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THIRD
SECTION
CASE OF HOVHANNISYAN AND SHIROYAN v. ARMENIA
(Application
no. 5065/06)
JUDGMENT
(Just
satisfaction)
STRASBOURG
15
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Hovhannisyan and Shiroyan v. Armenia,
The
European Court of Human Rights (Third Section),
sitting as a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta
Ziemele,
Luis López Guerra,
Mihai
Poalelungi,
Kristina Pardalos, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 18 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5065/06) against the Republic
of Armenia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by three Armenian nationals,
Mr Hovhannes Hovhannisyan, Ms Astghik Hovhannisyan and
Ms Diana Shiroyan (“the applicants”), on 17
January 2006.
- In
a judgment delivered on 20 July 2010 (“the principal
judgment”), the Court held that deprivation of the applicants’
possessions had not been compatible with the principle of lawfulness
and that, consequently, there had been a violation of Article 1 of
Protocol No. 1 (see Hovhannisyan and Shiroyan v. Armenia, no.
5065/06, §§ 40-47, 20 July 2010).
- Under
Article 41 of the Convention the applicants, who
enjoyed a right of use in respect of the expropriated flat, each
sought pecuniary damages of 7,560,000 Armenian drams (AMD) which,
according to the applicable exchange rate, was equivalent to
16,666.30 euros (EUR). They also sought non-pecuniary damages of a
total of EUR 30,000 and the applicant Hovhannes Hovhannisyan sought
costs and expenses.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicants to submit, within
three months from the date on which the judgment became final in
accordance with Article 44 § 2 of the Convention,
their written observations on that issue and, in particular, to
notify the Court of any agreement they might reach (ibid., § 57
and point 4 (a) and (b) of the operative provisions).
- The
applicants and the Government each filed
observations.
THE LAW
6. Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
(a) The parties’ submissions
- The
applicants maintained their claim. They alleged that they were unable
to obtain any information from public authorities necessary for the
effective presentation of their claims for pecuniary damage, because
of public officials having economic interests in the construction
projects and therefore blocking any access to the relevant official
information, namely the information concerning real estate prices in
the centre of Yerevan.
- In view of the above, the applicants argued that the
value of their right of use was to be calculated using the method of
capitalisation of income and by applying the formula prescribed by
the amended Article 225 of the Civil Code, which – following
the circumstances of the present case – introduced a new method
of calculation of the amount of compensation for termination of the
right of use (see Minasyan and Semerjyan v. Armenia, no.
27651/05, § 40, 23 June 2009). Based on such a calculation,
the applicants each claimed AMD 7,560,000 in respect of pecuniary
damage which, according to the applicable exchange rate, was
equivalent to EUR 16,666.30.
- The Government claimed that the formula suggested by
the applicants for the calculation of pecuniary damage was not
applicable to their case, because the amendments to Article 225 of
the Civil Code, which introduced the formula in question, entered
into force only on 26 November 2005, that is after the
circumstances of the present case. The amount of possible pecuniary
damage was to be calculated based on the characteristics of the flat
and the type of rights enjoyed by the applicants.
(b) The Court’s assessment
- The Court has held on a number of occasions that a
judgment in which it finds a breach imposes on the respondent State a
legal obligation to put an end to the breach and make reparation for
its consequences in such a way as to restore as far as possible the
situation existing before the breach (see Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI).
The Contracting States that are parties to a case are in principle
free to choose the means whereby they will comply with a judgment in
which the Court has found a breach. This discretion as to the manner
of execution of a judgment reflects the freedom of choice attached to
the primary obligation of the Contracting States under the Convention
to secure the rights and freedoms guaranteed (Article 1). If the
nature of the violation allows of restitutio in integrum it is
the duty of the State held liable to effect it, the Court having
neither the power nor the practical possibility of doing so itself.
If, however, national law does not allow – or allows only
partial – reparation to be made for the consequences of the
breach, Article 41 empowers the Court to afford the injured
party such satisfaction as appears to it to be appropriate (see
Brumărescu v. Romania (just satisfaction) [GC],
no. 28342/95, § 20, ECHR 2001-I).
