FIFTH SECTION
CASE OF ASGAROV v. AZERBAIJAN
(Application no. 52482/10)
JUDGMENT
STRASBOURG
16 December 2021
This judgment is final but it may be subject to editorial revision.
In the case of Asgarov v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ganna Yudkivska, President,
Arnfinn Bårdsen,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 52482/10) 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, Mr Ramiz Teyyub oglu Asgarov (Ramiz Teyyub oğlu Əsgərov - “the applicant”), on 3 September 2010;
the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints under Article 34 of the Convention and Article 1 of Protocol No. 1 to the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 25 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the alleged interference with the applicant’s right to the peaceful enjoyment of his property as a result of the refusal by the domestic authorities of his requests for privatisation of State-owned land, and the alleged breach of his right of individual application without hindrance owing to the seizure of his case file from the office of his lawyer. It raises issues under Article 34 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE FACTS
2. The applicant was born in 1948 and lives in Baku. He was represented by Mr I. Aliyev, a lawyer based in Azerbaijan.
3. The Government were represented by their Agent, Mr Ç. Əsgərov.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
Domestic proceedings5. On 12 January 2001 the Sumgayit City Executive Authority allocated a plot of land of 0.64 ha to the I. company, which then built a business property complex comprising an abattoir and a meat-processing facility (“the processing facility”) on 0.12 ha of that plot of land and later privatised it. On 8 October 2003, the I. company sold the processing facility to the applicant and the sale and purchase contract was approved by a notary on the same day. On 20 October 2003 the State Register of Immovable Property issued the applicant with a certificate of ownership to the processing facility (copies of the sale and purchase contract and the certificate of ownership are not available in the case file). It appears from the case file that later, on an unspecified date, the applicant erected new buildings without acquiring any authorisation or permit, next to the area where the production facility was sited.
6. On 3 July 2007 the applicant applied to the State Committee for Management of State Property (“the Committee”) and asked the Committee to sell him the plot of land of 0.64 ha. On 13 July 2007 the Committee replied that the applicant would be informed of its decision after the examination of the documents submitted.
7. Having received no further information concerning any decision taken, on 3 August 2007 the applicant brought proceedings against the Committee asking the domestic courts to establish that the Committee had acted unlawfully by interfering with his right to privatise the plot of land in question, and to order the Committee to stop its unlawful actions. By a final judgment of 5 March 2010 the Supreme Court dismissed the applicant’s claim, upholding the reasoning of the lower courts that there was no proof that the Committee had acted unlawfully, and that its reply was not a ground for ordering the privatisation of the plot of land in question.
8. On an unspecified date in 2011 the applicant applied again to the Committee for the privatisation of the same plot of land. On 4 April 2011 the Committee refused to sell the plot of land in question to the applicant on the basis of the fact that he had constructed new buildings on State-owned land next to the area where the processing facility was sited and did not have any legal title to them.
9. The applicant brought new proceedings against the Committee asking the domestic courts to order the privatisation of the plot of land and to award him a compensation of 100,000 Azerbaijani manats. By a final judgment of 5 August 2014 the Supreme Court dismissed his claim. The domestic courts held, inter alia, that the applicant had erected unauthorised buildings on State-owned land, and that even though under the Law on the Privatisation of State Property, the Committee was authorised to act as the seller of State property, it could not be forced to privatise plots of land in the State’s ownership.
Search and seizure in the office of the applicant’s representative10. On 8 August 2014 criminal proceedings were instituted against Mr Aliyev, who represented the applicant before the Court, which were the subject of a separate application brought by him before the Court (see Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, 20 September 2018). On 8 and 9 August 2014 the investigating authorities seized a large number of documents from Mr Aliyev’s office, including all the case files relating to the applications pending before the Court which were in Mr Aliyev’s possession as a representative. The file relating to the present case was also seized in its entirety. The facts relating to the seizure and the relevant proceedings are described in more detail in Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 21-28, 22 October 2015).
11. On 25 October 2014 some of the seized documents were returned to Mr Aliyev’s lawyer.
RELEVANT LEGAL FRAMEWORK
Law on the privatisation of state property of 16 may 200012. Under Article 1.0.2 of the Law, State property is open for privatisation from the time when a decision in that respect is adopted by the relevant State authorities.
13. Article 15 of the Law provides that the decision concerning privatisation must substantiate the advisability of privatisation and specify the methods by which it is to be implemented.
Regulations on selling the plots of land where privatised enterprises are sited, approved by presidential decree no. 659 of 19 December 199714. Article 3 of the Regulations provides that physical or legal persons can buy plots of land where privatised enterprises are sited.
15. Articles 4 and 11 of the Regulations provide that the owners of privatised enterprises have a priority right to purchase such plots of land, and that the Committee has to offer the land first to those owners for purchase.
THE LAW
ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION16. The applicant complained that the domestic authorities’ refusal of his requests for privatisation of the plot of land in question interfered with his rights under 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.”
17. The Government submitted that the applicant could not have had a “legitimate expectation” of acquiring ownership of the plot of land in question as he had built unauthorised buildings on it. They also submitted that the applicant had lost his priority right to purchase and to privatise the plot of land because the processing facility had been the object of a mortgage agreement between the applicant and a private bank, and was later sold to another person owing to the applicant’s failure to comply with the conditions of that agreement (no copies of the relevant documents concerning the above‑mentioned agreement have been provided to the Court). The applicant disagreed, arguing that he had a right under domestic law, and, in particular, under the provisions of the Regulations on selling the plots of land where privatised enterprises are sited (“the Regulations”) (see paragraphs 14-15 above), to privatise the plot of land in question. He did not comment on the sale of the processing facility under the mortgage agreement.
18. The Court does not find it necessary to clarify the above-mentioned issue concerning the sale of the processing facility as the complaint is in any event inadmissible for the following reasons.
19. The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. The concept of “possessions” is not limited to “existing possessions” but may also cover assets, including claims, in respect of which the applicant can argue that he or she has at least a reasonable and legitimate expectation of obtaining effective enjoyment of a property right. An “expectation” is “legitimate” if it is based on either a legislative provision or a legal act which has a bearing on the property interest in question. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Saghinadze and Others v. Georgia, no. 18768/05, § 103, 27 May 2010, and Keriman Tekin and Others v. Turkey, no. 22035/10, § 41, 15 November 2016).
20. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see, inter alia, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002‑VII, and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX).
21. The Court observes that whereas the processing facility in the applicant’s private ownership occupied a plot of land of 0.12 ha, he had requested privatisation of 0.64 ha, the plot of land originally allocated for the use of the I. company. Article 4 of the Regulations established the applicant’s priority right to purchase only the State-owned land where his processing facility was sited, which, in the present case, was the plot of land of 0.12 ha. The remaining part of the 0.64 ha, that is 0.52 ha, was State property, and there is no decision allocating it for the applicant’s use. In such circumstances, the applicant had neither a “possession” under Article 1 of Protocol No. 1 nor a “legitimate expectation” under the relevant domestic law, of obtaining property rights over that part of the land. It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
22. As to the applicant’s priority right to purchase the plot of land of 0.12 ha, it is clear that those pre-emption rights were “claims” rather than “existing possessions” (see Gavella v. Croatia (dec.), no. 33244/02, ECHR 2006‑XII (extracts), and Engelmannová v. the Czech Republic (dec.), no. 10280/06, 22 March 2011). The Court reiterates that a right of pre‑emption is a right to buy prior to or ahead of others, but only if the owner decides to sell. It does not grant the power to compel an unwilling owner to sell (see Gavella, cited above).
23. The Court observes that under domestic law, the decision to sell State‑owned land to the owners of privatised enterprises was at the discretion of the Committee, and the State property was considered open to privatisation only after the adoption of such a decision. If a decision to that end was issued, the Committee was then obliged to offer the land first to the owners of privatised enterprises (see paragraphs 12 and 14 above). Accordingly, prior to the adoption of a decision by the Committee, the applicant could not enforce his claims against it and realise his pre-emption rights. The privatisation of the State‑owned land where the applicant’s processing facility was sited was thus an event which was possible, but not certain to arise. In the present case, the Committee had not issued any decision on privatisation of the plot of land where the applicant’s processing facility was sited at the time that his claims were lodged. In such circumstances, the applicant could not have had a “legitimate expectation” that his claims would be realised.
24. It follows that this part of the complaint is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION25. On 28 August 2014 the applicant’s representative, Mr I. Aliyev, introduced a new complaint on his behalf, arguing that the seizure from his office of the entire case file relating to the applicant’s pending application before the Court, together with all the other case files, had amounted to a hindrance to the exercise of the applicant’s right of individual petition under Article 34 of the Convention, the relevant parts of which read as follows:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
The parties’ submissions26. The submissions made by the applicant and the Government were similar to those made by the parties in respect of the same complaint raised in Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 57-60, 22 October 2015).
The Court’s assessment27. In Annagi Hajibeyli, having examined an identical complaint based on similar facts, the Court found that the respondent State had failed to comply with its obligations under Article 34 of the Convention (see Annagi Hajibeyli, cited above, §§ 64‑79). The Court considers that the analysis and finding it made in the Annagi Hajibeyli judgment also apply to the present application and sees no reason to deviate from that finding.
28. The Court therefore finds that the respondent State has failed to comply with its obligations under Article 34 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION29. 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.”
30. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
31. The Government asked the Court to dismiss the applicant’s claim.
32. Under the terms of Article 41 of the Convention, the Court may only award just satisfaction to an applicant if it finds that there has been a violation of the Convention or the Protocols thereto with respect to that applicant (see Apostolovi v. Bulgaria, no. 32644/09, § 116, 7 November 2019). In the present case, the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention was declared inadmissible. It follows that any part of his claim in this regard must be rejected. As regards the part of his claim concerning Article 34 of the Convention, having regard to the circumstances of the case, the Court considers that any non‑pecuniary damage suffered by the applicant can be compensated for solely by the finding of a violation.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention inadmissible;Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention;Holds that the finding of a violation of Article 34 of the Convention constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.Done in English, and notified in writing on 16 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Ganna Yudkivska
Deputy Registrar President