Last Updated on November 1, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no.4940/10
Babasahib Baba oglu BABAYEV
against Azerbaijan
The European Court of Human Rights (Fifth Section), sitting on 5 March 2019 as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 11 January 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Babasahib Baba oglu Babayev, is an Azerbaijani national who was born in 1959 and lives in Baku. He was represented before the Court by Mr N. Ismayılov, a lawyer practising in Baku.
2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 3 July 1997 the Sabail District Executive Authority (“the SDEA”) issued an order in respect of the issuance of an occupancy permit (“yaşayış orderi”) to the applicant and his family members in respect of a flat located in the Binagadi district, another district of the city of Baku.
5. The flat in question had been unlawfully occupied by H.I. and his family members, who had been internally displaced persons (“IDPs”) since 1992.
6. The order of 3 July 1997 indicated that the occupancy permit should be issued after the IDPs residing in the flat had returned to their permanent place of residence.
7. On 3 September 1997 the SDEA issued an occupancy permit to the applicant and his family members in respect of the flat. However, they could not move into the flat as it was occupied by the IDPs. Nevertheless, according to the applicant, he paid for the flat’s housing and utilities services in full. In this connection, he submitted photocopies of three invoices, from which it appears that on 13 August 2007 and on 19 and 20 February 2008 he made three payments for various periods going back to 1997.
8. On unspecified dates the applicant and his family members were registered at the address of the flat in question.
9. On 31 July 2008 the Binagadi District Executive Authority (“the BDEA”) lodged a claim with the Binagadi District Court against the applicant and the SDEA, seeking for the applicant’s occupancy permit to be declared null and void on the grounds that it had been unlawfully issued.
10. On 29 August 2008 the Binagadi District Court upheld the claim, finding that the flat in question had not been “vacant” as required by Article 48 of the Housing Code (see paragraph 17 below) when the occupancy permit was issued.
11. On an unspecified date the applicant appealed to the Baku Court of Appeal arguing that, despite being occupied by the IDPs, the flat had been vacant in the legal sense because the IDPs had had no documented rights to occupy it. He further argued that the claim had been lodged outside of the statutory time-limit of three years as the occupancy permit had been issued to him eleven years before.
12. On 23 July 2009 the Baku Court of Appeal upheld the appeal and quashed the judgment of the first-instance court, finding that the occupancy permit had been lawfully issued and that, although the flat had been occupied, from a legal point of view it had been vacant as the IDPs had not had any rights to it.
13. The BDEA appealed against this judgment.
14. On 17 November 2009 the Supreme Court overturned the appellate court’s judgment, upholding the BDEA’s claim. The Supreme Court found that the occupancy permit had been unlawfully issued as pursuant to Article 48 of the Housing Code the flat should have been actually vacant, and not only from the legal point of view.
15. The Supreme Court further found that pursuant to Article 48 of the Housing Code the SDEA had not been competent to issue an occupancy permit in respect of a flat which had been located within the territory of the Binagadi district.
16. As regards the statutory time-limit, the Supreme Court found that the claimant had become aware of the issue only in 2008, at the time when the applicant had actually begun paying for the flat’s utility services. In such circumstances, applying Article 49 of the Housing Code and Article 377 of the Civil Code (see paragraphs 17 and 19 below), the Supreme Court held that the claim had been lodged within the statutory time-limit.
B. Relevant domestic law
17. The relevant provisions of the Housing Code of the Republic of Azerbaijan, effective at the material time, provided as follows:
Article 48
“Executive Committee of the Soviet of People’s Deputies of a district, city, district in a city, settlement or village shall issue a permit to citizens according to the decision on issuing a residential area in the State or public-housing fund and the permit is the only grounds for moving into the residential area.
A permit can only be issued in respect of a separate residential area which is vacant.
…”
Article 49
“An occupancy permit may be annulled on the basis of a court decision, in cases where … public officials have acted in breach of the law in deciding a question of issuing a residential area, or where there has been a breach of rules and conditions for issuing a residential area.
A claim on annulment of an occupancy permit may be lodged within a period of three years from the date of issuance of the permit.”
18. The relevant provisions of the old Civil Code, in force before 1 September 2000, provided as follows:
Article 73
“The general period for protection, through a claim, of the rights of the person whose rights have been breached (the claim period) … is three years.”
Article 78
“The running of the claim period begins on the date when the right to a claim arises; the right to a claim arises on the date when the person becomes aware or is ought to have become aware of the breach of its right. …”
19. Article 377 of the Civil Code, as in force from 1 September 2000, provides as follows, in the relevant part:
“377.1. The running of the claim period begins on the date when the person becomes aware or is ought to have become aware of the breach of its right. …”
20. Article 1100 of the Civil Code, as in force from 1 September 2000, provides as follows:
“Compensation for the damage suffered by an individual or legal entity as a result of the unlawful actions (or inactivity) of State bodies, local self-governing bodies or the officials of those bodies, including issuing of a document by State bodies or local self-governing bodies which are not in compliance with the laws or other legal acts, shall be borne by the Republic of Azerbaijan or the relevant municipality.”
