European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF BAGVANOV AND OTHERS v. AZERBAIJAN

(Applications nos. 77919/11 and 13 others– see list appended)

 

 

 

 

JUDGMENT
(Merits)

 

 

 

 

 

STRASBOURG

10 November 2022

This judgment is final but it may be subject to editorial revision.

In the case of Bagvanov and Others v. Azerbaijan,

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

          Mārtiņš Mits, President,
          Lətif Hüseynov,
          Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints under Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Azerbaijani Government (“the Government”) represented by their Agent, Mr Ç. Əsgərov, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 20 October 2022,

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

SUBJECT MATTER OF THE CASE

1.  The applications mainly concerned the applicants’ complaints under Article 1 of Protocol No. 1 to the Convention about an allegedly unlawful expropriation of their properties by the State authorities.

2.  The applicants’ details are set out in the appendix. The first applicant was represented by Ms S. Bagvanova. The remaining applicants were represented by Mr F. Agayev, a lawyer based in Azerbaijan.

3.  The facts of the present applications are similar in several respects to those of the case of Khalikova v. Azerbaijan (no. 42883/11, 22 October 2015). As in that case, in the present applications, the applicants’ properties were demolished by the Baku City Executive Authority (“the BCEA”), on the basis of two orders issued by the head of the BCEA on 24 September 2008 and 16 February 2011 which stated that the buildings and houses located on certain streets were to be demolished for the purpose of constructing a new garden-park complex (“the Winter Park”) and the residents were to be relocated. The applicants were offered 1,500 Azerbaijani manats (AZN) per sq. m of their properties in compensation. The BCEA offered to make the payments not as compensation for expropriation, but on the basis of contracts of sale to be entered into by the residents and two individuals, R.K. or Z.I., who were apparently acting on behalf of the BCEA. Most of the applicants entered into such contracts after the demolition of their property.

4.  On various dates, the applicants lodged complaints with the domestic courts complaining mainly that the above-mentioned orders, the actions of the BCEA’s employees seeking to evict them from their properties, and the demolition of the properties had been unlawful, and/or asking the courts to eliminate the obstacles preventing them from enjoying their ownership rights. On various dates, most of the applicants brought separate civil proceedings or amended their initial claims, asking the courts to declare unlawful the contracts of sale between them and R.K. or Z.I. because they had been entered into under duress. They also complained that the level of compensation offered or already paid by the BCEA had been too low. Some applicants also claimed compensation for the land underlying and/or attached to their properties or for possessions of theirs that had allegedly been damaged or lost during the demolition of their properties.

5.  On various dates (see appendix), the relevant first-instance courts dismissed the applicants’ complaints in full or in part, finding that the BCEA’s actions had been lawful and the amount of compensation had been adequate. In respect of the claims regarding the contracts of sale, the courts held that they had been entered into in accordance with the relevant law. By final judgments delivered on various dates (see appendix) the Supreme Court dismissed or partly dismissed the applicants’ cassation appeals, reiterating the reasoning of the lower courts. In respect of applications nos. 77919/11, 9310/12 and 5192/13, the courts ruled partly in favour of the applicants and ordered compensation in the amount of AZN 1,500 per sq. m to be paid. In respect of application no. 13579/13, the courts ruled partly in favour of the applicants and ordered compensation of AZN 1,500 per sq. m to be paid for a 9 sq. m area of the property which had not been covered by the contract of sale. The courts, of their own motion, also awarded an additional 20% compensation, in accordance with Presidential Decree no. 689 of 26 December 2007, to the applicants in applications nos. 73555/12, 5192/13 and 51850/14.

6.  At the time of the latest communication with the parties in 2017, the respective final judgments in applications nos. 81486/12 (Supreme Court judgment of 20 June 2012), 5192/13 (Supreme Court judgment of 3 July 2014) and 51850/14 (Supreme Court judgment of 15 January 2014) remained unenforced. The final judgment in application no. 73555/12 (Supreme Court judgment of 10 October 2013) remained partly unenforced.

THE COURT’S ASSESSMENT

I.        JOINDER OF THE APPLICATIONS

7.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.     ALLEGED VIOLATION OF ARTICLE 1 OF protocol no. 1 to THE CONVENTION

8.  The applicants complained under Article 1 of Protocol No. 1 that the de facto expropriation, by way of demolition, of their properties amounted to an unlawful and unjustified interference with their property rights. They further complained that the amount of compensation paid for the properties had been very low. The applicants in applications nos. 77919/11, 9310/12, 37786/12, 57685/12, 61516/12, 73555/12, 81486/12, 5192/13 and 51850/14 also complained that they had not been paid compensation for the land underlying and/or attached to their properties. The applicants in applications nos. 56371/12, 81494/12 and 5192/13 complained that they had not been paid compensation for their possessions that had allegedly been damaged or lost during the demolition of their properties.

