed him that he had decided to seize the paintings. When the applicant demanded to be given a written decision or an official record of the taking of the paintings, the NAGA issued another receipt, extending the period for their being kept at the NAGA by ten days.

2. The first set of civil proceedings

On 20 August 2009 the applicant brought an action with the Kentron and Nork- Marash District Court of Yerevan (hereinafter “the District Court”) to oblige the NAGA to comply with its contractual obligations, return the paintings and to pay damages. He also applied to have the case examined under an expedited procedure.

On an unspecified date the District Court decided to set the case down for trial.

At a hearing on 12 October 2009 the NAGA ’ s legal representative asked for the proceedings to be suspended on the grounds that criminal proceedings had been instituted by the police on the same day in order to investigate whether the applicant ’ s paintings had been stolen. It was submitted, in particular, that both paintings had been stolen several years previously from State institutions. They were classified as real evidence, attached to the criminal case and taken by the police.

On 15 October 2009 the District Court granted the application by the NAGA and suspended the proceedings until a final determination of the criminal case.

On 19 October 2009 the applicant lodged an appeal against that decision but it was dismissed by the Civil Court of Appeal on 9 November 2009.

On 28 December 2009 the Court of Cassation declared that an appeal by the applicant on points of law was inadmissible for lack of merit.

The applicant states that those proceedings are still suspended.

3. The criminal proceedings, the second set of civil proceedings and the determination of the property rights in respect of the paintings

On 12 October 2009 criminal proceedings for alleged theft were instituted in relation to the paintings.

During the investigation of the criminal case the applicant was involved as a witness and was questioned with that status several times about the circumstances surrounding his purchase of the paintings.

On 19 August 2010 the investigator suspended the criminal proceedings on the grounds that all the necessary investigative measures had been taken but it had been impossible to identify the perpetrator of the alleged crime. It appears that the applicant was not informed about that decision.

In the meantime, on 18 November 2009, the applicant had requested that the head of the Kentron police Investigative Unit provide him with copies of the decision on instituting criminal proceedings and the record of the confiscation or seizure of the paintings, if any. He submitted that the material he had requested concerned his rights and interests.

On 19 January 2010 the applicant repeated his request and asked to be given copies of all the procedural documents.

By letters dated 19 January and 21 January 2010 respectively the investigator informed the applicant that the paintings had been classified as State property and could not be returned. He also stated that the Code of Criminal Procedure did not stipulate that copies of procedural documents be given to a witness.

The applicant unsuccessfully challenged those refusals, first before the District Prosecutor and then before the District Court and the Civil Court of Appeal.

On 5 November 2010 the Court of Cassation allowed an appeal by the applicant and remitted the case to the District Court. It also stated that the lower courts had not taken into account the fact that the applicant was the owner of the paintings in question. The refusal to provide him with procedural documents had deprived him of the opportunity to defend his property rights and had violated his property rights.

On 21 April 2011 the District Court ordered that the violation of the applicant ’ s rights should stop and that the investigating authorities provide him with the procedural documents he had requested.

No appeal was apparently made against that decision and the applicant received the procedural documents requested, including the record of the seizure of the paintings, the decision classifying them as real evidence and the investigator ’ s decision of 19 August 2010. Once he had learned of that decision, the applicant requested that the prosecutor quash it, terminate the criminal proceedings and return the paintings.

On 2 November 2010 the deputy prosecutor of the Kentron and Nork ‑ Marash Administrative Districts rejected his request.

On an unspecified date the applicant made a court challenge against the investigator ’ s decision on the suspension of the criminal proceedings and the prosecutor ’ s refusal of his request.

On 21 March 2011 the District Court granted the applicant ’ s appeal in part, obliging the investigating authorities to eliminate the violation of his property rights by handing over the real evidence, that is to say the paintings, to him, making him legally responsible for them, and dismissed the remainder of the appeal. The court dealt with his request to terminate the criminal proceedings by noting that although it had not been established whether the paintings had been removed from the previous owner as a result of loss, theft or in some other way against the owner ’ s will, the proceedings had anyway been suspended in compliance with the Article 31 of the Code of Criminal Procedure. It stated that “the fact that the criminal proceedings had not been terminated did not violate the applicant ’ s rights and freedoms”.

That decision was upheld at final instance by the Court of Cassation on 13 July 2011.

On 21 July 2011 the investigator decided to hand over the paintings to the applicant for safe-keeping, making him legally responsible for them.

On the same day the investigator asked the NAGA to return the paintings so they could be given to the applicant, as ordered by the District Court. It appears that the NAGA did not comply with that request. In consequence, on 3 August 2011, the investigator sent a reminder letter to the NAGA. Two similar letters were sent to the Minister of Culture over the subsequent month.

On 14 September 2011 the Ministry of Culture responded by saying that it had requested that the Prosecutor General order an expert examination of the paintings to determine whether they were identical to ones which had belonged to the NAGA.

On 28 September 2011 the Kentron and Nork- Marash District Prosecutor ’ s Office initiated civil proceedings against the applicant seeking to recognise the State ’ s ownership rights in respect of the paintings. It simultaneously applied for an interim measure to leave the paintings in the custody of the NAGA until the end of the proceedings.

On 30 September 2011 the District Court granted the application and ordered that the paintings be left at the NAGA for safe-keeping. It also prohibited the applicant from taking them into his possession.

On 10 October 2011 the applicant filed a statement with the Special Investigative Service submitting that State officials had not complied with the District Court ’ s decision of 21 March 2011 by using their official position and that the investigator had failed to enforce that decision.

The applicant, in turn, twice applied to have the interim measure lifted and to have the paintings returned to him.

On 4 November 2011 the District Court granted the applicant ’ s second application in full and lifted the interim measure on the grounds that the issue of who had possession of the paintings had already been determined in the criminal proceedings decided by the District Court on 21 March 2011.

On 28 November 2011 the investigator decided to place a seizure order on the paintings and handed them over to the applicant for safe ‑ keeping. He was notified that he was subject to criminal liability if he disposed of or damaged the paintings.

On 1 August 2012 the District Court rendered a judgment endorsing a friendly settlement concluded between the District Prosecutor ’ s Office and the applicant, according to which the parties agreed to leave September in the applicant ’ s possession, recognising his title over it, and to hand Morning in Sevan over to the State as its property.

It appears that no appeal was made against the judgment and it became final.

The applicant submits that the criminal proceedings are still suspended.

4. The third set of civil proceedings

In the meantime, on 5 October 2011, the applicant had commenced civil proceedings against the NAGA, seeking the return of the paintings.

On 14 November 2011 the applicant modified his claim and requested that the court recognise a violation of his property rights by the NAGA from 13 July 2011 to 29 September 2011 and provide him with compensation for the pecuniary damage he had sustained, such as legal and logistical expenses.

On 13 March 2012 the District Court terminated the proceedings in respect of the first part of the claim on the grounds that there was no possibility under domestic law to acknowledge the fact of a violation of a right as a form of protecting civil rights. The compensation claim was considered as a subsidiary application and was dismissed since the main claim had been inadmissible in law.

The applicant appealed. The judgment was upheld at final instance by the Court of Cassation on 12 September 2012.

B. Relevant domestic law

1. The Code of Criminal Procedure

The Code of Criminal Procedure does not set down maximum permissible time-limits for the suspension of criminal proceedings. Article 31 of the Code allows suspension of criminal proceedings in cases where the identity of the person to be charged is unknown. Under the same Article the proceedings are to remain suspended until the ground for the suspension has been eliminated.

Article 35. Circumstances Excluding Criminal Prosecution

“1. Criminal proceedings cannot be instituted, a criminal prosecution cannot be carried out and criminal proceedings that have been instituted are subject to termination, where:

1) there is no criminal act;

2) the act contains no corpus delicti ;

...

6) the period of limitation has expired;

...”

Article 236 provides that, as a rule, seized property, except for real estate and large items, is to be taken away. If seized property is not taken away, it is sealed and handed over to the owner or custodian of the property or to adult members of his family for safe-keeping. The persons concerned are given an explanation of their legal liability if they dispose of or damage the property.

There is no time-limit for ordering the release of seized property. Such an order is given if there is no longer a need for such a restriction (Article 238 § 1 ).

2. The Civil Code

Article 14. Manners of Protection of Civil Rights

“Protection for civil rights shall be provided through:

1) recognition of a right;

2) restoration of the situation that existed before the violation of a right;

3) preventing the activities that violated the right or created a threat of a violation;

4) giving effect to the consequences of the lack of validity of a void transaction;

5) recognising a transaction which has been disputed as invalid and giving effect to the consequences of its lack of validity;

6) declaring an act of a State body or a local municipality invalid ;

7) the non-application by a court of an act of a State body or of a local municipality that contradicts a statute;

8) protecting one ’ s own rights;

9) compelling specific performance of an obligation;

10) compensating for damage;

11) levying a fine;

12) terminating or amending the legal relationship;

13) other means provided for by law. ”

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 that he was deprived of his property, namely the paintings, by means of fabricated criminal proceedings and in total disregard of procedural guarantees.

2. The applicant also complains under Articles 6 and 13 of the Convention that the first set of civil proceedings was unreasonably lengthy and that he did not have any remedy against the delays in those proceedings. He also complains that as a result of the denial of justice by the domestic courts he was deprived of effective access to a court and the right to an effective remedy concerning his claims for recognition of and compensation for a violation of his prop erty rights by the NAGA from 13 July 2011 to 29 September 2011.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1? In particular, did the seizure of the applicant ’ s property, namely the paintings September and Morning in Sevan , impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?

2. Was the length of the civil proceedings instituted by the applicant on 20 August 2009 in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint about the length of the civi l proceedings under Article 6 § 1, as required by Article 13 of the Convention?

4. As regards the third set of civil proceedings, did the applicant have effective access to a court in respect of his civil claim concerning the acknowledgement of a violation of his property rights and compensation for damages sustained, as required by Article 6 § 1 of the Convention?