FIRST SECTION
CASE OF ZAHID MAMMADOV AND OTHERS v. AZERBAIJAN
(Applications nos. 3172/08, 42347/08, 454/09, 2772/09 and 32585/09)
JUDGMENT
STRASBOURG
6 December 2011
This judgment is final but it may be subject to editorial revision.
In the case of Zahid Mammadov and Others v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a committee composed of:
Peer Lorenzen, President,
Khanlar Hajiyev,
Julia Laffranque, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 15 November 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in five 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 following Azerbaijani nationals:
– Mr Zahid Mammadov, born in 1955, represented by Mr A. Mustafayev, a lawyer practising in Azerbaijan (application no. 3172/08, lodged on 6 December 2007);
– Mr Vagif Aliyev, born in 1940, also represented by Mr A. Mustafayev (application no. 42347/08, lodged on 11 August 2008);
– Mr Bakhtiyar Muslumov, born in 1965, represented by Mr N. Ismayilov, a lawyer practising in Azerbaijan (application no. 454/09, lodged on 3 December 2008);
– Mr Eduard Abramov, born in 1958, represented by Mr A. Bagirov, a lawyer practising in Azerbaijan (application no. 2772/09, lodged on 15 December 2008); and
– Ms Tamilla Hasanova born in 1950, represented by Mr A. Nagiyev, a lawyer practising in Azerbaijan (application no. 32585/09, lodged on 8 May 2009).
2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. On 12 March 2010 the President of the First Section decided to give notice of the applications to the Government. In accordance with Protocol No. 14, the applications were allocated to a Committee. It was also decided that the Committee would rule on the admissibility and merits of the applications at the same time (Article 29 § 1 of the Convention).
4. The Government did not object to the examination of the applications by a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
5. All of the applicants have either tenancy rights to their flats on the basis of occupancy vouchers (yaşayış sahəsi orderi) issued by the relevant executive authorities or ownership rights to them on the basis of an ownership certificate issued by the competent domestic authority (see Appendix – Table I).
6. In all five cases, the applicants’ flats were unlawfully occupied by internally displaced persons (“IDPs”) from different regions of Azerbaijan under occupation by Armenian military forces following the Armenian‑Azerbaijani conflict over Nagorno-Karabakh.
7. The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats.
8. On the dates indicated in the Appendix (Table I), the applicants’ claims were granted by different domestic courts, which ordered the eviction of the IDPs from their flats.
9. The respective judgments became final and enforceable. However, the IDP families refused to comply with those judgments and despite the applicants’ complaints to various authorities, the judgments were not enforced.
II. RELEVANT DOMESTIC LAW
10. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
11. Relying on Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the non-enforcement of the judgments in their favour. Article 6 § 1 of the Convention reads, as far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1 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.”
12. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.
A. Admissibility
1. The Court’s competence rationae temporis in applications nos. 454/09, 2772/09 and 32585/09
13. The Court observes that in the cases of Mr Bakhtiyar Muslumov (application no. 454/09), Mr Eduard Abramov (application no. 2772/09) and Ms Tamilla Hasanova (application no. 32585/09) the domestic judgments in the applicants’ favour were delivered prior to 15 April 2002, the date of the Convention’s entry into force in respect of Azerbaijan.
14. The Court notes that in the light of the authorities’ continued failure to execute the judgments in question, they still remain unenforced. Therefore, there is a continuous situation and the Court is thus competent to examine the part of the applications relating to the period after 15 April 2002 (see Gulmammadova, cited above, § 26).
2. Other admissibility criteria
15. The Court further considers that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
16. The Court points out that the factual circumstances of these cases are similar and that the complaints and legal issues raised are identical to those in the Gulmammadova case (cited above), in which it found violations of Article 6 § 1 and Article 1 of Protocol No. 1.
17. Having examined all the material in its possession, the Court finds that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in respect of the present applications.
18. In particular, the Court is prepared to accept that, in these cases, the existence of a large number of IDPs in Azerbaijan created certain difficulties in relation to the execution of the judgments in the applicants’ favour. Nevertheless, the judgments remained final and enforceable, but no adequate measures were taken by the authorities to ensure compliance with them. It has not been shown that the authorities acted with expedition and diligence in taking any measures necessary for the enforcement of the judgments in question. In such circumstances, the Court considers that no reasonable justification has been advanced by the Government for the significant delay in the enforcement of the judgments.
