Northern Avenue Legal Analysis

Arman Zrvandyan 2004

24.06.2004
CSI

http://www .csi.am

In 2001 the Government of RA planned to construct Northern Avenue in
Yerevan. For the realisation of this project the Government of the RA made
several decisions approving the area of real assests (sites, houses and
construction) located within the planned area of Northern Avenue in Yerevan
and amortisied for the state needs, as well facilitated establishment of «
Northern Avenue and the Cascade » projects realisation office » governmental
non-profitable organisation wich has been charged for the activities related
to the construction of the Northern Avenue and the Cascade. Morover, in
accordance to the Government decisions N 950 of 05.10.2001 and N 1169-N
14.08.2002 N the organisation was also charged for the whole portfolio in
determination, following it currency adjustment offer and further purchase
of the confiscated sites and real estate in the area of Northern Avenue

It is noteworthy that before the confiscation of individual’s property for
the state needs, the latter should observe particular preconditions
envisaged by the Constitution of the RA, aacting laws and ratified
international agreements; and their ignorance makes the process of the
amortization of the real estate of individualsillegal.

Thus, Article N28 of the Constitution of the RA on confiscation of the
individual’s property either for the state or public needs defines the
following:

“.Confiscation of property for the needs of society and the state may occur
only in exceptional cases with prior full compensation on the basis of the
law. ”

This impleis that before confiscating the property for the needs of the
society and statethe authorities of the RA must observe the following
preconditions in accordance with the Constitution of the RA :

1. Confiscation of the property should serve for the satisfaction of the
needs of the society and the state;
2. Confiscation of property for the needs of society and the state may occur
only in exceptional cases;
3. Confiscation of property should be realized solely on the basis of the
law;
4. The authorities are obliged to provide prior full compensation.

Have the authorities of the RA satisfied the above-mentioned requirements
envisaged in the Constitution and International agreements? In order to give
a proper answer to the question it is necessary to understand how the
authorities should have provided the very guaranties.

The precise answer was given by the Constitutional Court of the RA in its
Decision N SDO-92 (SD) of February 27, 1998, that, while clarifying points
of the above stated article 28 of the Constitution of the RA, declared such
a legal position in which the property of an individual can be confiscated
in accordance to the provisions of the Second part of the Article N28 of the
Constitution of the Republic of Armenia and in case of his disagreement, the
state can terminate the enjoyment of the rights to the property by means of
Accepting Law on that particular property that will substantiate its
explicit importance and significance and define distinctly that the
confiscated property will be used for the needs of the state and the
society. Moreover, the Constitutional Court states that the Government of
the Republic of Armenia cannot establish such procedures of confiscation of
property for the needs of the state and society that will automatically
authorise it with the right for confiscating this type of property.

The National Assembly of the Republic of Armenia has never accepted any Law
on Confiscating the Property in the Area of the Northern Avenue as stated in
the Decision of the Constitutional Court of the RA. Furthermore, the
afore-mentioned decisions of the Government of the RA, that were taken as a
legal basis for the realisation of processes of confiscating the property in
this area, are mere Sub-Constitutional Acts and they can no way be addressed
and treated as “Laws”. Accordingly, the absence of the Law automatically
implies the disregard to the other constitutional requirements, as only in
the Law on the Confiscation of the confiscation-due Property in the area of
the Northern Avenue the Government of the RA could have proven the explicit
importance and significance and define distinctly that the confiscated
property will be used for the needs of the state and the society.

Thus, as the Constitutional norms are put into force immediately and
International Agreements of the RA are superior over the Laws that
contradict them, it goes naturally that the provisions of the latter should
be practised.

In these conditions the decision made by the executive branch of the RA
couldn’t have served as satisfactory legal basis for confiscations of the
individuals’ property.

Furthermore, the Article N1 of the Protocol N1 of the European Convention on
the “Human Rights and Fundamental Freedoms” states the following

Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the
public interest and subject to the conditions provided for by law and by the
general principles of international law.

So, as you can see, the European Convention also foresees restrictions in
the usage of own property, though, the same way as in the Constitution of
the RA, it allows confiscation in the manner of “except in the public
interest” and “subject to the conditions provided for by law” and not by a
Sub-Constitutional Act.

The European Court on Human Rights in its case of Zvolski and Zvolskaya
against Republic of Czech gave the following in its Verdict:
. Article N1 of the Protocol N1 of the Convention requires that any
interference into the right of enjoying possessions of the natural person by
the state authorities must be legal. Moreover, the predominance of the
Right, which is one of the fundamental principles of the democratic society,
is applicable to all the Articles of the Convention.
The law, which serves as a basis for the interference, should correspond to
the relevant provisions of the inter- state Legislation, including
Constitution of the High Agreeing Side (See, point 65 of December 11, 2002
in the Verdict of ECHR on case of Zvolski and Zvolska against Republic of
Czech)

Those preconditions for the deprivation of the property are included,
primarily, to establish control over restrictions towards individual’s
fundamental right of property by the Legislative body and prevent possible
abuse and violations committed in out of the control on behalf of the
Executives.

Summarising the above written, we can conclude that the Confiscation of the
property realised in frames of the project on the Construction of the
Northern Avenue in the RA was not “on the basis of Law” as the National
Assembly has not ever accepted the relevant Law, which is a direct breach of
both the Constitution of the RA and other laws as well as provisions
envisaged in the Article N1 of the Protocol N1 of the European Convention on
Human Rights.