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GULMAMMADOVA v. AZERBAIJAN - 38798/07 [2010] ECHR 625 (22 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/625.html
Cite as:
[2010] ECHR 625
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FIRST
SECTION
CASE OF GULMAMMADOVA v.
AZERBAIJAN
(Application
no. 38798/07)
JUDGMENT
STRASBOURG
22 April 2010
This judgment is final but it
may be subject to editorial revision. This judgment will become final
in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Gulmammadova v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38798/07) against the Republic
of Azerbaijan lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Azerbaijani national,
Ms Sarvinaz Gulmammadova (“the applicant”), on
8 August 2007.
The
applicant was represented by Mr N. Ismayilov, a lawyer practising in
Baku. The Azerbaijani Government (“the Government”) were
represented by their Agent, Mr Ç. Asgarov.
The
applicant alleged, in particular, that the
failure to enforce the judgment of 20 April 1998 violated her right
to a fair trial and her property rights, as guaranteed by Article 6
of the Convention and Article 1 of Protocol No. 1 to the Convention.
On
14 October 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1961 and lives in Baku.
On 25 February 1998 the applicant
was issued with an occupancy voucher (yaşayış
orderi) for a flat in a recently
constructed residential building in Baku on the basis of an order of
the Baku City Executive Authority of 19 February 1998.
At
the same time, the applicant became aware that the flat had been
occupied by H. and his family, who were internally displaced persons
(“IDP”) from Lachin, a region under the occupation of the
Armenian military forces following the Armenian-Azerbaijan conflict
over Nagorno Karabakh.
According
to the applicant, despite numerous demands, H. refused to vacate the
flat, pointing out that he was an IDP and had no other place to live.
On
an unspecified date in 1998 the applicant lodged an action with the
Yasamal District Court asking the court to order the eviction of H.
and his family from the flat.
On
20 April 1998 the Yasamal District Court granted the applicant's
claim and ordered that H. and his family be evicted from the flat.
The court held that the applicant was the sole lawful tenant of the
flat on the basis of the occupancy voucher of 25 February 1998 and
therefore that the flat was being unlawfully occupied by H. and his
family.
No
appeals were filed against this judgment and, pursuant to the
domestic law in force at the material time, it became enforceable
within ten days of its delivery. However, H. and his family
refused to comply with the judgment and, despite the applicant's
complaints to various authorities, it was not enforced.
On
an unspecified date in 2006, the applicant and a group of other
persons who were in the same situation lodged an action with the
Yasamal District Court complaining that the Yasamal District
Department of Judicial Observers and Enforcement Officers (“the
Department of Enforcement Officers”) had not taken measures to
enforce the judgments.
On
27 December 2006 the Yasamal District Court dismissed that complaint
as unsubstantiated. The applicant appealed against this judgment. On
2 May 2007 the Court of Appeal quashed the first-instance court's
judgment and delivered a new judgment on the merits in the
applicant's favour. The Court of Appeal held that the Department of
Enforcement Officers' inaction had been unlawful and that the
judgment of 20 April 1998 should be enforced. Following a cassation
appeal of H. and other persons against this judgment, by a decision
of 18 September 2007, the Supreme Court quashed the Court of Appeal's
judgment and remitted the case to the latter court for a new
examination. It appears from the case file that the proceedings are
still pending before the Court of Appeal.
On
an unspecified date in 2008 the applicant lodged an action against
the State Committee on deals of Refugees and Internally Displaced
Persons, the Ministry of Finance and other authorities, seeking
compensation for non-enforcement of the judgment of 20 April 1998. On
7 May 2008 the Yasamal District Court dismissed the applicant's
claim as unsubstantiated. On 7 July 2008 the Baku Court of Appeal and
on 10 November 2008 the Supreme Court upheld the first-instance
court's judgment.
On
4 July 2007 H. lodged a request with the Yasamal District Court
asking for postponement of the execution of the judgment of 20 April
1998. He alleged that, as he was an IDP, he had no other place to
live but the flat in question.
On
10 July 2007 the Yasamal District Court granted H.'s request and
ordered the postponement of the execution of the judgment of 20 April
1998 until H. could move to one of the houses recently constructed
for temporary settlement of IDPs. The court relied on the
Presidential Order of 1 July 2004 on Approval of the State Programme
for Improvement of Living Conditions and Increase of Employment of
Refugees and Internally Displaced Persons (“the Presidential
Order of 1 July 2004”), according to which the relevant State
organs were instructed that until the return of the IDPs to their
native lands or until their temporary settlement in new houses, IDPs
should not be evicted from public apartments, flats, lands and other
premises, regardless of ownership, they had settled in between 1992
and 1998. Following a series of appeals by the applicant, on 2
September 2008 the Baku Court of Appeal quashed the first-instance
court's decision and remitted the case to the lower court for a new
examination.
It
appears from the case file that following a series of the proceedings
on 21 January 2009 the Baku Court of Appeal upheld the decision on
postponement of the execution of the judgment of 20 April 1998
and that the proceedings are still pending before the Supreme Court.
II. RELEVANT DOMESTIC LAW
A. Housing Code of 8 July 1982
18. Azerbaijani citizens
are entitled to obtain the right of use of apartments owned by the
State or other public bodies under the terms of a tenancy agreement
(Articles 10 and 28). A decision to grant an apartment is
implemented by way of issuing the citizen with an occupancy voucher
(yaşayış sahəsi orderi) from the local executive
authority (Article 48). The voucher serves as the sole legal basis
for taking possession of the apartment designated therein (Article
48) and for concluding a tenancy agreement (yaşayış
sahəsini icarə müqaviləsi) between the tenant and
the housing maintenance authority (Article 51). The right of use of
apartments is granted for an indefinite term (Article 10).
B. Law on Privatisation of Housing of 26 January 1993
Individuals
residing, pursuant to a tenancy agreement, in apartments owned by the
State and other public bodies have a right to transfer those
apartments into their private ownership (Article 1). Such
privatisation is voluntary and free of charge (Article 2). The right
to privatise a State-owned apartment free of charge may be exercised
only once (Article 7).
C. Law on Social Protection of Internally Displaced Persons and
Equivalent Individuals of 21 May 1999
IDPs are defined as “persons
displaced from their places of permanent residence in the territory
of the Republic of Azerbaijan to other places within the territory of
the country as a result of foreign military aggression, occupation of
certain territories or continuous gunfire” (Article 2).
The IDPs may be allowed to temporarily settle on their own only if
the rights and lawful interests of other persons are not infringed.
Otherwise, the relevant executive authority must ensure that the
internally displaced persons are resettled in other accommodation
(Article 5).
D. Regulations on Settlement of Internally Displaced
Persons in Residential, Administrative and Other Buildings Fit for
Residence or Feasible to make to Fit for Residence, adopted by the
Cabinet of Ministers, Resolution No. 200 of 24 December 1999
(“the IDP Settlement Regulations”)
Article
4 of the IDP Settlement Regulations provides as follows:
“In order to prevent the eviction of internally
displaced persons from dwellings in which they settled between 1992
and 1994, the legal force of the occupancy vouchers issued by the
relevant authorities to individual citizens in respect of those
dwellings shall be temporarily suspended...”
Regulations on Resettlement of Internally Displaced Persons in
Other Accommodation, adopted by the Cabinet of Ministers Resolution
No. 200 of 24 December 1999 (“the IDP Resettlement
Regulations”)
Article
4 of the IDP Resettlement Regulations provides as follows:
“In cases where the temporary settling of
internally displaced persons breaches the housing rights of other
individuals, the former must be provided with other suitable
accommodation”
Order of the President of the Republic of Azerbaijan of
1 July 2004 on Approval of the State Programme for
Improvement of Living Conditions and Increase of Employment of
Refugees and Internally Displaced Persons
In
the order, inter alia, the relevant state organs of the
Republic of Azerbaijan are instructed that until the return of the
IDPs to their native lands or until their temporary settlement in new
houses, IDPs should not be evicted from public apartments, flats,
land and other premises, regardless of ownership, they had settled in
between 1992 and 1998.
