Communicated on 12 March 2018
FIFTH SECTION
Application no. 42480/13
YEVLAKH AVTOVAGZAL OPEN TYPE JOINT STOCK COMPANY
against Azerbaijan
lodged on 6 June 2013
STATEMENT OF FACTS
The applicant company is a private company, registered in Azerbaijan on 14 October 1998. It is represented before the Court by Ms S. Jamalzade, a lawyer practising in Azerbaijan.
The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
The applicant company was a private company formed as the legal heir of the State-owned Yevlakh Bus Terminal.
The applicant company was using and operating the Yevlakh bus terminal and had the right to use a State-owned plot of land of 22,560 sq. m. underneath and adjacent to the Yevlakh bus terminal.
On 1 May 2009 the Yevlakh Municipality (“the Municipality”) was issued a certificate of ownership in respect of the plot of land of 3.5 ha.
On 2 June 2009 a private company, I., was founded by certain B.M., a police officer working in Yevlakh.
On 16 June 2009 the Land Auction and Competition Centre under the State Committee for Land and Cartography (“the SCLC”) awarded the plot of land of 3.5 ha to I. and on the basis of this on an unspecified date the Municipality and I. concluded a contract of sale in respect of that plot of land.
On 8 September 2009 I. was issued a certificate of ownership in respect of the plot of land of 3.5 ha.
Starting from 12 July 2010 a private company, Z., carried out excavation and construction works on the plot of land in the applicant company’s use. The vehicles used in these works were owned by a subsidiary of Z. During these works, the fountain located in the area was demolished and some trees had been cut.
On 28 July 2010 the applicant company lodged a claim with Baku Economic Court No. 1 against Z. asking for an order to stop excavation and construction works (“the first claim”).
On 27 August 2010 the Yevlakh City Executive Authority (“the YCEA”) issued an order granting its consent for construction of a bus terminal by I. on the plot of land of 3.5 ha. I. did not have the opinion of the Ministry of Transport for construction of a bus terminal, required by the law. I. did not have any employees, except the director, and did not have any funds or assets except the plot of land of 3.5 ha.
On 8 September 2010 the State Registry Office of Real Estate (“the SRORE”) issued the plan and measurements of the plot of land of 3.5 ha based on the plan and measurements issued by the SCLC on 20 August 2010. This was the first official document by which the exact area of the plot of land of 3.5 ha was indicated. Part of the plot of land indicated in this plan overlapped with part of the plot of land in the applicant company’s use.
On 17 September 2010 Baku Local Economic Court No. 1 delivered an interim order obliging Z. to stop the works.
On 12 October 2010 the YCEA sent a letter to Baku Local Economic Court No. 1 stating that the works had been carried out by I.
On 24 October 2010 the applicant company amended initial claims and asked to join the YCEA, the SRORE and I. as additional defendants. It asked the court for declaration of the YCEA’s order of 27 August 2010 invalid (”the second claim”); annulment of I.’s certificate of ownership (“the third claim”); demolition of the constructions built on the plot of land in its use (“the fourth claim”); and restoration of the plot of land in its use to its previous condition (“the fifth claim”).
On 13 November 2010 the SCLC issued an expert report, which stated that excavation and construction works had been carried out on three parts of the plot of land in the applicant company’s use.
On 16 December 2010 Baku Local Economic Court No. 1 delivered an interim order obliging I. to stop the works.
Z. and I. did not comply with the interim orders and the works were continued.
On 14 July 2011 the case was remitted to the Sheki Administrative‑Economic Court.
On 7 May 2012 the applicant company amended its initial claims and asked to join the Municipality as an additional defendant. It asked for annulment of the contract of sale between the Municipality and I. (“the sixth claim”) and the certificate of ownership issued to the Municipality in respect of the plot of land of 3.5 ha in part overlapping with the plot of land in the applicant company’s use, which constituted 0.714 ha (“the seventh claim”).
On 18 May 2012 the Sheki Administrative-Economic Court dismissed the applicant company’s claims finding that the applicant company did not own the plot of land in its use, whereas I. had a certificate of ownership and thus, it was the lawful owner.
The applicant company appealed mainly arguing that, although it had not had a certificate of ownership, the plot of land had been in its lawful use and it had had legitimate expectation to privatise it on a priority basis under the law.
On 5 September 2012 the Sheki Court of Appeal dismissed the applicant company’s appeal and upheld the first-instance court’s judgment reiterating exactly the same reasoning.
On 7 October 2012 the new bus terminal built by Z. was officially opened.
On 6 December 2012 the Supreme Court upheld the appellate court’s judgment in part concerning the dismissal of the second claim. The Supreme Court quashed the remaining part of the appellate court’s judgment declaring the first, third, fourth, fifth, sixth and seventh claims inadmissible; finding that it was not clear against which defendant each claim was lodged.
COMPLAINTS
1. The applicant company complains under Article 6 § 1 of the Convention that the civil proceedings concerning its property rights were not fair; in particular that the decisions of the domestic courts were not reasoned.
2. The applicant company complains under Article 13 of the Convention that its right of access to court was breached on account of the Supreme Court declaring its claims (except one) inadmissible.
3. The applicant company complains that the sale of the part of the plot of land in its lawful use to I. amounted to an unlawful and unjustified interference with its property rights under Article 1 of Protocol No. 1 to the Convention. The applicant company also complains that, owing to this interference, it could not obtain ownership of part of the plot of land, a right that it legitimately expected to acquire under the domestic law.
4. The applicant company further complains under Article 1 of Protocol No. 1 about the failure of the State to protect its property interests in relation to the alleged unlawful interference by I. and/or Z. with the plot of land in its use, including excavation and construction works, causing damage to the applicant company.
5. The applicant company complains under Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention, that it was not afforded a remedy providing effective protection against the violation of its rights.
QUESTIONS TO THE PARTIES
1. Has the applicant company been deprived of its 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, does the present case concern existing possessions (right to use the State-owned plot of land), a legitimate expectation of acquiring possessions (title to that plot of land), or both? How was the deprivation qualified under domestic law? What act(s) (document or physical action of a public authority) constituted the interference(s) in the present case? 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 certificate of ownership issued to the Municipality on 1 May 2009? Was the plot of land of 3.5 ha owned by the State or the Municipality when the certificate of ownership was issued?
What was the reason for the issue of the plan and measurements of the plot of land of 3.5 ha only a year after the certificate of ownership? Was this in accordance with the applicable law?
Was the award of the plot of land of 3.5 ha by the Land Auction and Competition Centre under the State Committee for Land and Cartography (“the SCLC”) and its subsequent sale by the Municipality to I. in accordance with the applicable law?
Was the Yevlakh City Executive Authority’s order of 27 August 2010 in accordance with the applicable law?
What were the applicant company’s legitimate expectations under the Presidential decree No. 659 of 19 December 1997? Was it entitled to privatise that plot of land on a priority basis?
If the interference complained of was lawful, did that interference impose an excessive individual burden on the applicant company (see, mutatis mutandis, Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999‑V)?
2. Has there been a violation of Article 1 of Protocol No. 1 with regard to the alleged failure of the State to protect the applicant company’s property interests in relation to the alleged unlawful interference by I. and/or Z. with the plot of land in its use, including excavation and construction works, causing damage to the applicant company?
3. Has there been a breach of the applicant company’s right of access to court, as guaranteed by Article 6 § 1 of the Convention? In particular, under domestic law, did the Supreme Court have competence to declare the claims inadmissible on its own motion at that stage of the proceedings? Were the invoked grounds for inadmissibility relevant and sufficient?
4. Did the applicant company have at its disposal an effective domestic remedy for its complaints under Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?
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