CASE OF GANIYEVA AND OTHERS v. AZERBAIJAN

FIFTH SECTION

CASE OF GANIYEVA AND OTHERS v. AZERBAIJAN

(Application no. 62490/09)

JUDGMENT
 

STRASBOURG

18 February 2021

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

In the case of Ganiyeva and Others v. Azerbaijan,

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

Mārtiņš Mits, President,
Lətif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 62490/09) 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 eighteen Azerbaijani nationals (“the applicants”) (see Appendix), on 29 October 2009;

the decision to give notice to the Azerbaijani Government (“the Government”) of the application;

the parties’ observations;

Having deliberated in private on 28 January 2021,

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

INTRODUCTION

1.  The applicants alleged that they had been unlawfully deprived of their property in breach of Article 1 of Protocol No. 1 to the Convention and Article 6 of the Convention.

THE FACTS

2.  The applicants’ years of birth and places of residence are listed in the Appendix. They were represented by Ms S. Aliyeva, a lawyer based in Azerbaijan.

3.  On 7 December 2017 the Court was informed of the death of two of the applicants, Mr Yashar Mammadkhanov and Mr Aghayar Hasanov (see Appendix), on 24 March 2015 and 24 January 2016 respectively. Ms Fargana Mammadkhanova, the daughter of Mr Mammadkhanov, and Mr Shamkhal Hasanli, the son of Mr Hasanov, expressed the wish to continue the proceedings before the Court in their late fathers’ stead and authorised Ms S. Aliyeva to represent them.

4.  The Government were represented by their Agent, Mr Ç. Əsgərov.

5.  The facts of the case, as submitted by the parties, may be summarised as follows.

6.  On various dates in 2000, 2001 and 2005 the Union for Development and Exploitation of Gardens (Bağlar Təsərrüfatının İnkişafı və İstismarı Birliyi – “the UDEG”), an entity attached to the Baku City Executive Authority (“the BCEA”), concluded lease agreements (icarə müqaviləsi) with each of the applicants in respect of gardens measuring 0.09 ha each, for a period of ten years. The content of the lease agreements was identical. In accordance with the lease agreements, if the lessee complied with the specified obligations, the lease agreement could be prolonged for a set period of time (point 2). If the State and society needed to use the plot of land where the garden was situated, the agreement was to be terminated before its end date by an order of the BCEA and the lessee was to be provided with another garden (point 12). Any disputes between the lessor and lessee, except those concerning point 1 of the agreement defining the location and size of the leased garden, were to be examined by the courts (point 15). The gardens were located in the territory of the Sabunchu District of Baku City.

7.  According to the applicants, from the beginning of 2005, persons presenting themselves as local residents of the Kurdakhani settlement repeatedly attacked the applicants, demolished the fences of their gardens, unlawfully occupied the gardens and made it impossible for the applicants to use the gardens.

8.  After a number of complaints lodged by the applicants alleging that unlawful actions had been taken by unknown persons against them and their possession of the gardens, the Sabunchu District Police Department refused to institute criminal proceedings. It also stated in a decision of 4 June 2007 that the Kurdakhani Municipality (“the Municipality”) had concluded lease agreements in respect of the gardens in question with local residents other than the applicants.

9.  In the meantime, on 22 May 2007 the President of the Republic of Azerbaijan had issued order (sərəncam) no. 2186 (“the presidential order”), in which a decision had been taken to close garden exploitation departments (including the UDEG) attached to the local executive authorities. The presidential order also instructed the Cabinet of Ministers to take action to ensure the registration of individuals’ ownership rights to gardens in their possession prior to 22 May 2007 (see paragraph 29 below).

10.  On 20 June 2007 the head of the BCEA issued order no. 84 (“the BCEA’s order”), on the basis of which a plot of land of 30 ha, including the gardens in respect of which the applicants had lease agreements, was transferred to the Municipality in order to be sold to a private company (K.). The applicants were not informed of the BCEA’s order.

11.  In reply to a request made by the applicants on 8 August 2007 asking the Municipality whether any lease agreements had been concluded between the Municipality and local residents in respect of the gardens in question, by a letter dated 6 September 2007, the Municipality informed the applicants that lease agreements for a period of ten years had been concluded between the Municipality and local residents, but did not provide the applicants with a copy of them.

12.  On 9 October 2007 the Municipality issued a decision granting the plot of land transferred to it by the BCEA’s order to the K. company. On 12 October 2007 the Municipality and the K. company executed a deed and a sale contract in respect of the plot of land, including the gardens. The applicants were not informed of the sale contract.

13.  On an unspecified date in 2007, the applicants brought a claim against the Municipality before the Sabunchu District Court, asking the court to declare the alleged lease agreements between the Municipality and the local residents null and void. In that connection, they pointed out that the Municipality had had no right to conclude any lease agreements in respect of the gardens, which were not part of municipal land.

14.  In the course of the court proceedings, the applicants became aware of the BCEA’s order of 20 June 2007 transferring to the Municipality a 30 ha plot of land, including the gardens in respect of which they had lease agreements, and the Municipality’s subsequent decision to sell the plot of land to the K. company in accordance with the BCEA’s order.

15.  On 7 February 2008 the applicants amended their initial claim and asked the court to include the BCEA and the K. company as additional defendants. In particular, they asked the court to declare invalid the BCEA’s order of 20 June 2007, the Municipality’s decision of 9 October 2007, the deed and the sale contract of 12 October 2007 and the relevant certificate of title issued to the K. company in so far as they concerned the gardens. They also asked for the gardens to be reverted to their lawful use and for the K. company to be denied access to them. In support of their claim, the applicants relied on the lease agreements concluded between them and the UDEG, submitting that the BCEA’s order of 20 June 2007 had breached their property rights. The applicants also argued that they had been entitled, on the basis of those lease agreements, to acquire the right of ownership, free of charge, in respect of the gardens in question in accordance with the presidential order of 22 May 2007 and Article 9 of the Law on Land Reform of 16 July 1996.

16.  In the meantime, on 1 February 2008 the Law on State Registration of Real Estate of 29 June 2004 had been amended and the existence of a lease agreement in respect of a garden, concluded with citizens before 22 May 2007 by garden exploitation departments attached to the relevant local executive authorities, had been added as a ground for acquiring the right of ownership to the garden in question (see paragraph 30 below).

17.  On 28 April 2008 the BCEA lodged a counterclaim with the Sabunchu District Court, asking it to declare the applicants’ lease agreements invalid. In support of its counterclaim, the BCEA argued that the UDEG had unlawfully concluded lease agreements with the applicants and that the applicants had failed to comply with the terms of those agreements.

18.  On 2 June 2008 the Sabunchu District Court dismissed the applicants’ claim and upheld the BCEA’s counterclaim, terminating the applicants’ lease agreements in respect of the gardens. The court found that the lease agreements had been lawfully concluded between the applicants and the UDEG, but held that the applicants had failed to provide any evidence that they had complied with various terms of those agreements (keeping the gardens clean, protecting the gardens, using the gardens for their intended purpose, paying the relevant taxes, and so on), which should thus be terminated in accordance with Article 73 of the Land Code.

19.  On 21 July 2008 the applicants appealed against that judgment. They disputed the first-instance court’s reliance on Article 73 of the Land Code for terminating the lease agreements in question, submitting that they had complied with the terms of the lease agreements. They also pointed out that in accordance with Article 75 of the Land Code, a lease agreement could be terminated on that basis following a warning for failure to comply with its terms, but they had never received such a warning. The applicants also reiterated that the BCEA’s order of 20 June 2007 and the subsequent sale of the gardens by the Municipality to K., a private company, had amounted to a violation of their property rights.

20.  On 28 October 2008 the Baku Court of Appeal dismissed the appeal. It reiterated the lower court’s findings as regards the applicants’ failure to comply with the terms of the lease agreements, relying on Article 73 of the Land Code. However, it amended the part of the first-instance court’s judgment concerning the termination of the lease agreements between the applicants and the UDEG, finding that the agreements should be declared invalid as argued by the BCEA, and not terminated as held by the lower court. The appellate court made no mention of the applicants’ particular complaints.

21.  On an unspecified date the applicants lodged a cassation appeal against that judgment, reiterating their previous complaints.

22.  On 21 April 2009 the Supreme Court dismissed the applicants’ cassation appeal. As regards the reasons for its decision, the Supreme Court held that the applicants’ lease agreements had no legal force since the UDEG had not been entitled to enter into lease agreements with the applicants without the BCEA’s consent.