Code of Civil Procedure of 1 September 2000 (“the CCP”)
A
judge examining a civil case may, at the request of a party to the
case, decide to postpone or suspend the execution of the judgment or
change the manner of its execution because of the parties' property
situation or other circumstances (Article 231).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13
OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
Relying
on Article 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1 to the Convention, the applicant complained of the
non enforcement of the Yasamal District Court's judgment of 20
April 1998. Article 6 of the Convention reads as follows:
“1. In the determination of his civil rights
and obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...”
Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Article
1 of Protocol No. 1 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. Admissibility
1. The Court's competence ratione temporis
The Court observes that the judgment of 20 April 1998
which was in favour of the applicant had been delivered prior to 15
April 2002, the date of the Convention's entry into force in respect
of Azerbaijan. In this connection, the Court reiterates that it is
only competent to examine complaints of violations of the Convention
arising from events that have occurred after the Convention had
entered into force with respect to the High Contracting Party
concerned (see, for example, Kazimova v. Azerbaijan
(dec.), no. 40368/02, 6 March 2003). The Convention entered
into force with respect to Azerbaijan on 15 April 2002. However, the
Court notes that in the light of the authorities' continued failure
to execute the judgment of 20 April 1998, the latter remains still
unenforced. Therefore, there is a continuous situation and the Court
is thus competent to examine the part of the application relating to
the period after 15 April 2002 (see Ilić v. Serbia, no.
30132/04, § 54, 9 October 2007, and Sladkov
v. Russia, no. 13979/03, §
16, 18 December 2008).
2. Domestic remedies
The
Government argued that the applicant had failed to exhaust domestic
remedies. In particular, the Government alleged that the applicant
could have challenged the domestic authorities' failure to enforce
the judgment of 20 April 1998 before the domestic courts. In this
regard, the Government argued that the proceedings against the
Department of Enforcement Officers instituted by the applicant were
still pending before the Court of Appeal. Moreover the Government
advanced that the applicant had failed to exhaust domestic remedies,
because the proceedings concerning the postponement of the execution
of the judgment of 20 April 1998 were still pending before
the domestic courts.
The
applicant disagreed with the Government and maintained her
complaints.
The
Court reiterates that Article 35 § 1 of the Convention, which
sets out the rule on exhaustion of domestic remedies, provides for a
distribution of the burden of proof. It is incumbent on the
Government claiming non exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (see Akdivar
and Others v. Turkey, 16 September 1996, § 68, Reports of
Judgments and Decisions 1996 IV, and Selmouni v. France
[GC], no. 25803/94, § 76, ECHR 1999 V). The Court
further emphasises that the domestic remedies must be “effective”
in the sense either of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
has already occurred (see Kudła v. Poland [GC],
no. 30210/96, § 158, ECHR 2000 XI).
As
for the proceedings against the Department of Enforcement Officers,
the Court notes that the Government failed to provide any explanation
as to how those proceedings could have put an end to the continued
violation or as to the kind of redress which the applicant could have
been afforded as a result of these proceedings. In any event, the
Court observes that the applicant did not complain about any unlawful
action on the part of the competent authorities but, rather, about
the fact that the judgment was not enforced. Even if the domestic
courts in the pending proceedings had ruled in favour of the
applicant and decided that the failure to enforce the judgment of 20
April 1998 had been unlawful in domestic terms, such decision would
only have produced the same results, the only outcome being
confirmation of the judgment's legal force enabling the enforcement
officers to proceed with the enforcement proceedings (see, mutatis
mutandis, Tarverdiyev v. Azerbaijan, no. 33343/03,
§ 47, 26 July 2007 and Yavorivskaya
v. Russia (dec.), no. 34687/02, 13 May 2004).
