FIRST SECTION
DECISION
Application no. 21274/08
Gunel Rafig gizi YUSIFLI against Azerbaijan
and 6 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 6 December 2022 as a Chamber composed of:
Marko Bošnjak, President,
Krzysztof Wojtyczek,
Alena Poláčková,
Lətif Hüseynov,
Ivana Jelić,
Gilberto Felici,
Erik Wennerström, judges,
and Renata Degener, Section Registrar,
Having regard to the above applications lodged on the dates indicated in the appended table;
Having regard to the observations submitted by the Azerbaijani Government (“the Government”) and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix. The Government were represented by their Agent, Mr Ç. Əsgərov.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
Background information3. The applicants in the present applications were civil defendants in the framework of criminal proceedings against the former Minister of Healthcare, Mr Ali Insanov (hereinafter “A. Insanov”), and ten other criminal defendants. In respect of the application lodged by A. Insanov himself in connection with those criminal proceedings, the outcome of which had been that he was convicted of various serious criminal offences including embezzlement, bribery, and forgery by an official, as well as other matters related to those proceedings, the Court has delivered a judgment in Insanov v. Azerbaijan (no. 16133/08, 14 March 2013).
Transfers of State-owned property into the applicants’ formal ownershipYusifli v. Azerbaijan, application no. 21274/084. According to the domestic court material, the applicant, Ms Gunel Yusifli, is a daughter of R.Y., who was a close acquaintance of A. Insanov and a former official in the Ministry of Healthcare.
5. On 27 November 2000 a lease agreement was concluded with the Ministry of State Property in the name of the applicant concerning State‑owned non-residential premises of 117.2 sq. m in Baku (H. Cavid Avenue 56/57B). The property was on the books of the Ministry of Healthcare. By virtue of a purchase contract of 13 February 2001 concluded with the Ministry of State Property, this property was privatised in the applicant’s name, the purchase price being 27,003,000 old Azerbaijani manats (AZM), equivalent to 5,400.60 new Azerbaijani manats (AZN). According to the findings in the subsequent criminal proceedings (see paragraphs 25-39 below), the actual value of the property was AZN 42,906.24.
6. On 15 February 2001 an ownership certificate relating to the property was issued by the Ministry of State Property in the name of the applicant. The property was then leased for profit to the Republican Centre for Hair Treatment, of which the applicant said that she herself was an employee. According to the witness statement made by the applicant’s mother in the domestic court proceedings in 2007 (see below), the property in question had been “privatised” by her late husband, R.Y. “in his daughter’s name”.
Insanov and V.I.R.O. v. Azerbaijan, application no. 21904/087. The individual applicant, Mr Vidadi Insanov (hereinafter “V. Insanov”), is the son of A. Insanov and the sole owner of the applicant company, V.I.R.O.
8. On 17 September 2004 a plot of 4,203.9 sq. m located in Baku (Mir Gasimov Street 1) was purchased in the name of the applicant company from Logman MMM, a private company, for a price of AZM 60,000,000 (AZN 12,000). The property had previously been privatised in the name of Logman MMM from the stock of the Ministry of Healthcare in 2002, for a price of AZM 56,398,040 (AZN 11,279.60) whereas, according to the findings in the subsequent criminal proceedings (see paragraphs 25-39 below), the actual value of the land was AZN 1,655,300. Before the sale of the land to the applicant company, Logman MMM had demolished premises with a surface area of 522.8 sq. m which were located on the plot and which it had also privatised along with the land, for a separate price of AZM 92,413,000 (AZN 18,482.60) whereas, according to the findings in the subsequent criminal proceedings (see paragraphs 25-39 below), the actual value of those premises was AZN 454,836.
9. On 14 October 2004 the Ministry of Economic Development delivered a certificate of ownership of the land to the applicant company. According to the applicant company, it then built commercial premises with a total area of more than 5,000 sq. m on the plot.
10. According to the material in the domestic criminal case file, Logman MMM was formally owned and managed by I.M., a brother-in-law of V.A., one of the criminal co-defendants of A. Insanov (see paragraph 28 below), and the husband of the applicant in application no. 33248/08 (see paragraph 15 below).
Aliyeva v. Azerbaijan, application no. 26193/0811. The applicant, Ms Ayla Aliyeva, is the daughter of A. Insanov.
12. On 26 April 2001 non-residential premises of 43.9 sq. m located in Baku (Sharifli Street 25/14) were purchased in the name of Arena LLC, a company fully owned by the applicant, from Vita Medical Centre, a private company, for an unspecified price (no copy of the sale contract is available in the case file). On 30 April 2001 a certificate of ownership of the premises was delivered to the applicant’s company. Those premises had previously been privatised in the name of Vita Medical Centre from the stock of the Ministry of Healthcare in 2000, for a price of AZM 3,556,000 (AZN 711.20) whereas, according to the findings in the subsequent criminal proceedings (see paragraphs 25-39 below), the actual value of the property was AZN 30,554.40.
13. Moreover, on 21 November 2002 non-residential premises of 319.1 sq. m in Baku (Alizade Street 6/8 (T. Aliyarbeyov Street 3)) were purchased in the name of the applicant for an unspecified price from a private person, S.B. The latter had previously bought the property from I.M.S., a private company, also for an unspecified price. In August 2002 I.M.S. had purchased the premises from the stock of the Ministry of Healthcare, for a price of AZM 68,926,000 (AZN 13.785.20) whereas, according to the findings in the subsequent criminal proceedings (see paragraphs 25-39 below), the actual value of the property was AZN 694,042.50. According to the material in the domestic court file, following the transfer of the title into the applicant’s name the non‑residential premises were converted into residential premises.
14. As established by the prosecuting authorities and domestic courts, both Vita Medical Centre and I.M.S. were formally owned by E.M., who was A. Insanov’s daughter-in-law and the wife of V. Insanov, the applicant in application no. 21904/08 (see paragraph 7 above), and the managing director of both companies was F.A., one of A. Insanov’s co-defendants.
Masimova v. Azerbaijan, application no. 33248/0815. The applicant, Ms Khalida Masimova, is the sister of V.A., one of the criminal co-defendants of A. Insanov (see paragraph 28 below) and the wife of I.M., who formally owned Logman MMM (see paragraph 10 above).
16. On 22 January 2005 a purchase contract was concluded in the name of the applicant with Vita Medical Centre in respect of non-residential premises of 519.4 sq. m standing on a plot of 2,099.4 sq. m. in Baku (Musabeyov Street 1) for an unspecified price. These properties had previously been privatised in the name of Vita Medical Centre from the stock of the Ministry of Healthcare in 2000, for prices of AZM 29,111,000 (AZN 5,822.20) for the premises and AZM 30,713,600 (AZN 6,142.72) for the land whereas, according to the findings in the subsequent criminal proceedings (see paragraphs 25-39 below), the actual values of those properties were AZN 632,629.20 and AZN 913,500 respectively.
17. On 7 March 2005 the Ministry of Economic Development delivered a certificate of ownership of the land and premises to the applicant. According to her, the premises were demolished in 2006 and new buildings were built on the plot and used for a car-servicing business which operated for three years before the criminal proceedings in question. However, in the appeal lodged by the applicant in the framework of the domestic proceedings, she stated among other things that the privatised premises and land had been sold to her only “formally”, and that the actual buyers had been her brother and his business partner, who had subsequently built up the car-servicing business (see paragraph 43 below).
Mammadov v. Azerbaijan, application no. 36604/0818. The applicant, Mr Farhad Mammadov, is the brother of E.M., who is the daughter-in-law of A. Insanov and the wife of V. Insanov, the individual applicant in application no. 21904/08 (see paragraph 7 above).
19. On 13 August 2003 a lease agreement was concluded in the name of the applicant with the State Committee on Management of State Property (“the SCMSP”) of the Ministry of Economic Development, concerning State‑owned non-residential premises of 221.8 sq. m in Baku (Rashid Behbudov Street 14 (Nizami Street 99)). The property was part of a clinic on the books of the Ministry of Healthcare. On 1 September 2003 the property was privatised in the name of the applicant for a price of AZM 47,909,000 (AZN 9,581.80) whereas according to the findings in the subsequent criminal proceedings (see paragraphs 25-39 below), the actual value of the property was AZN 482,415. On 3 September 2003 the Ministry of Economic Development delivered a certificate of ownership of the property to him.
Huseynova v. Azerbaijan, application no. 41334/0820. According to the material in the domestic court file, the applicant, Ms Yegana Huseynova, was a close acquaintance of A. Insanov.
21. On 24 December 2002 a lease agreement was concluded in the name of the applicant with the SCMSP concerning State-owned non-residential premises of 37.4 sq. m in Baku (Qara Qarayev Street 84). The property was part of a clinic on the books of the Ministry of Healthcare. On 31 January 2003 the property was privatised in the applicant’s name for a price of AZM 8,079,000 (AZN 1,615.80) whereas, according to the findings in the subsequent criminal proceedings (see paragraphs 25‑39 below), the actual value of the property was AZN 7,324.40. On the same date the Ministry of Economic Development delivered a certificate of ownership of the property to her.
Musayev and Inad-M v. Azerbaijan, application no. 43125/0822. According to the findings of the domestic authorities and courts, the individual applicant, Mr Maharlam Musayev, was a close acquaintance of A. Insanov. He was the sole owner of the applicant company, Inad-M.
23. On 1 November 1999 a lease agreement was concluded in the name of the applicant company with the SCMSP concerning State-owned non‑residential premises of 69.2 sq. m., located in Baku (Bulbul Avenue 43). The property was part of a clinic on the books of the Ministry of Healthcare. On 26 December 2001 the property was privatised in the name of the applicant company for a price of AZM 16,940,000 (AZN 3,388) whereas, according to the findings in the subsequent criminal proceedings (see paragraphs 25-39 below), the actual value of the property was AZN 52,924.16. On 4 January 2002 the Ministry of Economic Development delivered a certificate of ownership to the applicant company.
24. The premises were then leased to VIVA LLC, which, according to the documents in the case file and the applicant’s own submissions to the domestic courts, was a company formally co-founded by Vita Medical Centre and M.A, who was the wife of V.A., one of the defendants in the criminal proceedings and the brother of the applicant in application no. 33248/08. The director of VIVA LLC was I.M., the husband of the applicant in application no. 33248/08, who himself was a formal owner of Logman MMM.
Criminal case against Ali Insanov, former Minister of Healthcare, and other criminal co-defendants, and civil claim lodged by the prosecuting authorities against the applicants in the framework of the criminal caseFirst-instance proceedings25. On 20 October 2005 A. Insanov was dismissed from his ministerial office, arrested and subsequently charged with a number of criminal offences.
26. Specifically, A. Insanov was accused of having committed, among other offences, the following criminal acts, by himself or together with various accomplices.
(i) Between 1997 and 2004 he had created conditions for the unlawful disposal (by way of privatisation) of numerous State-owned real-property assets (land and non-residential premises) which were on the books of the Ministry of Healthcare and had a total estimated value of AZN 27,221,574. Among other things, he was accused of falsifying, with the assistance of accomplices, various documents related to the above-mentioned assets so that the properties could be designated as suitable for privatisation under the State Privatisation Programme and privatisation laws, whereas in fact those assets did not qualify as such and were necessary for the proper functioning of State healthcare institutions. The assets were privatised, for prices significantly lower than their actual value, by sale to his acquaintances or to dummy companies affiliated to him or his acquaintances, or to third persons in exchange for bribes. In connection with some of the above transactions, A. Insanov received bribes in the total amount of 200,000 United States dollars (USD) (equivalent to AZN 195,460). Subsequently, a number of the privatised assets were either misappropriated by A. Insanov himself by way of being sold on nominally to family members or to acquaintances of his who were then named as the new owners, or were sold on to third parties for significant profit.
(ii) He had embezzled AZN 115,240 of public funds in order to pay for the publication of one of his books.
(iii) He had taken a number of bribes in the total amount of USD 76,900 (equivalent to AZN 75,423) and another bribe in the amount of AZN 2,800 in exchange for issuing licences to private companies to operate pharmacies, and had kept 70% of those sums for himself while distributing the remainder among his accomplices.
(iv) He had continually failed to comply with seven final domestic judgments, the earliest of which had been delivered in 1994, ordering the reinstatement of former Ministry of Healthcare employees who had been unlawfully dismissed from their positions.
(v) He had committed a number of other acts of embezzlement and abuse of official authority.
27. In the course of the pre-trial investigation, the investigating authorities carried out a search of A. Insanov’s home and found, among other things, large amounts of cash in various currencies, large quantities of precious metals and jewellery, and the title documents to a number of residential properties.
28. In addition to A. Insanov, there were ten other co-defendants, who were either former officials of the Ministry of Healthcare or people who had been involved in commercial transactions with the Ministry. Each of the ten was charged with complicity in some of the criminal offences with which A. Insanov was charged. In particular, the list of co-defendants included V.A., a former head of department in the Ministry of Healthcare, and his nephew F.A.
29. On 22 January 2007, in the framework of the criminal case against A. Insanov, the Prosecutor General’s Office also lodged a civil claim against a total of forty-eight civil defendants, including the applicants and some of the criminal defendants. No criminal charges were brought against the applicants or certain other civil defendants. The latter were the current owners of the formerly State-owned property which had allegedly been unlawfully privatised. The claim provided a detailed list of several dozen properties which had been on the books of the Ministry of Healthcare and had allegedly been unlawfully privatised, for prices significantly lower than market prices. The claim also provided, where relevant, a list of subsequent transactions and all the persons and companies involved in those transactions. In respect of a number of the properties, there was a pattern of involvement, in various roles, by the same persons (relatives or close acquaintances of A. Insanov) or companies affiliated to them. It was also claimed by the prosecuting authorities that various companies implicated in the above-mentioned transactions, including Arena, Vita Medical Centre, Logman MMM, V.I.R.O. and other companies nominally fully owned and/or managed by A. Insanov’s relatives or by some of his co-defendants, in fact belonged to A. Insanov himself.
30. Relying on the above-mentioned factual grounds, on Article 337 of the Civil Code and Article 181.7.1 of the Code of Criminal Procedure, the Prosecutor General’s Office asked the Court of Serious Crimes to declare the privatisation of those properties and all subsequent transactions concerning them null and void, to return the properties to the books of the Ministry of Healthcare and to restore State ownership over them.
31. The criminal trial was conducted by the Court of Serious Crimes from February to April 2007. V. Insanov, the individual applicant in application no. 21904/08 and the son of A. Insanov, submitted in the context of the present proceedings that he had not been duly notified of the trial hearings and had not attended them. The applicant in application no. 21274/08 was represented by her mother at the hearings. It appears that the submissions made by her and the other applicants to the trial court essentially consisted in arguing that the relevant privatisation or purchase transactions had been lawful and that they had bought the respective properties in good faith.
32. The court heard the criminal defendants, some of whom partially admitted the factual basis for various accusations against them. It also heard a large number of witnesses, who testified in connection with various matters relating to the charges brought against the criminal defendants.
33. In addition to hearing witnesses and defendants, the court also examined documentary and other material evidence presented by the prosecution, including expert reports on the forensic handwriting analyses of a large number of documents, valuation reports on unlawfully privatised properties, and so on. Among this documentary evidence there were three audit reports dated 2006 concerning the “audit of the financial and economic activities of the Ministries of Healthcare and Economic Development”. These had been prepared by a number of employees (sometimes referred to as “experts” in the relevant court documents) of the Ministry of Finance, the Chamber of Auditors and other State agencies pursuant to a decision of the Nasimi District Court of 29 November 2005. In sum, these reports concluded that, despite the fact that the State privatisation programme allowed privatisation of State healthcare facilities only by a decision of the President of the Republic, A. Insanov had exceeded and abused his official powers and, together with other persons, had unlawfully issued instructions and otherwise created conditions for the unlawful privatisation of a large number of State‑owned healthcare facilities, plots of land and other assets. Furthermore, the reports also found that there had been a number of breaches of accounting requirements, instances of mismanagement of State budgetary resources allocated to the Ministry of Healthcare, undocumented or improperly documented use of large amounts of money, and so on. Having examined these reports, the Court of Serious Crimes found that they confirmed that A. Insanov had committed acts of abuse of official authority and embezzlement of public funds.
34. On 20 April 2007 the Court of Serious Crimes found A. Insanov guilty of having committed offences under Articles 179.3.2, 306.2, 308.1, 308.2, 311.3.1, 311.3.2, 311.3.3 and 313 of the Criminal Code. In the same judgment, the court also convicted V.A. and F.A., finding that both of them had been involved in the transactions concerning a number of the unlawfully privatised properties. The remaining criminal defendants were also convicted.
35. The court found, among other things, that A. Insanov, having abused his official position as the Minister of Healthcare, had illegally created the conditions for abuse of legal procedures relating to privatisation; had intentionally left a number of State-owned properties on the books of the Ministry but without maintenance arrangements in order to subsequently declare them in too poor a condition to be of use to the Ministry; had falsified official documents relating to those assets; had granted his official consent for their privatisation; and had taken other measures in order to enable their privatisation or subsequent transfer to the names of his relatives or close acquaintances. The court found that, in the framework of those transactions, the value of the properties had been significantly underestimated and, therefore, considerable damage had been inflicted on the public healthcare system and the State budget. Some of the properties had been subsequently sold to third parties at market prices for a significant profit, while a number of them had been transferred, in a pre-arranged manner, into the de facto ownership of A. Insanov or other criminal defendants by way of the nominal transfer of the title to those properties to relatives and close acquaintances. In particular, the court found that the transactions relating specifically to the properties nominally owned by the applicants were in fact fully orchestrated by A. Insanov himself and had to be classified as embezzlement by him of State property.
36. The court sentenced A. Insanov to eleven years’ imprisonment with confiscation of property and three years’ prohibition on holding public office. Other criminal defendants were also sentenced to various terms of imprisonment, some conditionally, and with or without confiscation of property or prohibition on holding official positions.
37. The court also partially allowed the civil claims lodged by the Prosecutor General’s Office against the majority of the civil defendants, including those against the applicants, under Articles 337.4 and 337.5 of the Civil Code. Having summarised in detail in its judgment the prosecuting authorities’ relevant submissions, the statements of the criminal defendants, the relevant witness statements, the relevant expert reports and other documentary material, and with reference to its findings in respect of A. Insanov and other criminal defendants (see paragraph 35 above), the court concluded that the privatisation of the relevant properties and, where applicable, the chains of subsequent transactions relating to them had been unlawful and invalid. On the basis of its findings, the court ordered that those properties be returned to the books of the Ministry of Healthcare and that State ownership of them be restored. The amounts paid to the State during the privatisations were deducted from the total amount of damages that the former Minister and other convicted persons were ordered to pay.
38. On the other hand, the court found that some of the unlawfully privatised properties were now owned by bona fide purchasers (vicdanlı alıcı) who had no connection to the criminal defendants and therefore it dismissed the civil claims in so far as they related to those assets.
39. As regards the pecuniary damage remaining to be compensated for after the partial upholding of the civil claims, the court found that A. Insanov remained liable for damages in the amount of AZN 527,087 personally, and in the total amount of AZN 7,937,822 jointly and severally with three other criminal defendants. Applying the sanction of confiscation under Article 179.3.2 of the Criminal Code, the court ordered that certain private property of A. Insanov be confiscated. That property included:
(a) various precious metals and items of jewellery valued at AZN 1,040,486 which had been found in his home;
(b) USD 1,309,295 in cash found in his home;
(c) 884,475 euros in cash found in his home;
(d) AZN 8,984 in cash found in his home;
(e) eleven houses and flats, some of them with auxiliary premises such as garages, collectively valued at AZN 3,655,179.90; and
(f) a car valued at AZN 54,000.
Appeals lodged by the applicants and the higher courts’ decisions40. Several criminal defendants lodged appeals against the judgment of the Court of Serious Crimes dated 20 April 2007. A number of civil defendants, including the applicants, also appealed. Although some of the applicants (in particular, the applicants in applications nos. 21274/08 and 41334/08) did not provide copies of their domestic appeals to the Court, it appears from the material in the case file that all the applicants essentially argued that they had been bona fide buyers of their respective properties, mainly on the grounds that all the latest transactions concerning those properties had been concluded in their names in accordance with the formal legal requirements and approved by notaries, and that they had not known about the unlawful nature of the decisions on the privatisation of those properties. They requested that the judgment be quashed in so far as it concerned the civil claim against them and that the relevant properties be returned into their ownership. It appears that none of the applicants made any express requests or claims to be compensated specifically either for the sums paid to the State during the privatisation of the properties or for the sums paid pursuant to the sale and purchase agreement with the previous formal owners.
41. V. Insanov, the individual applicant in application no. 21904/08, also complained that, among the assets confiscated from A. Insanov, there were items of jewellery that belonged personally to him and his family, without describing the specific items concerned, their quantity or their value. He also complained that, among the confiscated houses and flats (see paragraph 39 above), there were three that belonged personally to him: a house in a village in the Khizi District, another house in Khizi (M. Mushvig Street 16) and a flat of 175 sq. m with private parking facilities in Baku (Inshaatchilar Avenue 533). He argued that the jewellery and the title documents to the above-mentioned properties had been kept in his father’s home as a matter of “family tradition”, and had been wrongly deemed by the prosecuting authorities and the courts to be assets belonging to his father. It appears that he did not enclose with his appeal any copies of the title documents to the three properties concerned. V. Insanov also complained that he had not been duly notified of the trial court hearings and therefore had not been able to attend them.
42. Similarly, A. Aliyeva, the applicant in application no. 26193/08, complained that, among the assets confiscated from A. Insanov, there were items of jewellery that belonged personally to her and her family, without describing the specific items concerned, their quantity or their value. She also complained that, among the confiscated houses and flats (see paragraph 39 above), there were two that belonged personally to her: a flat of 223 sq. m in Baku (Azadliq Avenue 990) and a summer house in Novkhani. She argued that the jewellery and the title documents to the properties had been kept in her father’s home as a matter of “family tradition” and had been wrongly deemed by the prosecuting authorities and the courts to belong to her father. It appears that she did not enclose with her appeal any copies of title documents to the two mentioned properties.
43. K. Masimova, the applicant in application no. 33248/08, also stated in her appeal, among other things, that “it [was] important to note that, while the non-residential premises and the land referred to were formally sold to me, in reality the buyers of those properties were my brother [V.A., one of the criminal defendants] and his business partner [S.A.]”. She further noted that her brother and his business partner had subsequently borrowed and invested large amounts of money to build up a car-servicing business on the land in question. She nevertheless argued that she was a lawful and bona fide owner of the properties in question and asked the appellate court to quash the judgment in so far as it related to those properties.
44. By a judgment of 21 September 2007, the Baku Court of Appeal dismissed the applicants’ appeals, finding them unsubstantiated, and upheld the first-instance court’s judgment in so far as it upheld the civil claim against them.
45. The applicants lodged cassation appeals, reiterating their previous complaints and arguments.
46. On 16 January 2008 the Supreme Court dismissed the applicants’ cassation appeals and upheld the lower courts’ judgments in so far as they upheld the civil claim against them. It found that their submissions and arguments were unsubstantiated. As to the assets confiscated from A. Insanov (see paragraphs 39 and 41-42 above), it upheld the lower courts’ decisions and specified that those assets had been obtained with the proceeds of crime, within the meaning of Article 51.1 of the Criminal Code. It also specified that, although the lower courts had found that the privatisation and subsequent transactions in respect of the relevant properties were invalid and that the properties therefore had to be returned to State ownership, the lower courts had omitted to invalidate the relevant ownership certificates in the operative parts of their judgments. It considered that this technical shortcoming could be remedied in the cassation proceedings and, in the operative part of its decision, declared the relevant ownership certificates invalid. The Supreme Court’s decision was sent to the parties on 20 February 2008.
Other proceedings47. V.I.R.O., the applicant company in application no. 21904/08, lodged a separate claim against the Nasimi District Department of Enforcement Officers and the Ministry of Healthcare. The applicant company argued that, because the non‑residential premises which had belonged to the Ministry of Healthcare before privatisation no longer existed (they had been demolished by Logman MMM; see paragraph 8 above), the enforcement authorities’ return of the newly built premises to the Ministry of Healthcare was unlawful. The applicant company sought compensation in an amount of AZN 8,144,300, which included the actual market value of the land (AZN 1,655,300, and not AZN 12,000, the sum it had allegedly paid for it when purchasing it from Logman MMM) and the alleged cost of building the new premises (without, however, submitting any relevant documentary evidence of that cost). On 25 January 2008 the Nasimi District Court dismissed the applicant company’s claim as unsubstantiated. The court found that the actions of the enforcement officers were based on the judgment of the Court of Serious Crimes of 20 April 2007 and could not therefore be considered unlawful. It also dismissed the compensation claim, noting that, according to the findings of the Court of Serious Crimes, the properties in question had in reality been embezzled personally by A. Insanov and that V.I.R.O. had not been an actual owner of those properties. On 6 May 2008 the Baku Court of Appeal and on 3 October 2008 the Supreme Court dismissed appeals by the applicant company.
Subsequent developments48. In its judgment of 14 March 2013 in application no. 16133/08, in respect of the criminal proceedings against A. Insanov, the Court found that there had been a violation of Article 6 § 1 taken together with Article 6 § 3 (c) and (d) of the Convention on account of the breach of A. Insanov’s right to have some of the witnesses questioned during the trial hearings and the lack of sufficient opportunities for him and his lawyers to consult in a confidential setting throughout the trial (see Insanov, cited above, §§ 149-71). The judgment became final on 14 June 2013.
49. Following the Court’s judgment, the criminal proceedings were reopened in the part relating to the charges against A. Insanov. In particular, the Plenum of the Supreme Court quashed the Supreme Court’s decision of 16 January 2008 and the judgment of the Baku Court of Appeal of 21 September 2007 in so far as it related to A. Insanov and remitted the case in that respect to the Baku Court of Appeal for rehearing. According to the submissions of the Government in their communication to the Secretariat of the Committee of Ministers of the Council of Europe in connection with the execution of the Insanov judgment, in the course of the reopened proceedings the shortcomings identified by the Court were addressed and, in particular, the relevant witnesses were summoned and both A. Insanov and his representative were able to question those witnesses. On 25 February 2014 the Baku Court of Appeal delivered its judgment, again upholding the first‑instance court’s judgment of 20 April 2007 in so far as it related to A. Insanov. In its decision on a cassation appeal lodged by A. Insanov, on 9 June 2016 the Supreme Court upheld the judgment of the Baku Court of Appeal, finding that the shortcomings identified by the Court had been addressed during the reopened appellate proceedings.
RELEVANT LEGAL FRAMEWORK
50. Article 337 of the Civil Code, as in force at the material time, provided as follows:
“337.1 A transaction concluded in violation of the requirements stipulated in this Code shall be invalid. Invalid transactions may be the subject of dispute or may be void.
...
337.4 An invalid transaction shall not result in legal consequences except for consequences relating to its invalidity. Such a transaction shall be invalid from the moment of its conclusion.
337.5 Each party shall, in the event of a transaction being invalid, and where other consequences of its invalidity have not been stipulated in this Code, be obliged to return to the other party all items received pursuant to the transaction, and in the event of the impossibility of returning the same items received (including where the items received have been expressed in the form of use of property, work performed or services rendered), be obliged to compensate for its value in money.”
51. Article 181.7.1 of the Code of Criminal Procedure, as in force at the material time, provided as follows:
“181.7. Within the framework of criminal proceedings, a prosecutor shall lodge and defend a claim against the accused person or a person who could be held liable for the actions of the accused person in the following cases:
181.7.1. based on an application by a State entity, company or organisation for the defence of State interests; ...”
52. Article 51 of the Criminal Code, as in force at the material time, provided as follows:
“51.1. Confiscation of property is a forcible alienation in favour of the State, without compensation, of instruments of crime used by a convicted person to commit a criminal offence, of objects acquired by criminal means, and of proceeds of crime acquired by the convicted person.
51.2. Confiscation of property shall be ordered only in circumstances provided for in the Special Part of this Code.
51.3. In the event that the proceeds of crime or objects acquired by criminal means have been used or disposed of or are unavailable for alienation in favour of the State for other reasons, money or other property belonging to the convicted person in the value corresponding to the value [of the proceeds or objects acquired] shall be confiscated.”
COMPLAINTS
53. The applicants complained under Article 1 of Protocol No. 1 to the Convention of a violation of their right to the peaceful enjoyment of their possessions on account of the annulment of their titles to their immovable properties.
54. In addition, the individual applicants in applications nos. 21904/08 and 26193/08, V. Insanov and A. Aliyeva, complained under Article 1 of Protocol No. 1 to the Convention about the allegedly unlawful confiscation of their alleged property, which included various items of jewellery, flats, houses and cash.
55. The applicants complained under Article 6 § 1 of the Convention of a breach of their right to a reasoned decision in respect of their complaints that they had acquired their properties as bona fide purchasers.
56. The individual applicants in applications nos. 21274/08 and 21904/08 also complained under Article 6 of the Convention that the hearings before the first-instance court had taken place in their absence.
57. The applicant in application no. 26193/08 complained under Article 8 of the Convention that her right to respect for her home had been breached on account of the confiscation of a flat and a summer house belonging to her and her family.
58. The applicants in applications nos. 21904/08 and 26193/08 complained under Article 13 of the Convention of the lack of effective domestic remedies on account of the fact that V.I.R.O. and Arena, the companies nominally fully owned by V. Insanov and A. Aliyeva respectively, had not been named as civil defendants in the domestic proceedings.
59. The individual applicant in application no. 21904/08, V. Insanov, complained under Article 2 of Protocol No. 4 to the Convention that a de facto travel ban had been imposed on him in connection with the criminal proceedings against his father.
60. The applicants in applications nos. 21904/08, 26193/08, 33248/08 and 36604/08 complained under Article 14 of the Convention that their cases had been decided by the domestic courts differently from the cases of the other civil defendants whose situation was comparable to theirs.
THE LAW
Joinder of the applications61. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
Complaints under Article 1 of Protocol No. 1 to the Convention62. The applicants complained under Article 1 of Protocol No. 1 to the Convention of a violation of their right to the peaceful enjoyment of their possessions on account of the restoration of State ownership of their properties.
63. The individual applicants in applications nos. 21904/08 and 26193/08 also complained under Article 1 of Protocol No. 1 to the Convention about the confiscation of their other alleged assets, which included various items of jewellery, flats, houses and cash (see paragraphs 41-42 above).
64. Article 1 of Protocol No. 1 to the Convention reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Restoration of State ownership of properties found to have been embezzled by A. Insanov and other criminal defendants(a) The parties’ submissions
65. The applicants disagreed with the findings and decisions of the domestic courts and argued that the restoration of State ownership of their properties without compensation had been unlawful and unjustified as they had purchased those properties in good faith and in accordance with law.
66. The Government submitted that part of the complaint in respect of the applicant in application no. 26193/08 was incompatible ratione personae with the provisions of the Convention as one of the properties in question had been owned not by her but by Arena, a company owned by her. In respect of all the applications, the Government further submitted that the interference with the applicants’ rights had been lawful, had served the general interests of the community and had not imposed any excessive individual burden on the applicants.
(b) The Court’s assessment
67. As to the Government’s objection ratione personae, the Court observes that Arena was a company that was formally fully owned by A. Aliyeva, the applicant in application no. 26193/08. Nevertheless, the Court considers that it is not necessary to examine the Government’s objection as, even accepting that the applicant could claim to be a victim of an alleged violation in respect of the property nominally owned by Arena, the complaint is in any event inadmissible for the following reasons.
68. The Court considers that the properties in issue – recoverable though they proved to be – should be considered the applicants’ “possessions” within the meaning of Article 1 of Protocol No. 1 because the applicants, or companies formally fully owned by them, had their titles to them officially registered, and that the invalidation of those titles and the order to return the properties to the State was an interference with their right to the peaceful enjoyment of those possessions (see Belova v. Russia, no. 33955/08, §§ 32‑33, 15 September 2020).
69. The Court reiterates that Article 1 of Protocol No. 1 to the Convention, which guarantees in substance the right to property, comprises three distinct rules. The first one, which is expressed in the first sentence of the first paragraph, lays down the principle of peaceful enjoyment of property in general. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among many authorities, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 44, ECHR 1999‑V).
70. As to which exactly of the three above-mentioned property rules should apply to the applicants’ situation, the Court reiterates that where a confiscation measure has been imposed independently of the existence of a criminal conviction but rather as a result of separate “civil” (within the meaning of Article 6 § 1 of the Convention) judicial proceedings aimed at the recovery of assets deemed to have been acquired unlawfully, such a measure, even if it involves the irrevocable forfeiture of possessions, nevertheless constitutes control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see, among many other authorities, Air Canada v. the United Kingdom, 5 May 1995, § 34, Series A no. 316‑A; Riela and Others v. Italy (dec.), no. 52439/99, 4 September 2001; Veits v. Estonia, no. 12951/11, § 70, 15 January 2015; and Sun v. Russia, no. 31004/02, § 25, 5 February 2009). Noting that no criminal charges were ever brought against the applicants, the Court considers that the same approach must be followed in the present case. In any event, notwithstanding which rule of Article 1 of Protocol No. 1 applies, the principles governing the question of justification are substantially the same, involving as they do the need for the interference to be lawful and in the public interest, and to strike a fair balance between the demands of the general interest and the applicants’ rights (see Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, § 182, 13 July 2021).
71. The Court reiterates that an essential condition for an interference with a right protected by Article 1 of Protocol No. 1 to be deemed compatible with that provision is that it should be lawful (see Béláné Nagy v. Hungary [GC], no. 53080/13, § 112, 13 December 2016). Moreover, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest” (ibid., § 113). In addition, Article 1 of Protocol No. 1 requires that any interference be reasonably proportionate to the aim sought to be realised. The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (ibid., § 115).
72. Turning to the present case, the Court observes that the domestic courts ordered the return of the applicants’ properties to the State by granting the civil claim lodged by the Prosecutor General’s Office under Article 337 of the Civil Code and Article 181.7.1 of the Code of Criminal Procedure (see paragraphs 29-30 above). Having regard to the fact that the legal basis for the impugned measures was provided by the courts and also to the lack of any specific and meaningful argument from the applicants as to any unlawfulness in the application of those particular domestic legal provisions in the present case, the Court is satisfied that the interference in the present case was “provided for by law”, as required by Article 1 of Protocol No. 1.
73. The Court further considers that the domestic courts, by ordering the return of the relevant properties to the State, were pursuing aims that were in the public interest, namely those of protecting the rule of law and of protecting the rights of the State and other parties and ensuring that the use of illegally misappropriated property did not procure any advantage for the applicants or for persons who had been found guilty of embezzlement of State property to the detriment of the community.
74. As regards the proportionality of the interference, the Court notes that the tenor of the applicants’ submissions in that connection was essentially that they had, as bona fide buyers, legally acquired those properties and that this matter had been incorrectly assessed by the domestic courts, putting them in a situation where they were deprived of their properties because of the criminal activities of third persons, and that they had not been compensated for the invalidation of the transactions (privatisation or purchase) relating to those properties.
75. The Court observes that in a number of previous cases it has been required to examine, from the standpoint of the proportionality test of Article 1 of Protocol No. 1, broadly similar procedures for the forfeiture of property linked to the alleged commission of various serious offences entailing unjust enrichment. As regards property presumed to have been acquired either in full or in part with the proceeds of drug-trafficking offences or other illicit activities of mafia‑type or criminal organisations, the Court did not see any problem in finding the confiscation measures to be proportionate even in the absence of a conviction establishing the guilt of the accused persons. The Court also found it legitimate for the relevant domestic authorities to issue confiscation orders on the basis of a preponderance of evidence which suggested that the respondents’ lawful incomes could not have sufficed for them to acquire the property in question. Indeed, whenever a confiscation order was the result of civil proceedings in rem which related to the proceeds of crime derived from serious offences, the Court did not consider problematic domestic legal provisions and practice according to which proof “beyond reasonable doubt” of the illicit origins of the property in such proceedings was not required. Instead, domestic decisions based on proof on the balance of probabilities, or a high probability of illicit origins, combined with the inability of the owner to prove the contrary, were found to be compatible with the proportionality test under Article 1 of Protocol No. 1. The domestic authorities were further given leeway under the Convention to apply confiscation measures not only to persons directly accused of offences but also to their family members and other close relatives who were presumed to possess and manage the unlawfully obtained property informally on behalf of the suspected offenders, or who otherwise lacked the necessary bona fide status (see Gogitidze and Others v. Georgia, no. 36862/05, § 107, 12 May 2015).
76. The Court notes that in the present case the civil claim was lodged against the applicants under the procedure provided in Article 181.7.1 of the Code of Criminal Procedure for civil claims against accused persons or against persons who could be held liable for the actions of the accused persons, to be examined together with the question of the guilt of those accused persons. In the framework of this procedure, the trial court examined both the issues of an accused person’s guilt as well as a civil claim lodged by the prosecution in connection with the particular criminal offences that he or she had been charged with, and decided on both matters in the same judgment, either convicting or acquitting the criminal defendant, as well as ruling on the issues of civil liability raised by the civil claim.
77. The Court observes that it must also ascertain whether the applicants were afforded a reasonable opportunity to put their arguments before the domestic courts (see Veits, cited above, §§ 72 and 74, and Jokela v. Finland, no. 28856/95, § 45, ECHR 2002‑IV).
78. In this connection, the Court notes that, as civil defendants, the applicants were parties to the proceedings and were aware of the details of the claim lodged against them, to which they had an opportunity to lodge their written objections. It appears that most of them participated in the first‑instance hearings, either themselves or through their respective representatives, and were given an opportunity to be heard. While the individual applicant in application no. 21904/08, who was the son of A. Insanov, alleged that he had not been summoned to the first-instance hearings, no further factual information has been forthcoming from the parties either confirming or denying this allegation. In any event, the Court notes that this individual applicant had the right to lodge an appeal against the first-instance judgment, a right of which he made use. It appears from the material in the case file that, in the appellate proceedings, where the case was examined both on points of fact and on points of law, he was summoned to the hearing, at which he represented by his lawyer (the same lawyer who represented him before the Court). Therefore, even if in the first‑instance proceedings he had not duly received the summons, that shortcoming was remedied at the appellate stage of the proceedings. Furthermore, he was also represented by a lawyer in the proceedings before the Supreme Court. Therefore, in the circumstances of the case, he had a reasonable opportunity to put his arguments before the domestic courts.
79. The domestic courts duly examined the prosecuting authorities’ submissions and claims in adversarial proceedings in the light of the numerous supporting documents available in the case file, including expert reports, witness statements, documentary evidence and the statements of the criminal defendants. That evidence led the domestic courts to the finding that A. Insanov, with the complicity of his criminal co-defendants, acquired considerable assets by way of embezzlement of State property, resale of unlawfully acquired State property and bribery, and that the applicants were merely fictitious title-holders of the assets misappropriated by the former Minister. The existence of a causal link between these assets and the established criminal activity was apparent from the findings of the courts (contrast and compare, mutatis mutandis, Todorov and Others, cited above, §§ 221, 230, 237, 246, 254, 262 and 277). Furthermore, according to the domestic courts’ findings, the applicants have not been able to put forward any convincing arguments or evidence showing that they had been actual owners of those assets who had purchased them in good faith or otherwise refuting the evidence presented by the prosecution.
80. It is true that in Insanov v. Azerbaijan (no. 16133/08, 14 March 2013), the Court found, in respect of the same criminal proceedings, that A. Insanov’s rights under Article 6 § 1 of the Convention had been breached on account of his inability to question some of the witnesses in person and the lack of sufficient opportunities for him and his lawyers to consult in a confidential setting (see paragraph 48 above). However, in the same judgment, in connection with A. Insanov’s complaint under Article 1 of Protocol No. 1 to the Convention, which it declared inadmissible, the Court held that, while the criminal proceedings against him had not complied with certain procedural guarantees of Article 6, the flaws that the Court found in them were not of such a nature as to render the entire trial so fundamentally unfair as to amount to a flagrant denial of justice. In such circumstances, the Court considered that it would be speculative to assume that, had the criminal proceedings complied with the relevant fair trial requirements which had been breached, the applicant would not have been convicted of the criminal offences with which he had been charged (see Insanov, cited above, § 184). Furthermore, the Court notes that, following its Insanov judgment, the criminal proceedings were reopened in so far as they related to the charges against A. Insanov and that his conviction and sentence were once again upheld (see paragraph 49 above).
81. In view of the considerations set out in paragraphs 78-80 above, the Court finds that the proceedings, assessed as a whole, were conducted in an adversarial manner, whereby the applicants were given a reasonable opportunity to put their arguments before the domestic courts, and that the courts’ specific findings complained of in respect of the properties dealt with in the present cases cannot be considered arbitrary.
82. Lastly, the Court notes that the applicants were not compensated for the nominal amounts paid to the State or to the previous owners for the properties in question. In this connection, the Court again refers to the findings of the domestic courts that the applicants were, in fact, fictitious owners who nominally held titles to properties which were embezzled by A. Insanov. It was established by the domestic courts that the privatisation and purchase transactions had been carried out by A. Insanov himself, that the applicants’ involvement in those transactions was merely a formality and that, for this reason, the transactions were invalid, with A. Insanov’s actions amounting to the criminal offence of embezzlement. The money paid to the State in the form of the significantly underestimated prices paid for those properties was deducted from the overall amount of damages that A. Insanov and other criminal defendants were ordered to pay. The applicants failed to provide any evidence that they themselves had paid the money to the State during the privatisation or, where relevant, that they had themselves paid any money under the subsequent purchase contracts. Moreover, the applicants failed to lodge any counterclaims seeking reimbursement of that money in the framework of the criminal proceedings. Nor in their appeals did any of the applicants request compensation or argue that such compensation should have been ordered under Article 337.5 of the Civil Code, instead asking the appellate court to quash the first-instance judgment in so far as it had upheld the claim against them and to return the properties to them (see paragraph 40 above). Although the applicant company in application no. 21904/08 did lodge a separate compensation claim (see paragraph 47 above), that claim concerned, for unexplained reasons, the market value of the property as determined by the domestic courts and not the significantly lower amount paid by Logman MMM to the State during the privatisation or the significantly lower amount allegedly paid by the applicant company to Logman MMM under the subsequent purchase contract. The claim also concerned the alleged further expenses incurred by the applicant company, but no relevant evidence was filed. In such circumstances, not only was the domestic civil court not given an opportunity to determine whether there were grounds for awarding compensation under Article 337.5 of the Civil Code, but also, in any event, the claim as framed by the applicant company asked the court to overturn the findings of the Court of Serious Crimes, which it was not competent to do.
83. Having regard to all of the considerations above, the Court finds that the interference in the present cases cannot be considered to have been arbitrary or to have failed the proportionality test under Article 1 of Protocol No. 1.
84. It follows that this complaint is manifestly ill‑founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Alleged confiscation of the alleged assets of the individual applicants in applications nos. 21904/08 and 26193/08(a) The parties’ submissions
85. The individual applicants in applications nos. 21904/08 and 26193/08, who are A. Insanov’s son and daughter respectively, also complained under Article 1 of Protocol No. 1 to the Convention about the confiscation of their other alleged assets, which included various items of jewellery, flats, houses and cash.
86. Specifically, the individual applicant in application no. 21904/08 submitted that the three properties mentioned in paragraph 41 above had actually belonged to him, while the applicant in application no. 26193/08 submitted that the two properties mentioned in paragraph 42 had belonged to her. Moreover, in their application forms, they complained that some unspecified items of jewellery and unspecified amounts of cash which had been confiscated from A. Insanov had also belonged to them. In their observations, the individual applicant in application no. 21904/08 provided a short description of twenty-two various items of jewellery and watches which had allegedly belonged to him and had been wrongfully confiscated, while the applicant in application no. 26193/08 provided a short description of nineteen various items of jewellery and watches. They also noted that USD 470,000 and USD 350,000 of the cash found in A. Insanov’s home had actually belonged to each of them respectively.
87. The Government noted that the applicants had failed to produce any evidence showing that the properties and other assets claimed had actually belonged to them. In their application forms, they had not even specified what items of jewellery belonged to them.
(b) The Court’s assessment
88. The Court notes that the applicants failed to provide any evidence confirming that the above-mentioned confiscated items, properties and cash were owned by them. The Court observes that the jewellery and cash were found at the former Minister’s house, where the applicants did not reside. In their submissions to the domestic courts, the applicants complained in a general manner of the allegedly unlawful confiscation of “items of jewellery” without specifying what those items were, and did not mention the cash that allegedly belonged to them. Similarly, in the application forms they lodged with the Court, they complained about unspecified “items of jewellery”, and only the individual applicant in application no. 21904/08 (but not the applicant in application no. 26193/08) complained that cash belonging to him had been confiscated, but did not specify an amount.
89. In respect of the houses and flats, the applicants failed to provide to either the domestic courts or the Court any documents confirming their property rights. In their observations, the applicants submitted that the documents confirming their property rights to the immovable properties in question had been seized by the authorities during the search of A. Insanov’s flat and had not been returned to them. However, the applicants did not explain what might have prevented them from requesting and obtaining the relevant official information from the State register of immovable property confirming their alleged previous ownership of these properties. The domestic courts established that those properties were actually owned by the former Minister and ordered their confiscation as the proceeds of his crimes. In such circumstances, the applicants’ claims of alleged ownership of the above-mentioned immovable properties, jewellery and cash appear to be largely unsubstantiated and a question arises whether the alleged assets in question were the applicants’ “possessions” at all.
90. However, even assuming that at least some or all of those assets were the applicants’ “possessions”, the Court considers that the complaint is in any event inadmissible for the following reasons.
91. The domestic courts found that, in addition to having embezzled State property and committed bribery in large amounts, A. Insanov had set up and was responsible for the unlawful privatisation of certain properties at artificially low prices, and those properties had then been sold on to third persons at market prices for a significant profit. All the assets found in and seized from his home, including multiple items of jewellery, large amounts of cash in various denominations, and the title documents to eleven properties, were considered to have been proceeds of crime or assets acquired with the proceeds of crime within the meaning of Article 51.1 of the Criminal Code. This finding does not appear to be arbitrary in the circumstances of the present case, even if titles to some of the properties might have been nominally registered in the applicants’ names, given also the applicants’ failure to provide documentary evidence of ownership of the assets which they claimed as theirs or to provide any evidence of the lawful origin of their claims to those assets which had a significant combined value. As noted above, proof on the balance of probabilities, or a high probability of illicit origins combined with the failure of the owner to prove the contrary, may suffice for the purposes of the proportionality test under Article 1 of Protocol No. 1 in cases relating to the forfeiture of property linked to the alleged commission of various serious offences entailing unjust enrichment, and domestic courts are given a certain leeway under the Convention to apply confiscation measures not only to persons directly accused of offences but also to their family members and other close relatives who are presumed to possess and manage the unlawfully obtained property informally on behalf of the suspected offenders, or who otherwise lacked the necessary bona fide status (see paragraph 75 above).
92. For these reasons, the Court considers that nothing in the conduct of the domestic proceedings suggests either that the applicants were denied a reasonable opportunity to put forward their case or that the domestic courts’ findings were tainted with manifest arbitrariness. Accordingly, the Court finds, in respect of the complaints by the individual applicants in applications nos. 21904/08 and 26193/08 concerning certain immovable properties, items of jewellery and cash, that it has not been demonstrated that there has been an arbitrary or disproportionate interference with their “possessions”.
93. It follows that this complaint is manifestly ill‑founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Complaint under Article 6 § 1 of the Convention94. The applicants complained under Article 6 § 1 of the Convention of unfairness in the domestic proceedings concerning the civil claim lodged against them within the criminal proceedings against third persons. They argued, in particular, that their right to a reasoned decision had been breached because the domestic courts had failed to give sufficient reasons as to their not being bona fide purchasers. They relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The parties’ submissions95. The applicants submitted, in particular, that the domestic courts had failed to explain why they were not bona fide purchasers whereas some other civil defendants were found to have been bona fide purchasers.
96. The Government submitted that the domestic courts had given sufficient reasons for their conclusions.
The Court’s assessment97. The Court reiterates that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should include adequate statements of the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017).
98. The Court further reiterates that it is sensitive to the subsidiary nature of its role, and that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 150, 20 March 2018).
99. Turning to the present cases, the Court again refers to the findings of the domestic courts about the unlawful nature of the privatisations and, where relevant, subsequent transactions in respect of the properties in question and their conclusions that those transactions were orchestrated by the former Minister while being nominally carried out through his relatives, close acquaintances or companies nominally owned by them. It is true that the domestic courts did not expressly and separately spell out the reasons why they found that each of the applicants lacked bona fide status. However, having regard to the domestic judgments in their entirety, the Court considers that sufficient reasoning has been provided, in that the domestic courts gave a summary of the prosecution’s submissions concerning the close relationship between the applicants and A. Insanov and other criminal defendants, and also of the description and the evidence of the chain of transactions in question, the findings of the expert reports, the statements by witnesses specifically disclosing the unlawful nature of the transactions in question, and the statements by certain of the criminal defendants partially admitting the factual basis for accusations against them. Having assessed the material in their possession, the domestic courts found that the prosecution’s factual submissions in respect of the applicants’ properties had been proven and, as such, found that the applicants were not bona fide purchasers. They also found that the applicant’s arguments to the contrary were unsubstantiated. On the other hand, some of the civil defendants were found to have actually been bona fide purchasers, and the courts’ reasoning in that respect could be seen in their findings that some of the unlawfully privatised properties had been sold for profit at market prices, and also in the manner in which the courts examined the chains of transactions in respect of those properties and the nature of the ultimate buyer’s connection to the criminal defendants. Having regard to the above, in the circumstances of the present case the Court considers that the domestic judgments contained a reasoned response to the arguments raised by the applicants.
100. The foregoing considerations are sufficient to enable the Court to conclude that the domestic courts provided reasons for establishing that the applicants were not bona fide purchasers.
101. It follows that this complaint is manifestly ill‑founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Other complaints102. The individual applicant in application no. 21904/08, V. Insanov, complained under Article 2 of Protocol no. 4 to the Convention that a de facto travel ban had been imposed on him in connection with the criminal proceedings against his father. The Court notes that this complaint is substantially the same as a matter that has already been examined by it in the framework of another application lodged by the same applicant (see Insanov v. Azerbaijan (dec.), no. 57397/19, 20 May 2021). Accordingly, it is inadmissible in accordance with Article 35 § 2 (b) of the Convention as being substantially the same as a matter that has already been examined by the Court.
103. Moreover, some of the applicants also raised a number of complaints under Articles 6, 8, 13 and 14 of the Convention (see paragraphs 56-58 and 60 above).
104. 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 and freedoms set out in the provisions relied on by the applicants.
105. It follows that these complaints are 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 12 January 2023.
Renata Degener Marko Bošnjak
Section Registar President
Appendix
List of cases
No.
Application no.
Case name
Lodged on
Applicant
Year of birth/establishment
Place of residence/Registered office
Nationality/Country of incorporation
Represented by
1.
21274/08
Yusifli v. Azerbaijan
25/04/2008
Gunel Rafig gizi YUSIFLI
1979
Toronto
Azerbaijani
Rafael Ali oglu MANSIMZADE
2.
21904/08
Insanov and V.I.R.O. v. Azerbaijan
02/05/2008
Vidadi Ali oglu INSANOV
1970
Baku
Azerbaijani
V.I.R.O. LTD
2002
Baku
Azerbaijan
Agaveys Nurkishi oglu SHAHVERDI
3.
26193/08
Aliyeva v. Azerbaijan
26/05/2008
Ayla Ali gizi ALIYEVA
1978
Baku
Azerbaijani
Agaveys Nurkishi oglu SHAHVERDI
4.
33248/08
Masimova v. Azerbaijan
23/06/2008
Khalida Abbas gizi MASIMOVA
1962
Sumgayit
Azerbaijani
Akif Akbar oglu ALIZADE
5.
36604/08
Mammadov v. Azerbaijan
15/07/2008
Farhad Vali oglu MAMMADOV
1978
Baku
Azerbaijani
Agaveys Nurkishi oglu SHAHVERDI
6.
41334/08
Huseynova v. Azerbaijan
30/07/2008
Yegana Arzuman gizi HUSEYNOVA
1969
Baku
Azerbaijani
Ulvi Rovhsan oglu YUSIFOV
7.
43125/08
Musayev and Inad-M v. Azerbaijan
18/08/2008
Maharlam Ali oglu MUSAYEV
1959
Baku
Azerbaijani
INAD-M PRODUCTION AND COMMERCE COMPANY
2003
Baku
Azerbaijan
Anar ELMANOGLU GASIMLI