Communicated on 6 April 2017
FIFTH SECTION
Application no. 71454/13
Etibar Oguz oglu MAMMADZADE and others
against Azerbaijan
and 2 other applications
(see list appended)
The applicants are Azerbaijani nationals. Their particulars and their representatives are indicated in the Appendix.
A. Background
The facts of the cases, as submitted by the applicants, may be briefly summarised as follows.
On 15 February 2011 the head of the Baku City Executive Authority (“the BCEA”) issued order no. 71 entitled “Allocation of an additional plot of land for use by the Office of the National Flag Square Complex (“the NFSC”) under the Cabinet of Ministers and relocation of housing from within that area” (Respublika Nazirlər Kabineti yanında Dövlət Bayrağı Meydanı Kompleksi İdarəsinin istifadəsinə əlavə torpaq sahəsinin verilməsi və həmin ərazidə yerləşən yaşayış sahələrinin köçürülməsi haqqında sərəncam – hereinafter “the order of 15 February 2011”). It stated that, as part of a project to expand the area covered by the NFSC, the residents of the buildings located at 5a Guliyev Street were to be relocated and given new fully completed flats in buildings in Baku similar in size to their existing flats.
On 31 May 2011 the head of the BCEA issued order no. 243 entitled “Relocation of housing and commercial premises from within the area bordered by 7 and 9 Agil Guliyev Street, 2 Fathi Khoshginabi Street, 9 Aydin Nasirov Street, 3 and 10 to 12 Elchin and Vusal Hajibabayevs Street in the Sabail District for the expansion of the highway” (Avtomagistral yolunun genişləndirilməsi ilə əlaqədar olaraq Səbail rayonu, Aqil Quliyev küçəsi 7 və 9, Fəthi Xoşginabi küçəsi 2, Aydin Nəsirov küçəsi 9, Elçin və Vüsal Hacıbabayevlər küçəsi 3 və 10/12 ünvanlarda yerləşən yaşayış və qeyri-yaşayış sahələrinin köçürülməsi barədə sərəncam – hereinafter “the order of 31 May 2011”). It stated that the residents of the buildings and houses located in the above-mentioned area were to be relocated and given compensation of 1,500 Azerbaijani manats (AZN) per sq. m of surface area. The order also referred to a letter from the State Committee on Property Issues dated 14 February 2011, on the basis of which the amount of compensation was determined.
The applicants had flats in the buildings located in the above-mentioned area.
In February 2011 BCEA employees began instructing the residents in the area to leave their flats in exchange for compensation of AZN 1,500 per sq. m of surface area. The BCEA offered to make the payments not as compensation for expropriation, but on the basis of contracts of sale, to be concluded between the residents and an individual, Z.I., who appears to have been acting on behalf of the BCEA.
Some of the residents accepted the BCEA’s offer and left their flats. Following their departure BCEA employees started destroying those flats and completely or partially cutting off the utility services to the remaining flats, which made living conditions very difficult for the remaining residents.
B. Application no. 71454/13
On an unspecified date in February 2012 the applicants lodged a claim against the BCEA with Baku Administrative-Economic Court No. 1.
They complained of breaches of their property rights, in particular that the order of 15 February 2011 had been unlawful and claimed AZN 20,000 in respect of non-pecuniary damage for each applicant.
On an unspecified date, while the court proceedings were still pending, the BCEA demolished the applicants’ flats.
On various dates (see Appendix) after the demolition of their flats the applicants concluded contracts of sale with Z.I. and received AZN 1,500 per sq. m of surface area.
On an unspecified date the applicants amended their initial claims, asking the court to declare the contracts of sale unlawful because they had been concluded under duress. They also asked that the demolished flats be restored and Z.I. be joined as a defendant.
On 7 June 2012 Baku Administrative-Economic Court No. 1 rejected the amended claims on the grounds that they were of a civil nature and had to be examined in the ordinary district courts under the rules of civil procedure. On an unspecified date the applicants lodged a separate civil claim with a district court. On the date their application was lodged with the Court the proceedings were still pending before that first-instance court.
On the same date Baku Administrative-Economic Court No. 1 dismissed the applicants’ initial claims, holding that the applicants had sold their flats to the BCEA voluntarily and in accordance with the relevant law and there was nothing to show that the order of 15 February 2011 had been unlawful.
The applicants appealed, reiterating their complaints.
On 8 November 2012 and 17 April 2013 respectively the Baku Court of Appeal and the Supreme Court upheld the first-instance court’s judgment.
On 16 September 2014 the applicants lodged a new claim against the BCEA with Baku Administrative-Economic Court No. 1.
They asked for full market value compensation for their demolished flats, claiming an additional 10% compensation for hardship and an additional 20% compensation in accordance with Presidential Decree no. 689 of 26 December 2007. They also claimed for the expenses they had incurred or were likely to incur while finding new accommodation, expenses for searching for and moving into new accommodation, and compensation for non-pecuniary damage.
In support of their claims, the applicants submitted an expert report issued by a private company, E., indicating the market value of the flats.
On 22 December 2014 Baku Administrative-Economic Court No. 1 upheld their claims in part, ordering the BCEA to pay the applicants an additional 20% in compensation on top of the actual money already paid to them based on the contracts of sale. The court dismissed the remaining claims as unsubstantiated and indicated that the expert report was not reliable evidence.
After a first set of appeals, on 2 July 2015 the Supreme Court ruled that the Ministry of Finance had to be joined to the case as a third party.
On 6 October 2015 the Baku Court of Appeal upheld the first-instance court’s judgment.
On 5 November the applicants lodged a cassation appeal with the Supreme Court. On 12 and 16 November 2015 respectively the Ministry of Finance and the BCEA also lodged cassation appeals.
On 21 April 2016 the Supreme Court upheld the appeals lodged by the BCEA and the Ministry of Finance, partially quashing the Baku Court of Appeal’s judgment and issuing a new judgment in respect of that part. It found that the applicants’ flats had not been expropriated for State needs and had been purchased on the basis of contracts of sale. The additional 20% in compensation had therefore not been payable.
C. Application no. 3121/14
On an unspecified date in February 2012 the applicants lodged a claim against the BCEA with Baku Administrative-Economic Court No. 1.
They complained of breaches of their property rights, in particular that the order of 15 February 2011 had been unlawful and asked for AZN 20,000 in respect of non-pecuniary damage for each applicant.
On an unspecified date, while the court proceedings were still pending, the BCEA demolished the applicants’ flats.
On various dates (see Appendix) after the demolition of their flats the applicants concluded contracts of sale with Z.I. and received AZN 1,500 per sq. m of surface area.
On an unspecified date the applicants amended their initial claims, asking the court to declare the contracts of sale unlawful because they had been concluded under duress. They also asked that the demolished flats be restored and Z.I. be joined as a defendant.
On 18 September 2012 Baku Administrative-Economic Court No. 1 dismissed the applicants’ claims, holding that they had sold their flats to the BCEA voluntarily and in accordance with the relevant law. They had thus lost their rights to the flats and could not challenge the lawfulness of the order of 15 February 2011.
The applicants appealed, reiterating their complaints.
On 8 January and 6 June 2013 respectively the Baku Court of Appeal and the Supreme Court upheld the first-instance court’s judgment.
D. Application no. 57408/14
On an unspecified date in October 2011 the BCEA demolished the applicant’s flat and a flat owned by her husband, N.I.
On 1 and 30 November 2011 respectively N.I. and the applicant concluded a contract of sale with Z.I. and received AZN 1,500 per sq. m of surface area.
On 27 March 2012 the applicant (jointly with N.I.) lodged a claim with Baku Administrative-Economic Court No. 1 against the BCEA, the State Committee on Property Issues and the Sabail District Police Office.
She complained of breaches of her property rights, in particular that the order of 31 May 2011, other relevant administrative acts and the contract of sale had to be declared invalid, and asked (jointly with N.I.) for AZN 500,000 in respect of pecuniary damage and AZN 100,000 in respect of non-pecuniary damage.
In support of her complaints, the applicant submitted expert reports issued by a private company, M., indicating the market value of the flats.
On 23 May 2013 Baku Administrative-Economic Court No. 1 dismissed their claims, holding that they had sold their flats to the BCEA voluntarily and in accordance with the relevant law and there was nothing to show that the order of 31 May 2011 had been unlawful.
The applicant appealed, reiterating her complaints.
On 28 August 2013 the Baku Court of Appeal partially amended the judgment and ordered the BCEA to pay the applicant (and N.I.) an additional 20% in compensation on top of the money already paid to her, in accordance with Presidential Decree No. 689 of 26 December 2007.