Therefore, this part of the Government's objection is irrelevant and
should be dismissed.
As
for the proceedings concerning the postponement of the execution of
the judgment of 20 April 1998, the Court observes that those
proceedings were instituted at the request of H. and their purpose
was not to ensure or to accelerate the execution of the judgment, but
on the contrary to deprive it of its binding force for an indefinite
period. The Court notes that the Government failed to provide
any explanation as to how the proceedings concerning the postponement
of the execution of the judgment of 20 April 1998 could
have put an end to the continued situation of non execution or
as to the kind of redress which the applicant could have been
afforded as a result of these proceedings. In any event, the Court
observes that the applicant did not complain about the outcome of the
proceedings concerning the postponement of the execution of the
judgment in question but rather about the fact that the judgment was
not enforced. Even if the domestic courts had ruled in favour of the
applicant in the postponement proceedings and decided that the
execution of the judgment of 20 April 1998 should not be postponed,
such a decision would only have produced the same results, the only
outcome being confirmation of the judgment's enforceability enabling
the enforcement officers to proceed with the enforcement proceedings.
Therefore, the Government's objection is irrelevant to the present
complaint and should be dismissed.
3. Conclusion
The
Court considers that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
The
Government submitted that, due to the large number of IDPs in
Azerbaijan as a result of the Armenian-Azerbaijani conflict over
Nagorno Karabakh, there was a serious problem with housing for
IDPs in Azerbaijan. The Government noted that, despite the fact that
the judgment of 20 April 1998 had ordered the eviction of
H. from the flat, this judgment could not be enforced because there
was no other accommodation available for the IDPs settled in the flat
in question. The Government further argued that, due to the
postponement of the execution of the judgment of 20 April 1998,
it was no longer enforceable. Moreover, relying on different
provisions of the domestic law (see the Relevant Domestic Law above),
the Government alleged that IDPs should not be evicted from their
temporary places of residence until their return to their native
lands or their resettlement in other accommodation. The Government
also submitted that the solution of the IDPs' housing problem was one
of the priorities of the Government's policy and that the relevant
measures were being implemented in this respect.
The
applicant reiterated her complaints.
2. The Court's assessment
(a) Articles 6 and 13 of the Convention
The
Court reiterates that Article 6 § 1
secures to everyone the right to have any claim relating to his civil
rights and obligations brought before a court or tribunal; in this
way it embodies the “right to a court”, of which the
right of access, that is the right to institute proceedings before
courts in civil matters, constitutes one aspect. However, that right
would be illusory if a Contracting State's domestic legal system
allowed a final, binding judicial decision to remain inoperative to
the detriment of one party. It would be inconceivable that Article 6
§ 1 should describe in detail procedural guarantees afforded to
litigants – proceedings that are fair, public and expeditious –
without protecting the implementation of judicial decisions; to
construe Article 6 as being concerned exclusively with access to a
court and the conduct of proceedings would be likely to lead to
situations incompatible with the principle of the rule of law which
the Contracting States undertook to respect when they ratified the
Convention. Execution of a judgment given by any court must therefore
be regarded as an integral part of the “trial” for the
purposes of Article 6 (see Hornsby v. Greece,
19 March 1997, § 40, Reports of Judgments and
Decisions 1997 II).
The
Court notes that a delay in the execution of a
judgment may be justified in particular circumstances. But the delay
may not be such as to impair the essence of the right protected under
Article 6 § 1 of the Convention (see Burdov v. Russia,
no. 59498/00, § 35, ECHR 2002 III).
