In 2001 the Government of  RA planned to construct ?North Avenue? in the
Center of Yerevan. For the realisation of this project the Government of the RA
made several decisions defining the area where real assets (plots, houses and
buildings), to be expropriated for the state needs, were located. By the
decisions of the Government the ?Office for the realisation of the Project of
?North Avenue and Cascade? governmental non-profit organisation was set up. It
was charged for the activities related to the construction of the North Avenue.
Moreover, the rules for the determination of price, drafting the offer
(concerning the intention of state to purchase the real asset) and purchasing
the real assets within the defined area of ?North Avenue? were also established
by the decisions of the Government No. 950 of 05.10.2001 and No. 1169-N
14.08.2002.



It is noteworthy to mention, that before the expropriation state has to satisfy
particular requirements stipulated by the Constitution of the RA, laws in force
and ratified international treaties, otherwise the expropriation will be deemed
unlawful.

Thus, Article 28 of the Constitution of the RA stipulates the whole requirements
for the deprivation of property for the needs of the society and state.
According to it:



??Deprivation of property for the needs of society and the state may be
conducted only in exceptional cases, based on law and with prior adequate
compensation.?



This implies that before the expropriation public authorities of the RA must
guarantee the following preconditions in accordance with the Constitution of the
RA :



1. Deprivation of property must be directed to the satisfaction of the needs
of society and the state,

2. Deprivation of property for the needs of society and the state may be carried
out only in exceptional cases,

3. Only based on law (not other legal act) the deprivation of property
may be conducted,

4. Public authorities are obliged to provide prior adequate compensation.



Have the authorities of the RA satisfied the above-mentioned requirements
envisaged in the Constitution (and international treaties) of Armenia? In order
to give a proper reply to the question it is necessary to understand the ways
the public authorities must have secured the mentioned safeguards.



The precise answer was given by the Constitutional Court of the RA in its
Decision SDO-92 of February 27, 1998. The Constitutional Court, clarifying
Article 28 of the Constitution, declared a legally binding position, according
to which the property of a person may be alienated for the state?s needs
in accordance with the provisions of the para. 2 of Article 28 of the
Constitution. In case of persons? disagreement, the state is empowered to
adopt law on that particular property and so terminate the enjoyment of the
right to property. Further, the state will substantiate by that law the explicit
importance and significance of the expropriation and define those needs of
the state and the society expropriation will be conducted for. Moreover, the
Constitutional Court imperatively stated that the Government of the Republic of
Armenia is not empowered to establish such procedures of the deprivation
of property for the interests of the state and society that will vest itself
with the right of conducting expropriation.

In other words, the Government of RA did not have the right to make such
decisions and carry out expropriation in accordance with those decisions.

On the other hand, the National Assembly of the Republic of Armenia has never
adopted Law on the expropriation of the real assets in the area of the North
Avenue, as required the Constitutional Court in its Decision. Furthermore, the
mentioned decisions of the Government of the RA, that were the only legal basis
for conducting expropriation in ?North Avenue?, are mere subordinate acts
(by-law) and they can in no way be considered or applied as ?Laws?. Article 9 of
the law on ?Legal Acts? of Armenia defines term ?law?, according to which law is
a legal act adopted only by the National Assembly or by the population of
Republic of Armenia in the course of referendum. It results that besides those
two, no other third can adopt laws (for instance Government of RA). Accordingly,
the absence of such a law in the course of expropriation automatically violates
constitutional requirements detailed above.



In these conditions the decision made by the executive branch of the RA
couldn?t have served as ?legal basis? for the deprivation of property of persons
in breach of the Constitutional principle ?based on law?; it should have been
done only based on law.



Moreover, Article 1 of Protocol 1 of the European Convention on the Human Rights
reads as follows



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 we see, the European Convention also provides for restrictions in respect
of enjoyment of the right to property, though, the same way as in the
Constitution of RA, it requires that restriction be ?in public interest?
and ?subject to the conditions provided for by law? (and not by
subordinate act).



In the case of Zvolski and Zvolska v. Czech Republic the European Court of Human
Rights held that



??Article 1 of Protocol No. 1 requires that any interference by a public
authority with the peaceful enjoyment of possessions should be lawful. Moreover,
the rule of law, one of the fundamental principles of a democratic society, is
inherent in all the Articles of the Convention.

The law upon which the interference is based should be in accordance with the
internal law of the Contracting State, including the relevant provisions of the
Constitution. (Zvolski and Zvolska v. Czech Republic, para. 65, December 11,
2002, ECHR)?



Those preconditions for the deprivation of property were set up, primarily, to
establish control of the Legislature over any restriction of a fundamental right
of property, prevent possible abuses and violations on behalf of the Executives.

In sum, we can conclude that the expropriation realised in the framework of the
?Northern Avenue? project in RA was not, inter alia, ?based on law?, as the
National Assembly has not ever accepted the relevant Law, which is apparent
breach of both the Constitution of the RA and other laws as well as provisions
envisaged in Article 1 of the Protocol 1 of the European Convention on Human
Rights. Deriving from the above said, it results that in the absence of the law
on expropriation required by the Constitution, the Constitutional provisions
that expropriation may be conducted ?for the needs of society and state?
and ?only in exceptional cases?, were also violated, as that principles
could be secured only in the law on the expropriation of the real assets
in the area of North Avenue.