Communicated on 19 May 2014

THIRD SECTION

Application no. 42588/10 Babken TAMRAZYAN against Armenia lodged on 21 July 2010

STATEMENT OF FACTS

The applicant, Mr Babken Tamrazyan , is an Armenian national who was born in 1931 and lives in Teghut village. He is represented before the Court by Ms A. Yesayan , a lawyer practising in Yerevan, and Mr A. Ghazaryan , a non-practising lawyer.

A. The circumstances of the case

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

1 .ºº Background to the case

For about twenty-three years, from 1986 until 2009, the applicant had been in possession of a plot of land measuring about 1,300 sq. m adjacent to Teghut village in the Tavoush region. He had put up a fence and a ’ gardener ’ s house ’ therein, planted fruit trees and made the necessary arrangements for water supply. According to the applicant, the land in question measured 1,294 sq. m. However, in the majority of official documents its size is stated to be 1,300 sq. m.

Teghut village was previously situated within the administrative boundaries of Haghartsin village (formerly known as Kuybishev ). From 1986 until 1990 the land was registered in the applicant ’ s name according to the Kuybishev collective farms register ( Կույբիշևի սովխոզի տնտեսությունների գրանցման մատյան ). In 1994 Teghut village was separated from Haghartsin , becoming a separate administrative unit. However, the plot of land in the applicant ’ s possession was not included within the administrative boundaries of either Haghartsin or Teghut .

From 1995 until 2007 (except for 1998 and 1999) the applicant paid rent for the use of the land to the community administration of Teghut which regularly transferred the money paid to the State budget. It appears that this was done because the land was adjacent to Teghut village and the applicant was resident there.

2. ºº The applicant ’ s dispossession of the land

In April 2008 the applicant was informed that a year before, in April 2007, the Tavoush Regional Administration ( Տավուշի մարզպետարան ) had sold the plot of land in question to a third person, A.H., at public auction.

By a letter of 3 February 2009 the Dilijan territorial division of the State Committee of the Real Estate Registry ( Անշարժ գույքի կադաստրի պետական կոմիտեի Դիլիջանի տարածքային ստորաբաժանում ) informed the applicant that on 23 April 2007 A.H. had registered his title in respect of the land. The letter further referred, inter alia , to an announcement in the newspaper and the decision of the Governor of Tavoush Region ( Տավուշի մարզպետ – “the Governor”) of 27 March 2007 about alienation of land to A.H. by public auction.

The applicant subsequently found out that the announcement referred to in the above letter had been placed in the Republic of Armenia newspaper issue of 21 February 2007. The announcement stated, in particular, that on 20 March of the same year the Tavoush Regional Administration organised a public auction for the sale of a plot of land situated within the administrative boundaries of the region. The plot of land was stated to measure 1,394 sq. m.

According to the applicant, he managed to obtain a copy of the Governor ’ s decision of 27 March 2007 only in 2009. This decision stated that A.H. was the winner of the auction of 20 March 2007 and that the plot of land was to be sold to him. Accordingly, on 3 April 2007 the Tavoush Regional Administration had concluded a contract of sale of land with A.H.

3. ºº Proceedings against the alienation of the land

On 21 April 2009 the applicant lodged a claim with the Administrative Court ( ՀՀ վարչական դատարան ) seeking to have the sale of the plot of land by the Governor and the subsequent registration of A.H. ’ s title annulled and oblige the Governor to conclude with him an agreement on direct sale of the land.

In his claim the applicant submitted, inter alia , that since 1986 he had been in possession of the pl ot of land measuring 1,300 sq. m adjacent to Teghut village where he had made significant improvements over the years. Given that, albeit without legal registration, he had used the State land continuously, openly and in good faith for more than ten years, he had thus obtained a pre-emptive right to acquire this property. In this regard the applicant relied on Articles 65, 66, 67 and 72 of the Land Code and the case-law of the Court of Cassation, in particular its decision no. 3-357 of 30 March 2007 stating the criteria for acquisition of State and community property by virtue of adverse possession.

On 8 July 2009 the Administrative Court granted the applicant ’ s claims in their entirety. In doing so, the court found it substantiated that from at least 1995 until the decision of the Governor to sell the plot of land by public auction, the applicant had for more than ten years been in possession of it continuously, openly and in good faith. Relying on paragraph 2 of Article 72 of the Land Code, the court con cluded that the applicant had a pre-emptive right to acquire the property in dispute. The court further concluded that contrary to the requirements of Article 66 of the Land Code, the Governor had authorised the sale of the land at public auction while that land was subject to direct sale to a person having a pre-emptive right to acquire it. Finally, the court referred to the decision no. 3-357 of the Court of Cassation of 30 March 2007 to state that for recognition of the existence of a pre-emptive right to acquire property, the fact that a person had been in possession of a property continuously, openly and in good faith for ten years prevailed over evidence of the existence of ownership rights of another person in respect of that property.

A.H. lodged an appeal on points of law. He argued, in particular, that in the course of the proceedings it had not been substantiated that the applicant had the right of use in respect of the land and that the Governor had the authority to alienate it to a third person, to him in this particular case, if he wished.

In his reply the applicant argued, inter alia , that the plot of land in question was subject to direct sal e to him as the person having a pre ‑ emptive right to acquire it and that accordingly the Governor ’ s decision to alienate it by auction had been unlawful. The applicant also submitted that he met all the requirements of Article 72 § 2 of the Land Code and those of the case-law of the Court of Cassation, in particular those set out in its decision no. 3-357 of 30 Mar ch 2007, to claim that he had a pre-emptive right to acquire the land in question by virtue of adverse possession.

On 2 April 2010 the Court of Cassation ( ՀՀ վճռաբեկ դատարան ) quashed the judgment of the Administrative Court and rejected the applicant ’ s claims. The Court of Cassation stated in particular:

... ” the fact that ... [the applicant] has paid rent to the community of Teghut cannot be essential for the present case since the plot of land in question is not situated within the administrative boundaries of Teghut community, therefore the fact of payment of rent to Teghut community cannot serve to substantiate the fact of having been in possession of the plot of land in a continuous and open manner and in good faith for more than ten years.

According to paragraph 3 of Article 72 of the Land Code, the right to property by virtue of adverse possession in respect of a plot of land owned by another person is regulated by the Civil Code .

According to Article 187 § 1 the citizen or the legal entity who is not the owner of the real estate but has possessed it as his own property continuously, openly and in good faith for ten years, acquires a right of ownership in respect of that property (adverse possession).

It follows from the examination of the said provision that Article 187 of the Civil Code is not applicable to land owned by the State and the communities (See Grigor Khachatryan v. Tamo Tamoyan , ... the decision of the Court of Cassation no. 3-153 (VD) of 27 March 2007). ”

B. Relevant domestic law and practice

1. ºº The Land Code (in force from 15 June 2001)

Citizens and legal entities may acquire rights in respect of plots of land and their rights of use of plots of land may be restricted by virtue of, inter alia , adverse possession (Article 51).

Land which is not owned by citizens, legal entities and communities is the property of the State (Article 55). Plots of land owned by the State can be alienated via donation of the right of ownership, direct sale and auction (Article 63).

Article 64 sets out the cases for alienation of plots of land owned by the State and the communities through donation of the right of ownership and Article 65 sets out the relevant procedure.

Plots of land owned by the State and the communities are subject to direct sale to persons having a pre-emptive right of acquisition under the law (Article 66 § 1 (4)). They are sold at auction with the exception of cases set out in Articles 65 and 66 (Article 67 § 1 ).

According to Article 72 § 2 citizens and legal entities who, although without legal recognition of their rights, have used lands owned by the State and the communities for more than ten years continuously, openly and in good faith, have a pre-emptive right to acquire plots from those lands if the acquisition of the plots of land as property is not forbidden.

According to Article 72 § 3 the right to property by virtue of adverse possession in respect of a plot of land owned by another person, that is, not the State, is regulated by the Civil Code.

