RAHIMOVA AND KASPI-MERKURI FIRM v. AZERBAIJAN

THIRD SECTION

DECISION

Application nos. 32780/12 and 15435/14
Elmira RAHIMOVA against Azerbaijan
and KASPI-MERKURI FIRM against Azerbaijan

The European Court of Human Rights (Third Section), sitting on 29 April 2025 as a Committee composed of:

 Oddný Mjöll Arnardóttir, President,
 Lətif Hüseynov,
 Canòlic Mingorance Cairat, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the dates indicated therein;

the decision to give notice to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, of the complaints under Article 6 (non-enforcement of a final judgment and right to a reasoned judgment) of the Convention and Article 1 of Protocol No. 1 to the Convention and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case mainly concerns the applicants’ complaint of allegedly unlawful expropriation of their properties and the inadequacy of the compensation awarded to them by the domestic courts for those properties.

2.  The applicant owned a 152.2 sq. m non-residential property on a 0.049098 ha plot of land located on Zig Road, Khatai District, Baku. Part of that plot of land (321 sq. m) was in the ownership of the applicant herself, while another part (169.98 sq. m) was owned by Salam-R, a company wholly owned by the applicant.

3.  On an unspecified date in November 2008 representatives of the Khatai District Executive Authority (“the KDEA”), the Ministry of Transport and Azeryolservis Open Joint Stock Company (“Azeryolservis OJSC”), a company then operated by the Ministry of Transport, demolished the applicant’s property. The applicant was informed that the demolition had taken place in connection with a planned reconstruction and extension of the Zig Road, pursuant to Presidential Order no. 1255 of 1 February 2006 approving an action plan for 2006-07 in connection with the improvement of Baku’s transport system (“Order no. 1255”). The applicant’s plot of land fell within the zone envisaged for the development of the road and was expropriated as a result.

4.  On an unspecified date the applicant lodged a complaint with the Khatai District Court against the KDEA, the Ministry of Transport and Azeryolservis OJSC, complaining of “unlawful actions of the defendants” and seeking 1,200,000 Azerbaijani manats (AZN) in damages.

5.  By a final judgment of 18 November 2011, the Supreme Court upheld the lower court’s judgment, allowing the applicant’s claims in part. Relying on Article 1 of Protocol No.1 to the Convention and the provisions of domestic law, the domestic courts found that the applicant was entitled to compensation for damage caused as a result of a violation of her right to property and awarded her AZN 456,000 in respect of pecuniary damage including an additional 20% compensation in accordance with Presidential Decree no. 689 of 26 December 2007, to be paid jointly by the Ministry of Transport and Azeryolservis OJSC. Relying on three court-commissioned expert reports, which estimated the value of the non-residential property and the plot of land at AZN 262,195, AZN 137,500 (only the plot of land) and AZN 563,500, and an expert report submitted by the applicant, which estimated the value of the properties at AZN 560,000, the courts found it reasonable to award the applicant an amount which was an approximate average of the amounts indicated in the expert reports referred to above.

6.  The applicant company owned 90.85 sq. m of non-residential property and 2,112.9 sq. m of an attached plot of land, located in the Nasimi District, Baku.

7.  On 22 November 2007 a commission established by the Nasimi District Executive Authority (“the NDEA”) pursuant to Order no. 1255, issued a report stating that part of the applicant company’s plot of land and the non‑residential buildings on it (see the appended table) fell within the zone designated for the construction of a bridge by the Ministry of Transport and Azeryolservis OJSC at the intersection of two streets in Baku. On an unspecified date in 2007 the applicant company’s non-residential buildings were demolished and part of its plot of land was expropriated (see the appended table). According to the applicant company, an additional 25.58 sq. m car service building was not included in the report because it had been demolished before the report had been prepared.

8.  On an unspecified date in March 2009 the applicant company lodged a complaint with Baku Administrative-Economic Court No. 1 against various State authorities and later amended it, seeking AZN 14,928,471 in damages to be paid by the Ministry of Transport and Azeryolservis OJSC. The Baku City Executive Authority (“the BCEA”), the Ministry of Finance and the NDEA were involved in the proceedings as third parties. In addition to compensation for the demolished non-residential buildings (AZN 404,898) and the attached plot of land (AZN 1,506,231), the applicant company asked for compensation for preparatory construction and installation work for a residential building which it had allegedly intended to build on the land in question (AZN 295,894), lost profit (AZN 6,185,971), interest for late payment (AZN 3,963,527), and other expenses (AZN 2,571,950). It appears that the applicant company submitted to the court a valuation report dated 12 February 2007, prepared by a private company, which estimated the value of each square metre of the plot of land at 3,000 United States dollars (USD), and of the non-residential property at USD 4,000.

9.  By a final judgment of 20 June 2013, the Supreme Court upheld the lower court’s judgment, granting the applicant company’s claims in part. Relying on Article 1 of Protocol No.1 to the Convention and provisions of domestic law, the courts found that the applicant company was entitled to compensation for damage caused as a result of the violation of its right to property. The courts examined the court-commissioned expert valuation which came to exactly the same conclusion as regards the value of the properties in question as the report provided by the applicant company (see paragraph 8 above), resulting in the following total estimates: (i) the non‑residential property (90,85 sq. m) – AZN 316,158, (ii) the plot of land (577.10 sq. m) – AZN 1,506,231, and (iii) the preparatory construction and installation works – AZN 295,894. While the courts awarded the full amount indicated in that report for the latter, they found, in respect of the value of the land and the non-residential property that the expert report was based on vague considerations and did not contain all the necessary information relevant to determining their value. The courts conducted a comparative study of similar court cases for the purpose of determining the value of the properties and awarded the applicant company AZN 784,700 in respect of pecuniary damage (AZN 451,440 for the non-residential property and the attached plot of land, including an additional 20% compensation, AZN 295,894 for preparatory construction and installation works and AZN 37,366 as interest for late payment) to be paid jointly by the Ministry of Transport and Azeryolservis OJSC.

10.  It appears from the case file that the applicants have received the compensation awarded to them by the domestic courts (see paragraphs 5 and 9 above).

11.  The applicants complained of a violation of their right to a fair trial under Article 6 of the Convention. They further complained under Article 1 of Protocol No. 1 to the Convention that their properties had been unlawfully expropriated and that the amount of compensation awarded to them by the domestic courts had been lower than the actual value of their properties.

THE COURT’S ASSESSMENT

12.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

13.  The Government submitted that the domestic courts had addressed the applicants’ claims, had given reasons for their judgments and the sums awarded to the applicants had been appropriate. The applicants disagreed, stressing in particular the unlawful nature of the expropriation.

14.  It is undisputed that the properties indicated in paragraphs 2 and 6 above had been in the applicant’s and applicant company’s private ownership respectively.

15.  While in application no. 15435/14 the applicant company also claimed ownership of a car service building, it failed to provide any relevant documents in respect of it either to the domestic courts or to the Court. It cannot therefore be established that the applicant company’s claims in respect of that building amounted to its “possessions” within the meaning of Article 1 of Protocol No. 1. It follows that the part of the complaint related to that claim is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

16.  The case-law principles concerning applicants’ “victim status” have been summarised in Scordino v. Italy (no. 1) ([GC], no. 36813/97, § 178-81, ECHR 2006‑V), Gäfgen v. Germany ([GC], no. 22978/05, §§ 115, ECHR 2010) and J.B. and Others v. Hungary ((dec.), nos. 45434/12 and 2 others, §§ 58-59, 27 November 2018).

17.  The Court considers that by holding that the applicants were entitled to compensation for damage caused as a result of violation of their right to property the domestic courts acknowledged in substance that there had been an unlawful interference with the applicants’ enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1 to the Convention (compare Rahimov v. Azerbaijan [Committee] (dec.), no. 40026/09, § 19, 7 July 2022). Moreover they ordered the payment of compensation (see paragraphs 5 and 9 above), the amount of which the applicants contested.

18.  The Court reiterates that the domestic courts enjoy a certain margin of appreciation, and they are better placed than the Court to resolve such technical issues as regards the evaluation of facts and the assessment of appropriate compensation. It is not for the Court to replace the domestic courts in their determination of the value of expropriated properties or to settle the amounts to be awarded, unless there is a manifest arbitrariness in the process of fixing compensation (compare Yıltaş Yıldız Turistik Tesisleri A.Ş. v. Turkey, no. 30502/96, § 38, 24 April 2003, and Yükseller Ltd. Şti. v. Turkey [Committee], no. 27530/09, § 59, 19 January 2021). It further reiterates that it is not up to the Court to assess the factual elements which led the domestic courts to adopt one decision rather than another, otherwise it would be setting itself up as a court of third or fourth instance (see Andiçi v. Turkey, no. 27796/03, § 14, 4 March 2008).

19.  The Court notes that the domestic courts fully investigated the circumstances of the cases and reached their decisions on the basis of numerous expert valuation reports and other documents provided by the parties. In particular, in the proceedings concerning the individual applicant’s claim, the domestic courts awarded the applicant an amount which was the approximate average of the amounts indicated in several expert reports. In the proceedings concerning the applicant company’s claim, the domestic courts awarded the applicant company compensation for the demolished non‑residential building and the expropriated plot of land attached, as well as for the preparatory construction and installation work and default interest, relying partly on the valuation report and a comparative study of the amounts awarded by the courts in other similar cases.

20.  In sum, there is nothing to indicate that the compensation awarded to the applicants has not been reasonably related to the actual value of the properties or that their property rights have been otherwise infringed (see, for general principles, Kostov and Others v. Bulgaria, nos. 66581/12 and 25054/15, §§ 62-64, 14 May 2020, with further references, and compare with Andiçi, cited above, § 15).

21.  It follows that the applicants can no longer claim to be victims of a violation of Article 1 of Protocol No. 1 to the Convention. This complaint is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

22.  The applicant complained under Article 6 § 1 of the Convention that the Supreme Court’s judgment of 18 November 2011 had not been enforced. In her observations, the applicant submitted that she had received the compensation awarded under that judgment. She did not, however, appear to complain of delayed enforcement of the relevant judgment. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (compare Bagvanov and Others v. Azerbaijan [Committee], nos. 77919/11 and 13 others, § 22, 10 November 2022).

23.  The applicant company complained under Article 6 § 1 of the Convention that its right to a reasoned judgment had been breached as the domestic courts had delivered unreasoned judgments by failing to properly examine whether the interference or the determination of compensation complied with the applicable domestic legislation.  In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights set out in Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 22 May 2025.

 Olga Chernishova Oddný Mjöll Arnardóttir
 Deputy Registrar President

Appendix

List of cases: