CASE OF AKHVERDIYEV v. AZERBAIJAN
Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Possessions);Just satisfaction reserved (Article 41 - Just satisfaction)
Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1972 and lives in Baku. 6. Since his birth the applicant had lived in a house in the Khutor settlement of Baku which previously belonged to his parents. The total surface area of the house was 84.6 sq. m, including a habitable area of 58.8 sq. m. According to the “technical passport” for the house issued on 26 May 2004 by the Technical Inventory and Ownership Rights Registration Department of the Baku City Executive Authority (“the BCEA”), it was located on a plot of land measuring 257 sq. m, of which 93.4 sq. m was occupied by the house and 163.6 sq. m by the courtyard. The applicant lived in the house with his wife and two small children and his elderly mother. 7. The original ownership of the house is unclear. On 8 October 2005 the applicant acquired private ownership of the house and was issued with an ownership certificate by the Technical Inventory and Ownership Rights Registration Department of the BCEA confirming that he was the private owner. The plot of land underneath the house was not registered as being in the applicant’s formal ownership. 8. On 14 May 2004 the Head of the BCEA issued an order assigning various sites in Baku for development by a number of private promoters. The order read, in the relevant part, as follows: For the purpose of coordinating with the General Development Plan [of the City] and completing the facilities [obyektlərin Baş Plana uyğunlaşdırılaraq tamamlanması] in our capital which are in a state of ruin owing to having remained partially constructed for a long period of time and which undermine the beauty and development of the city, the following plots of land should be assigned [ayrılsın] to the following companies and firms: ... 6. Taking into account the request made by Kaspi Nur LLC on 13 May 2004, the land comprising neighbourhoods nos. 1070, 1072, 1073 and 1076 on Shushinski Street in the Narimanov District shall be assigned to the aforementioned company on the basis of a lease, for the purpose of designing and constructing cottage-type houses. ... 9. The developer is instructed [to do the following:] 9.1. To receive the plot of land in kind and carry out the necessary health and safety checks. 9.2. To comply with the instructions of the Chief Department for Architecture and Urban Planning [“the CDAUP”] concerning the timing and procedure of the project design and with the other conditions laid down in the construction certificate [inşaat pasportu]. 9.3. Prior to completion of the project design, to coordinate with the [CDAUP] the sketches for the architectural planning of the land and buildings. After completing the project design, to submit the full working plan to the [CDAUP]. 9.4. To coordinate [the relocation of utility lines] with [the CDAUP] and the relevant authorities. 9.5. This order, together with the construction certificate, form the basis solely for preparing the project design. 10. In accordance with Articles 66, 67 and 68 of the Land Code, the developer shall obtain [from the relevant authorities] the certificate and other documents confirming its rights over the plot of land ... 11. The construction work shall start after the registration of all the project design documentation by the Baku State Architecture and Construction Surveillance Inspectorate. ... 14. Should the developer fail to comply with the requirements of the above provisions, this order may be repealed in accordance with the law.” 9. The applicant’s house was located in one of the neighbourhoods mentioned in point 6 of the order. According to the applicant, he was never informed of this order by the executive authorities and became aware of its existence for the first time during the court proceedings (see section C below). 10. By a letter of 17 December 2008 the Narimanov District Executive Authority (“the NDEA”), a subordinate body of the BCEA, informed the BCEA that the relocation of the inhabitants of the “old, hostel-type and squatter houses” located in the area specified in the BCEA order of 14 May 2004 “remained a problem”. The NDEA further proposed the following: “For the purpose of relocation of the families residing in the aforementioned area, we consider it appropriate to assign the empty plot of land in neighbourhood no. 1969 on A.M. Cuma Street ... for the construction of two and three-storey residential houses ... and request you to express your opinion on the construction project submitted by Azyevro LAU LLC as a developer.” 11. There is no information in the case file as to whether the BCEA formally replied to the NDEA’s letter of 17 December 2008. 