THIRD SECTION

Application no. 62356/09 Karen POGHOSYAN against Armenia lodged on 18 November 2009

STATEMENT OF FACTS

The applicant, Mr Karen Poghosyan , is an Armenian national who was born in 1969 and lives in Yerevan. He is represented before the Court by Mr H. Alumyan , 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.

In 1991 the applicant constructed a building measuring 500 sq. m on a 1000 sq. m plot of land situated in Yerevan, without permission. According to the applicant there were no property rights registered in respect of that land, nor was it being used by anyone.

In 2001 the applicant lodged an acquisitive prescription claim with the Shengavit District Court seeking recognition of his ownership rights in respect of that building and his right of use in respect of the plot of land.

By judgment of 8 June 2001 the District Court recognised the applicant ’ s ownership rights in respect of the building. By the same judgment the applicant was granted the right to lease the land for 99 years.

No appeal was lodged and the judgment became final and irreversible since it could no longer be challenged by ordinary appeal.

On 20 May 2005, relying on the relevant provisions of the Land Code, the applicant paid the price for the land and eventually gained ownership rights in respect of it as well.

According to the applicant, he paid all the taxes and duties due on the building and the plot of land.

In 2008 а topographic examination of the land was carried out by the Yerevan Municipality. The relevant diagram mentioned the applicant as the owner of the land in question.

On 7 May 2009 the Deputy Prosecutor General lodged an appeal against the judgment of 8 June 2001 seeking to annul the applicant ’ s ownership rights in respect of the building and the land. The Deputy Prosecutor General also requested the Court of Appeal to restore the time-limit for lodging such an appeal. In this respect, he stated that the Mayor of Yerevan had had no possibility to lodge such an appeal, since he had not been involved in the civil proceedings, nor had he been notified of the judgment of 8 June 2001.

On 18 May 2009 the Mayor of Yerevan himself also lodged an appeal against the judgment of 8 June 2001, in which he requested that the missed time limit for lodging such an appeal be restored, on the ground that he had been notified for the first time of the judgment of the District Court by letter of the head of the Erebuni branch of the State Real Estate Agency dated 24 February 2009.

According to the applicant, neither the Deputy Prosecutor General nor the Mayor of Yerevan indicated in their appeals any new circumstances that had not existed on 8 June 2001, when the judgment of the District Court had been adopted.

On 18 July 2009 the Civil Court of Appeal granted the appeals of the Deputy Prosecutor General and the Mayor of Yerevan and quashed the judgment of 8 June 2001. The Court of Appeal in particular dismissed the applicant ’ s claim to acquire ownership rights in respect of the construction and right to use the land.

The applicant lodged an appeal on points of law.

On 9 September 2009 the Court of Cassation decided to return the appeal, that is, to declare it inadmissible.

B. Relevant domestic law

1. The Civil Code

According to Article 178 (1), as in force at the material time, property is ownerless if it does not have an owner or if its owner is unknown or if its owner has renounced the right of ownership for it.

According to Article 178 (3), as in force at the material time, the right of ownership to ownerless immovable property may be acquired by virtue of acquisitive prescription (Article 187).

According to Article 178 (4), as in force at the material time, the basis and procedure for declaration of the right of ownership to ownerless property is established by the Civil Procedure Code of the Republic of Armenia.

According to Article 187, a citizen or legal person, who is not the owner of immovable property but who has in good faith, openly, and uninterruptedly possessed property as his own for ten years, shall acquire ownership of this property (acquisitive prescription).

2. The Civil Code of Procedure

According to Article 207 (5), persons who were not parties to the proceedings but whose rights and obligations were affected by the judicial act on the merits of the case can bring an appeal within three months starting from the day they knew or should have known about the delivery of that judgment, except when twenty years have passed since the judgment became final.

According to Article 207 (6), an appeal after the expiry of time limits prescribed in paragraphs 1, 2, 3 and 5 can be admitted by the court if a request for restoration of term has been submitted and subse quently granted by the court.

According to Article 207 (7), appeals against judgments of first instance courts which have entered into force can be admitted for consideration in exceptional circumstances when, during the previous examination of the case, substantive or procedural errors have taken place because of which the given judgment impairs the very essence of administration of justice or there exist newly disc overed or new circumstances.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the decision of the Civil Court of Appeal of 18 July 2009, which set aside a final judgment in his favour, violated the principle of legal certainty.

2. The applicant lastly complains under Article 1 of Protocol No. 1 that by quashing the judgment of 8 June 2001 the domestic courts deprived him of his property.

QUESTION S TO THE PARTIES

1 . Was there a violation of Article 6 § 1 of the Convention in the case, in that the judgment of 8 June 2001 was quashed by the Court of Appeal on 18 July 2009? Did the Court of Appeal provide sufficient reasons to restore the time-limit for lodging an appeal against the judgment of 8 June 2001?

2 . Did the quashing of the judgment of 8 June 2001constitute an interference with the applicant ’ s right to the peaceful enjoyment of his possessions? If so, was such interference justified in terms of Article 1 of Protocol No. 1?