Communicated on 29 August 2017
FIFTH SECTION
Application no. 67180/11
Leyla YUNUSOVA and others
against Azerbaijan
lodged on 18 October 2011
STATEMENT OF FACTS
The applicants, Mrs. L. Yunusova and Mr. A. Yunusov, are Azerbaijani nationals. They were born in 1955 and live in Baku. The applicants are represented before the Court by Mr Fuad Agayev, a lawyer practising in Azerbaijan.
The circumstances of the case
The facts of the case, as submitted by the applicants, are similar in some respects to those of the case of Khalikova v. Azerbaijan (no. 42883/11, 22 October 2015). They may be summarised as follows.
A. Background
On 24 September 2008 the head of the Baku City Executive Authority (“the BCEA”) issued order no. 511 entitled Construction of a New Park Complex, Relocation of Residential and Non‑Residential Accommodation from that Area (Yeni park kompleksinin salınması, ərazidə yerləşən yaşayış və qeyri-yaşayış sahələrinin köçürülməsi haqqında sərəncam – hereinafter “the order of 24 September 2008”), on the basis of which the buildings and houses located in the area bounded by Fuzuli, Samed Vurgun, Shamsi Badalbeyli and Topchubashov streets were to be demolished for the purpose of constructing a new garden-park complex (“the Winter Park”) and the residents were to be relocated.
On 16 February 2011 the head of the BCEA issued a further order no. 76 entitled Relocation of Residential and Non‑Residential Accommodation from the Area bounded by Samed Vurgun, Shamsi Badalbeyli, Mirzaga Aliyev, Dilara Aliyeva, Rasul Rza, Shamil Azizbayov, Suleyman Rahimov, Islam Safarli, Tabriz Khalil Rzaoglu and Mirza Ibrahimov Streets for Execution of the Master Plan of Baku City (Bakı şəhərinin Baş Planının icrasının təmin edilməsi məqsədilə Səməd Vurğun, Şəmsi Bədəlbəyli, Mirzağa Əliyev, Dilarə Əliyeva, Rəsul Rza, Şamil Əzizbəyov, Süleyman Rəhimov, İslam Səfərli, Təbriz Xəlil Rza oğlu, Mirzə İbrahimov küçələrinin əhatəsində yerləşən yaşayış və qeyri-yaşayış sahələrinin köçürülməsi haqqında sərəncam – hereinafter “the order of 16 February 2011”), on the basis of which the buildings and houses located in the area bounded by the mentioned streets were to be demolished for the purpose of constructing the Winter Park and the residents were to be relocated.
The applicants jointly owned two flats located at 38 Shamsi Badalbeyli street in the mentioned area.
Starting from the beginning of 2010, the BCEA’s employees instructed the residents in that area to leave their properties in exchange for 1,500 Azerbaijani manats (AZN) per sq. m of their properties in compensation. 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 two individuals, R.K. or Z.I., who were apparently acting on behalf of the BCEA.
Some of the residents accepted the BCEA’s offer and left their properties. Following their departure the BCEA started destroying those residents’ properties and also completely or partially suspended provision of utility services to the remaining properties, which made living conditions very difficult for the remaining residents.
B. First set of proceedings
On 8 February 2011 the applicants lodged a claim with the Nasimi District Court against the BCEA and the Nasimi District Executive Authority (“the NDEA”). They complained of breaches of their property rights by those authorities and asked the court to eliminate the obstacles preventing them from enjoying their ownership rights.
On 17 February 2011 the Nasimi District Court declared the claim inadmissible indicating that it should be lodged with the Baku Administrative-Economic Court No. 1 as the dispute was of an administrative nature.
On 31 March 2011 the Baku Court of Appeal and on 24 June 2011 the Supreme Court upheld the decision.
C. Second set of proceedings
On 18 May 2011 the applicants lodged a claim with the Baku Administrative-Economic Court No. 1 against the BCEA, the NDEA, the Ministry of Finance and the State Committee on Property Issues (“the SCPI”). They asked the court to declare the order of 16 February 2011 and other related administrative acts invalid, to order the defendants to stop their actions breaching their property and other rights. They also asked for restoration of their flats.
On 18 May 2011 the applicants asked the Baku Administrative‑Economic Court No. 1 to issue an injunction prohibiting any demolition works that might damage their’ flats. On 24 May 2011 the court issued the respective injunction order.
