CASE OF AZIMOV AND OTHERS v. AZERBAIJAN

FIRST SECTION

CASE OF AZIMOV AND OTHERS v. AZERBAIJAN

(Applications nos. 38244/12 and 6 others – see appended list)

JUDGMENT
(Merits)

STRASBOURG

24 October 2024

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

In the case of Azimov and Others 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 applications 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice to the Azerbaijani Government (“the Government”) represented by their Agent, Mr Ç. Əsgərov, of the complaints under Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 3 October 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applications mainly concern the applicants’ complaints about the allegedly unlawful expropriation of their properties by the State authorities.

2.  The facts of the present applications are similar in several respects to those in Khalikova v. Azerbaijan (no. 42883/11, 22 October 2015). As in that case, the applicants’ properties were demolished by the Baku City Executive Authority (“the BCEA”) on the basis of two orders issued by the head of the BCEA on 24 September 2008 and 16 February 2011, stating that the buildings and houses located on certain streets were to be demolished for the purpose of constructing a new garden-park complex (“the Winter Park”) and that the residents were to be relocated. The applicants were offered 1,500 Azerbaijani manats (AZN) per square metre of their properties in compensation. The BCEA offered to make the payments, not in compensation for expropriation but on the basis of contracts of sale to be entered into by the residents and one of two individuals, R.K. and Z.I., who were acting on behalf of the BCEA. The applicants entered into this type of contract after the demolition of their properties.

3.  On various dates between 2010 and 2013 the applicants brought proceedings before the domestic courts, complaining mainly that the above‑mentioned orders, 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 asking the courts to eliminate the obstacles preventing them from enjoying their ownership rights. The applicants also complained that the amount of compensation offered or already paid by the BCEA had been too low and claimed various sums in respect of pecuniary and non-pecuniary damage. The applicants in application no. 38244/12 (in separate civil proceedings), and the applicant in application no. 70719/12 (in his initial complaint), also asked the courts to declare unlawful the contracts of sale concluded between them and R.K. and Z.I., because they had allegedly been entered into under duress. Some applicants also claimed compensation for possessions that had allegedly been damaged or lost during the demolition of their properties (application no. 38244/12), or for the land underlying their property (application no. 70719/12) or attached to it (application no. 38244/12).

4.  On various dates (see the appended table), the relevant first-instance courts dismissed the applicants’ complaints in full or in part, finding mainly that the BCEA’s actions had been lawful, and that compensation in the amount of AZN 1,500 per sq. m. had been adequate. In respect of the claims regarding the contracts of sale, the courts held that they had been entered into in accordance with domestic law. In final judgments delivered on various dates (see the appended table), the Supreme Court dismissed or partly dismissed the applicants’ cassation appeals, reiterating the lower courts’ reasoning. It awarded the applicants an additional 20% compensation in accordance with Presidential Decree no. 689 of 26 December 2007, with the exception of the applicants in application no. 38244/12, who had not claimed any amount in that respect. The applicant in application no. 37721/14 was also awarded a further 10% compensation in accordance with Article 66 of the Law on the Expropriation of Land for State Needs.

5.  At the time of the most recent communication with the parties in 2017, the respective final judgments in applications nos. 17453/14 (Supreme Court judgment of 18 September 2013) and 38220/14 (Supreme Court judgment of 9 January 2014) remained partly unenforced, as the applicants had not been paid the sums awarded for the additional 20% compensation.

6.  The applicants complained of violations of their rights under Articles 6, 8 and 13 of the Convention as well as Article 1 of Protocol No. 1 to the Convention.

THE COURT’S ASSESSMENT

7.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court).

8.  The applicants complained under Article 1 of Protocol No. 1 that the de facto expropriation of their properties, by way of demolition, had amounted to an unlawful and unjustified interference with their property rights. They further complained that the amount paid in compensation for the properties had been too low. The applicant in application no. 70719/12 also complained that he had not been paid compensation for the land underlying his property. The applicants in application no. 38244/12 further complained that they had not been paid compensation for the total surface area of their property – including their share in the building’s basement and the plot of land attached to the building, or for their possessions that had allegedly been damaged or lost during the demolition of their properties.

9.  It is undisputed that the relevant properties, as indicated in the ownership documents, had been in the applicants’ private ownership (see the appended table).

10.  The applicants in application no. 38244/12 claimed that the total surface area of their apartment, including their share in the building’s basement and the plot of land attached to the building, was 264 sq. m. The Court notes that, according to the certificate of ownership issued to the applicants, the total surface area of their flat was 144.1 sq. m. In the absence of any relevant documentary evidence, there are no elements in the case file that would allow the Court to conclude that the applicants had property rights to an additional surface area that was not mentioned in the certificate of ownership (compare Rahimov v. Azerbaijan [Committee] (dec.), no. 40026/09, § 14, 7 July 2022, and Bagvanov and Others v. Azerbaijan [Committee], nos. 77919/11 and 13 others, § 11, 10 November 2022). As to the applicants’ alleged share in the basement of the building and in the plot of land attached to it, the Court notes that the property in question was a flat situated in an apartment building. The Court has already found that such shares cannot be regarded as separate “possessions” as such because they were attached to a flat in the building of which they formed a part, thus constituting one whole property (see Bagirova and Others v. Azerbaijan, nos. 37706/17 and 5 others, §§ 29 and 38, 31 August 2023).

