FIRST SECTION
Application no. 14722/08
Tofig VALIYEV
against Azerbaijan
lodged on 27 February 2008
STATEMENT OF FACTS
The applicant, Mr Tofig Valiyev, is an Azerbaijani national who was born in 1937 and lives in Baku. He is represented before the Court by Ms S. Aliyeva, a lawyer practising in Baku.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owns a flat on the ground floor of a residential building. On 24 December 2004 he requested the Baku City Executive Authority (“the BCEA”) to grant permission for a conversion project to transform a window to the street into a door, allowing the use one of the rooms of the flat as a florist’s shop. On 20 February 2006 the BCEA refused to grant that permission. According to the applicant, in the meantime some of his neighbours were given permission for similar conversions.
On 20 March 2006 the applicant lodged an action against the BCEA with the Sabail District Court, requesting the court to order the BCEA to grant him the relevant permission. The court ordered an expert report on the conversion project. On 15 August 2006 an expert opinion was issued finding that the conversion was technically possible. On 29 August 2006 the Sabail District Court delivered a judgment granting the applicant’s request and ordering the BCEA to grant the permission requested and prepare the necessary documents.
According to a handwritten note by a judge on the copy of the judgment, the judgment entered into force and became final on 1 November 2006. On an unspecified date (the copy available in the file is not fully legible) a writ of execution was issued.
On 28 November 2006 a judge of the Sabail District Court sent a letter to the enforcement officer requesting the execution of the judgment of 29 August 2006 and enclosing a copy of the judgment and the writ of execution. On 4 December 2006 the enforcement officer sent a letter to the BCEA asking it to execute the judgment within five days. On 10 January 2007 the enforcement officer sent another letter to the BCEA, again asking for the execution of the judgment within five days and also warning of the administrative and criminal responsibility for non-execution.
On 25 January 2007 the Court of Appeal sent a letter to the applicant informing him of an appeal lodged by the BCEA, enclosing a copy of the appeal, and of the date of the hearing at the Court of Appeal. The appeal lodged by the BCEA was dated 30 October 2006. The applicant lodged a reply to the appeal. He stated in his reply that the judgment of 29 August 2006 was already final and that the BCEA had lodged an appeal against that final judgment merely to avoid executing the judgment.
After several hearings, on 30 May 2007 the Court of Appeal quashed the judgment of 29 August 2006 and dismissed the applicant’s claims. The Court did not address the issue of the finality of the first-instance judgment.
On 6 September 2007 the Supreme Court delivered a decision upholding the Court of Appeal’s judgment. The Supreme Court remained silent as to the applicant’s argument that the judgment quashed by the Court of Appeal had become final.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that the quashing of the judgment of 29 August 2006 had violated the principle of legal certainty.
2. The applicant also complained under Article 1 of Protocol No. 1 to the Convention that there had been an interference with his peaceful enjoyment of his possessions in that he had not been permitted to use his privately owned flat as a florist’s shop.
3. The applicant complained under Article 6 § 1 of the Convention that his right to a reasoned judgment had been breached as the Court of Appeal had failed to take into consideration some of the evidence, specifically the expert opinion, in its judgment.
4. The applicant also complained under Article 14 of the Convention that he had been discriminated against vis-à-vis his neighbours.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, was the principle of legal certainty respected as regards the quashing by the Court of Appeal of the judgment of 29 August 2006 which had allegedly become final on 1 November 2006?
2. The parties are requested to clarify the following factual circumstances and, where necessary, submit the relevant documents in support of their submissions:
(a) When was the writ of execution issued by the first-instance court (a fully legible copy of the writ should be submitted)?
(b) To which court (the Sabail District Court or to the Court of Appeal) was the Baku City Executive Authority’s appeal submitted and on what date was it submitted? Was the appeal submitted within the statutory time-limit and was the admissibility of the appeal examined by the domestic courts?
(c) Under the domestic law, could the applicant challenge the admissibility of the appeal before the Court of Appeal and the Supreme Court? The parties are requested to provide a copy of the applicant’s cassation appeal.
3. Has there been an interference with the applicant’s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1 and, if so, was that interference justified?
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