Communicated on 10 March 2016

FIRST SECTION

Application no. 69936/10 Gayane TADEVOSYAN against Armenia lodged on 25 November 2010

STATEMENT OF FACTS

The applicant, Ms Gayane Tadevosyan , is an Armenian national who was born in 1966 and lives in Yerevan. She is represented before the Court by Ms Z. Danielyan , 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. Background to the case

On 5 October 2001 the Government adopted Decree no. 950 by which it approved the procedure for the taking of plots of land and real estate situated within the alienation zones of Yerevan, their compensation, elaboration of price offers and their realisation .

On 1 August 2002 the Government adopted Decree no. 1151-N by which it approved the alienation zone 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.

A special body, the “Yerevan Construction and Investment Project Implementation Agency” (the Agency), was set up to manage the implementation of the project.

The applicant owned a building measuring 240.2 sq. m. and the right of lease for the underlying plot of land measuring 437.8 sq. m., situated in the centre of Yerevan. This property was included in the alienation zone of the real estate to be taken for State needs. It appears that the applicant had acquired these pieces of property on 17 December 2003 for AMD 1,000,000 (approximately EUR 1,767 at the material time).

2. The alienation of the applicant ’ s property

On 7 September 2004 the applicant signed an agreement with the Agency by which she gave up her property for USD 265,020. The contract also provided for a financial incentive of USD 78,006 to be paid to the applicant. Thus, the final amount of the sale, including the additional 15% required by law, was equal to USD 394,479, out of which the applicant received USD 355,031 since USD 39,447 was levied as income tax.

On 13 January 2006 the Anti-Corruption Department of the Prosecutor General ’ s Office instituted criminal proceedings against the Agency officials for deliberately overestimating the market value of the applicant ’ s property and overpaying her. The applicant testified as a witness in the course of the investigation of the criminal case.

According to the applicant, at some point during the proceedings the head of the Agency demanded that she pay back USD 180,000, otherwise she could be held criminally liable for appropriation of State funds. On 3 February 2006 the applicant transferred AMD 75,820,000 (approximately EUR 133,958) to the Agency ’ s account.

By prosecutor ’ s decision of 28 February 2006 the investigation of the case was terminated for absence of evidence that a crime had been committed. The relevant parts of this decision state the following:

“... it has not been established that [a number of residents of the expropriation zone] had fraudulently misappropriated others ’ property ... and therefore their actions lack corpus delicti .

As a result of the investigation of the criminal case it has not been established that the officials of [the Agency] have failed to perform properly their official duties or have used their official capacity to the detriment of the interests of their service ...”

The applicant subsequently demanded that the Agency return the AMD 75,820,000 paid to its account. On 2 April 2007 she received a reply from the head of the Agency stating that she had transferred the amount in question to the Agency ’ s account without any documentary proof. According to the applicant, she contacted the Agency on two occasions thereafter, demanding the return of money transferred to its account, but received no response.

3. The proceedings concerning restitution and reimbursement of income tax

On 30 October 2007 the applicant lodged a claim with the Kentron and Nork- Marash District Court of Yerevan seeking to recover the money paid back to the Agency, the amount of income tax collected from her and damages for unlawfully keeping her assets. The applicant claimed that she had paid back part of the sales price received since she had been confused as a result of her conversation with the head of the Agency.

In its reply the Agency claimed that by paying back the amount in question, the applicant in fact had accepted that she had been overpaid and for that reason the criminal proceedings had been terminated. The Yerevan Mayor ’ s office, which had been involved in the proceedings, submitted a similar argument to the Agency ’ s.

It appears that at some point during the proceedings the applicant withdrew her claim for damages.

On 16 July 2008 the Civil Court of Yerevan partially granted the applicant ’ s claims. In doing so, it stated that the amount of AMD 75,820,000 was to be returned since there was no legal basis for the Agency to keep that amount, on the ground that the decision to terminate the criminal proceedings confirmed that the applicant had not committed any illegal act.

Upon the Agency ’ s appeal, on 20 October 2008 the Civil Court of Appeal quashed the judgment and remitted the case for a fresh examination on the merits. The decision also stated that the Ministry of Finance should have been involved in the proceedings since the applicant ’ s claims could have implications for the State budget.

On 4 August 2009 the Kentron and Nork- Marash District Court of Yerevan delivered its judgment by which it rejected the applicant ’ s claims. The court stated in particular that there should be a causal link between the damage allegedly suffered and the fault of the person who allegedly caused the damage, and that the claimant bore the burden of proof in this regard.

The applicant lodged an appeal arguing that the court had applied the provisions of law concerning compensation for damages, but that she had withdrawn her claim for damages and had merely demanded the return of her property unlawfully kept by the Agency. She further argued that she had not been charged with any offence in the course of the criminal proceedings; the fact that she had paid the amount in question was confirmed by the payment slip and moreover the Agency had never denied being in possession of her property.

On 4 May 2010 the Civil Court of Appeal rejected the applicant ’ s appeal. The relevant part of the judgment read as follows:

“ Article 1099 § 4 provides that monetary assets and other property given in fulfilment of non-existent obligations are not subject to return as unjust enrichment if the acquirer proves that the person demanding return of the property had knowledge of the absence of an obligation...

As a result of the examination of the materials of the civil case it has been revealed that the claimant returned the amount in question on the basis of [the Agency ’ s] demand which was not based either on the law or ... on a contract. In particular, from the legal point of view the respondent [Agency ’ s] demand to return AMD 75,820,000 had no legal basis and the failure to respect it could not by itself bring about ... negative consequences for the claimant.

... [ the applicant] had no financial obligation towards [the Agency]. The fact that [the applicant] was aware of not having any obligations towards the respondent [Agency] is also supported by the fact that, apart from [the agreement of 7 September 2004], the parties have not concluded any other ... agreements or an agreement to return a sum of money or another agreement in relation to it.

In view of the foregoing, it can be concluded that paragraph 4 of Article 1099 of the Civil Code is fully applicable in the present ...civil case.

As for [the applicant ’ s] argument that [the Agency] informed her that the General Prosecutor ’ s Office was investigating the matters relating to the ... agreement concluded with her as a result of which she had been confused and as a result returned the amount to [the Agency], the Court of Appeal notes in this respect that this argument may serve as an independent legal basis to dispute [the Agency ’ s] actions in judicial proceedings ...”

The applicant lodged an appeal on points of law. She argued that in the course of the proceedings it had not been substantiated that when making the payment she had been aware of the fact that she did not have any obligations towards the Agency, since she had been informed of the contrary, namely that she had been overpaid and that she could be held criminally liable if she did not return the money.

On 21 July 2010 the Court of Cassation declared the appeal inadmissible for lack of merit.

B. Relevant domestic law

1. The Constitution of 1995 (following the amendments introduced on 27 November 2005 with effect from 6 December 2005)

According to Article 31, everyone shall have the right to dispose of, use, manage and bequeath his property in the way he sees fit. No one can be deprived of his property, save by a court in cases prescribed by law. Property can be expropriated for the needs of society and the State only in exceptional cases of paramount public interest, in a procedure prescribed by law and with prior equivalent compensation.

2. The Civil Code (in force from 1 January 1999)

According to Article 132 § 1, monetary assets are objects of the civil law.

According to Article 274, the owner has the right to demand the return of his property from the unlawful possession of another person.

According to Article 1092, the person who has acquired possession of the property (acquirer) of another person (victim) without any legal or contractual basis, has an obligation to return the unlawfully acquired property (unjust enrichment) with the exception of the cases stated in Article 1099 of the Code.

According to Article 1099 § 4, monetary assets and other property given in fulfilment of non-existent obligations are not subject to return as unjust enrichment, if the acquirer proves that the person demanding return of the property had knowledge of the absence of an obligation or provided the property for charitable purposes.

3. Government Decree no. 950 of 5 October 2001 Approving the Procedure for the Taking of Plots of Land and Real Estate Situated within the Alienation Zones of Yerevan, their Compensation, Elaboration of Price Offers and their Realisation ( ՀՀ կառավարության 2001 թ . հոկտեմբերի 5- ի թիվ 950 որոշումը Երևան քաղաքի օտարման գոտիներում գտնվող հողամասերն ու անհշարժ գույքը վերցնելու , փոխհատուցելու , գնայնի առաջարկը ձևավորելու և իրացնելու կարգը հաստատելու մասին )

Paragraph 4 provides that the Yerevan Construction and Investment Project Implementation Agency is responsible for taking the plots of land and real estate, elaboration of price offers to proprietors and for the supervision and implementation of payment of compensation for expropriation of property.

4. Government Decree no. 1151-N of 1 August 2002 Concerning the Implementation of Construction Projects within the Administrative Boundaries of the Kentron District of Yerevan ( ՀՀ կառավարության 2002 թ. օգոստոսի 1-ի թիվ 1151-Ն որոշում Երևանի Կենտրոն թաղային համայնքի վարչական սահմանում կառուցապատման ծրագրերի իրականացման միջոցառումների մասին )

For the purpose of implementation of construction projects in Yerevan, the Government decided to approve the expropriation zones of the real estate (plots of land, buildings and constructions) situated within the administrative boundaries of the Kentron District of Yerevan to be t ak en for the needs of the State, with a total area of 345,000 sq. m.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 to the Convention that she was unlawfully deprived of her monetary assets in the amount of AMD 75,820,000 .

QUESTION TO THE PARTIES

Was the refusal to return the applicant ’ s monetary assets compatible with the requirements of Article 1 of Protocol No. 1 to the Convention? In particular:

- was it carried out under the conditions provided for by law?

- did it pursue a legitimate aim in the public interest?

- were the means employed proportionate to the aim sought to be achieved?