11.  The applicant in application no. 70719/12 claimed ownership of the plot of land underlying his house. The Court notes in this connection, that in the case of Akhverdiyev v. Azerbaijan (no. 76254/11, §§ 73-78, 29 January 2015) it held that a “lawful user” of immovable property located on State‑owned land had a right to have the land transferred into his or her ownership free of charge, and that this right gave rise to a “legitimate expectation” of acquiring ownership of the land. It observes, however, that while in the present case the house in question was in shared ownership, the applicant has not indicated whether he could have had any individual share in the plot of land underlying the house transferred automatically into his ownership or whether the land had first to be privatised by all of the owners who had shared ownership of the house, following which each owner could have any corresponding share in the land transferred to his/ her/ its ownership. It cannot therefore be established that the plot of land underlying this applicant’s property amounted to his “possession” within the meaning of Article 1 of Protocol No. 1 (see Bagirova and Others, cited above, §§ 36-37).

12.  The applicant in application no. 43224/14 also claimed ownership of a non-residential property with a surface area of 45.3 sq. m. However, the Court notes that the applicant did not submit any documentation showing that he had any rights over that property to either the domestic courts or the Court, nor did he make any substantiated arguments to that effect.

13.  The Court notes that with the exception of those parts examined in paragraphs 10-12 above, which are incompatible ratione materiae with the provisions of the Convention and the Protocols thereto, the 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.

14.  The general principles concerning Article 1 of Protocol No. 1 have been summarised in Akhverdiyev (cited above, §§ 79-82), Khalikova (cited above, §§ 134-36) and Maharramov v. Azerbaijan (no. 5046/07, §§ 56-60, 30 March 2017).

15.  The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be “lawful” (see, among many other authorities, Yavuz Özden v. Turkey, no. 21371/10, § 78, 14 September 2021, and Par and Hyodo v. Azerbaijan, nos. 54563/11 and 22428/15, § 52, 18 November 2021).

16.  In Khalikova (cited above, §§ 137-41) 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 thus constituted a de facto deprivation of possessions. The Court also found a contract of sale between the applicant and R.K. to be irrelevant, holding that (i) it had been entered into after the demolition of the applicant’s property, and (ii) it was clear that R.K. had been entrusted with this task by the BCEA, and had acted on behalf of the executive authorities. 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 applicants’ properties was not carried out in compliance with “conditions provided for by law”.

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

18.  The Court observes that the applicants in application no. 38244/12 failed to provide any document or proof in support of their claims in respect of damaged or lost possessions before either the domestic courts or the Court. This part of the complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (compare Bagvanov and Others, cited above, § 19).

19.  The applicants in applications nos. 17453/14, 38220/14 and 43224/14 complained under Article 6 § 1 of the Convention that parts of the domestic courts’ judgments delivered in their cases regarding the additional 20% compensation awarded to them, had not been enforced (see paragraph 5 above).

20.  This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor it is inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that the complaint discloses a violation of Article 6 § 1 of the Convention in the light of its findings in Jafarli and Others v. Azerbaijan (no. 36079/06, §§ 52-54, 29 July 2010), Faber Firm and Jafarov v. Azerbaijan (no. 3365/08, §§ 20-23, 25 November 2010) and Akhundov v. Azerbaijan (no. 39941/07, §§ 31-36, 3 February 2011).

21.  In his observations, the applicant submitted that on 14 September 2016 he had received the additional 20% compensation awarded under the Supreme Court’s judgment of 21 November 2013. He did not, however, appear to complain of delayed enforcement of the relevant judgment. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (compare Bagvanov and Others, cited above, § 22).

22.  All of the applicants complained under Article 6 of the Convention, alleging a breach of their right to a reasoned judgment. The applicants in applications nos. 38244/12, 70719/12, 3772/14, 43224/14 and 57130/13 further complained under Article 8 of the Convention about a violation of their right to respect for their home. Relying on Article 13 of the Convention, in conjunction with the above-mentioned complaints and also the complaint under Article 1 of Protocol No. 1, the same applicants, with the exception of the applicant in application no. 57130/13, also complained that they had not been afforded a remedy providing effective protection against the violation of their rights.

23.  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 question raised by the case and that there is no need to examine the admissibility and merits of these complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014; see also Bagvanov and Others, § 23, and Bagirova and Others, §§ 55-56, both cited above).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicants claimed various amounts in respect of pecuniary and non-pecuniary damage, and for costs and expenses (see the appended table). The Government submitted that the sums claimed were excessive and that the applicants had failed to substantiate their claims.

25.  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 applicants (Rule 75 §§ 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the question of the application of Article 41 of the Convention is not ready for decision; accordingly,

(i)  reserves the said question in whole;

(ii)  invites the Government and the applicants 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;

(iii)  reserves the further procedure and delegates to the President of the Committee the power to fix the same if need be.

Done in English, and notified in writing on 24 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Raffaele Sabato
 Deputy Registrar President

APPENDIX

List of cases: