BAKHSHIYEV AND OTHERS v. AZERBAIJAN - 51920/09 [2012] ECHR 808 (3 May 2012)


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    European Court of Human Rights
    You are here: BAILII >> Databases >> European Court of Human Rights >> BAKHSHIYEV AND OTHERS v. AZERBAIJAN - 51920/09 [2012] ECHR 808 (3 May 2012)
    URL: http://www.bailii.org/eu/cases/ECHR/2012/808.html
    Cite as: [2012] ECHR 808

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    FIRST SECTION







    CASE OF BAKHSHIYEV AND OTHERS v. AZERBAIJAN


    (Applications nos. 51920/09, 52329/09, 65799/10, 65856/10, 65864/10, 65880/10, 65886/10, 65892/10, 65906/10, 2354/11 and 2372/11)







    JUDGMENT





    STRASBOURG


    3 May 2012




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


    In the case of Bakhshiyev and Others v. Azerbaijan,

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

    Peer Lorenzen, President,
     Khanlar Hajiyev,
     Julia Laffranque, judges,
    and André Wampach, Deputy Section Registrar,

    Having deliberated in private on 10 April 2012,

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

    PROCEDURE

  1. The case originated in eleven 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”) by the following Azerbaijani nationals:

    2. 2.  The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

  2. On 7 April 2011 the President of the First Section decided to give notice of the applications to the Government. In accordance with Protocol No. 14, the applications were allocated to a Committee. It was also decided that the Committee would rule on the admissibility and merits of the applications at the same time (Article 29 § 1 of the Convention).

    3. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  3. All of the applicants have either tenancy rights to their flats on the basis of occupancy vouchers (yaşayış sahəsi orderi) issued by the relevant executive authorities or ownership rights to them on the basis of an ownership certificate issued by the competent domestic authority (see Appendix - Table I).

  4. In all cases, the applicants’ flats were unlawfully occupied by internally displaced persons (“IDPs”) from different regions of Azerbaijan under occupation by Armenian military forces following the Armenian Azerbaijani conflict over Nagorno-Karabakh.

  5. The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats.

  6. On the dates indicated in the Appendix (Table I), the applicants’ claims were granted by various domestic courts, which ordered the eviction of the IDPs from their flats.

  7. The respective judgments became final and enforceable. However, the IDP families refused to comply with those judgments and despite the applicants’ complaints to various authorities, the judgments were not enforced.

    8. II.  RELEVANT DOMESTIC LAW

  8. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010).

    9. THE LAW

    I.   ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

  9. Relying on Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the non-enforcement of the judgments in their favour. Article 6 § 1 of the Convention reads, as far as relevant, as follows:

    10. “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.”

  10. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.

    11. A.  Admissibility

    1.  The Court’s competence rationae temporis in applications nos. 51920/09, 52329/09, 65880/10, 65886/10, 65892/10 and 2372/11

  11. The Court observes that in the cases of Mr Bunyad Bakhshiyev (application no. 51920/09), Ms Sofya Zudova (application no. 52329/09), Mr Ilgar Ahmadov (application no. 65880/10), Ms Mahira Aliyeva (application no. 65886/10), Ms Sara Aliyeva (application no. 65892/10) and Ms Sehrada Bagirova (application no. 2372/11) the domestic judgments in the applicants’ favour were delivered prior to 15 April 2002, the date of the Convention’s entry into force in respect of Azerbaijan.

  12. The Court notes that in the light of the authorities’ continued failure to execute the judgments in question, they remained unenforced for a long period. Therefore, there was a continuous situation and the Court is thus competent to examine the part of the application relating to the period after 15 April 2002 (see Gulmammadova, cited above, § 26).

    13. 2.  Other admissibility criteria

  13. 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.

    14. B.  Merits

  14. The Court points out that the factual circumstances of these cases are similar and that the complaints and legal issues raised are identical to those in the Gulmammadova case (cited above), in which it found violations of Article 6 § 1 and Article 1 of Protocol No. 1.

  15. Having examined all the materials in its possession, the Court finds that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in respect of the present applications.

  16. 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 relation to the execution of the judgments in the applicants’ favour. Nevertheless, the judgments remained final and enforceable, but no adequate measures were taken by the authorities to ensure compliance with them. It has not been shown that the authorities acted with expedition and diligence in taking any measures necessary for the enforcement of the judgments in question. In such circumstances, the Court considers that no reasonable justification has been advanced by the Government for the significant delay in the enforcement of the judgments.

  17. As regards the applicants’ submissions concerning 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 were taken by the domestic authorities in order to comply with their duty to balance the applicants’ right to peaceful enjoyment of their possessions protected under Article 1 of Protocol No. 1 to the Convention against the IDPs’ right to be provided with accommodation. In such circumstances, the failure to ensure the execution of the judgments for considerable periods of time resulted in a situation in which the applicants were forced to bear an excessive individual burden. The Court considers that, in the absence of any compensation for this excessive individual burden, 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).

