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FIRST
SECTION
CASE OF FABER FIRM AND JAFAROV v. AZERBAIJAN
(Application
no. 3365/08)
JUDGMENT
STRASBOURG
25
November 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 Faber Firm and
Jafarov v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
George Nicolaou,
judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 4 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3365/08) 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 Faber Firm (“the
applicant company”), a company with its office in Baku and an
Azerbaijani national, Mr Sabir Jafarov (“the applicant”),
together referred to as “the applicants”, on 8 January
2008.
- The
applicants were represented by Mr I. Aliyev, a lawyer practising in
Baku. The Azerbaijani Government (“the Government”) were
represented by their Agent, Mr Ç. Asgarov.
- The
applicants alleged, in particular, that the
failure to enforce the judgment of 12 October 2005 violated their
right to a fair trial and their property rights, as guaranteed by
Article 6 of the Convention and Article 1 of Protocol No. 1 to the
Convention.
- On
27 August 2008 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 § 1).
THE FACTS
- The
applicant, Mr Sabir Jafarov, was born in 1958 and lives in
Azerbaijan. He is the sole founder and the director of the applicant
company incorporated in Baku. He submitted the present application on
his own behalf and on behalf of the applicant company.
- By
an order of 24 July 2000, issued by the Baku City Executive
Authority (“the BCEA”), the applicant company was
provided with a plot of land of 400 square metres situated in Baku
with the purpose of construction of an automobile showroom. On 13
April 2002 the applicant company concluded a tenancy agreement with
the BCEA concerning a right of use of this plot of land for a period
of forty-nine years.
- It
appears from the case file that after obtaining the relevant
construction permit from the competent authorities, the applicant
company began to carry out construction work on the land in question.
However, in August 2002 the BCEA requested the applicant company to
suspend the construction work. By an order of 2 January 2003 the BCEA
annulled its order of 24 July 2000 and instructed that all the
construction carried out by the applicant company up to that point be
destroyed.
- On
an unspecified date, the applicant company brought an action against
the BCEA, asking for annulment of the order of 2 January 2003. The
applicant company also claimed compensation in respect of pecuniary
and non-pecuniary damage caused by the destruction of the structures
already built on the land plot.
- On
10 August 2005 Local Economic Court No. 1 delivered a judgment
granting the applicant company’s claim in part. The court held
that the BCEA’s order of 2 January 2003 had been unlawful and
that the applicant company’s right of use of the plot of land
should be restored. Moreover, the court awarded the applicant company
104,822,212 Old Azerbaijani manats (AZM) in
compensation for pecuniary damage, leaving the claim in
respect of non-pecuniary damage unexamined. The judgment was appealed
by both parties in the proceedings.
- On
12 October 2005 the Economic Court (acting as an appellate instance)
delivered a new judgment on the merits. The Economic Court upheld the
lower court’s judgment in the part concerning the unlawfulness
of the BCEA’s order of 2 January 2003. However, the Economic
Court dismissed the remainder of the applicant company’s
claims, including the claim in respect of pecuniary damage.
- On
23 December 2005 the Supreme Court upheld the Economic Court’s
judgment, noting that the material and procedural law had been
applied correctly.
- It
appears from the case file that, despite the applicant company’s
numerous demands and the fact that the writ of execution had been
sent several times to BCEA for execution, the applicant company’s
right of use of the plot of land was not restored.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- Relying
on Article 6 § 1 of the Convention and Article 1 of Protocol No.
1 to the Convention, the applicants complained of the non-enforcement
of the Economic Court’s judgment of 12
October 2005. Article 6 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
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 applicants had failed to exhaust domestic
remedies. In particular, the Government alleged that the applicants
could have challenged the domestic authorities’ failure to
enforce the judgment of 12 October 2005 before
the domestic courts. In this regard, the Government noted that the
applicants had not instituted any proceedings against the relevant
Department of Enforcement Officers.
- The
applicant disagreed with the Government and maintained his
complaints.
-
The Court notes that a similar objection had been raised by the
Government in similar cases and had been dismissed by the
Court (see, for example, Mirzayev v. Azerbaijan, no.
50187/06, §§ 24-28, 3 December 2009). The Court refers
to its reasoning in the above-mentioned case and sees no ground to
depart from it. Therefore the Government’s objection should be
dismissed.
- The
Court further notes that the application is not inadmissible on any
other grounds and manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
- The
Government accepted that the domestic courts recognised the
applicants’ right over the land plot. However, they argued that
as the land plot was located within the security zone surrounding (a
new) important highway, it could not be used by private persons. The
Government further submitted that the BCEA had informed, by two
letters, the Department of Enforcement Officers and the applicants on
the impossibility to restore the applicants’ right to the land
plot and therefore proposed to deliver to the applicants another land
plot in Baku. According to the Government, the applicants refused to
accept the proposed land plot.
- The
applicants reiterated their complaints, noting that the continued
non-enforcement of the judgment of 12 October 2005 had infringed
their right to a fair trial and their right to peaceful enjoyment of
their possessions. They did not comment on the Government’s
submissions concerning the BCEA’s proposal of another land
plot.
2. The Court’s assessment
(a) Articles 6 of the Convention
- 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 further 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 observes that in the present case the
continuing non-enforcement of the judgment delivered in favour of the
applicants deprived them of benefiting from the success of the
litigation which concerned their property rights.
- In
the Government’s view, this delay had been justified by the
impossibility of the access to a land plot located within the
security zone surrounding a highway. The Court cannot accept this
argument as a sufficient reason to justify the non-enforcement of the
judgment in the applicant’s favour, all the more because this
issue was not discussed before the domestic courts and because it is
not the Court’s task to substitute itself for the national
authorities and to evaluate the relevance of this argument.
Furthermore the Government submitted that the applicant did not
accept the BCEA’s proposal of a new land plot. However, the
Court observes that the BCEA’s letters generally concerned the
possibility of allocating a new land plot to the applicants but did
not contain any specific information concerning any such new land
plot. Furthermore, the case file does not contain any document
proving that the applicants received those letters. The Court
observes that the Government submitted no proof capable of persuading
it that they were in any way objectively precluded from complying
speedily with the judgment in question, or that they attempted to
find any satisfactory solution which would have mitigated the
detrimental effects of the non-enforcement on the applicants.
- In
such circumstances, the Court finds that, by failing for many years
to take necessary measures complying with the enforceable judgment in
the applicants’ favour, the authorities deprived the provisions
of Article 6 § 1 of all useful effect. Accordingly, there has
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 property-related claim can constitute a
“possession” 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 considers that, by virtue of the judgment of 12 October
2005, the applicants’ claim had been sufficiently
established so as to constitute a “possession”
within the meaning of Article 1 of Protocol No. 1 to the
Convention. The impossibility of obtaining the execution of the
judgment of 12 October 2005 constituted an interference with the
applicants’ right to peaceful enjoyment of their possessions,
as set out in the first sentence of the first paragraph of Article 1
of Protocol No. 1 (see Burdov,
cited above, § 40, and Jasiūnienė
v. Lithuania, no. 41510/98, § 45,
6 March 2003). The Government have not advanced any acceptable
justification for this interference.
- There
has accordingly 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.”
A. Damage
1. Pecuniary damage
- The
applicants claimed a total 143,135.5 new Azerbaijani mantas (AZN)
in respect of pecuniary damage. This amount included the alleged
expenses related to the initial construction works on the land plot
(AZN 5,000), an amount the applicants paid to a bank in
connection with a loan necessary for subsequent construction works on
the land plot (AZN 112,831.24), an amount that the applicants
paid to the BCEA as a lease fee and an amount including other
payments to relevant public bodies for various administrative
formalities (AZN 8,717.43), and an amount the individual applicant
allegedly paid for his medical treatment (AZN 16,586.63) further
to the stress and anxiety related to his inability to use the land
plot and to the material loss he suffered.
-
The Government contested the claim noting that the applicants had
failed to prove their claims. In particular, the Government argued
that the applicants had not submitted any proof on expenses related
to the initial construction work on the land plot. They further
submitted that the receipts of payments to the bank in connection
with the loan agreement and to the different public bodies did not
prove, as the applicants alleged, the purpose of this loan and
payments. The Government further submitted that the lease fee and
other payments related to the administrative formalities were the
applicants’ contractual obligations and could not be considered
as a pecuniary loss. Concerning the applicant’s claims related
to the medical expenses, the Government argued that there was no
casual link between this claim and the alleged violation of the
applicants’ rights.
- The
Court considers that the applicants have not submitted any
documentary evidence proving the amount of the alleged expenses
related to the construction work carried out on the land plot. As for
the remainder of the claims, no causal link has been established
between the alleged pecuniary loss and the violations found.
Therefore, the Court dismisses the applicants’ claim under this
head.
2. Non-pecuniary damage
- The
applicants claimed EUR 10,000 in respect of non pecuniary
damage.
- The
Government considered this amount unjustified and submitted that the
finding of a violation of the Convention would constitute sufficient
reparation.
- The
Court considers that the applicants must have sustained some
non-pecuniary damage as a result of the non-enforcement of the final
judgment in the applicant company’s favour. However, the amount
claimed is excessive. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicants jointly the sum of EUR 4,800 under this head, plus any tax
that may be chargeable on this amount.
- Moreover,
the Court considers that, in so far as the judgment of 12 October
2005 remains in force, the State’s outstanding obligation to
enforce it cannot be disputed. Accordingly, the applicant company 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 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 in the present
case this principle applies as well. It therefore considers that the
Government shall secure, by appropriate means, the enforcement of the
judgment of 12 October 2005.
B. Costs and expenses
- The
applicants also claimed AZN 2,250 for legal and translation services
(AZN 1,750 for legal fees and AZN 500 for translation expenses) and
AZN 300 for postal expenses. In support of their claims, they
submitted a contract for legal services rendered in the proceedings
before the Court and a contract for translation services. Both
contracts stipulated that the amounts due were to be paid in the
event that the Court found a violation of the applicants’
rights.
- The
Government considered that the claim was excessive in the part
concerning the legal and translation fees, taking into account the
nature and the volume of the case. As for the postal expenses, the
Government noted that this part of the claim was unsupported by any
evidence. The Government indicated their willingness to accept the
part of the applicants’ claim in an amount of up to AZN 650.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,500 covering costs
under all heads, plus any tax that may be chargeable to the
applicants on this amount.
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
- Declares the application 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 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’ judgment of 12
October 2005;
- Holds
(a) that
the respondent State is to pay the applicants, jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 4,800
(four thousand eight hundred euros) in respect of non-pecuniary
damage and EUR 1,500 (one thousand five hundred
euros) in respect of costs and expenses, plus any tax that may
be chargeable to the applicants, to be converted into New Azerbaijani
manats at the rate applicable at the date of settlement;
(b) 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 25 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina
Vajić
Deputy Registrar President
