AN UPHILL BATTLE: LAND OWNER SQUARES OFF WITH STATE OVER PROPERTY RIGHTS
Ararat Davtyan

http://hetq.am/en/court/karen-poghosyan/
2009/08/31 | 17:02

Feature Stories court

I went to the General Prosecutor's Office and met with Gagik
Markosyan. He demanded that I hand him the ownership papers for the
site. I told him that these were the originals and that I wanted a
receipt if they weren't to be returned. He answered - 'haven't you
heard of Tarakh Gago? That's me. You won't get anything. The general
is taking the site from you,'" says Karen Poghosyan, adding that the
general referred to RoA General Prosecutor Aghvan Hovsepyan.

"Prosecutor Gagik Markosyan is currently not in the country. He's
gone on holiday. However, I can officially state that neither he nor
any employee of the General Prosecutor's Office (GPO) would ever say
such a thing," argued GPO Public Affairs Officer Shahen Tonoyan.

The site is question, whose documents Karen Poghosyan handed over
to Prosecutor Markosyan on March 6, 2009, is located on Bagratunyats
Street, in the vicinity of Yerevan Lake.

In June, 2001, the Shengavit Court of First Instance, Judge Aleksandre
Merangoulyan presiding, found that, "As of 1991, Karen Poghosyan has
responsibly and continuously controlled 1,000 square meters of land at
the above address as his own property", and has erected a structure
on 500 square meters of the site. Thus the court found the buildings
and the1, 000 square meters of land beneath "to be without owner and
has handed over ownership rights to Karen Poghosyan".

Based on this decision, in April, 2002, the State Real Estate Registry
(Cadastre) registered Mr. Poghosyan's right to said property by giving
him a 99 year lease. One year later, in May, 2003, Mr. Poghosyan paid
the full Cadastre appraisal of the site (some 1.465 million AMD),
directly purchasing the site from the government.

"Since 1991 I've been using that site; first as a garden. Later,
I cleaned it up and set up a small stall. Then I built a regular
store there and fir the past ten years I've been selling construction
materials," says Karen Poghosyan. "I paid all taxes and fees on time
and have even paid this December's property taxes already. I've got
the receipts to prove it. I've had no problem with either the mayor's
office or the local district office."

Karen says that in September, 2008, Grisha Khurshoudyan, then the
Director of the Architecture and Construction Department of the Yerevan
Municipality, proposed that he give General Prosecutor Aghvan Hovsepyan
200 square meters of his property fronting the main street. In return,
Karen would get an equal parcel at the rear of his site.

"Naturally, I didn't agree. After the collapse of the Soviet Union,
General Prosecutor Aghvan Hovsepyan's father, Garnik Hovsepyan,
owned 2,000 square meters of land. During the past 4-5 years he's
been gobbling up parcels from here and there so that the 2,000 has
mushroomed into 18,000 square meters. Now he wants to grab my land as
well," Karen says, "I never thought that the GPO could just grab my
ownership documents and the court decision papers. I say this because
a while back the civil prosecutor requested the same documents but
returned them after verifying their authenticity."

Shahen Tonoyan says, "It's really not right to mention the name of
the RoA General Prosecutor in this story.

People are just out to use his name in order to strike the best deal
and resolve their problems. As regards the documents, during the
preparation of the case they were requested from the individual. As
a result of their examination a case was brought at the appeals
court. There, the decision of the Court of First Instance was revoked,
i.e., his right to ownership. Naturally, in this instance, the property
ownership document is deemed null and void and thus not subject to
be returned."

Mr. Tonoyan explained that Aghvan Hovsepyan's father worked at a state
farming enterprise in the vicinity of Lake Yerevan during the Soviet
era. After independence, he and other like him, first rented and then
obtained ownership rights to a certain segment of the enterprise's
lands. Mr. Tonoyan specifically pointed out that Aghvan Hovsepyan
wasn't prosecutor general at the time.

"Garnik Hovsepyan privatized that parcel of land, some 16,000 or 18,000
square meters, in the name of one of his sons. However, a portion
of that land, some 2,000 square meters, with the decision of the
municipality, mistakenly wound up within the land of another property
owner when the maps were being drawn up. To correct the situation,
the municipality decided to compensate the owners for the 2,000
square meters with land illegally annexed at the site. It turns out
that 1,000 square meters of the site turned over to Karen Pogosyan is
illegal. Thus, the municipality has petitioned the Department for the
Defense of State Interests at the GPO and a case has been launched,"
states Shahen Tonoyan.

"Hetq" attempted to get some explanations from the Yerevan
Municipality. They promised to look into the matter and get back to
us but we haven't heard from them since.