  18. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

  19. The Court does not consider it necessary to rule on the complaint under Article 13 of the Convention because Article 6 is the lex specialis in respect of this part of the applications (see, for example, Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25 October 2007).

    20. II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  20. Article 41 of the Convention provides:

    21. “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

  21. The applicants, except for Ms Sofya Zudova (application no. 52329/09) claimed various sums as indicated in the Appendix (Table II) in respect of pecuniary damage.

    22. - Mr Bunyad Bakhshiyev (application no. 51920/09), claimed EUR 17,203, which included the amount he allegedly paid for renovation works in his flat and the amount he allegedly paid for renting another flat.

    - Ms Gulzar Akbarova (application no. 65799/10), Mr Asim Gabulov (application no.  65864/10), Mr Ilgar Ahmadov (application no. 65880/10), Ms Mahira Aliyeva (application no. 65886/10), Ms Sara Aliyeva (application no. 65892/10), Ms Almaz Akbarova (application no. 65906/10), Mr Nazim Namazov (application no. 2354/11) and Ms Sehrada Bagirova (application no. 2372/11) claimed each EUR 22,757, which included the loss of rent as calculated from the date of the Convention’s entry into force in respect of Azerbaijan and as indexed according to the National Bank’s interest rates.

    - Mr Tofig Mammadov (application no. 65856/10) claimed EUR 26,223, which included the loss of rent as calculated from the date of the Convention’s entry into force in respect of Azerbaijan and as indexed according to the National Bank’s interest rates.

  22. The Government submitted that Mr Bunyad Bakhshiyev failed to submit any documents in support of his claims. The Government also submitted that no award should be made to Ms Almaz Akbarova as allegedly the renovation expenses the applicant would have incurred would excede the amount she would gain from renting the flat. As to the claims submitted by the other applicants, the Government indicated their willingness to accept the applicants’ claims for pecuniary damage up to the respective amounts indicated in the Appendix (Table II).

  23. The Court considers that the applicants must have suffered pecuniary damage as a result of their lack of control over their flats and finds that there is a causal link between the violations found and the pecuniary damage claimed in respect of lost rent (compare Radanović v. Croatia, no. 9056/02, §§ 62-66, 21 December 2006). However, the Court considers that the damage suffered by Ms Gulzar Akbarova (application no. 65799/10), Mr Tofig Mammadov (application no. 65856/10), Mr Asim Gabulov (application no. 65864/10), Ms Almaz Akbarova (application no. 65906/10) and Mr Nazim Namazov (application no. 2354/11) should be calculated starting from the date of delivery of each respective judgment in the applicants’ favour. The damage suffered by Mr Ilgar Ahmadov (application no. 65880/10), Ms Mahira Aliyeva (65886/10), Ms Sara Aliyeva (application no. 65892/10) and Ms Sehrada Bagirova (application no. 2372/11) should be calculated from the date of the Convention’s entry into force in respect of Azerbaijan. The Court rejects the claim in respect of the renovation expenses and for renting another flat submitted by Mr Bunyad Bakhshiyev (application no. 51920/09) as he failed to submit any documents in support of his claims.

  24. Having examined the parties’ submissions in applications nos. 65799/10, 65856/10, 65864/10, 65880/10, 65886/10, 65892/10 65906/10, 73346/10, 2354/11 and 2372/11 the Court will take as a reference point the amounts set forth in a local company’s estimates, submitted by the parties.

  25. In making its assessment, the Court takes into account the fact that the applicants would inevitably have experienced certain delays in finding suitable tenants and would have incurred certain maintenance expenses in connection with the flats. They would have also been subject to taxation (see Prodan v. Moldova, no. 49806/99, § 74, ECHR 2004 III (extracts); Popov v. Moldova (no. 1) (just satisfaction), no. 74153/01, § 13, 17 January 2006; and Radanović, cited above, § 65). ). Having regard to the foregoing, and deciding on an equitable basis, the Court awards the following amounts to the applicants:

    26. - Ms Gulzar Akbarova, (application no. 65799/10): EUR 10,000

    - Mr Tofig Mammadov (application no. 65856/10): EUR 5,700

    - Mr Asim Gabulov, (application no. 65864/10): EUR 5,700

    - Mr Ilgar Ahmadov (application no. 65880/10): EUR 9,880

    - Ms Mahira Aliyeva (application no. 65886/10): EUR 9,880

    - Ms Sara Aliyeva (application no. 65892/10): EUR 9,880

    - Ms Almaz Akbarova (application no. 65906/10): EUR 3,100

    - Mr Nazim Namazov (application no. 2354/11): EUR 5,200

    - Ms Sehrada Bagirova (application no. 2372/11): EUR 9,880

    No award is made to Mr Bunyad Bakhshiyev (application no. 51920/09) and Ms Sofya Zudova (application no. 52329/09) for the reasons mentioned in paragraphs 22 and 24 above.

    2.  Non-pecuniary damage

  26. Each applicant, except for Mr Bunyad Bakhshiyev (application no. 51920/09) and Ms Sofya Zudova (application no. 52329/09) claimed an amount of EUR 15,000 in respect of non-pecuniary damage.

  27. The Government indicated their willingness to accept the applicants’ claims for non-pecuniary damage up to the respective amounts indicated in the Appendix (Table II).

  28. The Court considers that the applicants must have sustained some non-pecuniary damage as a result of the lengthy non-enforcement of the final judgments in their favour. However, the amounts claimed in most of the cases 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:

    29. -Ms Gulzar Akbarova (application no. 65799/10): EUR 3,600;

    -Mr Tofig Mammadov (application no. 65856/10): EUR 3,000;

    -Mr Asim Gabulov (application no. 65864/10): EUR 3,000;

    -Mr Ilgar Ahmadov (application no. 65880/10): EUR 3,600;

    -Ms Mahira Aliyeva (application no. 65886/10): EUR 3,600;

    -Ms Sara Aliyeva (application no. 65892/10): EUR 3,600;

    -Ms Almaz Akbarova (application no. 65906/10): EUR 1,500;

    -Mr Nazim Namazov (application no. 2354/11): EUR 2,400; and

    -Ms Sehrada Bagirova (application no. 2372/11) - EUR 3,600.


  29. 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 in all cases are still entitled to the 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.

    30. B.  Costs and expenses

  30. Each applicant, except for Mr Bunyad Bakhshiyev (application no. 51920/09) and Ms Sofya Zudova (application no. 52329/09) claimed EUR 1,500 for the costs and expenses incurred before the domestic courts and the Court.

  31. The Government considered the claims to be unjustified.

  32. 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.

    33. 34 Mr Bunyad Bakhshiyev (application no. 51920/09) and Ms Sofya Zudova (application no. 52329/09) did not submit any claim for costs and expenses incurred before the Court. Accordingly, the Court considers that there is no call to award them any sum under this head.

  33. As for the claims for costs and expenses by the remaining applicants, the Court notes that all the applicants were represented by the same lawyer (Mr Ismayilov) in the proceedings before the Court. Having regard to the services stipulated in the relevant contracts between the applicants and Mr Ismayilov and the services actually rendered, the Court considers that the amounts claimed do not correspond to the legal assistance that was actually provided and was necessary in the present cases. The Court further notes the similarity of the complaints and legal arguments submitted in all cases and observes that substantial parts of the lawyer’s submissions in all cases were either identical or very similar. In view of the above considerations, the Court awards the total amount of EUR 2,000 jointly to Ms Gulzar Akbarova (application no. 65799/10), Mr Tofig Mammadov (application no. 65856/10), Mr Asim Gabulov (application no. 65864/10), Mr Ilgar Ahmadov (application no. 65880/10), Ms Mahira Aliyeva (application no. 65886/10), Ms Sara Aliyeva (application no. 65892/10), Ms Almaz Akbarova (application no. 65906/10), Mr Nazim Namazov (application no. 2354/11) and Ms Sehrada Bagirova (application no. 2372/11) in respect of the legal services rendered by Mr Ismayilov.

    34. C.  Default interest

  34. 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.

    35. FOR THESE REASONS, THE COURT UNANIMOUSLY

  35. Decides to join the applications;


  36. Declares the applications admissible;


  37. Holds that there has been a violation of Article 6 § 1 of the Convention;


  38. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;


  39. Holds that there is no need to examine the complaint under Article 13 of the Convention;


  40. Holds that the respondent State, within three months, according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the domestic courts’ judgments in the applicants’ favour;


  41. Holds

    42. (a)  that the respondent State is to pay the applicants, within three months, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:

    (i)  in respect of damage:

    - Ms Gulzar Akbarova (application no. 65799/10) EUR 10,000 (ten thousand euros) in respect of pecuniary damage and EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    - Mr Tofig Mammadov (application no. 65856/10) EUR 5,700 (five thousand seven hundred euros) in respect of pecuniary damage and EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    - Mr Asim Gabulov (application no. 65864/10) EUR 5,700 (five thousand seven hundred euros) in respect of pecuniary damage and EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    - Mr Ilgar Ahmadov (application no. 65880/10) EUR 9,880 (nine thousand eight hundred eighty euros) in respect of pecuniary damage and EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    - Ms Mahira Aliyeva (application no. 65886/10) EUR 9,880 (nine thousand eight hundred eighty euros) in respect of pecuniary damage - and EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    - Ms Sara Aliyeva (application no. 65892/10) EUR 9,880 (nine thousand eight hundred eighty euros) in respect of pecuniary damage and EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    - Ms Almaz Akbarova (application no. 65906/10) EUR 3,100 (three thousand one hundred euros) in respect of pecuniary damage and EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    - Mr Nazim Namazov (application no. 2354/11) EUR 5,200 (five thousand two hundred euros) in respect of pecuniary damage and EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    - Ms Sehrada Bagirova (application no. 2372/11) EUR 9,880 (nine thousand eight hundred eighty euros) and EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    (ii)  in respect of costs and expenses, EUR 2,000 (two thousand euros), jointly for Ms Gulzar Akbarova (application no. 65799/10), Mr Tofig Mammadov (application no. 65856/10), Mr Asim Gabulov (application no. 65864/10), Mr Ilgar Ahmadov (application no. 65880/10), Ms Mahira Aliyeva (application no. 65886/10), Ms Sara Aliyeva (application no. 65892/10), Ms Almaz Akbarova (application no. 65906/10), Mr Nazim Namazov (application no. 2354/11) and Ms Sehrada Bagirova (application no. 2372/11) plus any tax that may be chargeable to the applicants, to be paid into the applicants’ representative’s bank account;

    (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;


  42. Dismisses the remainder of the applicants’ claim for just satisfaction.

    43. Done in English, and notified in writing on 3 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    André Wampach Peer Lorenzen
    Deputy Registrar President

    APPENDIX

    Table I


    Case no.

    Applicant’s name

    Document confirming the applicant’s property rights

    Date of delivery of the enforceable judgment

    Date of lodging of the application with the Court



    51920/09

    Mr Bunyat BAKHSHIYEV


    The ownership certificate of 16 May 2002

    The Binagadi District Court’s judgment 4 November 1994

    19/09/2009


    52329/09

    Ms Sofya ZUDOVA

    The occupancy voucher of 20 May 1993

    The Yasamal District Courts’ judgment of 25 April 2001

    17/09/2009


    65799/10

    Ms Gulzar AKBAROVA

    The occupancy voucher of 15 December 1997

    The Yasamal District Court’s judgment of 12 January 2004

    26/10/2010



    65856/10

    Mr Tofig MAMMADOV


    The occupancy voucher of 22 January 1998

    The Yasamal District Court’s judgment of 8 November 2007

    26/10/2010


    65864/10

    Mr Asim GABULOV

    The occupancy voucher of 25 February 2002

    The Yasamal District Court’s judgment of 17 September 2007

    26/10/2010


    65880/10

    Mr Ilgar AHMADOV

    The occupancy voucher of 3 August 1998

    The Yasamal District Court’s judgment of 21 December 1998

    26/10/2010

    65886/10

    Ms Mahira ALIYEVA

    The occupancy voucher of 2 February 1998

    The Yasamal District Court’s judgment of 19 June 1998

    26/10/2010

    65892/10


    Ms Sara ALIYEVA

    The occupancy voucher of 4 August 1998

    The Yasamal District Court’s judgment of 12 October 1998

    26/10/2010


    65906/10


    Ms Almaz AKBAROVA

    The occupancy voucher of 16 June 1998

    The Yasamal District Court’s judgment of 18 June 2009

    26/10/2010


    2354/11


    Mr Nazim NAMAZOV

    The occupancy voucher of 2 February 1998

    The Yasamal District Court’s judgment of 7 January 2008

    16/12/2010


    2372/11


    Ms Sehrada BAGIROVA

    The occupancy voucher of 21 January 1998

    The Yasamal District Court’s judgment of 9 July 1998

    16/12/2010


    Table II



    Case no.


    Applicant’s name

    Claim for pecuniary damage (EUR)

    Amounts accepted by the Government in respect of pecuniary damage

    Amounts accepted by the Government in respect of non-pecuniary damage

    51920/09

    Bunyad Bakhshaliyev

    17,203

    -

    -

    52329/09

    Sofya Zudova

    -

    -

    -

    65799/10

    Gulzar Akbarova

    22,757

    EUR 7,775

    1,200

    65856/10

    Tofig Mammadov

    26,223

    EUR 1,300

    1,200

    65864/10

    Asim Gabulov

    22,757

    EUR 988

    1,200

    65880/10

    Ilgar Ahmadov

    22,757

    EUR 9,880

    3,000

    65886/10

    Mahira Aliyeva

    22,757

    EUR 9,880

    3,000

    65892/10

    Sara Aliyeva

    22,757

    EUR 9,880

    3,000

    65906/10

    Almaz Akbarova

    22,757

    -

    1,200

    2354/11

    Nazim Namazov

    22,757

    EUR 448

    1,200

    2372/11

    Sehrada Bagirova

    22,757

    EUR 9,880

    3,000


     


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URL: http://www.bailii.org/eu/cases/ECHR/2012/808.html