[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF MIRZAYEV v.
AZERBAIJAN
(Application
no. 50187/06)
JUDGMENT
STRASBOURG
3 December 2009
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 Mirzayev v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 12 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 50187/06) 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 Yadigar Mirzayev (“the applicant”), on 14 November
2006.
- The
Azerbaijani Government (“the Government”) were
represented by their Agent, Mr Ç. Asgarov.
- The
applicant alleged, in particular, that the failure to enforce the
judgment of 23 December 2003 violated his right to a fair trial and
his property rights, as guaranteed by Article 6 of the Convention and
Article 1 of Protocol No. 1 to the Convention.
- On
19 November 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Baku.
- By
an order of the Azizbeyov District Executive Authority (“ADEA”)
of 18 January 1994, the applicant was issued an occupancy voucher
(yaşayış orderi) to a flat in a recently
constructed residential building in Baku.
- On the same day, the applicant became aware that the
flat was occupied by S. and his family, who were internally displaced
persons (“IDP”) from Lachin, a region under the
occupation of the Armenian military forces following the
Armenian-Azerbaijani conflict over Nagorno Karabakh.
- According to the applicant,
despite his numerous demands, S. refused to vacate the flat, pointing
out that he was an IDP and had no other place to reside in.
- On
an unspecified date in 2003, the applicant lodged an action with the
Surakhany District Court asking the court to order the eviction of S.
and his family from the flat.
- On
23 December 2003 the Surakhany District Court granted the applicant’s
claim and ordered that S. and his family be evicted from the flat.
The court noted that S. and his family were IDPs who had illegally
settled in the flat in 1993. The court held that, pursuant to the
occupancy voucher issued to him by the ADEA on 18 January 1994, the
applicant was the lawful tenant of the flat and, as such, had a right
to demand S. to vacate it. Moreover, the court noted that, in
accordance with the domestic law, IDPs could be allowed to
temporarily settle of their own will only if this did not infringe
the rights and lawful interests of other persons; otherwise, the
local executive authorities had to ensure their resettlement in other
accommodation. In the present case, since the applicant’s
property rights had been infringed, the Surakhany District Executive
Authority (“SDEA”) was ordered to provide S. and his
family with other accommodation.
- No
appeals were filed against this judgment and it entered into legal
force. However, S. refused to comply with the judgment and, despite
the applicant’s complaints to various authorities, it was not
enforced.
- On
22 February 2005 the Department of Judicial Observers and Enforcement
Officers of the Ministry of Justice informed the applicant that it
was impossible to execute the judgment of 23 December 2003, because
the local authorities could not find other accommodation for S. and
his family. In such circumstances, the authorities were barred from
taking any measures to evict IDPs from their temporary place of
residence.
- On
24 March 2005 the SDEA informed the applicant that, at that time,
there were more than 25,000 IDPs temporarily settled in the Surakhany
District. These IDPs lived in various flats, hotels, administrative
buildings and other premises. For this reason, there was no more
available accommodation in the district in which S. and his family
could be resettled. Therefore, it was impossible to execute the
judgment of 23 December 2003.
- Following
the applicant’s repeated complaints, on 5 May 2006 the SDEA
again informed the applicant that, due to the continuous lack of any
other accommodation where S. and his family could be moved, it was
impossible to execute the judgment.
- At
the time of the latest communication with the applicant, the judgment
of 23 December 2003 remained unenforced.
II. RELEVANT DOMESTIC LAW
A. Housing Code of 1 March 1983
- Azerbaijani citizens are
entitled to obtain a right of use of apartments owned by the State or
other public bodies, under the terms of a tenancy agreement (Articles
10 and 28). A decision on granting an apartment is implemented
by way of issuing the citizen with an occupancy voucher
(yaşayış sahəsi orderi)
from the local executive authority (Article 48). The voucher serves
as the sole legal basis for taking possession of the apartment
designated therein (Article 48) and for concluding a tenancy
agreement (yaşayış sahəsini icarə
müqaviləsi) between the tenant
and the housing maintenance authority (Article 51). The right of use
of apartments is granted for an indefinite term (Article 10).
B. Law on Privatisation of Housing of 26 January 1993
- Individuals residing, pursuant
to a tenancy agreement, in apartments owned by the State and other
public bodies have a right to transfer those apartments into their
private ownership (Article 1). Such privatisation is voluntary and
free of charge (Article 2). The right to privatise a State-owned
apartment free of charge may be exercised only once (Article 7).
C. Law on Social Protection of Internally Displaced
Persons and Individuals Equated to Them of 21 May 1999
- IDPs are defined as “persons
displaced from the places of their permanent residence in the
territory of the Republic of Azerbaijan to other places within the
territory of the country as a result of foreign military aggression,
occupation of certain territories or continuous gunfire”
(Article 2). The IDPs may be allowed to temporarily settle on
their own only if the rights and lawful interests of other persons
are not infringed. Otherwise, the relevant executive authority must
ensure resettlement of the internally displaced persons in other
accommodation (Article 5).
D. Regulations on Settlement of Internally Displaced
Persons in Residential, Administrative and Other Buildings Fit for
Residence or Feasible to make to Fit for Residence, adopted by the
Cabinet of Ministers Resolution No. 200 of 24 December 1999
(“the IDP Settlement Regulations”)
- Article
4 of the IDP Settlement Regulations provides as follows:
“In order to prevent the eviction of the
internally displaced persons from dwellings in which they settled
during the period of 1992-1994, the legal force of the occupancy
vouchers issued by the relevant authorities to individual citizens in
respect of those dwellings shall be temporarily suspended...”
E. Regulations on Resettlement of Internally Displaced
Persons in Other Accommodation, adopted by the Cabinet of Ministers
Resolution No. 200 of 24 December 1999 (“the IDP Resettlement
Regulations”)
- Article
4 of the IDP Resettlement Regulations provides as follows:
“In cases where the temporary settling of
internally displaced persons breaches the housing rights of other
individuals, the former must be provided with other suitable
accommodation.”
F. Order of the President of the Republic of Azerbaijan
of 1 July 2004 on Approval of the State Program for Improvement of
Living Conditions and Increase of Employment of Refugees and
Internally Displaced Persons
- In
the order, inter alia, the relevant state organs of the
Republic of Azerbaijan are instructed that until the return of the
IDPs to their native lands or until their temporary settlement in new
houses, the eviction of the IDPs from the public apartments, flats,
land and other premises, regardless of their ownership, that they
resided in from 1992 to 1998 shall not be allowed.
G. Code of Civil Procedure of 1 September 2000 (“the
CCP”)
- Interested
persons may lodge an action against a decision and action (omission)
of the relevant executive authorities, local self-administration
authorities, other authorities and organisations or their officials
(Article 296).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant complained of an unjustified delay in the execution of the
judgment of 23 December 2003 and a violation of his property rights
as a result of non-enforcement of this judgment. Although the
applicant did not specifically rely on any Convention provisions, the
Court considers that the substance of this complaint must be examined
under Article 6 of the Convention and Article 1 of Protocol No. 1 to
the Convention. Article 6 reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
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.”
A. Admissibility
- The
Government argued that the applicant had failed to exhaust domestic
remedies. In particular, the Government alleged that the applicant
could have challenged the domestic authorities’ failure to
enforce the judgment of 23 December 2003 before the domestic courts
under the procedure stipulated by Article 296 of the Code of Civil
Procedure. However, the applicant failed to make use of this remedy.
- The
applicant disagreed with the Government and maintained his
complaints.
- The
Court reiterates that Article 35 § 1 of the Convention, which
sets out the rule on exhaustion of domestic remedies, provides for a
distribution of the burden of proof. It is incumbent on the
Government claiming non exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see Akdivar
and Others v. Turkey, 16 September 1996, § 68, Reports of
Judgments and Decisions 1996 IV, and Selmouni v. France
[GC], no. 25803/94, § 76, ECHR 1999 V). The Court
further emphasises that the domestic remedies must be “effective”
in the sense either of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
has already occurred (see Kudła v. Poland [GC],
no. 30210/96, § 158, ECHR 2000 XI).
- The
Court notes that the Government failed to provide any explanation as
to how a complaint concerning the continued non enforcement of
the judgment of 23 December 2003 lodged with the district court could
have put an end to the continued violation or to the kind of redress
which the applicant could have been afforded as a result of the
complaint. In any event, the Court observes that the applicant did
not complain about any unlawful action on the part of the competent
authorities but, rather, about the fact that the judgment was not
enforced. Even if the applicant had brought a complaint against the
State and obtained a decision confirming that the failure to enforce
the judgment of 23 December 2003 had been unlawful in domestic terms,
such an action would only have produced the same results, the only
outcome being confirmation of the judgment’s legal force
enabling the enforcement officers to proceed with the enforcement of
the judgment of 23 December 2003 (see, mutatis mutandis,
Tarverdiyev v. Azerbaijan, no. 33343/03, § 47, 26 July
2007 and Yavorivskaya v. Russia (dec.), no. 34687/02, 13
May 2004). Moreover, even assuming that the applicant could have
obtained compensation for the past delay, the Government have failed
to show that such proceedings would have been speedier than any other
“ordinary” civil suit, which could have lasted for years
and gone through several levels of jurisdiction, or, indeed, that
they could have been capable of expediting the enforcement in
question (see, mutatis mutandis, Ilić v. Serbia,
no. 30132/04, § 65, 9 October 2007).
- In
view of the above, the Court concludes that such an action would have
been ineffective and finds that the application cannot be rejected
for non-exhaustion of domestic remedies.
Furthermore, the Court considers 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.
B. Merits
1. The parties’ submissions
- The Government submitted that, due to the high number
of IDPs in Azerbaijan as a result of the Armenian-Azerbaijani
conflict over Nagorno Karabakh, the authorities took certain
measures in order to resolve the housing problem of the IDPs. The
Government further submitted that in the instant case the execution
of the judgment was impossible, because there had not been other
accommodation available to the IDPs settled in the flat in question.
Moreover, relying on different provisions of the domestic law (cited
in the Relevant Domestic Law section above), the Government alleged
that IDPs should not be evicted from their place of residence until
their return to their native lands or their resettlement in other
accommodation. Furthermore, the Government submitted that the
solution of the IDPs’ housing problem was one of the priorities
of the Government’s policy and that the relevant measures were
being implemented in this respect.
- The
applicant reiterated his complaint, noting that the continued
non enforcement of the judgment of 31 May 2001 had infringed his
right to a fair trial and his right to peaceful enjoyment of his
possessions.
2. The Court’s assessment
(a) Article 6 of the Convention
- At
the outset, the Court notes that it has already had an opportunity to
examine a case involving illegal occupation of a private flat by IDPs
(see Akimova v. Azerbaijan, no. 19853/03, 27 September 2007).
However, the issues of the present case are different from those in
the Akimova case. In the instant case, enforcement proceedings
were actually instituted by the domestic authorities and the
applicant had an enforceable judgment claim, whereas in the Akimova
case, the execution of the judgment was suspended by the judgment
itself (Ibid, §§ 14, 16 and 55).
- The
Court reiterates that Article 6 § 1
secures to everyone the right to have any claim relating to his civil
rights and obligations brought before a court or tribunal; in this
way it embodies the “right to a court”, of which the
right of access, that is, the right to institute proceedings before
courts in civil matters, constitutes one aspect. However, that right
would be illusory if a Contracting State’s domestic legal
system allowed a final, binding judicial decision to remain
inoperative to the detriment of one party. It would be inconceivable
that Article 6 § 1 should describe in detail procedural
guarantees afforded to litigants – proceedings that are fair,
public and expeditious – without protecting the implementation
of judicial decisions; to construe Article 6 as being concerned
exclusively with access to a court and the conduct of proceedings
would be likely to lead to situations incompatible with the principle
of the rule of law which the Contracting States undertook to respect
when they ratified the Convention. Execution of a judgment given by
any court must therefore be regarded as an integral part of the
“trial” for the purposes of Article 6 (see Hornsby
v. Greece, 19 March 1997, § 40, Reports of Judgments and
Decisions 1997 II).
- The
Court notes that a delay in the execution of a
judgment may be justified in particular circumstances. But the delay
may not be such as to impair the essence of the right protected under
Article 6 § 1 of the Convention (see Burdov v. Russia,
no. 59498/00, § 35, ECHR 2002 III).
The Court also reiterates that State responsibility for enforcement
of a judgment against a private party extends no further than the
involvement of State bodies in the enforcement procedures. When the
authorities are obliged to act in order to enforce a judgment and
they fail to do so, their inactivity can engage the State’s
responsibility under Article 6 § 1 of the Convention (see,
mutatis mutandis, Cebotari and Others v.
Moldova, nos. 37763/04, 37712/04,
35247/04, 35178/04 and 34350/04, § 39, 27 January
2009).
- The
Court observes that in the present case, the
judgment delivered in favour of the applicant has so far remained
unenforced for almost six years, thus preventing the applicant from
benefiting from the success of the litigation which concerned his
property rights. Moreover, despite the fact that the dispute was
between two private parties, the judgment of 23 December 2003
also ordered the executive authorities to provide S. and his family
with other accommodation. Therefore, unlike ordinary cases concerning
non-enforcement of a judgment between private parties, which
necessitate actions by a debtor who is a private person, and where
the State has to merely assist a creditor with the execution of a
judgment (see, for example, Fociac
v. Romania, no. 2577/02, §
70, 3 February 2005), in this case the execution of the judgment was
conditioned by the State’s obligation to provide S. and his
family with other accommodation (see §§ 10 and 12-13).
- The
Court is prepared to accept that, in the instant case, the high
number of IDPs in Azerbaijan created certain difficulties in the
execution of the judgment of 23 December 2003. Nevertheless, the
judgment remained in force, but for several years no adequate
measures were taken by the authorities to comply with it. It has not
been shown that the authorities had continuously and diligently
attempted to find other accommodation for S. and his family in order
to enforce the judgment 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
judgment.
- By
failing to take the necessary measures to comply with the final
judgment in the instant case, the authorities deprived the provisions
of Article 6 § 1 of the Convention of all useful effect (see
Burdov,
cited above, § 37).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
(b) Article 1 of Protocol No. 1 to the Convention
- The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 if it is sufficiently established to be enforceable (see Stran
Greek Refineries and Stratis Andreadis v. Greece, 9 December
1994, § 59, Series A no. 301 B).
- The
Court observes that in the present case the applicant did not own the
flat in question, but had only tenancy rights to it pursuant to the
occupancy voucher issued by the local executive authority. However,
the Court has found that a claim to a flat based on such an occupancy
voucher constitutes a “possession” falling within the
ambit of Article 1 of Protocol No. 1 (see Akimova, cited
above, §§ 39-41). In the present case, the applicant’s
tenancy right to the flat was recognised by the judgment of
23 December 2003. Moreover, the judgment ordered the eviction of
the IDPs from the flat, thus granting the applicant an enforceable
claim to recover the use of the flat in question.
- The
judgment had become final and enforcement proceedings had been
instituted, giving the applicant a right to recover the use of the
flat. It follows that the impossibility for the applicant to obtain
the execution of this judgment constituted an interference with his
right to peaceful enjoyment of his possessions, as set out in the
first sentence of the first paragraph of Article 1 of Protocol No. 1.
For the reasons set out in § 35 above, the Court finds that no
acceptable justification for this interference has been advanced by
the Government.
- Accordingly,
there has also been a violation of Article 1 of Protocol No. 1 to the
Convention.
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.”
- The
applicant demanded that the judgment of 23 December 2003 be enforced,
but did not submit a claim for just satisfaction. Accordingly, the
Court considers that there is no call to award him any sum on that
account.
- However,
the Court considers that, in so far as the judgment of 23 December
2003 remains in force, the State’s outstanding obligation to
enforce it cannot be disputed. Accordingly, the applicant is still
entitled to enforcement of that judgment. 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 in the present case this
principle applies as well. It therefore considers that the Government
must secure, by appropriate means, the enforcement of the judgment of
23 December 2003.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
4. 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 court’s judgment of 23
December 2003.
Done in English, and notified in writing on 3 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