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

According to Article 187 § 1 the citizen or the legal entity who is not the owner of the real estate but has possessed it as his own property continuously, openly and in good faith for ten years, acquires a right of ownership in respect of that property (adverse possession).

3. ºº Decision no. 3-1835 (A) of the Civil Chamber of the Court of Cassation of 12 December 2007

Referring to Article 72 of the Land Code, the Court of Cassation noted that issues relating to adverse possession of land owned by the State and the communities are regulated by the Land Code while issues relating to adverse possession of plots of land owned by other persons are regulated by the Civil Code.

In this case the Court of Cassation concluded that the lower court had erred in applying Article 187 of the Civil Code given that the plot of land in dispute was the property of the State and therefore the provisions of Article 72 of the Land Code should have been applied.

4. ºº Decision no. 3-357 of the Civil Chamber of the Court of Cassation of 30 March 2007

The Court of Cassation stated that for re cognition of the existence of a pre-emptive right to acquire property by virtue of adverse possession, the fact that a person had been in possession of a property for ten years continuously, openly and in good faith prevailed over evidence of the existence of ownership rights of another person in respect of that property.

The Court of Cassation gave an interpretation of Article 72 § 2 of the Land Code by stating that the pre-emptive right to acquire plots of land by adverse possession derives from the following necessary conditions:

(a) the person has been in possession of land owned by the State for more than ten years continuously, in an open manner and in good faith,

(b) the acquisition of title to the given plots of land is not prohibited,

(c) they are being sold or donated for use for the same purpose or if the plots of land meet the requirements of Article 64 § 2 of the Land Code.

5. ºº Decision no. 3-153 of the Court of Cassation of 27 March 2007

The case concerned a property-related dispute between two private parties. The Court of Cassation concluded that even in the absence of a sale contract certified by a notary, the buyer who had been in possession of the land for more than ten years continuously, in an open manner and in good faith, had title to the property. The Court of Cassation also reiterated that in each case the court must state the factual and legal grounds for its judgment. The legal justification of a judgment is the choice and application of a substantive legal norm or of norms in respect of the established facts and legal issues. Not only should the provision of a normative act that contains the applicable norm be indicated in a judgment, but the reason for applying that particular norm should also be given.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that in its decision of 2 April 2010 the Court of Cassation failed to provide any reasoning for not applying the `relevant provisions of the Land Code in the circumstances where it had been established that the land in question was the property of the State and that it failed to state in general which legal norm was applicable to the case and for what reason. The applicant further complains under the same provision taken together with Article 13 of the Convention that the Court of Cassation failed to address the important arguments raised by him that were essential for the examination of the case and that its decision was inconsistent with its own case-law.

2 . The applicant complains under Article 1 of Protocol No. 1 to the Convention that his right to peaceful enjoyment of his possessions was unlawfully interfered with since the plot of land which had been in his possession for twenty-three years was sold by auction to a third person in the circumstances where he had a pre-emptive right under the law to acquire it by virtue of adverse possession.

QUESTIONS TO THE PARTIES

1. Was the reasoning contained in the decision of 2 April 2010 of the Court of Cassation sufficient to comply with the obligation of the courts under Article 6 § 1 of the Convention to give reasons for their judgments? In particular:

( a) did the decision state the reasons for not applying the provisions of the Land Code to the applicant ’ s case or state which legal provisions were applicable instead?

( b ) did the Court of Cassation address the essential issues raised by the applicant in his reply to the appeal on points of law against the judgment of the Administrative Court of 8 July 2009?

( c) did the decision state the reasons why certain case-law of the Court of Cassation , in particular its decisions no. 3-1835 (A) of 12 December 2007 and no. 3-357 of 30 March 2007 , was not found to be applicable to the applicant ’ s case ?

2. Did the sale by auction of the plot of land in question amount to an interference with the applicant ’ s right to peaceful enjoyment of his possessions as guaranteed under Article 1 of Protocol No. 1 to the Convention? If so, was the interference lawful for the purposes of that Article, did it pursue a legitimate aim in the general interest and did it strike a fair balance between the demands of the general interest and the requirements of the protection of the applicant ’ s rights guaranteed by this Article?