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FIRST
SECTION
CASE OF HAJIYEVA AND OTHERS
v. AZERBAIJAN
(Applications
nos. 50766/07, 50786/07, 50871/07 and 50913/07)
JUDGMENT
STRASBOURG
8
July 2010
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 Hajiyeva and Others
v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 17 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in four 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”) on 8 August 2007 by four Azerbaijani nationals:
–
Mrs Simuzer Hajiyeva, born in 1943, application no. 50766/07;
–
Mrs Tatyana Tokareva, born in 1948, application no. 50786/07;
–
Mr Aslan Huseynov, born in 1951, application no. 50871/07; and
–
Mrs Gular Aliyeva, born in 1959, application no. 50913/07.
- The
applicants were represented by Mr N. Ismayilov, a lawyer practising
in Azerbaijan. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr Ç. Asgarov.
- The
applicants alleged that the failure to enforce
the judgments in their favour violated their rights to a fair trial
and their property rights, as guaranteed by Articles 6 and 13 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
- The
President of the First Section decided to give notice of the
applications to the Government on the following dates: 28 November
2008 (applications nos. 50766/07 and 50786/07), 3 December 2008
(application no. 50871/07) and 17 December 2008 (application no.
50913/07).
- It
was also decided to examine the merits of the applications at the
same time as their admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
the dates indicated in the Appendix each applicant was issued with an
occupancy voucher (yaşayış orderi)
for a flat in the same recently constructed residential building in
Baku (see Table I).
- At
the same time, the applicants became aware that their respective
flats had been occupied by families of internally displaced persons
(“IDP”) from different regions under the occupation of
the Armenian military forces following the Armenian-Azerbaijan
conflict over Nagorno-Karabakh.
- According
to the applicants, despite their numerous demands the IDP families
refused to vacate the flats, pointing out that they were IDPs and had
no other place to live.
- On
different dates the applicants lodged civil actions with the Yasamal
District Court asking the court to order the eviction of these
families from their flats.
- On
the dates indicated in the Appendix (Table I), the Yasamal District
Court granted the applicants’ claims and ordered that the IDP
families be evicted from the flats. In all cases, the court held that
the applicants were the sole lawful tenants of the flats on the basis
of the occupancy vouchers and therefore the flats were being
unlawfully occupied by the IDP families.
- No
appeals were lodged against the judgments of the Yasamal District
Court and, pursuant to the domestic law, they became enforceable upon
the expiry of the relevant appeal periods. However the IDP families
refused to comply with the judgments and despite the applicants’
complaints to various authorities, the judgments were not enforced.
- On
an unspecified date in 2006, the applicants, who were in the same
situation, lodged a joint action with the Yasamal District Court
complaining that the Yasamal District Department of Judicial
Observers and Enforcement Officers (“the Department of
Enforcement Officers”) had not taken measures to enforce the
judgments.
- On
27 December 2006 the Yasamal District Court dismissed that complaint
as unsubstantiated. The applicants appealed against this judgment. On
12 November 2007, after a series of appeals and quashings, the Court
of Appeal dismissed the applicants’ request and terminated the
case noting that there was no need to deliver a separate judgment on
enforceability of the judgments.
- It
appears from the case file that, after the lodging of the present
applications with the Court, the defendant IDP families lodged a
joint request with the Yasamal District Court asking for postponement
of the execution of the judgments on their eviction from the
applicants’ flats. They alleged that, as they were IDPs, they
had no other place to live but the flats in question.
- After
a series of appeals by the applicants and defendants, by a decision
of 6 June 2008, the Yasamal District Court declared the defendants’
request inadmissible for non-compliance with procedural norms. The
court explained that the IDPs should lodge their requests separately.
- On
different dates, the defendants IDP families lodged separate court
actions asking for postponement of the judgments ordering their
eviction from the applicants’ flats. The proceedings can be
summarised as follows:
(a) As
for application no. 50766/07, on 3 July 2008, the Yasamal District
Court upheld the postponement request. On 27 January 2009 the Baku
Court of Appeal upheld the postponement decision.
(b) As
for application no. 50786/07, on 26 November 2008, the Yasamal
District Court upheld the postponement request. On 9 January 2009 the
Baku Court of Appeal upheld the postponement decision.
(c) As
for application no. 50871/07, on 25 June 2008, the Yasamal District
Court upheld the postponement request. On 16 October 2008 the Baku
Court of Appeal upheld the postponement decision.
(d) As
for application no. 50913/07, on 27 June 2008, the Yasamal District
Court upheld the postponement request. On 29 December 2008 the Baku
Court of Appeal upheld the postponement decision.
- On
an unspecified date in 2008 the applicants lodged a joint action
against different authorities, seeking compensation for
non-enforcement of the judgments delivered in their favour. On 19
December 2008 the Yasamal District Court dismissed the applicants’
claims as unsubstantiated. On 3 March 2009 the Baku Court of
Appeal and on 3 July 2009 the Supreme Court upheld the first-instance
court’s judgment.
- At
the time of the latest communications with the applicants, the
respective judgments remained unenforced.
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 Yasamal District Court’s judgments
in their favour. Article 6 § 1 of the Convention reads, as far
as relevant, as follows:
“1. In the determination of his civil
rights and obligations ..., everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...”
Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Article
1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- 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.
A. Admissibility
1. The Court’s competence rationae
temporis in applications nos. 50766/07 and 50786/07)
- The
Court observes that in two cases (applications nos. 50766/07 and
50786/07) the domestic judgments in favour of the applicants had been
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 judgments in question, they remain still
unenforced. There is a continuous situation and the Court is
therefore competent to examine the part of the applications relating
to the period after 15 April 2002 (see Gulmammadova,
cited above, § 26).
2. Domestic remedies
- The
Government argued that the applicants had failed to exhaust domestic
remedies. In particular, the Government noted that separate
postponement proceedings launched by defendant IDP families were
pending before the domestic courts at the moment the applicants
lodged their respective applications before the Court.
- The
applicants disagreed with the Government and maintained that the
remedies suggested by the Government were not appropriate in the
circumstances of the present case.
- The Court notes that a similar objection was raised by
the Government in the Gulmammadova case and was dismissed by
the Court (see Gulmammadova, cited above, § 31). The
Court refers to its reasoning in that case and sees no ground to
depart from it. Therefore this part of the Government’s
objection should be dismissed.
3. 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
Government submitted that, due to the large number of IDPs in
Azerbaijan as a result of the Armenian-Azerbaijani conflict over
Nagorno Karabakh, there was a serious problem with housing for
IDPs in Azerbaijan. The Government noted that the judgments in the
applicants’ favour could not be enforced because there was no
other accommodation available for the IDPs settled in the flats in
question.
- The
applicants reiterated their complaints.
- The
Court notes that judgments in the applicants’ favour remained
unenforced for considerable periods of time, ranging approximately
from six to eight years.
- 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 the present case.
- 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 several years 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 a violation 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 application (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 and the alleged current market value of the flats. The
applicants calculated the amount of the lost rent based on the
information on the monthly market rent of flats situated in the
relevant area of the city. This information was obtained from an
association specialising in these matters.
- The
Government argued that the applicants could not claim any
compensation for the market value of the flats. The Government
further noted that, having applied to the same association, they had
checked the grounds for the remainder of the claim corresponding to
the loss of rent sustained as a result of the applicants’
inability to use their flats and indicated their willingness to
accept the part of the applicants’ claims in respect of the
pecuniary damage under this head up to the sums indicated in the
Appendix (Table II).
- As
for the part of the claims relating to the market value of the flats,
the Court rejects this part as it does not find any causal link
between the violation found and this part of the claim.
- As
for the part of the claims relating to the loss of rent, the Court
finds that there is a causal link between this part of the claims and
the violations found and that the applicants must have suffered
pecuniary damage as a result of their lack of control over their
flats. Having examined the parties’ submissions and deciding on
an equitable basis, the Court accepts the basis for calculation of
the damage proposed by the Government and awards the applicants the
amounts indicated in the Appendix (Table II, sum accepted by the
Government) on account of their loss of rent, plus any tax that may
be chargeable on those amounts.
2. Non-pecuniary damage
- The
applicants claimed different amounts from 20,000 euros (EUR) to EUR
25,000 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 are
excessive. Making its assessment on an equitable basis, as required
by Article 41 of the Convention, the Court awards EUR 4,800 to each
applicant plus any tax that may be chargeable on these amounts.
- 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 applicant as far as possible is put in the
position he would have been in had the requirements of Article 6 not
been disregarded (see Piersack v. Belgium (Article 50), 26
October 1984, § 12, Series A no. 85). Having regard to the
violation found, the Court finds that this principle also applies in
the present 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 EUR 1,500 for the costs and expenses incurred
before the Court. These claims were not itemised or supported by any
documents.
- The
Government considered the claims to be unjustified.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present cases, having regard to the
fact that the applicants failed to produce any supporting documents,
the Court dismisses the claims for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- 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;
6. Holds that the respondent State, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, shall secure, by appropriate
means, the enforcement of the domestic courts’ judgments in the
applicants’ favour;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
sums:
–
Mrs Simuzer Hajiyeva (application no. 50766/07) – EUR 7,174
(seven thousand one hundred and seventy-four euros) in respect of
pecuniary damage and EUR 4,800 (four thousand eight hundred euros) in
respect of non-pecuniary damage;
–
Mrs Tatyana Tokareva (application no. 50786/07) – EUR 11,456
(eleven thousand four hundred and fifty-six euros) in respect of
pecuniary damage and EUR 4,800 (four thousand eight hundred euros) in
respect of non-pecuniary damage;
–
Mr Aslan Huseynov (application no. 50871/07) – EUR 10,545.91
(ten thousand five hundred and forty-five euros and ninety-one
cents) in respect of pecuniary damage and EUR 4,800 (four thousand
eight hundred euros) in respect of non-pecuniary damage; and
–
Mrs Gular Aliyeva (application no. 50913/07) – EUR 10,376 (ten
thousand three hundred and seventy-six euros) in respect of pecuniary
damage and EUR 4,800 (four thousand eight hundred euros) in respect
of non-pecuniary damage;
(b) that
the above amounts shall be converted into New Azerbaijani manats at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(c) 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’
claim for just satisfaction.
Done in English, and notified in writing on 8 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
APPENDIX
Table
I
|
Application
no.
|
Name of
the applicant
|
Date of
issue of the occupancy voucher
|
Date of
final domestic judgment
|
|
50766/07
|
Simuzer
Hajiyeva
|
21 January
1998
|
9 July
1998, the Yasamal District Court
|
|
50786/07
|
Tatyana
Tokareva
|
16 June
1998
|
12 October
1998, the Yasamal District Court
|
|
50871/07
|
Aslan
Huseynov
|
21 January
1998
|
4 March
2003, the Yasamal District Court
|
|
50913/07
|
Gular
Aliyeva
|
16 March
1998
|
2 April
2004, the
Yasamal District Court
|
Table
II
|
Application
no.
|
Claim
for pecuniary damage (EUR)
|
Sum
accepted by the Government in respect of pecuniary damage (EUR)
|
Claim for
non-pecuniary damage(EUR)
|
Claim for
cost and expenses (EUR)
|
|
50766/07
|
72,944
|
7,174
|
25,000
|
1,500
|
|
50786/07
|
68,809
|
11,456
|
20,000
|
1,500
|
|
50871/07
|
68,809
|
10,545.91
|
20,000
|
1,500
|
|
50913/07
|
72,944
|
10,376
|
25,000
|
1,500
|
