Communicated on 18 March 2014

THIRD SECTION

Application no. 5444/10 Volodya PARSADANYAN and others against Armenia lodged on 19 January 2010

STATEMENT OF FACTS

The applicants Mr. Volodya Parsadanyan , Mrs. Seda Parsadanyan and Ms. Lusine Parsadanyan are Armenian nationals born in 1933, 1940 and 1975 respectively . They are represented before the Court by Mr K. Tumanyan , a lawyer practising in Vanadzor .

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

In the 1970s a copper-molybdenum deposit ( ‘ Teghout ’ ) was discovered about four and six km from the villages of Teghout and Shnogh respectively, in the Lori Region .

In 2001 a private company, Armenian Copper Programme CJSC, was granted a mining licence for the exploitation of the Teghout copper ‑ molybdenum deposit for a period of twenty-five years.

On 1 November 2007 the Government adopted Decree no. 1279-N approving the expropriation zones of territories situated within the administrative boundaries of the rural communities of Shnogh and Teghout in the Lori Region to be taken for State needs and changing the category of land use. According to the Decree, Armenian Copper Programme CJSC or Teghout CJSC, founded by the former for the implementation of the Teghout copper-molybdenum deposit exploitation project, were to acquire the units of land listed in its annexes. The plot of land belonging to the applicant s was listed among the units of land falling within these expropriation zones.

2. Proceedings concerning the expropriation of the applicants ’ property

The applicants, a family of three, live in Teghout village and earn their living from agriculture. They jointly owned a plot of arable land in the village measuring 0.430 ha. The land was used for growing crops for the family, gardeni ng and feeding their livestock.

On an unspecified date Teghout CJSC addressed a letter to the applicants containing an offer to buy their plot of land for AMD 231,000 (approximately EUR 500) plus an additional 15% as required by law, making the final offer AMD 265,650 (approximately EUR 578).

The applicants did not reply to the offer, not being satisfied with the amount of compensation. It appears that they were unable to obtain an evaluation of their property by another company. They claim that no other evaluation company was willing to make an independent evaluation of the market value of their land.

On 12 May 2008 Teghout CJSC lodged a claim against the applicants, seeking to oblige them to sign the agreement on the taking of their property for State needs. The company based its claim, inter alia , on the evaluation report prepared at its request by Oliver Group LLC, a licensed evaluation company. According to the report the market value of the applicants ’ plot of land was estimated at AMD 231,000 (approximately EUR 500) .

In the proceedings before the Lori Regional Court the applicants argued that the market value of their land had been underestimated since the lowest market prices had been considered during the evaluation while several plots of land had been acquired for much higher prices. They also argued that no account had been taken of the presence of fruit trees and that the evaluation report erroneously stated that their plot of land did not have a water supply whereas it had actually been cut off because of the plaintiff ’ s activities on the property.

In the course of the proceedings Teghout CJSC submitted another evaluation report of the applicants ’ property stating that Oliver Group LLC had prepared a corrected report according to which the market value of the land was AMD 262,000 (approximately EUR 570). The final amount of compensation with the additional 15% would thus be equal to AMD 301,300 (approximately EUR 655).

On 6 October 2008 the Regional Court granted Teghout CJSC ’ s claim, awarding the applicants a total of AMD 301,300 (approximately EUR 655) in compensation.

The applicants lodged an appeal complaining that they had not been duly notified about the dates and times of the rescheduled hearings.

On 29 January 2009 the Civil Court of Appeal quashed the Regional Court ’ s judgment and remitted the case for a fresh examination.

On 27 April 2009 the applicants ’ counsel requested the Regional Court to assign a forensic expert examination to determine the market value of the applicants ’ plot of land.

On 2 June 2009 the Regional Court granted Teghout CJSC ’ s claim finding, inter alia , that the evaluation reports prepared by Oliver Group LLC were lawful and acceptable evidence to determine the market value of the applicants ’ property to be taken for State needs. The Regional Court dismissed counsel ’ s request and awarded the applicants AMD 301,300 (approximately EUR 655) in equal shares as compensation.

Counsel lodged an appeal claiming, inter alia , that the amount of compensation was not adequate. He argued that the Regional Court had accepte d the reports submitted by the applicants ’ opponent as established proof of the market value of their property and that it had refused to assign a forensic examination without any grounds. He further argued that the Regional Court should have exercised its statutory discretion to order an expert examination since such a necessity had arisen in the co urse of the proceedings and the applicants had no possibility to provide an alt ernative evaluation themselves.

On 7 August 2009 the Civil Court of Appeal upheld the Regional Court ’ s judgment finding that the latter ’ s decision not to assign a forensic examination was well-grounded since there was no such necessity. The Court of Appeal further found that the amount of compensation had been correctly determined based on the corrected evaluation report prepared by Oliver Group CJSC given that it was the only lawful and acceptable piece of evidence produced in the course of the proceedings.

According to the applicants, the decision of the Court of Appeal was not served on counsel.

On 1 October 2009 counsel applied to the Regional Court with a request to consult the case file. After counsel ’ s request was granted, he made a copy of the Court of Appeal ’ s decision in ord er to lodge a cassation appeal.

On 9 October 2009 counsel lodged an appeal on points of law raising similar complaints to those raised before the Court of Appeal. Counsel also submitted that the Court of Appeal had not duly notified him of the proceedings and had examined the appeal in his absence. Additionally, h e requested to have the missed time-limits for lodging an appeal on points of law restored, explaining that the reason for late submission was the failure of the Court of Appeal to serve on him a copy of the decision of 7 August 2009 although he was the applicants ’ authorised representative in the proceedings.

On 28 October 2009 the Court of Cassation declared the cassation appeal inadmissible as lodged out of time. In doing so, it found that the reasons for late submission advanced by counsel were not justified in view of the fact that the applicants had been served with a copy of the decision in due time.

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 18, everyone shall – for the protection of his or her rights and freedoms – have the right to effective judicial remedies.

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.

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 Code of Civil Procedure (in force from 1999)

According to Article 6, civil proceedings shall be adversarial and shall be conducted with respect for equality of arms.

According to Article 53 § 2, the court shall consider no piece of evidence as already established.

According to Article 60 § 1, in order to clarify issues requiring specialised knowledge which arise during the examination of a case, the court can appoint a forensic examination upon application by a party (parties) or of its own motion.

According to Article 60 § 6, the court warns the expert about criminal liability for submission of an obviously false conclusion.

According to Article 61, the participants in the proceedings are entitled to be present at the forensic examination, save in cases where their presence could hinder the regular work of the expert.

According to Article 221 1 , judicial acts of the Court of Appeal which determine the merits of a case enter into force one month after the moment of pronouncement.

According to Article 229, an appeal on points of law against a judicial act which determines the merits of the case can be lodged prior to the date of entry into force of that act.

3. The Law on Alienation of Property for the needs of Society and the State (in force from 30 December 2006)

According to Article 3 § 1, the constitutional basis for alienation of property for the needs of society and the State is the prevailing public interest.

According to Article 3 § 2, the constitutional requirements for alienation of property for the needs of society and the State are the following:

a) alienation must be carried out in accordance with a procedure prescribed by the law,

b) prior adequate compensation should be provided for property subject to alienation.

According to Article 4 § 1, the public interest must prevail over the interests of the owner of property subject to alienation and alienation of that property must be essential to implementation.

According to Article 4 § 2, the prevailing public interest may pursue, inter alia , the implementation of mining projects having important State or community significance. The aim of securing additional income for the State or community budget is not by itself a prevailing public interest.

According to Article 11 § 1, adequate compensation should be paid to the owner of property subject to alienation. The market value of the property plus an additional 15% is considered to be an adequate amount of compensation.

According to Article 11 § 3 the determination of the market value of real estate and property rights in respect of real estate is carried out in accordance with the procedure set out by the Law on Real Estate Evaluation Activity.

4. The Law on Real Estate Evaluation Activity (as in force at the material time)

According to Article 8, evaluation is obligatory in case of alienation of immovable property for State or community needs.

According to Article 15 § 1 (1), persons engaged in real estate evaluation have the right to use independent methods of real estate evaluation in compliance with the evaluation standard.

5. Government Decree No. 1279-N of 1 November 2007 approving the expropriation zones of certain territories situated within the administrative boundaries of rural communities of Shnogh and Teghout in the Lori Region to be taken for State needs and changing the category of land use ( ՀՀ Կառավարության 2007 թ . ն ոյեմբերի 1- ի թիվ 1279- Ն որոշումը Հայաստանի Հանրապետության Լոռու մարզի Շնողի և Թեղուտի գյուղական համայնքների վարչական սահմաններում որոշ տարածքներում բացառիկ ՝ գերակա հանրային շահ ճանաչելու և հողերի նպատակային նշանակությունը փոփոխելու մասին )

For the purpose of the implementation of the Teghout copper ‑ molybdenum deposit exploitation project, and in the perspective of building and operating a mining plant, the Government decided to approve the expropriation zones of agricultural land situated within the administrative boundaries of the rural communities of Shnogh and Teghout in the Lori Region to be taken for State needs, with a total area of 81. 483 ha. According to the Decree, the public interest in the development of the economy and infrastructure and the interest in higher levels of production and export prevailed over the private interests of the proprietors.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that the right to a fair trial was not respected in their case since the courts regarded the evaluation report submitted by their opponent as established proof of the market value of their property and they had no opportunity to challenge it effectively. In particular, they argue that the courts failed to exercise their statutory discretion to appoint a forensic examination to determine the real market value of the property given that the applicants had not participated in the evaluation process and had been unable to submit their objections.

2. The applicants complain under the same provision, taken together with Article 13 of the Convention, that the Court of Cassation refused to restore the time-limit for lodging an appeal on points of law without taking into account that the Civil Court of Appeal had failed to serve its judgment of 7 August 2009 on counsel, who was therefore deprived of the possibility to lodge the cassation appeal on time.

3. The applicants complain under Article 1 of Protocol No. 1 to the Convention that the deprivation of their property did not satisfy the requirement of lawfulness, did not pursue any public interest and that the amount of compensation awarded was inadequate. In particular, they complain that the law is not sufficiently foreseeable in that it does not specify the criteria for determining the market value of property to be taken for State needs.

QUESTIONS TO THE PARTIES

1. Was the right to a fair trial guaranteed under Article 6 § 1 of the Convention respected in the applicants ’ case? In particular :

a) w ere the applicants afforded a reasonable opportunity to present their case – including evidence – under conditions that did not place them at a substantial disadvantage vis-à-vis their opponent?

b) having regard to the Court of Cassation ’ s refusal to restore the time ‑ limit for lodging an appeal on points of law against the judgment of the Court of Appeal, was the applicants ’ right to effective access to court respected?

2. Was the deprivation of the applicants ’ property compatible with the requirements of Article 1 of Protocol No. 1 to the Convention? In particular:

a) was the deprivation of their property carried out under the conditions provided for by law? In particular, is the Law on Alienation of Property for the Needs of Society and the State sufficiently precise and foreseeable as regards the evaluation of property in case of expropriation?

b) did the deprivation of their property strike a ‘ fair balance ’ between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights? In particular:

i . w ere the means employed proportionate to the aim sough t to be achieved?

ii. d id the applicants bear an ‘ individual and excessive burden ’ due to the manner in which the amount of compensation was determined, given that the sole basis for the assessment of the amount of compensation by the courts was the property evaluation report by the evaluation company Oliver Group LLC?