CASE OF ABDULLAYEVA v. AZERBAIJAN

FIFTH SECTION

CASE OF ABDULLAYEVA v. AZERBAIJAN

(Application no. 29674/07)

JUDGMENT

STRASBOURG

14 March 2019

This judgment is final but it may be subject to editorial revision.

In the case of Abdullayeva v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 12 February 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 29674/07) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Ms Mehriban Israfil gizi Abdullayeva (Mehriban İsrafil qızı Abdullayeva - “the applicant”), on 18 June 2007.

2. The applicant was represented by Mr A. Wuppinger, a lawyer practising in Austria. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicant alleged, in particular, that her rights under Article 1 of Protocol No. 1 to the Convention had been infringed by the State authorities.

4. On 22 March 2012 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1973 and currently lives in Vienna, Austria.

6. In 2002 the applicant purchased a flat in Baku at a location near the Tezepir Mosque, with a living space of 17.6 sq. m.

7. In 2004 the applicant carried out some renovation and construction works at the flat, as a result of which the total area of the flat became 84 sq. m, while the living space increased to 33.6 sq. m.

8. On 7 March 2005 the head of Yasamal District Executive Authority issued an order recognising the fact that by building additional rooms (living rooms, hall, kitchen, mansard, and so on), the applicant had increased the total area of her flat to 84 sq. m.

9. On 3 June 2005 the Baku City Department of Technical Inventory and Registration of Property Rights issued a certificate of title to the applicant certifying that her flat comprised a total area of 84 sq. m, 33.6 sq. m of which was living space and the remainder of which was auxiliary space.

10. In July 2006 the Tezepir Mosque lodged a claim against the applicant with the Yasamal District Court, asking that the applicant be dispossessed of her title to the flat in exchange for monetary compensation, and be evicted from the flat. The Tezepir Mosque argued that the area where the applicant’s flat was located was within the area of works required for the renovation and development of the mosque complex, and that the applicant and her family were the only residents who had refused to relinquish their flat in exchange for the compensation offered to them. The Tezepir Mosque was ready to pay 100,000 United States dollars (USD) in compensation.

11. During the court hearing, the representative of the Tezepir Mosque argued that the market price of comparable flats was USD 500 per sq. m, and that the applicant was only entitled to be paid for the living space of her flat (33.6 sq. m). It appears that, in support of this claim, he submitted copies of some sale announcements published in unidentified issues of the local newspaper. The applicant argued that the total area of her flat was 84 sq. m, that the market value of comparable flats was USD 3,000 per sq. m, and that she would sell her flat only if she was paid USD 252,000.

12. The Yasamal District Court noted that, under Article 157.9 of the Civil Code, private owners could be dispossessed of their title to property for State and public needs, in exchange for compensation. It also referred to an order by the Soviet of Ministers of the Azerbaijan Soviet Socialist Republic (“the Azerbaijan SSR”) dated 22 May 1986 (hereinafter “the order of 22 May 1986”), concerning renovation work on the land of the Tezepir Mosque and the relocation of people residing in that area to other accommodation. It also noted, without referring to any specific decisions, that subsequently the Baku City Executive Committee and its successor, the Baku City Executive Authority, had issued several other decisions on the continuation of the renovation work on that land and the “gradual relocation” of the area’s residents.

13. In deciding the amount of compensation payable, the court found that the area of the applicant’s flat was 33.6 sq. m. It also took note of the Tezepir Mosque’s submissions that, despite the fact that the applicant had purchased a flat which was located on land already allocated to the Mosque and that she had subsequently carried out renovation and construction work in the flat “without obtaining rights to the land” and “without authorisation”, the Mosque had offered to pay her USD 100,000, an amount which exceeded the flat’s market value. The court considered that the proposed amount of compensation was reasonable.

14. By a judgment of 2 August 2006, the Yasamal District Court revoked the applicant’s title to the flat, ordered the Tezepir Mosque to pay her the equivalent of USD 100,000 in Azerbaijani manats, and ordered the eviction of the applicant and her family from the flat. By a separate decision delivered on the same day, the Yasamal District Court also ordered the immediate execution of the judgment.

15. On 27 September and 27 December 2006 the judgment was upheld by the Court of Appeal and the Supreme Court respectively.

II. RELEVANT DOMESTIC LAW

16. Article 157.9 of the Civil Code of 1 September 2000 (“the Civil Code”), as applicable at the material time, provided:

“Private property may only be alienated by the State if required for State or public needs in the cases permitted by law for the purposes of building roads or other communication lines, delimiting the State border or constructing defence facilities, by a decision of the relevant State authority, and subject to prior payment of compensation in an amount corresponding to its market value.”

17. Presidential Decree No. 386 of 25 August 2000 dealing with various aspects of the implementation of the 2000 Civil Code, as amended by Presidential Decree No. 78 of 17 June 2004 and as in force at the material time, designated the Cabinet of Ministers as “the relevant State authority” referred to in Article 157.9 of the Civil Code.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

18. The applicant complained that she had been unlawfully deprived of her flat. She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“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.”

