{"id":2092,"date":"2019-04-24T17:07:14","date_gmt":"2019-04-24T17:07:14","guid":{"rendered":"https:\/\/laweuro.com\/?p=2092"},"modified":"2019-04-24T17:58:54","modified_gmt":"2019-04-24T17:58:54","slug":"case-of-abdullayeva-v-azerbaijan","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=2092","title":{"rendered":"CASE OF ABDULLAYEVA v. AZERBAIJAN (European Court of Human Rights)"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF ABDULLAYEVA v. AZERBAIJAN
\n(Application no. 29674\/07)<\/em><\/p>\n

JUDGMENT
\nSTRASBOURG
\n14 March 2019<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Abdullayeva v. Azerbaijan,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n

Andr\u00e9 Potocki, President,
\nM\u0101rti\u0146\u0161Mits,
\nL\u04d9tifH\u00fcseynov, judges,
\nand Claudia Westerdiek, Section Registrar,<\/p>\n

Having deliberated in private on 12 February 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 29674\/07) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by an Azerbaijani national, Ms MehribanIsrafilgiziAbdullayeva (Mehriban\u0130srafilq\u0131z\u0131Abdullayeva – \u201cthe applicant\u201d), on 18\u00a0June 2007.<\/p>\n

2.\u00a0\u00a0The applicant was represented by Mr A. Wuppinger, a lawyer practising in Austria. The Azerbaijani Government (\u201cthe Government\u201d) were represented by their Agent, Mr \u00c7. Asgarov.<\/p>\n

3.\u00a0\u00a0The applicant alleged, in particular, that her rights under Article 1 of Protocol No. 1 to the Convention had been infringed by the State authorities.<\/p>\n

4.\u00a0\u00a0On 22 March 2012notice of the application was given to the Government.<\/p>\n

THE FACTS<\/strong><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n

5.\u00a0\u00a0The applicant was born in 1973 and currently lives in Vienna, Austria.<\/p>\n

6.\u00a0\u00a0In 2002 the applicant purchased a flat in Baku at a location near the Tezepir Mosque, with a living space of 17.6 sq. m.<\/p>\n

7.\u00a0\u00a0In 2004 the applicant carried out some renovation and construction works at the flat, as a result ofwhich the total area of the flat became 84\u00a0sq.\u00a0m, while the living space increased to 33.6 sq. m.<\/p>\n

8.\u00a0\u00a0On 7 March 2005 the head of Yasamal District Executive Authority issued an order recognising the fact that by building additional rooms (living rooms, hall, kitchen, mansard, and so on), the applicant had increased the total area of her flat to 84 sq. m.<\/p>\n

9.\u00a0\u00a0On 3 June 2005 the Baku City Department of Technical Inventory and Registration of Property Rights issued a certificate of title to the applicant certifying that her flat comprised a total area of 84 sq. m, 33.6 sq. m of which was living space and the remainderof which was auxiliary space.<\/p>\n

10.\u00a0\u00a0In July 2006 the Tezepir Mosque lodged a claim against the applicant with the Yasamal District Court, asking that the applicant be dispossessed of her title to the flat in exchange for monetary compensation, and be evicted from the flat. The Tezepir Mosque argued that the area where the applicant\u2019s flat was located was within the area of works required for the renovation and development of the mosque complex, and that the applicant and her family were the only residents who had refused to relinquish their flat in exchange for the compensation offered to them. The Tezepir Mosque was ready to pay 100,000 United States dollars (USD) in compensation.<\/p>\n

11.\u00a0\u00a0During the court hearing, the representative of the Tezepir Mosque argued that the market price of comparable flats was USD 500 per sq. m, and that the applicant was only entitled to be paid for the living space of her flat (33.6 sq. m). It appears that, in support of this claim, he submitted copies of some sale announcements published in unidentified issues of the local newspaper. The applicant argued that the total area of her flat was 84\u00a0sq. m, that the market value of comparable flats was USD\u00a03,000 per sq.\u00a0m, and that she would sell her flat only if she was paid USD\u00a0252,000.<\/p>\n

12.\u00a0\u00a0The Yasamal District Court noted that, under Article 157.9 of the Civil Code, private owners could be dispossessed of their title to property for State and public needs, in exchange for compensation. It also referred to an order by the Soviet of Ministers of the Azerbaijan Soviet Socialist Republic (\u201cthe Azerbaijan SSR\u201d) dated 22\u00a0May 1986 (hereinafter \u201cthe order of 22 May 1986\u201d), concerning renovation work on the land of the Tezepir Mosque and the relocation of people residing in that area to other accommodation. It also noted, without referring to any specific decisions, that subsequently the Baku City Executive Committee and its successor, the Baku City Executive Authority, had issued several other decisions on the continuation of the renovation work on that land and the \u201cgradual relocation\u201d of the area\u2019s residents.<\/p>\n

