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An Uphill Battle: Land Owner Squares Off With State Over Property Ri

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  • An Uphill Battle: Land Owner Squares Off With State Over Property Ri

    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."
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