European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF MAHARRAMOV v. AZERBAIJAN

 

(Application no. 5046/07)

 

 

 

 

 

 

 

 

 

JUDGMENT

(Merits)

 

 

 

 

STRASBOURG

 

 

30 March 2017

 

 

 

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 Maharramov v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Erik Møse,
          André Potocki,
          Yonko Grozev,
          Síofra O’Leary,
          Carlo Ranzoni,
          Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 7 March 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 5046/07) 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, Mr Ilgar Hilal oglu Maharramov (İlqar Hilal oğlu Məhərrəmov - “the applicant”), on 11 January 2007.

2.  The applicant was represented by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3.  The applicant alleged, in particular, that he had been deprived of his property in breach of the requirements of Article 1 of Protocol No. 1 to the Convention.

4.  On 30 November 2009 the corresponding part of the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1966 and lives in Ganja.

6.  The applicant had ownership rights to a shop at 32 Attarlar Street in Ganja. According to the certificate “on the sale of State property to legal entities or individuals” issued on 30 October 2003 by the Ministry of Economic Development’s Department of Management and Privatisation of State Property, the total area of the property was 78.3 sq. m and it had been purchased by the applicant from the State for 1,309,000 old Azerbaijani manats (AZM) (equivalent to 261.8 New Azerbaijani manats (AZN) or approximately 230 euros).

7.  According to the property’s “technical passport” issued by the Ministry of Economic Development’s Property Inventory Bureau on 5 September 2003, the shop had originally been constructed in 1972, was located on a plot of land of 84 sq. m, had a total surface area of 78.3 sq. m and was 3.5 m high. The shop had concrete foundations, the external and internal walls were made of metal and wood, while the roof was made of metal and covered with slate tiles. The property was classified as a non-residential building used for wholesale or retail trade purposes. The document further stated that the plot of land on which the shop was located had been allocated on the basis of relevant documents. No other documents concerning the ownership of the land have been submitted by the parties.

8.  The applicant paid land tax for 2004 of AZM 19,400 for the plot underneath the shop.

9.  In 2004 the Ganja City Executive Authority (“the GCEA”) decided to renovate and widen Attarlar and Nizami Streets in accordance with the city’s planning scheme because the streets were not wide enough for the pedestrian and car traffic.

10.  According to the applicant, in November 2004 GCEA officials asked him verbally to vacate the shop in connection with the above decision. The applicant refused and brought a legal action asking the court to order the GCEA to stop its allegedly unlawful activities.

11.  According to the applicant, in December 2004 the GCEA destroyed the shop. According to the Government, the shop, being a transportable metal construction, was lifted away by crane and moved to an unspecified part of the city.

12.  On an unspecified date in December 2004 the applicant asked Aysel-M, a private valuation firm, to assess the shop’s market value. According to Aysel-M’s expert report, dated 13 December 2004, the market value at the time was AZM 588,000,000, or 120,000 US dollars (USD) (there is no copy of the report in the case file).

13.  The applicant supplemented his court action against the GCEA with additional claims, asking for compensation of AZM 588,000,000 for the shop, AZM 99,000 for an unspecified “State fee” and AZM 490,000 for Aysel-M’s fee for the report.

14.  In its submissions to the court, the GCEA as the respondent stated that a number of “old shops and other retail facilities” on Attarlar and Nizami Streets had been removed owing to the urgent need to widen the streets in order to accommodate the number of pedestrians and cars. The respondent argued that the applicant’s shop had not been destroyed but, being a metal construction, had been removed by crane to another, unspecified location in the city. The applicant had been offered another plot of land in the city to continue operating his shop but he had refused. The applicant had not owned the original plot of land. The respondent argued that the compensation claimed by the applicant was excessive, taking into account the price he had paid the State for it in 2003.

15.  Following the respondent’s submissions concerning the alleged excessiveness of the compensation claim, by an interim decision of 15 July 2005 the Khojavand District Court requested a new valuation by a State expert.

16.  On an unspecified date the State expert refused to issue an opinion, noting that the shop at 32 Attarlar Street no longer existed and that therefore it was technically impossible to examine it and assess its market value. Accordingly, the interim decision of 15 July 2005 remained unexecuted.

17.  On 6 October 2005 the Khojavand District Court dismissed the applicant’s legal action without citing any provisions of the applicable domestic law. In its reasoning the court accepted the GCEA’s explanation that the shop in question had been removed in accordance with town-planning policy. Being a metal construction it had been possible to move it in one piece. It had not been destroyed but simply transported to another location. The court also accepted that the applicant had been offered a new plot of land by the GCEA but had refused it. It further decided to reject the applicant’s compensation claim based on Aysel-M’s report, without providing any reasons. However, the court ordered the GCEA to allocate the applicant a plot of land in Ganja equivalent in size to the shop in question.

18.  The applicant appealed, reiterating that his shop had been unlawfully destroyed and asking for compensation.

19.  On 23 January 2006 the Court of Appeal dismissed the applicant’s appeal, upholding the first-instance court’s assessment. The appellate judgment contained no references to applicable domestic legal provisions.

20.  Following a further appeal by the applicant, on 14 July 2006 the Supreme Court upheld the Court of Appeal’s judgment.

21.  No information is available in the case file as to whether a new land plot was allocated to the applicant or as to its location or any other details.

II.  RELEVANT DOMESTIC LAW

A.  The 1995 Constitution

22.  Article 13 § I of the Constitution provides as follows:

“Property in the Republic of Azerbaijan is inviolable and is protected by the State.”

23.  Article 29 § IV of the Constitution provides as follows:

“No one shall be deprived of his or her property without a court decision. Total confiscation of property is not permitted. Alienation of the property for State needs may be permitted only subject to prior and fair compensation corresponding to its value.”

B.  The 1999 Land Code

24.  Article 4.4 of the Land Code provides as follows:

“4.  Unless provided for otherwise by legislation, a plot of land and the corresponding rights over it, as well as immovable property connected to the plot of land (soil, bodies of water, forests, perennial plantings, buildings, constructions and other such objects), participate in [market] circulation in an inseparable manner.”

25.  Article 88 of the Land Code, concerning the specifics of obtaining property rights over a plot of land in connection with the transfer of rights to the immovable property located on that land, as in force at the material time, provided as follows:

“1.  Upon transfer of the ownership right over a building, construction or enterprise (facility) to another person, the ownership right over the plot of land on which they are situated is also transferred to the same person in accordance with this Article, in the same dimensions as when it belonged to the previous owner ... and subject to the same conditions and restrictions on its use.

2.  Upon the sale of a State-owned building, construction or enterprise (facility) into private ownership under the procedure specified by legislation, the plot of land on which that immovable property is situated is also sold [into private ownership] or leased with the right of purchase.”

C.  The 2000 Civil Code, as in force at the material time, and the relevant presidential decree on its implementation

26.  Article 157.9 of the Civil Code, as applicable between 30 June 2004 and 31 August 2007, provided:

“Private 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 [the Cabinet of Ministers], and subject to prior payment of compensation in an amount corresponding to its market value.”

27.  Presidential 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 “the relevant State authority” referred to in Article 157.9 of the Civil Code.

28.  Article 203.3 of the Civil Code provides as follows:

“203.3. Forcible deprivation of property is not permitted, except for the following measures taken on grounds provided for by law:

203.3.1. forfeiture of property for liabilities;

203.3.2. alienation of property which, by law, cannot belong to a given person;

203.3.3. alienation of immovable property in connection with the purchase of land;

203.3.4. purchase of badly maintained cultural assets;

203.3.5. requisition [alienation of property in connection with natural disasters, technological accidents, epidemics and other emergencies];

203.3.6. confiscation.

...

203.5. The alienation of property owned by individuals and legal entities for State or public needs shall be carried out in accordance with paragraph IV of Article 29 of the Constitution of the Republic of Azerbaijan.”

29.  Article 207 of the Civil Code provides as follows:

“Where it is impossible to alienate a plot of land for State needs without terminating ownership rights over the buildings, structures or other immovable property located on the land, the State may purchase the property.”

30.  Article 243.1 of the Civil Code provides that the owner of immovable property located on a plot of land owned by a third party has the right to use the part of the plot on which his or her property is located.

D.  Law on the State Register of Immovable Property, dated 29 June 2004

31.  Article 1 of the Law defined “immovable property” as follows:

“1.0.1.  Immovable property comprises plots of land, rights over which are subject to State registration, subsurface areas, separate water reservoirs (bodies of water) and all items which are firmly fixed to the land and whose location cannot be changed without disproportionate (excessive) damage, including buildings, constructions, residential and non-residential areas, private residential and country houses, forests and perennial plantings, and property complexes; ...”

32.  According to Article 10 of the Law, an individual applying for State registration of immovable property must present, inter alia, the following documents together with his application: the plan and dimensions of the plot of land and the “technical passport” of buildings or other immovable property situated on the land.

E.  Law on the Privatisation of State Property, dated 16 May 2000

33.  Article 29.6 of the Law provides:

“The owners of privatised facilities may purchase or lease with the right of purchase the plots of land on which those facilities are situated, in accordance with the procedure specified by the relevant legislation, as well as use those plots of land permanently or temporarily, pursuant to a relevant decision (agreement). ...”

F.  The Second State Programme on the Privatisation of State Property in the Republic of Azerbaijan, approved by Presidential Decree No. 383 dated 10 August 2000

34.  Article 9 of the Second State Programme regulated the sale of State-owned land under privatised State-owned property or property built on it by private individuals. In particular, Article 9.1, as in force at the material time, provided as follows:

“9.1.  Plots of land underneath privatised State-owned enterprises or facilities or underneath facilities constructed by private individuals or non-governmental legal entities, shall be sold by the State Commission on Property Issues to the owners of those enterprises or facilities in accordance with the relevant legislation. ...”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

35.  The applicant complained that the interference with his property had been unlawful and unjustified. 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.  Admissibility

36.  The Government argued that the applicant had abused his right of application because he had misrepresented the facts. In particular, the Government noted that the applicant had stated that he had property rights to the plot of land whereas he had not had such rights. He had also submitted that his shop had been demolished whereas it had simply been relocated without any damage. Furthermore, the Government noted that the applicant had only paid AZM 1,309,000 (approximately USD 300) to purchase the shop in October 2003, but that in his applications to the domestic courts and the Court he had claimed that its market value was AZM 588,000,000 (approximately USD 120,000) in December 2004, representing a manifestly unreasonable 400-fold increase in value within the space of a year. In the Government’s view, such statements were “an obvious effort [by the applicant] to mislead the Court in order to enrich himself at the expense of the Court’s decision”.

37.  The applicant disagreed.

38.  The Court reiterates that an application may be rejected as an abuse of the right of application if it was knowingly based on untrue facts with the intention of misleading the Court (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012, and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies where new, significant developments occur during the proceedings before the Court and where - despite being expressly required to do so by Rule 47 § 6 of the Rules of Court - the applicant fails to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross, cited above, § 28, with further references).

39.  Turning to the present case, the Court does not find that the application is based on knowingly untrue facts and notes that the impugned submissions by the applicant relate to various legal and factual issues disputed by the parties, which concern the merits of the applicant’s claims at the domestic level and his complaint before the Court. The Court cannot discern any intention on the part of the applicant to mislead it. Accordingly, the Government’s objection must be rejected.

40.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

(a)  The applicant

41.  The applicant submitted that his shop had been located in a building which had been immovable property under domestic law and, as such, could not be relocated without being destroyed or damaged. The building had not been a free-standing metal construction. The “technical passport” of the building stated that it was fixed to the ground on concrete foundations.

42.  The applicant further submitted that he had property rights to the plot of land under the shop. By virtue of owning the building on that land, under domestic law (see paragraphs 25, 33 and 34 above) he had enjoyed the right to use the land and the right to transfer it into his ownership in the future. He had paid the land tax in respect of the plot of land during the period when the shop had been in his ownership and possession.

43.  The applicant noted that the shop had been situated on a central street in Ganja, making it a good location for business. The destruction of the shop had also amounted to an interference with his business activity. Even assuming that the shop had been destroyed in the public interest, depriving him of the property had been carried out in breach of the conditions provided by law (see paragraph 26 above) and had been done without the payment of reasonable compensation based on its market value.

(b)  The Government

44.  The Government acknowledged that the applicant had an ownership right to the shop in accordance with the ownership certificate of 30 October 2003 issued by the Ministry of Economic Development. However, the Government argued that the applicant had no ownership rights to the plot of land underneath the shop and had no document certifying any such rights.

45.  As far as the shop was concerned, the Government denied the applicant’s submission and argued that it had neither been demolished nor damaged. The shop consisted of a metal construction, which had been lifted off the ground and moved to another location. It had been examined in its new position by the Khojavand District Court, which had found that it was intact. By moving the shop to another location, the GCEA had not prevented the owner from conducting his business in another part of the city, as proposed by the GCEA.

46.  Following the above line of argument, the Government concluded that the applicant had not been formally “deprived of his possessions” at any time. The shop had simply been moved because the street on which it had been located had needed to be widened to accommodate more traffic. The domestic legal provisions referred to by the applicant had not been applicable because there had been no expropriation of land or other immovable property. The domestic court’s order to allocate another plot of land for the applicant’s shop had been “proportionate with the public need of renovation and widening of the streets”.

2.  The Court’s assessment

(a)  The applicant’s “possessions”

47.  The Court reiterates that the concept of “possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of material goods and is independent from the formal classification in domestic law. In the same way as material goods, certain other rights and interests constituting assets can also be regarded as “property rights” and thus as “possessions” for the purposes of this provision (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II). The concept of “possessions” is not limited to “existing possessions” but may also cover assets, including claims, in respect of which the applicant can argue that he or she has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment of a property right. An “expectation” is “legitimate” if it is based on either a legislative provision or a legal act bearing on the property interest in question. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Saghinadze and Others v. Georgia, no. 18768/05, § 103, 27 May 2010).

48.  It is undisputed that the applicant’s shop had been in his private possession since 30 October 2003 and had been in his unchallenged possession before December 2004, when the alleged interference took place. The applicant submitted that it was immovable property under domestic law, while the Government avoided commenting on its legal classification, noting simply that the shop consisted of a “metal construction” that could be moved and transported without being damaged. In that connection, the Court notes that there are two official documents in the case file concerning the property in question, as discussed below.

49.  According to the certificate “on the sale of State property” of 30 October 2003, the applicant had purchased the shop from the State. The property was registered as being located at 32 Attarlar Street, Ganja.

50.  According to the shop’s “technical passport”, it had a total surface area of 78.3 sq. m and the elements of its construction included concrete foundations, suggesting it was fixed firmly to the ground. It was built in 1972 and occupied a plot of land measuring 84 sq. m.

51.  Having regard to the above documents and the relevant provisions of the domestic law (see, in particular, paragraph 31 above), and in the absence of any legal analysis in respect of this issue by the domestic courts, the Court accepts the applicant’s argument that the building was “immovable property” under domestic law.

52.  As for the plot of land underneath the building, which had a total surface area of 84 sq. m, the Government argued that the applicant had failed to prove that he had any right to the land. The applicant submitted that under domestic law he had a proprietary interest in the land and that therefore it constituted part of his “possessions”, together with the building. The domestic courts limited themselves to the finding that the applicant had been unable to prove that he had an ownership right over the land.

53.  In that regard, the Court notes that under the Azerbaijani legal system title to a plot of land underneath a building is not automatically attached to title to the building itself. In other words, an owner of immovable property may not necessarily own the land on which the property is located. Thus, an individual can own a building while the land remains in State or municipal ownership (see Akhverdiyev v. Azerbaijan, no. 76254/11, § 76, 29 January 2015). However, in accordance with Article 243.1 of the Civil Code, domestic law automatically grants a right of use over a plot of land owned by another person to the owner of immovable property located on the land (ibid.; see also paragraph 30 above). Article 4.4 of the Land Code provided that immovable property and the land underneath it were “inseparable” in market circulation (see paragraph 24 above). It follows from the above-mentioned provisions, as well as a number of other provisions of the domestic law (see paragraphs 23, 33 and 34 above) that the new owner of an immovable property transferred into private ownership had the right to either purchase, lease or use the land underneath it.

54.  The applicant paid tax in respect of the land occupied by the shop. In formal terms he did not have title to the land at the time of the alleged interference and, as the Government correctly pointed out, he had never applied for registration of property rights over it. However, in accordance with the legislation described above, the applicant was at least a “lawful user” of the land in question by virtue of his ownership of the immovable property situated there, with a possibility of transferring the land into his ownership in the future. Accordingly, the applicant had a sufficient proprietary interest in the land for it to qualify as a “possession” (compare Akhverdiyev, cited above, § 77).

55.  Having regard to the above, the Court finds that both the shop, which was immovable property and which the applicant used as his business premises, and the plot of land in question constituted the applicant’s “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.

(b)  Compliance with Article 1 of Protocol No. 1 to the Convention

56.  Article 1 of Protocol No. 1 contains three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and sets out the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers the deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that a State is entitled, amongst other things, to control the use of property in accordance with the general interest. These rules are not unconnected, however: the second and third rules are concerned with particular instances of interference with the right to the peaceful enjoyment of possessions and are therefore to be construed in the light of the principle laid down in the first rule (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 78, ECHR 2006-V; Kozacıoğlu v. Turkey [GC], no. 2334/03, § 48, 19 February 2009; and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 93, 25 October 2012).

57.  In the present case, the applicant argued that he had been deprived of his shop and his rights to the land, and the Government denied that there had been any expropriation or deprivation of property rights at all.

58.  In that connection, the Court reiterates that, as noted above, the applicant was in lawful possession of immovable property located at 32 Attarlar Street in Ganja, consisting of the building he owned and the plot of land in which he had a proprietary interest under domestic law by virtue of his ownership of the building. The applicant used that property to conduct a legitimate, authorised retail business. In December 2004 the building was removed, meaning he no longer owned immovable property at 32 Attarlar Street, lost his rights to the land, and could no longer conduct his business in that location. The Government’s argument that the shop was merely relocated, which is strongly disputed by the applicant, does not in any event change the fact that the applicant was no longer in possession of the same property as before. Accordingly, there was an interference with the applicant’s property which amounted to a “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1.