23.  On 19 May 2009 the applicants were provided with a copy of the Supreme Court’s decision of 21 April 2009.

RELEVANT LEGAL FRAMEWORKConstitution of the Republic of Azerbaijan

24.  Article 13 § I of the Constitution provides:

“Property in the Republic of Azerbaijan is inviolable and is protected by the State.”

25.  Article 29 § IV of the Constitution provides:

“No one shall be deprived of his or her property without a court decision. Total confiscation of property is not permitted. Alienation of the property for State needs may be permitted only subject to prior and fair compensation corresponding to its value.”Relevant domestic land-related legislation

26.  Article 9 (privatisation of plots of land in lawful use by citizens) of the Law on Land Reform of 16 July 1996 reads as follows:

“Plots of land on which are situated private residential houses, household plots, individual, collective and cooperative gardens and gardens administered by State garden exploitation departments which are being lawfully used by citizens shall be transferred into the occupants’ private ownership free of charge under the procedure specified by law.”

27.  Article 73 of the Land Code of 25 June 1999 provides that the right of ownership, use or lease (mülkiyyət, istifadə və ya icarə hüququ) in respect of a plot of land may be terminated in the event of, inter alia, failure to use the plot of land for its designated purpose (Article 73.1.4); failure to comply with the terms of an agreement of use or lease (Article 73.1.6); failure to pay land tax or lease fees for a period of one year without a valid reason (Article 73.1.7); and failure to use the plot of land, without a valid reason, for a period of two consecutive years as regards agricultural land and for a period of one year as regards non-agricultural land (Article 73.1.8).

28.  If no other circumstances are provided for by the legislation, the right of ownership, use or lease in respect of a plot of land is terminated on the date on which a decision in that connection is taken by a court, the relevant executive authority or a municipality (Article 75.2). A decision concerning termination of the right of use and lease in respect of a plot of land on the basis of the grounds provided for by Articles 73.1.5, 73.1.7, and 73.1.10 of the Land Code is taken after failure to take action within the deadline specified following a warning about remedying the shortcomings (breaches) identified (Article 75.3).

29.  On 22 May 2007 the President of the Republic of Azerbaijan issued order no. 2186 concerning the closure of garden exploitation departments attached to local executive authorities (Yerli icra hakimiyyəti orqanlarının nəzdində olan bağ təsərrüfatı idarələrinin ləğv edilməsi barədə – “the presidential order”). The relevant parts of the presidential order read as follows:

“Taking into account that there were delays in the execution of the requirements of Article 9 of the Law of the Republic of Azerbaijan on Land Reform, enacted in 1996, providing for the transfer of gardens, free of charge, into citizens’ ownership, I hereby decide, in order to bring matters relating to garden plots into line with modern requirements, as follows:

1.  Garden exploitation departments attached to the local executive authorities, as well as those attached to the Baku City Executive Authority, shall be closed.

2.  The Cabinet of Ministers of the Republic of Azerbaijan is instructed:

...

2.2.  to take action to ensure the registration by relevant State bodies of the transfer into citizens’ ownership, free of charge in accordance with Article 9 of the Law on Land Reform, of gardens which were in their lawful possession until the entry into force of this order;

2.3.  to present to the President of the Republic of Azerbaijan its proposals in order to bring normative legal acts currently in force into line with this order;

...

3.  This order shall come into force on the day of its signature.”

30.  On 1 February 2008 Parliament passed a Law on amendments and changes to the Law on Land Reform of 16 July 1996 and the Law on State Registration of Real Estate of 29 June 2004 for the purposes of regulating matters relating to plots of land allocated to citizens by garden exploitation departments (bağ təsərrüfatı idarələri) before 22 May 2007. In accordance with Article 1 of this Law, an amendment was made to Article 25 (Transitional Provisions) of the Law on Land Reform providing that the provisions of Article 9 were applicable to plots of land allocated to citizens by garden exploitation departments attached to the relevant local executive authorities before 22 May 2007. In accordance with Article 2 of this Law, a new Article 8.0.5 was added to the Law on State Registration of Real Estate providing that a lease agreement in respect of a garden allocated to citizens before 22 May 2007 by garden exploitation departments attached to the relevant executive authorities constituted a ground for acquiring the right of ownership to it.

31.  On 30 September 2011 Parliament amended the Civil Code, inserting a new Article 139-1. Article 139-1.1.7 of the Civil Code contains exactly the same wording as Article 8.0.5 of the Law on State Registration of Real Estate, providing that a lease agreement in respect of a garden allocated to citizens before 22 May 2007 by garden exploitation departments attached to the relevant executive authorities constitutes a ground for acquiring the right of ownership to it.

THE LAWPRELIMINARY REMARKS

32.  The Court notes that two of the applicants, Mr Yashar Mammadkhanov and Mr Aghayar Hasanov, died after lodging the present application, on 24 March 2015 and 24 January 2016 respectively, and that Ms Fargana Mammadkhanova, the daughter of Mr Mammadkhanov, and Mr Shamkhal Hasanli, the son of Mr Hasanov, expressed their wish to continue the proceedings before the Court (see paragraph 3 above). The Government did not dispute Ms Mammadkhanova’s and Mr Hasanli’s standing to pursue the application in the late applicants’ stead.

33.  The Court notes that in various cases in which an applicant has died in the course of the Convention proceedings, it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see, among other authorities, Jėčius v. Lithuania, no. 34578/97, § 41, ECHR 2000‑IX; Pisarkiewicz v. Poland, no. 18967/02, §§ 30-33, 22 January 2008; and Ergezen v. Turkey, no. 73359/10, §§ 27-30, 8 April 2014). The Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § 86, 12 December 2017). In view of the above and having regard to the circumstances of the present case, the Court accepts that Mr Mammadkhanov’s daughter and Mr Hasanov’s son have a legitimate interest in pursuing the application in the late applicants’ stead. However, for reasons of convenience, the text of this judgment will continue to refer to Mr Mammadkhanov and Mr Hasanov as “the applicants”, even though Ms Mammadkhanova and Mr Hasanli are today to be regarded as having the status of applicant before the Court (see Gulub Atanasov v. Bulgaria, no. 73281/01, § 42, 6 November 2008; Isayeva v. Azerbaijan, no. 36229/11, § 62, 25 June 2015; and Mammadov and Others v. Azerbaijan, no. 35432/07, § 80, 21 February 2019).ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 to THE CONVENTION

34.  The applicants complained that they had been unlawfully deprived of their property. Article 1 of Protocol No. 1 to the Convention 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.”Admissibility

35.  Although the Government did not dispute the existence of the applicants’ “possessions”, the Court considers it necessary at the outset to satisfy itself that the gardens in respect of which the applicants had lease agreements constituted the applicants’ “possessions” within the meaning of Article 1 of Protocol No. 1 and, consequently, that that Article is applicable ratione materiae.

36.  The Court reiterates that the concept of “possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of material goods and is independent from the formal classification in domestic law. In the same way as material goods, certain other rights and interests constituting assets can also be regarded as “property rights” and thus as “possessions” for the purposes of this provision (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999‑II). 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 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 Maharramov v. Azerbaijan, no. 5046/07, § 47, 30 March 2017).

37.  In the present case it is undisputed that each applicant had a lease agreement signed between 2000 and 2005 with the UDEG, an entity attached to the BCEA, for a period of ten years, in respect of a garden of 0.09 ha. The lease agreements in question could be prolonged for a set period of time and provided that, if the State and society needed to use the plot of land where the garden was situated, the agreements were to be terminated before their end date by an order of the BCEA and the lessees were to be provided with another garden (see paragraph 6 above).

38.  It is clear from the provisions of Article 9 of the Law on Land Reform that the plots of land where gardens administrated by State garden exploitation departments were situated, which were being lawfully used by citizens, were to be transferred into the occupants’ private ownership free of charge under the procedure specified by law (see paragraph 26 above). Moreover, on 22 May 2007 the President of the Republic of Azerbaijan issued order no. 2186 concerning the closure of garden exploitation departments attached to local executive authorities, in which, expressly referring to Article 9 of the Law on Land Reform and delays in the execution of its requirements, he decided to close the entities attached to the local executive authorities dealing with gardens (including the UDEG) and instructed the Cabinet of Ministers to take action to ensure the registration by State bodies of the transfer into citizens’ ownership, free of charge, of gardens which were in their lawful possession prior to 22 May 2007 (see paragraph 29 above). Subsequently, the relevant amendments were made to the domestic law, providing that a lease agreement in respect of a garden allocated to citizens before 22 May 2007 by garden exploitation departments attached to the relevant executive authorities constituted a ground for acquiring the right of ownership to it (see paragraph 30 above).