The Court also reiterates that State responsibility for enforcement
of a judgment against a private party extends no further than the
involvement of State bodies in the enforcement procedures. When the
authorities are obliged to act in order to enforce a judgment and
they fail to do so, their failure to take action can engage the
State's responsibility under Article 6 § 1 of the
Convention (see, mutatis mutandis,
Cebotari and Others v. Moldova,
nos. 37763/04, 37712/04, 35247/04, 35178/04 and 34350/04, §
39, 27 January 2009).
At
the outset, the Court observes that,
since the date of the Convention's entry into force with respect to
Azerbaijan on 15 April 2002, the Yasamal District Court's judgment of
20 April 1998 has remained unenforced for more than seven and a half
years, thus preventing the applicant from
benefiting from the success of the litigation which concerned her
property rights. Before 15 April 2002, the judgment had not
been enforced for approximately four years.
The
Court notes that the dispute in the present case was between private
parties. However, in so far as the judgment of 20 April 1998 ordered
the eviction of the IDPs from the flat to which the applicant had the
occupancy voucher, the situation at hand necessitated action by the
State in order to assist the applicant with the enforcement of the
judgment when the IDPs, as a private party, refused to comply with
it. In the instant case, it is undisputed by the parties that the
judgment of 20 April 1998 had been enforceable under the domestic law
at least until the delivery of the decision of 10 July 2007 by the
Yasamal District Court concerning the postponement of the enforcement
proceedings. It appears from the case file that, despite the fact
that the enforcement proceedings had been instituted ten days after
the delivery of the judgment of 20 April 1998, the Government had
taken no action in this connection and had not advanced any
justification for non enforcement of the judgment in question
during this period.
As
for the order on postponement of the execution, the Court notes that
it has already examined a similar case, in which the execution of the
judgment on eviction was postponed by the court which delivered the
judgment (see Akimova v. Azerbaijan, no. 19853/03, §§
45-50, 27 September 2007). The Court found
in that case that the order on the postponement of the judgment's
execution without any lawful basis and justification was in breach of
Article 1 of Protocol No. 1 to the Convention; the Court further
found that it was not necessary to examine the same complaint under
Article 6 in that case. Unlike that
case, in the present case the order on the postponement of the
execution of the judgment was taken approximately nine years after
the judgment became final and enforceable. The Court notes that in
the instant case the postponement of the
execution of the judgment was based on the Presidential Order of 1
July 2004. The Court notes, however, that this Presidential Order did
not contain any specific provisions on civil procedure vesting
the domestic courts with the competence to postpone indefinitely the
execution of judicial eviction orders, which is what happened in the
present case. Moreover, the Law of 21 May 1999
provided that if the settlement of the IDPs of their own accord
infringed the rights and lawful interests of other persons, the
domestic authorities must ensure the resettlement of the IDPs in
other accommodation. Accordingly, the relevant presidential order
appeared to be contradictory to the legislative act possessing
superior force; in such circumstances, a question arises as to the
lawfulness of the postponement order based on this Presidential
Order. However, from the standpoint of Article 6 of the Convention,
the Court is not concerned with the question whether such
postponement was “lawful” under the domestic law. The
Court reiterates that the
rights guaranteed by Article 6 of the Convention would be illusory if
the Contracting State's domestic legal system allowed a final,
binding judicial decision to remain inoperative to the detriment of
one party (see § 35 above). Moreover, a formal postponement of
execution of a final judgment for an indefinite period of time
without compelling reasons is incompatible with the principle of
legal certainty.
The
Court is prepared to accept that, in the instant case, the existence
of a large number of IDPs in Azerbaijan created certain difficulties
in the execution of the judgment of 20 April 1998. Nevertheless, the
judgment remained in force, but for many years no adequate measures
were taken by the authorities to comply with it. It has not been
shown that the authorities had continuously and diligently taken the
measures for the enforcement of the judgment in question. In such
circumstances the Court considers that no reasonable justification
was advanced by the Government for the significant delay in the
enforcement of the judgment.