A. Admissibility

19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

20. The applicant did not submit any observations on the merits.

21. The Government maintained that the applicant had been deprived of her flat in the public interest and in accordance with the conditions provided for by law and that the interference had not imposed an excessive burden on the applicant, since the amount of compensation paid to her had been adequate at the material time.

2. The Court’s assessment

22. It is undisputed that the applicant owned the flat at the relevant time. The applicant submitted that the total area of her flat had been 84 sq. m, whereas the domestic courts had only calculated the compensation for the loss of her flat in respect of the available living space of 33.6 sq. m. In that connection, having regard to the certificate of title of 3 June 2005 (see paragraph 9 above), the Court notes that the flat, having a total area of 84 sq. m, constituted the applicant’s “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention.

23. The relevant case-law principles are summarised, in particular, in the Court’s judgments in the cases of Akhverdiyev v. Azerbaijan (no. 76254/11, §§ 79-82, 29 January 2015) and Khalikova v. Azerbaijan (no. 42883/11, §§ 134-36, 22 October 2015).

24. In the present case the applicant’s title to the flat was revoked by a court decision. It is undisputed that this constituted an interference with the applicant’s right to the flat which amounted to a “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1. The domestic courts relied on Article 157.9 of the Civil Code (see paragraph 16 above) as the legal basis for depriving the applicant of her flat. The Court notes that, indeed, after 1 September 2000, this provision of the Civil Code provided the applicable legal framework for expropriation of private property (see Akhverdiyev, cited above, § 95).

25. The Court observes that there was no decision of the Cabinet of Ministers in respect of the alienation of the applicant’s flat. Considering that Article 157.9 of the Civil Code explicitly refers to a decision by the relevant State authority, which is expressly designated as the Cabinet of Ministers by Presidential Decree no. 386 of 25 August 2000 (see paragraph 17 above), the Court finds that the requirement of Article 157.9 of the Civil Code concerning the relevant State authority has not been met.

26. The Court further notes that, in accordance with the legal provision in question, private property may only be alienated for State or public needs for specific listed purposes, namely for the purposes of building roads or other communication lines, delimiting the State border or constructing defence facilities (see paragraph 16 above). However, the purpose of the alienation of the applicant’s property in the present case was the renovation and development of the mosque complex, which did not fall within the exhaustive list of purposes stipulated in Article 157.9 of the Civil Code. Neither the domestic courts nor the Government addressed this matter.

27. Lastly, the Court observes that the domestic courts referred to the order of the Soviet of Ministers of the Azerbaijan SSR of 22 May 1986 (see paragraph 12 above). However, it has not been shown that that order contained any specific provisions relating to the alienation of private property. The Court finds it difficult to see how that order, issued during the Soviet era before the independence of the Republic of Azerbaijan, could be considered as an instrument expropriating privately-owned property, given that the right to private ownership of property, in its present scope, emerged in the domestic law after the independence (see, mutatis mutandis, Sargsyan v. Azerbaijan [GC], no. 40167/06, § 200 et seq., ECHR 2015). In any event, that order could not be considered as a lawful basis for expropriation after the currently applicable legal framework for expropriation was enacted by the Civil Code of 1 September 2000.

28. The domestic courts also noted, without referring to any specific decisions, that subsequently the Baku City Executive Committee and the Baku City Executive Authority had issued several other decisions on the continuation of the renovation work on that land and the “gradual relocation” of the area’s residents. However, the domestic courts failed to refer to any specific decisions that identified their dates, numbers, and content. In any event, reference to those decisions in the context of expropriation was irrelevant, as local executive authorities had no competence under domestic law to make decisions expropriating privately owned property (see Akhverdiyev, cited above, § 92, and Maharramov v. Azerbaijan, no. 5046/07, § 61, 30 March 2017).

29. Therefore, the Court finds that it has not been demonstrated that the deprivation of the applicant’s property had a lawful basis in the present case.

30. For the above reasons, the interference in the present case was not carried out in compliance with “conditions provided for by law”. That conclusion makes it unnecessary to ascertain whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, for example, Maharramov, cited above, § 65).

31. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

33. The applicant stated in the application form her wish to obtain monetary compensation (albeit without specifying the amount) in relation to the violation of Article 1 of Protocol No. 1 to the Convention. It was pointed out in the Court’s letter to the applicant’s representative during the communication stage of the proceedings that an indication, at an earlier stage of proceedings, of the applicant’s wishes concerning just satisfaction did not redress the failure to articulate a “claim” for just satisfaction in the observations. In the light of the Court’s general principles and the established practice, the applicant’s indication of a wish for eventual monetary compensation as expressed at the initial non‑contentious stage of the procedure before the Court, dating back to 2007, does not amount to a “claim” within the meaning of Rule 60 of the Rules of Court, read together with its Rule 71 § 1 in the context of the present case. No “claim” for just satisfaction was made during the communication stage of the proceedings.

34. The Court therefore makes no award in this regard and finds no exceptional circumstances which would warrant a different conclusion (see Nagmetov v. Russia [GC], no. 35589/08, §§ 76-78, 30 March 2017).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

Done in English, and notified in writing on14 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAndré Potocki
RegistrarPresident

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