Communicated on 20 April 2016
FIFTH SECTION
Application no. 43467/06
Aykhan AKHUNDOV
against Azerbaijan
lodged on 9 October 2006
STATEMENT OF FACTS
The applicant, Mr Aykhan Nazim oglu Akhundov, is an Azerbaijani national, who was born in 1965 and lives in Baku. He is represented before the Court by Ms S. Suleymanova and Mr J. Suleymanov, lawyers practising in Azerbaijan.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
The applicant was one of the shareholders of a private joint-stock company Azintrans. He held 3,800 shares of Azintrans (4.64% of the total shares); at the material time each share having a value of 10,000 old Azerbaijani manats.
On 11 July 2003 Azintrans concluded an exchange contract with the applicant. According to that contract, the applicant exchanged his shares in Azintrans for several buildings owned by Azintrans and situated in the Binagadi district of Baku. Those buildings included an unfinished building of 117.5 square meters, a lavatory of 22.04 square meters, a brick fence and gates (“the buildings”).
Azintrans’s rights over the buildings were confirmed by a “technical passport” of 13 April 1998, issued by the Department of Technical Inventory of the State Property of the State Property Committee (Dövlət Əmlak Komitəsinin Dövlət Əmlakının İnventarlaşdırılması İdarəsi). That technical passport had initially been issued for Azintrans’s predecessor Azərxaricinəqliyyat, a firm established by the State Enterprise Azəravtonəqliyyat.
Azintrans had a right of use to a plot of land of 0.873 hectares (“the plot of land”) on which the buildings were erected, but no ownership rights. According to the applicant, the owner of the plot of land was the Bilajari Municipality.
The exchange contract contained a clause that from the moment of signing of that contract the plot of land which was in Azintrans’s use was to be transferred to the applicant’s use.
On 9 September 2003 the Bilajari Municipality adopted decision no. 357 to give the plot of land in question to the applicant for a long-term use. That decision was adopted on the basis of the aforementioned exchange contract of 11 July 2003.
On 9 September 2003 the applicant concluded a rent agreement in respect of the plot of land in question with the Bilajari Municipality for a period of thirty years.
It appears that during an unspecified time period the applicant reconstructed and expanded the buildings he obtained from Azintrans.
On 20 October 2003 the Head Department of the State Technical Inventory and Registration of Property Rights of the State Construction and Architecture Committee (Dövlət Tikinti və Arxitektura Komitəsi Baş Dövlət Texniki İnventarlaşdırma və Mülkiyyət Hüquqlarının Qeydiyyatı İdarəsi) issued a “technical passport” for the reconstructed and expanded buildings.
2. Proceedings before the Narimanov District Court and registration of the applicant’s rights
On an unspecified date in 2004, the applicant lodged a lawsuit against the Baku City Department of Technical Inventory and Registration of Property Rights (Bakı şəhəri Tİ və MHQİ-si) (“the DTIRPR”), asking the court to order that agency to issue a certificate confirming his property right over the reconstructed and expanded buildings. The applicant also asked the court to order the Baku City Land Department of the State Land and Cartography Committee (Dövlət Torpaq və Xəritəçəkmə Komitəsinin Bakı şəhəri Torpaq Şöbəsi) (“the Land Department”) to issue a State Certificate (Dövlət Aktı) about his right of permanent use over the plot of land in question.
On 15 July 2004 the Narimanov District Court adopted a judgment granting the applicant’s lawsuit against the DTIRPR. The court ordered issuance of an ownership certificate confirming his property right over the reconstructed and expanded buildings.
On 22 July 2004 the Narimanov District Court adopted a supplementary judgment granting the applicant’s request to order the Land Department to issue a State Certificate confirming the right of permanent use over the plot of land in question.
On 23 September 2004 the DTIRPR issued a certificate confirming the applicant’s property right over the reconstructed and expanded buildings of 1,911.5 square metres.
On 29 December 2004 the Land Department issued a State Certificate. The certificate was issued for 0.7637 hectares of land instead of initial 0.873 hectares.
3. Domestic proceedings brought by Azintrans
(a) Proceedings before the Court of Appeal
It appears that the plot of land in question used by the applicant was neighbouring a plot of land which was in Azintrans’s use. It also appears that on an unspecified date Azintrans decided to privatise its plot of land.
By a letter of 6 May 2005 the Department of Management and Privatisation of State Property of the Ministry of Economic Development (İqtisadi İnkişaf Nazirliyi Dövlət Əmlakının İdarə Olunması və Özəlləşdirilməsi Departamenti), referring to the domestic legislation, informed the applicant that the plot of land, which was in his use in accordance with the State Certificate of 29 December 2004, could not be included in the plot of land to be privatised by Azintrans.
On 2 June 2005 Azintrans lodged an appeal against the judgments of 15 July 2004 and 22 July 2004 of the Narimanov District Court. Azintrans questioned the validity of the exchange contract of 11 July 2003.
Azintrans argued, firstly, that, at the time when the exchange contract had been concluded, the plot of land in question had been in State ownership and that only the Ministry of Economic Development had had the right to dispose of it. Therefore, the company could have given the plot of land in question into the applicant’s use only upon consent of the owner. Also, the Bilajari Municipality had not had the right to sign the rent of land agreement of 9 September 2003 with the applicant.
Azintrans argued, secondly, that, according to the exchange contract of 11 July 2003, the applicant had obtained buildings of 117.5 square metres and 22.4 square meters, but the DTIRPR had issued a certificate confirming the applicant’s property right over buildings of 1,911.5 square metres. The enlargement of the initial buildings had been made by the applicant without authorisation and therefore had been unlawful.
Azintrans also complained that the Narimanov District Court should have substituted the DTIRPR as a respondent with the Ministry of Economic Development or invited the latter as a second respondent. In addition, the court should have invited Azintrans to the proceedings as a third party whose interests were affected.
It appears that the Court of Appeal admitted Azintrans’s appeal for examination on the merits.
On 3 August 2005 the Court of Appeal examined Azintrans’s appeal. Apparently the court invited that company to participate in the proceedings as a respondent party. The representative of the Ministry of Economic Development was also invited to the proceedings.
The Court of Appeal granted Azintrans’s appeal and quashed the judgment of 15 July 2004 and supplementary judgment of 22 July 2004 of the Narimanov District Court. The Court of Appeal ordered the annulment of the ownership certificate of 23 September 2004 and of the State Certificate of 29 December 2004.
The Court of Appeal based its judgment on Azintrans’s abovementioned arguments. In addition to those arguments the Court of Appeal stated that at the time when Azintrans had signed the exchange contract of 11 July 2003 with the applicant that company had had only a “technical passport” for the buildings in question.
According to the judgment of the Court of Appeal of 3 August 2005, the representative of the Ministry of Economic Development also supported the appeal lodged by Azintrans.
(b) Quashing of the judgment of 3 August 2005 of the Court of Appeal
The applicant lodged a cassation appeal against the judgment of 3 August 2005.
The applicant complained that Azintrans could not have been involved in the proceedings as a party. Referring to the belated submission of an appeal by Azintrans he argued in particular that that company had been aware of the proceedings before the Narimanov District Court while they were ongoing. The company had also been aware of his reconstruction works on the plot of land in question from the beginning of those works.
The applicant further argued that, contrary to the text of the judgment of 3 August 2005, the representative of the Ministry of Economic Development had not supported the appeal lodged by Azintrans, but stated that the judgments of the Narimanov District Court were lawful.
On 24 August 2005 the Department of Management and Privatisation of State Property of the Ministry of Economic Development also lodged a cassation appeal against the judgment of 3 August 2005. It complained that the Court of Appeal had misrepresented its position and that contrary to the judgment of 3 August 2005 the representative of the Ministry of Economic Development had supported the judgments of the first-instance court and opposed Azintrans’s appeal. The Ministry of Economic Development further argued that the Court of Appeal had annulled the applicant’s right to use the plot of land in question without inviting to the proceedings the Bilajari Municipality and therefore the judgment of 3 August 2005 was in violation of the rights of the Bilajari Municipality.
On 14 November 2005 the Supreme Court quashed the judgment of 3 August 2005 and sent the case to the Court of Appeal for re-examination.
The Supreme Court noted that the Court of Appeal had examined the appeal submitted by Azintrans almost one year after the execution of the Narimanov District Court’s judgment; that the court had misrepresented the positions of the Ministry of Economic Development and of the Land Department; that the court had failed to invite the Bilajari Municipality to the proceedings and to verify who was the owner of the plot of land in question; and that the court had failed to reason why it had concluded that the applicant’s property right over the buildings in question should not have been registered.
(c) Re-examination of the case by the Court of Appeal and the final decision of the Supreme Court
It appears that on an unspecified date the Court of Appeal requested the Bilajari Municipality to provide to the court information related to the case. On 27 February 2006 the Bilajari Municipality sent a response letter to the Court of Appeal explaining that, in accordance with a presidential decree, since 1 January 2001 the right to give permissions for use of land had been transferred from the district executive authorities to the municipalities. The Bilajari Municipality did not specify the date and the number of the decree it referred to.