39.  In the light of the above-mentioned provisions of domestic law, the Court considers that in the present case the applicants were not only entitled to use the gardens on the basis of the relevant lease agreements, but also had a possibility of having them transferred into their ownership in the future. Accordingly, the applicants had a sufficient proprietary interest in the gardens for them to qualify as a “possession” (compare Akhverdiyev v. Azerbaijan, no. 76254/11, § 77, 29 January 2015, and Maharramov, cited above, § 54).

40.  Having regard to the above, the Court finds that the gardens in question constituted the applicants’ “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.

41.  The Court notes that this complaint 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.MeritsThe parties’ submissions

42.  The applicants maintained their complaint. In particular, they contested the Government’s submissions, noting that the UDEG had acted as an entity of the BCEA until its closure by the presidential order of 22 May 2007, which had clearly defined it as an entity attached to the BCEA. They reiterated that in accordance with Article 9 of the Law on Land Reform, as well as with the presidential order and Article 8 of the Law on State Registration of Real Estate, the lease agreements had entitled them to acquire the ownership rights in respect of the relevant plots of land. They also submitted that the interference in question could not be considered necessary in a democratic society.

43.  The Government submitted that the applicants’ lease agreements did not have legal force because they had been signed by the UDEG without the consent of the BCEA. By the BCEA’s order of 20 June 2007, the plots of land in question had been transferred to the Kurdakhani Municipality, which had then sold them to a private company. They also submitted that the interference with the applicants’ right to property had been necessary in a democratic society in the interests of the economic well-being of the country (more accurately, for the improvement of the appearance of the city).The Court’s assessment

44.  Article 1 of Protocol No. 1 contains three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and sets out the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers the deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that a State is entitled, amongst other things, to control the use of property in accordance with the general interest. These rules are not unconnected, however: the second and third rules are concerned with particular instances of interference with the right to the peaceful enjoyment of possessions and are therefore to be construed in the light of the principle laid down in the first rule (see, for example, Kozacıoğlu v. Turkey [GC], no. 2334/03, § 48, 19 February 2009, and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 93, 25 October 2012).

45.  In the present case, while the applicants argued that they had been deprived of the plots of land which they had been using lawfully on the basis of lease agreements which had, furthermore, entitled them to acquire ownership rights in respect of the relevant plots of land, the Government, without contesting the existence of an interference with the applicants’ right to property and without referring to any provision of domestic law, limited themselves to submitting that the applicants’ lease agreements had not had legal force because they had been signed by the UDEG in the absence of the consent of the BCEA.

46.  However, it is undisputed that the UDEG had been an entity attached to the BCEA until its closure by the presidential order of 22 May 2007 and that the applicants had had lease agreements with the UDEG in respect of the gardens in question at the time when the head of the BCEA had issued the order of 20 June 2007 transferring a plot of land of 30 ha, including the applicants’ gardens, to the Kurdakhani Municipality in order to be sold to a private company.

47.  In that connection, the Court notes that Article 75.2 of the Land Code clearly provided that if no other circumstances were provided for by the legislation, the right of ownership, use or lease in respect of a plot of land was to be terminated on the date on which a decision in that connection was taken by a court, the relevant executive authority or a municipality (see paragraph 28 above). In the instant case, at the time when the head of the BCEA issued the order of 20 June 2007, no decision had been taken concerning the termination of the applicants’ right of lease in respect of the gardens; the lease agreements were in fact not terminated until approximately one year later by a judgment of the Sabunchu District Court of 2 June 2008, following a counterclaim lodged by the BCEA in the course of the court proceedings.

48.  In these circumstances, the Court cannot but conclude that the BCEA’s order constituted an interference with the applicants’ possessions. While the applicants were not yet the owners of the gardens at that time, it is clear that they had had a possibility of having ownership of the gardens transferred to them free of charge on the basis of the domestic law in force (see paragraph 39 above), and the interference in question deprived them of that possibility. The Court thus considers that this interference amounted to a “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1.

