Communicated on 18 March 2014

THIRD SECTION

Application no. 66535/10 Avag GEVORGYAN and others against Armenia lodged on 3 November 2010

STATEMENT OF FACTS

The applicants are twelve Armenian nationals. They are represented before the Court by Mr. K. Mezhlumyan , a lawyer practising in Yerevan. A list of the applicants is set out in the appendix.

A. The circumstances of the case

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

1. Background to the case

On 26 June 2009 the Government adopted Decree no. 944 -N approving the expropriation zones of citizens ’ plots of land situated in the rural community of Halidzor in the Syunik Region to be taken for State needs and changing the category of land use. The plot s of land belonging to the applicant s were listed among the units of land falling within these expropriation zones.

2. Administrative p roceedings instituted by the applicants seeking to annul Government Decree no. 944-N

On an unspecified date the applicants lodged a claim with the Administrative Court seeking to annul Decree no. 944-N. They alleged, inter alia, that the Decree did not comply with the requirements of the Law on Alienation of Property for the needs of Society and the State and violated their rights under Article 1 of Protocol No. 1 to the Convention.

On 25 February 2010 the applicants received a letter from the Administrative Court stating that the examination of their claim would be conducted via written proceedings, in accordance with Article 138 of the Administrative Procedure Code. It further stated that the delivery of the judicial act was to take place on 1 March 2010.

On 1 March 2010 the applicants submitted a written request to the Administrative Court asking for a public oral hearing of their claim. They argued, in particular, that the right to a public hearing was guaranteed by Article 19 of the Constitution and Article 6 of the Convention and that these provisions had direct application in the domestic legal system according to Article 6 of the Constitution. They further argued that as a result of the absence of public examination of their case and the eventual delivery of the decision on the merits, their rights under the said provisions were violated. They also complained about having been deprived of the possibility to submit evidence in support of their claim because of the way the proceedings were conducted.

By its judgment delivered the same day, the Administrative Court rejected the applicants ’ claim on the merits and dismissed their request to hold a public hearing. In doing so, it stated that it did not consider it necessary to apply the exception under Article 138 of the Administrative Procedure Code by carrying out oral proceedings since the applicants ’ case was not high profile and that would not contribute to the speedy examination of the circumstances of the case since the parties had submitted the documents at their disposal.

On 1 April 2010 the applicants lodged an appeal on points of law. They argued, inter alia , that no public hearing had been held in their case and they had merely been notified about the date and the place of the delivery of the decision on the merits. They complained about the fact that, apart from the delivery of the judgment, no hearings had been held where they could present their arguments in support of their claims and submit additional evidence. The applicants argued that the Administrative Court had confused two different concepts: public hearing and oral hearing, the first one being a fundamental principle enshrined in the Constitution which could be derogated from only in exceptional circumstances envisaged by the Constitution and the Convention. They submitted that no such circumstances existed in their case and therefore the refusal to hold a public hearing had violated their rights under Article 19 of the Constitution and Article 6 of the Convention.

On 5 May 2010 the Court of Cassation declared the applicants ’ appeal on points of law inadmissible for lack of merit by confirming the findings of the lower court as to the merits. As to the applicants ’ complaint concerning the lack of a public hearing, the Court of Cassation stated that, given its procedural nature, this complaint was not subject to review in accordance with paragraph 1 of Article 141 of the Code of Administrative Procedure. At the same time the Court of Cassation made a reference to the case-law of the Court in relation to the requirements of Article 6 § 1 as regards the right to a public hearing.

B. Relevant domestic law and practice

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

According to Article 6 the Constitution has supreme legal force, and its norms apply directly. International treaties are an integral part of the legal system of the Republic of Armenia. If ratified international treaties define norms other than those provided for by law, such norms shall apply.

According to Article 19, everyone has the right to a public hearing of his case by an independent and impartial court within a reasonable time, in conditions of equality and with respect for all fair trial requirements, in order to have his violated rights restored, as well as the validity of the charge against him determined.

2. The Code of Administrative Procedure (in force from 2008 )

According to Article 135 the Administrative Court has jurisdiction over disputes concerning the compliance of Government decisions with normative acts having higher legal force (except the Constitution).

According to Article 138 the Administrative Court carries out written proceedings in cases envisaged by Article 135 with the exception of those cases where, in the court ’ s view, the given case has become high profile or where oral examination will contribute to the speedy discovery of the circumstances of the case.

According to Article 141 paragraph 1 (as in force at the material time) appeal against the decisions of the administrative court in cases concerning disputes over lawfulness of normative legal acts lies to the Court of Cassation only on the ground of violations of substantive law.

3. The decision of the Constitutional Court of 11 April 20 12 on the Conformity of Article 138 of the Code of Administrative Procedure with the Constitution, adopted on the basis of an application lodged by Shavarsh Mkrtchyan and others ( ՀՀ սահմանադրական դատարանի 2012թ. ապրիլի 11-ի որոշումը քաղաքացի Շավարշ Մկրտչյանի և այլոց դիմումի հիման վրա ՝ ՀՀ վարչական դատավարության օրենսգրքի 138-րդ հոդվածի ՝ ՀՀ սահմանադրությանը համապատասխանության հարցը որոշելու վերաբերյալ )

The Constitutional Court found Article 138 of the Code of Administrative Procedure to be per se compatible with the Constitution pointing out, however, a legal vacuum in the administrative procedure as regards the absence of a clear procedure for conducting written proceedings. The Constitutional Court stated that in circumstances where no precise rules of written proceedings were envisaged by the legislation, absolute discretion was left to the court in deciding the ways in which the parties could exercise their procedural rights. Also, t he Constitutional Court referred to the need to implement the nec essary legislative changes to ensure the protection of parties ’ procedural rights , particularly as regards the procedure and time ‑ limits for submission of documents, additional evidence and the duties of the court in relation to organis ation of the correspondence between the parties on the one hand and between the court and the parties on the other hand.

COMPLAINT S

The applicants complain under Article 6 § 1 of the Convention that they did not have a public hearing before the Administrative Court . They further complain under the same Article that the Court of Cassation did not address their complaint about the lack of a public hearing since, by virtue of paragraph 1 of Article 141 of the Code of Administrative Procedure, it was precluded from examining complaints concerning procedural violations.

QUESTIONs TO THE PARTIES

Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular:

a) was the refusal of the Administrative Court to hold a public hearing in the applicants ’ case compatible with the requirements of this Article?

b) is the lack of regulation of written proceedings in administrative cases compatible with the requirements of this Article?

c) h as there been a violation of the applicants ’ right to effective access to court in view of the fact that the Court of Cassation refused to address their complaint about the lack of a public hearing before the Administrative Court?

Appendix