IN THE NAME OF THE REPUBLIC OF ARMENIA THE DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF ARMENIA
ON THE CASE CONCERNING THE DETERMENIATION OF THE ISSUE REGARDING THE CONFORMITY OF ARTICLE 218 OF THE CIVIL CODE OF THE REPUBLIC OF ARMENIA, ARTICLES 104, 106 AND 108 OF THE LAND CODE OF THE REPUBLIC OF ARMENIA, DECISION OF THE GOVERNMENT OF THE REPUBLIC OF ARMENIA OF 2002, AUGUST 1, N-1151 "ON THE ACTIVITIES OF IMPLEMENTATION OF DEVELOPMENT PROGRAMMES WHITHIN THE ADMINISTRATIVE BORDERS OF "KENTRON" COMMUNITY OF YEREVAN"
The Constitutional Court of RA comprising of the President of the Constitutional Court G. Harutyunyan, the Deputy President of the Constitutional Court V. Hovhannisyan (rapporteur), members of the Constitutional Court F. Tokhyan, Z. Ghukasyan, H. Nazaryan, R. Papayan, V. Poghosyan,
With the participation of:
the applicant: The Human Rights' Defender of the Republic of Armenia A. Harutyunyan
appearing as respondents before the Court: The official Representative of the President of the Republic of Armenia Assistant of the President of the Republic of Armenia G. Mheryan and Official Representative of the Government of the Republic of Armenia, Minister of Justice of the Republic of Armenia D. Harutyunyan,
Pursuant to the Part 1 of the Article 100 and Part 8 of the Article 101 of the Constitution of the Republic of Armenia, Part 1 of the Article 5 of the Law of the Republic of Armenia "On the Constitutional Court",
Considered in a public hearing the case concerning "The Determination of the Issue Regarding the Conformity of the Article 218 of the Civil Code of the Republic of Armenia, Articles 104, 106 and 108 of the Land Code of the Republic of Armenia, Decision of the Government of the Republic of Armenia of 2002, August 1, N-1151 "On the Activities of the Implementation of Development Programs within the Administrative Borders of "Kentron" Community of Yerevan" .
The case was initiated by the application of the The Human Rights' Defender of the Republic of Armenia to the Constitutional Court.
Having heard the report of the Deputy President of the Constitutional Court of the RA V. Hovhannisyan and rapporteur for this case, the explanations of the Human Rights' Defender of the Republic of Armenia A. Harutyunyan, the representative of the President of the Republic of Armenia G. Mheryan and the Representative of the Government of the Republic of Armenia D. Harutyunyan, studying the opinions of the invited experts T. Barseghyan, A. Vaxarshyan, H. Tovmasyan, examining RA Civil and Land Codes, Decision of the Government of the Republic of Armenia N-1151 "On the Activities of the Implementation of Development Programs within the Administrative Borders of "Kentron" Community of Yerevan" and other existent documents in the case, Constitutional Court of the Republic of Armenia
1. The Civil Code of the Republic of Armenia was adopted by the National Assembly of the Republic of Armenia in 1998, May 5. It was signed by the President of the Republic of Armenia in 1998, July 28 and according to the Law of RA "On putting in Action the Civil Code of RA" it has been come into force since January 1st, 1999. Article 218 of the Civil Code, stipulated.
1.A land parcel may be taken from an owner for state or community needs by way of buyout.
Depending upon for whose needs the land is being taken, the expropriation shall be made by the Republic of Armenia or a commune.
2.A decision on the expropriation of a land parcel shall be made by a state agency.
The state agency empowered to make decisions for the expropriation of land parcels, and also the procedure for preparation and making of this decision shall be determined by a statute.
3.A decision of a state agency on the expropriation is subject to registration in the agency conducing state registration of rights to property.
4.The state agency that has made the decision to take a land parcel is obligated, to give notice of this to the owner of the land parcel.
