EcoLur
RA Justice Ministry has considered unconstitutional the draft decision to recognize overriding public interest over Gndevaz agricultural lands for the needs of Lydian International. Despite the objections submitted Justice Ministry, the decision was adopted at the May 19 sitting of the government.
As substantiation, RA Justice Ministry particularly says: "The draft does not comply with the provisions of other legal acts with higher legal force. Thus, according to Article 60, Part 5 of the Constitution of the Republic of Armenia, alienation of property with a view to ensuring overriding public interests shall be carried out in exceptional cases and under the procedure prescribed by law, only with prior and equivalent compensation.
It follows from the abovementioned constitutional content that the first, the Constitution, provides for the restriction of the owner's property right, the possibility of forced alienation of property, and the second, it can be carried out only for the purpose when there is a need for a society and a state, which shall be certain and clearly expressed in relation to a certain property, which the state is obliged to take into account and meet in the performance of its functions, and the third, the needs of the society and state shall be exclusive conditioned with the overriding public interest.
The prescription of the overriding public interest is, on the one hand, a guarantee of the protection of property rights, as in other cases the alienation of property will be unconstitutional, on the other hand, it limits the possibility for the state to use the alienated property for other purposes.
"Public interest" in the Republic of Armenia can be expressed only in the form of state and community interests. RA Law on Alienation of Property for the Needs of Society and State defines the concept of exclusive, overriding public interest and the procedure for its determination. In particular, Article 4 (2) of the law defines the goals that can be pursued by the overriding public interest. According to point f) of the mentioned part, one of the pursuing goals of the overriding public interest is the implementation of the development of energy, telecommunications, water supply, drainage, heat supply, urban development, mining prospecting, soil management, transport, communication routes or residential infrastructure development projects of republican or community or intercommunity significance.
Whereas the substantiation attached to the draft doesn’t show that the project is of republican or community or intercommunity significance. In this regard, if the project is of a private nature, the alienation of the land plots envisaged by the draft, based on the existence of an exclusive, overriding public interest, will violate the property rights of the persons enshrined in Article 60 of the Constitution.
In addition, under Article 4 (1) (b) of the RA Law on Alienation of Property for the Needs of the Society and State, the effective use of the overriding public interest cannot be ensured without the alienation of the given property. Property alienation should not cause unreasonable damage to the owner due to the overriding public interest, while the 2nd subclause of the 1st point of the presented draft and the substantiation only say that that the effective implementation of the Amulsar gold mine project (hereinafter referred to as the project) cannot be ensured without the alienation of the areas mentioned in Annex 1 to this decision, it will be impossible to implement the solutions envisaged by the project, if the vital structures required for the operation of the mine and the mining project are located in other places, as well as mining and/or construction works wil be carried out in the areas adjacent to the property objects to be alienated and/or in the areas adjacent to them...”
By the decision of the government, an exclusive, overriding public interest was recognized over 4 land areas of three owners. In particular, Sasun Harutyunyan of these three owners was not informed that his land is considered to be of exceptional interest. He refused to sell his land to the subsidiary of Lydian International, Geoteam CJSC, as he did not agree with the price offered by the company. The other owner, Mkhitar Arshakyan, was unable to sell his land area to Geoteam Company because the land was under arrest. The owners of the third land area were absent from Armenia.
June 08, 2016 at 14:23