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FIRST
SECTION
CASE OF SAFAROVA v. AZERBAIJAN
(Application
no. 35507/07)
JUDGMENT
STRASBOURG
14 October
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 Safarova 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 André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 23 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35507/07) 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,
Ms Zemfira Ali-Huseyn qizi Safarova (Zemfira Əli-Hüseyn
qızı Səfərova -
“the applicant”), on 31 July 2007.
- The
applicant was represented by Mr M. Mustafayev, a lawyer practising in
Azerbaijan. 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 3 July 2003 in her favour had violated her rights to a
fair trial and to an effective remedy as guaranteed by Articles 6 and
13 of the Convention and her property rights under Article 1 of
Protocol No. 1 to the Convention.
- On
7 November 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 was born in 1960 and lives in Baku.
- The
applicant was the owner of non-residential premises with
an area of 350 square metres situated in Baku (“the
Premises”). The ownership
certificate relative to the Premises was delivered to the applicant
on 17 July 1998 and
her ownership right was duly registered
in official records.
- Since
1993 the Premises had been occupied by Police Station no. 17 of the
Narimanov District Police Department (“the Police Station”).
- The
applicant wrote numerous letters to the
Ministry of Internal Affairs, the Ministry of Economic Development,
the Baku City Executive Authority, the Ombudsman’s Office, and
other public authorities, complaining of unlawful occupation of the
Premises by the Police Station. In 2002
and 2003, the applicant was informed by letters from the Ministry of
Internal Affairs and the Baku City Executive Authority that the
Police Station would vacate the Premises as soon as it was provided
with other premises by the Ministry of Economic Development.
- On
13 May 2003 the applicant lodged a lawsuit with the Narimanov
District Court claiming that she was the lawful owner of the Premises
and asking the court to order the eviction of the Police Station.
- On
3 July 2003 the Narimanov District Court granted the applicant’s
request. The court held that the applicant was the lawful owner of
the Premises on the basis of the ownership certificate of 17 July
1998 and that there was no legal basis for the installation of the
Police Station there. Moreover, the court stated that the Ministry of
Economic Development should provide the Police Station with other
premises.
- No
appeals were filed against that judgment and, pursuant to domestic
law, it became enforceable within one
month after its delivery.
- According
to the case file, between 2003 and 2006 the Ministry of Economic
Development offered the Police Station different premises. However
the Head of the Police Station refused to move to those premises
stating that they were not suitable for a police station.
- On
10 November 2008 the Narimanov District Executive Authority allocated
a plot of land for the construction of a building for the Police
Station.
- In
2009 the Ministry of Internal Affairs commenced an action against the
applicant challenging the lawfulness of the applicant’s
ownership rights in respect of the Premises. On 8 April 2009 the
Narimanov District Court rejected the Ministry’s claim. The
court found that the Ministry of Internal Affairs had no right to
lodge a claim concerning the Premises, that the time-limits provided
for challenging the applicant’s ownership right in respect of
the Premises had expired, and that the matter was res
judicata as the applicant’s
ownership had been confirmed by the judgment of 3 July 2003.
- On
15 April 2009 a criminal case was launched by the Ministry of
Internal Affairs concerning the
allegedly unlawful acquisition of the Premises by the applicant and
her husband. On 17 April 2009 the Sabayil District Court authorised a
search and seizure at the office of a company managed by the
applicant’s husband. The case file does not contain any other
material concerning subsequent developments and the results of this
investigation and of the criminal case.
- Moreover,
it appears from the case file that in April 2009 the State Committee
for the Management of State Property lodged a civil action against
the applicant alleging that her ownership had been unlawful. The case
file does not contain any material on the results of this legal
action.
- As
at the time of the Court’s last communication with the
applicant, the judgment of 3 July 2003 remained unenforced.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 AND ARTICLE 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- Relying
on Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1 to the Convention, the applicant complained about the
non enforcement of the Narimanov District Court’s judgment
of 3 July 2003. 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
13 of the Convention provides 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 to the Convention 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
19. The
Government argued that the applicant had failed to exhaust domestic
remedies. In particular, the Government alleged that the applicant
could have lodged a civil action against the relevant office of
judicial enforcement officers for their alleged failure to enforce
the judgment of 3 July 2003. However the applicant had failed to
make use of this remedy.
- The
applicant disagreed with the Government and maintained her
complaints.
- The
Court notes that a similar objection had been raised by the
Government in earlier cases and was 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 is not 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 submitted that certain steps were being taken in order to
comply with the judgment of 3 July 2003. They noted that the Ministry
of Economic Development had offered different
premises to the Police Station. However, the Head of the Police
Station had refused to move to those places stating that they were
not suitable for a police station. On 10 November 2008 the
Narimanov District Executive Authority had allocated a plot of land
for the construction of a building for the Police Station. The
Government noted that the applicant’s Premises would be vacated
as soon as construction of the building was completed.
- The
applicant reiterated her complaint, noting that the continued
non-enforcement of the judgment of 3 July 2003 had infringed her
right to a fair trial and her right to peaceful enjoyment of her
possessions.
2. The Court’s assessment
(a) Articles 6 and 13 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 of 3 July 2003 delivered
in favour of the applicant deprived her of the benefits of success in
the litigation which concerned her property rights.
- The
Court notes that the Narimanov District Court’s judgment of
3 July 2003 has remained unenforced for more than seven years.
The Court finds that no reasonable justification was advanced by the
Government for this delay. The Court therefore considers that 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.
- In
view of the above finding, 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 regard to this part
of the application (see, for example, Efendiyeva v. Azerbaijan,
no. 31556/03, § 59, 25 October 2007, and Jasiūnienė
v. Lithuania, no. 41510/98, § 32, 6 March 2003).
(b) Article 1 of Protocol No. 1 to the
Convention
- The
Court notes, firstly, that the Premises were owned by the applicant.
It follows that the Premises constituted her “possessions”
within the meaning of Article 1 of Protocol No. 1.
- Moreover,
the applicant’s ownership right in respect of the Premises was
confirmed by the judgment of 3 July 2003 which ordered the eviction
of the Police Station from the Premises. The judgment had become
final and enforcement proceedings had been instituted, giving the
applicant a right to recover the use of the Premises. It follows that
the inability of the applicant to obtain the execution of this
judgment constituted an interference with her right to peaceful
enjoyment of her 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 paragraph 28 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.”
A. Damage
1. Pecuniary damage
- The
applicant claimed 1,627,142 US dollars (USD) in respect of pecuniary
damage. She argued that owing to the non-enforcement of the judgment,
she had lost the profit she could otherwise have made by renting out
the Premises. The amount claimed included lost rent (USD 187,592) and
the alleged current market value of the Premises (USD 1,439,550). The
estimates concerning the approximate rent and the market value of the
Premises were obtained from an association specialising in these
matters.
- The
Government contested the applicant’s claims as wholly excessive
and unjustified. The Government argued that the applicant could not
claim any compensation for the market value of the Premises because
the property had not been expropriated. The Government further noted
that the compensation claimed for lost rent was unsubstantiated.
- As
for the part of the claim relating to the market value of the
Premises, the Court notes that delay in execution of the judgment of
3 July 2003 could not be considered as a permanent deprivation of the
applicant’s property rights to the Premises. The Court
therefore considers that this part of the applicant’s claim for
pecuniary damage should be rejected.
- However,
the Court considers that the applicant must have suffered pecuniary
damage as a result of her lack of control over the Premises and finds
that there is causal link between the violations found and the damage
claimed in respect of the lost rent (compare Radanović v.
Croatia, no. 9056/02, §§ 62-66, 21 December
2006).
- Having
examined the parties’ submissions, the Court will take the
amount set forth in the local association’s assessment
submitted by the applicant as a reference point, taking into
consideration the fact that this particular association’s
estimates had already been relied on by the Government in a number of
previous non-enforcement cases against Azerbaijan (see, for example,
Gulmammadova v. Azerbaijan,
no. 38798/07, 22 April 2010, and Hasanov
v. Azerbaijan,
no. 50757/07, 22 April 2010).
- In
making its assessment, the Court takes into account the fact that the
applicant would inevitably have experienced certain delays in finding
suitable tenants and would have incurred certain maintenance expenses
in connection with the Premises. She would have also been subjected
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
applicant 80,000 euros (EUR) on account of lost rent.
2. Non-pecuniary damage
- The
applicant claimed USD 50,000 in respect of non-pecuniary damage.
- The
Government considered the sum excessive and asked the Court to review
the amount of compensation should it find a violation of the
Convention provisions.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage as a result of the lengthy non-enforcement of
the final judgment in her 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 applicant 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
3 July 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 she 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 applies to the present case. It therefore considers that
the Government shall ensure the enforcement of the judgment of 3 July
2003.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses incurred
before the Court. Accordingly, the Court considers that there is no
call to award her any sum under this head.
C. Default interest
- The
Court considers it appropriate that 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 there is no need to examine the
complaint under Article 13 of the Convention;
- Holds that the respondent State, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, shall ensure
the enforcement of the domestic court’s judgment of 3 July
2003;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 80,000 (eighty
thousand euros) in respect of pecuniary damage, and EUR 4,800 (four
thousand eight hundred euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable to the applicant, 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
