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FIRST
SECTION
CASE OF ZAHID MAMMADOV AND OTHERS v. AZERBAIJAN
(Applications
nos. 3172/08, 42347/08, 454/09, 2772/09 and 32585/09)
JUDGMENT
STRASBOURG
6 December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Zahid Mammadov 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 15 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in five 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:
– Mr Zahid Mammadov, born in 1955, represented by
Mr A. Mustafayev, a lawyer practising in Azerbaijan
(application no. 3172/08, lodged on 6 December 2007);
– Mr Vagif Aliyev, born in 1940, also represented by
Mr A. Mustafayev (application no. 42347/08, lodged on
11 August 2008);
– Mr Bakhtiyar Muslumov, born in 1965, represented
by Mr N. Ismayilov, a lawyer practising in Azerbaijan
(application no. 454/09, lodged on 3 December 2008);
– Mr Eduard Abramov, born in 1958, represented by Mr
A. Bagirov, a lawyer practising in Azerbaijan (application no.
2772/09, lodged on 15 December 2008); and
– Ms Tamilla Hasanova born in 1950, represented by
Mr A. Nagiyev, a lawyer practising in Azerbaijan (application
no. 32585/09, lodged on 8 May 2009).
- The
Azerbaijani Government (“the Government”) were
represented by their Agent, Mr Ç. Asgarov.
- On
12 March 2010 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).
- The
Government did not object to the examination of the applications by a
Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
- 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).
- In
all five 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 (Table I), the applicants’
claims were granted by different domestic courts, which ordered the
eviction of the IDPs from their flats.
- 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.
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 AND ARTICLE 13
OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- 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:
“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.”
- 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
1. The Court’s competence rationae
temporis in applications nos. 454/09, 2772/09 and
32585/09
- The
Court observes that in the cases of Mr Bakhtiyar Muslumov
(application no. 454/09), Mr Eduard Abramov (application no.
2772/09) and Ms Tamilla Hasanova (application no. 32585/09) 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.
- The
Court notes that in the light of the authorities’ continued
failure to execute the judgments in question, they still remain
unenforced. Therefore, there is a continuous situation and the
Court is thus competent to examine the part of the applications
relating to the period after 15 April 2002 (see
Gulmammadova,
cited above, § 26).
2. Other admissibility criteria
- 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.
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.
- 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).
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
applicants claimed various sums as indicated in the Appendix (Table
II) in respect of pecuniary damage. In cases nos. 3172/08 and
42347/08 the amounts claimed covered the loss of rent from the dates
of delivery to the applicants of the relevant occupancy vouchers or
ownership certificates. In case no. 454/09 the amount included the
market price of the flat. In support of their claims, all the
applicants except for the applicant in case no. 32585/09 submitted
some estimates by local companies on rent prices for flats in a
similar condition.
- The
Government submitted that the applicants had failed to justify their
claims. The Government also argued that the applicant in case
no. 454/09 could not claim any compensation for the market value
of the flat.
- 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 the applicants in cases nos. 3172/08 and 42347/08 should
be calculated starting from the date of delivery of each respective
judgment in the applicants’ favour and not from the dates of
delivery of the occupancy vouchers or ownership certificates as
claimed by the applicants. As to the part of
the claim in case no. 454/09 relating to the market value of the
flat, the Court rejects this part as it does not find any causal link
between the violation found and this part of the claim. The Court
also rejects the claim in respect of the lost rent submitted by the
applicant in case no. 32585/09 as she failed to submit any
documents in support of her claims.
- Having
examined the parties’ submissions in cases nos. 3172/08,
42347/08, 454/09 and 2772/09, the Court will take as a reference
point the amount set forth in the local companies’ estimates,
which were submitted by the applicants.
- 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 5,000 euros (EUR) to the applicant in case no.
3172/08; EUR 3,000 to the applicant in case no. 42347/08; EUR
8,800 to the applicant in case no. 454/09; and EUR 12,800 to the
applicant in case no. 2772/09. No award is made in case no. 32585/09
as the applicant failed to substantiate his claims.
2. Non-pecuniary damage
- The
applicants claimed different sums as indicated in the Appendix (Table
II) in respect of non-pecuniary damage.
- The
Government indicated their willingness to accept the applicants’
claims for non-pecuniary damage up to a maximum of EUR 1,000 in
respect of each applicant.
- 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:
– EUR 1,600 to each of the applicants in
applications nos. 3172/08 and 42347/08; and
– EUR 4,800 to each of the applicants in
applications nos. 454/09, 2772/09 and 32585/09.