The
Court considers that by failing to take necessary measures to comply
with the final judgment in the instant case, the authorities deprived
the provisions of Article 6 § 1 of the Convention of all useful
effect (see Burdov,
cited above, § 37). There has accordingly been a violation of
Article 6 § 1 of the Convention.
In
view of the above finding, the Court does not consider it
necessary to rule on the complaint under Article 13 of the Convention
because Article 6 is lex specialis in regard to this part of
the application (see, for example, Efendiyeva v. Azerbaijan,
no. 31556/03, § 59, 25 October 2007, and Jasiūnienė
v. Lithuania, no. 41510/98, § 32, 6 March 2003).
(b) Article 1 of Protocol No. 1 to the Convention
The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 if it is sufficiently established to be enforceable (see Stran
Greek Refineries and Stratis Andreadis v. Greece, 9 December
1994, § 59, Series A no. 301 B).
The
Court observes that in the instant case the applicant did not own the
flat in question, but had only tenancy rights to it pursuant to the
occupancy voucher issued by the local executive authority. However,
the Court has found that a claim to a flat based on such an occupancy
voucher constitutes a “possession” falling within the
ambit of Article 1 of Protocol No. 1 (see Akimova, cited
above, §§ 39-41). In the present case, the applicant's
tenancy right to the flat was recognised by the judgment of 20 April
1998. Moreover, the judgment ordered the eviction of the IDPs from
the flat, thus granting the applicant an enforceable claim to use the
flat in question.
The
judgment had become final and enforcement proceedings had been
instituted, giving the applicant a right to use the flat.
Subsequently, the proceedings concerning the postponement of the
execution of the judgment of 20 April 1998 were instituted (these
proceedings are pending). The Court finds that the impossibility for
the applicant to obtain the execution of this judgment for more than
seven and a half years constituted an interference with her right to
peaceful enjoyment of her possessions, as set out in the first
sentence of the first paragraph of Article 1 of Protocol No. 1. The
Court does not consider it necessary to examine whether such
interference was “lawful” (compare Akimova, cited
above, §§ 44 et seq.), as it finds that, in any
event, this interference was not justified for the following reasons.
As
noted in paragraph 40 above, the Court is prepared to accept that the
authorities may have faced difficulties in the enforcement of the
judgment in the applicant's favour. In particular, the situation at
hand called for balancing the applicant's right to peaceful enjoyment
of her possessions protected under Article 1 of Protocol No. 1 to the
Convention against IDPs' right to be provided with accommodation. In
other words, the domestic authorities had, on the one hand, to secure
the applicant's property rights and, on the other, to respect the
IDPs' rights. In such situations, a wide margin of appreciation
should be accorded to the respondent State (see, mutatis
mutandis, Radanović
v. Croatia, no. 9056/02, § 49, 21 December 2006).
However, the exercise of the State's discretion cannot entail
consequences which are at variance with Convention standards
(see Broniowski v. Poland [GC], no. 31443/96, § 182,
ECHR 2004 V).
In
this regard, the Court reiterates that a
situation as the one in the present case calls for a fair
distribution of the social and financial burden involved. This burden
cannot be placed on a particular social group or a private individual
alone, irrespective of how important the interests of the other group
or the community as a whole may be (see, mutatis
mutandis, Radanović,
cited above, § 49, and Hutten-Czapska v. Poland [GC],
no. 35014/97, § 225, ECHR 2006 VIII).
In
the present case, pursuant to the final domestic judgment in her
favour, the applicant had an enforceable right to use her flat.
According to the legislation enacted by the Parliament, this right
was contingent on the State authorities' duty to provide alternative
accommodation to the IDPs who occupied the flat. As mentioned above,
although the Government referred to some general policies implemented
in connection with the housing of IDPs and refugees, it has not been
established either in the domestic proceedings or before the Court
that any specific measures have been taken by the domestic
authorities in order to comply with their duty in the applicant's
specific case. In such circumstances, the failure to ensure the
execution of the judgment for several years, followed moreover by the
domestic courts' subsequent reliance on the Presidential Order of
1 July 2004 in order to formally postpone the execution,
resulted in a situation where the applicant was forced to bear an
excessive individual burden.
