Communicated on 19 June 2017
FIFTH SECTION
Application no. 39331/09
Mazahir JAFAROV against Azerbaijan
and 4 other applications
(see list appended)
The applicants are Azerbaijani nationals. Their particulars and representatives are indicated in the Appendix.
The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
In accordance with Article 228.2 of the Civil Code of the Republic of Azerbaijan an owner is entitled to claim termination of the third parties’ right to use their flat subject to payment of relevant compensation, on the basis of market value.
The applicants in applications nos. 39331/09, 41127/09, 58314/09 and 2099/11 had flats in Baku or in Sumgayit. Third parties, such as family members, relatives or other persons registered in those flats had right to use them.
The applicants in application no. 4026/10 were legally registered at and had a right to use a flat in Baku, which was later purchased by the private company G.
On various dates between 2008 and 2010 the applicants in applications nos. 39331/09, 41127/09, 58314/09 and 2099/11 lodged claims (or a counter-claim in application no. 39331/09) with the Narimanov District Court or Sumgayit City Court against persons entitled to use their flats and asked for termination of such rights subject to payment of compensation in accordance with Article 228.2 of the Civil Code.
On 31 July 2008 the applicants in application no. 4026/10 lodged a claim with the Yasamal District Court against company G., asking for 110,200 United State dollars (USD) in compensation for termination of their right to use the flat owned by company G. On an unspecified date in 2008 company G. lodged a counter-claim asking for termination of the applicants’ right to use the flat subject to payment of 1,000 Azerbaijani manats in compensation.
In respect of applications nos. 39331/09, 41127/09 and 58314/09 on various dates the first-instance courts dismissed the applicants’ claims (and counter-claim in application no. 39331/09) finding that the compensation offered by them was not enough for the defendants to live in another place for a certain period of time under the conditions similar to those of the respective property in question (see Appendix). The courts did not specify the length of such period or the amount of compensation that would be enough.
In respect of application no. 4026/10 on 28 October 2008 the first‑instance court dismissed the applicants’ claim and upheld company G.’s counter-claim finding that the offered compensation was fair.
In respect of application no. 2099/11 on 6 January 2010 the first-instance court upheld the applicant’s claim.
In respect of applications nos. 39331/09, 41127/09, 58314/09 and 4026/10 on various dates the Baku Appeal Court or Sumgayit Appeal Court upheld the first-instance courts’ judgments (see Appendix).
In respect of application no. 2099/11 on 4 May 2010 the Baku Appeal Court quashed the first-instance court’s judgment and dismissed the applicant’s claim finding that the offered compensation was not enough for the defendants to live in another place for a certain period of time under the conditions similar to those of the respective property in question. The court did not specify the length of such period or the amount of compensation that would be enough.
On various dates the Supreme Court upheld the appellate courts’ judgments (see Appendix).
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention that the civil proceedings concerning the alleged violation of their property rights was not fair, in particular that the domestic courts delivered unreasoned judgments.
2. The applicants in applications nos. 39331/09, 41127/09, 58314/09 and 2099/11 complain under Article 1 of Protocol No. 1 that their right to peaceful enjoyment of their possessions was breached as the domestic courts failed to terminate third parties’ rights to use their flats subject to payment of compensation.
3. The applicants in application no. 4026/10 complain under Article 1 of Protocol No. 1 that their right to peaceful enjoyment of their possessions was breached as the domestic courts terminated their rights to use the flat owned by company G. without payment of fair compensation.
QUESTIONs to the parties
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations in the proceedings concerning the alleged violation of their property rights, in accordance with Article 6 § 1 of the Convention? In particular, was the applicants’ right to a reasoned judgment respected?
2. Has there been a violation of Article 1 of Protocol No. 1 with regard to the alleged failure of the State to protect the applicants’ property interests in relation to termination of the third parties’ (or of the applicants’ in application no. 4026/10) right to use the relevant properties subject to compensation?
3. Were the relevant legal provisions of the domestic law concerning termination of right to use a property sufficiently precise and foreseeable? In particular, how the amount of compensation had to be calculated and what was the meaning of the “certain period of time” indicated in the decision of the Constitutional Court of the Republic of Azerbaijan dated 26 September 2007?
APPENDIX
No.
Applicationno.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Compensation offer (CO)
Outcome
Domestic courts’
judgments/decisions
39331/09
01/07/2009
Mazahir JAFAROV
1959
Baku
Fuad RAHIMOV
CO: The applicant offered AZN 6,000 to each of three residents (former wife, son and daughter)
Outcome: Dismissed
Narimanov District Court, 24 July 2008
Baku Appeal Court, 14 October 2008
Supreme Court, 24 February 2009
41127/09
21/07/2009
Ulker RAHIMOVA
1947
Baku
Sara ALIYEVA
CO: The applicant offered AZN 1,000 to two residents (son and daughter-in-law)
Outcome: Dismissed
Narimanov District Court, 12 May 2008
Baku Court of Appeal, 7 October 2008
Supreme Court, 17 February 2009
58314/09*
28/10/2009
Bayram BAYRAMOV
1962
Sumgayit
CO: The applicant offered one-quarter of the proceeds from the sale of the flat to two residents (not relatives)
Outcome: Dismissed
Sumgayit City Court, 7 January 2009
Sumgayit Appeal Court, 25 May 2009
Supreme Court, 4 September 2009
4026/10
08/01/2010
Fatma ALASKAROVA
1957
Baku
Sevinj ALASKAROVA
Baku
Kamala ALASKAROVA
1983
Baku
Khadija SHIRINOVA
CO: Company G. offered AZN 1,000 to the applicants (residents)
Outcome: Upheld
Yasamal District Court, 28 October 2008
Baku Appeal Court, 28 January 2009
Supreme Court, 3 June 2009
2099/11
10/12/2010
Faig MAMMADOV
1971
Baku
Jabbar HASANOV
CO: The applicant offered USD 10,000 to one resident (former wife).
Outcome: Dismissed
Narimanov District Court, 6 January 2010
Baku Appeal Court, 4 May 2010
Supreme Court, 29 October 2010
Full & Egal Universal Law Academy