Communicated on 28 January 2014
FIRST SECTION
Application no. 42883/11
Nuriya KHALIKOVA against Azerbaijan
lodged on 14 July 2011
STATEMENT OF FACTS
The applicant, Ms Nuriya Khalikova, is an Azerbaijani national, who was born in 1964 and lives in Baku. She is represented before the Court by Mr F. Agayev, a lawyer practising in Azerbaijan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Attempts to evict the applicant from her flat
The applicant is an Azerbaijani national of Tatar origin who lives alone in Baku and has no relatives in Azerbaijan.
The applicant was the owner of a flat situated on the first floor of a building on Fuzuli street, in Baku. This building was considered as an architectural monument and was registered on the list of “historical and cultural property of local importance” established by the Cabinet of Ministers of the Republic of Azerbaijan.
On 24 September 2008 the Head of the Baku City Executive Authority (“the BCEA”) adopted an order entitled “Construction of a New Park Complex and Relocation of Residential and Non-Residential Accommodation from that Area” (“the order of 24 September 2008”). It was noted in the order that the residents of the buildings situated in the area in question, which also included the applicant’s building, would be moved from their places of residence and that they would be compensated for it in the amount of 1,500 Azerbaijani manats (AZN) per sq.m. of their flat.
In the beginning of 2010 the BCEA began to construct fences around the building in which the applicant resided. In February 2010, at the request of the BCEA various commercial companies occupying the ground floor of the building were evicted. A few days later residents occupying the flats situated on the second floor of the building left their home. After their departure, the BCEA’s employees destroyed these flats and the roof of the building. As a result, the rain waters began to enter into the building making living conditions impossible for the applicant.
In March 2010 a high-ranking official of the BCEA, Z.I., requested the applicant and the remaining residents of the building to leave their flats. He tried to impose a one-week deadline for vacating their flats.
From the beginning of April 2010, telephone lines in the building were cut for a period of two months and power cuts became usual. The water pump of the building disappeared. According to the applicant, all the described actions were taken by the BCEA in order to force her and other residents to leave their flats.
By a letter dated 7 April 2010, the residents of this area, including the applicant, were informed by the BCEA that a park would be constructed in that area. The BCEA referred in its letter to an order of 30 August 1989 of the Executive Committee of the Soviet of People’s Deputies (“the order of 30 August 1989”). The residents were also informed that they would be compensated in accordance with the market price of their flat and specified that it would be AZN 1,500 per sq.m of their flat.
However, it appears that the BCEA did not propose the residents to conclude a sale contract with it, but with a third person named R.K. The latter person, who had no official title in the BCEA, acted as a purchaser in all the sale contracts with the residents of the area.
The applicant refused to leave her flat under these conditions.
2. Events of 19 November 2010 and the domestic proceedings relating to these events
At approximately 9 a.m. on 19 November 2010 the applicant’s building was surrounded by the BCEA’s employees and police officers.
At 9.11 a.m. the door of the applicant’s flat was knocked. When the applicant looked through the peephole of the door, she saw about ten persons including police officers and other employees. They ordered the applicant to open the door. The applicant refused to do so saying that there was no court order for her eviction.
However, they broke the door and entered into the applicant’s flat against her consent. The applicant asked them to leave immediately, however they refused to do so.
At approximately 9.30 a.m. the applicant called an ambulance as she did not feel well. The ambulance came soon, however the police did not allow the doctor to enter into the flat.
When the applicant’s situation got worse, she was taken outside by a police officer and the doctor could intervene in front of the building.
At 10 a.m. the applicant was taken to Police Station No. 22 where she was detained in a room with other residents of the building. At the police station the applicant felt sick and an ambulance was called again. She was examined by a doctor and a relevant medical certificate was established in this respect. It appears from the medical certificate that the ambulance arrived at the police station at 10.45 a.m.
At 6.30 p.m. a police officer asked the applicant and other residents to write a statement noting that they were taken to the police station because they had made noise. However, they refused to do so.
Later the police officer asked them to write a statement that they refused to write any statement. The applicant refused to do so.
At 7.10 p.m. the applicant was released from the police station.
Following her release the applicant returned to her flat which, by this time, had been destroyed by the BCEA’s employees. She was informed by Z.I., an official of the BCEA that her belongings had been removed from her flat and had been taken to a warehouse. After her arrival at the warehouse, the applicant discovered that many of her belongings were damaged and that some of them disappeared.
On 22 November 2010 the building was completely demolished by the BCEA.
On 22 November 2010 the applicant lodged a criminal complaint against the Nasimi District Police complaining about her unlawful detention by the police. In particular, she noted that on 19 November 2010 she had been unlawfully detained at Police Station No. 22 for a period of 10 hours without any reason. She also complained that her right to respect for her home had been violated because the police had unlawfully entered into her flat.
At the hearing before the first-instance court, the Head of Police Station No. 22 submitted a letter to the court. According to this letter, the applicant and other eight persons tried to hold an unlawful demonstration and for this reason they were taken to the police station on 19 November 2010 at 11 a.m. At the police station an administrative protocol was compiled and the applicant was warned. It was also noted that following a conversation that the police held with them they were all released and that they had not stayed at the police station more than three hours.
It appears from the transcript of the hearing that two witnesses testified at the hearing in favour of the applicant’s submissions. Moreover, the medical certificate of 19 November 2010 and a video recording showing how the police broke the door of the applicant’s flat, which the applicant made using her mobile phone camera, were also submitted to the court in support of the applicant’s claim.
On 20 December 2010 the Nasimi District Court dismissed the applicant’s claim. The court relied on an administrative protocol drawn up by the police according to which the applicant was only warned by the police. The court also held that there was no criminal element in that case and that the applicant could appeal against her administrative conviction by the police.
The applicant appealed against this decision reiterating that she had been unlawfully detained by the police and that the police had unlawfully entered into her flat by breaking the door. She noted that her claim had been supported by witness testimonies, the video recording and the medical certificate. In this connection, she pointed out that she had been taken to the police station at 10 a.m. and not at 11 a.m. as alleged by the police and this fact was supported by the medical certificate which established that the ambulance arrived at the police station at 10.45 a.m. and gave her first aid.
On 13 January 2011 the Baku Court of Appeal dismissed the applicant’s appeal.
The applicant received the appellate court’s decision on 29 January 2011.
3. The domestic proceedings relating to the applicant’s eviction from her flat
(a) First set of proceedings
Prior to the physical destruction of her flat, on 14 April 2010 the applicant brought an action against the BCEA, the Nasimi District Executive Authority (“the NDEA”) and the Nasimi District Police Office (“the NDPO”) claiming violation of her property rights. She complained in particular about unlawful actions of the BCEA’s employees asking the court to eliminate the obstacles preventing her from enjoying her ownership rights and to declare unlawful the orders of 30 August 1989 and 24 September 2008. The applicant argued that the Cabinet of Ministry of the Republic of Azerbaijan had not taken any expropriation decision in respect of the building where she resided as required by the domestic law in the field of expropriation.
On 22 April 2010 the Nasimi District Court refused to admit the applicant’s claim. The court held that the applicant had failed to submit originals or notarised copies of the documents in support of her claim. The applicant appealed against this decision.
On 27 May 2010 the Baku Court of Appeal quashed the first-instance court’s decision and remitted the case to the Nasimi District Court.
In the proceedings before the first-instance court, the hearings were postponed several times due to the absence of the BCEA’s representative.
At the hearing held on 2 September 2010 the representative of the BCEA lodged a request disputing the territorial competence of the Nasimi District Court. The judge dismissed the request. The BCEA appealed against the court’s dismissal decision.
On 11 October 2010 the Baku Court of Appeal dismissed the BCEA’s appeal.
On 4 November 2010 the Nasimi District Court scheduled its hearing on the merits for 22 November 2010.
Following the events of 19 November 2010, after the physical destruction of her flat, the applicant lodged an additional claim in which she claimed AZN 508,038 for pecuniary damage and AZN 100,000 for non‑pecuniary damage for destruction of her flat.
On an unspecified date the BCEA lodged a lawsuit against the applicant and other residents asking for their eviction and the cancellation of their ownership rights. The applicant lodged a request with the court asking for suspension of the examination of the BCEA’s claim until the end of the civil proceedings instituted by her against the BCEA. On 30 November 2010 the Nasimi District Court dismissed the applicant’s request. On the same day the Nasimi District Court decided to join two proceedings and to examine them together.
The applicant appealed against this decision. On 28 December 2010 the Baku Court of Appeal dismissed the applicant’s appeal.
On 12 January 2011 the Nasimi District Court delivered its judgment on the merits. The court dismissed the applicant’s claim noting that, as the building in question had been destroyed, the restitution of the property was not possible. The court further held that the main dispute between the applicant and the BCEA concerned the amount of the proposed compensation and that the applicant could lodge a separate lawsuit on this issue. However, the first-instance court’s judgment was silent on the particular complaints raised by the applicant in her lawsuit.
On 11 February 2011 the applicant appealed against the first-instance court’s judgment. She noted in particular that the court had failed to examine her complaint concerning the unlawful destruction of her flat by the BCEA and the violation of her property rights.
On 2 June 2011 the Baku Court of Appeal upheld the judgment of 12 January 2011 reiterating the first-instance court’s findings.
On 1 October 2011 the applicant lodged a cassation appeal against this judgment. She relied on Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention complaining that she had been unlawfully deprived of her property, that her right to respect for private and family life and home had been violated and that the domestic courts had failed to deliver a reasoned judgment. She also noted that neither she nor her lawyer had been informed of the date and place of the hearing at the appellate court.
On 13 December 2011 the Supreme Court upheld the Court of Appeal’s judgment.
(b) Second set of proceedings
Again prior to the physical destruction of her flat, on 1 June 2010 the applicant lodged another action against the BCEA, the NDEA and the NDPO claiming that the destruction of the roof of the building and the flats situated on the second floor of the building had made the flat uninhabitable. She asked the court to order the respondents to repair the building and bring it to the condition it had been on 31 December 2009.
On 8 June 2010 the Nasimi District Court refused to admit her claim finding that a claim against the BCEA should be lodged with the Sabail District Court.
On 6 July 2010 the applicant lodged another action against the BCEA, the NDEA and the NDPO. Reiterating her previous complaints, in the present lawsuit the applicant also asked the court to provide her with a copy of the contract, if any, concluded between the BCEA and R.K. on the purchase of the buildings situated in the area in question. The applicant also complained about unlawful actions of the BCEA’s employees noting that they had cut the cable of her air-conditioner and the water pipe of her flat.
On 19 July 2010 the Nasimi District Court refused to admit her claim finding that a claim against the BCEA should be lodged with the Sabail District Court. On 27 July 2010 the applicant appealed against this decision.
On 26 August 2010 the Baku Court of Appeal quashed the impugned decision and remitted the case to the first-instance court. The court held that the applicant’s action should be examined by the Nasimi District Court.
In the meantime, on 27 January 2011, more than two months after the demolition of her home, the applicant concluded a sale contract with R.K. In accordance with the contract the applicant sold her flat of 28.5 sq.m. which did not exist at the time of the conclusion of the contract, to R.K. for an amount of AZN 42,750.
On 20 February 2011 the applicant lodged additional claims to her previous lawsuit. She asked the court to declare unlawful the sale contract concluded between her and R.K. because this contract had been concluded under pressure. She submitted in this connection that she had been forced to conclude this contract because after the destruction of her flat she became homeless and she had not had any choice.
On 21 April 2011 the Nasimi District Court delivered its judgment on the merits. The court dismissed the applicant’s claim holding that the contract had been concluded in accordance with the relevant law.
On 20 May 2011 the applicant appealed against this judgment reiterating her previous complaints.
On 11 August 2011 the Baku Court of Appeal upheld the first-instance court’s judgment.
On 19 December 2011 the Supreme Court upheld the Court of Appeal’s judgment.
B. Relevant domestic law
Article 13 § I of the Constitution provides as follows:
“The property in the Republic of Azerbaijan is inviolable and is protected by the State”.
Article 29 § IV of the Constitution provides as follows:
“No one shall be deprived of his or her property without a court decision. Total confiscation of property is not permitted. Alienation of the property for State needs may be permitted only on the condition of prior and fair compensation of its value”.
Article 157.9 of the Civil Code, as applicable prior to 1 June 2004, provided:
“Private property can be alienated by the State if required by the State or public necessity only in cases permitted by law and subject to prior payment of compensation in an amount corresponding to its market value”.
Article 157.9 of the Civil Code, as amended on 1 June 2004 and applicable at the material time, provided:
“Private property can be alienated by the State if required by the State or public necessity, for the purposes of building roads or other communication lines, delimiting the State border strip or constructing the [State] defence facilities, by a decision of the relevant authority [the Cabinet of Ministers], only in cases permitted by law, and subject to prior payment of compensation in an amount corresponding to its market value”.
Article 203 of the Civil Code provided as follows:
“203.3. Forcible deprivation of property is not permitted, except for the following measures taken under the grounds provided for by law:
203.3.1. forfeiture of property for liabilities;
203.3.2. alienation of property that, by law, cannot belong to a given person;
203.3.3. alienation of immovable property in connection with the purchase of the land;
203.3.4. purchase of badly maintained cultural valuables;
203.3.5. requisition [alienation of property in connection with natural disasters, technological accidents, epidemics and other emergencies];
203.3.6. confiscation.
...
203.5. The alienation of property owned by individuals and legal persons for State and public needs shall be carried out in accordance with paragraph IV of Article 29 of the Constitution of the Republic of Azerbaijan.”
Article 207 of the Civil Code provided as follows:
“Where it is impossible to alienate a plot of land for the State or public needs without termination of the ownership rights to buildings, structures or other immovable property located on such plot of land, the State may purchase such property”.
COMPLAINTS
1. The applicant complains under Article 5 of the Convention that she was unlawfully deprived of her liberty by the police on 19 November 2010.
Relying on Article 13 of the Convention, she further complains that she did not have an effective remedy in respect of her complaint concerning her unlawful detention by the police on 19 November 2010.
2. The applicant complains under Article 8 of the Convention that her right to respect for private and family life and home was violated on account of the fact that the police unlawfully entered into her flat on 19 November 2010. She also complains that her eviction from her flat and its destruction amounted to an unjustified interference with her right to respect for private and family life and home guaranteed by Article 8 of the Convention and a violation of Articles 3 and Article 2 of Protocol No. 4 to the Convention.
3. The applicant complains under Article 6 of the Convention that her right to a fair trial was violated as in the proceedings concerning the violation of her property rights the courts failed to give reasons for their judgments and ignored the applicable legal provisions. She also complains about the lack of independence and impartiality of the domestic courts and the length of the first set of proceedings.
4. The applicant complains that the breach of her ownership rights amounted to an unlawful and unjustified interference under Article 1 of Protocol No. 1 to the Convention. She further complains under Article 13 of the Convention that she did not have an effective remedy in respect of her complaints concerning her eviction from her flat and violation of her property rights.
5. She further relies on Article 18 of the Convention in conjunction with Articles 3, 5, 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty on 19 November 2010 fall within paragraphs (a), (b), (c), (d), (e) of this provision? Was a detention record ever compiled? If it was, the Government are requested to submit a copy of it, as well as any other documents related to the applicant’s detention.
2. As required by Article 13 of the Convention, did the applicant have at her disposal an effective domestic remedy to challenge the lawfulness of her detention?
4. Has there been an interference with the applicant’s right to respect for her private and family life and home, within the meaning of Article 8 § 1 of the Convention, on account of the fact that the police entered into her flat on 19 November 2010? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
5. Has there been an interference with the applicant’s right to respect for her private and family life and home, within the meaning of Article 8 § 1 of the Convention, on account of her eviction from home by the executive authorities? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
6. Did the applicant have a fair hearing in the determination of her civil rights and obligations in the proceedings concerning the violation of her property rights, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant’s right to a reasoned decision respected?
7. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? Has the applicant been deprived of her possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1 to the Convention? In particular, how was that deprivation qualified under domestic law (expropriation, nationalisation, confiscation, or otherwise)? What act (document or physical action of a public authority) constituted the interference in the present case? What was the law applicable to the relevant form of deprivation of property? In particular, were the legal provisions cited in the attached summary of facts applicable? What were the substantive and procedural conditions required by the applicable law for the relevant form of deprivation of property to be lawful, and were those conditions complied with in the present case? What was the legal basis for the Baku City Executive Authority’s order of 24 September 2008 and did that authority have competence under the domestic law to take decisions resulting in expropriation of privately-owned property, as in the present case? If the interference was lawful, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
What were the title and the role of R.K. in the expropriation process? Was there a contract between the Baku City Executive Authority and R.K.? If yes, the Government are requested to submit a copy of this contract to the Court. The Government are also required to submit a copy of the Baku City Executive Authority’s order of 24 September 2008.
8. Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 8 of the Convention concerning her eviction from home and Article 1 of Protocol No. 1 to the Convention concerning violation of her property rights, as required by Article 13 of the Convention? Did the domestic courts examine the arguments put forward by the applicant about the unlawfulness of her eviction and the violation of her property rights?
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