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Name of the Republic of Armenia

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF ARMENIA

of February 27, 1998 No. PKS-92

On case "About determination of question of compliance of parts two, third, fourth and fifth Article 22 of the Law of the Republic of Armenia "About real estate" adopted by National Assembly on December 27, 1995 to Article 8 and part two of article 28 of the Constitution of the Republic of Armenia

Constitutional court of the Republic of Armenia under the chairmanship of the Chairman of the Constitutional court G. Arutyunyan, as a part of the vice-chairman of the Constitutional court V. Oganesyan, members of the Constitutional court A. Gyulumyan, F. Tokhyana, G. Nazaryan, R. Papayan, V. Pogosyan, V. Saakian, M. Sevyan,

with participation:

the official representative of the President of the Republic of Armenia, the manager of legal department of the office of the President of the Republic of Armenia V. Gasparyan attracted as the defendant in case of the representative of National assembly of the Republic of Armenia, the head of legal service of National assembly V. Nazaryan

according to Item 1 of Article 100 and Item 1 of article 101 of the Constitution of the Republic of Armenia, Item 1 of Article 5, to Item 1 of Article 25 and article 55 of the Law of the Republic of Armenia "About the Constitutional court",

Having heard the message of the speaker on case, the vice-chairman of the Constitutional court of the Republic of Armenia V. Oganesyan, explanation of the representative of the President of the Republic of Armenia V. Gasparyan and the representative of National assembly of the Republic of Armenia V. Nazaryan, having researched the Law of the Republic of Armenia "About real estate" and other documents which are available in case, the Constitutional court of the Republic of Armenia

ESTABLISHED:

2. The addressed party, mentioning provisions of Article 8 and part two of article 28 of the Constitution, notes that the Constitution directly differentiates essentially different types of the termination of the property right: deprivation of property and property acquisition.

Meanwhile, parts two, third, fourth and fifth article 22 of the Law RA "About real estate" establish provisions to which compliance question with Article 8 and part two of article 28 of the Constitution in law-enforcement practice there are mutually exclusive approaches.

According to explanation of the representative of the President of the Republic of Armenia property acquisition as exclusive measure of forced withdrawal of property at the legal owner in each separate case shall be made for needs of society and state under the law according to which:

- exclusiveness of specific case of alienation will be proved,

- the size and procedure for the preliminary equivalent compensation following from real market value of property will be established

- the procedure of alienation will be established.

The representative of National assembly - the body which adopted the Law of the Republic of Armenia "About real estate" - V. Nazaryan, not excepting circumstances of contradiction of other provisions of the Law RA "About real estate" reasoned for Constitutions about which, however, the application was not submitted to the Constitutional court the fact that the considered provisions of article 22 of the mentioned law contain indistinct and wrong formulations, however Constitutions of RA do not contradict.

3. Article 22 of the Law of the Republic of Armenia "About real estate" is entitled "Alienation of real estate for needs of society and state". Provisions of Article aim to settle legislatively and from the law-enforcement point of view to promote stipulated in Article 8 and part two of article 28 of the Constitution both to process of alienation of real estate, and protection of the rights of the owner.

In parts two, third, fourth and fifth article 22 of the Law it is told:

"The amount of equivalent compensation for real estate for needs of society and state is determined by the order of the Government of the Republic of Armenia, based on result of negotiations between the Government of the Republic of Armenia and the owner of the real estate which is subject to alienation, and on written consent of the owner of the real estate which is subject to alienation.

If the owner of the real estate does not agree with property acquisition by the Government of the Republic of Armenia or the amount of compensation, the Government of the Republic of Armenia can perform alienation of real estate only judicially.

To the introduction of the judgment in legal force the owner of the real estate which is subject to alienation for needs of society and state shall refrain from damnification to real estate.

The procedure of alienation of real estate for needs of society and state is established by the Government of the Republic of Armenia - proceeding from provisions of this Article".

4. Article 8 of the Constitution of the Republic of Armenia as the fundamental, fixing basis of constitutional order, establishes the right of the owner to ownership, use and the order of the property belonging to it at discretion.

The state guarantees free development of all types of property and equal legal protection.

Article 28 of the Constitution placed in Chapter "Basic rights and freedoms of man and citizen" protects the rights of the personality as owner of property.

Noting that in the Republic of Armenia each person has the right to property and inheritance, the constitutional bases for the termination of the right of the owner are at the same time provided in Article 28.

5. Article 28 of the Constitution provides two methods of the termination of the right of the owner.

In one case of the owner can dispossess only court in the cases provided by the law. In the second case property acquisition can be made for needs of society and state only in exceptional cases, based on the law, with preliminary equivalent compensation.

The termination of the property right in the form of alienation from it provided in part one of article 28 of the Constitution is performed as action of forced nature, as responsibility.

6. Property acquisition for needs of society and state, stipulated in Article 28 Constitutions differs from deprivation of the property right in what occurs not as deprivation of property by accountability, and the fair owner shall in the presence of the bases, with observance of the established guarantees, provided by the Constitution to yield the property right to the state.

By the constitution it is fixed that property acquisition can be made for needs of society and state only in exceptional cases, based on the law, with preliminary equivalent compensation. Thus, the basis for property acquisition "needs of the state and society" are recognized, and as guarantees of protection of the rights of the owner of alienable property reckon alienation "only in exceptional cases", alienation "based on the law", alienation "with preliminary equivalent compensation of alienable property".

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