1.     Properties and plots of land underlying and/or attached to them

9.  The Government argued that the applicants in the above-mentioned applications (see paragraph 8 above) did not have any title to the plots of land underlying and/or attached to the buildings on the sites where their properties were located. Therefore, those plots of land did not constitute their “possessions”. The applicants contested this argument.

10.  It is undisputed that the relevant properties, as indicated in the ownership documents, had been in the applicants’ private ownership (see appendix).

11.  It appears from the case file that the applicant in application no. 77919/11 claimed before the domestic courts that the total surface area of his house was 231 sq. m, while before the Court he submitted that the total surface area of his property was 487 sq. m. However, no documentary evidence was produced in this respect before either the domestic courts or the Court. It cannot therefore be established that the applicant’s claims in respect of the total surface area of his property beyond the size mentioned in the ownership documents amounted to his “possessions” within the meaning of Article 1 of Protocol No. 1. It follows that the part of the complaint related to that claim is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

12.  The Court observes that the properties owned by the applicants in application nos. 77919/11 and 61516/12 were private houses. In the case of Akhverdiyev v. Azerbaijan (no. 76254/11, 29 January 2015), the Court held that a “lawful user” of immovable property located on State-owned land had a right to have the land transferred into his or her ownership free of charge and that this right gave rise to a “legitimate expectation” of acquiring ownership of the land. Plots of land underlying and attached to a private residential house constituted the “possessions” of the house owner by virtue of provisions of domestic law (see paragraphs 73-78 of the judgment). The Court sees no reason to reach a different conclusion in application no. 77919/11. Therefore, the plot of land underlying the house also constituted the applicant’s “possessions”.

13.  As to application no. 61516/12, the Court notes that the applicant has not presented any document containing information about the plot of land occupied by the house and/or attached to it, before either the domestic courts or the Court. It cannot therefore be established that the applicant’s claim in respect of the plot of land underlying and/or attached to the house amounted to his “possessions” within the meaning of Article 1 of Protocol No. 1. It follows that the part of the complaint related to that claim is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

14.  As to the remaining applications, the properties in question were flats situated in apartment buildings. Under Articles 35.1 and 36.4 of the Housing Code, the land underlying such buildings was in the common, shared ownership of the owners of the apartments in that building, who did not have the right to divide in kind or sell their shares or to perform other acts aimed at the separate alienation of their respective shares. Therefore, while such shares constituted the applicants’ possessions under domestic law, they cannot be regarded as separate “possessions” as such because they were attached to an apartment in the building of which they formed a part, thus constituting one whole property.

15.  The Court notes that the complaint, except the parts declared inadmissible in paragraphs 11 and 13 above, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

16.  The general principles concerning Article 1 of Protocol No. 1 have been summarised in Akhverdiyev (§§ 79-82), Khalikova (§§ 134-36), both cited above, and Maharramov v. Azerbaijan (no. 5046/07, §§ 56-60, 30 March 2017).

17.  In Khalikova the Court found that the expropriation of the applicant’s property had not been carried out in compliance with “conditions provided for by law”. It concluded, in particular, that (i) the BCEA did not have the authority to expropriate private property; (ii) there was no lawful expropriation order issued by a competent State authority and (iii) the interference with the applicant’s possessions thus constituted a de facto deprivation of possessions. The Court also found a contract of sale between the applicant and R.K. to be irrelevant, holding that (i) it had been entered into after the demolition of the applicant’s property, and (ii) it was clear that R.K. had been entrusted with this task by the BCEA and had acted on behalf of the executive authorities. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present cases. It thus considers that the expropriation of the applicants’ properties was not carried out in compliance with “conditions provided for by law”.

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

2.     Allegedly damaged or lost possessions

19.  The Court notes that the applicants in applications nos. 56371/12, 81494/12 and 5192/13 failed to substantiate their claims in respect of damaged or lost possessions before either the domestic courts or the Court. This part of the complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III.   OTHER ALLEGED VIOLATIONS OF THE CONVENTION UNDER WELL-ESTABLISHED CASE-LAW

20.  Some of the applicants complained under Article 6 of the Convention that the domestic courts’ judgments or part of them had not been enforced (see paragraph 6 above).

1.     Applications nos. 73555/12, 81486/12, 5192/13 and 51850/14

21.  This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor it is inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that the complaint discloses a violation of Article 6 of the Convention in the light of its findings in Akhundov v. Azerbaijan (no. 39941/07, §§ 31-36, 3 February 2011); Jafarli and Others v. Azerbaijan (no. 36079/06, §§ 52-54, 29 July 2010); and Faber Firm and Jafarov v. Azerbaijan (no. 3365/08, §§ 20-23, 25 November 2010).

2.     Application no. 13579/13

22.  It appears that the amount awarded to the applicants for their shares in the flat under the Supreme Court’s judgment of 22 August 2012 (see appendix) was paid to them on 11 April 2013. In their observations, the applicants submitted that they had already received the compensation awarded for a 9 sq. m area of the property (see paragraph 5 above) under the Supreme Court’s judgment of 15 October 2014 (see appendix). They did not, however, mention the date on which that payment had been made. Nor did they appear to complain of delayed enforcement of the relevant judgment. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV.  OTHER COMPLAINTS

23.  Some of the applicants also complained under Articles 6 (right to a reasoned judgment), 8 and 13 of the Convention that there had been a violation of their Convention rights. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicants claimed various amounts in respect of pecuniary and non-pecuniary damage and for costs and expenses (see appendix).

25.  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 applicants (Rule 75 §§ 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the complaint under Article 1 of Protocol No. 1 admissible, except the parts in respect of the claim in (i) application no. 77919/11 regarding the additional surface area of the applicant’s property; (ii) application no. 61516/12 as regards the plot of land underlying the applicant’s property and (iii) applications nos. 56371/12, 81494/12 and 5192/13 as regards the allegedly damaged or lost possessions;

3.      Declares the complaint under Article 6 of the Convention regarding the non-enforcement of final judgments admissible in applications nos. 73555/12, 81486/12, 5192/13 and 51850/14, and inadmissible in application no. 13579/13;

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

5.      Holds that there has been a violation of Article 6 of the Convention as regards the non-enforcement of final judgments in applications nos. 73555/12, 81486/12, 5192/13 and 51850/14;

6.      Holds that there is no need to examine the admissibility and merits of the complaints under Articles 6 (right to a reasoned judgment), 8 and 13 of the Convention;

7.      Holds that the question of the application of Article 41 of the Convention is not ready for decision; 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 Committee the power to fix the same if need be.

Done in English, and notified in writing on 10 November 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                     Mārtiņš Mits
          Deputy Registrar                                                      President

 

 

APPENDIX

List of cases:

