CASE OF MAMMADOVA v. AZERBAIJAN

 

 

 

FIRST SECTION

CASE OF MAMMADOVA v. AZERBAIJAN

(Application no. 38228/12)

 

 

 

 

 

JUDGMENT
 

 

 

 

 

STRASBOURG

29 June 2023

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

In the case of Mammadova 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 Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 38228/12) 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 13 June 2012 by an Azerbaijani national, Ms Lalazar Hasan gizi Mammadova (Laləzar Həsən qızı Məmmədova – “the applicant”), born in 1962 and living in Ganja, who was represented by Mr I. Aliyev, a lawyer based in Azerbaijan;

the decision to give notice of the complaints concerning Articles 8 and 34 of the Convention 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 6 June 2023,

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

SUBJECT MATTER OF THE CASE

1.  The present case concerns the eviction of the applicant from a non-residential building where she has lived for several years.

2.  On an unspecified date in 1996 the applicant became homeless after she had lost her flat as a result of a fraud. On an unspecified date in 1996 she and her family were allowed by the Scientific Research Silkmaking Institute of Azerbaijan (hereinafter “the Institute”) to move into a part of a non‑residential building belonging to the Ganja Experimental Practical Gene Pool Base of the Institute (hereinafter “the building”). On 11 July 2005 the Deputy Head of the Ganja City Executive Authority issued a letter stating that the Executive Authority “ha[d] no objection to the applicant residing in the building”.

3.  In 2011 the Institute lodged a claim against the applicant in the Kapaz District Court, arguing that her occupation of the building was unlawful and seeking an eviction order.

4.  On 5 July 2011 the Kapaz District Court ordered the applicant’s eviction, finding that she was occupying the building unlawfully. The applicant appealed, arguing that she had been living there for fifteen years without any objection by the Institute and that she did not have anywhere else to live.

5.  On 22 November 2011 the Ganja Court of Appeal and on 16 March 2012 the Supreme Court upheld the judgment.

6.  The last communication from the parties indicated that the applicant was evicted from the building in June 2012. According to the applicant, the building from which she was evicted was demolished in 2017.

7.  On 8 August 2014 the applicant’s lawyer, Mr I. Aliyev, was arrested on charges of tax evasion, illegal entrepreneurship, and abuse of authority. During a search of his office, a number of documents were seized by the State authorities, including all the case files relating to applications before the Court that were in the possession of Mr I. Aliyev as the applicants’ representative. On 25 October 2014 some of the seized documents were returned to Mr J. Javadov, Mr. I. Aliyev’s counsel.

8.  By a fax dated 28 August 2014, Mr I. Aliyev informed the Court of the seizure of the case files, claiming a breach of Article 34 of the Convention in respect of all the applications affected. In the letters he sent to the Court in September 2014 Mr I. Aliyev reiterated his complaint concerning the seizure of the case files.

9.  Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that her eviction had violated her Convention rights. She also argued that there had been a hindrance to the exercise of her right of individual petition under Article 34 of the Convention.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

10.  Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that her rights had been violated on account of her eviction. The Court, being the master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), considers that the applicant’s complaint should be examined under Article 8 of the Convention.

11.  The applicant submitted that the eviction constituted an interference with her right to respect for her home and that such interference had not pursued a legitimate aim. She argued that the building had remained abandoned until it had been demolished in 2017 and that the Government had failed to show that it was urgently needed for public use. She further complained that the domestic courts had not examined the proportionality of the disputed measure and had failed to take into account the consideration that she and her family would become homeless if they were evicted.

12.  The Government argued that the public authorities’ interference with the applicant’s right to respect for her home had been necessary in a democratic society in the interests of the economic well-being of the country, and that it had been in line with domestic legislation.

13.  The Court reiterates that the concept of “home” within the meaning of Article 8 is not limited to premises which are lawfully occupied or which have been lawfully established. It is an autonomous concept which does not depend on classification under domestic law. Whether or not particular premises constitute a “home” which attracts the protection of Article 8 will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see Prokopovich v. Russia, no. 58255/00, § 36, ECHR 2004‑XI (extracts)). The Court observes in the present case, and not disputed by the Government, that the applicant had lived in the building in question with her family since 1996. The building was therefore the applicant’s home within the meaning of Article 8 of the Convention. Article 8 is therefore applicable.

