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FIRST
SECTION
CASE
OF ISGANDAROV AND OTHERS v. AZERBAIJAN
(Applications
nos. 50711/07, 50793/07, 50848/07, 50894/07 and 50924/07)
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 Isgandarov 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 five 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 five Azerbaijani nationals:
–
Mr Asif Isgandarov, born in 1954, application no. 50711/07;
–
Mr Vasif Ismayilov, born in 1949, application no. 50793/07;
–
Ms Mirtarana Karimova, born in 1964, application no. 50848/07;
–
Mr Samid Karimov, born in 1959, application no. 50894/07; and
–
Ms Sadagat Ahmadova, born in 1959, application no. 50924/07.
- 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: on 23 October
2008 (application no. 50711/07), on 3 December 2008 (applications
nos. 50793/07 and 50848/07), on 17 December 2008 (application
no. 50894/07) and on 8 January 2009 (application no. 50924/07).
- 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 of the fact that their
respective flats had been occupied by families of internally
displaced persons (“IDP”) from different regions under
the occupation of 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.
A. Applications nos. 50711/07, 50793/07, 50848/07 and
50894/07
- 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, they 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
several requests 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. At the
time of the latest communications with the applicants, it appears
that after a series of appeals and quashings, none of the IDPs’
requests for postponement were upheld. These proceedings can be
summarised as follows.
- On
6 June 2008 the Yasamal District Court declared the defendants’
joint postponement request inadmissible for non-compliance with
procedural norms. The court explained that the IDPs should lodge
their requests separately.
- Such
separate requests were lodged by the IDP families concerned only by
two applications (nos. 50848/07 and 50894/07):
(a) As
for the IDPs concerned by application no. 50848/07, on 10 November
2008, the Yasamal District Court upheld the postponement request. On
19 December 2008 the Baku Court of Appeal upheld the postponement
decision. On 23 February 2009 the Supreme Court quashed the
postponement decision and returned the case for review to the Baku
Court of Appeal.
(b) As
for the IDPs concerned by application no. 50894/07, on 2 July 2008,
the Yasamal District Court upheld the postponement request. On
21 August 2008 the Baku Court of Appeal quashed the postponement
decision. On 20 October 2008 the Supreme Court upheld the quashing.
B. Application no. 50924/07
- In
the case of Ms Sadagat Ahmadova, on 12 April 2007, the Yasamal
District Court held that the applicant was the sole lawful tenant of
the flat on the basis of the occupancy voucher and that the IDP
family occupied the flat unlawfully. However taking into account the
fact that the defendant IDP family could not return to their
permanent place of residence in Lachin and, in the meantime had no
other place to reside, the court held that the execution of its
judgment should be postponed until they could return to Lachin or be
provided with another place of residence. The
applicant appealed against this judgment claiming misinterpretation
of the relevant law. On 6 November 2007 the Baku Court of Appeal
delivered a new judgment quashing the first-instance court’s
judgment in the part concerning the postponement of the judgment’s
execution. The Baku Court of Appeal reaffirmed the order on the
eviction of the defendant IDP family from the flat. No appeals were
filed against this judgment and it became enforceable.
C. Compensation proceedings
- On
an unspecified date in 2008, all 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. 50711/07 and 50793/07
- The
Court observes that in two cases (application nos. 50711/07
and 50793/07) 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. Therefore 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
- In
connection with the applications nos. 50711/07, 50793/07, 50848/07
and 50894/07, the Government argued that the applicants had failed to
exhaust domestic remedies. In this regard, the Government argued that
on the dates of introduction of the present applications before the
Court, the proceedings against the Department of Enforcement Officers
instituted by the applicants were still pending before the domestic
courts.
- 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, § 27). The Court refers to its
reasoning in that case and sees no ground to depart from it.
Therefore 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 three years 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 these cases.
- In
particular, the Court is prepared to accept that, in the instant
case, 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 (see
Gulmammadova,
cited above, § 40).
- Concerning
the applicants’ submissions about 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
applicant 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 ranging from EUR 20,000 to EUR
25,000 in respect of non pecuniary damage (see the Appendix,
Table II).
- 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 the following
amounts under this head, plus any tax that may be chargeable on these
amounts:
–
Mr Asif Isgandarov (no. 50711/07) – EUR 4,800;
–
Mr Vasif Ismayilov (no. 50793/07) – EUR 4,800;
–
Ms Mirtarana Karimova (no. 50848/07) – EUR 4,800;
–
Mr Samid Karimov (no. 50894/07) – EUR 4,800; and
–
Ms Sadagat Ahmadova (no. 50924/07) – EUR 1,600.
- Moreover,
the Court considers that, in so far as the judgments remain in force,
the State’s outstanding obligation to enforce them cannot be
disputed. Accordingly, the applicants are still entitled to
enforcement of those judgments. The Court reiterates that the most
appropriate form of redress in respect of a violation of Article 6,
is to ensure that the applicants as far as possible are put in the
position they would have been in had the requirements of Article 6
not been disregarded (see Piersack v. Belgium (Article 50), 26
October 1984, § 12, Series A no. 85). Having regard to the
violation found, the Court finds that this principle also applies in
the present cases. It therefore considers that the Government shall
secure, by appropriate means, the enforcement of the judgments in the
applicants’ favour.
B. Costs and expenses
- Each
of 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;
- 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:
–
Mr Asif Isgandarov (application no. 50711/07) – EUR 13,051
(thirteen thousand and fifty-one euros) in respect of pecuniary
damage and EUR 4,800 (four thousand eight hundred euros) in
respect of non pecuniary damage;
–
Mr Vasif Ismayilov (application no. 50793/07) – 12,191.35
(twelve thousand one hundred and ninety-one euros and thirty-five
cents) in respect of pecuniary damage and EUR 4,800 (four thousand
eight hundred Euros) in respect of non-pecuniary damage;
–
Ms Mirtarana Karimova (application no. 50848/07) – EUR 11,369
(eleven thousand three hundred and sixty-nine euros) in respect of
pecuniary damage and EUR 4,800 (four thousand eight hundred Euros) in
respect of non-pecuniary damage;
–
Mr Samid Karimov (application no. 50894/07) – EUR 10,407.8 (ten
thousand four hundred and seven euros and eight cents) in respect of
pecuniary damage and EUR 4,800 (four thousand eight hundred Euros) in
respect of non-pecuniary damage; and
–
Ms Sadagat Ahmadova (application no. 50924/07) – EUR 12,196
(twelve thousands one hundred and ninety-six euros) in respect of
pecuniary damage and EUR 1,600 (one thousand six 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.
|
Applicant
|
Date of
issue of the occupancy voucher
|
Date of
final domestic judgment
|
|
50711/07
|
Asif
Isgandarov
|
19 January
1998
|
20 April
1998, the Yasamal District Court
|
|
50793/07
|
Vasif
Ismayilov
|
21 January
1998
|
9 June
1999, the Yasamal District Court
|
|
50848/07
|
Mirtarana
Karimova
|
14 January
2000
|
16 May
2002, the Yasamal District Court
|
|
50894/07
|
Samid
Karimov
|
29 January
1998
|
11 July
2003, the Yasamal District Court
|
|
50924/07
|
Sadagat
Ahmadova
|
3
December 2007
|
6 November
2007, The Baku Court of Appeal
|
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
|
|
50711/07
|
72,944
|
13,051
|
25,000
|
1,500
|
|
50793/07
|
72,944
|
12,191.35
|
25,000
|
1,500
|
|
50848/07
|
68,809
|
11,369
|
20,000
|
1,500
|
|
50894/07
|
68,809
|
10,407.8
|
20,000
|
1,500
|
|
50924/07
|
72,944
|
12,196
|
25,000
|
1,500
|
