European Court of Human Rights

FIRST SECTION

CASE OF YUNUSOVA AND YUNUSOV v. AZERBAIJAN

(Application no. 67180/11)

JUDGMENT
(Merits)

STRASBOURG

11 July 2024

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

In the case of Yunusova and Yunusov v. Azerbaijan,

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

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 67180/11) 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") on 18 October 2011 by two Azerbaijani nationals, Ms Leyla Islam qizi Yunusova and Mr Arif Seyfulla oglu Yunusov (Leyla Islam qızı Yunusova and Arif Seyfulla oğlu Yunusov - "the applicants"), who both were born in 1955, and who were represented by Mr F. Agayev, a lawyer based in Azerbaijan;

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

the parties' observations;

Having deliberated in private on 18 June 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case mainly concerns the applicants' complaints about the allegedly unlawful expropriation of their properties by the State authorities.

1. background

2.  The facts of the present case are similar in several respects to those in Khalikova v. Azerbaijan (no. 42883/11, 22 October 2015). As in that case, in the present case the applicants' two flats (with surface areas of 38 sq. m and 57.2 sq. m), situated in the same building, were demolished by the Baku City Executive Authority ("the BCEA"), on the basis of order no. 76 issued by the head of the BCEA on 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. It appears from the case file that while, according to the ownership documents, both flats were registered in the second applicant's name, they were marital properties. The applicants were offered 1,500 Azerbaijani manats (AZN) per square metre 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 applicants and the representative of the BCEA. The applicants refused to enter into such a contract.

2. First set of proceedings

3.  On 8 February 2011 the applicants lodged a claim with the Nasimi District Court against the BCEA and the Nasimi District Executive Authority ("the NDEA"), complaining of breaches of their property rights by those authorities. By a final decision of 24 June 2011, the Supreme Court declared the claim inadmissible, indicating that it should be lodged with the administrative courts.

3. Second set of proceedings

4.  On 18 May 2011 the applicants lodged a claim with Baku Administrative-Economic Court No. 1 against the BCEA, the NDEA, the Ministry of Finance, and the State Committee on Property Issues ("the SCPI"). They asked the court, among other things, to declare the order of 16 February 2011 (see paragraph 2 above) and other related administrative acts invalid and to award them compensation for non-pecuniary damage and lost profit. In August 2011, while the court proceedings were still pending, the BCEA demolished the applicants' flats. The first-instance and appellate courts examined the applicants' claims on the merits and dismissed them. However, by a final decision of 5 December 2012, the Supreme Court declared the claims inadmissible, finding that the order of 16 February 2011 concerned not only the applicants, but also other people in the area concerned and that the applicants therefore had not had the right to claim that it was invalid. The Supreme Court also held that the remaining claims were unclear and not specifically addressed against each defendant.

4. Third set of proceedings

5.  On 14 December 2012 the applicants lodged a new claim with Baku Administrative-Economic Court No. 1 against the BCEA and the SCPI. They claimed compensation for pecuniary damage in the amount of AZN 1,000,000 and non-pecuniary damage in the amount of AZN 100,000 for their suffering as a result of the unlawful expropriation and demolition of their flats. They complained that the compensation offered by the BCEA had been too low, arguing that the actual market value of their flats had been much higher. In support of their complaints, the applicants submitted a letter from a private valuation company in respect of the market value of their flats and a plot of land in that area. The applicants also claimed compensation for the land (with a surface area of 150 sq. m) underlying and attached to the building where their flats had been situated.

6.  On 22 February 2013 Baku Administrative-Economic Court No. 1 ruled partly in favour of the applicants and awarded them AZN 142,800 in respect of pecuniary damage for their two flats (AZN 1,500 per square metre). It dismissed the applicants' claim in respect of the plot of land, holding that they did not have any registered rights over it.

7.  Following an appeal by the applicants, on 4 June 2013 the Baku Court of Appeal quashed the first-instance court's judgment in part and awarded the applicants, of its own motion, AZN 28,560 as an additional 20% compensation under Presidential Decree no. 689 of 26 December 2007.

8.  On 25 September 2013 the Supreme Court upheld the appellate court's judgment, holding, in addition, that the compensation awarded had been reasonable and fair and that the letter presented by the applicants (see paragraph 5 above) had not contained any information about the assessment methodology used to reach the valuation conclusions.

9.  The applicants have not concluded contracts of sale and for that reason have not been paid any compensation despite the judgment in their favour.

5. complaints

10.  The applicants complained of violations of their rights under Articles 6, 8 and 13 of the Convention as well as Article 1 of Protocol No. 1 to the Convention.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 TO THE CONVENTION

11.  The applicants complained that the de facto expropriation, by way of demolition, of their flats had amounted to an unlawful and unjustified interference with their property rights under Article 1 of Protocol No. 1 to the Convention.

12.  The Government argued that the plot of land underlying and attached to the building where their flats had been situated did not constitute the applicants' "possessions". The applicants contested that argument.

13.  The Court notes that the properties in question were flats situated in an apartment building. It is undisputed that those flats constituted the applicants' "possessions". As to the plot of land, under the provisions of domestic law, the land underlying and attached to a building of that kind was in the common, shared ownership of the owners of the flats in the 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. The Court has already held that such shares could not 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 (see Bagirova and Others v. Azerbaijan, nos. 37706/17 and 5 others, § 38, 31 August 2023).

14.  The Court notes that this complaint - excluding the part of the complaint concerning the applicants' claim in respect of the plot of land underlying and attached to the building where their flats had been situated, which is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto - 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.

15.  The general principles concerning Article 1 of Protocol No. 1 have been summarised in Akhverdiyev v. Azerbaijan (no. 76254/11, §§ 79-82, 29 January 2015), Khalikova (cited above, §§ 134-36) and Maharramov v. Azerbaijan (no. 5046/07, §§ 56-60, 30 March 2017).

16.  In Khalikova (cited above, §§ 137-41) 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 had been 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. 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 case. It thus considers that the expropriation of the applicants' flats was not carried out in compliance with "conditions provided for by law" (compare also Bagvanov and Others v. Azerbaijan [Committee], nos. 77919/11 and 13 others, § 17, 10 November 2022).

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

2. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

18.  The applicants complained under Article 6 § 1 of the Convention that the Supreme Court's final judgment of 25 September 2013 had not been enforced (see paragraph 9 above).

19.  The Government argued that the applicants had failed to exhaust domestic remedies, submitting that they could have challenged the domestic authorities' failure to enforce the above-mentioned judgment in the domestic courts. The applicants disagreed.

20.  The Court notes that similar objections have been raised by the Government in comparable cases and were dismissed by the Court (see, for example, Mirzayev v. Azerbaijan, no. 50187/06, §§ 24-28, 3 December 2009, and Faber Firm and Jafarov v. Azerbaijan, no. 3365/08, §§ 14-17, 25 November 2010). The Court refers to its reasoning in those previous cases and sees no ground to depart from it. Therefore, the Government's objection should be dismissed.

21.  The Court further notes that the complaint 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.

22.  Having examined all the material before it, the Court concludes that the complaint discloses a violation of Article 6 § 1 of the Convention in the light of its findings in Jafarli and Others v. Azerbaijan (no. 36079/06, §§ 52-54, 29 July 2010), Faber Firm and Jafarov (cited above, §§ 20-23) and Akhundov v. Azerbaijan (no. 39941/07, §§ 31-36, 3 February 2011).

3. OTHER COMPLAINTS

23.  The applicants also complained under Article 6 (right of access to a court and right to a reasoned judgment), Article 8 (right to respect for home) and Article 13 of the Convention. 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 admissibility and merits of the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.47848/08, § 156, ECHR 2014; see also Bagvanov and Others, § 23, and Bagirova and Others, §§ 55-56, both cited above).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  Each applicant claimed 610,000 euros (EUR) in respect of pecuniary damage and EUR 100,000 in respect of non-pecuniary damage. Each applicant also claimed EUR 5,000 in respect of legal fees for their representation before the domestic courts and the Court and the first applicant claimed in addition AZN 200 for postal expenses.

25.  The Government asked the Court to reject the applicants' claim for pecuniary damage and the first applicant's claim for non-pecuniary damage. They also argued that the applicants had failed to produce any evidence in support of their claim in respect of legal fees, and that according to the documents provided by the applicants, the amount of postal expenses incurred was AZN 133.

26.  The Court considers that the question of the application of Article 41 in its entirety 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. Declares the part of the complaint under Article 1 of Protocol No. 1 to the Convention concerning the applicants' claim in respect of the plot of land inadmissible, and the remainder of the complaint admissible;
2. Declares the complaint under Article 6 § 1 of the Convention concerning the non-enforcement of the domestic courts' final judgment admissible;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
4. Holds that there has been a violation of Article 6 § 1 of the Convention;
5. Holds that there is no need to examine the admissibility and merits of the complaints under Articles 6 (right of access to a court and right to a reasoned judgment), 8 and 13 of the Convention;
6. Holds that the respondent State, within three months, shall ensure, by appropriate means, the enforcement of the Supreme Court's judgment of 25 September 2013;
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 applicants to submit, within three months, 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 11 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President