Interview

The Court of Cassation has set a dangerous precedent

09.02.2012

Interview with attorney Karen Mejlumyan

By 848 Decree issued by RA Government on June 29, 2009, the Tatev Monastry and the territory of nearby villages must become "Tatev" tourism center, which will result in alienation of a number of land areas. 12 villagers of Halidzor village of Syunik region however refuse to conclude alienation contracts and want to defend their rights in the court. According to their attorney Karen Mejlumyan there have been many infringements both in the process of issuing the decree and the process of alienation.

According to you, what violations have taken place in the process of issuing Government Decree 828?

I and my clients think that there have been shortcomings and infringements. My clients find the plan of creating the "Tatev" tourism center great, but there is one "but". The lands of these people were taken from them for a little payment. They fixed the price of AMD 80 for one square meter, which is less than the price of one and a half egg. So they took the property of the people and offered them a sum of less than AMD 200.000. Moreover, they did not even take the money, but the buyer illegally trespassed to their land and launched the activities.

The Constitution guarantees primary compensation equal to the market price. So at first they have to make the compensation later on to take the territory and enter it. But there has been no compensation, and that is why he applied to the court. There is the decree of the Constitutional Court (hereinafter CC) about it. The Human rights defender Armen Harutyunyan had applied to the CC. So they entered the territory without any compensation or suggestion and started ruling over it, thus not letting the people do the autumn sowing.

You also turned to the Human rights defender at that time, how did the petition proceed?

At first the petition was accepted, then the defender decided to terminate the questioning of the issue and motivated it that it was a territory for sale, hence it was given to them. But no compensation was made and that was why he had turned to the CC. In fact, he wrote a police-like answer, which was opposite to the CC decree. You wonder why I say a police-like, well, because we got the same answer from the police. The land-owners wrote that someone came and put a fence along their land, trespassed to it, but did not let them enter it and was saying something in Italian threatening to call the police. The police answered the same way: that was a territory for sale and was given to them by a Government decree, so they had nothing to do with it.

Apart from the compensation, what other complaints do the Halidzor residents have?

The most important complaint is the amount of compensation. These people say that the only means of income for a villager is the land, there are no jobs in here. The only work is farming (cultivating the land), keeping livestock, selling the harvest gathered from that land or eating it and living. They do not have any other income. So if the villagers are deprived of their land, they lose every means of earning a living. They do not give enough money to start a business. They cannot do anything with a few hundreds of thousands drams.  At least they had to give money equal to the market price to enable the people to do anything. Both the objective and the plan are good, but when you compare the cost of the plan and the amount of money suggested to those people...

Why do you claim that the Government decree must be recognized as invalid? What violations have taken place?

According to law if within 2 months no offers are made to the owners of territory for sale, then the Government decree along with everything else becomes recognized as invalid. No offers have been made. When we applied to court some offers appeared, like there has been an offer to sell 1 square meter for AMD 80. A suggestion with some price was sent to a few of 12 land-owners. In the court we said that there should have been a market price, an estimation of land price, from where they get that price. They brought the estimation of an organization carried out on February 26, 2010,whereas the offer was sent on November 2009. The organization seeking for profit wrote the amount it wanted- AMD 80, but as the estimation had to be made by the Government decree they ordered to write the same amount. I think that the suggestion and the estimation carried out later on could not totally coincide. This is another infringement.

Another infringement by the government the government changed the state of agricultural lands making them urban lands. The urban lands are more expensive than the agricultural ones. The cost of the lands rose. But the government wrote in its decision to change the state of the lands as soon as the new owner's right is registered that is to say it was done to provide him with additional profits in order to pay the owners less. The aim of the government's decision was to give that organization an opportunity to get profit; they did not have the necessity of that program. And if there was that necessity it means those residents' land were actually more expensive, but the government deprived them of the opportunity to receive a fair market compensation and the lands were valued as agricultural lands.

The range of these infringements continues.

 You presented all those facts to the court, what did the court decide?

We applied to the court; the court refused the action without any public hearing and made an absurd decision. According to the Constitution and the laws, for eminent domain there should be a program on the basis of which lands are alienated for state needs. Here the land is recognized as an eminent domain. The property cannot be recognized as an eminent domain. The property can be alienated with the purpose of eminent domain: a purpose, a program is recognized as eminent domain and is alienated for that purpose. Here they mixed that philosophy, the court summoned us for proclaiming the judicial act without public hearing which obviously contradicts the Constitution which guarantees the right to public hearing.

The Cassation Court refused our appeal and found there was no need for public hearing. There are public and non-public or closed proceedings and there are oral and written proceedings. They confuse written proceedings with non-public hearing, but they are quite different concepts. This confusion is found in judicial system. We applied to the Constitutional Court for that issue and the decision will be made on April 4.

The acquiring company "Instate Management and Administration Company" CJSC applied to the court with a private action. What did it demand?

The company demanded to oblige to conclude the alienation contracts- the contracts that the owners have not received. When we said in the court that they have not received the contracts and the Government's decision is not valid as the deadlines have not been met, the Court of Appeal explained that there is a precedent in the Cassation Court according to which if even one of the owners seals a deal means (there is such a presumption) that all the other owners are aware and agree with it.  And it was found out that the Cassation Court has such a precedent decision on 198.3 Article of the Civil Code. We applied to the Constitutional Court with that issue and there will be a session on that issue on February 14.

What danger do you see in that decision, the constitutionality of which you dispute?

This is a very serious issue. One of the 10 owners of the property concluded a contract with a piece of paper which does not even have a notarial authentication, received some money and disappeared. The one, who bought the property with the piece of paper, applied to the court so that the contract was recognized valid and the rest of the owners were expelled and the court satisfied the requirement.

According to the Cassation Court the presumption of cognition and consent of 9 other co-owners exists.

The Cassation Court mentioned that the presumption may not exist only in case the co-owners concluded a contract in the notary office that there was no presumption and the contract was registered in the inventory.

This is a very serious issue. They may take any property they want. They find a weak person and make him write he has taken the sum for selling the house. Let's say the house costs USD 100.000, and if they sell it, each of the co-owners will get USD 10.000. One of them will be offered USD 20.000 and will make him give a written consent.  With that paper they will apply to the court with the demand to expel the co-owners.

Now our Cassation Court created such a precedent to make cases. They may find a weak person and make him sign and that's it. I don't know why they have done it. I have written an article about it that the so called unveiling is starting in Armenia which is widely spread in Russia when they take away people's houses, factories and business. This decision gives huge basis for that.

Have the premises of 12 Halidzor residents been already sold?

Those people cannot use their lands, they have taken it, fenced it, but they have not done any construction up to now. Our government must provide them free legal aid with the help of Public Defender's Office. They cannot pay but at this moment they are not provided with a defender in civil matters. I took this case as a human rights defender as a strategic case. At this moment we have exhausted all judicial remedies and we are waiting for the decision of the Constitutional Court to apply to court again.

Interview by Mery Alexanyan

Source- www.hra.am