FIFTH SECTION
DECISION
Application no. 39234/07
Akif AZIMOV
against Azerbaijan
The European Court of Human Rights (Fifth Section), sitting on 26 June 2018 as a Committee composed of:
Erik Møse, President,
Síofra O’Leary,
Lәtif Hüseynov, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 7 August 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Akif Azimov, is an Azerbaijani national who was born in 1954 and lives in Baku. He was represented before the Court by Mr A. Gasimli, a lawyer practising in Azerbaijan.
2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. On 22 March 2011 the application was communicated to the Government.
The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On an unspecified date in 1998 the applicant and his family, consisting of twelve people, occupied part of an old, deserted State-owned building in the territory of the State Historical-Architectural Reserve of Icherisheher in Baku, managed by the Department of the State Historical‑Architectural Reserve of Icherisheher (“the Department”). After occupying the building, the applicant carried out construction works and repaired the water, plumbing and electricity systems.
6. On 9 July 2003 the head of the Sabail District Executive Authority (“the SDEA”) issued an order allocating a flat of 35.3 sq. m. located in the building in question to E.D.
7. On an unspecified date in 2004 the applicant lodged a claim with the Sabail District Court against the Department seeking the recognition of his property rights in respect of the part of the building in which he and his family had been living. E.D. joined the proceedings as a third party and lodged a counter-claim seeking the eviction of the applicant and his family from the building.
8. On 12 October 2004 the Sabail District Court dismissed the applicant’s claim and upheld E.D.’s counter-claim, finding that the applicant and his family had unlawfully occupied the building.
9. After a series of appeals, on 21 November 2005 the Court of Appeal upheld the judgment.
10. On 15 February 2006 the applicant and his family were evicted from the building, in accordance with the judgment of 12 October 2004.
11. On 14 April 2006 the head of the SDEA issued a further order allocating the part of the building previously occupied by the applicant (43.5 sq. m), to E.D. at her request.
12. On 28 April 2006 the Supreme Court upheld the appellate court’s judgment of 21 November 2005.
13. On 15 May 2006 the applicant lodged a claim against the SDEA and E.D. asking for annulment of the orders of 9 July 2003 and 14 April 2006.
14. On 16 June 2006 the Sabail District Court dismissed the applicant’s claim, finding that there had been no grounds for the annulment of the orders. The court referred to the judgments within the framework of the first set of proceedings and held that it had already been established that the applicant and his family had not had any rights to the building and had to be evicted.
15. On 12 September 2006 the Court of Appeal and on 8 February 2007 the Supreme Court upheld the judgment.
COMPLAINTS
16. The applicant complained under Article 6 § 1 of the Convention that the civil proceedings instituted by him against the SDEA and E.D. had not been fair. In particular he argued that the domestic courts had been biased and that they had not examined the relevant evidence correctly.
17. The applicant complained under Article 8 of the Convention that his right to respect for his home had been violated on account of his eviction from the building.
18. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that his right to property had been violated on account of his eviction from the building, because he had carried out repair works in the building at his own expense to render it fit for residential purposes.
THE LAW
A. Complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention
19. The applicant complained that his right to property and right to respect for his home had been violated on account of his eviction from the building, given that he had carried out repair works in the building at his own expense to make it fit for residential purposes. He relied on Article 8 of the Convention and on Article 1 of Protocol No. 1, which, as far as relevant, read as follows:
Article 8
“1. Everyone has the right to respect for ... his home ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The parties’ arguments
20. The Government submitted that the application had been introduced outside the six-month time-limit prescribed by Article 35 § 1 of the Convention.
21. The Government argued that the final domestic decision in the applicant’s case had been the judgment of the Supreme Court of 28 April 2006.
22. In his observations the applicant indicated that the final domestic decision referred to by the Government had been delivered in a different set of proceedings and that the final domestic decision in his case had been the Supreme Court’s judgment of 8 February 2007.
2. The Court’s assessment
23. The Court reiterates that, under Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months of the date of the “final” domestic decision.
24. Turning to the present case, the Court observes that by its judgment of 28 April 2006 the Supreme Court upheld the lower courts’ judgments, finding that the applicant and his family had had no property rights in respect of the building and ordering their eviction on that ground.
25. The Court notes that the second set of proceedings initiated by the applicant for the annulment of the orders of the SDEA allocating the residential premises to E.D. cannot be taken into account for the purpose of the six-month rule. In those proceedings the domestic courts rejected the applicant’s challenge to orders granting rights in respect of the premises in issue to a third person. In doing so they noted that the applicant’s claim in respect of those premises had been rejected with final effect in an earlier set of proceedings terminated by the Supreme Court’s judgment of 28 April 2006.
26. Consequently, the final decision in respect of the applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No.1 was the Supreme Court’s judgment of 28 April 2006. As the application was lodged with the Court on 7 August 2007, these complaints must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, as being out of the six‑month time-limit.
B. Complaint under Article 6 § 1 of the Convention
27. The applicant complained that the civil proceedings instituted by him against the SDEA and E.D. (see paragraphs 13-15 above) had not been fair. He relied on Article 6 § 1 of the Convention, which, as far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
1. The parties’ arguments
28. The applicant argued that the domestic courts had been biased and that they had not examined the relevant evidence correctly.
29. The Government submitted that the Sabail District Court had dismissed the applicant’s claim, finding that there had been no grounds for the annulment of the orders.
2. The Court’s assessment
30. The Court finds that, in so far as the applicant complains of the domestic courts’ assessment of the evidence and interpretation of the law and challenges the outcome of the proceedings, the application is of a “fourth-instance” nature. The applicant was able to make submissions before the courts, which examined those submissions. Their decisions do not appear arbitrary or manifestly unreasonable, and there is nothing to suggest that the proceedings were otherwise unfair.
31. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 July 2018.
Claudia WesterdiekErik Møse
RegistrarPresident
Full & Egal Universal Law Academy