FIRST SECTION
Application no. 76254/11
Adalat Ali Oglu AKHVERDIYEV against Azerbaijan
lodged on 1 December 2011
STATEMENT OF FACTS
The applicant, Mr Adalat Akhverdiyev, is an Azerbaijani national, who was born in 1972 and lives in Baku. He is represented before the Court by Mr F. Ağayev, a lawyer practising in Baku.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Demolition of the applicant’s house
Since his birth, the applicant lived in a house in the Khutor suburb of Baku, which previously belonged to his parents. In 2005 the applicant privatised it and, on 8 October 2005, he was issued an ownership certificate confirming his private ownership over the house. The total surface area of the house was 84.6 sq.m., including the habitable area of 58.8 sq.m. The house was located on a plot of land measuring 257 sq.m. He lived in the house with his wife and two little children and his 75 year-old mother.
According to the applicant, in the second half of 2009 employees of the Narimanov District Executive Authority (“the NDEA”) approached him with oral demands to give up his house and, in compensation, to accept a tenancy voucher to a new five–room flat under construction in an area previously occupied by a relocated cemetery. When the applicant asked to be presented with the lawful basis for such demands, he was told orally that it was a “government instruction”.
The applicant refused these demands, noting that he had no intention to relinquish his house. He noted that, in any event, for this to be possible, he would require a prior monetary compensation equal to the market value of the house and the plot of land.
According to the applicant, his neighbours faced the same demands at the same time and many of them were forced to give in to the NDEA’s pressure. They moved out and accepted tenancy vouchers to flats located elsewhere. Soon the authorities began demolishing their houses. With large-scale demolition works in the neighbourhood (including destruction of some walls and fences adjacent or immediately next to the applicant’s house and plot of land), accompanied with frequent power cuts and accumulation of debris and garbage around his house, the applicant and his family no longer found it possible to stay in the house and had to leave it in October 2009. However, the applicant’s mother remained in the house.
According to the applicant, on 8 December 2009 the NDEA evicted his mother and began demolishing his house. The house was demolished within a span of an unspecified number of days, together with the applicant’s belongings that remained inside.
2. The applicant lodges civil action
On 8 December 2009 the applicant lodged a court action with the Narimanov District Court against the NDEA. Subsequently, the BCEA, Azyevro LAU Limited Liability Company and the Ministry of Finance were joined to the case as co-defendants. The applicant asked the court to stop the defendants from breaching his right to benefit from his private property, to order the restoration of the property to its previous condition or, if that was no longer possible, to order them to pay him 500,000 Azerbaijani manats (AZN) for pecuniary damage, AZN 200,000 for non-pecuniary damage, and AZN 500 daily for damages caused by lost opportunity from December 2009 until the date of execution of the judgment.
In its reply to the applicant’s lawsuit, the NDEA responded that the relocation of the residents from the applicant’s neighbourhood was conducted in connection with “the important State project” approved by the Head of the Baku City Executive Authority (“the BCEA”) of 14 May 2004. As a legal basis for this order the NDEA indicated the old Housing Code of 1982 which had been in effect until 1 October 2009 (since that date, it has been replaced by the new Housing Code).
The BCEA order of 14 May 2004, available in the case file, concerned planning and construction of a large-scale real-estate development project including “a sports complex, a cinema, office buildings, residential buildings, a commercial centre, an underground parking lot, cottage-type houses, a ‘dolphinarium’ and a ‘planetarium’”. The order mentioned the need to bring some areas of the city into compliance with “the General Master Plan” for the city’s reconstruction. The order then referred to a request by a private real-estate development company for the allocation of the land for this project in a specific residential neighbourhood (apparently, where the applicant’s house was located), and instructed this private company to prepare and submit its development plan and to obtain all required title documents to the land. The document did not refer to any legal provisions that authorised the BCEA to order the taking of the residential premises from their current owners and did not mention any compensation. According to the applicant, he was informed of the existence of this document for the first time during the court proceedings.
On 2 March 2010 the NDEA requested the court to order an expert evaluation of the market value of the applicant’s house (which had already been demolished) and the five-room flat offered to the applicant in compensation. The applicant opposed this request, noting that the determination of the new flat’s market value was pointless, because he had refused it and it had not been the subject of his claim. He insisted that he refused to relinquish his ownership right to his house or otherwise exchange it for any other dwelling.
On 2 March 2010 the Narimanov District Court issued an order for an expert evaluation. The applicant challenged this order. After a series of appeals, this order was quashed by the Supreme Court on 28 July 2010.
3. The Narimanov District Court’s judgment on the merits
By its judgment of 4 November 2010 the Narimanov District Court rejected the applicant’s claims.
The court confirmed that the house was in the applicant’s private ownership. It noted, however, that the applicant had not formalised his ownership rights to the plot of land and, therefore, could not make any claims in respect of the land.
The court further noted the BCEA order of 14 May 2004. It established that between 2007 and 2009 the BCEA and NDEA had corresponded with each other concerning “problems” in relocating the residents of “old, hostel-type houses and squatter buildings” in the applicant’s neighbourhood and that they had decided to contract a private company (Azyevro LAU) to construct new residential buildings for these residents in a vacant area previously occupied by a relocated cemetery. The court noted that the applicant had been “given” a five-room flat in one of these new buildings, under an occupancy voucher issued in his name on 29 September 2009 pursuant to the NDEA decision of 24 April 2009.
The court further proceeded to rely on various provisions of the old Housing Code concerning the manner of provision of new flats to persons displaced from their homes owing to expropriation of land for State needs.
The court also mentioned Article 157.9 of the Civil Code concerning expropriation of private property for State needs, although it appears that it did not attempt to determine whether the expropriation of the applicant’s house had been in compliance with the requirements of this provision.
The court found that the applicant’s claim was unsubstantiated, because the BCEA order of 14 May 2004 was “in force” and because the issuance of an occupancy voucher in the applicant’s name to a five-room flat in a newly constructed building constituted an “in-kind compensation” for his house within the meaning of Articles 41 and 135 of the old Housing Code.
Furthermore, although the order of 2 March 2010 on expert evaluation had been quashed, the NDEA nevertheless presented to the court an “expert report” which evaluated the market value of the new flat proposed to the applicant as higher than that of his old house. The Court considered that the compensation given to the applicant was fair, because the new flat, with a total surface area of 123 sq.m., was larger than the applicant’s house and had higher market value. Therefore, the court considered that the applicant’s demand for payment of the market value of his house in cash was also unsubstantiated.
The court then proceeded to reject the applicant’s claim for non-pecuniary damage as unsubstantiated, because it found that the applicant had failed to demonstrate that he had suffered any moral damage.
4. Appeals
The applicant appealed against the judgment of 4 November 2010, arguing inter alia that: (a) although the first-instance court based its decision on the premise that the applicant’s house had been expropriated for the State or public needs, it did not address the fact that this “expropriation” had not complied with the applicable requirements of the Constitution and the relevant provisions of the Civil Code (in particular, Article 157.9 of the Civil Code); (b) the de facto deprivation of property had been unlawful as there had been no prior expropriation order issued in accordance with the procedure specified by law; in particular, the actual reason for expropriation did not fall under any of the lawful grounds for expropriation specified by the law and there had been no expropriation order issued by the Cabinet of Ministers as required by the law; in such circumstances, the applicant had been arbitrarily deprived of his property; (c) the first-instance court incorrectly relied on various provisions of the old Housing Code which had no longer been in force at the time of the interference (December 2009); in any event, the provisions of that Code were misapplied, as most of those provisions concerned “State-owned and public housing” and not privately-owned housing; (d) despite the fact that the applicant’s claim specifically sought to establish only the fact that the interference was unlawful, the first-instance court avoided deciding on that matter and, instead, attempted to force him to accept as “compensation” the new flat offered to him by the defendants, which he had repeatedly and lawfully refused; (e) the part of the judgment concerning the dismissal of his claim to the plot of land was unlawful, as the right of ownership to the plots of land under privately-owned houses had been granted to their respective owners by the Presidential Decree of 10 January 1997; therefore, he was the lawful owner of the plot of land by virtue of his ownership over the house, even though he had not formally registered his ownership right over it; and (f) the first-instance court’s reliance on an “expert report” presented by the NDEA was unacceptable, as that report had not been prepared by a qualified expert, contained numerous mistakes, and had not been scrutinised at the hearing.
In its judgment of 18 March 2011 the Baku Court of Appeal essentially repeated the Narimanov District Court’s reasoning and upheld that court’s judgment of 4 November 2010, except the part of the judgment concerning the applicant’s claim in respect of pecuniary damage. In that part, the Baku Court of Appeal quashed the judgment and upheld the applicant’s claim in respect of pecuniary damage, ordering that the applicant be given two new flats as compensation (a one-room flat and a four-room flat, instead of the five-room flat offered earlier) and instructing the NDEA to deal with the formalities of transferring these flats to the applicant.
The applicant lodged a cassation appeal, mostly reiterating the points of his previous appeal. He insisted that he had been unlawfully deprived of his house and that, despite his consistent and lawful refusals to accept as compensation any new flats that he did not want, the lower courts essentially forced him to accept this unlawful compensation.