2. Land Code of the Republic of Armenia was adopted by the National Assembly in 2001, May 2. It was signed by the President of RA in 2001, June 4 and came into force since 2001, June 15.
According to the Article 104 of Land Code.
1. The grounds for making decisions about taking the land parcels from citizens and legal entities for State and community needs shall be the land zoning and use schemes and general plans of localities.
2. If as a result of the taking of the land parcel or of its part the land parcel owner cannot use it in conformity with its previous designated purpose or if it is smaller than the minimum size, the land parcel shall be taken away in its entirety.
3. The payment (purchase price), timeframe and conditions concerning the land parcel to be expropriated shall be set by the land parcel owner’s consent or, in case of disagreement, by court.
4. The bodies of territorial administration and local self-government (in the city of Yerevan - the Mayor) cannot announce the tender or auction for the allocation of land parcels for development until the alienation zone of the land parcel and of other real property to be taken for State and community needs has been approved and registered in the State unified cadastre of real property and until the real property located in the alienation zone has been taken through the procedure established by law.
The alienation zone of the land parcel and of other real property to be expropriated shall have to be announced at least one year prior to the taking away of the land parcels.
5. Until the expiration of one-year period the land parcel can be taken away only by the consent of its owner.
According to the Article 106 of the Land Code.
In case of the emergence of State or community needs the rights of the land parcel owners and users shall be limited in cases and through the procedure established by this Code, other laws and normative legal Acts.
According to the Article 108 of the Land Code.
1. The citizens’ and legal persons’ land parcels can be taken for the State or community needs in conformity with the procedure established by the Civil Code, provided adequate compensation has been paid first.
2. The community-owned lands shall be taken for the State needs in compliance with the procedure specified in paragraph 1 of this Code.
3. At least one year before the land parcel is taken away the land parcels owners shall have to be notified by the body that has made a decision to take the parcel away. The taking away of the land parcel prior to expiration of that period shall be allowed only by the land parcel owner’s or user’s consent.
4. The land parcel owner or user shall not be compensated for the expenses incurred owing to those indivisible improvements of property that have been undertaken in relation to the land parcel development or other activities after they had been duly notified about the taking away of the land parcel
3. N-1151 Decision of the Government of RA was adopted on 1st of August, 2002 and approved by the RA President on 14th of August 2002. According to that decision: "In conformity with the Article 218 of Civil Code of the Republic of Armenia and Article 104 of Land Code of the Republic of Armenia and for the implementation of development programs of Yerevan, Government of the Republic of Armenia decided:
1. To confirm alienation zone for expropriation of the real property (land parcels, buildings and constructions) within the administrative borders of Kentron community totally 345 000 square meter according to NN 1 and 2 Appendixes.
2. To the mayor of Yerevan.
a) to clarify borders and register alienation zones of expropriated land parcels at the local office of the State Committee of Real Property Cadastre of the Government of the Republic of Armenia within two months.
b) in conformity with the Article 218 of the Civil Code of the Republic of Armenia to announce in stipulated manner to the owners and users of real property included in the alienation zone about the alienation zone for state needs and timeframes, sources and order for financing.
c) to arrange and implement activities on valuation of the real property in the area of alienation zone by licensed respective organizations.
d) to provide development and confirmation of the drafts of zoning of the mentioned areas in accordance with established procedure by the Decision of the Government of the Republic of Armenia N 408 of 14 May, 2001 "On the Confirmation of the procedure of Development, Expertise, Congruence, Confirmation and Amendment of the drafts on zoning of localities."
e) to provide the implementation of development projects within 2003-2008 according to the phases in conformity with the scopes of included investments."
4. Article 31 of RA Constitution stipulated. "Everyone is entitled to dispose, use, manage and bequeath his ownership at his discretion. The right to property may not be exercised so as to cause damage to the environment or infringe on the rights and lawful interests of other persons, society, or the state.
No one may be deprived of private property except by a court in cases prescribed by law.
Private property may be alienated for the needs of society and the state only in case of exceptional prior public interests, with due process of law, and with prior equivalent compensation.