59.  To be compatible with Article 1 of Protocol No. 1 an expropriation measure must fulfil three conditions: it must be carried out “subject to the conditions provided for by law”, which excludes any arbitrary action on the part of the national authorities; must be “in the public interest”; and must strike a fair balance between the owner’s rights and the interests of the community.

60.  As to the first condition, the Court reiterates that Article 1 of Protocol No. 1 requires that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph of that Article authorises the deprivation of possessions “subject to the conditions provided for by law”. The law upon which the interference is based should be in accordance with the domestic law of the Contracting State, including the relevant provisions of the Constitution. Moreover, the rule of law, one of the fundamental principles of a democratic society, is a notion inherent in all the Articles of the Convention (see Former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 79 and 82, ECHR 2000-XII, and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 81, ECHR 2005-VI).

61.  In the present case, it appears that the shop was taken by the GCEA without any formal decision being notified to the applicant in advance. However, the GCEA itself, as a local executive authority, had no power under domestic law to make decisions expropriating privately owned property (see Akhverdiyev, cited above, § 92, and Khalikova v. Azerbaijan, no. 42883/11, § 138, 22 October 2015).

62.  The Court observes that neither the Government nor the domestic authorities or courts have referred to any relevant domestic legal provision that could serve as a lawful basis for the GCEA’s actions depriving the applicant of his property. In fact, the domestic judgments did not contain a single reference to any domestic legal provision. They neither sought to establish the relevant legal framework applicable to the situation at hand, nor made any attempt to assess the compatibility of the GCEA’s actions with the domestic law. Likewise, they did not specify the legal basis for ordering the allocation of a new plot of land to the applicant in compensation.

63.  As in the recent judgments of Akhverdiyev and Khalikova (cited above), the Court finds that - despite the existence of domestic legal provisions designating the Cabinet of Ministers as the authority competent to decide on the expropriation and purchase by the State of private property and specifying the grounds and conditions under which deprivation of property was permissible, as well as requiring the prior payment of monetary compensation for the expropriated or purchased property at market value - in the present case the deprivation of the applicant’s property was not carried out in compliance with any of the above conditions specified by law (see Akhverdiyev, cited above, §§ 96-97, and Khalikova, cited above, § 139). In those circumstances, the Court concludes that there was no lawful expropriation order issued by a competent State authority.

64.  Lastly, the Court notes that the domestic courts ordered the GCEA to allocate a plot of land to the applicant in an unspecified part of the city as compensation in the absence of a formal decision on expropriation or State purchase taken in compliance with the conditions provided for by the applicable domestic law. There is no indication in the case file whether that order to allocate a new plot of land to the applicant has been executed. Regardless of questions relating to the adequacy or equivalence of that compensation for the loss of a centrally located and privately owned immovable property and plot of land - questions which the Court cannot at present assess - the Court reiterates that it must in any event be shown that there was a lawful basis for compensating the applicant in that way rather than giving him a monetary award equal to the market value of the property (compare Akhverdiyev, cited above, § 98).

65.  For the above reasons, the Court concludes that the interference in the present case was not carried out in compliance with “conditions provided for by law”. The applicant was deprived of his possessions arbitrarily. 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’s fundamental rights (see, for example, Iatridis, cited above, § 62).

66.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

67.  The applicant complained under Article 6 of the Convention that the domestic courts had incorrectly assessed the facts of the case.

68.  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

69.  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.”

70.  The applicant claimed a total of 90,412 euros (EUR) in respect of pecuniary damage, including EUR 90,322 for the market value of the shop at the time of the interference (equivalent to 588,000,000 old Azeri manats or 120,000 United States dollars, as determined by the expert report of 13 December 2004) and EUR 90 for the services of the expert and an unspecified State fee paid at the domestic level. He also claimed EUR 10,000 in respect of non-pecuniary damage and EUR 2,534 in respect of costs and expenses.

71.  The Government argued that the claims under all heads were excessive.

72.  The Court considers that the question of the application of Article 41 is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint under Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

 

3.  Holds that the question of the application of Article 41 is not ready for decision, and accordingly,

(a)  reserves the said question in whole;

(b)  invites the Government and the applicant to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;

(c)  reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.

Done in English, and notified in writing on 30 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                                  Angelika Nußberger
Deputy Registrar                                                                       President