No	Application no.	Lodged on	Applicant name year of birth place of residence	Type and size of property (according to the ownership documents)	Date of demolition	Date of sale contract	Domestic courts’ judgments/decisions	Compensation awarded/paid at the domestic level		Just satisfaction claims
1	77919/11	22/11/2011	Ismayil BAGVANOV 1956 Baku	A house of 95.6 sq. m + buildings of 29.1 sq. m + a garage of 20 sq. m located on plot of land of 0.0232 ha	04/12/2010	23/09/2011	Nasimi District Court 04/10/2010 Baku Court of Appeal 11/02/2011 Supreme Court 07/09/2011	AZN 187,050 for pecuniary damage awarded by the courts; AZN 217,050 paid under the contract		EUR 2,300,000 for pecuniary damage; EUR 700,000 for non-pecuniary damage; EUR 10,000 for costs and expenses.
2	9310/12*	14/02/2012	Darya GULIYEVA 1979 Baku	A flat of 105 sq. m	25/03/2012	06/02/2014	1st set of proceedings: Baku Administrative-Economic Court No. 1 14/06/2012 Baku Court of Appeal 10/09/2012 Supreme Court 13/02/2013 2nd set of proceedings: Sabail District Court 15/08/2014 Baku Court of Appeal 03/12/2014 Supreme Court 24/04/2015	AZN 157,500 for pecuniary damage + AZN 2,000 for non-pecuniary damage awarded by the courts		EUR 770,000 for pecuniary damage; EUR 300,000 for non-pecuniary damage; AZN 7,000 for legal services and AZN 200 for postal expenses.
3	22730/12*	12/04/2012	Eldar HUSEYNOV 1942 Sumgayit	A flat of 28 sq. m	-/09/2010	14/12/2010	1st set of proceedings: Nasimi District Court 27/09/2010 Baku Court of Appeal 27/01/2011 Supreme Court 22/06/2011 Baku Court of Appeal 14/10/2011 Supreme Court 21/02/2021 2nd set of proceedings: Nasimi District Court 01/03/2011 Baku Court of Appeal 12/05/2011 Supreme Court 13/10/2011	AZN 42,000 for pecuniary damage awarded by the courts		EUR 700,000 for pecuniary damage; EUR 100,000 for non-pecuniary damage; EUR 6,000 for legal services and EUR 200 for postal expenses.
4	37786/12*	18/06/2012	Kamala ALIYEVA 1965 Baku	Two rooms of 39.1 sq. m in a flat	19/11/2010	09/12/2010	Nasimi District Court 11/04/2011 Baku Court of Appeal 10/08/2011 Supreme Court 22/12/2011	AZN 58,650 paid under the contract		EUR 550,000 for pecuniary damage; EUR 200,000 for non-pecuniary damage; EUR 5,000 for legal services and AZN 200 for postal expenses.
5	44972/12*	18/07/2012	Intizar ALLAHVERDIYEVA 1953 Baku	½ of a flat of 68 sq. m	-/12/2010	05/01/2011	Nasimi District Court 28/04/2011 Baku Court of Appeal 01/09/2011 Supreme Court 19/01/2012	AZN 51,000 paid under the contract		EUR 200,000 for pecuniary damage; EUR 100,000 for non-pecuniary damage; AZN 5,000 for legal services and AZN 70 for postal expenses.
			Zarifa ALLAHVERDIYEVA 1959 Baku	½ of the same flat	-/12/2010			AZN 51,000 paid under the contract		EUR 200,000 for pecuniary damage; EUR 100,000 for non-pecuniary damage; AZN 3,500 for legal services.
6	56371/12*	31/08/2012	Parviz AMIROV 1969 Baku	One room of 12.5 sq. m in a flat	-/11/2010	01/02/2013	1st set of proceedings Baku Administrative-Economic Court No. 1 05/12/2011 Baku Court of Appeal 22/02/2012 Supreme Court 02/05/2012 2nd set of proceedings Nasimi District Court 09/07/2013 Baku Court of Appeal 27/09/2013 Supreme Court 17/02/2014	AZN 31,995 paid under the contract		EUR 82,000 for pecuniary damage; EUR 70,000 for non-pecuniary damage; AZN 7,000 for legal services and AZN 110 for postal expenses.
7	57685/12*	06/09/2012	Minakhanim AZIMOVA 1946 Baku	Two rooms of 34 sq. m in a flat	-/11/2010	07/12/2010	1st set of proceedings: Nasimi District Court 29/11/2010 Baku Court of Appeal 23/08/2012 Supreme Court 18/01/2013 2nd set of proceedings: Nasimi District Court 03/08/2011 Baku Court of Appeal 17/10/2011 Supreme Court 07/03/2012 (served on 06/04/2012)	AZN 90,000 paid under the contract		EUR 220,000 for pecuniary damage; EUR 100,000 for non-pecuniary damage; AZN 5,000 for legal services and AZN 100 for postal expenses.
			Mehriban ALIYEVA 1969 Baku	A flat of 29 sq. m	-/11/2010	21/12/2010		AZN 43,500 paid under the contract		EUR 110,000 for pecuniary damage; EUR 50,000 for non-pecuniary damage; AZN 5,000 for legal services.
			Valeriya MAHMUDOVA 1966 Baku	A flat of 61 sq. m	-/11/2010	21/12/2010		AZN 91,500 paid under the contract		EUR 225,000 for pecuniary damage; EUR 100,000 for non-pecuniary damage; AZN 7,000 for legal services.
			Rugiya MAMMAD 1957 Baku	Four rooms of a flat of 101.5 sq. m	-/11/2010	03/12/2010		AZN 134,250 paid under the contract		EUR 420,000 for pecuniary damage; EUR 100,000 for non-pecuniary damage; AZN 7,000 for legal services.
			Saadat AZIZOVA 1969 Baku	One room of 12 sq. m of the same flat	-/11/2010	03/12/2010		AZN 18,000 paid under the contract		EUR 70,000 for pecuniary damage; EUR 50,000 for non-pecuniary damage; AZN 7,000 for legal services.
8	61516/12*	24/09/2012	Fuad ALIYEV 1968 Baku	11/12 of a house (no information is available about the size of the house)	-/11/2010	09/12/2010	Nasimi District Court 08/08/2011 Baku Court of Appeal 04/11/2011 Supreme Court 29/03/2012	AZN 68,887 paid under the contract	EUR 700,000 for pecuniary damage; EUR 200,000 for non-pecuniary damage; EUR 5,000 for legal services and AZN 70 for postal expenses.
9	73555/12*	16/11/2012	Yasaman KARIMOVA 1951 Baku	A flat of 65 sq. m + basement of 16.1 sq. m	unspecified	27/02/2015	1st set of proceedings: Baku Administrative-Economic Court No. 1 14/12/2011 Baku Court of Appeal 06/03/2012 Supreme Court 13/06/2012 2nd set of proceedings: Baku Administrative-Economic Court No. 1 14/03/2013 Baku Court of Appeal 19/06/2013 Supreme Court 10/10/2013	AZN 145,980 for pecuniary damage and AZN 1,000 for non-pecuniary damage awarded by the courts, but paid AZN 121,650 only under the contract	EUR 370,000 for pecuniary damage; EUR 100,000 for non-pecuniary damage; AZN 10,500 for legal services and AZN 200 for postal expenses.
10	81486/12*	19/12/2012	Flora GADIROVA 1966 Baku	One room of 14.7 sq. m in a flat	08/06/2011	No contract	Baku Administrative-Economic Court No. 1 30/11/2011 Baku Court of Appeal 06/03/2012 Supreme Court 20/06/2012	AZN 22,500 awarded by the courts but not paid	EUR 100,000 for pecuniary damage; EUR 50,000 for non-pecuniary damage; AZN 3,500 for legal services.
11	81494/12*	20/12/2012	Rukhsara HUSEYNOVA 1944 Baku	A flat of 172 sq. m	19/11/2010	06/11/2010	Nasimi District Court 27/12/2011 Baku Court of Appeal 03/04.2012 Supreme Court 29/08/2012	AZN 259,500 paid under the contract	EUR 1,600,000 for pecuniary damage; EUR 300,000 for non-pecuniary damage; AZN 5,000 for legal services and AZN 100 for postal expenses.
12	5192/13*	28/12/2012	Afag ISMAYILOVA 1958 Baku	A flat of 107.5 sq. m	02/04/2012	No contract	1st set of proceedings Baku Administrative-Economic Court No. 1 28/12/2011 Baku Court of Appeal 03/04/2012 Supreme Court 04/07/2012 2nd set of proceedings Baku Administrative-Economic Court No. 1 18/12/2013 Baku Court of Appeal 02/04/2014 Supreme Court 03/07/2014	AZN 193,500 for pecuniary damage and AZN 2,500 for non-pecuniary damage awarded by the courts, but not paid	EUR 1,500,000 for pecuniary damage; EUR 500,000 for non-pecuniary damage; AZN 10,500 for legal services and AZN 200 for postal expenses.
13	13579/13*	22/02/2013	Shirinbaji RZAYEVA 1953 Baku	1/3 of a flat of 41.3 sq. m                     1/3 of the same flat   + buildings of 9 sq. m	23/04/2012	11/04/2013	1st set of proceedings Baku Administrative-Economic Court No. 1 25/01/2012 Baku Court of Appeal 30/05/2012 Supreme Court 22/08/2012 2nd set of proceedings Sabail District Court 10/01/2014 Baku Court of Appeal 07/05/2014 Supreme Court 15/10/2014	AZN 20,650 to each applicant for their shares in the flat awarded by the courts, paid under the contract, and AZN 13,500 jointly for buildings	EUR 70,000 for pecuniary damage; EUR 50,000 for non-pecuniary damage; AZN 7,000 for legal services.         EUR 70,000 for pecuniary damage; EUR 50,000 for non-pecuniary damage; AZN 7,000 for legal services.
			Ali RZA 1976 Baku
14	51850/14*	15/07/2014	Lilya ALIYEVA 1943 Baku	A flat of 190.8 sq. m	-/03/2013	12/03/2013	Baku Administrative-Economic Court No. 1 31/05/2013 Baku Court of Appeal 11/09/2013 Supreme Court 15/01/2014	AZN 286,200 paid under the contract;   AZN 57,240 awarded by the courts but not paid	EUR 1,500,000 for pecuniary damage; EUR 300,000 for non-pecuniary damage; AZN 5,000 for legal services and AZN 70 for postal expenses.