Foreign citizens and persons without citizenship shall not have the right to own land, except in cases prescribed by law.
Intellectual property shall be protected by law."
5. The applicant substantiated his position on non-conformity of the appealed legal acts with the Constitution on the following substantiations.
According to the 3rd paragraph of Article 31 of RA Constitution state agency may make decision on expropriation only in exceptional cases and upon substantiation of such alienation of the property by prior public interests.
"Public and state needs" and "in cases of exceptional prior public interests" notions are not clarified in any of challenged legal acts, only which could be a base for restriction of right on property. Simultaneously, these do not meet to the requirements of legal certainty. Legal certainty is lacking also in the sense that Article 218 of RA Civil Code and Articles 104, 106 and 108 of RA Land Code don’t stipulate enough strict formulated procedure for taking land parcel for "state needs".
There is no concrete law on real property to define exceptional importance and meaning of alienation and to mention for what kind of state or public needs will be used alienated real property. The challenged decision of the Government generally doesn’t give any sense on what "state needs" the matter concerns and doesn’t include any substantiation on what kind of causal relationship exists between "state needs" and activities on the expropriated land by a lot of commercial organizations.
In applicant’s opinion, it should be a separate law which would regulate these questions subject to public law. This role has been given to the challenged articles of the mentioned codes. But those can not be a base for a sub legislative act, as these don’t stipulate the legal treatment related to the cases of alienation of the property for exceptional prior public needs as a guarantee for protection of human rights.
6. Appearing as respondent the official representative of the President of the Republic of Armenia G. Mheryan presented his objection on the unconstitutionality of the challenged legal acts on the separate analysis of meaning of all its’ provisions’ content. In his opinion, these don’t contradict to RA Constitution.
Appearing as respondent official representative of the Government D. Harutyunyan substantiated his objections on unconstitutionality of challenged legal acts with the following arguments:
3rd paragraph of the Article 31 of RA Constitution doesn’t designate that it should include substantiations in case of "exceptional public prior needs",
Article 83.5 of RA Constitution differently from the previous edition, RA Constitution, currently in force, defined the legal relations which should be regulated only by laws, and that article doesn’t define that the substantiation of "exceptional prior public interests" should be defined by laws,
According to RA legislation, both RA National Assembly and RA Government may take decision on the presence of "prior public interests". Legislation of the Republic doesn’t prohibit the Government to make such decision, and prior public interests are ground for general layout of the locality,
As a guarantee that rights on the property in case of alienation according to the 3rd paragraph of Article 31 of RA Constitution will not be infringed is it’s judicial protection which they can exercise both in courts of general jurisdiction and in RA Constitutional Court,
Representatives of the respondent part insisted that the Article 218 of RA Civil Code and Articles 104, 106 and 108 of RA Land Code are that ground which mean 3rd paragraph of the Article 31 of RA Constitution designating alienation of the property to be exercised on "the order prescribed by law".
7. On 27th of February 1998 RA Constitutional Court considering the case concerning the determination of the issue regarding the conformity of Article 22, Parts 2, 3, 4 and 5 of the Law of the Republic of Armenia "On Real Property", adopted by the National Assembly on 27th of December 1995, with the Constitution of the Republic of Armenia, particularly has decided.
private property may be alienated on the ground of part 2 of the Article 28 of RA Constitution and in case of the absence of the consent right to the property can be terminated by state only through the adoption of a Law on the expropriation of particular real property, in which the extreme importance and significance of the expropriation of real estate shall be substantiated and such a law has to state which needs of the society and the State will be satisfied through the expropriation of real property,
Part 5 of the Article 22 of the Law of the Republic of Armenia "On Real Property", according to which: "The procedure of expropriation of real property for the society or the state needs is established by the Government of the Republic of Armenia, pursuant to the provisions of this Article", doesn’t correspond to the Articles 8 and 28 of the Constitution of the Republic of Armenia. The Government of the Republic of Armenia may not determine a procedure for expropriation which would empower it alienation of such real property.
