FIRST
SECTION
CASE OF ISRAFILOVA AND AGALAROV v.
AZERBAIJAN
(Applications
nos. 16806/11 and 61696/11)
JUDGMENT
STRASBOURG
10 October 2013
This judgment is final but it may be subject to editorial
revision.
In the case of Israfilova and Agalarov v.
Azerbaijan,
The European Court of Human Rights (First Section), sitting as
a Committee composed of:
Julia Laffranque, President,
Khanlar Hajiyev,
Dmitry Dedov, judges,
and André Wampach, Deputy
Section Registrar,
September
2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in two applications
(nos. 16806/11 and 61696/11) 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 two Azerbaijani
nationals, Ms Rozakhanim Israfilova (“the first applicant”) and Mr Miryusif
Agalarov (“the second applicant”), on 28 February and 20 September 2011
respectively.
The applicants were represented by Mr R. Mustafazada,
a lawyer practising in Azerbaijan. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç. Asgarov.
On 4 July 2012 the applications were communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1950 and 1946
respectively and live in Sumgayit.
The first applicant has tenancy rights to her
flat on the basis of an occupancy voucher (yaşayış sahəsi orderi)
and the second applicant is an owner of his flat on the basis of an ownership
certificate issued by the competent domestic authority (see Appendix - Table
I).
In both 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.
The applicants lodged separate civil actions
before the domestic courts seeking the eviction of the IDPs from their flats.
On the dates indicated in the Appendix, the
applicants’ claims were granted by the domestic courts, which ordered the
eviction of the IDPs from their flats.
In application no. 16806/11 (lodged by the
first applicant) the execution of the judgment was postponed, by virtue of the
judgment’s operative provision, until IDPs’ return to their land or their
settlement in other temporary accommodation.
. No
appeals were filed against these judgments and, pursuant to the domestic law in
force at the material time, they became enforceable within one month after
their delivery. However, the IDP families refused to comply with those
judgments and despite the applicants’ complaints to various authorities,
the judgments were not enforced.
The applicants instituted court actions against
the enforcement authorities complaining of their inactivity and seeking prompt
execution of the judgments. On 19 March 2010 the Sumgayit City Court dismissed Ms Israfilova’s
claims. On 11 May 2010 the Sumgayit Court of Appeal considered her appeal
inadmissible. On 21 May 2011 the Sumgayit City Court granted Mr Agalarov’s
claims, ordering immediate execution of the judgement.
II. RELEVANT DOMESTIC LAW
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).
THE LAW
I. ALLEGED VIOLATIONS 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 about
the non-enforcement of the judgments in their favour. Article 6 § 1 of
the Convention reads, as far as relevant, 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.”
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.
A. Admissibility
The Court notes that the applications are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention or inadmissible on any other grounds. They must, therefore, be
declared admissible.
B. Merits
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.
Having examined all the material 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.
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.
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).
There has accordingly been a violation of
Article 6 § 1 of the Convention and 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 applicants did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call to award
them any sum on that account.
However, 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 both 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides
to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 6 § 1 of
the Convention;
4. Holds that there has been a violation of Article 1 of
Protocol No. 1 to the Convention;
5. Holds that that the respondent State, within three
months, shall secure, by appropriate means, the enforcement of the final
domestic judgments in the applicants’ favour.
Done in English,
and notified in writing on 10 October 2013, pursuant to Rule 77 §§ 2 and 3
of the Rules of Court.
André Wampach Julia
Laffranque
Deputy Registrar President
APPENDIX
|
Case no.
|
Applicant’s name
|
Document
confirming the applicant’s property rights
|
Date of
delivery of the enforceable judgments
|
Date of
lodging of the application with the Court
|
Applicant’s
Representative
|
/11
|
Rozakhanim Israfilova
|
Occupancy voucher of 10 December
1996
|
The Sumgayit City Court’s judgment of
7 March 2006
|
February
2011
|
Ruslan Mustafazada
|
/11
|
Miryusif Agalarov
|
Ownership certificate of 3 April
2008
|
The Sumgayit City Court’s judgment of
21 October 2010
|
September
2011
|
Ruslan
Mustafazada
|