On 12 February 2014 the Supreme Court upheld the Baku Court of Appeal’s judgment.
The judgment has not been enforced.
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention that the civil proceedings initiated by them in connection with the expropriation and demolition of their flats were unfair, in particular that the domestic courts delivered unreasoned judgments by failing to properly verify the compliance of the interference with the applicable domestic legislation.
2. The applicant in application no. 57408/14 also complains under Article 6 § 1 of the Convention that the domestic court judgment in her favour has not been enforced.
3. The applicants complain under Article 8 of the Convention that the demolition of their flats and/or their evictions amounted to a violation of their right to respect for their home.
4. The applicants complain that the de facto expropriation of their flats by way of demolition amounted to an unlawful and unjustified interference with their property rights under Article 1 of Protocol No. 1 to the Convention. They also complain that the amount of compensation paid for the flats was too low.
COMMON QUESTIONS
1. Have the applicants been deprived of their 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? Moreover, were the amounts of compensation paid to the applicants fair and adequate in terms of Article 1 of Protocol No. 1?
In particular, how was that deprivation classified under domestic law (expropriation, nationalisation, confiscation or otherwise)? What act (document or physical action of a public authority) constituted the interference in the present cases? What was the law applicable to the relevant form of deprivation of property? 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 cases? What was the legal basis for the Baku City Executive Authority’s orders of 15 February and 31 May 2011 and for the other acts and decisions of that authority in the present cases, and did the Baku City Executive Authority have competence under the domestic law to take decisions resulting in expropriation of privately-owned property, as in the present cases?
If the interference was lawful, did that interference impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
2. Has there been an interference with the applicants’ right to respect for their home, within the meaning of Article 8 § 1 of the Convention, on account of the demolition of their flats and/or their eviction from them by the executive authorities? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
3. Did the applicants have a fair hearing in the determination of their civil rights and obligations in the proceedings concerning the 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?
4. The parties are requested to provide, where relevant and available, documentary evidence in support of their replies and submissions. The Government are requested, in particular, to provide a copy of the letter from the State Committee on Property Issues dated 14 February 2011, referred to in the Baku City Executive Authority’s order of 31 May 2011.
CASE-SPECIFIC QUESTIONS
1. In respect of application no. 57408/14:
Is the non-enforcement of the judgment in the applicant’s favour compatible with Article 6 § 1 of the Convention?
2. In respect of application no. 57408/14:
Was the flat owned by the applicant’s husband or some part of it the applicant’s “possession” within the meaning of Article 1 of Protocol No. 1? When and how did the applicant’s husband acquire the flat? Were the applicant and her husband married at the time when it was acquired?
3. The parties are requested to provide, where relevant and available, documentary evidence in support of their replies and submissions.
It is also proposed to add the following to all communication letters:
“The parties are reminded that the attached brief summary of facts relating to a number of similar cases is for descriptive purposes. They are advised to formulate their responses to the above questions with due regard to the specific circumstances of each particular case as outlined in the respective application forms and the relevant documents.”
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Date of contract of sale
71454/13
30/10/2013
Etibar MAMMADZADA
01/01/1961
Baku
Shafa JAMALZADE
14/02/2012
Minira ISGANDAROVA
26/01/1948
Baku
07/02/2012
Sabir GULAMIROV
18/12/1957
Baku
10/02/2012
3121/14
25/12/2013
Khalig BAGIROV
12/07/1953
Baku
Shafa JAMALZADE
15/02/2012
Marina RASULZADE
13/04/1959
Baku
unspecified
Firiddin GARABEYOV
17/05/1964
Baku
28/02/2012
Mehman HUSEYNOV
24/03/1962
Baku
28/02/2012
Natalya ALIBEYOVA
07/04/1949
Baku
29/02/2012
Fizuli MUSHTAGOV
24/03/1962
Baku
10/02/2012
Lalazar GULIYEVA
22/09/1967
Baku
18/02/2012
Kamala AJALOVA
18/11/1957
Baku
07/02/2012
Rakif HUSEYNOV
24/08/1951
Baku
21/02/2012
57408/14
12/08/2014
Esmira ILYASOVA
06/11/1978
Baku
Fuad AGAYEV
30/11/2011
Full & Egal Universal Law Academy