An amendment or an addition have not been done in the respective article of the Law of the Republic of Armenia after the Decision of the Constitutional court of 27th of February 1998. This Law was null and void according to RA Law "On Enforcement of RA Civil Code" since 1st of January 1999.
As a consequence of the referendum of 27th of November 2005 Part 1 of the Article 8 of RA Constitution according to which "The right to property is recognized and protected in the Republic of Armenia." was kept unchangeable but the provisions of the Article 28 of the former text with new edition was stipulated in the Article 31.
8. According to the Article 55 of RA Law "On the Constitutional Court", Constitutional Court, considering the issue of the constitutionality of laws and other normative legal acts, among other circumstances, should take into account the necessity of protection and free exercising of human and civil rights stipulated by the Constitution, allowed frames and grounds of its restrictions, the necessity of direct applicability of the Constitution.
According to the Part 1 of Article 31 of the Constitution. "Everyone is entitled to dispose, use, manage and bequeath his property on his own discretion". Article 43 of the Constitution doesn’t consider the right to the property as a right restricted on the base of that article. Such a particular case of the restriction of right is available, when Constitution decides criteria and frames of the restriction of given right even without leaving it to the jurisdiction of the legislator.
It may, firstly , be exercised only by a judicial order by depriving the property in cases prescribed by law as a compulsory action proceeding from the responsibility. And secondly, by the "alienation of the property", which is an essential distinction from the "depriving of the property" and should be exercised on the base of Part 3 of Article 31 of the Constitution.
According to the constitutional-legal content of Part 3 of Article 31 of the Constitution:
the Constitution prescribes the possibility to restrict and compulsory alienate the right to the property,
the last may be implemented only for society and state needs, which should be strict and clear expressed related to a particular property and which should be taken into consideration and satisfied by the state while exercising its functions,
but not every society and state need can serve as a ground for alienation, those needs should be exceptional conditional to the prior public needs,
the procedure of expropriation should be stipulated by law (such formulation is included in the constitutional amendments of 27th of November 2005, by the way, it leaves to the discretion of the legislator to decide for each particular case which agency is competent to make a decision on expropriation according to the law),
prior compensation should be guaranteed in case of alienation of the property,
the compensation should be equivalent.
Stipulation of exceptional prior public interests in the constitutional requirements is a guarantee for the protection of the right to the property, as otherwise the expropriation would be unconstitutional, on the other side, the possibility to use expropriated property for other needs by the state is restricted.
The state shall determine by statute procedure of the expropriation, which shall provide a right to the owner to know beforehand the reason to interfere to his right to the property and for which particular needs is alienated the property. In any case, interference to the right to the property implies fair balance between prior interests of the society and necessity to guarantee fundamental human rights.
The constitutional court finds if expropriation is done without clear determining in legislation and taking into consideration in practice constitutional requirements of restrictions on expropriation, it will be not proportional interference to the right to the property.
9. Article 3 of RA Constitution contains three most significant provisions upon the fundamental values of a state based on a rule of law:
Human being, his dignity, fundamental rights and freedoms are superior values,
State guarantees the protection of fundamental human and civil rights and freedoms in conformity with the principles and rules of international law,
The state is restricted by fundamental human and civil rights and freedoms, as directly applicable rights.
These interrelated provisions guarantee the supremacy of law and define strictly place and role of human rights, including rights to the property in constitutional legal relations.
Meanwhile, Article 6 of RA Constitution defines which normative acts shall be adopted on the ground of the Constitution and laws and for its implementation. And according to the Part 1 and 2 of the Article 83.5 either conditions, or procedure of implementation and protection of rights of natural and legal persons as well as restrictions of their rights and freedoms are prescribed only by law of the Republic of Armenia.