The
Court considers that, in the absence of any compensation for having
this excessive individual burden to be borne by the applicant, the
authorities failed to strike the requisite fair balance between the
general interest of the community in providing the IDPs with
temporary housing and the protection of the applicant's right to
peaceful enjoyment of her possessions.
There
has accordingly been a violation of Article 1 of Protocol No. 1 to
the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the 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.”
A. Damage
1. Pecuniary damage
The
applicant claimed 68,809 euros (EUR) in respect of pecuniary damage,
of which EUR 17,620 was for the loss of rent, and EUR 51,189 for the
alleged current market value of the flat. She calculated the amount
of the lost rent based on the information on the monthly market rent
of flats situated in that area of the city. This information was
obtained from an association specialising in these matters.
The
Government argued that the applicant could not claim any compensation
for the market value of the flat. The Government further noted that,
having applied to the same association, they had checked the grounds
for the remainder of the claim corresponding to the loss of rent
sustained as a result of the applicant's inability to use her flat
and indicated that the applicant might claim EUR 11,042 in respect of
pecuniary damage under this head. In this regard, the Government
submitted that the building in question was half-constructed and that
the applicant would have incurred certain maintenance expenses in
connection with this flat.
As
for the part of the claim relating to the market value of the flat,
the Court rejects this part as it does not find any causal link
between the violation found and this part of the claim.
As
for the part of the claim relating to the loss of rent, the Court
finds that there is a causal link between this part of the claim and
the violation found and that the applicant must have suffered
pecuniary damage as a result of her lack of control over her flat.
Having examined the parties' submissions and deciding on an equitable
basis, the Court considers that the basis for calculation of the
damage proposed by the Government is reasonable and awards the
applicant the sum of EUR 11,042 on account of the loss of rent, plus
any tax that may be chargeable on that amount.
2. Non-pecuniary damage
The
applicant claimed EUR 20,000 in respect of non pecuniary damage.
The
Government indicated their willingness to accept the applicant's
claim for non-pecuniary damage up to a maximum of EUR 1,000.
The
Court considers that the applicant must have sustained some
non-pecuniary damage as a result of the lengthy non-enforcement of
the final judgment in her favour. However, the amount claimed is
excessive. Making its assessment on an equitable basis, as required
by Article 41 of the Convention, the Court awards the applicant the
sum of EUR 4,800 under this head, plus any tax that may be chargeable
on this amount.
Moreover,
the Court considers that, in so far as the judgment of 20 April
1998 remains in force, the State's outstanding obligation to enforce
it cannot be disputed. Accordingly, the applicant is still entitled
to enforcement of that judgment. The Court reiterates that the most
appropriate form of redress in respect of a violation of Article 6 is
to ensure that the applicant as far as possible is put in the
position he would have been in had the requirements of Article 6 not
been disregarded (see Piersack v. Belgium (Article 50), 26
October 1984, § 12, Series A no. 85). Having regard to the
violation found, the Court finds that this principle also applies in
the present case. It therefore considers that the Government shall
secure, by appropriate means, the enforcement of the judgment of 20
April 1998.
B. Costs and expenses
The
applicant also claimed EUR 1,500 for the costs and expenses incurred
before the Court. This claim was not itemised or supported by any
documents.
The
Government considered the claim to be unjustified.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, having regard to the
fact that the applicant failed to produce any supporting documents,
the Court dismisses the claim for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there is no need to examine the
complaint under Article 13 of the Convention;
Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
Holds that the respondent State, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, shall secure, by appropriate
means, the enforcement of the domestic court's judgment of 20 April
1998;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 11,042
(eleven thousand forty two euros) in respect of pecuniary damage and
EUR 4,800 (four thousand eight hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable to the
applicant, to be converted into New Azerbaijani manats at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