19. As regards the applicants’ submissions concerning the alleged violation of their property rights, it has not been established either in the domestic proceedings or before the Court that any specific measures were taken by the domestic authorities in order to comply with their duty to balance the applicants’ right to peaceful enjoyment of their possessions protected under Article 1 of Protocol No. 1 to the Convention against the IDPs’ right to be provided with accommodation. In such circumstances, the failure to ensure the execution of the judgments for considerable periods of time resulted in a situation in which the applicants were forced to bear an excessive individual burden. The Court considers that, in the absence of any compensation for this excessive individual burden, the authorities failed to strike the requisite fair balance between the general interest of the community in providing the IDPs with temporary housing and the protection of the applicants’ right to peaceful enjoyment of their possessions (see Gulmammadova, cited above, §§ 43-50).
20. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
21. The Court does not consider it necessary to rule on the complaint under Article 13 of the Convention because Article 6 is the lex specialis in respect of this part of the applications (see, for example, Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25 October 2007).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. 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.”
A. Damage
1. Pecuniary damage
23. The applicants claimed various sums as indicated in the Appendix (Table II) in respect of pecuniary damage. In cases nos. 3172/08 and 42347/08 the amounts claimed covered the loss of rent from the dates of delivery to the applicants of the relevant occupancy vouchers or ownership certificates. In case no. 454/09 the amount included the market price of the flat. In support of their claims, all the applicants except for the applicant in case no. 32585/09 submitted some estimates by local companies on rent prices for flats in a similar condition.
24. The Government submitted that the applicants had failed to justify their claims. The Government also argued that the applicant in case no. 454/09 could not claim any compensation for the market value of the flat.
25. The Court considers that the applicants must have suffered pecuniary damage as a result of their lack of control over their flats and finds that there is a causal link between the violations found and the pecuniary damage claimed in respect of lost rent (compare Radanović v. Croatia, no. 9056/02, §§ 62-66, 21 December 2006). However, the Court considers that the damage suffered by the applicants in cases nos. 3172/08 and 42347/08 should be calculated starting from the date of delivery of each respective judgment in the applicants’ favour and not from the dates of delivery of the occupancy vouchers or ownership certificates as claimed by the applicants. As to the part of the claim in case no. 454/09 relating to the market value of the flat, the Court rejects this part as it does not find any causal link between the violation found and this part of the claim. The Court also rejects the claim in respect of the lost rent submitted by the applicant in case no. 32585/09 as she failed to submit any documents in support of her claims.
26. Having examined the parties’ submissions in cases nos. 3172/08, 42347/08, 454/09 and 2772/09, the Court will take as a reference point the amount set forth in the local companies’ estimates, which were submitted by the applicants.
27. In making its assessment, the Court takes into account the fact that the applicants would inevitably have experienced certain delays in finding suitable tenants and would have incurred certain maintenance expenses in connection with the flats. They would have also been subject to taxation (see Prodan v. Moldova, no. 49806/99, § 74, ECHR 2004‑III (extracts); Popov v. Moldova (no. 1) (just satisfaction), no. 74153/01, § 13, 17 January 2006; and Radanović, cited above, § 65). Having regard to the foregoing, and deciding on an equitable basis, the Court awards 5,000 euros (EUR) to the applicant in case no. 3172/08; EUR 3,000 to the applicant in case no. 42347/08; EUR 8,800 to the applicant in case no. 454/09; and EUR 12,800 to the applicant in case no. 2772/09. No award is made in case no. 32585/09 as the applicant failed to substantiate his claims.
2. Non-pecuniary damage
28. The applicants claimed different sums as indicated in the Appendix (Table II) in respect of non-pecuniary damage.
29. The Government indicated their willingness to accept the applicants’ claims for non-pecuniary damage up to a maximum of EUR 1,000 in respect of each applicant.
30. The Court considers that the applicants must have sustained some non-pecuniary damage as a result of the lengthy non-enforcement of the final judgments in their favour. However, the amounts claimed in most of the cases are excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the following amounts under this head, plus any tax that may be chargeable on these amounts:
– EUR 1,600 to each of the applicants in applications nos. 3172/08 and 42347/08; and
– EUR 4,800 to each of the applicants in applications nos. 454/09, 2772/09 and 32585/09.
31. Moreover, the Court considers that, in so far as the judgments remain in force, the State’s outstanding obligation to enforce them cannot be disputed. Accordingly, the applicants are still entitled to the enforcement of those judgments. The Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicants, as far as possible, are put in the position they would have been in had the requirements of Article 6 not been disregarded (see Davletkhanov and other “Chernobyl pensioners” v. Russia, nos. 7182/03, 10115/04, 21752/04, and 22963/04, § 25, 23 September 2010 and Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). Having regard to the violation found, the Court finds that this principle also applies in the present cases. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgments in the applicants’ favour.
B. Costs and expenses
32. All the applicants, except the applicant in case no. 2772/09, also claimed different sums as indicated in the Appendix (Table II) for the costs and expenses incurred before the domestic courts and the Court.
33. The Government considered the claims to be unjustified.
34. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.
35. In case no. 2772/09 the applicant did not submit a claim for costs and expenses incurred before the Court. Accordingly, the Court considers that there is no call to award her any sum under this head.
36. Having regard to the fact that the applicants in cases nos. 454/09 and 32585/09 failed to produce any supporting documents, the Court dismisses their claims for costs and expenses.
37. As for the claims for costs and expenses by the applicants in cases nos. 3172/08 and 42347/08, the Court observes that they were submitted by the same lawyer (namely, Mr A. Mustafayev). The Court further notes the similarity of the complaints and legal arguments submitted in the cases and the fact that the cases concern matters on which there is well-established case-law. In view of the above considerations, the Court awards the total amount of EUR 700 jointly to the applicants in cases nos. 3172/08 and 42347/08, in respect of the legal services rendered by Mr A. Mustafayev.
C. Default interest
38. The Court considers it appropriate that the default interest 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
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
5. Holds that there is no need to examine the complaint under Article 13 of the Convention;
6. Holds that the respondent State, within three months, shall secure, by appropriate means, the enforcement of the domestic courts’ judgments in the applicants’ favour;
7. Holds
(a) that the respondent State is to pay the applicants, within three months the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:
(i) in respect of damage:
– Mr Zahid Mammadov (application no. 3172/08) – EUR 5,000 (five thousand euros) in respect of pecuniary damage and EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
– Mr Vagif Aliyev (application no. 42347/08) – EUR 3,000 (three thousand euros) in respect of pecuniary damage and EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
– Mr Bakhtiyar Muslumov (application no. 454/09) – EUR 8,800 (eight thousand eight hundred euros) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
– Mr Eduard Abramov (application no. 2772/09) – EUR 12,800 (twelve thousand eight hundred euros) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
– Ms Tamilla Hasanova (application no. 32585/09) – EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) in respect of costs and expenses, EUR 700 (seven hundred euros), jointly to the applicants Mr Zahid Mammadov and Mr Vagif Aliyev, plus any tax that may be chargeable to the applicants, to be paid into the applicants’ representative’s bank account;
(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;
8. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 6 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André WampachPeer Lorenzen
Deputy RegistrarPresident
APPENDIX
Table I
Application no.
Applicant’s name
Document confirming the applicant’s property rights
Date of delivery of the enforceable judgment
Date of lodging of the application with the Court
3172/08
Zahid Mammadov
Occupancy voucher of 3 March 1997
The Sumgayit Court of Appeal’s judgment of 30 December 2008
6 December 2007
42347/08
Vagif Aliyev
Occupancy voucher of 28 October 1996
The Sumgayit Court of Appeal’s judgment of 24 December 2008
11 August 2008
454/09
Bakhtiyar Muslumov
Ownership certificate of 5 April 1995
The Sabayil District Court’s judgment of 25 September 1995
3 December 2008
2772/09
Eduard Abramov
Ownership certificate of 15 February 1994
The Surakhani District Court’s judgment of 11 October 1999
15 December 2008
32585/09
Tamilla Hasanova
Ownership certificate of 13 July 1996
The Binagadi District Court’s judgment of 22 July 1998
8 May 2009
Table II
Application no.
Applicant’s name
Claim for pecuniary damage (EUR)
Claim for non- pecuniary damage (EUR)
Claim for costs and expenses
3172/08
Mr Zahid Mammadov
61,200
3,000
1,600
42347/08
Mr Vagif Aliyev
36,720
3,000
1,450
454/09
Mr Bakhtiyar Muslumov
56,967
15,000
1,500
2772/09
Mr Eduard Abramov
17,054
20,000
-
32585/09
Ms Tamilla Hasanova
54,000
10,000
7,000
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