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SOLTANOV AND OTHERS v. AZERBAIJAN - 41177/08 [2011] ECHR 33 (13 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/33.html
Cite as:
[2011] ECHR 33
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FIRST
SECTION
CASE OF SOLTANOV AND OTHERS
v. AZERBAIJAN
(Applications
nos. 41177/08, 41224/08, 41226/08, 41245/08, 41393/08, 41408/08,
41424/08, 41688/08, 41690/08 and 43635/08)
JUDGMENT
STRASBOURG
13
January 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Soltanov and
Others v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a
committee composed of:
Nina
Vajić,
President,
Khanlar
Hajiyev,
Dean
Spielmann,
judges,
Having deliberated in private on
9 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in ten applications 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 Azerbaijani nationals:
Mr Hajibala
Soltanov, born in 1957, application no. 41177/08, lodged on 28 July
2008
Mr Akif Islamov,
born in 1958, application no. 41224/08, lodged on 28 July 2008
Mr Vakil Verdiyev,
born in 1956, application no. 41226/08, lodged on 28 July 2008
Mr Bayram Isayev,
born in 1959, application no. 41245/08, lodged on 30 July 2008
Mr Figani Abbasov,
born in 1953, application no. 41393/08, lodged on 30 July 2008
Mrs Sevda
Afandiyeva, born in 1955, application no. 41408/08, lodged on
28 July 2008
Mrs Rahila Ahmadova,
born in 1953, application no. 41424/08, lodged on 28 July 2008
Mr Vagif Karimov,
born in 1941, application no. 41688/08, lodged on 4 August 2008
Mr Alkhas Gozalov,
born in 1946, application no. 41690/08, lodged on 4 August
2008, and
Mr Ogtay Maharramov,
born in 1959, application no. 43635/08, lodged on 4 August 2008
The
applicants were represented by Mr A. Mustafayev, a lawyer practising
in Azerbaijan. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr Ç. Asgarov.
On
12 March 2010 the President of the First Section decided to give
notice of the application to the Government. In accordance with
Protocol No. 14, the applications were allocated to a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
All
of the applicants have either tenancy rights to their flats on the
basis of occupancy vouchers (yaşayış sahəsi
orderi) issued by the relevant executive authorities or ownership
rights to them on the basis of an ownership certificate issued by the
competent domestic authority (see Table I).
In
all ten cases, the applicants' flats were unlawfully occupied by
internally displaced persons (“IDPs”)
from different regions of Azerbaijan under occupation of Armenian
military forces following the Armenian Azerbaijani conflict over
Nagorno-Karabakh.
The
applicants lodged separate civil actions before the domestic courts
seeking the eviction of the IDPs from their flats.
On
the dates indicated in the Appendix (Table I), the applicants' claims
were granted by different domestic courts which ordered the eviction
of the IDPs from the flats.
The
respective judgments became final and enforceable. However the IDP
families refused to comply with the judgments and despite the
applicants' complaints to various authorities, the judgments were not
enforced.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law is summarised in Gulmammadova v. Azerbaijan
(no. 38798/07, §§ 18-24, 22 April 2010).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
Relying
on Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1 to the Convention, the applicants complained about the
non enforcement of the judgments in their favour. Article 6 §
1 of the Convention reads, as far as relevant, as follows:
“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.”
Pursuant
to Rule 42 § 1 of the Rules of the Court, the Court decides to
join the applications given their common factual and legal
background.
Admissibility
1. The Court's competence rationae
temporis in application no. 43635/08
The
Court observes that in the case of Mr Ogtay Maharramov (application
no. 43635/08), the domestic judgment in the applicant's favour
was delivered prior to 15 April 2002, the date of the Convention's
entry into force in respect of Azerbaijan.
The
Court notes that in the light of the authorities' continued failure
to execute the judgment in question, it remains still unenforced.
There is a continuous situation and the Court is therefore competent
to examine the part of the application relating to the period after
15 April 2002 (see Gulmammadova,
cited above, § 26).
2. Conclusion
The
Court further considers that the applications are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention or inadmissible on any other grounds. They must therefore
be declared admissible.
B. Merits
The
Court points out that the factual circumstances of theses cases are
similar and the complaints and legal issues raised are identical to
those in the Gulmammadova case (cited above). The Court
reiterates that it has found violations of Article 6 § 1 and
Article 1 of Protocol No. 1 in that case.
Having
examined all the material in its possession, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in respect of the
present applications.
In
particular, the Court is prepared to accept that, in these cases, the
existence of a large number of IDPs in Azerbaijan created certain
difficulties in the execution of the judgments in the applicants'
favour. Nevertheless, the judgments remained in force, but no
adequate measures were taken by the authorities to comply with them.
It has not been shown that the authorities had continuously and
diligently taken the measures for the enforcement of the judgments 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 judgments.
Concerning
the applicants' submissions about the alleged violation of their
property rights, 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
of balancing the applicants' right to peaceful enjoyment of their
possessions protected under Article 1 of Protocol No. 1 to the
Convention against IDPs' right to be provided with accommodation. In
such circumstances, the failure to ensure the execution of the
judgments for considerable periods of time resulted in a situation
where the applicants were 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
applicants, 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 applicants'
right to peaceful enjoyment of their possessions (see Gulmammadova,
cited above, §§ 43-50).
There
has accordingly been violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
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 applications (see, for example,
Efendiyeva v. Azerbaijan, no. 31556/03, § 59,
25 October 2007).
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
applicants claimed different sums indicated in the Appendix (Table
II) in respect of pecuniary damage. The amounts claimed covered the
loss of rent from the dates of delivery to the applicants of the
relevant occupancy vouchers or ownership certificates. In support of
their claims, the applicants submitted a local company's estimates on
the rent prices for the flats of a similar condition.
The
Government submitted that the applicants failed to justify their
claims.
The
Court considers that the applicants must have suffered pecuniary
damage as a result of their lack of control over their flats and
finds that there is a causal link between the violations found and
the damage claimed in respect of the lost rent (compare Radanović
v. Croatia, no. 9056/02, §§ 62 66,
21 December 2006). However, the Court considers that the damage
should be calculated starting from the date of delivery of each
judgment and not from the dates of delivery of the occupancy vouchers
or ownership certificates as claimed by the applicants.
Having
examined the parties' submissions, the Court will take as a reference
point the amount set forth in the local company's assessment
submitted by the applicants.
In
making its assessment, the Court takes into account the fact that the
applicants would inevitably have experienced certain delays in
finding suitable tenants and would have incurred certain maintenance
expenses in connection with the flats. They would have also been
subjected to taxation (see Prodan v. Moldova, no. 49806/99,
§ 74, ECHR 2004 III (extracts); Popov v. Moldova
(no. 1) (just satisfaction), no. 74153/01, § 13,
17 January 2006; and Radanović, cited above, §
65). Having regard to the foregoing, and deciding on an equitable
basis, the Court awards 2,500 euros (EUR) to each of the
applicants in applications nos. 41177/08; 41224/08; 41226/08;
41245/08; 41393/08; 41408/08; 41424/08; 41688/08 and 41690/08 and EUR
7,000 to the applicant in the application no. 43635/08, on
account of pecuniary damage for lost rent.
2. Non-pecuniary damage
Each
applicant claimed EUR 3,000 in respect of non-pecuniary damage.
The
Government indicated their willingness to accept the applicants'
claims for non-pecuniary damage up to a maximum of EUR 1,000 each.
The
Court considers that the applicants must have sustained some
non-pecuniary damage as a result of the lengthy non-enforcement of
the final judgment in their favour. However, the amounts claimed in
most of the cases are excessive. Making its assessment on an
equitable basis, as required by Article 41 of the Convention, the
Court awards the following amounts under this head, plus any tax that
may be chargeable on these amounts:
EUR
1,200 to each of the applicants in applications nos. 41177/08;
41224/08; 41226/08; 41245/08; 41393/08; 41408/08; 41424/08; 41688/08
and 41690/08; and
EUR
3,000 to Mr Ogtay Maharramov (application no. 41408/08).
Moreover,
the Court considers that, in so far as the judgments remain in force,
the State's outstanding obligation to enforce them cannot be
disputed. Accordingly, the applicants are still entitled to
enforcement of those judgments. The Court reiterates that the most
appropriate form of redress in respect of a violation of Article 6,
is to ensure that the applicants as far as possible are put in the
position they 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 cases. It therefore considers that the Government shall
secure, by appropriate means, the enforcement of the judgments in the
applicants' favour.
B. Costs and expenses
The
applicants also claimed different sums indicated in the Appendix
(Table II) for the costs and expenses incurred before the domestic
courts and the Court.
The
Government considered the claims to be unjustified.
The
Court notes that all the applicants were represented by the same
lawyer (Mr M. Mustafayev) in the proceedings before the Court.
Having regard to the services stipulated in the relevant contracts
between the applicants and Mr Mustafayev and the services
actually rendered, the Court considers that the amounts claimed do
not correspond to the legal assistance that was actually provided and
was necessary in the present cases. The Court further notes the
similarity of the complaints and legal arguments submitted in all
cases and observes that substantial parts of the lawyer's submissions
in all cases were either identical or very similar. In view of the
above considerations, the Court awards the total amount of EUR 2,000
to all applicants jointly in respect of the legal services rendered
by Mr Mustafayev.
