Communicated on 19 January 2015
FIRST SECTION
Application no. 22730/12
Eldar HUSEYNOV against Azerbaijan
lodged on 12 April 2012
STATEMENT OF FACTS
The applicant, Mr Eldar Huseynov, is an Azerbaijani national, who was born in 1941 and lives in Sumgayit. He is represented before the Court by Mr F. Ağayev, a lawyer practising in Azerbaijan.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Demolition of the applicant’s flat
In April 2007 the applicant purchased a one-room flat with a total area of 28 sq. m. at 28 Fizuli Street in Baku for 130,350 Azerbaijani new manats (AZN). On 12 May 2008 the flat was registered in the applicant’s ownership by the State Register of Immovable Property.
In the beginning of 2010 officials of the Baku City Executive Authority (“the BCEA”) contacted the residents of a number of residential buildings in the area where the applicant’s flat was located, notifying them that the properties in the area in question were to be expropriated for State needs and demolished with the purpose of building an urban park. The expropriation was conducted on the basis of the BCEA order no. 511 of 24 September 2008 (not available in the case file). The order also authorised conclusion of a contract with a private individual, R.K., giving him authority to negotiate, on behalf of the BCEA, with the residents of the area with the purpose of payment of compensation to them. With that aim, the BCEA transferred into R.K.’s personal bank account an unspecified amount of money received originally from the State Oil Fund and designated for compensation of relocated residents. The compensation was fixed by the BCEA in the amount of AZN 1,500 per sq. m., for all properties located in the area.
In response to complaints by the residents, in a letter of 7 April 2010 (not available in the file), an official of the BCEA informed the residents that the original basis for the expropriation was the decision of 30 August 1989 of the Executive Committee of the Baku City Soviet of People’s Deputies envisaging construction of a park in the area in question in accordance with the General Development Plan of Baku.
The officials of the BCEA and the Nasimi District Police Office began the demolition works in the area in mid-April 2010. In particular, at this stage, among others things, they removed the outside shutters of the door and windows of the applicant’s flat. In the meantime, the applicant was offered AZN 1,500 per sq. m. in compensation, an amount which he refused to accept as he deemed it to be far less than the actual market value of the flat.
In September 2010, while the judicial proceedings were still pending (see below), the applicant’s flat was completely demolished.
2. First set of proceedings
On 20 April 2010 the applicant lodged an action with the Nasimi District Court, against the BCEA, the Nasimi District Executive Authority and the Nasimi District Police Office. He argued that the authorities’ actions were unlawful and that the interference with his property rights was in breach of the requirements of the Constitution, the Civil Code and the Housing Code concerning the inviolability of private property and the procedures for expropriation and State purchase of private property, as well as the requirements of Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention. He sought a ruling from the court ordering inter alia that the defendants stop their unlawful actions, restore his property to its previous condition and pay him AZN 15,000 in compensation for the pecuniary and non-pecuniary damages inflicted up to that point.
The BCEA lodged a counter-claim, asking the court to annul the applicant’s ownership right and documents certifying it. The BCEA argued that the original privatisation of the flat by its previous owner in 2007 had been unlawful because, in the BCEA’s opinion, it was contrary to a decision of the Soviet of Ministers of the Azerbaijan SSR issued in 1987 approving the General Development Plan of Baku and designating the area in question as a “relocation area”. The BCEA argued that, therefore, the applicant wrongfully owned an “unlawfully privatised flat”. It further requested the court to order the applicant’s relocation from the current flat, on the condition that the authorities’ provide him another accommodation.
On 17 May 2010 the applicant lodged a request with the court, asking inter alia to admit as evidence an expert evaluation report of 17 April 2010, which estimated the current market value of his flat at AZN 152,000. He noted that this evidence was important in view of the fact that the BCEA was offering him only AZN 1,500 per sq. m.
While the case was still pending before the Nasimi District Court, in September 2010 the applicant’s flat was demolished (see above). Following this, on 27 September 2010 the applicant updated his original claim, increasing his claim in respect of pecuniary and non-pecuniary damages to AZN 500,000.
On 27 September 2010 the Nasimi District Court delivered its judgment. The court dismissed the part of the BCEA’s counter-claim seeking the annulment of the applicant’s ownership right, finding that the time-limit for challenging the lawfulness of the original privatisation had expired. However, it upheld the part of the counter-claim concerning the request for the applicant’s forced eviction to a new accommodation provided by the BCEA, reasoning that, since the applicant refused to accept the monetary compensation offered (AZN 1,500 per sq. m.), the only other option was to give him another accommodation instead. As to the applicant’s claims, the court rejected them, finding firstly that the BCEA’s and the other defendants’ actions could not be considered under domestic law as “interference with the applicant’s peaceful enjoyment of his possessions” and that the court did not see how any action by the defendants had violated the applicant’s rights or freedoms. Secondly, the court found that the applicant had failed to prove that he had suffered any pecuniary or non‑pecuniary damage. In view of the above findings, the court ordered that the applicant be evicted and provided with a new flat of the same size and equivalent conditions.
