Information Note on the Court’s case-law 256
Judgment 18.11.2021 [Section V]
Respect for home
Order by domestic courts for eviction of a mother and her daughter from their home and for its demolition on the ground that it was an unauthorised construction built on State-owned land assigned for petroleum operations: violation in case of eviction without proper review
Facts –In 2007 the applicant purchased a recently built house and lived there with her daughter. The sale and purchase contract were not approved by a notary and there was no entry in the State register. According to a certificate issued by the Social Development Department of the State Oil Company of the Azerbaijan Republic (“SOCAR”), the applicant lived in the house without proper registration.
In 2010 the Azneft Production Union (Azneft), a subsidiary of SOCAR, brought a court action against the applicant.
The demolition of the house and the applicant’s eviction from it were decided by the domestic courts on the ground that it was an unauthorised construction built on a State-owned plot of land which was assigned for petroleum operations. Therefore, the squatted land was to be returned to Azneft without any compensation being paid to the applicant.
The applicant’s appeals were unsuccessful.
By the date of the latest information provided to the Court, the applicant’s house had not yet been demolished and she continued to live there.
Law – Article 8:
The applicant had lived in the house with her daughter after purchasing it in 2007. Therefore, the house had been the applicant’s home within the meaning of Article 8.
The eviction order, not yet enforced, had been upheld by a final court decision and had become enforceable, and the applicant had no further legal recourse against it. Accordingly, there was an interference with the applicant’s right to respect for her home that was in accordance with the domestic law and pursued the legitimate aim of protecting the rights of Azneft.
It remained to be determined whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”.
While ordering the demolition of the house and the applicant’s eviction, the domestic courts had focused exclusively on the fact that it had been an unauthorised construction built on State-owned land. Even though the applicant had argued in her appeals that the house in question had been her only home and that she and her daughter would become homeless if they were evicted as they had no means to buy another house, the domestic courts had entirely ignored this point and had failed to weigh the competing interests against each other.
Furthermore, neither Azneft, in its claim brought before the domestic courts, nor the Government, in their submissions, had argued that the land had been needed urgently for petroleum operations or any other development purposes.
The Government had not argued that the applicant could have obtained a proper examination of the proportionality of her eviction by using other remedies under domestic law. Domestic law had provided for the possibility to request the courts to delay the enforcement of a final judgment or for the bailiffs to postpone the execution of a judgment. However, even if the applicant had used this avenue, all she could have obtained would have been a temporary reprieve from the effects of the eviction order rather than a comprehensive examination of its proportionality.
Finally, it had not been claimed either that there had been a procedure for considering alternative housing accessible to the applicant. Moreover, the applicant did not appear to belong to any specific category of persons who had had the right to apply for State-provided housing. The Government had not argued either that a temporary stay at a social shelter could be seen as a solution satisfying the proportionality requirement in the particular circumstances of the present case.
In sum, the applicant had not been afforded a procedure enabling her to obtain an adequate review of the proportionality of the interference, in the light of her personal circumstances.
Conclusion: violation in case of eviction without a proper review of its proportionality in the light of the applicant’s personal circumstances (unanimously).
Article 41: finding of a violation sufficient for non-pecuniary damage; claim for pecuniary damage dismissed
(See also Ivanova and Cherkezov v. Bulgaria, 46577/15, 21 April 2016, Legal summary; Bagdonavicius and Others v. Russia, 19841/06, 11 October 2016, Legal summary; Kaminskas v. Lithuania, 44817/18, 4 August 2020)