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FIRST
SECTION
CASE OF ISMAYILOVA v. AZERBAIJAN
(Application
no. 18696/08)
JUDGMENT
STRASBOURG
9 December
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 Ismayilova v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Elisabeth Steiner,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18696/08) 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 an Azerbaijani national,
Ms Yagut Rashid qizi Ismayilova (Yaqut Rəşid qızı
İsmayılova - “the applicant”), on 4 March
2008.
- The
applicant was represented by Mr N. Ismayilov, a lawyer practising in
Azerbaijan. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr. Ç Asgarov.
- The
applicant alleged that the failure to enforce the judgment of 9 June
1999 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
4 September 2009 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 1953 and lives in Baku.
- On
22 January 1998 the applicant was issued an occupancy voucher
(yaşayış orderi) to an apartment in a recently
constructed residential building in Baku on the basis of the Baku
City Executive Authority’s order of 19 January 1998.
- At
the same time, the applicant became aware that the apartment was
occupied by M. and his family, who were internally displaced persons
(“IDP”) from Lachin, a region under occupation of
Armenian military forces following the Armenian-Azerbaijan conflict
over Nagorno-Karabakh.
- According
to the applicant, despite her numerous demands, M. refused to vacate
the apartment noting that he was an IDP and he had no other place to
reside in.
- On
an unspecified date in 1999, the applicant lodged a lawsuit with the
Yasamal District Court asking the court to order the eviction of M.
and his family from the apartment.
- On
9 June 1999 the Yasamal District Court granted the applicant’s
request. The court held that the applicant was the sole lawful tenant
of the apartment on the basis of the occupancy voucher of 22 January
1998 and, therefore, the apartment was unlawfully occupied by M. and
his family. No appeals were filed against this judgment and, pursuant
to the domestic law in force at the material time, it became
enforceable within ten days after its delivery.
- According
to the applicant, M. and his family refused to comply with the
judgment and the competent authorities did not take any measures to
enforce it.
- It
appears from the case file that in 2008 the applicant lodged
compensation proceedings against the State Committee for Refugees and
Internally Displaced Persons claiming EUR 72,000 for unlawful use of
her flat by an IDP family. On 7 May 2008 the Yasamal District Court
dismissed the applicant’s claim as unsubstantiated. On 7 July
2008 the Court of Appeal and on 10 November 2008 the Supreme Court
upheld the Yasamal District Court’s judgment of 7 July 2008.
- At
the time of the latest communication with the applicant, the judgment
of 9 June 1999 in the applicant’s favour remained unenforced.
RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in Gulmammadova v. Azerbaijan
(no. 38798/07, §§ 18-24, 22 April 2010).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 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 Yasamal District Court’s judgment of 9
June 1999 in her favour. Article 6 § 1 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
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.”
A. Admissibility
1. The Court’s competence rationae
temporis
- The Court observes that the domestic judgment in the
applicant’s favour was delivered prior to 15 April 2002, the
date of the Convention’s entry into force in respect of
Azerbaijan.
- The
Court notes that, owing to the authorities’ continued failure
to execute the judgment in question, it remains still unenforced.
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 Gulmammadova,
cited above, § 26).
2. Domestic remedies
- The
Government argued that the applicant had failed to exhaust domestic
remedies. In particular, the Government alleged that the applicant
could have challenged the domestic authorities’ failure to
enforce the judgment of 9 June 1999 before the domestic courts.
- The
applicant disagreed with the Government and maintained that the
remedies suggested by the Government were not appropriate in the
circumstances of the present case.
- The Court notes that a similar objection was raised by
the Government in the Gulmammadova case and was dismissed by
the Court (see Gulmammadova, cited above, § 30). The
Court refers to its reasoning in that case and sees no ground to
depart from it. Therefore this part of the Government’s
objection should be dismissed.
3. Conclusion
- The
Court further 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
- The
Government submitted that, due to the large number of IDPs in
Azerbaijan as a result of the Armenian-Azerbaijani conflict over
Nagorno Karabakh, there was a serious problem with housing for
IDPs in Azerbaijan. The Government noted that the judgment in the
applicant’s favour could not be enforced because there was no
other accommodation available for the IDPs settled in the flat in
question.
- The
applicant reiterated her complaint.
- The
Court notes that the judgment in the applicant’s favour has so
far remained unenforced for more than eleven years.
- The
Court points out that the factual circumstances of this case are
similar and the complaint and legal issues raised are identical to
those in the Gulmammadova case (cited above). The Court
reiterates that it has found violations of Article 6 § 1 and
Article 1 of Protocol No. 1 in that case.
- Having
examined all the material in its possession, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
- In
particular, the Court is prepared to accept that, in this case, the
existence of a large number of IDPs in Azerbaijan created certain
difficulties in the execution of the judgment in the applicant’s
favour. Nevertheless, the judgment remained in force, but no adequate
measures were taken by the authorities to comply with it. It has not
been shown that the authorities had continuously and diligently taken
measures for the enforcement of the judgment in question. In such
circumstances the Court considers that no reasonable justification
was advanced by the Government for the significant delay in the
enforcement of the judgment.
- Concerning
the applicant’s submissions about the alleged violation of her
property rights, it has not been established either in the domestic
proceedings or before the Court that any specific measures have been
taken by the domestic authorities in order to comply with their duty
of balancing the applicant’s right to peaceful enjoyment of her
possessions protected under Article 1 of Protocol No. 1 to the
Convention against IDPs’ right to be provided with
accommodation. In such circumstances, the failure to ensure the
execution of the judgment for several years resulted in a situation
where the applicant was forced to bear an excessive individual
burden. The Court considers that, in the absence of any compensation
for having this excessive individual burden to be borne by the
applicant, 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 applicant’s
right to peaceful enjoyment of her 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.
- The
Court does not consider it necessary to rule on the complaint under
Article 13 of the Convention because Article 6 is lex specialis
in regard to this part of the application (see, for example,
Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25
October 2007).
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 76,893.00 euros (EUR) in respect of pecuniary
damage, including EUR 14,916 for loss of rent, EUR 78,000 for the
alleged current market value of the flat, and EUR 4,595 for personal
loans that the applicant allegedly had to take owing to the
non-enforcement of the judgment. The applicant calculated the amount
of the lost rent based on the information on the monthly market rent
of flats situated in that area of the city. This information was
obtained from an association specialising in these matters.
- The
Government argued, referring to the estimates of a different company
specialising in these matters, that the amount of lost rent for the
period from April 2002 to February 2009 would be 7,450 US dollars
(USD). The Government further argued that as the building in question
had been half-constructed the applicant would have incurred certain
maintenance expenses in connection with her flat which, according to
a local company, would amount to USD 7,359.
- As
for the part of the claim relating to the market value of the flat
and the personal loans, the Court rejects this part as it does not
find any causal link between the violation found and this part of the
claim.
- As
for the part of the claim relating to the loss of rent, the Court
finds that there is a causal link between this part of the claims and
the violations found and that the applicant must have suffered
pecuniary damage as a result of her lack of control over her flat.
Having examined the parties’ submissions, the Court awards the
applicant EUR 7,000 on account of the loss of rent.
2. Non-pecuniary damage
- The
applicant claimed USD 25,000 in respect of non-pecuniary damage.
- The
Government argued that, the eventual enforcement of the judgment
would constitute sufficient redress for the alleged violation of
Article 6 of the Convention.
- 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 9 June
1999 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 in the present
case this principle applies as well. It therefore considers that the
Government must secure the enforcement of the judgment of 9 June
1999.
B. Costs and expenses
- The
applicant also claimed EUR 1,500 for the costs and expenses incurred
before the Court. This claim was not itemised or supported by any
documents.
- The
Government did not comment on this.
- 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. In the present cases, having regard to the
fact that the applicant failed to produce any supporting documents,
the Court dismisses the claim for costs and expenses.
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 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 according to
Article 44 § 2 of the Convention, shall secure, by appropriate
means, the enforcement of the domestic court’s judgment of
9 June 1999;
- 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 7,000 (seven 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 9 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
