FIRST SECTION
CASE OF GAYIBOVA v. AZERBAIJAN
(Application no. 33085/12)
JUDGMENT
STRASBOURG
23 March 2023
This judgment is final but it may be subject to editorial revision.
In the case of Gayibova v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Krzysztof Wojtyczek, President,
Lətif Hüseynov,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 33085/12) 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 23 May 2012 by an Azerbaijani national, Ms Fadaya Zulfugar gizi Gayibova (“the applicant”), who was born in 1942 and lives in Baku, and who was represented by Mr R.J. Mammadov, a lawyer practising in Baku;
the decision to give notice of the complaints concerning an “urgent” search of the applicant’s flat and the seizure of money during that search to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 28 February 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the search of the applicant’s flat and the seizure of a sum of money in the course of a criminal investigation in respect of her son-in-law, O.K.
2. On 6 June 2011 O.K. was arrested on suspicion of having been involved, among other things, in fraud and the forgery of diplomas, student cards and other documents, for which he was suspected to have been paid 156,000 Azerbaijani manats (AZN) (about 135,000 euros (EUR)).
3. On the same day the investigator ordered an urgent search of the flat where the applicant, her husband, her daughter and her son-in-law resided, with the aim of finding forged documents, cash and other documents relevant to the investigation. The order did not give any particular reasons justifying the recourse to the urgent procedure, whereby a search can be carried out without prior judicial authorisation.
4. During the search of the applicant’s flat the amounts of EUR 97,100 and AZN 67,500 (about EUR 58,000) were seized. According to the applicant, part of the money (AZN 30,000) was bundled using a currency strap bearing the emblem of the National Bank of Azerbaijan.
5. In December 2011 the applicant submitted a complaint about the search of her apartment and the seizure of the cash. She complained, in particular, that the search had been unlawful because the investigator’s order to carry it out had not explained the reasons for the recourse to the urgent procedure (which dispensed with the need for prior judicial authorisation). Furthermore, she submitted that the sums of EUR 97,100 and AZN 67,500 belonged to her as they had been seized from her apartment. She referred to a contract of sale dated 6 June 2008, pursuant to which she had received AZN 158,000 (about EUR 136,000) for a plot of land. As additional proof that the money seized was the money she had received in 2008 for the plot of land, the applicant submitted that some of the seized money had still been bundled using currency straps bearing the emblem of the National Bank of Azerbaijan, which in 2009 had been renamed as the Central Bank of Azerbaijan. She requested that the money be returned to her.
6. On 23 January 2012 the Yasamal District Court dismissed her complaint. It gave brief reasoning to the effect that the search of the applicant’s flat had been lawful because there had been reasons to believe that objects and documents relevant to the investigation could be found there. The court further noted that the question regarding the return of the money would be determined once the criminal investigation in respect of O.K. had been completed. On 1 February 2012 the Baku Court of Appeal upheld that decision on appeal.
7. On 17 April 2013 the Baku Court of Serious Crimes convicted O.K. as charged and sentenced him to conditional deprivation of liberty. The court also held, giving brief reasoning, that the money seized from the applicant’s flat had been obtained illegally and therefore was to be confiscated. In his appeal, O.K. submitted that the money had belonged to the applicant as it had been the payment for a plot of land sold by her on 6 June 2008.
8. On 19 September 2013 the Baku Court of Appeal dismissed O.K.’s appeal. The court mentioned that the confiscation of the money seized from the applicant’s flat had been lawful.
9. The applicant complained to the Court about the search of her apartment and the seizure of her money.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION10. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of the search of her flat (in contrast to the seizure of the money). The Court notes that, at least in substance, the applicant did raise both the search of her flat and the seizure of the money in her complaint before the national courts and that both issues were addressed by the judges (see paragraphs 5-6 above). The Government’s objection is therefore dismissed.
11. The Court concludes 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.
12. The general principles concerning search and seizure measures have recently been reiterated in Tortladze v. Georgia (no. 42371/08, §§ 55‑58, 18 March 2021). In particular, to determine whether an interference is “necessary in a democratic society”, the Court must assess whether the reasons adduced by the national authorities to justify such measures were “relevant” and “sufficient” and whether the proportionality principle has been adhered to.