49.  The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 to the Convention is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see, among other authorities, Iatridis, cited above, § 58, and Béláné Nagy v. Hungary [GC], no. 53080/13, § 112, 13 December 2016). This concept requires firstly that the impugned measures should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned, precise, and foreseeable. Although it is primarily for the national authorities to interpret and apply domestic law, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences consistent with the principles of the Convention, as interpreted in the light of the Court’s case‑law (see Beyeler v. Italy [GC], no. 33202/96, §§ 109 and 110, ECHR 2000-I, and Batkivska Turbota Foundation v. Ukraine, no. 5876/15, § 56, 9 October 2018). Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. The issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights only becomes relevant once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary (see Iatridis, cited above, § 58; Rafig Aliyev v. Azerbaijan, no. 45875/06, § 119, 6 December 2011; and Fedulov v. Russia, no. 53068/08, § 75, 8 October 2019). The Court must therefore determine whether there was any legal basis in domestic law for the interference identified above (see Vistiņš and Perepjolkins, cited above, § 96).

50.  In the present case, the BCEA interfered with the applicants’ possessions without taking any formal decision concerning the termination of their right of lease in respect of the gardens. On the contrary, on 20 June 2007 the head of the BCEA issued an order transferring the gardens in question to the Kurdakhani Municipality in order to be sold to a private company, without informing the applicants, who had been in possession of the lease agreements at that time. Although the applicants clearly raised the complaint concerning the lawfulness of the BCEA’s actions in the domestic proceedings, the domestic courts refrained from addressing the applicants’ arguments. Nor did they attempt to provide any explanation as to which provision of domestic law had entitled the BCEA to transfer to a municipality in order to be sold to a private company the gardens in respect of which the applicants had had the lease agreements. The Court observes that neither the Government nor the domestic courts referred to any relevant domestic legal provision that could serve as a lawful basis for the actions of the BCEA. In that connection, the Court considers that the actions of the domestic authorities were devoid of any legal basis and incompatible with the principle of the rule of law (compare Gianni and Others v. Italy, no. 35941/03, § 82, 30 March 2006).

51.  For the above reasons, the Court concludes that the interference in the present case was not lawful. That conclusion makes it unnecessary for it to examine whether the other requirements of Article 1 of Protocol No. 1 were complied with in the instant case.

52.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

53.  The applicants complained under Article 6 of the Convention that the judgments delivered by the domestic courts had not been duly reasoned because they had failed to verify the compliance of the interference with the applicants’ property rights with the applicable domestic legislation. Article 6 § 1 provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

54.  The Government contested the applicants’ arguments, submitting that the domestic courts’ decisions had been duly reasoned and that the domestic proceedings had been fair.

55.  The applicants maintained their complaints.

56.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

57.  However, having regard to the finding relating to Article 1 of Protocol No. 1 to the Convention (see paragraphs 44-52 above), the Court considers that it is not necessary to also examine whether, in this case, there has been a violation of Article 6 of the Convention (see Akhverdiyev, cited above, § 105, and Khalikova v. Azerbaijan, no. 42883/11, § 147, 22 October 2015).APPLICATION OF ARTICLE 41 OF THE CONVENTION

58.  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.”DamagePecuniary damage

59.  The applicants each claimed a total of 36,585 Azerbaijani manats ((AZN) – approximately 18,300 euros (EUR) at the time of lodging their just satisfaction claim) in respect of pecuniary damage, which included the market value of the gardens and the loss of rental income. In particular, relying on an expert report from a private company dated 17 November 2017, they submitted that the market value of a plot of land of 0.01 ha in that area had been AZN 2,612 and that, consequently, each of them had been entitled to AZN 23,508 (approximately EUR 11,750 at the time of lodging their just satisfaction claim), corresponding to the market value of a plot of land of 0.09 ha. The applicants also each claimed AZN 13,077 (approximately EUR 6,550 at the time of lodging their just satisfaction claim) for the loss of rental income for the period between January 2006 and November 2017.