On 11 August 2011 while the court proceedings were still pending and despite the existence of an injunction, the BCEA demolished the applicants’ flats.
On 13 September 2011 the applicants amended their initial claim and in addition asked for non-pecuniary damage in the amount of AZN 300,000 and loss of profit in the amount of AZN 1,500 per month since August 2011.
On 15 May 2012 the Baku Administrative-Economic Court No. 1 dismissed the claims.
On 16 August 2012 the Baku Court of Appeal upheld the first-instance court’s judgment.
On 5 December 2012 the Supreme Court quashed the judgment and declared the claims inadmissible finding that the order of 16 February 2011 concerned not only the applicants, but also other people in the respective area and thus, they had not have right to claim its invalidity. The court also held that the remaining claims were unclear and not specifically addressed against each defendant.
D. Third set of proceedings
On 14 December 2012 the applicants lodged a new claim with the Baku Administrative-Economic Court No. 1 against the BCEA and the SCPI. They asked for pecuniary damage in the amount of AZN 1,000,000 and non-pecuniary damage in the amount of AZN 100,000 for their suffering as a result of the unlawful expropriation and demolition of their flats.
They complained that the compensation offered by the BCEA had been too low, indicating that the actual market price of their flats had been much higher. In support of their complaints, the applicants submitted expert opinion regarding the market price of their flats.
The applicants also claimed compensation for the land underneath and/or attached to their properties.
They also claimed additional compensation in the amount of 20% of the money to be paid to them, in accordance with Presidential Decree no. 689 of 26 December 2007.
On 22 February 2013 the Baku Administrative-Economic Court No. 1 ruled partly in favour of the applicants and ordered compensation of AZN 1,500 per sq. m of the property (AZN 142,800 in total).
On 4 June 2013 the Baku Court of Appeal quashed the first-instance court’s judgment in part and ordered additional compensation of 20% in the amount of AZN 28,560.
On 25 September 2013 the Supreme Court upheld the appellate court’s judgment.
The applicants have not concluded contracts of sale and for that reason have not been paid any compensation despite the respective judgment in their favour.
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention that the civil proceedings instituted by them in connection with the expropriation and demolition of their flats were not fair; 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 applicants complain under Article 6 § 1 of the Convention that they had no right of access to court in the second set of proceedings.
3. The applicants also complain, under Article 6 § 1 of the Convention, that the judgment of the domestic court in their favour has not been enforced.
4. The applicants complain, under Article 8 of the Convention, that the unlawful demolition of their flats and their unlawful eviction amounted to a violation of their right to respect for their home.
5. The applicants complain, under Article 13 of the Convention in conjunction with Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, that they were not afforded a remedy providing effective protection against the violation of their rights.
6. The applicants complain that the de facto expropriation, by way of demolition, of their flats amounted to an unlawful and unjustified interference with their property rights under Article 1 of Protocol No. 1 to the Convention. They further complain that the amount of compensation offered for the properties was low.
7. The applicants also complain, under Article 1 of Protocol No. 1 to the Convention, that they were not paid compensation for the land underneath and/or attached to their properties.
QUESTIONS TO THE PARTIES
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 offered to the applicants fair and adequate in terms of Article 1 of Protocol No. 1?
In particular, how was that deprivation qualified under domestic law (expropriation, nationalisation, confiscation, or other)? 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? 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 orders of 24 September 2008 and 16 February 2011 and for the other acts and decisions of that authority in the present case, and did that authority have competence under domestic law to take decisions resulting in the 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 applicants (see, mutatis mutandis, Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
2. 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?
3. Has there been a breach of the applicants’ right of access to court, as guaranteed by Article 6 of the Convention? In particular, under domestic law, did the Supreme Court have capacity to declare the claims inadmissible on its own motion at that stage of the proceedings? Were the invoked grounds for inadmissibility lawful?
4. Was the non-enforcement of the judgments in the applicants’ favour compatible with Article 6 § 1 of the Convention?
5. Were both of the flats the applicants’ respective homes, within the meaning of Article 8 § 1 of the Convention? 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 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?
6. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?
7. Were the applicants paid any compensation for the land underneath and/or attached to their flats?
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