The applicant appealed, reiterating his claims and arguments, maintaining that the BCEA had no competence under the domestic law to expropriate private property, and arguing that the first-instance court had failed to properly apply the relevant domestic law and that its interpretation of the law was manifestly wrong.
On 27 January 2010 the Baku Court of Appeal upheld the first-instance court’s judgment.
The applicant lodged an appeal on points of law with the Supreme Court.
By a decision of 22 June 2011 the Supreme Court granted the applicant’s appeal, quashed the Baku Court of Appeal’s judgment of 27 January 2010 and remitted the case. The Supreme Court found inter alia that the appellate court had failed to correctly apply the domestic law and had failed to assess the defendants’ actions as an unlawful and unjustified interference with the applicant’s rights within the meaning of the relevant provisions of the domestic law and the Convention.
By a judgment of 14 October 2011 the Baku Court of Appeal partially granted the applicant’s claim, finding that there had been an unlawful interference by the defendants with this property rights. However, since the property had already been demolished, the court found that it was not possible to restore it to its previous condition and that, therefore, the applicant should be paid compensation for pecuniary damage. Taking as the basis the BCEA’s initial offer of compensation, the court ordered that the applicant should be paid AZN 1,500 per sq. m., for a total amount of AZN 42,000. The court dismissed the applicant’s claim in respect of non‑pecuniary damage, finding that he had failed to substantiate it.
The applicant lodged an appeal on points of law, reiterating his previous arguments and complaining that, despite the legal requirement for compensation to correspond to the market value of the property and despite the existence of clear evidence showing that the market value of his flat was much higher than the amount proposed by the BCEA, the appellate court based its award on the amount of compensation fixed by the BCEA in an unlawful and arbitrary manner.
By a decision of 21 February 2012 the Supreme Court dismissed the applicant’s appeal, agreeing with the Baku Court of Appeal’s finding that the amount of AZN 42,000 constituted a “fair and reasonable” compensation and finding that the expert report of 17 April 2010, relied on by the applicant, had not been duly signed by the expert.
3. Second set of proceedings
In the meantime, following the demolition of the flat and before the final decision in the above proceedings, the applicant and his family found themselves in a difficult financial situation. Therefore, according to the applicant, he had no choice but to conclude, on 14 December 2010, a sale contract with R.K. who formally purchased the already-demolished flat from him. The applicant was paid AZN 42,000 pursuant to the contract.
On 11 January 2011 the applicant lodged an action with the Nasimi District Court, against R.K. and the BCEA, seeking annulment of the sale contract of 14 December 2010, arguing that it was a contract concluded in bad faith, whereby R.K., being the agent of the BCEA which had abused its authority by unlawfully interfering with the applicant’s property rights, had taken advantage of the applicant’s situation and had forced him to accept extremely unfavourable terms. The applicant asked the court to declare the contract invalid, to order the restitution of the flat, and to order the defendants to pay him AZN 250,000 for pecuniary damage and AZN 100,000 for non-pecuniary damage.
By a judgment of 1 March 2011 the Nasimi District Court dismissed the applicant’s claim as unsubstantiated.
On 12 May 2011 and 13 October 2011, respectively, the Baku Court of Appeal and the Supreme Court dismissed the applicant’s appeals.
COMPLAINTS
1. The applicant complains under Articles 6 and 13 of the Convention that both sets of proceedings were unfair, that the domestic courts were not independent and did not constitute an effective remedy, and that their judgments and decisions were unreasoned because they failed to apply the legal provisions clearly applicable to his case. He also complained that the first set of proceedings did not comply with the “reasonable time” requirement.
2. The applicant complains under Article of Protocol No. 1 to the Convention that there was an unlawful and unjustified interference with his possessions.
QUESTIONS TO THE PARTIES
1. Has the applicant been deprived of his possessions in the public interest, in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1? What were the substantive and procedural conditions (including the conditions in respect of the compensation to be paid) required by the applicable law for the deprivation of property to be lawful, and were those conditions complied with in the present case? What was the legal basis for the relevant authorities’ actions aimed at alienating the applicant’s private property? How was the amount of compensation (offered to the applicant and other affected individuals) determined in the present case and what was the legal basis for fixing the compensation in such manner?
2. In both sets of proceedings, did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Was the applicant’s right to a reasoned decision respected?
3. The Government are requested to provide copies of the following: (1) the 1987 decision of the Soviet of Ministers of the Azerbaijan SSR and the General Development Plan of Baku adopted by that decision; (2) the decision of 30 August 1989 of the Executive Committee of the Baku City Soviet of People’s Deputies; (3) the Baku City Executive Authority (“the BCEA”) order no. 511 of 24 September 2008; (4) the formal decision authorising the conclusion of a contract between the BCEA and Mr Rufan Habil oglu Kazimov, and a copy of that contract; (5) all other documents, decisions, orders and letters relating to the expropriation and demolition of residential and other buildings in the area where the applicant’s flat was located.
4. The parties are also requested to submit copies of: (1) the title document confirming the registration of the flat in the applicant’s ownership by the State Register of Immovable Property on 12 May 2008; and (2) the sale and purchase contract concluded between the applicant and Mr Rufan Habil oglu Kazimov.
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