12. On 24 April 2009 the Head of the NDEA issued an order authorising the construction by Azyevro LAU LLC of new houses for the relocated residents. The order read as follows: “For the purpose of relocation of the residents of houses located in neighbourhoods nos. 1070, 1072, 1073 and 1076 on Khan Shushinski Street in connection with the construction of an important State facility in the aforementioned area, the project design for the construction of residential houses in neighbourhood no. 1969 on A.M. Cuma Street, submitted by Azyevro LAU LLC, ...was approved by [the CDAUP] in letter no. 18/03-8/2042 dated 23 April 2009. Taking the above into consideration and for the purpose of completion of the relevant documentation, I hereby decide: 1. To authorise Azyevro LAU LLC to carry out the development project (construction of residential houses) in neighbourhood no. 1969 on A.M. Cuma Street, in accordance with the project design agreed by [the CDAUP] and with the purpose of ensuring the relocation of the residents of neighbourhoods nos. 1070, 1072, 1073 and 1076 on Khan Shushinski Street. 2. To instruct the management of Azyevro LAU LLC to obtain, in accordance with the legislation, documentation relating to the assignment of the plot of land and the construction. 3. To instruct the District Housing Maintenance and Utilities Union to supervise compliance of the construction with the project design and the relocation of the residents in accordance with the requirements of the law. 4. To instruct the District Police Office to ensure the protection of public order during the relocation process. 5. To instruct the Legal Division of [the NDEA] to issue the residents with occupancy vouchers for their new flats. 6. To request the Baku Office of the State Registry Service for Immovable Property reporting to the Cabinet of Ministers to assign specific postal addresses to the residents’ new flats and to provide them with technical passports [for the new flats] and with [the relevant] extracts from the State Register. ...” 13. According to the applicant, in the second half of 2009 employees of the NDEA approached him with oral demands to give up his house and, in compensation, to accept an occupancy voucher (yaşayış orderi) for a new five-room flat measuring 123 sq. m under construction on A.M. Cuma Street, an area previously occupied by a relocated cemetery. When the applicant asked to be shown the lawful basis for the demands, he was told that it was a “Government instruction”. 14. The applicant refused, stating that he had no intention of relinquishing his house. He noted that, in any event, for this to be possible he would require prior monetary compensation equal to the market value of the house and the plot of land underneath the house. 15. According to the applicant, his neighbours faced the same situation and many of them gave in to the NDEA’s pressure. They moved out and accepted the occupancy vouchers offered to them. Soon the authorities began demolishing their houses. With large-scale demolition works in the neighbourhood (including the destruction of some walls and fences adjacent or immediately next to the applicant’s house), accompanied by power cuts and the accumulation of debris around his house, the applicant and his family no longer found it possible to stay in it and had to leave the house in October 2009. However, the applicant’s mother remained in the house. 16. According to the applicant, on 8 December 2009 the NDEA evicted his mother and began demolishing his house. The house was demolished over an unspecified number of days, together with the applicant’s belongings that remained inside. 17. On 8 December 2009 the applicant lodged a court action with the Narimanov District Court against the NDEA. The applicant asked the court to stop the defendant from breaching his right to enjoy his private property, to order the restoration of the property to its previous condition or, if that was no longer possible, to order the defendant to pay him 500,000 Azerbaijani manats (AZN) for pecuniary damage, AZN 200,000 for non-pecuniary damage, and AZN 500 daily for damages in respect of lost opportunity from December 2009 until the date of execution of the judgment. Subsequently, the BCEA, the Ministry of Finance and Azyevro LAU LLC were joined to the case as co-defendants together with the NDEA. 18. In its reply to the applicant’s lawsuit, the NDEA responded that the relocation of the residents from the applicant’s neighbourhood was being conducted in connection with “the important State project” approved by the BCEA order of 14 May 2004. As a legal basis for that order the NDEA indicated the old 1982 Housing Code which had been in effect until 1 October 2009 (on that date it was replaced by the new Housing Code). 19. On 2 March 2010 the NDEA requested the court to order an expert evaluation of the market value of the applicant’s house (which had already been demolished) and the five-room flat offered to the applicant in compensation. The applicant opposed this request, noting, inter alia, that the determination of the new flat’s market value was irrelevant since he had refused to accept it as lawful compensation and since the subject of his claim was the unlawfulness of the interference with his private property. 20. On 2 March 2010 the Narimanov District Court issued an order for an expert evaluation. The applicant challenged this order, relying on various grounds. After a series of appeals, the order was quashed pursuant to a Supreme Court decision of 22 June 2010 and a Baku Court of Appeal decision of 28 July 2010, on the ground that the first-instance court had designated an incorrect category of expert for the evaluation requested. No further expert evaluations were ordered. 21. By a judgment of 4 November 2010 the Narimanov District Court rejected the applicant’s claims. 22. In the legal analysis part of the judgment the court first confirmed that the house had been in the applicant’s private ownership. It noted, however, that the applicant had not formalised his ownership rights over the plot of land and therefore could not make any claims in respect of the land. 23. The court also took note of the BCEA order of 14 May 2004. It further noted that between 2007 and 2009 the BCEA and NDEA had corresponded with each other concerning “problems” in relocating the residents of “old, hostel-type houses and squatter houses” in the applicant’s neighbourhood and that on 24 April 2009 the NDEA had decided to contract a private company (Azyevro LAU) to construct new residential buildings for those residents in a vacant area previously occupied by a relocated cemetery. The court noted that the applicant had been “given” a five-room flat in one of these new buildings, under an occupancy voucher issued in his name on 29 September 2009 pursuant to the NDEA order of 24 April 2009. 24. The court cited Article 157.9 of the Civil Code concerning the expropriation of private property for State needs, although it attempted neither to establish the applicability of that provision to the applicant’s situation nor to determine whether the applicant had been deprived of his house in compliance with its requirements. 25. The court further relied on various provisions of the old 1982 Housing Code, which had been in effect until 1 October 2009. The court noted that the 1982 Housing Code was still in force at the time when the applicant had been issued with an occupancy voucher on 29 September 2009. In particular, the court cited Articles 10 § 4, 40 § 1, 41, 89, 90 § 1, 91, 94 § 1, 96 § 1 and 135 of the 1982 Housing Code, concerning the rules on the provision to citizens of accommodation in residential buildings belonging to “the State housing fund” or “the public housing fund” (see paragraphs 37-48 below). 26. The court found that the BCEA order of 14 May 2004 was “in force” and that the issuance of an occupancy voucher in the applicant’s name for a five-room flat in a newly constructed building constituted “compensation in kind” for his house within the meaning of Articles 41 and 135 of the 1982 Housing Code. For these reasons, the court found that the applicant’s claim that the defendants’ actions had been unlawful was ill-founded. 27. Furthermore, although the order of 2 March 2010 for an expert evaluation had been quashed, the NDEA had nevertheless procured and presented to the court an “expert report” which estimated the market value of the new flat proposed to the applicant as being higher than that of his old house. The court considered that the compensation given to the applicant was fair because the new flat, with a total surface area of 123 sq. m, was larger than the applicant’s house and had a higher market value. Therefore, the court considered that the applicant’s claim in respect of pecuniary damage, seeking payment of the market value of his house in cash, was also unsubstantiated. 28. The court then proceeded to reject the applicant’s claim for non-pecuniary damage, finding that the applicant had failed to demonstrate that he had suffered any moral damage. 29. The applicant appealed against the judgment of 4 November 2010, raising, inter alia, the following arguments: (a) although the first-instance court had based its decision on the premise that the applicant’s house had been expropriated for public needs, it did not address the fact that this “expropriation” had not complied with the applicable requirements of the Constitution and the relevant provisions of the Civil Code (in particular, Articles 157.9 and 207 of the Civil Code); (b) the de facto deprivation of property had been unlawful as there had been no expropriation order issued in accordance with the procedure specified by law; in particular, the reasons for the expropriation given by the defendants in the court proceedings did not fall under any of the lawful grounds for expropriation specified by the law and there had been no expropriation order issued by the Cabinet of Ministers as required by the law; in such circumstances, the applicant had been arbitrarily deprived of his property; (c) the first-instance court had incorrectly relied on various provisions of the old 1982 Housing Code which had no longer been in force at the time of the interference (which, according to the applicant, had taken place in December 2009, at the time of the demolition of the house); and (d) the part of the judgment concerning the dismissal of his claim to the plot of land was unlawful, as the right of ownership over the plots of land underneath privately owned houses had been granted to their respective owners by the regulations approved by the Presidential Decree of 10 January 1997 (see paragraph 58 below); therefore, he was the lawful owner of the plot of land by virtue of his ownership of the house, even though he had not formally registered his ownership rights over it. 30. In its submissions to the Baku Court of Appeal, the NDEA noted among other things that, because the applicant had refused to accept the five-room flat offered to him as compensation, the NDEA had issued him with occupancy vouchers for two other flats (a one-room flat and a four-room flat) in the same newly constructed building. However, for unexplained reasons, these two occupancy vouchers were both dated 29 September 2009, the same day as the date of issuance of the voucher for the five-room flat that had originally been proposed (see paragraphs 13 and 23 above). 31. In its judgment of 18 March 2011 the Baku Court of Appeal essentially repeated the Narimanov District Court’s reasoning and upheld that court’s judgment of 4 November 2010, with the exception of the part of the judgment rejecting the applicant’s claim in respect of pecuniary damage. In that part, the Baku Court of Appeal quashed the judgment and ordered that the applicant be given the two new flats on A.M. Cuma Street (the one-room flat and the four-room flat, instead of the single five-room flat offered earlier) as “compensation for pecuniary damage”, and instructed the NDEA to deal with the formalities of transferring the flats to the applicant. 32. The applicant lodged an appeal on points of law, reiterating the points of his previous appeal and further elaborating on them. In particular, he argued as follows: (a) although his claim specifically sought only to establish the unlawfulness of the destruction of his house within the meaning of the applicable law, as well as to secure payment of monetary compensation for that unlawful action, the courts had ignored his claim and failed to assess the lawfulness of the interference with his property rights; instead, they had forced him to accept as “compensation” the flats given to him by the defendants (first the five-room flat, then the one-room and four-room flats), which he had repeatedly and lawfully refused to accept as lawful compensation; (b) the interference with his property had taken place in December 2009 and therefore the 1982 Housing Code was not applicable to his situation; in any event, even the provisions of that Code cited by the courts had been misapplied, as those provisions concerned accommodation in “the State and public housing funds” and not privately owned houses and flats; (c) the courts had also misapplied the Supreme Court Plenum’s decision of 14 February 2003, because that decision concerned the local executive authorities’ and municipalities’ competence in respect of buildings constructed on plots of land occupied without authorisation; however, in the applicant’s case, the land comprising the yard attached to the house was lawfully his to use by virtue of his ownership of the house; moreover, he had been entitled to acquire private ownership of the land free of charge in accordance with the applicable legislation; (d) the courts’ reliance on an “expert report” presented by the NDEA was unacceptable, as that document had been written not by a qualified expert but by an unqualified person with no relevant credentials, was not based on relevant property valuation standards, used arbitrary figures and contained numerous mistakes; (e) under the relevant legislation, privately owned property could be lawfully alienated in favour of the State by way of (i) expropriation for State needs, subject to prior payment of compensation as required by Article 29 § IV of the Constitution (see paragraph 36 below) and in accordance with Article 157.9 of the Civil Code (see paragraph 52 below); or (ii) purchase of the property by the State, with the owner’s consent, in accordance with Articles 203.3.3 and 207 of the Civil Code (see paragraphs 54-55 below) and Article 31 of the 2009 Housing Code (see paragraphs 49-50 below); or (iii) other specific situations provided for in Article 203.3 of the Civil Code (see paragraph 54 below); however, none of the above procedures had been complied with and the courts had failed to provide any legal or factual assessment in that regard; (f) the interference with his property rights had also been in breach of, inter alia, Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention. 33. The applicant insisted that he had been unlawfully deprived of his house and that, despite his consistent and lawful refusals to accept as compensation any new flats that he did not want, the lower courts had essentially forced him to accept this unlawful compensation. 34. On 8 July 2011 the Supreme Court upheld the Baku Court of Appeal’s judgment of 18 March 2011, reiterating that judgment’s reasoning. The Supreme Court’s decision did not address any of the applicant’s arguments in detail.