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
Decides to join the applications;
Declares the applications admissible;
Holds that there has been a violation of
Article 6 § 1 of the Convention;
Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
Holds that there is no need to examine the
complaint under Article 13 of the Convention;
Holds that the respondent State, within three
months, shall secure, by appropriate means, the enforcement of the
domestic courts' judgments in the applicants' favour;
Holds
(a) that
the respondent State is to pay the applicants, within three months,
the following amounts to be converted into New Azerbaijani manats at
the rate applicable at the date of settlement:
(i) in
respect of damage:
Mr
Hajibala Soltanov (application no. 41177/08) – EUR 2,500
(two thousand five hundred euros) in respect of pecuniary
damage and EUR 1,200 (one thousand two hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
Mr
Akif Islamov (application no. 41224/08) – EUR 2,500
(two thousand five hundred euros) in respect of pecuniary
damage and EUR 1,200 (one thousand two hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
Mr
Vakil Verdiyev (application no. 41226/08) – EUR 2,500
(two thousand five hundred euros) in respect of pecuniary
damage and EUR 1,200 (one thousand two hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
Mr
Bayram Isayev (application no. 41245/08) – EUR 2,500
(two thousand five hundred euros) in respect of pecuniary
damage and EUR 1,200 (one thousand two hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
Mr
Figani Abbasov (application no. 41393/08) – EUR 2,500
(two thousand five hundred euros) in respect of pecuniary
damage and EUR 1,200 (one thousand two hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
Mrs
Sevda Afandiyeva (application no. 41408/08) – EUR 2,500 (two
thousand five hundred euros) in respect of pecuniary damage and EUR
1,200 (one thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
Mrs
Rahila Ahmadova (application no. 41424/08) – EUR 2,500
(two thousand five hundred euros) in respect of pecuniary
damage and EUR 1,200 (one thousand two hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
Mr
Vagif Karimov (application no. 41688/08) – EUR 2,500
(two thousand five hundred euros) in respect of pecuniary
damage and EUR 1,200 (one thousand two hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
Mr
Alkhas Gozalov (application no. 41690/08) – EUR 2,500
(two thousand five hundred euros) in respect of pecuniary
damage and EUR 1,200 (one thousand two hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage; and
Mr
Ogtay Maharramov (application no. 43635/08) – EUR 7,000 (seven
thousand euros) in respect of pecuniary damage and EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) in
respect of costs and expenses, EUR 2,000 (two thousand euros),
jointly for all applicants, plus any tax that may be chargeable to
the applicants, to be paid into the applicants' representative's bank
account;
(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 applicants'
claims for just satisfaction.
Done in English, and notified in writing on 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina
Vajić
Deputy Registrar President
APPENDIX
Table I
|
Application no.
|
Applicant's
name
|
Document
confirming the applicant's property rights
|
Date of
delivery of the domestic judgment
|
Date of
lodging of the application with the Court
|
|
41177/08
|
Hajibala
Soltanov
|
The
occupancy voucher of 21 October 1996
|
The
Sumgayit Court of Appeal's judgment of 30 December 2008
|
28 July
2008
|
|
41224/08
|
Akif
Islamov
|
The
ownership certificate of 30 October 2007
|
The
Sumgayit Court of Appeal's judgment of 30 December 2008
|
28 July
2008
|
|
41226/08
|
Vakil
Verdiyev
|
The
ownership certificate of 29 April 2005
|
The
Sumgayit Court of Appeal's judgment of 30 December 2008
|
28 July
2008
|
|
41245/08
|
Bayram
Isayev
|
The
occupancy voucher of 29 April 1994
|
The
Sumgayit Court of Appeal's judgment of 24 December 2008
|
30 July
2008
|
|
41393/08
|
Figani
Abbasov
|
The
occupancy voucher of 9 December 1993
|
The
Sumgayit Court of Appeal's judgment of 30 December 2008
|
30 July
2008
|
|
41408/08
|
Sevda
Afandiyeva
|
The
ownership certificate of 27 March 1998
|
The
Sumgayit Court of Appeal's judgment of 30 December 2008
|
28 July
2008
|
|
41424/08
|
Rahila
Ahmadova
|
The
ownership certificate of 7 December 2007
|
The
Sumgayit Court of Appeal's judgment of 30 December 2008
|
28 July
20008
|
|
41688/08
|
Vagif
Karimov
|
The
occupancy voucher of 12 April 1996
|
The
Sumgayit Court of Appeal's judgment of 30 December 2008
|
4 August
2008
|
|
41690/08
|
Alkhas
Gozalov
|
The
ownership certificate of 22 November 1996
|
The
Sumgayit Court of Appeal's judgment of 13 January 2009
|
4 August
2008
|
|
43635/08
|
Ogtay
Maharramov
|
The
ownership certificate of 6 June 1997
|
The
Sumgayit City Court's judgment of 23 April 1998
|
4 August
2008
|
Table II
|
Application
no.
|
Applicant's
name
|
Claim for
pecuniary damage (EUR)
|
Claim for
costs and expenses
|
|
41177/08
|
Hajibala
Soltanov
|
61,200
|
1,450
|
|
41224/08
|
Akif
Islamov
|
65,280
|
1,600
|
|
41226/08
|
Vakil
Verdiyev
|
61,200
|
1,500
|
|
41245/08
|
Bayram
Isayev
|
57,120
|
1,450
|
|
41393/08
|
Figani
Abbasov
|
53,040
|
1,450
|
|
41408/08
|
Sevda
Afandiyeva
|
51,000
|
1,450
|
|
41424/08
|
Rahila
Ahmadova
|
65,280
|
1,650
|
|
41688/08
|
Vagif
Karimov
|
51,000
|
1,520
|
|
41690/08
|
Alkhas
Gozalov
|
51,000
|
1,450
|
|
43635/08
|
Ogtay
Maharramov
|
57,120
|
1,000
|