The Constitution of the Republic of Armenia stipulated one more important rule: "Restrictions on fundamental human and civil rights and freedoms shall not exceed the frames stated by the international obligations of the Republic of Armenia" (Article 43). Related to this it’s noteworthy the provision of Article 1 of the Protocol 1 to the European Convention for Protection of Human Rights and Fundamental Freedoms, according to which: "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."
Taking into consideration the requirements of rule-principles on human rights the mentioned constitutional and international legal approaches on the protection of rights to the property and expropriation, the meaning of the legal requirements formulated as a consequence of the last constitutional amendments, the Constitutional Court finds the government not to be allowed to define expropriation which is directly related to the problem of restriction of rights to the property and should be a pledge to provide balance among the public interest and individual’s right to the property.
According to the Part 3 of the Article 31 of the Constitution in the context of given legal relations Constitution holds "society and public needs" as a base for expropriation, but as guarantees for the protection of expropriated property considers only alienation "only in cases of exceptional prior public needs", alienation "prescribed by law", alienation "by equivalent prior compensation for the alienated property".
The Constitution directly requires the expropriation procedure to be prescribed by law. By the way, that procedure shan’t neglect all the guarantees for the protection of the rights to the property prescribed in the Article 31.
System analysis of the legal acts of the Republic of Armenia shows this problem still not to be solved clearly and in proper manner.
The Constitutional Court hold that in regards to the requirements of the Articles 3, 5, 8, 31, 43, 83.5 of the Constitution the Republic of Armenia should determine clearly by law the legal procedure of expropriation. In a number of Central and Eastern European countries it is exercised through a Law on Expropriation, which stipulates the main principles of expropriation, general conditions, merits of expropriation, guarantees for protection of rights, procedure of arrangement and implementation of the process etc.
The adoption of such a law will be in solidarity with the logic of the last RA constitutional improvements and will become an important precondition for the protection of right to the property.
10. Legislative regulation of the expropriation should have as a base the initial provision, that the right to that property may be restricted or terminated only in cases prescribed in the Article 31 of the Constitution by providing the implementation of following constitutional requirements:
the requirement of substantiation of the existence of society and state needs,
the requirement of the existence exceptional prior public interest and its substantiation,
the requirement of providing fair balance between society and public needs and the requirements for protection of individual right to property provided by prior public interest. The last implies also person’s proper and thorough awareness and possibility of effective judicial protection of rights in the context of comparison of different interests.
The law shall determine the procedure of expropriation by specifying:
the state agency taking decision on the alienation,
the procedure of providing prior equivalent compensation (in nature and/or monetary)for the alienated property,
the procedure of appeal the decision on the alienation of the property and procedure of alienation in case of disagreement on compensation price, other equivalent compensation and on other conditions connected to those,
the rights, obligations and restrictions of rights of the owner of alienated property,
the procedure of origination of new right and legal execution after the expropriation
Peculiarities of different ownership objects for lawful objectives etc.
If the property is alienating regardless of the fact that to what subject (state, community, natural or legal person) will pass the property in the future in a manner prescribed by law, the law shall determine such a regulation which would guarantee the use of mentioned property for society needs on the base of which the alienation has been done.
Meanwhile, the law shall prescribe that among the state (upon its entitled agency) and owner shall be concluded a contract on expropriation and equivalent compensation provided by prior public interest, in which bilateral obligations should be clearly stated coming from the abovementioned requirements and also a condition not to consider the compensation from such a contract as a taxable income.
Any normative act on the expropriation may not bypass the constitutional requirements (especially, Articles 3, 5, 8, 31, 43, 83.5) and neglect the provision of Article 31 of the Constitution according to which a question on expropriation may be presented only in case of society and public needs substantiated by the existence of exceptional prior public interest.