"It now turns out that a portion of the land owned by the Hovsepyan's
was mistakenly allotted to the property of another person. The
Hovsepyan's, like any other citizen of the RoA, have the right to
property and to defend that right. In this case it is important that
the loss be compensated for. It really makes no difference to whom
the municipality will leave the 2,000 sq. meters in question - to the
Hovsepyan's or to the new owner or which of them will be compensated
with new land, not legally owned by any one. The Hovsepyan's have no
claims against anyone," Mr. Shahen Tonoyan claimed.

The Prosecutor's Office and the Yerevan Municipality Succeed in Getting
Poghosyan's Ownership Rights Revoked After taking Karen Poghosyan's
land documents, the GPO and the Yerevan Municipality separately filed
suits with the appeals court to have the decision of the lower court,
recognizing the ownership rights of Karen Poghosyan to the site on
Bagratunyats Street near Lake Yerevan, overturned.

Mr. Tonoyan says, "The decision of the Court of First Instance violated
state interests. This is why the GPO petitioned the appeals court." The
petition was signed by Aghvan Hovespyan's deputy, Aram Tamazyan.

In general terms, the arguments brought forward by both the GPO and
the Yerevan Municipality are the same.

In 2001, the Shengavit Court of First Instance recognized the property
rights of Karen Poghosyan based on his application; the defendant was
never brought into the case since the issue at hand didn't impact on
the rights of others.

The plaintiffs argue that if the land parcel isn't currently
the private property of anyone, by law, it is the property of the
RoA. Thus, back in 2001, the court should have incorporated the state
into the case, either through the municipality or the prosecutor's
office. However, the lower court failed to do so.

According to Article 207, Point 5, of the Civil Judicial Code, a
non-participating party, for whom a judicial act has been reached
impacting the rights and obligations, "has the right to take the
matter to the appeals court with a three month period from the day
that they are informed or can be informed about the passage of such
a decision..."

Attorney Hayk Aloumyan says, "The plaintiffs state that the RoA
wasn't informed of the decision during this period. However, the RoA
couldn't have remained uninformed of this decision just for the fact
that it was made on behalf of the RoA. Secondly, the sentence was
immediately presented to the Real Estate Cadastre which operates
on behalf of the RoA. The RoA, via its agencies, struck a leasing
contract with Mr. Poghosyan and subsequently sold the site and
received taxes. Finally, in 2008, the Yerevan Municipality drafted
an overall blueprint in which it states that the land belongs to
K. Poghosyan. After all this, the municipality and the prosecutor
declare that they weren't aware of the decision for eight straight
years. Naturally, this is not the case."

Attorney Aloumyan argues that this factor alone was sufficient for
the appeals court to reject the petition. However, the appeals court,
presided by Armen Tumanyan, sustained the petition and in its decision
literally copied word for word the arguments made by the plaintiffs.

"There is a second side to the issue. In such cases the Civil Judicial
Code clearly states that the decision is revoked and the petition
remains unexamined in order that the individual has the opportunity
to once again apply to the court of first instance in the future,
to include those whose interests are at stake and to begin the case
investigation anew. Now, the appeals court has revoked the decision
of the lower court and has immediately rejected the demands of
K. Poghosyan that his property rights be recognized," attorney
Aloumyan opined.

"The appeals court resorted to such blatant irregularities due to
the pressure exerted by the prosecutor. Now, I have petitioned the
cassation court but they are still keeping the pressure on the judges
involved," says Mr. Poghosyan.

"Those are brazen claims. The prosecution has no connection with
the courts. The courts are an independent body and they reach their
decisions on their own. When individuals don't get the results they
want from the judicial process they start making wild speculations,"
countered the head of the GPO's Public Affairs Department.

Karen Poghosyan notes that he knows what to expect from the cassation
court and thus he has discussed the possibility of taking the matter
to the European Court.

Hayk Aloumyan is convinced that the European Court of Human Rights
will find in favor of Mr. Poghosyan since "the appeals court has
trampled on the principle of legal certitude in such a brazen fashion".

"In essence, it appears that our court can turn around and revoke
the decisions they made some eight years ago and come up with new
judgements; using the same facts and without adding or subtracting
a thing. This is a blatant violation of the European Convention,"
says attorney Aloumyan.

Mr. Aloumyan believes that the court will compel Armenia to equitably
compensate Mr. Pogosyan for the losses he has suffered as a result
of these court decisions and for the costs associated with bringing
the case to the European Court.

Attorney Hayk Aloumyan notes, with a degree of consternation, that this
compensatory amount will be allocated from the state budget. "That's
to say from the taxpayers' pockets and we're talking about some pretty
serious money."