Communicated on 19 January 2015
FIRST SECTION
Application no. 37786/12
Kamala ALIYEVA against Azerbaijan
lodged on 18 June 2012
STATEMENT OF FACTS
The applicant, Mr Kamala Aliyeva, is an Azerbaijani national, who was born in 1965 and lives in Baku. He is represented before the Court by Mr F. Agayev, a lawyer practising in Baku.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In June 2005 the applicant purchased a two-room flat with a total area of 39.1 sq. m. at 69 Topchubashov Street in Baku. The flat had a direct access to a private courtyard. 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.
Soon the authorities started the large-scale demolition works in the area, which resulted in the accumulation of debris around the applicant’s flat and problems with the supply of electricity, gas and water. In November 2010 the gas lines to the applicant’s flat were definitively cut. Despite this, the applicant refused to abandon the flat.
On 19 November 2010 the authorities demolished the applicant’s flat. During the demolition some of her belongings, which were inside the flat and which she estimated to be worth around 17,000 to 18,000 Azerbaijani manats (AZN), either disappeared or were damaged.
On 9 December 2010 the applicant signed a sale contract with R.K. who formally purchased the already-demolished flat from her. The applicant was paid AZN 58,650 pursuant to the contract.
The applicant moved to another flat owned by her, which she had been renting out before.
On 14 January 2011 the applicant lodged an action with the Nasimi District Court, against the BCEA, the Nasimi District Executive Authority and the Nasimi District Police Office. She argued that the authorities’ actions were unlawful and that the interference with her 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. She also argued that the sale contract of 9 December 2010 was invalid, because 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 her to accept unfavourable terms. She sought inter alia annulment of the contract of 9 December 2010, restoration of the flat and its courtyard to their original condition, and AZN 500,000 and AZN 200,000 in compensation for, respectively, pecuniary and non-pecuniary damages.
By a judgment of 11 April 2011 the Nasimi District Court dismissed the applicant’s claims, finding that the sale contract was valid and that the applicant had failed to substantiate her compensation claims.
The applicant appealed, reiterating her complaints and arguing that the first-instance proceedings had been unfair.
On 10 August 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the Nasimi District Court’s judgment of 11 April 2011.
The applicant lodged an appeal with the Supreme Court, reiterating her complaints and arguing that the proceedings in the lower courts had been unfair.
By a decision of 22 December 2011 the Supreme Court dismissed the applicant’s appeal on points of law.
COMPLAINTS
1. The applicant complains under Articles 6 and 13 of the Convention that the domestic 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 her case.
2. The applicant complains under Article 8 of the Convention that there was an unlawful and unjustified interference with her right to respect for her home.
3. The applicant complains under Article of Protocol No. 1 to the Convention that there was an unlawful and unjustified interference with her possessions.
QUESTIONS TO THE PARTIES
1. Has the applicant been deprived of her 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? When signing a sale contract of 9 December 2010 with the applicant, was Mr Rufan Habil oglu Kazimov acting as a State agent and how can that contract be legally characterised as part of the process of alienation of the applicant’s flat?
2. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Was the applicant’s right to a reasoned decision respected?
3. Has there been an interference with the applicant’s right to respect for her home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
4. 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.
5. 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; and (2) the sale and purchase contract concluded between the applicant and Mr Rufan Habil oglu Kazimov.
Full & Egal Universal Law Academy