CASE OF ISKOLSKIY v. AZERBAIJAN

THIRD SECTION

CASE OF ISKOLSKIY v. AZERBAIJAN

(Application no. 54143/13)

JUDGMENT
 

STRASBOURG

8 July 2025

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

In the case of Iskolskiy v. Azerbaijan,

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

 Canòlic Mingorance Cairat, President,
 Lətif Hüseynov,
 Vasilka Sancin, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 54143/13) 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 August 2013 by an American national, Mr Lev Yakovlevich Iskolskiy (“the applicant”), who was born in 1939, lives in Shoreline, Washington (United States of America), and was represented by Mr M. Mustafayev, a lawyer based in Azerbaijan;

the decision to give notice of the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to 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 17 June 2025,

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

SUBJECT MATTER OF THE CASE

1.  The present case concerns the allegedly unlawful expropriation of the applicant’s property by the State Department of the Historical and Architectural Reserve of Icharishahar (“the SDHAR”).

2.  The applicant owned flats nos. 9, 11 and 17 in building no. 8 on Istiglaliyyat Street, Baku, with a total surface area of 192.96 sq. m (41 sq. m, 78.06 sq. m and 73.9 sq. m respectively). The building was adjacent to the Icharishahar Wall in central Baku, an architectural monument of national importance. In 2003 the applicant applied to the Baku City Executive Authority (“the BCEA”) for permission to carry out reconstruction works in respect of the roofs of flats nos. 9 and 11 as they were in a dilapidated condition. In a letter of 17 June 2003, the head of the relevant department of the BCEA approved the reconstruction works in accordance with the building’s technical specifications outlined in the relevant technical documents.

3.  By decisions of the Cabinet of Ministers issued in 2009 and 2011, a legal regime of special protection was established and a protection zone was created around the Icharishahar Wall, which included the area where the applicant’s flats were located. Pursuant to those decisions, the SDHAR was designated as the State authority responsible for overseeing all activities carried out within the protection zone.

4.  On 22 November 2010 the applicant’s representative, referring to the letter from the BCEA (see paragraph 2 above), applied to the SDHAR for permission to carry out reconstruction works at the flats. On 7 December 2010 the representatives of the SDHAR, together with the applicant’s representative, inspected the buildings. According to the inspection report, flats nos. 9 and 11 no longer existed, with only fragments of walls remaining, and the area was overgrown with greenery and trees. Flat no. 17, however, was still standing, albeit in a hazardous condition and with no one living there. The SDHAR sent the applicant’s request for permission to carry out reconstruction works to the BCEA for further consideration. In letters of 9 February and 1 March 2011, the BCEA informed the applicant that the reconstruction works could be carried out once the relevant departments of the Ministry of Emergency Situations had granted approval.

5.  On an unspecified date in January 2011, flat no. 17 was demolished, allegedly by the SDHAR. The applicant brought administrative proceedings against the SDHAR and the BCEA before Baku Administrative-Economic Court no. 1 claiming 400,000 Azerbaijani manats (AZN) in respect of pecuniary damage and AZN 500,000 in respect of non-pecuniary damage resulting from the alleged unlawful demolition of the flats. The applicant submitted to the court two valuation reports prepared by private companies in respect of the flats in question and which estimated their total market value to be AZN 1,000,000 and AZN 1,333,800 respectively. Both reports noted the poor condition of all three flats. One of the reports further specified that flats nos. 9 and 11 had a depreciation rate of 90%, while flat no. 17 had a depreciation rate of 60%. The applicant also asked that the BCEA be ordered to issue the necessary permits for the reconstruction of the flats.

6.  The SDHAR lodged a counterclaim against the applicant, asking the court to terminate his ownership right and the registration in the State register in respect of the flats in exchange for fair compensation.

7.  On 9 July 2011 the first-instance court dismissed the applicant’s claim and upheld the SDHAR’s counterclaim. While doing so, it relied, inter alia, on domestic law provisions which stipulated that ownership rights to an immovable property were lost when it was completely destroyed, and that an interested party could request the termination of registration in the State register through court proceedings if the property was destroyed and the registration had lost its legal significance. The court established that flats nos. 9 and 11 had been demolished by the applicant himself. Regarding flat no. 17, the court found that it was in a state of urgent disrepair, with a 60% wear and tear rate, making it completely unfit for habitation and posing a serious threat both to the safety of individuals and to the architectural monument of national importance to which it was adjacent. It further held that the flats were covered by a legal regime of special protection in accordance with which construction works were restricted. The court concluded that the demolition of flat no. 17 by the SDHAR had been a measure of last resort and, therefore, lawful. In view of the disagreement between the parties regarding the market value, the court commissioned the Centre of Forensic Examination of the Ministry of Justice, together with specialists from the State Committee on Property Issues, to carry out a new valuation of the flats. However, the Centre of Forensic Examination declined to carry out the valuation, on the grounds that the flats no longer existed. The court then proceeded to examine the reports and other evidence submitted by the parties. Having examined in detail the valuation reports submitted by the applicant, the court rejected them, finding, in particular, that they had failed to take into consideration the actual condition and size of the flats. Furthermore, one of the reports had included the value of the land on which the building was situated in the market value of the flats. When determining the amount of compensation, the court referred to the amount of compensation paid to several other residents of the same building and to the price of flats in a newly constructed building nearby (AZN 1,500 per square metre). The court stated that although two of the flats had already been demolished by the applicant and the remaining flat was unfit for habitation and therefore not comparable to the flats mentioned above, it considered it fair to award the applicant AZN 290,000 (approximately 257,400 euros (EUR) at the relevant time) in respect of pecuniary damage (taking into account the total surface area of his flats).

8.  On 24 October 2012 and 30 January 2013 respectively, the Baku Court of Appeal and the Supreme Court dismissed appeals lodged by the applicant.

9.  The applicant complained under Article 6 of the Convention of a breach of his right to a reasoned judgment. He complained under Article 1 of Protocol No. 1 to the Convention that his flats had been demolished unlawfully by the State authorities and that the compensation awarded by the courts had been inadequate. He also complained that he had not been awarded any compensation for the plot of land underlying the building in which his flats had been situated.

THE COURT’S ASSESSMENT

10.  It was not disputed by the parties that all three flats had been in the applicant’s ownership and, as such, had constituted his “possessions”.

11.  The Government argued that the applicant did not have any ownership rights to the land underlying the building in which the flats had been situated. The applicant reiterated his submissions.

12.  The Court notes that the applicant’s flats were situated in an apartment building (see paragraph 2 above). The Court has already held that, under domestic law, the land underlying such buildings was in the common, shared ownership of the owners of the apartments in that building, who did not have the right to divide in kind or sell their shares or to perform other acts aimed at the separate alienation of their respective shares, and that those shares could not be regarded as separate “possessions” as such because they were attached to an apartment 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). It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

13.  The Court notes that an inspection report drawn up by the SDHAR, with the participation of the applicant’s representative, indicated that flats nos. 9 and 11 did not exist at the time of the inspection which took place before the demolition of flat no. 17 (see paragraph 4 above). The domestic courts found that those flats had been demolished by the applicant himself (see paragraph 7 above).

14.  In this connection, the Court observes that the BCEA’s letter of 17 June 2003 pertained solely to the reconstruction of the dilapidated roofs and did not grant the applicant permission to completely demolish and rebuild the flats (see paragraph 2 above). In view of these circumstances, the part of the complaint concerning the demolition of flats nos. 9 and 11 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

15.  The Court notes that the part of the complaint concerning flat no. 17 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.

16.  The applicable principles concerning Article 1 of Protocol No. 1 have been summarised in, inter alia, Akhverdiyev v. Azerbaijan (no. 76254/11, §§ 79-82, 29 January 2015); Khalikova v. Azerbaijan (no. 42883/11, §§ 134‑36, 22 October 2015); and Maharramov v. Azerbaijan (no. 5046/07, §§ 56-60, 30 March 2017).

17.  It was not disputed by the parties that there had been an interference with the applicant’s peaceful enjoyment of his possessions, which amounted to a “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1 to the Convention.

18.  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 Guiso‑Gallisay v. Italy, no. 58858/00, § 82, 8 December 2005, and Aliyeva and Others v. Azerbaijan, nos. 66249/16 and 6 others, § 128, 21 September 2021).

19.  In the present case, the domestic courts held that flat no. 17 was located within a protection zone of an architectural monument of national importance and that it was in a state of urgent disrepair, which posed a threat to both individuals and the nearby monument. Therefore, its demolition was carried out as a measure of last resort.

20.  The Court firstly notes that neither the domestic courts nor the Government referred to a domestic law provision which authorised the SDHAR to demolish a privately-owned property. Moreover, the domestic law establishes an explicit procedure consisting of several steps for the reconstruction and renovation of flats and residential buildings in a state of urgent disrepair. The fact that the flat or building in question is indeed in such a condition and impossible to renovate has to be confirmed by a court decision. If the owner refuses to demolish or rebuild the property within the time-limit set by the court, it can be sold at a public auction or purchased directly by the State. However, in the present case no court decision regarding the condition of the flat in question and the impossibility of renovating it had been obtained prior to its demolition (see paragraph 5 above).

21.  The foregoing considerations are sufficient for the Court to conclude that the interference in the present case was not carried out in compliance with “conditions provided for by law” (compare Akhverdiyev, cited above, § 99). There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

22.  As to the applicant’s complaint under Article 6 of the Convention (see paragraph 9 above), 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 that complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  The applicant claimed 2,025,601 United States dollars (USD) in respect of pecuniary damage and USD 50,000 in respect of non-pecuniary damage.

24.  The Government submitted that the applicant had already received compensation in respect of pecuniary damage and asked the Court to reject his claims under that head. They further argued that the amount claimed in respect of non-pecuniary damage was unsubstantiated and asked the Court to award appropriate compensation.

25.  In the present case, the domestic courts awarded the applicant AZN 290,000, and dismissed the valuation reports presented by him, providing reasons as to why they chose to do so (see paragraphs 7 and 8 above; compare Giuffrè and Others v. Italy [Committee], no. 50827/11, § 40, 5 September 2024). In such circumstances, and in the absence of substantiated arguments to the contrary, the Court rejects the applicant’s claim in respect of pecuniary damage.

26.  However, the Court accepts that the applicant suffered some distress as a result of the violation found. It therefore awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

27.  The applicant did not submit a claim in respect of costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 8 July 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Canòlic Mingorance Cairat
 Deputy Registrar President