SALMANOVA v. AZERBAIJAN - 12098/09 (Judgment : Individual applications : Fifth Section Committee) [2021] ECHR 618 (08 July 2021)

JUDGMENT STRASBOURG 8 July 2021 This judgment is final but it may be subject to editorial revision. In the case of Salmanova v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Lado Chanturia, President, Lətif Hüseynov, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 12098/09 ) 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 Solmaz Suleyman gizi Salmanova ( Solmaz Süleyman qızı Salmanova ) (“the applicant”), on 12 February 2009; the decisions to give notice of the complaints under Articles 6 and 34 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Azerbaijani Government (“the Government”); the parties’ observations; Having deliberated in private on 17 June 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the alleged non‑enforcement of a final domestic judgment in her favour and under Article 34 of the Convention about an alleged breach of her right of individual application without hindrance owing to the seizure of her case file from the office of her lawyer. THE FACTS 2. The applicant was born in 1963 and lives in Baku. She was represented by Mr I. Aliyev , a lawyer based in Baku. 3. The Government were represented by their Agent, Mr Ç. Əsgərov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. A. Domestic proceedings 5. By an order of 17 January 1995, the Nasimi District Executive Authority decided that the applicant was to be issued an occupancy voucher to a two-room flat. For unknown reasons that decision was not implemented. 6. Sometime later, I. A. and his family moved in the mentioned flat, without the applicant’s knowledge or consent. I. A. and his family were internally displaced persons (“IDPs”) from Khojali, a town under the control of Armenian military forces following the Armenian-Azerbaijani conflict over Nagorno-Karabakh. 7. When the applicant found out that the flat in question was occupied by people unknown to her, she requested that they vacate the premises. However, I. A. and his family refused to do so. 8. The applicant brought an action before the Yasamal District Court, requesting the court to recognise her tenancy rights over the flat and to evict I. A. and his family. 9. On 21 April 2003 the Yasamal District Court granted the applicant’s requests and ordered the eviction of I. A. and of his family. The court found that the flat in question had been allocated to the applicant because her previous flat had been in an emergency condition and that I. A. and his family moved in it without the applicant’s permission. 10. On 4 July 2003 the Baku Court of Appeal upheld the first-instance court’s judgment. 11. By a decision of 10 October 2003, the Supreme Court upheld in substance the judgment of the appellate court. However, the Supreme Court further held that the execution of the judgment was to be postponed until the liberation of the territories occupied by the Republic of Armenia. 12. In April 2013 the applicant obtained an occupancy voucher to the flat in question. In May 2013 the applicant’s right to property over the flat in question was registered in the State registry of immovable property. 13. In view of the material submitted to the Court by the applicant, it appears that in 2017 the building where the flat was located was demolished. The applicant also informed the Court that in 2017 the flat “was donated by a notary to another person because of [her accumulated] debts”. The applicant did not clarify that information. B. Search and seizure in the office of the applicant’s representative 14. On 8 August 2014 criminal proceedings were instituted against Mr Aliyev, who represented the applicant before the Court, which were the subject of a separate application brought by him before the Court (see Aliyev v. Azerbaijan , nos. 68762/14 and 71200/14, 20 September 2018). On 8 and 9 August 2014 the investigating authorities seized a large number of documents from Mr Aliyev’s office, including all the case files relating to the applications pending before the Court which were in Mr Aliyev’s possession as a representative. The file relating to the present case was also seized in its entirety. The facts relating to the seizure and the relevant proceedings are described in more detail in Annagi Hajibeyli v. Azerbaijan (no. 2204/11 , §§ 21-28, 22 October 2015). 15. On 25 October 2014 some of the seized documents were returned to Mr Aliyev’s lawyer. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 of the convention and article 1 of protocol N o . 1 to THE CONVENTION 16. The Government submitted that the applicant’s case was similar to the case of Akimova v. Azerbaijan (no. 19853/03 , 27 September 2007) and that the applicant had failed to lodge the application with the Court within the six month time-limit set by Article 35 § 1 of the Convention. She therefore had failed to comply with the six-month rule. 17. The applicant maintained her complaint. 18. The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. The Court recalls that the six-month period runs from the date of the final domestic decision after effective and sufficient domestic remedies have been used (see, among others, Lekić v. Slovenia [GC], no. 36480/07 , § 65, 11 December 2018). 19. The Court notes that in the present case the execution of the judgment to evict the IDPs illegally occupying the applicant’s flat was postponed in the judgment itself, notably, in the Supreme Court’s decision of 10 October 2003 (compare Akimova , cited above, § 16). 20. The Court observes that the decision in question was a final decision and upon its delivery the relevant civil proceedings were terminated. Thereafter, there was no higher judicial instance directly accessible to the applicant (see Babayev v. Azerbaijan (dec.), no. 36454/03 , 27 May 2004, and Ismayilov v. Azerbaijan , no. 4439/04 , §§ 26-41, 17 January 2008). 21. Consequently, at the latest, the date triggering the start of the six‑month time-limit in respect of the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the alleged breach of non-enforcement of the domestic decision was 10 October 2003. The applicant lodged her application with the Court more than five years later, on 12 February 2009. 22. In view of the forgoing considerations, the Court concludes that the applicant has not complied with the six-month rule laid down in Article 35 § 1 of the Convention (compare Asadullayeva v. Azerbaijan (dec.) [Committee], no. 15342/14 , §§ 18-22, 29 September 2020). Her complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-compliance with the six‑month time-limit. II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 23. On 9 September 2014 the applicant’s representative Mr I. Aliyev introduced a new complaint on her behalf, arguing that the seizure from his office of the entire case file relating to the applicant’s pending application before the Court, together with all the other case files, had amounted to a hindrance to the exercise of the applicant’s right of individual petition under Article 34 of the Convention, the relevant parts of which read as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A. Submissions by the parties 24. The submissions made by the applicant and the Government were similar to those made by the parties in respect of the same complaint raised in the case of Annagi Hajibeyli v. Azerbaijan (no. 2204/11 , §§ 57-60, 22 October 2015). B. The Court’s assessment . In Annagi Hajibeyli , having examined an identical complaint based on similar facts, the Court found that the respondent State had failed to comply with its obligations under Article 34 of the Convention (see Annagi Hajibeyli , cited above, §§ 64‑79). The Court considers that the analysis and finding it made in the Annagi Hajibeyli judgment also apply to the present application and sees no reason to deviate from that finding. . The Court therefore finds that the respondent State has failed to comply with its obligations under Article 34 of the Convention . III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. 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.” 28. The Court notes that the applicant did not submit any just satisfaction claims in respect of her complaint under Article 34 of the Convention. In any event, having regard to circumstances of the case, the Court considers that any non‑pecuniary damage suffered by the applicant can be compensated for solely by the finding of a violation. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the applicant’s complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention inadmissible; 2. Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention; 3. Holds that the finding of a violation of Article 34 of the Convention constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. Done in English, and notified in writing on 8 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Lado Chanturia Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII