FIRST SECTION
Application no. 21274/08
Gunel YUSIFLI against Azerbaijan
and 7 other applications
STATEMENT OF FACTS
THE FACTS
The applicants are Azerbaijani nationals.
The circumstances of the case
The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Privatisation of the state-owned property by the applicantsApplication no. 21274/08 lodged on 25 April 2008 by Ms Gunel Yusifli, born on 1 January 1979, living in Toronto, Canada, represented by Mr Rafael Mansimzade.
On 27 November 2000 the applicant concluded a rent agreement with the Ministry of State Property concerning State-owned non-residential premises of 117.2 sq. m in Baku (H. Cavid avenue, 56/57B). The property was on the balance of the Ministry of Healthcare. By virtue of a purchase contract of 13 February 2001 with the Ministry of State Property, she privatised this property, having paid an amount of 27,003,000 old manats (AZM), equivalent to approximately 5,400.60 new manats (AZN). On 15 February 2001 the applicant was delivered an ownership certificate to the property by the Ministry of State Property.
Application no. 21904/08 lodged on 2 May 2008 by Mr Vidadi Insanov, born on 31 March 1970, living in Baku, and V.I.R.O LTD operating in Baku, represented by Mr Agaveys Shahverdi.
The applicant, Vidadi Insanov, is a son of Ali Insanov, former Minister of Healthcare and V.I.R.O LTD is a company owned by the applicant.
On 17 September 2004 the applicant company bought a land plot of 4,203.9 in Baku (Mir Gasimov street, 1), from Logman Company. The latter had previously privatised the property from the balance of the Ministry of Healthcare. Before selling the property to the applicant company, Logman Company had demolished the premises of 522.8 sq. m, located on the land plot. On 14 October 2004 the applicant company was delivered the relevant ownership certificate to the land plot by the Ministry of Economic Development. In 2004 the applicant company built commercial premises with a total area of more than 5,000 sq. m on the land plot.
Application no. 26193/08 lodged on 26 May 2008 by Ms Ayla Aliyeva, born on 7 July 1978, living in Baku, represented by Mr Agaveys Shahverdi.
The applicant is a daughter of the former Minister of Healthcare. On 26 April 2001 her company bought non-residential premises of 43.9 sq. m in Baku (Sharifli street 2514), from Vita Medical Center, which had previously privatised the property. On 30 April 2001 the applicant’s company was delivered the relevant ownership certificate.
On 21 November 2002 she bought non-residential premises of 319.1 sq. m in Baku (Alizade street 6/8 (T. Aliyarbeyov street, 3)) from a private person, S.B., who had bought it from I.M.S. company, which had previously privatised it from the balance of the Ministry of Healthcare.
The founder of Vita Medical Center and I.M.S. company, F.A., was subsequently found guilty for participation in organised crimes committed by the applicant’s father by the same judgment of 20 April 2007 convicting the applicant’s father.
Application no. 32768/08 lodged on 28 June 2008 by Mr Nazim Ismayilov, born on 27 August 1966, living in Baku, represented by Mr Khalil Agayev.
On 30 June 2004 the applicant concluded a purchase contract with private Zamiq Company, paid an amount of USD 100,000 and bought non‑residential premises adjacent to a publicly-owned hospital in Baku (M. Salmanli street, 19). It appears from the case file that Zamiq Company had privatised the property in question in November 2001 from the balance of the Ministry of Healthcare. On 2 August 2004 the applicant was delivered the relevant ownership certificate by the Ministry of Economic Development.
Application no. 33248/08 lodged on 23 June 2008 by Ms Khalida Masimova, born on 13 January 1962, living in Sumgayit, represented by Mr Akif Alizade.
On 22 January 2005 the applicant concluded a purchase contract with Vita Medical Center and bought non-residential premises of 519.4 sq. m and a land plot of 2,099.4 sq. m in Baku (Musabeyov street, 1). Vita Medical Center had previously privatised these properties from the balance of the Ministry of Healthcare. On 7 March 2005 the applicant was delivered the relevant ownership certificates to the premises and to the land plot by the Ministry of Economic Development. In 2006 she demolished those premises and built new car-service premises, which had operated for three years before the criminal proceedings against the former Minister of Healthcare and the founder of Vita Medical Center, F.A.
Application no. 36604/08 lodged on 15 July 2008 by Mr Farhad Mammadov, born on 15 July 1978, living in Baku, represented by Mr Agaveys Shahverdi.
On 13 August 2003 the applicant concluded a rent agreement with the State Committee on Management of the 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 on the balance of the Ministry of Healthcare. On 1 September 2003 the applicant paid an amount of AZM 47,909,000 (AZN 9,581.8) and privatised the property. On 3 September 2003 he was delivered an ownership certificate to the property by the Ministry of Economic Development.
Application no. 41334/08 lodged on 30 July 2008 by Yegana Huseynova, born on 18 August 1969, living in Baku.
On 24 December 2002 the applicant concluded a rent agreement with the SCMSP concerning a state-owned non-residential premises of 37.4 sq. m in Baku (Qara Qarayev street, 84). The property was on the balance of the Ministry of Healthcare. On 31 January 2003 she paid an amount of AZM 8,079,000 (AZN 1,615.8) and privatised the property. On the same date she was delivered the relevant ownership certificate to the property by the Ministry of Economic Development.
Application no. 43125/08 lodged on 18 August 2008 by Mr Maharlam Musayev, born on 14 July 1959, living in Baku, and Inad-M Production and Commerce Company operating in Baku, represented by Mr Anar Gasimov.
Mr Maharlam Musayev is the sole founder of the applicant company. On 1 November 1999 the applicant company concluded a rent agreement with the SCMSP concerning State-owned non-residential premises of 69.2 sq. m in Baku (Bulbul avenue, 43). The property was on the balance of the Ministry of Healthcare. On 26 December 2001 the applicant company paid an amount of AZM 16,940,000 (AZN 3,388) and privatised the property. On 4 January 2002 the applicant company was delivered an ownership certificate to the property by the Ministry of Economic Development.
B. Criminal case against Ali Insanov, former Minister of Healthcare
On 22 October 2005 the Prosecutor General’s Office formally charged the former Minister of Healthcare with criminal offences under Articles 28/220.1 (preparation to organise public disorder), 278 (actions aimed at usurping State power), 179.3.2 (embezzlement in large amounts), 308.2 (abuse of official authority entailing grave consequences), 311.3.2 (repeatedly committed bribe-taking) and 311.3.3 (bribe-taking in large amounts) of the Criminal Code. On 19 January 2007 the Prosecutor General’s Office issued a new indictment charging him with criminal offences under Articles 28/220.1, 278, 179.3.2, 306.2, 308.1 (abuse of official authority), 308.2, 311.3.1 (bribe-taking), 311.3.2 and 311.3.3 of the Criminal Code. On 24 January 2007 a new criminal case was severed from the previous criminal case. In the framework of the new criminal case, the applicant was formally charged with the offences under Articles 179.3.2, 306.2, 308.1, 308.2, 311.3.1, 311.3.2, 311.3.3 and 313 (forgery in public office) of the Criminal Code.
Among other things, Mr Ali Insanov was accused of having created conditions for unlawfully disposing (by way of privatisation) of numerous State-owned real-property assets which were on the balance of the Ministry of Healthcare in the period between 1997 and 2004.
On 22 January 2007, in the framework of the criminal case against Ali Insanov, the Prosecutor General’s Office lodged civil claims against 48 civil defendants, including the applicants. No criminal charges had been brought against these civil defendants. They were current private owners of the formerly public property which had been allegedly unlawfully sold by Ali Insanov. On this ground, the Prosecutor General’s Office asked the Assize Court to declare privatisation and all subsequent transfers of those properties null and void and transfer them to the balance of the Ministry of Healthcare.
All applicants were summoned to the hearings before the Assize Court and they all, except for Ms Gunel Yusifli (application no. 21274/08), who was represented by her mother, personally testified concerning privatisation or purchase of the mentioned properties.
On 20 April 2007 the Assize Court found Ali Insanov guilty 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.
To compensate for the damages inflicted by Ali Insanov, the court ordered that the following properties owned by Ali Insanov, be confiscated, inter alia:
(a) various precious metals and jewellery items, a flat of 223 sq. m in Baku (Azadliq avenue, 990) and a summer house in Novkhani. According to Ms Ayla Aliyeva (application no. 26193/08) these assets belonged to her and her family; and
(b) various precious metals and jewellery items and money, a house in the Gizil Gazma village of Khizi District, another house in the Khizi District (M. Mushvig street, 16) and a flat of 175 sq. m and a private parking lot in Baku (Inshaatchilar avenue, 533). According to Mr Vidadi Insanov (application no. 21904/08), these assets belonged to him and to his family.
By the same judgment, the court partially satisfied the civil claims lodged by the Prosecutor General’s Office against a group of civil defendants, including the applicants. The court found that the former Minister of Healthcare had not complied with the legal procedures on privatisation, had intentionally left these properties without maintenance in order to subsequently declare them out of condition for use by the Ministry, had granted his official consent for their privatisation, had falsified official documents and had taken other measures in order to enable his relatives and acquaintances to privatise the properties or subsequently purchase the properties from the persons who had privatised them. The court also found that the values of the properties had been under-assessed and, therefore, a considerable damage had been inflicted to the public healthcare system and the State budget. The court concluded that the transactions related to the properties had been unlawful and void. Based on these findings, the court ordered that these properties be returned to the balance of the Ministry of Healthcare and that State ownership be restored over them. The value of these properties was deducted from the amount of damage inflicted by the former Minister.
On the other hand, the court found that some of the unlawfully privatised properties were now owned by bona fide purchasers and therefore dismissed the civil claims in the part relating to those assets. It appears that no specific reasoning was provided in the judgment as to why the court considered these purchasers to have acted in good faith, while the others were not considered as such.
The applicants appealed claiming that the decision of the first-instance court was unlawful in the part concerning their properties. On 21 September 2007 the Baku Court of Appeal dismissed the applicants’ appeals. The applicants separately lodged cassation appeals reiterating their complaints. On 16 January 2008 the Supreme Court dismissed the applicants’ cassation appeals and upheld the lower courts’ judgments in part relating to the applicants.
V.I.R.O Ltd Company (application no. 21904/08) filed a separate claim against the Nasimi District Enforcement Department (the “NDED”). The applicant explained that owing to the fact that the premises which had belonged to the Ministry of Healthcare before privatisation did not exist any more, the enforcement authorities’ acts concerning the returning of the newly build premises to the Ministry of Healthcare were unlawful. The applicant asked for compensation in an amount of AZN 8,144,300 which allegedly included the amount it paid for purchasing the land plot and the construction expenses for building the new premises. On 25 January 2008 the Nasimi District Court dismissed the applicant claim as unsubstantiated. The court found that the acts of the officers of the NDED were based on the judgment of 20 April 2007 and could not therefore be considered unlawful. On 6 May 2008 the Baku Court of Appeal and on 3 October 2008 the Supreme Court dismissed the applicant’s appeals.
COMPLAINTS
The applicants complained under Article 6 of the Convention about unfairness of the domestic decisions delivered in the criminal proceedings against third persons on return of applicants’ properties to the balance of the Ministry of Healthcare.
The applicants also complained under Article 1 of Protocol No. 1 to the Convention about violation of their right to peaceful enjoyment of their possessions.
In addition, the applicants in applications nos. 21904/08 and 26193/08 complained under Article 1 of Protocol No. 1 to the Convention about confiscation of their properties, which included various precious metals, jewellery items, flats, houses and cash.
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 other civil defendants which were in a comparable situation.
COMMON QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was there a violation of Article 6 § 1 of the Convention on account of the national courts’ alleged failure to give sufficient reasons as to the applicants’ not being bona fide purchasers and as to dismissal of the applicants’ requests concerning the payment of the amount they had paid for privatisation of the properties?
2. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, which rule of Article 1 of Protocol No. 1 applies in the present case? Was the reasoning of the domestic courts compatible with the requirement of lawfulness of Article 1 of Protocol No. 1 to the Convention? Was that interference proportionate and justified for the purposes of that provision? Did that interference impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V, and, a contrario, Hutten-Czapska v. Poland [GC], no. 35014/97, ECHR 2006‑VIII)?
CASE SPECIFIC QUESTIONS
Applications nos. 21904/08 and 26193/08
Has there been an interference with the applicants’ peaceful enjoyment of possessions, such as jewellery and private houses and flats, within the meaning of Article 1 of Protocol No. 1, taking into consideration the fact that these items had not previously belonged to the State? What were grounds for their confiscation? Were the domestic courts’ decisions adequately reasoned regarding legitimate origins of the applicants’ confiscated property (see Rocco ARCURI and three others v. Italy (dec.), no. 52024/99, ECHR 5 July 2001, and Silickienė v. Lithuania, no. 20496/02, 10 April 2012)?
Application no.
Date of introduction
Applicant’s name
Represented by
21274/08
25/04/2008
Gunel Rafig gizi YUSIFLI
01/01/1979
Toronto
Rafael Ali oglu MANSIMZADE
21904/08
02/05/2008
Vidadi Ali oglu INSANOV
31/03/1970
Baku
V.I.R.O LTD.
Baku
Agaveys Nurkishi oglu SHAHVERDI
26193/08
26/05/2008
Ayla Ali gizi ALIYEVA
07/07/1978
Baku
Agaveys Nurkishi oglu SHAHVERDI
32768/08
28/06/2008
Nazim Mikayil oglu ISMAYILOV
27/08/1966
Baku
Khalil Badal oglu AGAYEV
33248/08
23/06/2008
Khalida Abbas gizi MASIMOVA
13/01/1962
Sumgayit
Akif Akbar oglu ALIZADE
36604/08
15/07/2008
Farhad Vali oglu MAMMADOV
15/07/1978
Baku
Agaveys Nurkishi oglu SHAHVERDI
41334/08
30/07/2008
Yegana Arzuman gizi HUSEYNOVA
18/08/1969
Baku
43125/08
18/08/2008
Maharlam Ali oglu MUSAYEV
14/07/1959
Baku
INAD-M PRODUCTION AND COMMERCE COMPANY
20/12/2003
Baku
Anar ELMANOĞLU (GASIMLI)
Full & Egal Universal Law Academy