Communicated on 23 November 2016
FIFTH SECTION
Application no 77919/11
Ismayil Aliheydar Oglu BAGVANOV against Azerbaijan
and 31 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Azerbaijani nationals. They were born on various dates and live in various cities. They are represented before the Court by various lawyers practising in Azerbaijan (see Appendix for all details).
The circumstances of the cases
The facts of the cases, as submitted by the applicants, are similar in some respects to those of the case of Khalikova v. Azerbaijan (no. 42883/11, 22 October 2015). They may be briefly summarised as follows.
On 24 September 2008 the head of the Baku City Executive Authority (“the BCEA”) issued order no. 511 entitled Construction of a New Park Complex, Relocation of Residential and Non‑Residential Accommodation from that Area (Yeni park kompleksinin salınması, ərazidə yerləşən yaşayış və qeyri-yaşayış sahələrinin köçürülməsi haqqında sərəncam – hereinafter “the order of 24 September 2008”), on the basis of which the buildings and houses located in the area bounded by Fuzuli, Samed Vurgun, Shamsi Badalbeyli and Topchubashov streets were to be demolished for the purpose of constructing a new garden-park complex (“the Winter Park”) and the residents were to be relocated.
On 16 February 2011 the head of the BCEA issued a further order no. 76 entitled Relocation of Residential and Non‑Residential Accommodation from the Area bounded by Samed Vurgun, Shamsi Badalbeyli, Mirzaga Aliyev, Dilara Aliyeva, Rasul Rza, Shamil Azizbayov, Suleyman Rahimov, Islam Safarli, Tabriz Khalil Rzaoglu and Mirza Ibrahimov Streets for Execution of the Master Plan of Baku City (Bakı şəhərinin Baş Planının icrasının təmin edilməsi məqsədilə Səməd Vurğun, Şəmsi Bədəlbəyli, Mirzağa Əliyev, Dilarə Əliyeva, Rəsul Rza, Şamil Əzizbəyov, Süleyman Rəhimov, İslam Səfərli, Təbriz Xəlil Rza oğlu, Mirzə İbrahimov küçələrinin əhatəsində yerləşən yaşayış və qeyri-yaşayış sahələrinin köçürülməsi haqqında sərəncam – hereinafter “the order of 16 February 2011”), on the basis of which the buildings and houses located in the area bounded by the mentioned streets were to be demolished for the purpose of constructing the Winter Park and the residents were to be relocated.
The applicants had houses, flats and non-residential properties (“the properties”) located in the mentioned areas.
Starting from the beginning of 2010, the BCEA’s employees instructed the residents in that area to leave their properties in exchange for 1,500 Azerbaijani manats (AZN) per sq. m of their properties in compensation. The BCEA offered to make the payments not as compensation for expropriation, but on the basis of contracts of sale to be concluded between the residents and two individuals, R.K. or Z.I., who were apparently acting on behalf of the BCEA.
Some of the residents accepted the BCEA’s offer and left their properties. Following their departure the BCEA started destroying those residents’ properties and also completely or partially suspended provision of utility services to the remaining properties, which made living conditions very difficult for the remaining residents.
On various dates and in some cases after the demolition of the properties by the BCEA (see below), the applicants lodged a complaint with the Baku Administrative-Economic Court No. 1, the Nasimi District Court or the Sabail District Court.
They complained of breaches of their property rights, in particular that the order of 24 September 2008 and/or the order of 16 February 2011, the actions of the BCEA’s employees seeking to evict them from their properties and the demolition of the properties had been unlawful, and/or asked the court to eliminate the obstacles preventing them from enjoying their ownership rights.
On various dates (see Appendix) and in some cases while the court proceedings were still pending, the BCEA demolished the applicants’ properties.
On various dates (see Appendix) and mainly after the demolition of their properties, most of the applicants (except the applicants in applications nos. 50513/12, 73555/12, 81486/12, 5192/13) concluded contracts of sale with R.K. or Z.I. and received AZN 1,500 per sq. m of their respective properties.
On various dates, most of the applicants instituted separate civil proceedings or amended their initial claims, asking the courts to declare unlawful the contracts of sale between them and R.K. or Z.I. because they had been concluded under duress.
They also complained that the compensation offered or already paid by the BCEA had been too low, indicating that the actual market prices of their properties had been much higher. In support of their complaints, some of the applicants submitted expert opinions regarding the market prices of their properties.