- In
the present case, a violation of Article 1 of Protocol No. 1 was
found on the ground that the applicants’ right of use in
respect of the flat was terminated with reliance on legal rules which
were not applicable to their case. Such termination was found to be
arbitrary and unlawful (see Hovhannisyan and Shiroyan, cited
above, § 45). The
Court notes that no restitution in integrum is possible due to
the demolition of the flat. Consequently, it considers that an award
for pecuniary damage must be made.
- The
Court agrees with the Government that the calculation of the
pecuniary damage should not be based on the formula prescribed by the
amended Article 225 of the Civil Code, since these provisions were
not in force at the material time. According to Article 225 of the
Civil Code as in force at the material time, the value of the right
of use was equivalent to the market value of a corresponding share in
a flat in whose respect such right was enjoyed (see also Minasyan
and Semerjyan v. Armenia (just satisfaction), no. 27651/05, §
20, 7 June 2011).
- The
applicants in the present case jointly enjoyed a right of use in
respect of 33.8 sq. m of the expropriated flat which in total
measured 66.8 sq. m. No compensation, however, was paid to them
for their share in the flat, but only special financial assistance as
prescribed by the relevant governmental decree (see Hovhannisyan
and Shiroyan, cited above, §§ 9, 14 and 26-28). At the
same time, since the expropriated flat was demolished and no longer
exists, it is impossible to calculate precisely the value of the
applicants’ share. Therefore, the assessment of the pecuniary
damage will have to be made on an equitable basis. Having regard to
the relevant principles established in its case-law, the Court
considers that the most appropriate and fair solution would be to
award the applicants the probable value of their share in the flat at
the material time converted to current value to offset the effects of
inflation.
- The
Court notes that it transpires from the contract signed on
16 June 2005 between K.H., the applicants’ family
member who was the owner of the flat, and the State, according to
which K.H. agreed to cede the flat to the State in exchange for
another flat, that the flat was valued at the material time at AMD
10,285,923. Bearing in mind this information and making an estimate
based on all the materials at its disposal, the Court assesses the
amount of the pecuniary damage at EUR 12,500. The Court considers
that this amount must be awarded to the applicants jointly.
2. Non-pecuniary damage
- The
applicants further claimed EUR 10,000 each in respect of
non-pecuniary damage, alleging that they had suffered feelings of
frustration and helplessness as a result of unlawful expropriation
and becoming homeless.
- The
Government claimed that the applicants had failed to prove that they
had suffered non-pecuniary damage and that there was a causal link
between the violation found and the alleged non-pecuniary damage.
- The
Court considers that the feelings of powerlessness and frustration
arising from the unlawful deprivation of their possessions has caused
the applicants non-pecuniary damage that should be compensated in an
appropriate manner. Ruling on an equitable basis, as required by
Article 41 of the Convention, it decides to award EUR 2,000 to
each of the applicants under this head, or EUR 6,000 in total.
B. Costs and expenses
18. The
applicant Hovhannes Hovhannisyan also claimed EUR 100 in respect of
postal costs.
19. The
Government argued that the postal receipt from DHL submitted by the
applicnts did not fully reflect this amount. Furthermore, there was
no need for them to use such an expensive postal service.
20. The
Court notes that the applicant Hovhannes Hovhannisyan submitted a
postal receipt for the amount of AMD 23,525 which makes about EUR 45.
It therefore decides to award this amount to the applicant Hovhannes
Hovhannisyan.
C. Default interest
21. The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds
(a) that the respondent State is to pay the
applicants jointly, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 12,500 (twelve thousand five hundred
euros) and EUR 6,000 (six thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non pecuniary
damage respectively, and the applicant Hovhannes Hovhannisyan,
within the same time-limit, EUR 45 (forty-five euros), plus any tax
that may be chargeable, in respect of costs and expenses, to be
converted into Armenian drams at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
2. Dismisses
the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 15 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