11. The comparative analysis of the constitutional norms of the Republic of Armenia, as it was mentioned, is evidence of that the compulsory alienation of ownership is possible only when there is a society and state need related to the exceptional prior public interests. This provision has not been used in the Constitution of the Republic of Armenia. Moreover, the object of quarrel on this case and in a number of other legal acts it was presented with the provision "to take away the property (land parcel) for the state or community need (needs)". In the context of legal relations of the ownership compulsory alienation even grammatical explanations of the provisions "society and state need" and "state or community need" and the usage rules of the conjunctions "and, or" defined in the 10th Point of Article 45 of RA Law "On the Legal Acts" determine that in the second case two equivalent, but independent from each other phrases are connected with the conjunction "or", which assume two different independent prerequisites of the ownership alienation. In this respect, as well as coming from the differences among the "community" and "society" conceptions, these two provisions cannot be considered entirely similar or equivalent.
Besides, these provisions should be presented in the entirety of legal content for the constitutional legal commentary of these provisions. The content of this constitutional provision is the "alienation of ownership for the society and state needs". It was presented "to take the property for the state or community needs" provision in the laws and government decrees in force.
The legal content of the constitutional provision is clear and it relates to the compulsory alienation of the ownership for the legal purpose. The notion "ownership alienation", for its turn, out from the following constitutional context, supposes the restriction or termination of right to the property, designated for the same lawful purpose on the particular object, providing that beforehand a property of the equivalent value or compensation is given to the person instead of the property instead of his property, which guarantees the continuation of the right to the property.
In fact, the mentioned provision of Article 31 of Constitution becomes complete with the other provisions of the same Article in the context of organic interdependence. It is not only a special institution for the right restriction, but inevitably means that there is a necessity of the lawful objective and right to the property synthesis. In the result of this synthesis, the right to the property can be restricted or terminated, if it serves to satisfy, exceptionally, the public interest.
It is obvious, as it was mentioned above, the law must specify the definition of the public and state needs, how the fact, that the equivalent reimbursement is grounded only by prior public interest, should be motivated, what regulation should be the substantiation in order to inform the owner how he can appeal the submitted substantiation as presented in Articles 18 and 19, when the owner of the property finds out that there is "a fair balance" between the public interest and human rights protection necessity.
The following law should also correspond to the legal position expressed in a number of decisions of the European Court of Human Rights, according to which no legal rule can be considered "law", if it does not correspond to the legal definiteness principle (res judicata), i.e. it is not formulated clearly enough, which can help citizen hold his own position.
The provision fixed in the laws and government decrees in force together with its legal usefulness and practical usage in the court, is not in harmony with the constitutional approach of the ownership right and it gives evidence about the automatic way of thinking. Changing the phrase "ownership alienation" by the verb "to take", which doesn’t have constitutional-legal content and mostly daily speech and expression of bureaucracy. It is not only an unfair approach for a unified usage of the constitutional notions, but also does not present the content of the property purchase institution. The last one can perform as a subject of civil-legal relations. But the case when there are property relations based on the administrative or other power subordination from one part to the other part cannot be considered as civil-legal relations.
The Constitutional Court considers that the legislative and executive authorities have not created necessary legal preconditions in the legal system of RA in order to implement the requirements of the Part 3 of the Article 31 of RA Constitution. This should be done form the legal content and significance, which is in the basis of the constitutional norm. The state or community, on the parties’ free will, can purchase real property to satisfy the parties’ needs in the framework of the civil and legal relations. But when the question relates to the ownership alienation of the public and state needs, the requirement of Article 31 of the Constitution should be the basis of any legal act and equivalent action. Constitutional rights of a person should be considered as the highest value and directly applicable right.
12. The Constitutional Court states that in international practice the basis for the ownership alienation should be the state and public needs, such as the construction of roads, railway roads, airports, pipes, other infrastructures of public significance, construction of defense objects, implementation of programs related to the social-economic development of the country, protection of historical monuments, building of urban areas, etc. But in all circumstances the legal problem is that in any concrete case the program should be substantiated according to the regulation prescribed by law, and the interested people should be informed in an appropriate way in order to receive an opportunity for their rights’ defense.
Besides, in the international constitutional practice in the subject matter legal relations’ context there is no "prior public interest" notion. In the Republic of Armenia and in all other countries the circumstance of an exceptional case is also emphasized. In Armenia the phrase "exceptional" means extraordinary, exclusive. The word "prior" is explained as "superior, preferable, above all". In the theory of rights the conception of priority is used, particularly, when it refers to Constitution, right and law. "Exclusive, prior public interest" constitutional provision is not out of legal content and it cannot be neglected by the institutions of branches of law.
The existence of this provision in the Part 3 of Article 31 of the Constitution gives evidence that the public interests can be presented in the comparison as prior public interests or non-prior public interests. The exceptional cases are when there is a prior public interest. Prior public interests are those ones which have certain qualities that make them prior in comparison with the other public interests. Those qualities should be clarified according to the public and state concrete needs. And the qualities should be substantiated by the following interest representing state authorities according to the criteria and principles prescribed by law.
13. The constitutional-legal analysis of articles 218 of the Civil Code of Ra together with its law enforcement practice, says:
title of the Article "taking the land parcel for the state or community needs" testifies that the protection of right to the property correspondent to the requirements of ownership compulsory alienation is not the problem of this Article, that’s why it cannot be the guarantee for the enforcement of the 3rd part of the Article 31 of Constitution, as it was defined by the Land Code, sub-legislative acts, legal enforcement and judicial practice,
exact formulations of the separate parts of the article give evidence that these also refer to the civil-legal relations of purchase transaction, that are not directly related to the legal content of article 31 of Constitution and has no question with it,
but when we evaluate Article 218 of Civil Code with Articles 219-221 of the same code and Articles 104, 106, 108 of land Code taking into consideration the judicial practice and the circumstance that the Government of RA mainly considers Article 218 of Civil Code and Article 104 of Land Code as a legal basis for decrees, it becomes obvious that there are civil-legal relations only for the property purchase.
The article 218 of Civil Code together with legal content of law enforcement practice, does of provide complete implementation of constitutional guarantees’ for the ownership protection, and in case of ownership compulsory alienation does not guarantee fair balance between the person’s interests and right to the property and public interests according to the criteria of the legal state.
The provisions of this article can be used for the regulation of voluntary civil-legal relations of sale and purchase procedure and cannot be used in cases of compulsory alienation of the property.
14. Article 104 of RA Land Code is titled: "Taking away the land parcels for State and community needs". Here the title of the Article 218 of Civil Code has been reproduced. But the main particularity of the legal content of the Article 104 of Civil Code is clear stipulation about the compulsory termination of right to the land having as a ground the existence of land zoning and use plans and general layouts of localities.
The existence of such plans and layouts can be considered as a ground for arising society and state needs. But the reference to them is not enough to give evidence the existence of exceptional prior public interest, if they have not been considered as society and public needs arranged with prior public interest.
Provisions on the alienation of the land parcels for State and community needs stipulated in the Article 104 of RA Land Code, Articles 106, 108 of the same Code with the Article 218-221 of RA Civil Code doesn’t provide the implementation of constitutional guarantees for the protection of the right to the property based on the substantiation of "exceptional prior public interests".
15. Article 106 of the Land Code determines: "In case of the emergence of State or community needs the rights of the land parcel owners and users shall be limited in cases and through the procedure established by this Code, other laws and normative legal Acts."
The legislator by stipulation of such legislative provision has not pay any attention to two most important circumstances:
a) The Constitution has given an unambiguous answer to the definition of cases of restriction of the right to the property and compulsory alienation of the property in Part 3 of the Article 31. None and never is allowed to restrict the right to the property and compulsory alienate the property except of the mentioned grounds (this doesn’t concern to the possibility to temporary restriction of right in circumstances marital and state of emergency),
b) this article considers also possible the restriction of right to the property not only through the laws, but also in cases and through the procedure established by other normative legal acts by putting on the same level laws and other normative legal acts. "Through this Code", "through other laws" and "through normative legal acts" notions in this sentence are appeared as equivalent parts (adverbial modifier of circumstance) and the "in cases and through the procedure established" (indirect object of restriction) equally concerns to the Code, other laws and normative legal acts.
Such approach doesn’t correspond to the requirements of the Article 31, 43 and 83.5. (Part 1 and 2) of the Constitution.
16. Article 108 of Land Code is titled "The guarantees of the owners’ and users’ rights when their land parcels are taken away from them for the State or community needs". This title is followed by first paragraph according to which: "The citizens’ and legal persons’ land parcels can be taken for the State or community needs in conformity with the procedure established by the Civil Code, by providing equivalent prior compensation.". The procedure established by the Civil Code has already been represented. The title and content of the article are not adequate. The legislator should differentiate clearly "depriving from the property" and "alienation of the property" constitutional definitions. The analysis of all provisions of the article in complexity shows them not to provide guarantees for protection of rights during alienation of the property, which are clearly stipulated in Articles 3, 31 and 43 of RA Constitution.
17. The decision of RA Government which is a subject of consideration in its content proclaims the aims to exercise particular actions. The task is not to evaluate the type and legal content of the goals. The question is what is the legal foundation for that decision. Preface of the decision says: "In conformity with the Article 218 of Civil Code of the Republic of Armenia and Article 104 of Land Code of the Republic of Armenia and for the implementation of the development programs in Yerevan decides..." There are no any other substantiations. It is important that in Part 2 of the Article 218 of RA Civil Code is determined that: "The state agency empowered to make decisions on the expropriation and also the procedure for preparation and making of this decision shall be determined by a statute." The existent of such a provision in the legislation is an evidence for the necessity to regulate those questions in the level of statute. And this is necessary to provide legislative guarantees for the protection of the right to the property. But the investigation of the case shows that such law has not been adopted in RA legal system yet.
Based on the outcome of the investigation of the case and in accordance with Part 1 of the Article 100, Article 102, Part 1 of the Article 5, Articles 55, 67 and 68 of Law "On the Constitutional Court", Constitutional Court decides:
1. Article 218 of RA Civil Code concerning to the regulation of legal relations of the expropriation is not in conformity with the requirements of Articles 3, 8 (Part 1), 31 (Part 3), 43 of RA Constitution.
2. a) Article 104 of RA Land Code concerning to the regulation of legal relations of the expropriation is not in conformity with the requirements of Articles 8 (Part 1), 31 (Part 3), 43 of RA Constitution,
b) Article 106 of RA Land Code is not in conformity with the requirements of Articles 31 (Part 3), 43 and 83.5. (Part 1 and 2) of RA Constitution,
c) Article 108 of RA Land Code is not in conformity with the requirements of Articles 3, 31 (Part 3), 43 of RA Constitution.
3. The Decision of RA Government of 2002, August 1, N-1151 "On the Activities of the Implementation of Development Programs within the Administrative Borders of "Kentron" Community of Yerevan" having as abase Article of RA Civil Code 218 and Article 104 of RA Land Code concerning to the sub legislative regulation of the expropriation is not in conformity with the requirements of Articles 3, 8 (Part 1), 31 (Part 3), 43, 83.5. (part 1 and 2), 85 (Part 2) of RA Constitution.
4. Following Part 3 of the Article 102 of RA Constitution and taking into account that RA National Assembly and RA Government should adjust a lot of legal acts related to the problem which is subject of consideration in possible brief timeframes to the requirements of RA Constitution and the Decision of the Constitutional Court and clearly regulate through law the legal regime of alienation of for society and public needs related to the prior public interests, define the deadline for becoming invalid the legal norms in this Decision admitted as not in conformity with RA Constitution the moment of coming into force of such a legal regime based on a law, but not late than 1st of October, 2006.
5. According to the second part of the Article 102 of the Constitution of the Republic of Armenia this decision is final, is not subject to revision, enter into force on the date of publication.
PRESIDING JUDGE G. HARUTIUNYAN
18 April 2006