TIAC Opinion on Manifestations of Corruption During Construction Of

TRANSPARENCY INTERNATIONAL anti-corruption center 28 December, 2012 OPINION on manifestations of corruption during construction of Yerevan city center Large-scale urban development programs were launched in Armenia following the RA Government Decision N774 of 25 November 2000 “On Yerevan City’s Northern Avenue Construction Project” and subsequent decisions on property alienation and land allocations for construction.1 At the same time, these programs were marked with massive deprivation of citizens’ property and forced displacement constituting gross violations of human rights stipulated in the RA Constitution and international conventions. Illegal processes occurring under the guise of “state needs” were also accompanied with symptoms of corruption that reverberate and continue up until the present. In fact, programs on the construction of Northern Avenue and, later other areas in the center of Yerevan, were adopted behind close doors by a few officials with the sole intent to make profit. It was particularly apparent in view of the unhidden, personal interest of then President Robert Kocharyan in construction programs2 and boosting entrepreneurial activities of a few at the expense of the distorted fates of thousands of citizens’ and the destruction of the city’s historical and cultural heritage. These processes were carried out by the Yerevan Municipality based on illegal decisions of the RA Government and were accompanied by criminal inaction and/or actions supporting illegal activities by other respective state institutions, including oversight entities, law enforcement bodies and the judiciary. These actions and/or inactions are detailed below. Illegal decision-making processes • Construction processes in the center of Yerevan were carried out in violation of the RA Constitution (1995). Article 28 stipulates that “the property may be alienated for the needs of the society and the state only in exceptional cases, based on the law and with prior equivalent compensation.” Pursuant to the Decision of RA Constitutional Court N92 of 27 February 1998, a person’s private property could have been alienated as substantiated by part 2 of Article 28. Without a person’s consent, the right to property could have been ceased by the state only in case of adoption of a law on a particular property. Such a law would justify the supreme importance and significance of the alienation of property and state, which needs of the society and the state will be satisfied through the alienation of property. Nevertheless, the lack of such law at that moment did not prevent the Armenian authorities to illegally promote their ambitious urban development programs. According to the RA Constitutional Court’s above-mentioned decision N92, the authority to prescribe the right to real estate alienation belonged exclusively to the National Assembly of the Republic of Armenia. Whereas the RA Government was directly prohibited to set forth a procedure of property alienation for society and state needs that could entitle it to alienate the property. Pursuant to the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocol 1 on the Protection of Property Article 1, ratified 1 RA Government Decisions N774 of 25 November 2000, N645 of 16 July 2001, N950 of 5 October 2001, N1150-N of 1 August 2002, N1151-N of 14 August 2002, N1169-N of 1 August 2002, N1232-N of 11 September 2003, N399-N of 4 March 2004 and N909-N of 17 June 2004. Later after adoption of Law on “Alienation of Property for Society and State Needs” RA Government by its Decision N108 N of 25 January 2007 summarized the list of areas and persons who obtained areas recognized as exclusive supreme public interest within administrative districts of Yerevan city. 2 See http://www.youtube.com/watch?v=UFtgy3tMjgM TRANSPARENCY INTERNATIONAL anti-corruption center by the Republic of Armenia in 2002 “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.” RA Government decisions on the construction of Yerevan center in no way ever addressed “public interest” stipulated by the Convention and “society need” stipulated by the RA Constitution, while the speculated exclusiveness of “state need,” was never justified within the context of expropriation of people’s property and actual evictions to the street. Furthermore, according to European case law, deprivation of property occurred in order to confer a private benefit to a private party cannot be “in the public interest.” 3 Based on this premise, it is manifestly obvious that citizens’ properties in the center of Yerevan were alienated in contravention to the public interest, as they were directly transferred to private companies whose sole aim was to construct buildings and make profit from sales or lease of their premises. The owners of alienated properties were urged to conclude contracts with private companies on the sale of their properties. The state was not considered as party to contracts and actually failed to bear any responsibility, either for the legality of alienation processes, or proper execution of the contracts. • Urban development programs of the Yerevan center did not undergo environmental impact and urban development assessments as stipulated by Armenian legislation, which put under risk the environmental and construction security. There was a violation of the RA Law “On Environmental Impact Assessment” Article 12, which stipulates the prohibition of implementation of intended activities without a positive environmental assessment conclusion. In line with RA Government Decision N193 of 30 March 1999 “On the Thresholds for Intended Activities Liable to Environmental Impact Assessment” the construction conducted in an area exceeding 1000 sq. m. should have been subject to an environmental impact assessment and respective public hearings. The construction program of the center of Yerevan, started with 72,000 sq. m. of Northern Avenue and expanded to 345,000 sq. m. and yet failed to undergo any environmental impact assessment. In accordance with Article 6 of the RA Law “On Urban Development” and the RA Government Decision N96 of 30 March 2002 “On Endorsing the Procedure of Assessment of Urban Development Documents”, urban development programs were to undergo complex assessment which, among other considerations, had to take into account environmental impact assessment results. Given the failure of conducting environmental impact assessments it is, again, manifestly obvious that urban development assessments for construction programs in Yerevan were not carried out. e Also violated was the requirement of Article 14 of the RA Law “On Urban Development” on notification of the planned changes of the environment, intended to be implemented in line with RA Government Decision N660 of 28 October 1998 “On Procedure of Notification on Planned Changes of the Environment and Participation of Representatives of the Public in Discussions and Decision-making on Publicized Programs and Projects”.. Citizens were only notified of alienation of their properties, but they took no part in decision-making processes regarding the given areas. • Prior to the construction in Yerevan center, illegal preparatory work was carried out in order to remove the possible barriers related to protection of the city’s historical and cultural monuments. The Yerevan Mayor violated requirements of the RA Government 3 James and Others v. The United Kingdom. TRANSPARENCY INTERNATIONAL anti-corruption center Decision N13 of 15 January 1996 “On State Registration of Departmental Normative Acts” and failed to submit to the registration of the RA Ministry of Justice, in due time, the “Design of Complex Protection and Use of Historical and Cultural Monuments of Yerevan City,” endorsed by the Yerevan City Executive Committee Decision N 6/18 of 12 April 1991. As a result, the document became invalid. In addition, the Yerevan Mayor himself adopted Decision N1137 of 30 August 2000 on invalidating the above-mentioned decision of Yerevan City Executive Committee. As a result, Yerevan city “ceased to have” historical and cultural monuments subject to protection and for 4 years, until the adoption of the RA Government Decision N1616-N of 7 October 2004 “On Approving the State List of Immovable Historical and Cultural Monuments of Yerevan City” and the authorities were free to damage and destroy at least 26 monument-buildings on the place of construction.4 It is noteworthy that the RA Prosecutor General’s Office revealed the fact of monuments’ destruction in 2005, however up until now no one has been subjected to criminal liability. Discretionary valuation of property and compensation • Prior to launching the property alienation process, based on the RA Government Decision N1151-N of 1 August 2002, the authorities deprived the citizens of the opportunity to register the right to property for the real estate that they legally possessed. Later the RA Constitutional Court, in its Decision N630 of 18 April 2006, judged that the given decision of the RA Government, along with a number of Articles of RA Civil Code and RA Land Code, were in contradiction with the RA Constitution. As a result, a great number of citizens who had the right to ownership and to use of land plots and buildings, were unable to register their property in real estate cadastre

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