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FIRST
SECTION
CASE OF HUMBATOV v.
AZERBAIJAN
(Application
no. 13652/06)
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 Humbatov 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. 13652/06) 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 Nail Humbatov (“the applicant”), on 23 March 2006.
- The
applicant, who had been granted legal aid, was represented by Mr M.
Mustafayev, a lawyer practising in Baku. 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 31 May 2001 had 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
13 March 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
- The
applicant was born in 1941 and lives in Baku.
- The
applicant was the sole owner and director of Nail Commercial Firm
(“the Company”), established on 2 March 1992 in Baku. It
appears from the case file that the Company was registered on 22
January 1993 and, that, according to the company’s charter, the
applicant was its sole founder.
- By
an order of the Baku City Executive Authority (“the BCEA”)
of 7 February 1996, the Company was granted the right of use of
a plot of land in Baku for constructing and operating a health
centre. On 25 May 1998 the Company was granted an additional plot of
land adjacent to the original one. The total area of land granted to
the Company comprised 0.75 hectares (“the Plot”).
- The
Company obtained all necessary construction permits and
authorisations and paid all relevant fees. However, it did not start
any construction work.
- In
1998 the Plot was occupied by another private company, called Ruslan,
which commenced construction of a shopping centre on the Plot.
- After
writing several letters of complaint to the BCEA and the police, the
Company brought an action against the Khatai District Executive
Authority (“the KDEA”) and Ruslan, asking for protection
of its right of use of the Plot. On 29 October 1998 the Economic
Court (acting as a first instance court) rejected the Company’s
claim. The court found that Ruslan had occupied the Plot illegally.
However, the court noted that, due to the fact that a substantial
amount of construction had been carried out on the site, it was
impracticable to demolish the buildings constructed by Ruslan.
Therefore, the court held that the buildings illegally constructed by
Ruslan were to be confiscated in favour of the State, while the BCEA
was ordered to grant the Company another plot of land of similar
value.
- Following
a series of appeals by the Company, on 31 May 2001, the Economic
Court (acting as an appeal court) quashed the judgment of 29 October
1998 and granted the Company’s claim. The court ordered the
demolition of buildings constructed by Ruslan and restoration of the
Company’s right of use of the Plot. No cassation appeals were
lodged against this judgment and it entered into legal force.
- It
appears from the case file that the applicant applied to
various authorities complaining that the judgment of 31 May 2001 had
not been enforced.
- On
29 January 2002 the Economic Court issued a special decision (xüsusi
qərardad), instructing the Khatai District
Prosecutor’s Office to institute criminal proceedings against
those responsible for the non enforcement of the judgment.
- Upon
a request by the Company, on 1 July 2003 the Economic Court issued a
special decision interpreting the operative part of the judgment of
31 May 2001. The court clarified that the Plot must be vacated by any
third parties, that access to the Plot must be restricted and that
the illegally constructed buildings must be demolished by the KDEA.
Thereafter, the Plot was to be transferred to the Company.
- In
August 2003 the Khatai District Department of
Judicial Observers and Enforcement Officers informed the
Economic Court that the enforcement of the judgment was impossible
due to the KDEA officials’ refusal to demolish the illegally
constructed buildings.
- On
11 September 2003 the Economic Court issued a special decision
instructing the Khatai District Prosecutor’s Office to
institute criminal proceedings against the relevant KDEA officials.
On 17 October 2003 the Khatai District Prosecutor’s Office
refused to institute criminal proceedings.
- In
the meantime, the KDEA requested the President of the Supreme Court
to reopen the proceedings and have the judgment of 31 May 2001
reviewed by the Plenum of the Supreme Court. By a letter of 20
October 2003 the President of the Supreme Court rejected this
request, finding no grounds to reopen the proceedings.
- It
appears from the case file that in the meantime the Ministry of
Economic Development (“the MED”) had issued ownership
certificates to third parties in respect of the Plot. On an
unspecified date in 2005, the applicant lodged a lawsuit against the
MED and those persons asking the court to declare void all the
ownership certificates issued in respect of this Plot. On 23 December
2005 the Khatai District Court dismissed the applicant’s claim.
After a series of appeals by the applicant, on 18 November 2008
the Court of Appeal upheld the first-instance court’s judgment.
The Court of Appeal noted that, as the Plot had been sold at auction
to a third party in 1999 when it belonged to the State pursuant to
the judgment of 29 October 1998, the ownership certificates issued by
the MED were in accordance with the relevant law. On 10 March 2009
the Supreme Court upheld the Court of Appeal’s judgment.
- At
the time of the latest communication with the applicant, the judgment
of 31 May 2001 had not been enforced.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant complained under Article 6 § 1 that the Economic
Court’s judgment of 31 May 2001 had not been enforced. He also
complained that the non-enforcement of the judgment of 31 May 2001
had infringed his right to peaceful enjoyment of his possessions as
secured by 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
1. The applicant’s victim status
- The
Court observes that the applicant was the sole owner and director of
the Company. It appears from the applicant’s submissions that
he had lodged the application solely in his own name and complained
about violations of his personal rights as the owner and director of
the Company. In this regard, the Court reiterates that the term
“victim” in Article 34 of the Convention denotes the
person directly affected by the act or omission which is at issue
(see, for example, Eckle v. Germany, 15 July 1982, § 66,
Series A no. 51). To this effect, the Court notes that the sole owner
of a company can claim to be a “victim” within the
meaning of Article 34 of the Convention in so far as the impugned
measures taken with regard to his or her company are concerned (see
Nosov v. Russia (dec.), no. 30877/02, 20 October 2005).
Having regard to the absence of competing interests which could
create difficulties, for example, in determining who is entitled to
apply to the Court and in the light of the circumstances of the case
as a whole, the applicant can, in the Court’s opinion,
reasonably claim to be a victim within the meaning of Article 34 of
the Convention, in so far as the impugned measures taken with regard
to his company are concerned (see Ankarcrona v. Sweden
(dec.), no. 35178/97, ECHR 2000 VI).
2. The Court’s competence ratione temporis
- The
Government argued that the complaint was incompatible with the
Convention ratione temporis because the judgment of 31 May
2001 had been delivered prior to 15 April 2002, the date of the
Convention’s entry into force in respect of Azerbaijan.
- The Court reiterates that it is only competent to
examine complaints of violations of the Convention arising from
events that have occurred after the Convention had entered into force
with respect to the High Contracting Party concerned (see, for
example, Kazimova v. Azerbaijan (dec.), no. 40368/02, 6
March 2003). The Convention entered into force with respect to
Azerbaijan on 15 April 2002. However, the Court notes that in the
light of the authorities’ continued failure to execute the
judgment, the latter remains still unenforced. Therefore, there is a
continuous situation and the Court is therefore competent to examine
the part of the application relating to the period after 15 April
2002 (see Ilić v. Serbia, no. 30132/04, § 54,
9 October 2007, and Sladkov v. Russia,
no. 13979/03, § 16, 18 December 2008). The Government’s
objection must therefore be dismissed.
3. Domestic remedies
- The
Government argued that the applicant had failed to exhaust domestic
remedies. In particular, civil proceedings on property rights of
third parties in respect of the disputed plot were still pending
before the domestic courts at the time of lodging of the present
application. However, the Court notes that these civil proceedings
did not concern the enforcement of the judgment of 31 May 2001 and
cannot be considered a remedy to be exhausted within the meaning of
the Convention in this regard. Moreover, in any event, the
above-mentioned proceedings were terminated by the Supreme Court’s
final decision of 10 March 2009. Therefore, the Government’s
objection is irrelevant to the present complaint and should be
dismissed.
4. Conclusion
- The
Court considers that the application 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 alleged that the applicant did not have
any possessions within the meaning of the Convention and that the
disputed plot of land belonged to others. The Government submitted
that the applicant did not have any property rights, therefore there
was no violation of the applicant’s property rights under
Article 1 of Protocol No. 1 to the Convention. The Government’s
submissions were silent on the continued non-enforcement of the
judgment of 31 May 2001.
- 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 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 of 31 May 2001 delivered
in favour of the applicant deprived him of benefiting from the
success of the litigation which concerned his property rights.
- The
Court notes that, since the date of the Convention’s entry into
force with respect to Azerbaijan on 15 April 2002, the Economic
Court’s judgment of 31 May 2001 has remained unenforced for
almost seven and a half years. Before 15 April 2002, the judgment had
not been enforced for more than ten months. No reasonable
justification was advanced by the Government for this delay.
- 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 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 notes
that, by virtue of the judgment of 31 May 2001, the applicant
had an established “legitimate expectation” to obtain the
right of use of a specifically identified plot of land (see, mutatis
mutandis, Ostapenko
v. Ukraine, no. 17341/02, §§
44-48, 14 June 2007). The Court is therefore satisfied that the
applicant’s claim was sufficiently established to constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 to the Convention. The impossibility of obtaining execution of
the Economic Court’s judgment of 31 May 2001 constituted an
interference with the applicant’s 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 (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.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has also been a violation
of Article 1 of Protocol No. 1.
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 31 May 2001 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 31 May
2001 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
shall secure, by appropriate means, the enforcement of the judgment
of 31 May 2001.
- It
appears, however, that the plot of land in question is currently in
the ownership of third parties. In this connection, the Court points
out that its judgments are essentially declaratory in nature. In
general, it is primarily for the State concerned to choose the means
to be used in its domestic legal order in order to discharge its
legal obligation under Article 46 of the Convention (see Shofman
v. Russia, no. 74826/01, § 53, 24 November 2005, with
further references). By finding a violation of Article 6 § 1 in
the present case, the Court has established the Government’s
obligation to take appropriate measures to remedy the applicant’s
individual situation, that is to ensure compliance with the
applicant’s enforceable claim under the judgment of 31 May 2001
(compare with Fadeyeva v. Russia, no. 55723/00, § 142,
ECHR 2005-...). Whether such measures would involve restoring the
applicant’s right of use of the plot in question or providing
him with an equivalent plot or, if this proves impossible, granting
him reasonable compensation for non-enforcement, or a combination of
these and other measures, is a decision that falls to the respondent
State (see, mutandis mutadis, Tarverdiyev v. Azerbaijan,
no. 33343/03, § 66, 26 July 2007). The Court, however,
emphasises that any measures adopted must be compatible with the
conclusions set out in the Court’s judgment (see Assanidze
v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II,
with further references).
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 court’s judgment of 31
May 2001.
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