13.\u00a0\u00a0In deciding the amount of compensation payable, the court found that the area of the applicant\u2019s flatwas 33.6 sq. m. It also took note of the Tezepir Mosque\u2019s submissions that, despite the fact that the applicant had purchased a flat which was located on land already allocated to the Mosque and that she had subsequently carried out renovation and construction work in the flat \u201cwithout obtaining rights to the land\u201d and \u201cwithout authorisation\u201d, the Mosque had offered to pay her USD 100,000, an amount which exceeded the flat\u2019s market value. The court considered that the proposed amount of compensation was reasonable.<\/p>\n

14.\u00a0\u00a0By a judgment of 2 August 2006, the Yasamal District Court revoked the applicant\u2019s title to the flat, ordered the Tezepir Mosque to pay her the equivalent of USD 100,000 in Azerbaijani manats, and ordered the eviction of the applicant and her family from the flat. By a separate decision delivered on the same day, the Yasamal District Court also ordered the immediate execution of the judgment.<\/p>\n

15.\u00a0\u00a0On 27 September and 27 December 2006 the judgment was upheld by the Court of Appeal and the Supreme Court respectively.<\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n

16.\u00a0\u00a0Article 157.9 of the Civil Code of 1 September 2000 (\u201cthe Civil Code\u201d), as applicable at the material time, provided:<\/p>\n

\u201cPrivate property may only be alienated by the State if required for State or public needs in the cases permitted by law for the purposes of building roads or other communication lines, delimiting the State border or constructing defence facilities, by a decision of the relevant State authority, and subject to prior payment of compensation in an amount corresponding to its market value.\u201d<\/p>\n

17.\u00a0\u00a0Presidential Decree No. 386 of 25 August 2000 dealing with various aspects of the implementation of the 2000 Civil Code, as amended by Presidential Decree No. 78 of 17 June 2004 and as in force at the material time, designated the Cabinet of Ministers as \u201cthe relevant State authority\u201d referred to in Article 157.9 of the Civil Code.<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION<\/p>\n

18.\u00a0\u00a0The applicant complained that she had been unlawfully deprived of her flat. She relied on Article\u00a01 of Protocol No. 1to the Convention, which reads as follows:<\/p>\n

\u201cEvery 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.<\/p>\n

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.\u201d<\/p>\n

A.\u00a0\u00a0Admissibility<\/strong><\/p>\n

19.\u00a0\u00a0The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

B.\u00a0\u00a0Merits<\/strong><\/p>\n

1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n

20.\u00a0\u00a0The applicant did not submit any observations on the merits.<\/p>\n

21.\u00a0\u00a0The Government maintained that the applicant had been deprived of her flat in the public interest and in accordance with the conditions provided for by lawand that the interferencehad not imposed an excessive burden on the applicant, since the amount of compensation paid to her had been adequate at the material time.<\/p>\n

2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n

22.\u00a0\u00a0It is undisputed that the applicant owned the flat at the relevant time. The applicant submitted that the total area of her flat had been 84 sq. m, whereas the domestic courts had only calculated the compensation for the loss of her flat in respect of the available living space of 33.6 sq. m. In that connection, having regard to the certificate of title of 3 June 2005 (see paragraph 9 above), the Court notes that the flat,having a total area of 84\u00a0sq. m, constituted the applicant\u2019s \u201cpossession\u201d within the meaning of Article 1 of Protocol No. 1 to the Convention.<\/p>\n

23.\u00a0\u00a0The relevant case-law principles are summarised, in particular, in the Court\u2019s judgments in the cases of Akhverdiyev v. Azerbaijan (no. 76254\/11, \u00a7\u00a7 79-82, 29 January 2015) and Khalikova v. Azerbaijan (no. 42883\/11, \u00a7\u00a7\u00a0134-36, 22 October 2015).<\/p>\n

24.\u00a0\u00a0In the present case the applicant\u2019s title to the flat was revoked by a court decision.It is undisputed that this constituted an interference with the applicant\u2019s right to theflat which amounted to a \u201cdeprivation of possessions\u201d within the meaning of the second sentence of Article 1 of Protocol No. 1. The domestic courts relied on Article 157.9 of the Civil Code (see paragraph 16 above) as the legal basis for depriving the applicant of her flat. The Court notes that, indeed, after 1 September 2000, this provision of the Civil Code provided the applicable legal framework for expropriation of private property (see Akhverdiyev, cited above, \u00a7 95).<\/p>\n

25.\u00a0\u00a0The Court observes that there was no decision of the Cabinet of Ministersin respect of the alienation of the applicant\u2019s flat. Considering that Article 157.9 of the Civil Codeexplicitly refers to a decision by the relevant State authority, which is expressly designated as the Cabinet of Ministersby Presidential Decree no. 386 of 25 August 2000 (see paragraph 17 above), the Court finds that the requirement of Article 157.9 of the Civil Code concerning the relevant State authority has not been met.<\/p>\n

26.\u00a0\u00a0The Court further notes that,in accordance with the legal provision in question, private property may only be alienated for State or public needs for specific listed purposes, namely for the purposes of building roads or other communication lines, delimiting the State border or constructing defence facilities (see paragraph 16 above). However, the purpose of the alienation of the applicant\u2019s property in the present case wasthe renovation and development of the mosque complex, which did not fall within the exhaustive list of purposes stipulated in Article 157.9 of the Civil Code. Neither the domestic courts nor the Government addressed this matter.<\/p>\n

27.\u00a0\u00a0Lastly, the Court observes that the domestic courts referred to the order of the Soviet of Ministers of the Azerbaijan SSR of 22 May 1986 (see paragraph 12 above). However, it has not been shown that that order contained any specific provisions relating to the alienation of private property. The Court finds it difficult to see how that order, issued during the Soviet era before the independence of the Republic of Azerbaijan, could be considered as an instrument expropriating privately-owned property, given that the right to private ownership of property, in its present scope,emerged in the domestic law after the independence (see, mutatis mutandis,Sargsyan v. Azerbaijan [GC], no. 40167\/06, \u00a7 200 etseq., ECHR 2015). In any event, that order could not be considered as a lawful basis for expropriation after the currently applicable legal framework for expropriation was enacted by the Civil Code of 1 September 2000.<\/p>\n

28.\u00a0\u00a0The domestic courts also noted, without referring to any specific decisions, that subsequently the Baku City Executive Committee and the Baku City Executive Authority had issued several other decisions on the continuation of the renovation work on that land and the \u201cgradual relocation\u201d of the area\u2019s residents. However, the domestic courts failed to refer to any specific decisions that identified their dates, numbers, and content. In any event, reference to those decisions in the context of expropriation was irrelevant, as local executive authorities had no competence under domestic law to make decisions expropriating privately owned property (see Akhverdiyev, cited above, \u00a7 92, and Maharramov v.\u00a0Azerbaijan,no. 5046\/07, \u00a7 61, 30 March 2017).<\/p>\n

29.\u00a0\u00a0Therefore, the Court finds that it has not been demonstrated that the deprivation of the applicant\u2019s property had a lawful basis in the present case.<\/p>\n

30.\u00a0\u00a0For the above reasons, the interference in the present case was not carried out in compliance with \u201cconditions provided for by law\u201d. That conclusion makes it unnecessary to ascertain whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual\u2019s fundamental rights (see, for example, Maharramov,cited above, \u00a7 65).<\/p>\n

31.\u00a0\u00a0There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.<\/p>\n

II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

32.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIfthe Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n

33.\u00a0\u00a0The applicant stated in the application form her wish to obtain monetary compensation (albeit without specifying the amount) in relation to the violation of Article 1 of Protocol No. 1 to the Convention. It was pointed out in the Court\u2019s letter to the applicant\u2019s representative during the communication stage of the proceedings that an indication, at an earlier stage of proceedings, of the applicant\u2019s wishes concerning just satisfaction did not redress the failure to articulate a \u201cclaim\u201d for just satisfaction in the observations. In the light of the Court\u2019s general principles and the established practice, the applicant\u2019s indication of a wish for eventual monetary compensation as expressed at the initial non\u2011contentious stage of the procedure before the Court, dating back to 2007, does not amount to a \u201cclaim\u201d within the meaning of Rule 60 of the Rules of Court, read together with its Rule 71 \u00a7 1 in the context of the present case. No \u201cclaim\u201d for just satisfaction was made during the communication stage of the proceedings.<\/p>\n

34.\u00a0\u00a0The Court therefore makes no award in this regard and finds no exceptional circumstances which would warrant a different conclusion (see Nagmetov v. Russia [GC], no. 35589\/08, \u00a7\u00a7 76-78, 30 March 2017).<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/p>\n

1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n

2.\u00a0\u00a0Holdsthat there has been a violation of Article 1 of Protocol No. 1to the Convention.<\/p>\n

Done in English, and notified in writing on14 March 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Claudia Westerdiek\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Andr\u00e9 Potocki
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

Facebook<\/a>Twitter<\/a>LinkedIn<\/a>Pinterest<\/a><\/div>","protected":false},"excerpt":{"rendered":"

FIFTH SECTION CASE OF ABDULLAYEVA v. AZERBAIJAN (Application no. 29674\/07) JUDGMENT STRASBOURG 14 March 2019 This judgment is final but it may be subject to editorial revision. In the case of Abdullayeva v. Azerbaijan, The European Court of Human Rights…<\/p>\n

Read more →<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2092","post","type-post","status-publish","format-standard","hentry","category-available-in-english"],"_links":{"self":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts\/2092","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2092"}],"version-history":[{"count":2,"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts\/2092\/revisions"}],"predecessor-version":[{"id":2120,"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts\/2092\/revisions\/2120"}],"wp:attachment":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2092"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2092"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2092"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}