On an unspecified date the Court of Appeal sent to the applicant summons dated 28 February 2006 and signed by Judge S.H. According to the summons, the applicant was invited to a hearing on the basis of an appeal lodged by the State Registry Service of State Property under the Cabinet of Ministers (Nazirlər Kabineti yanında Dövlət Əmlakının Dövlət Reyestri Xidməti) against the judgment of 15 July 2004 of the Narimanov District Court. The hearing was scheduled for 28 March 2006 at 11 a.m. Copies of the summons were addressed to Azintrans, the State Registry Service of State Property under the Cabinet of Ministers, the Department of Management and Privatisation of State Property of the Ministry of Economic Development and the Land Department.
On 7 March 2006 the Court of Appeal, presided by Judge S.H., re‑examined Azintrans’s appeal.
According to the applicant, the Court of Appeal did not inform him about the hearing of 7 March 2006. Only a representative of Azintrans participated at the hearing.
The Court of Appeal granted Azintrans’s appeal and quashed the judgment of 15 July 2004 and the supplementary judgment of 22 July 2004 of the Narimanov District Court. The court declared invalid the exchange contract of 11 July 2003 and the rent agreement of 9 September 2003. It also ordered Azintrans to pay the applicant the monetary value of his 3,800 shares. Additional buildings constructed by the applicant on the plot of land in question were to be demolished.
The Court of Appeal based its judgment on the argument mentioned earlier in the judgment of 3 August 2005 that, at the time when the exchange contract had been concluded, the plot of land in question had been in State ownership and only the Ministry of Economic Development had had the right to dispose of it, and Azintrans had had only a “technical passport” of 13 April 1998 for the buildings in question and not a document confirming its ownership right.
The Court of Appeal further noted that the Bilajari Municipality had failed to appear at the hearing and prove that the plot of land in question had been its property. The court therefore concluded that the Bilajari Municipality had not been the owner of the plot of land in question.
The Court of Appeal finally noted that the DTIRPR had had no right to issue the certificate of 23 September 2004 confirming the applicant’s property right over the reconstructed and expanded buildings, and that only the Ministry of Economic Development had had the right to issue such a certificate.
The applicant lodged a cassation appeal against the judgment of 7 March 2006.
By a decision of 7 June 2006 the Supreme Court dismissed the applicant’s cassation appeal and upheld the Court of Appeal’s judgment of 7 March 2006.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that the quashing by the domestic courts of the final first-instance judgments after a belated appeal lodged by a third party was arbitrary. The applicant argued in particular that admission of that appeal for examination on the merits had been in violation of the domestic law (namely, Article 362 of the Code of Civil Procedure and Article 354 of the Civil Code).
The applicant further complained that the reasons given by the domestic courts for the outcome they reached had been arbitrary.
2. Invoking Article 6 § 1 of the Convention the applicant also complained that his right to be informed about and to participate effectively at the hearing of the Court of Appeal of 7 March 2006 had been violated.
3. Invoking Article 1 of Protocol No. 1 to the Convention the applicant complained that there had been an interference with his peaceful enjoyment of his possessions, namely, the buildings and the plot of land in question.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, was the principle of legal certainty respected as regards:
(a) the quashing by the Court of Appeal of the judgment of 15 July 2004 and supplementary judgment of 22 July 2004, which had allegedly become final one month after their adoption;
(b) the invalidation of the exchange contract of 11 July 2003 and the rent of land agreement of 9 September 2003?
Was the applicant’s right to a reasoned judgment respected?
Was the applicant’s right to be informed about and to participate effectively in the proceedings before the Court of Appeal on 7 March 2006 respected?
2. Has there been an interference with the applicant’s right to peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1 and, if so, was that interference justified?
3. The parties are requested to clarify the following factual circumstances and, where appropriate, submit the relevant documents in support of their submissions:
(a) To which court (the Narimanov District Court or to the Court of Appeal) was Azintrans’s appeal of 2 June 2005 submitted? Was the appeal submitted within the statutory time-limit and was the admissibility of the appeal examined by the domestic courts?
(b) What was the status in Azerbaijani legislation and practice of the technical passport of 13 April 1998? In particular, could Azintrans, based on the fact of possessing that technical passport, request issuance of an ownership certificate (mülkiyyət hüququnun qeydiyyatı vəsiqəsi) for the buildings it obtained as a successor of Azərxaricinəqliyyat?
4. The parties are requested to submit copies of all documents relating to the proceedings before the domestic courts, including the applicant’s complaints, appeals and requests (in particular the applicant’s cassation appeal against the decision of 7 March 2006 of the Court of Appeal), and the transcripts of the hearings.
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