ISRAFILOVA AND AGALAROV v. AZERBAIJAN - 16806/11 61696/11 - Committee Judgment [2013] ECHR 954 (10 October 2013)

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 The Sumgayit City Court’s judgment of 7 March 2006 February Ruslan M ustafazada /11 Miryusif Agalarov Ownership certificate of 3 April The Sumgayit City Court’s judgment of 21 October 2010 September Ruslan Mustafazada BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII