Communicated on 6 July 2017
FIFTH SECTION
Application no. 20116/12
Seudin ZOLETIC and others
against Azerbaijan
lodged on 22 March 2012
STATEMENT OF FACTS
The applicants are nationals of Bosnia and Herzegovina. They are represented before the Court by Mr M. Bakhishov, a lawyer practising in Azerbaijan (see Appendix for details).
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 30 June 2006 a private company, A., was registered in Anguilla, a British overseas territory.
On 16 March 2007 A. registered another company, S., as a wholly owned subsidiary in Azerbaijan.
On 14 May 2007 the two companies entered into a secondment contract, whereby A. undertook to second staff to S. to work on construction projects in Azerbaijan. According to the contract, the maximum term of secondment had to be three months. The seconded staff were considered employees of A., which had to pay their wages.
From the end of 2006 to 2009 hundreds of Serbian, Former Yugoslav Republic of Macedonia and Bosnia and Herzegovina nationals, including the applicants, were recruited in their countries of origin by S.’s representatives. The company arranged their travel to Azerbaijan by air in groups on the basis of tourist visas (or in some cases business visas) for periods of up to thirty or ninety days. Once they reached Azerbaijan, their passports were taken away by representatives of S., with the explanation that that was necessary in order to legalise their residence status. Nevertheless, they were not provided with work and residence permits and stayed in Azerbaijan illegally after their visas had expired.
The applicants lived in houses transformed into sleeping accommodation for between forty and around a hundred people in poor conditions and with a lack of toilets and bathrooms. Each house had dormitories for between twelve and twenty-four people. The applicants had to comply with strict internal rules established by S. or face a fine. They were also exposed to physical punishment, threats and detention in specially designated areas. The applicants were not allowed to leave their accommodation without a special permit from S.
The applicants worked as unskilled labour in the construction of several buildings in Baku, including Buta Palace, the Baku Expo Centre and 28 Mall. Some of them worked on the construction of the Kur Olympics educational and training centre in Mingachevir, commissioned by the Ministry of Youth and Sports.
During their recruitment the applicants had been promised 5 to 7 United States Dollars (“USD”) per hour, however, they were only paid USD 3 to 4. They received their wages on a monthly basis in cash directly from representatives of S.
The applicants were not paid any wages from May 2009.
The case became public in October 2009 when some of the applicants alerted local and international NGOs to their plight.
In October and November of 2009 S. paid part of the unpaid wages to the applicants, took them to the airport, returned their passports and repatriated them in groups.
On 19 July 2010 the applicants lodged a civil claim against S. in the Sabail District Court, asking for payment of USD 10,000 each in unpaid wages and USD 5,000 each in respect of non-pecuniary damage for a breach of their rights and freedoms, in particular for having been subjected to trafficking and forced or compulsory labour.
On 21 October 2010 the Sabail District Court dismissed the applicants’ claims. It referred mainly to the secondment contract of 14 May 2007 and found that the applicants were not employees of S. and thus it was not liable for the non-payment of wages or other employment-related complaints. The court further held that the alleged violations of the applicants’ rights and freedoms had not been proved as it had appeared from letters from various State authorities that their rights and freedoms had not been breached.
On 1 December 2010 the applicants lodged an appeal against the first‑instance judgment, arguing that they had not been recruited by the A., but by S. Even though they did not have employment contracts with S., the requirements of the Convention, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (“the UN Convention”), the Labour Code and the Law on Labour Migration had been applicable to them.
On 8 February 2011 the Baku Court of Appeal upheld the judgment. Besides reiterating the findings of the first-instance court, it also held that the UN Convention and the Law on Labour Migration could not be applied to the case as they concerned lawful migrant workers, whereas the applicants were not people who had migrated from one country to another on lawful grounds. The court further held that the Labour Code was not applicable to people who worked at a company (a branch or representative office of a foreign company) in Azerbaijan on the basis of an employment contract concluded with a foreign company in that company’s country.
On 23 September 2011 the Supreme Court upheld the judgment, essentially reiterating the findings of the lower courts.
COMPLAINTS
1. The applicants complain under Article 4 § 2 of the Convention of having been subjected to trafficking and forced or compulsory labour in Azerbaijan. They further complain that the State failed to fulfil its positive obligations under that provision.
2. The applicants complain under Article 6 § 1 of the Convention that the civil proceedings were not fair. In particular, they argue that the judgments of the domestic courts were not reasoned and that the courts disregarded their arguments and requests.
3. The applicants also complain under Article 1 of Protocol No. 1 to the Convention of a failure by the State to protect their property interests on account of the non-payment of their wages by S.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to trafficking and/or forced or compulsory labour in Azerbaijan within the meaning of Article 4 § 2 of the Convention?
2. Has there been a violation of Article 4 § 2 of the Convention on account of a failure by the State to fulfill its positive obligations under that provision (see Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010)?
3. 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, did the domestic courts properly examine the arguments put forward by them and were the judgments of the domestic courts properly reasoned?
4. Has there been a violation of Article 1 of Protocol No. 1 to the Convention with regard to the alleged failure of the State to protect the applicants’ property interests on account of the non-payment of part of their wages by S.?
5. The parties are requested to provide, where relevant and available, the necessary documentary evidence in support of their replies and submissions (in addition to what has already been submitted with the application form).
Appendix
No.
Applicant’s name
Birth year
Place of residence
Seudin ZOLETIC
1973
Zivinice
Goran CATIC
1963
Jajce Sibenica
Hajrudin BEGIC
1963
Zivinice Gornje
Ejub HODZIC
1965
Prnjavor
Fadil SALKANOVIC
1953
Zivinice
Ibro SARIC
1955
Zivinice
Suvad POTUROVIC
1968
Prnjavor
Ismail JUKIC
1983
Sopna
Becir MUJIC
1961
Donji Obodnik
Elvedin OPARDIJA
1988
Donji Vakuf
Ismet SILJAK
1958
Bugoyno Sumeli
Resid OPARADJA
1962
Donji Vakuf
Sakib ARSLANOVIC
1973
Gradiska
Benjamin SILJAK
1985
Bugozna Sumenie
Ramiz HODZIC
1962
Zivinice
Milorad PRERAD
1987
Banja Luka
Zeljko MATIC
1964
Gradiska
Radoslav DELIC
unspecified
Banja Luka
Amer ALIBASIC
1987
Zivinice
Fehret MUSTAFICA
1968
Gradiska
Amir DELIBAJRIC
1989
Zivinice
Marco TAMINOZIJA
unspecified
G. Kladari
Jasmin HASANOVIC
1988
Zivinice
Enis ZAHIROVIC
1989
Zivinice
Goran VUJATOVIC
1966
Maqlajam
Predrag KAURIN
1972
Korenita Loznica
Miordag KAURIN
1966
Gradiska
Miordag GLISIC
1966
Banja Luka
Muammer KAHRIC
1990
Gradiska
Drago PERIC
1951
Gradiska
Sveto LAZIC
1962
unspecified
Tihomir DUVUNJAK
1962
unspecified
Sabahudin MAKIC
1967
Sopna
Full & Egal Universal Law Academy