Communicated on 19 January 2017
FIFTH SECTION
Application no. 67879/12
Aida Alish gizi ALIYEVA and others against Azerbaijan
and 3 other applications
(see list appended)
The applicants are Azerbaijani nationals. They were born on various dates (see Appendix) and live in Baku. They are represented before the Court by various lawyers practicing in Azerbaijan (see Appendix).
A. Background
The facts of the cases, as submitted by the applicants, may be briefly summarised as follows.
On 9 March 2010 the head of the Baku City Executive Authority (“the BCEA”) issued order no. 85 entitled Concerning Permission for Construction of a Shopping Centre (Ticarət mərkəzinin tikintisinin layihələndirilməsinə icazə verilməsi haqqında sərəncam – hereinafter “the order of 9 March 2010”), on the basis of which residential and non‑residential buildings located on Mikayil Useynov (formerly Neftchilar) Avenue, neighbourhood no. 66 (buildings 57, 59, 61) were to be demolished for the purpose of constructing a shopping centre. The demolition of the properties and the relocation of the residents on the basis of mutual consent were to be carried out at the expense of Cooperative K., a subsidiary of Company A. (also a private company).
The applicants in application no. 67879/12 owned flats and the applicants in applications nos. 52101/13 and 9504/14 owned non-residential properties (“the properties”) at 61 Mikayil Useynov Avenue. The non-residential properties were used as shops.
Starting in the summer of 2010, the employees of Company A. and/or Cooperative K. instructed the residents in that area to vacate their properties in exchange for either (i) compensation of 1,500 to 2,000 Azerbaijani manats (AZN) per sq. m of their respective property or (ii) a new property in another part of the city in buildings built by Company A.
Some of the residents accepted the BCEA’s offer and vacated their properties. Starting in 2011 the employees of Company A. and/or Cooperative K. started destroying those residents’ properties. The provision of utilities to the remaining properties was frequently suspended, which made living conditions very difficult for the remaining residents.
On 10 June 2011 the employees of company A. and/or cooperative K. completed the demolition of the applicants’ properties.
B. Application no. 67879/12
On 17 June 2011 the second and third applicants and on 11 July 2011 the first applicant lodged a complaint with the Sabail District Court against the BCEA, the State Committee on Property Issues, Company A., Cooperative K. and the Sabail District Police Office as defendants and the Ministry of Emergency Situations as a third party.
They argued that the order of 9 March 2010 and the allegedly existing lease contract between the BCEA and Company A. and/or Cooperative K. should be declared invalid.
They also asked for the restoration of the demolished properties, AZN 1,250,000 in pecuniary damages and AZN 100,000 in non-pecuniary damages and 1,026 United States dollars (USD) per month, starting in August 2010, as compensation for loss of profit for the first applicant; AZN 1,250,000 in pecuniary damages and AZN 100,000 in non-pecuniary damages for the second applicant; and AZN 500,000 in pecuniary damages and AZN 50,000 in non-pecuniary damages for the third applicant.
They further argued that their property rights and right to respect for their homes had been breached and that they had been subjected to ill-treatment.
In support of their complaints, the applicants submitted an expert report delivered by a non-governmental organisation, E., indicating that the market value of their properties was AZN 3,180 per sq. m.
On 28 September 2011 the third applicant received AZN 165,000 from Company A. as compensation for her demolished property and signed a statement confirming receipt.
On 8 December 2011 the Sabail District Court upheld the applicants’ claims in part, finding that the failure of Cooperative K. to pay compensation was unlawful and ordering Cooperative K. to pay compensation in the amount of AZN 397,480 to the first applicant, compensation in the amount of AZN 307,230 to the second applicant and compensation in the amount of AZN 1,630 to the third applicant (bearing in mind that she had already received AZN 165,000); it also ordered Cooperative K. to pay AZN 1,000 to each applicant in non-pecuniary damages.
The level of compensation ordered by the court (AZN 1,900 per sq. m) was based on (i) another expert report delivered by a private company, M., that had determined the market price of the applicant’s property as being AZN 1,500-1,900 per sq. m, (ii) the compensation paid to the third applicant, and (iii) the compensation paid by the BCEA to other persons whose properties in other parts of the city were demolished.
The court also held that the order of 9 March 2010 had been lawful and dismissed the claims in respect of all other defendants.
The applicants appealed.
On 5 April 2012 the Baku Court of Appeal and on 2 August 2012 the Supreme Court upheld the first-instance court’s judgment.
C. Application no. 52101/13
On an unspecified date after the demolition of his property, the applicant lodged a complaint with the Sabail District Court against Company A. and Cooperative K.
He complained of breaches of his property rights and asked for compensation in the amount of AZN 30,600 for his demolished property, compensation in the amount of AZN 5,320 for those of his possessions that had been destroyed during the demolition, compensation in the amount of AZN 18,000 for loss of profit, and AZN 10,000 in non-pecuniary damages.
In support of his complaints, the applicant submitted an expert report delivered by a non-governmental organization, E., indicating that the market price of his property was AZN 4,500 per sq. m – AZN 30,600 in total.
On 25 January 2012 the Sabail District Court upheld the applicant’s claims in part, finding that the failure of Company A. and Cooperative K. to pay compensation was unlawful and ordering Company A. and Cooperative K. jointly to pay the applicant compensation in the amount of AZN 14,960 for the applicant’s demolished property, compensation in the amount of AZN 1,500 for loss of profit, and AZN 1,000 in non-pecuniary damages. The level of compensation ordered by the court (2,200 per sq. m) was based on (i) another expert report delivered by a private company, M., that had determined the market price of the applicant’s property as being AZN 1,800-2,000 per sq. m, and (ii) the compensation paid by Company A. and/or Cooperative K. to other persons whose properties were demolished.
The applicant appealed. On 16 May 2012 the Baku Court of Appeal and on 7 December 2012 the Supreme Court upheld the first-instance court’s judgment.
The applicant and his representative were not present at the hearing of the Supreme Court, allegedly due to the fact that they had not been informed of the date of the said hearing.
The Supreme Court’s judgment was served on the applicant on 14 January 2013.
D. Application no. 9504/14
On an unspecified date, after the demolition of his property, the applicant lodged a complaint with the Sabail District Court against Company A., Cooperative K., the BCEA, the State Committee on Property Issues and the Baku office of the State Register of Real Estate.
He complained of breaches of his property rights and asked for compensation in the amount of AZN 668,000 for his demolished property, compensation in the amount of AZN 92,250 for loss of profit, and AZN 50,000 in non-pecuniary damages.
In support of his complaints, the applicant submitted an expert report delivered by a non-governmental organization, E., indicating that the market price of his property was AZN 6,248 per sq. m and that the average market rent for such a property was AZN 42.5 per sq. m per month.
On 3 December 2012 the Sabail District Court upheld the applicant’s claims in part, finding that the failure of Company A. (or, as the case may be, Cooperative K.) to pay compensation was unlawful and ordering Company A. (or Cooperative K.) to pay the applicant compensation in the amount of AZN 224,000 for the demolished property and AZN 1,000 in non-pecuniary damages. The level of compensation ordered by the court was based on (i) another expert report delivered by a private company, M., that had determined the market price of the applicant’s property as being AZN 1,800-2,000 per sq. m, and (ii) the compensation paid by Company A. and/or Cooperative K. to other persons whose properties were demolished. The court dismissed the claims in respect of all other defendants.
The applicant appealed.
On 12 March 2013 the Baku Court of Appeal and on 11 July 2013 the Supreme Court upheld the first-instance court’s judgment.
E. Application no. 674/15
On an unspecified date in 2011 the first of the two applicants received AZN 1,500 per sq. m from Company A. as compensation for his demolished property and signed a statement confirming receipt. On 26 April 2011 a certain L.K., acting on the basis of a power of attorney issued by the second applicant, received AZN 141,000 (AZN 1,500 per sq. m) from Company A. as compensation for his demolished property and signed a statement confirming receipt.
On 23 January 2014 the applicants lodged a complaint with the Sabail District Court against the BCEA, the State Committee on Property Issues, Company A., Cooperative K. and the Sabail District Police Office as defendants and the Ministry of Emergency Situations as a third party.
They argued that the order of 9 March 2010 and the allegedly existing lease contract between the BCEA and Company A. and/or Cooperative K. should be declared invalid.
They also asked for the restoration of the demolished properties; in addition, they asked for (i) AZN 200,000 in pecuniary damages, (ii) AZN 20,000 in non-pecuniary damages, and (iii) AZN 400 per month, starting in June 2011, as compensation for loss of profit for the first applicant; and (i) AZN 400,000 in pecuniary damages, (ii) AZN 50,000 in non-pecuniary damages, and (iii) AZN 600 per month, starting in June 2011, as compensation for loss of profit for the second applicant.
They further argued that their property rights and right to respect for their homes had been breached.
On 23 September 2014 the Sabail District Court split the applicants’ claims into two separate sets of proceedings; it then sent the claims against the BCEA, the State Committee on Property Issues, and the Sabail District Police Office and to Baku Administrative-Economic Court No. 1 for examination. The applicants did not appeal against this decision.
On 11 December 2014 Baku Administrative-Economic Court No. 1 declared the claims inadmissible, finding that the applicants had failed to notify the defendants of their claims prior to lodging that claims. The applicants did not appeal against this decision.
On 20 February 2015 the Sabail District Court dismissed the applicants’ claims against Company A. and Cooperative K., finding that Company A had already paid appropriate compensation to the applicants and that the applicants had failed to prove that they had agreed to such compensation under duress.
The court also held that the order of 9 March 2010 had been lawful.
The applicants appealed.
On 13 May 2015 the Baku Court of Appeal and on 8 October 2015 the Supreme Court upheld the first-instance court’s judgment.
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention that the civil proceedings instituted by them in connection with the expropriation and demolition of their property were not fair; they complain in particular that the domestic courts delivered unreasoned judgments in that they failed to properly verify the compliance of the interference with the applicable domestic legislation and in respect of the applications nos. 67879/12, 52101/13 and 9504/14 also disregarded the expert reports concerning the market value of the properties delivered by a non-governmental organisation allegedly at the courts’ own request.
2. The applicant in application no. 52101/13 also complains that he and his lawyer could not participate in the hearing of the Supreme Court of 7 December 2012 as they had not been duly notified of the date of the hearing.
3. The applicants in applications nos. 67879/12 and 674/15 complain under Article 8 of the Convention that the demolition of their property had been unlawful and amounted to a violation of their right to respect for their homes.
4. The applicants complain that the de facto expropriation, by way of demolition, of their properties amounted to an unlawful and unjustified interference with their property rights under Article 1 of Protocol No. 1 to the Convention. They further complain that the amount of compensation paid for the properties was very low.
5. The applicants in applications nos. 67879/12 and 674/15 also complain under Article 1 of Protocol No. 1 to the Convention that they were not paid compensation for the land underneath and/or attached to their properties.
6. The applicant in application no. 52101/13 also complains under Article 1 of Protocol No. 1 to the Convention that he was not paid compensation for those of his possessions that were destroyed during the demolition of his property.
7. The applicants in application no. 67879/12 also complain under Article 1 of Protocol No. 1 to the Convention that the respective sizes of their properties were not correctly calculated when the compensation amount was ordered.
COMMON QUESTIONS
1. Have the applicants been deprived of their 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? Moreover, were the amounts of compensation paid to the applicants fair and adequate in terms of Article 1 of Protocol No. 1?
In particular, how was that deprivation qualified under domestic law (expropriation or otherwise)? What act (document or physical action) constituted the interference in the present cases? What was the law applicable to the relevant form of deprivation of property? 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 cases? What was the legal basis for the Baku City Executive Authority’s order of 9 March 2010 and for the other acts and decisions of that authority in the present cases, and did the Baku City Executive Authority have competence under the domestic law to take decisions resulting in expropriation or demolition of privately-owned property and relocation of their residents, as in the present cases? What was the legal basis for the demolition of the properties by Company A. and Cooperative K.? What was the legal status of the land underneath the properties? What were Company A.’s and Cooperative K.’s rights to the relevant land and the properties at time of demolition? Were there a lease contract or other document executed between the BCEA and Company A. and/or Cooperative K.?
If the interference was lawful, did that interference impose an excessive individual burden on the applicants (see, mutatis mutandis, Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
2. Did the applicants have a fair hearing in the determination of their civil rights and obligations in the proceedings concerning the violation of their property rights, in accordance with Article 6 § 1 of the Convention? In particular, was the applicants’ right to a reasoned judgment respected?
3. The parties are requested to provide, where relevant and available, necessary documentary evidence in support of their replies and submissions.
CASE SPECIFIC QUESTIONS
1. In respect of applications nos. 67879/12, 52101/13 and 9504/14:
Did the domestic courts order any expert reports to be delivered regarding the market price of the properties?
2. In respect of application no. 52101/13:
Was the applicant and/or his lawyer present at the hearing of the Supreme Court of 7 December 2012? If not, were they duly notified about the date and time of that hearing?
3. In respect of applications nos. 67879/12 and 674/15:
Has there been an interference with the applicants’ right to respect for their homes, within the meaning of Article 8 § 1 of the Convention, on account of the demolition of their properties? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
4. In respect of applications nos. 67879/12 and 674/15:
Were the land underneath and/or attached to the applicants’ properties “possessions” within the meaning of Article 1 of Protocol No. 1? If so, what were their sizes? Were the applicants paid any compensation for the land underneath and/or attached to their properties?
5. In respect of application no. 52101/13:
Were any possessions of the applicant destroyed during the demolition of his property? If so, what were the destroyed possessions and their value? Was the applicant paid any compensation for those possessions?
6. In respect of application no. 67879/12:
What were the sizes of the applicants’ demolished properties?
7. The parties are requested to provide, where relevant and available, necessary documentary evidence in support of their replies and submissions.
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
67879/12*
19/10/2012
Aida ALIYEVA
14/07/1961
Baku
Yomatdin SHIKHALIYEV
11/09/1954
Baku
Lyubov YASHAYEVA
07/09/1975
Baku
Fuad AGAYEV
52101/13*
12/07/2013
Tarayaddin SAMADOV
29/08/1961
Baku
Mehman JABRAYILOV
9504/14
11/01/2014
Elnur ISLAMZADE
01/01/1987
Baku
Elmar HUSEYNZADE
674/15*
22/12/2014
Jahangir ABDULLAYEV
13/01/1975
Baku
Rauf MURADOV
03/11/1962
Baku
Fuad AGAYEV
Full & Egal Universal Law Academy