60.  The Government submitted that the applicants had failed to produce any documentary evidence in support of their claim concerning the loss of rental income. They also submitted that the applicants had never been the owners of the gardens in question and asked the Court to adopt a strict approach to the question of awarding the applicants any sum in respect of pecuniary damage and to reject their claim.

61.  The Court notes that it has already found in the present case that the applicants were unlawfully deprived of their possessions. In this connection, the Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330‑B, and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 19, ECHR 2001‑I). However, since in the instant case the plots of land in question have been sold to a private company, it is not possible to proceed on the basis of the principle of restitutio in integrum and the Court will therefore determine the amount of compensation due in respect of the deprivation of the applicants’ possessions.

62.  Having examined the documents submitted by the parties, the Court observes that whereas the applicants submitted an expert report evaluating the market value of the gardens, the Government asked the Court to adopt a strict approach, without submitting any expert report or disputing the relevance of the findings of the expert report submitted by the applicants. The Court thus considers it appropriate to base its findings concerning the market value of the gardens on the conclusions of the expert report submitted by the applicants. However, the Court notes that the conclusions of this report were based on the market value in November 2017 and not on the date on which the deprivation of property occurred (see Guiso-Gallisay v. Italy (just satisfaction) [GC], no. 58858/00, §§ 102-05, 22 December 2009).

63.  In view of the above findings and taking account of all the material in its possession, the Court awards each applicant the sum of EUR 10,000 under this head in respect of the market value of the gardens, plus any tax that may be chargeable on this amount.

64.  As regards the part of the applicants’ claim for the loss of rental income, the Court accepts the Government’s submission that the applicants had failed to submit any rental agreement or any other document proving that they had had any rental income. The Court therefore rejects this part of the applicants’ claim in respect of pecuniary damage.Non-pecuniary damage

65.  The applicants each claimed AZN 50,000 (approximately EUR 25,000 at the time of lodging their just satisfaction claim) in respect of non-pecuniary damage.

66.  The Government contested the amount claimed as unsubstantiated and excessive, submitting that the finding of a violation of the Convention would constitute sufficient reparation.

67.  The Court considers that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation and that compensation should therefore be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 3,000 under this head, plus any tax that may be chargeable on this amount.Costs and expenses

68.  The applicants did not submit a claim for the costs and expenses incurred before the domestic courts and the Court. Accordingly, the Court considers that there is no call to award them any sum on that account.Default interest

69.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Holds that Ms Fargana Mammadkhanova and Mr Shamkhal Hasanli have standing to pursue the application in place of the late Mr Yashar Mammadkhanov and the late Mr Aghayar Hasanov respectively;Declares the application admissible;Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;Holds that there is no need to examine the complaint under Article 6 of the Convention;Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, to each applicant (including to Ms Fargana Mammadkhanova and Mr Shamkhal Hasanli, instead of the applicants Mr Yashar Mammadkhanov and Mr Aghayar Hasanov respectively) in respect of pecuniary damage;

(ii)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, to each applicant (including to Ms Fargana Mammadkhanova and Mr Shamkhal Hasanli, instead of the applicants Mr Yashar Mammadkhanov and Mr Aghayar Hasanov respectively) in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 18 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina KellerMārtiņš Mits
              Deputy RegistrarPresident

APPENDIX

No.

Applicant’s name

Year of birth

Place of residence

1

Fatma GANIYEVA

1965

Baku

2

Abakar ABAKAROV

1965

Baku

3

Farhad AGAYEV

1983

Baku

4

Khanlar AGAYEV

1952

Baku

5

Rafig AHMADOV

1947

Baku

6

Nazira BAGIROVA

1950

Baku

7

Mohtaman EYNIYEV

1937

Baku

8

Yegana EYYUBOVA

1966

Baku

9

Zinyat GURBANOVA

1968

Baku

10

Aghayar HASANOV

1962

Baku

11

Hagigat ISKANDAROVA

1957

Baku

12

Nizami KARIMLI

1961

Baku

13

Yashar MAMMADKHANOV

1954

Baku

14

Gudrat MAMMADOV

1934

Baku

15

Rubaba MAMMADOVA

1942

Baku

16

Rasim MIRZAZADE

1948

Baku

17

Fatma SULEYMANOVA

1946

Baku

18

Telman TATARAYEV

1942

Baku

 

Full & Egal Universal Law Academy