The applicants in applications nos. 77919/11, 9310/12, 57685/12, 61516/12, 70719/12, 73555/12, 81486/12, 5192/13 and 51850/14 also claimed compensation for the land underneath and/or attached to their properties.
The applicants in applications nos. 38244/12, 50513/12, 56371/12, 81494/12 and 5192/13 also claimed compensation for their possessions that had been allegedly damaged or lost during the demolition of their properties.
Some of the applicants also lodged claims in respect of pecuniary damage and non-pecuniary damage for their suffering as a result of the BCEA’s unlawful actions.
The applicants in applications nos. 70719/12, 5192/13, 57130/13, 17453/14, 37721/14, 38220/14, 43224/14, 51850/14, 68452/14, 10266/15, 37345/15, 38009/15 and 35068/16 also claimed additional compensation in the amount of 20% of the money paid to them, in accordance with Presidential Decree no. 689 of 26 December 2007.
On various dates (see Appendix), the relevant first-instance courts dismissed the applicants’ complaints in full or in part, finding that the BCEA’s actions had been lawful and the amount of compensation had been adequate. In respect of the claims regarding the contracts of sale, the courts held that they had been concluded in accordance with the relevant law. The courts accepted only the claims regarding the payment of 20% additional compensation.
On various dates the applicants lodged appeals against the respective decisions of the first-instance courts with the Baku Court of Appeal, reiterating their complaints.
On various dates (see Appendix) the Baku Court of Appeal dismissed or partly dismissed the applicants’ appeals, largely reiterating the first-instance courts’ reasoning.
On various dates the applicants lodged appeals with the Supreme Court, reiterating their complaints.
On various dates (see Appendix) the Supreme Court dismissed or partly dismissed the applicants’ appeals, largely reiterating the Baku Court of Appeal’s reasoning.
In respect of applications nos. 77919/11, 9310/12, 5192/13 and 38220/14, the courts ruled partly in favour of the applicants and ordered compensation in the amount of AZN 1,500 per sq. m to be paid. However, the payments were made not on the basis of the judgments, but on the basis of the contracts of sale concluded between the applicants and R.K. or Z.I.
In respect of application no. 13579/13, the courts ruled partly in favour of the applicants and ordered compensation of AZN 1,500 per sq. m for 9 sq. m area of the property which had not been covered by the contract of sale. The judgment has not been enforced.
The parts of the judgments regarding the 20% additional compensation have not been enforced in respect of applications nos. 5192/13, 17453/14, 38220/14, 43224/14, 51850/14, 68452/14, 10266/15, 37345/15 and 38009/15.
The applicants in applications nos. 50513/12, 73555/12, 81486/12 and 5192/13 have not concluded contracts of sale and for that reason have not been paid any compensation despite the respective judgments in their favour.
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 properties were not fair; in particular that the domestic courts delivered unreasoned judgments by failing to properly verify the compliance of the interference with the applicable domestic legislation.
2. The applicants in applications nos. 50513/12, 73555/12, 81486/12, 5192/13, 13579/13, 17453/14, 38220/14, 43224/14, 51850/14, 68452/14, 10266/15, 37345/15 and 38009/15 also complain, under Article 6 § 1 of the Convention, that the respective judgments of the domestic courts’ or part of them have not been enforced.
3. The applicants in applications nos. 9310/12, 30096/12, 38244/12, 44972/12, 56371/12, 57685/12, 61516/12, 66345/12, 70719/12, 81486/12, 81494/12, 5192/13, 13579/13, 57130/13, 25690/14, 37721/14, 43224/14, 51850/14, 68452/14, 76509/14, 10266/15 and 35068/16 complain, under Article 8 of the Convention, that the unlawful demolition of their properties and/or their unlawful eviction amounted to a violation of their rights to respect for their homes.
4. The applicants in applications nos. 9310/12, 30096/12, 38244/12, 44972/12, 50513/12, 56371/12, 57685/12, 61516/12, 66345/12, 70719/12, 73555/12, 81486/12, 81494/12, 5192/13, 13579/13, 25690/14, 37721/14, 43224/14, 43346/12, 51850/14, 68452/14, 76509/14 and 10266/15 complain, under Article 13 of the Convention in conjunction with Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, that they were not afforded a remedy providing effective protection against the violation of their rights.
5. 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.
6. The applicants in applications nos. 77919/11, 9310/12, 57685/12, 61516/12, 70719/12, 73555/12, 81486/12, 5192/13 and 51850/14 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.
7. The applicants in applications nos. 38244/12, 50513/12, 56371/12, 81494/12 and 5192/13 also complain, under Article 1 of Protocol No. 1 to the Convention, that they were not paid compensation for their possessions that were allegedly damaged or lost during the demolition of their properties.
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 to the Convention? 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, nationalisation, confiscation, or other? What act (document or physical action of a public authority) 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 orders of 24 September 2008 and 16 February 2011 and for the other acts and decisions of that authority in the present cases, and did that authority have competence under domestic law to take decisions resulting in the expropriation of privately-owned property, as in the present cases?
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?
CASE SPECIFIC QUESTIONS
1. In respect of applications nos. 50513/12, 73555/12, 81486/12, 5192/13, 13579/13, 17453/14, 38220/14, 43224/14, 51850/14, 68452/14, 10266/15, 37345/15 and 38009/15:
Was the non-enforcement of the judgments in the applicants’ favour compatible with Article 6 § 1 of the Convention?
2. In respect of applications nos. 9310/12, 30096/12, 38244/12, 44972/12, 56371/12, 57685/12, 61516/12, 66345/12, 70719/12, 81486/12, 81494/12, 5192/13, 13579/13, 57130/13, 25690/14, 37721/14, 43224/14, 51850/14, 68452/14, 76509/14, 10266/15 and 35068/16:
Has there been an interference with the applicants’ right to respect for their home, within the meaning of Article 8 § 1 of the Convention, on account of the demolition of their properties and their eviction from them by the executive authorities? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
3. In respect of applications nos. 9310/12, 30096/12, 38244/12, 44972/12, 50513/12, 56371/12, 57685/12, 61516/12, 66345/12, 70719/12, 73555/12, 81486/12, 81494/12, 5192/13, 13579/13, 25690/14, 37721/14, 43224/14, 43346/12, 51850/14, 68452/14, 76509/14 and 10266/15:
Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?
4. In respect of applications nos. 77919/11, 9310/12, 57685/12, 61516/12, 70719/12, 73555/12, 81486/12, 5192/13 and 51850/14:
Were the applicants paid any compensation for the land underneath and/or attached to their properties?
5. In respect of applications nos. 38244/12, 50513/12, 56371/12, 81494/12 and 5192/13:
Were any possessions of the applicants damaged or lost during the demolition of their properties? If so, were the applicants paid any compensation for those possessions?
APPENDIX
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
77919/11
22/11/2011
Ismayil Aliheydar Oglu BAGVANOV
19/08/1956
Baku
Shovket Hasanaga Gizi BAGVANOVA
9310/12*
14/02/2012
Darya GULIYEVA
18/05/1979
Baku
Fuad Arif Oglu AGAYEV
30096/12
13/04/2012
Hajibaba Javid Oglu RZAYEV
09/09/1962
Gusar
Surat Mashi Oglu MƏMMƏDOV
38244/12*
05/06/2012
Hajibaba Sadig Oglu AZIMOV
01/08/1938
Baku
Jeyhun Hajibaba Oglu AZIMOV
12/07/1971
Baku
Sadig BAGIROV
44972/12*
18/07/2012
Intizar Karim Gizi ALLAHVERDIYEVA
03/02/1953
Baku
Zarifa Karim Gizi ALLAHVERDIYEVA
28/09/1959
Baku
Fuad Arif Oglu AGAYEV
50513/12
25/07/2012
Lazim Shirali Oglu SHARIFOV
01/08/1954
Baku
Khalid Zakir Oglu BAGIROV
56371/12*
30/08/2012
Parviz Mukhtar Oglu AMIROV
04/11/1969
Baku
Fuad Arif Oglu AGAYEV
57685/12*
06/09/2012
Minakhanim Agasalim Gizi AZIMOVA
08/06/1946
Khirdalan
Mehriban Imanali Gizi ALIYEVA
20/06/1969
Baku
Valeriya MAHMUDOVA
25/10/1966
Baku
Ruiya MAMMAD
10/03/1957
Baku
Saadat AZIZOVA
20/06/1969
Baku
Fuad Arif Oglu AGAYEV
61516/12*
24/09/2012
Fuad ALIYEV
04/09/1968
Baku
Fuad Arif Oglu AGAYEV
66345/12*
28/09/2012
Tahira Atakishi Gizi SALAMOVA
Tahira Atakishi Gizi SALAMOVA
Baku
Samira Rafail Gizi AGAYEVA
70719/12*
16/10/2012
Malik ALIYEV
03/02/1964
Baku
Shafa Mahammadali Gizi CAMALZADƏ
73555/12*
16/11/2012
Yasaman Gurban Gizi KARIMOVA
26/02/1951
Baku
Fuad Arif Oglu AGAYEV
81486/12*
19/12/2012
Flora Davidovna GADIROVA
21/11/1966
Baku
Fuad Arif Oglu AGAYEV
81494/12*
20/12/2012
Rukhsara Suleyman Gizi HUSEYNOVA
03/02/1944
Baku
Fuad Arif Oglu AGAYEV
5192/13*
28/12/2012
Afag Adil Gizi ISMAYILOVA
07/09/1958
Baku
Fuad Arif Oglu AGAYEV
13579/13*
22/02/2013
Shirinbaji Ibrahim Gizi RZAYEVA
09/06/1953
Baku
Alirza RZA MUKHTAR OGLU
19/07/1976
Baku
Fuad Arif Oglu AGAYEV
52066/13*
25/07/2013
Tamilla MAMMADOVA
1965
Baku
Nadejda SANDLER
1956
Baku
Zohra HAJIYEVA
1955
Baku
Reyhan HUSEYNOVA
1964
Baku
Zaman MAHMUDOV
Baku
Agali KHUDAYEV
1959
Baku
Alla FATALIYEVA
1957
Baku
Ilgar NOVRUZOV
1959
Baku
Bashkhanim ABBASOVA
1948
Baku
Shabeyim HUSEYNOVA
1957
Baku
Ikmat MIRZAYEV
1960
Baku
Fira ILKANAYEVA
1960
Baku
Gunel ISMIKHANOVA
1985
Baku
Intigam Kamil Oglu ALIYEV
57130/13*
16/08/2013
Famil Aslan Oglu GASIMOV
04/08/1989
Shirvan
Shafa Mahammadali Gizi CAMALZADƏ
12977/14*
25/01/2014
Kamala Muzaffar Gizi HUSEYNOVA
Kamala Muzaffar Gizi HUSEYNOVA
Baku
Mehman Humsi Oglu CƏBRAYILOV
17453/14
22/02/2014
Malik Mukhtar Oglu MUSAYEV
11/04/1960
Baku
Nemat Alish Oglu HEYDƏROV
25690/14*
19/03/2014
Rauf Mammadali Oglu RZAYEV
27/10/1959
Baku
Sevinj Ali Gizi ƏLİYEVA
37721/14*
01/05/2014
Elshad Tofig Oglu MALIKZADE
15/04/1959
Baku
Sevinj Ali Gizi ƏLİYEVA
38220/14
13/05/2014
Malik Mukhtar Oglu MUSAYEV
11/04/1960
Baku
Sadig BAGIROV
43224/14
02/06/2014
Elnur Ibrahim Oglu HUSEYNOV
30/08/1970
Baku
Sevinj Ali Gizi ƏLİYEVA
43346/14
28/05/2014
Imran Kamal Oglu ABDULLAYEV
10/01/1976
Khachmaz
51850/14*
15/07/2014
Lilya Asadulla Gizi ALIYEVA
17/06/1943
Baku
Fuad Arif Oglu AGAYEV
68452/14
11/10/2014
Farruh Ali Oglu KHUDAYAROV
28/07/1947
Baku
Sevinj Ali Gizi ƏLİYEVA
76509/14
25/11/2014
Ayna Alaskar Gizi ALI-ZADE
Baku
Sevinj Ali Gizi ƏLİYEVA
10266/15
18/02/2015
Solmaz Anatoliy Gizi GAFFAROVA
09/09/1957
Baku
Kubra GAFFAROVA
27/02/1990
Baku
Sevinj Ali Gizi ƏLİYEVA
37345/15
15/07/2015
Bashkhanim Shamil Gizi ABBASOVA
01/04/1948
Baku
Sevinj Ali Gizi ƏLİYEVA
38009/15
24/07/2015
Irina SVYATOSLAVSKAYA
07/03/1939
Baku
Sevinj Ali Gizi ƏLİYEVA
35068/16
11/06/2016
Niyazi Ahmad Oglu MAHAMMADI
11/06/1959
Baku
Sevinj Ali Gizi ƏLİYEVA
Full & Egal Universal Law Academy