On 8 July 2011 the Supreme Court upheld the Baku Court of Appeal’s judgment of 18 March 2011.
B. Relevant domestic law
Article 13 § I of the Constitution provides as follows:
“The property in the Republic of Azerbaijan is inviolable and is protected by State”.
Article 29 § IV of the Constitution provides as follows:
“No one shall be deprived of his or her property without a court decision. Total confiscation of property is not permitted. Alienation of the property for State needs may be permitted only on the condition of prior and fair compensation of its value”.
Article 157.9 of the Civil Code, as applicable prior to 1 June 2004, provided:
“Private property can be alienated by the State if required by the State or public necessity only in cases permitted by law and subject to prior payment of compensation in an amount corresponding to its market value”.
Article 157.9 of the Civil Code, as amended on 1 June 2004 and applicable at the material time, provided:
“Private property can be alienated by the State if required by the State or public necessity, for the purposes of building roads or other communication lines, delimiting the State border strip or constructing the [State] defence facilities, by a decision of the relevant authority [the Cabinet of Ministers], only in cases permitted by law, and subject to prior payment of compensation in an amount corresponding to its market value”.
Article 203 of the Civil Code provided as follows:
“203.3. Forcible deprivation of property is not permitted, except for the following measures taken under the grounds provided for by law:
203.3.1. forfeiture of property for liabilities;
203.3.2. alienation of property that, by law, cannot belong to a given person;
203.3.3. alienation of immovable property in connection with the purchase of the land;
203.3.4. purchase of badly maintained cultural valuables;
203.3.5. requisition [alienation of property in connection with natural disasters, technological accidents, epidemics and other emergencies];
203.3.6. confiscation.
...
203.5. The alienation of property owned by individuals and legal persons for State and public needs shall be carried out in accordance with paragraph IV of Article 29 of the Constitution of the Republic of Azerbaijan.”
Article 207 of the Civil Code provided as follows:
“Where it is impossible to alienate a plot of land for the State or public needs without termination of the ownership rights to buildings, structures or other immovable property located on such plot of land, the State may purchase such property”.
COMPLAINTS
1. The applicant complains that the unlawful taking and subsequent demolition of his house, accompanied by pressure and threats, amounted to ill-treatment under Article 3 of the Convention.
2. The applicant complains under Article 6 of the Convention that the domestic proceedings were unfair and unreasoned because the courts completely ignored the applicable legal provisions, instead referring to irrelevant legal provisions and other considerations, and unlawfully changed the subject matter of the case of their own accord by deciding on matters that had not been raised by the applicant in his claim. He also complains that the proceedings did not comply with the “reasonable time” requirement.
3. The applicant complains that the demolition of his house amounted to an unjustified interference with his right to respect for his home guaranteed by Article 8 of the Convention.
4. The applicant complains that the breach of his ownership rights amounted to an unlawful and unjustified interference under Article 1 of Protocol No. 1 to the Convention.
5. The applicant complains that his eviction from his demolished house and forcible removal to a new flat given to him against his will was in breach of his right to freedom of movement under Article 2 of Protocol No. 4 and amounted to a violation of Article 18 of the Convention.
6. Lastly, the applicant complaints under Article 13 of the Convention, in conjunction with the above complaints, that he was not afforded a remedy providing an effective protection against the violations of his rights.
QUESTIONS TO THE PARTIES
1. Has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
In particular, how was that deprivation qualified under domestic law (expropriation, nationalisation, confiscation, or otherwise)? What act (document or physical action of a public authority) constituted the interference in the present case? What was the law applicable to the relevant form of deprivation of property? In particular, were the legal provisions cited in the attached summary of facts applicable? What were the substantive and procedural conditions required by the applicable law for the relevant form of deprivation of property to be lawful, and were those conditions complied with in the present case? What was the legal basis for the Baku City Executive Authority’s order of 14 May 2004 and for the other acts and decisions of that authority and the Narimanov District Executive Authority in the present case, and did those authorities have competence under the domestic law to take decisions resulting in expropriation of privately-owned property, as in the present case?
If the interference was lawful, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
2. Has there been an interference with the applicant’s right to respect for his home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
3. 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 equality of arms respected as regards the scope of the claim to be decided by the domestic courts? Was the applicant’s right to a reasoned decision respected?
4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?
5. The Government are requested to submit copies of texts of any domestic legal provisions used in support of their answer to Question 1 above. The parties are also requested to specify (by indicating specific dates) the exact time frame within which the demolition of the applicant’s house was commenced and completed and the time frame within which the demolition of all other buildings in the neighbourhood was commenced and completed, as well as submit information about the current condition of the site where the applicant’s house was located.
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