14.  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.

15.  The Court considers, and it has not been disputed between the parties, that the eviction of the applicant amounted to an interference with her right to respect for her home under Article 8 of the Convention.

16.  The applicant’s eviction from the building in question was ordered by the domestic courts under Articles 152 and 157 of the Civil Code, the legal provisions regulating unlawful occupation of the property by third parties. The Court, noting that its power to review compliance with domestic law is limited, is therefore satisfied that the national courts’ decisions ordering the applicant’s eviction were in accordance with domestic law. The Court further notes that even though the Government argued that the interference in question “had been necessary ... in the interests of the economic well-being of the country”, in the circumstances of the present case the Court considers it more appropriate to find that the interference pursued the legitimate aim of protecting the rights of others, namely the Institute.

17.  As to the question whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”, the Court observes that when ordering the applicant’s eviction in the present case the domestic courts focused exclusively on the fact that it was occupied unlawfully (compare Bagdonavicius and Others v. Russia, no. 19841/06, § 102, 11 October 2016). Even though it was clear that the building in question was her only home and that she and her family would become homeless if they were evicted as they had no means to buy another house, the domestic courts entirely ignored this point and failed to weigh the competing interests against each other (see Ahmadova v. Azerbaijan, no. 9437/12, § 47, 18 November 2021).

18.  Furthermore, proportionality in cases such as the present one is inseparably linked to the use for which the authorities sought to recover the building. From the documents in the case file, it appears that the applicant was evicted in 2012 but renovation works did not start until 2017, when the building was demolished, so there is no evidence that the building was urgently required for the State or public needs (compare Yordanova and Others v. Bulgaria, no. 25446/06, § 127, 24 April 2012).

19.  In those circumstances, there was no procedure by which the applicant could obtain an adequate review of the proportionality of the interference ‑ that is, her eviction from the building in question – in the light of her personal circumstances (see Ahmadova, cited above, § 52).

20.  There has accordingly been a violation of Article 8 of the Convention.

ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

21.  On 28 August 2014 the applicant’s representative, Mr I. Aliyev, filed a new complaint on the applicant’s 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 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.

22.  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).

23.  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 (ibid., §§ 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 depart from that finding.

24.  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 CONVENTION

25.  The applicant did not submit any claim for just satisfaction in her observations dated 20 November 2017, made in reply to the Government’s observations. By letters dated 8 December 2017, the Court acknowledged receipt of the applicant’s observations and transmitted them to the Government for submission of their further observations, informing the parties that the applicant had not submitted a claim for just satisfaction. In their further observations dated 16 February 2018, the Government stated that they had taken note of the fact that the applicant had not submitted any claim for just satisfaction.

26.  In the meantime, by a letter dated 1 February 2018 and received by the Court on 16 February 2018, the applicant submitted claims for just satisfaction. She stated that she did not know why the just satisfaction claims had not been received with her observations and claimed that they had gone missing from the documents sent to the Court. By a letter of 26 February 2018, the Court informed the applicant that her claims for just satisfaction would be decided in accordance with Rule 60 of the Rules of Court.

27.  The Court reiterates that an applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observations on the merits unless the President of the Chamber directs otherwise (Rule 60 § 2). If the applicant fails to comply with the relevant requirements the Court may reject the claims in whole or in part (Rule 60 § 3). In the present case, the applicant submitted her claims for just satisfaction outside the time-limit set by the Court. In that connection, the Court cannot accept the applicant’s argument that the delay in question was due to unknown reasons. Accordingly, the Court considers that there is no call to award her any sum under Article 41 (compare Aslan Ismayilov v. Azerbaijan, no. 18498/15, § 63, 12 March 202).

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 the respondent State has failed to comply with its obligations under Article 34 of the Convention;Dismisses the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 29 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Attila Teplán Krzysztof Wojtyczek
 Acting Deputy Registrar President

 

 

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