COMPLAINT
21. The applicant complained under Article 1 of Protocol No. 1 to the Convention that he had been unlawfully deprived of his flat due to his occupancy permit to that flat having been declared null and void.
THE LAW
22. The applicant complained that he had been unlawfully deprived of his flat due to his occupancy permit to that flat having been declared null and void. He relied on Article 1 of Protocol No. 1 to the Convention which 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.”
A. The parties’ submissions
23. The Government referred to the findings of the domestic courts and submitted that the complaint is incompatible ratione materiae with the provisions of the Convention as the occupancy permit in question had been unlawful and thus, the applicant had not had “possession” within the meaning of Article 1 of Protocol No. 1.
24. The applicant disagreed, arguing that the occupancy permit had been lawful and that the domestic courts had misinterpreted and misapplied the domestic law. In particular, he argued that Article 48 of the Housing Code had not required that the occupancy permit be issued by the local executive authority on whose territory the relevant property had been located, and that the phrase “vacant” in Article 48 of the Housing Code had meant vacant from the legal point of view and not actually vacant. Lastly, he argued that the claim against him had been lodged outside of the statutory time-limit.
B. The Court’s assessment
25. The Court sees no need to examine the Government’s objection about the incompatibility ratione materiae because, even assuming that the flat in question constituted the applicant’s “possession”, the complaint in any event should be declared inadmissible for the following reasons.
26. For the purposes of the present complaint, as noted above, the Court will proceed on the assumption that, during the period before the occupancy permit was annulled, the applicant’s claim to the flat based on that permit constituted a “possession” within the meaning of Article 1 of Protocol No. 1 (compare and contrast Akimova v. Azerbaijan, no. 19853/03, §§ 40-41, 27 September 2007). The annulment of the occupancy permit thus constituted an interference with his property rights which amounted to a “deprivation” of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. The Court must therefore examine the justification for that interference in the light of the requirements of that provision.
27. 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 this 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).
28. Turning to the present case, the Court notes that the applicant’s occupancy permit to the flat was declared null and void by the domestic courts which, applying the relevant provisions of the Housing Code (see paragraph 17 above), found that the occupancy permit had been unlawfully issued (see paragraphs 14-16 above). As to the applicant’s arguments that the occupancy permit in question was lawful, that the domestic courts misinterpreted and misapplied the law and that the BDEA’s claim had been lodged outside of the statutory time-limit (see paragraph 24 above), the Court reiterates that its power to review compliance with domestic law is limited. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, even in those fields where the Convention “incorporates” the rules of that law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018). In view of the information before it the Court is satisfied that the nullification of the applicant’s occupancy permit to the property was in accordance with domestic law. It also accepts the Supreme Court’s reasoned finding that the BDEA’s claim had been lodged in compliance with the statutory time-limit (see paragraph 16 above).
29. The Court further finds that the legitimate aim behind the impugned measure was the protection of legality in the sphere of housing, which was in the public interest (compare Bubić v. Croatia, no. 23677/07, § 40, 9 July 2009).
30. In examining whether a fair balance was struck between the public interest and that of the applicant, the Court, firstly, notes that the IDPs had already been living in the flat for five years at the time when the occupancy permit was issued to the applicant. The Court further notes that the applicant was or should have been aware of this fact as according to the order of the SDEA dated 3 July 1997 the occupancy permit should have been issued to the applicant after the IDPs residing in that flat have returned to their permanent place of residence (see paragraph 6 above). Nevertheless, on 3 September 1997 the SDEA issued the occupancy permit despite the fact that the IDPs were still occupying the flat. In such a situation, while the permit formally granted the applicant occupancy rights to the flat, he was unable to take possession of the flat and exercise those rights in practical terms.
31. This situation had continued for approximately eleven years before the permit was eventually annulled. During this period, the applicant had never challenged the situation, for example by applying to the domestic courts for an enforceable eviction order against the IDPs occupying the flat (contrast, for example, Akimova, cited above, §§ 10-11, and Gulmammadova v. Azerbaijan, no. 38798/07, §§ 9-10, 22 April 2010). Eventually, this situation was brought to an end when, following a claim by the BDEA, the domestic courts found that the occupancy permit had been issued to the applicant unlawfully. Even assuming that the applicant suffered damage owing to the unlawful issuance of the permit, he could have sought compensation from the State (see paragraph 20 above), but he has not done so. In such circumstances, the Court finds that the annulment of the permit did not result in an excessive burden for the applicant.
32. The foregoing considerations are sufficient to enable the Court to conclude that, even if Article 1 of Protocol No. 1 applies in the present case, the interference complained of was not disproportionate or otherwise contrary to Article 1 of Protocol No. 1 to the Convention.
33. It follows that this complaint is manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 March 2019.
Milan Blaško André Potocki
Deputy Registrar President
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