CASE OF ALI ZADE v. AZERBAIJAN

FIRST SECTION

CASE OF ALI ZADE v. AZERBAIJAN

(Application no. 76509/14)

JUDGMENT
(Merits)

STRASBOURG

17 October 2024

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

In the case of Ali Zade v. Azerbaijan,

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

 Raffaele Sabato, President,
 Lətif Hüseynov,
 Alain Chablais, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 76509/14) 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”) on 25 November 2014 by an Azerbaijani national, Ms Ayna Xanim Alasgar gizi Ali Zade (Ayna Xanım Ələsgər qızı Əli Zadə – “the applicant”), who was born in 1944 and lives in Baku and who was represented by Ms S. Aliyeva, a lawyer practising in Azerbaijan;

the decision to give notice of the application to the Azerbaijani Government (“the Government”), represented by their Agent Mr Ç. Əsgərov;

the parties’ observations;

Having deliberated in private on 26 September 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged unlawful expropriation by the Baku City Executive Authority (“the BCEA”) of a flat owned by the applicant, for the purpose of constructing a new garden-park complex (“the Winter Park”).

2.  According to the ownership certificate issued by the Technical Inventory and Ownership Rights Registration Department of the BCEA, the applicant was the owner of a flat with a total surface area of 64.17 sq. m in Baku.

3.  The facts of the present case are similar in several respects to those in Khalikova v. Azerbaijan (no. 42883/11, 22 October 2015). As in that case, the applicant’s property in the present case was demolished by the BCEA on the basis of order no. 76 issued by the head of the BCEA on 16 February 2011, which stated that the buildings and houses located on certain streets were to be demolished for the purpose of constructing the Winter Park and the residents were to be relocated. The applicant was offered 1,500 Azerbaijani manats (AZN) per square metre of her property in compensation. The BCEA offered to make the payment not as compensation for expropriation, but on the basis of a contract of sale to be entered into by the applicant and an individual acting on behalf of the BCEA. On 30 October 2012, after the demolition of her property, the applicant and Z.I., head of the supervision division of the BCEA’s administration, signed the contract of sale, through which the applicant transferred ownership of her flat and received AZN 96,255.

4.  On 7 February 2013 the applicant brought proceedings against the BCEA in Baku Administrative-Economic Court No. 1, seeking, inter alia, the invalidation of the BCEA’s order no. 76 and the contract of sale, in addition to an award of compensation in respect of pecuniary and non-pecuniary damage. The applicant argued that the contract of sale had been entered into under duress and complained that the compensation already paid by the BCEA had been too low. In support of her claims, she submitted to the court a valuation report from a private company dated 5 November 2012, which had estimated the market value of the applicant’s flat at AZN 160,000.

5.  On 12 April 2013 the first-instance court decided that the claim concerning the invalidation of the contract of sale had to be examined in civil proceedings.

6.  By a final judgment of 29 January 2014, the Supreme Court dismissed the applicant’s claim in the administrative proceedings, finding mainly that the BCEA’s order had been lawful and that the applicant’s rights had not been violated. The court also held that the value of the expropriated property had to be calculated and paid in the manner determined by the competent executive authority.

7.  By a final judgment of 18 June 2014, the Supreme Court dismissed the applicant’s claim in the civil proceedings, holding that she had failed to provide any evidence showing that the contract of sale had been invalid.

8.  It appears from the case file that by a judgment of Baku Administrative-Economic Court No. 1, delivered in separate proceedings, the applicant was awarded AZN 19,211 as an additional 20% compensation for her expropriated property, under Presidential Decree no. 689 of 26 December 2007. Neither party, however, has provided a copy of that court decision. While in her observations the applicant submitted that she had received the relevant amount, she did not indicate the date on which that payment had been made.

9.  The applicant complained under Article 1 of Protocol No. 1 to the Convention that the de facto expropriation, by way of demolition, of her property had amounted to an unlawful and unjustified interference with her property rights. She further complained that the amount of compensation that she had been paid for the property had been very low.

10.  The applicant also complained under Articles 6, 8 and 13 of the Convention that the domestic courts had failed to examine her arguments as to the unlawfulness of the demolition of her property, that she had been unlawfully deprived of her home and that she had not had an effective domestic remedy at her disposal for protecting her Convention rights.

THE COURT’S ASSESSMENT

11.  It is undisputed by the parties that the flat in question constituted the applicant’s possession.

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

13.  The general principles concerning Article 1 of Protocol No. 1 have been summarised in Khalikova (cited above, §§ 134-36) and Maharramov v. Azerbaijan (no. 5046/07, §§ 56-60, 30 March 2017).

14.  In Khalikova (cited above) the Court found that the expropriation of the applicant’s property had not been carried out in compliance with “conditions provided for by law”. It concluded, in particular, that (i) the BCEA did not have the authority to expropriate private property; (ii) no lawful expropriation order had been issued by a competent State authority; and (iii) the interference with the applicant’s possessions had thus constituted a de facto deprivation of possessions. The Court also found it irrelevant that a contract of sale had been signed between the applicant and the person acting on behalf of the BCEA after the demolition of her property. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. It thus considers that the expropriation of the applicant’s property was not carried out in compliance with “conditions provided for by law”.

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

16.  As concerns the complaints under Articles 6, 8 and 13 of the Convention (see paragraph 10 above), having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine these complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014; see also Bagirova and Others v. Azerbaijan, nos. 37706/17 and 5 others, §§ 55-56, 31 August 2023).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicant claimed 97,494 Azerbaijani manats (AZN) in respect of pecuniary damage and AZN 50,000 in respect of non-pecuniary damage.

18.  The Government submitted that the applicant had already received compensation in respect of her property (see paragraphs 3 and 8 above) and asked the Court to reject her claims under this head.

19.  The Court considers that the question of the application of Article 41 in its entirety is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  reserves the said question in whole;

(b)  invites the Government and the applicant to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;

Done in English, and notified in writing on 17 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Raffaele Sabato
 Deputy Registrar President