13. In the present case the investigator’s decision merely referred to a criminal investigation in respect of O.K. and the need to find forged documents and cash. While those reasons might be relevant, they did not contain any balancing of the competing interests and thus cannot be considered sufficient. Moreover, the search warrant likewise did not provide any reasons for the recourse to the urgent procedure (see Tortladze, cited above, § 64, and Kuzminas v. Russia, no. 69810/11, §§ 23-24, 21 December 2021). The subsequent judicial review of the search order did not rectify the above-mentioned deficiencies.
14. Therefore, the Court considers that the national authorities failed to provide relevant and sufficient reasons to justify the search of the applicant’s apartment.
15. There has accordingly been a violation of Article 8 of the Convention.
ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 116. 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.
17. The Government first submitted that the applicant had not been the (only) owner of the seized cash and, therefore, that there had been no interference with her “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.
18. The Court notes that the cash was seized from the applicant’s flat. Furthermore, she had provided a 2008 contract of sale in respect of a plot of land. The amount indicated as the price paid for the land in that contract (about EUR 136,000) corresponded partly to the amount of cash seized in her flat (about EUR 155,000). The Government did not contest the existence or the validity of that contract. The applicant and O.K. consistently asserted in their complaints to the national authorities that the money seized from the applicant’s flat had belonged to her. The Court concludes that the applicant provided prima facie evidence that at least some part of the money in question could have belonged to her (see, mutatis mutandis, Sargsyan v. Azerbaijan [GC], no. 40167/06, § 183, ECHR 2015). Therefore, she had “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.
19. The Government further submitted that, even if there had been an interference with the applicant’s possession, she had not been deprived of her possessions because it had been a temporary measure that was necessary in a democratic society.
20. The Court notes that the seizure of property for the purposes of legal proceedings, as well as the confiscation of the proceeds of a criminal offence, normally relates to the control of the use of property, which falls within the ambit of the second paragraph of Article 1 of Protocol No. 1 to the Convention (see Borzhonov v. Russia, no. 18274/04, § 57, 22 January 2009, and Phillips v. the United Kingdom, no. 41087/98, § 51, ECHR 2001-VII).
21. The Court reiterates that the confiscation of the proceeds of criminal offences, such as corruption, is an accepted legal standard; that the onus of proving the lawful origin of the property may be shifted to the respondent; and that such measures may be applied not only to a person suspected of such an offence, but also to third parties such as close relatives of that person (see Gogitidze and Others v. Georgia, no. 36862/05, § 105, 12 May 2015).
22. However, a person whose property is confiscated should have a reasonable opportunity to put his or her arguments before the domestic courts (ibid., § 109).
23. The Court notes that in the present case, when the applicant contested the seizure of the cash before the national courts, she submitted evidence in support of her claim that the money belonged to her, namely the 2008 contract for the sale of a plot of land. However, the national courts did not address the substance of that claim in their decisions (see paragraph 6 above), having essentially reserved the determination of the matter until the completion of the criminal proceedings against O.K.
24. Those proceedings only ended two years later with O.K.’s conviction and the confiscation of the seized money. However, the applicant does not appear to have had any status in the proceedings against O.K. There is nothing to demonstrate that she had been able to present her position in respect of the seized money to the national courts in order to prove that the money, or part of it, belonged to her.
25. Lastly, even in reply to O.K.’s appeal submissions in respect of the confiscated money, the national courts did not provide any reasons and did not explain, in particular, why they had dismissed the argument about the 2008 contract of sale (compare, for instance, Arcuri and Others v. Italy (dec.), no. 52024/99, ECHR 2001-VII).
26. On the basis of the above, the Court concludes that the applicant was deprived of a reasonable opportunity to have her arguments considered before the domestic courts and that the fair balance which should be struck between the protection of the right of property and the requirements of the general interest was therefore upset.
27. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. The applicant claimed 97,000 euros (EUR) and 67,500 Azerbaijani manats (AZN) in respect of pecuniary damage, EUR 15,000 in respect of non‑pecuniary damage and EUR 3,744 in respect of costs and expenses incurred before the domestic courts and the Court.
29. The Government submitted that the applicant’s claims should be rejected.
30. Given that the violations found by the Court in the present case related to the national courts’ failure to provide relevant and sufficient reasons for their decisions, the Court cannot speculate as to the determination of the ownership of the seized money, had those decisions been properly reasoned. The Court therefore rejects the applicant’s claims in respect of the pecuniary damage alleged. However, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
31. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 covering costs under all heads, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been a violation of Article 8 of the Convention;Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;Holds(a) that the respondent State is to pay the applicant, 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 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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 applicant’s claim for just satisfaction.Done in English, and notified in writing on 23 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President