- 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 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 Davletkhanov and other “Chernobyl
pensioners” v. Russia, nos. 7182/03, 10115/04, 21752/04,
and 22963/04, § 25, 23 September 2010 and
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.
B. Costs and expenses
- All
the applicants, except the applicant in case no. 2772/09, also
claimed different sums as indicated in the Appendix (Table II) for
the costs and expenses incurred before the domestic courts and the
Court.
- The
Government considered the claims to be unjustified.
- 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
case no. 2772/09 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.
- Having
regard to the fact that the applicants in cases nos. 454/09 and
32585/09 failed to produce any supporting documents, the Court
dismisses their claims for costs and expenses.
- As
for the claims for costs and expenses by the applicants in cases nos.
3172/08 and 42347/08, the Court observes that they were submitted by
the same lawyer (namely, Mr A. Mustafayev). The Court further notes
the similarity of the complaints and legal arguments submitted in the
cases and the fact that the cases concern matters on which there is
well-established case-law. In view of the above considerations, the
Court awards the total amount of EUR 700 jointly to the applicants in
cases nos. 3172/08 and 42347/08, in respect of the legal
services rendered by Mr A. Mustafayev.
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
- Decides to join the applications;
- Declares the applications 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, shall secure, by appropriate means, the enforcement of the
domestic courts’ judgments in the applicants’ favour;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
the following amounts, to be converted into Azerbaijani manats at the
rate applicable at the date of settlement:
(i) in
respect of damage:
– Mr
Zahid Mammadov (application no. 3172/08) – EUR 5,000 (five
thousand euros) in respect of pecuniary damage and EUR 1,600
(one thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
– Mr
Vagif Aliyev (application no. 42347/08) – EUR 3,000 (three
thousand euros) in respect of pecuniary damage and EUR 1,600 (one
thousand six hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
– Mr
Bakhtiyar Muslumov (application no. 454/09) – EUR 8,800 (eight
thousand eight hundred euros) in respect of pecuniary damage and
EUR 4,800 (four thousand eight hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
– Mr
Eduard Abramov (application no. 2772/09) – EUR 12,800
(twelve thousand eight hundred euros) in respect of pecuniary damage
and EUR 4,800 (four thousand eight hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
– Ms
Tamilla Hasanova (application no. 32585/09) – EUR 4,800 (four
thousand eight hundred euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) in
respect of costs and expenses, EUR 700 (seven hundred euros), jointly
to the applicants Mr Zahid Mammadov and Mr Vagif Aliyev, 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;
- Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 6 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Peer Lorenzen
Deputy Registrar President
APPENDIX
Table
I
|
Application
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
|
|
3172/08
|
Zahid
Mammadov
|
Occupancy
voucher of 3 March 1997
|
The Sumgayit
Court of Appeal’s judgment of 30 December 2008
|
6 December
2007
|
|
42347/08
|
Vagif Aliyev
|
Occupancy
voucher of 28 October 1996
|
The Sumgayit
Court of Appeal’s judgment of 24 December 2008
|
11 August
2008
|
|
454/09
|
Bakhtiyar
Muslumov
|
Ownership
certificate of 5 April 1995
|
The Sabayil
District Court’s judgment of 25 September 1995
|
3 December
2008
|
|
2772/09
|
Eduard
Abramov
|
Ownership
certificate of 15 February 1994
|
The
Surakhani District Court’s judgment of 11 October 1999
|
15 December
2008
|
|
32585/09
|
Tamilla
Hasanova
|
Ownership
certificate of 13 July 1996
|
The Binagadi
District Court’s judgment of 22 July 1998
|
8 May 2009
|
Table
II
|
Application
no.
|
Applicant’s
name
|
Claim
for pecuniary damage (EUR)
|
Claim
for non- pecuniary damage (EUR)
|
Claim
for costs and expenses
|
|
3172/08
|
Mr Zahid
Mammadov
|
61,200
|
3,000
|
1,600
|
|
42347/08
|
Mr Vagif
Aliyev
|
36,720
|
3,000
|
1,450
|
|
454/09
|
Mr
Bakhtiyar Muslumov
|
56,967
|
15,000
|
1,500
|
|
2772/09
|
Mr Eduard
Abramov
|
17,054
|
20,000
|
-
|
|
32585/09
|
Ms Tamilla
Hasanova
|
54,000
|
10,000
|
7,000
|
