CASE OF AKIMOVA v. AZERBAIJAN
Violation of P1-1
Christos Rozakis
6. The applicant was born in 1950 and lives in Baku. 7. By an order of the Narimanov District Executive Authority (“NDEA”) of 2 June 1993, the applicant was issued, under the state housing policy, an occupancy voucher (yaşayış orderi) to a three-room apartment in a state-owned residential building in Baku. The applicant did not move into her new apartment at that time, because the construction of the building had not been completely finished and the tenants had to undertake the repair works in their respective apartments at their own expense. 8. In 1997, pursuant to an oral agreement, the applicant allowed R., an acquaintance of hers, to use the apartment temporarily, free of charge. Under the arrangement reached by the parties, R. was to use the apartment in exchange for certain repair works that he would perform using the materials provided by the applicant. In addition, R. agreed to vacate the apartment whenever the applicant made such a demand. 9. Some unspecified time later, in breach of the existing oral agreement, R. allowed his relative H. and his family (hereinafter to be collectively referred to as “H.”) to move into and live in the apartment. H. were internally displaced persons (“IDP”) from Agdam, a region under control of Armenian military forces following the Armenian-Azerbaijani conflict over Nagorno-Karabakh. 10. When the applicant found out that her apartment was occupied by people unknown to her, she requested that they vacate it. However, H. refused to do so, stating that they had no other place to live. The applicant filed a lawsuit, requesting the court to evict H. from the apartment. 11. On 29 March 2000 the Nizami District Court granted the applicant's request. The court found that, prior to moving into the disputed apartment, H. had been living in the Barda Region and in the Khatai District of Baku where they had been registered as IDPs. They did not dispute the fact that they had settled in the apartment in 1997. The court further found that the applicant was the lawful tenant of the apartment and, as such, had a right to demand H. to vacate it. The court ordered that H. be evicted. H. appealed. 12. On 30 September 2002 the Court of Appeal quashed the district court's judgment. The court held that NDEA's order to issue an occupancy voucher to a partly constructed building had been in breach of the requirements of the domestic law. The court further held that the applicant had not concluded a social tenancy agreement concerning the apartment and, therefore, she could not have a valid claim to it. The court therefore quashed the first-instance court's order to evict H. from the apartment. 13. The applicant filed an appeal in cassation. On 13 December 2002 the Supreme Court reversed the Court of Appeal's judgment and partially upheld the applicant's request. The Supreme Court found that the Court of Appeal erred in judging on the validity of the applicant's occupancy voucher. It held that the applicant's tenancy rights were undisputed and that the proceedings only concerned H.'s right to remain in the applicant's apartment. The Supreme Court quashed the Court of Appeal's decision in this part. 14. The Supreme Court further ruled that H. should vacate the applicant's apartment. However, taking into account the fact that H. could not return to their permanent place of residence in Agdam and, in the meantime, had no other place in which to reside, the Court held that the execution of its decision should be postponed until they could return to Agdam. 15. Thereafter, based on the applicant's additional cassation appeal, the proceedings were reopened and on 27 January 2005 the Plenum of the Supreme Court quashed the Supreme Court's decision of 13 December 2002. The Plenum noted that, having found errors in the Court of Appeal's judgment, the Supreme Court had no competence under civil procedure law to deliver a new judgment on the merits and, instead, was obliged to quash the Court of Appeal's judgment and refer the case for re-examination by the Court of Appeal. Accordingly, the Plenum found that, although the conclusions reached by the Supreme Court were essentially correct, it had breached the procedural rules by delivering a new judgment on the merits. The Plenum remitted the case to the Court of Appeal. 16. On 7 April 2005 the Court of Appeal delivered a judgment identical to the Supreme Court's decision of 13 December 2002. It ruled that H. should vacate the applicant's apartment. It further held as follows: “... the claim of V.B. Akimova must be upheld; however, having regard to the fact that the defendants are internally displaced persons from the Agdam Region and do not have another place in which to reside, the execution of the judgment shall be postponed until the Agdam Region is liberated from occupation.” 17. At present, Agdam remains under the control of Armenian forces and the Nagorno-Karabakh conflict remains unresolved. At the time of the latest communication with the parties, H. was still living in the applicant's apartment. 18. The Housing Code provides that Azerbaijani citizens are entitled to obtain a right of use of apartments owned by the State or other public bodies, under the terms of a tenancy agreement (Articles 10 and 28). 19. A decision on granting an apartment is to be implemented by way of issuing the citizen with an occupancy voucher (yaşayış sahəsi orderi) from the local executive authority (Article 48). The voucher serves as the sole legal basis for taking possession of the apartment designated therein (Article 48) and for concluding a tenancy agreement (yaşayış sahəsini icarə müqaviləsi) between the tenant and the housing maintenance authority (Article 51). 20. The right of use of apartments is granted for an indefinite term (Article 10). The tenant can terminate the tenancy agreement at any moment, with the consent of his or her family members (Article 87). The landlord (the housing maintenance authority) can terminate the agreement only on the grounds provided for by law and on the basis of a court decision (Articles 88-89). If the agreement is terminated because the house is no longer fit for living in, the tenant and family must be provided with a substitute apartment with full amenities (Articles 90 and 96). Tenants or members of their family can be evicted without provision of substitute accommodation only if they “systematically destroy or damage the apartment”, “use it for purposes other than residence” or “systematically breach the [generally accepted rules of conduct], thus making cohabitation with others impossible” (Article 97). 21. Individuals residing, pursuant to a tenancy agreement, in apartments owned by the State and other public bodies have a right to transfer these apartments into their private ownership (Article 1). Such privatisation is voluntary and free of charge (Article 2). The right to privatise a State-owned apartment free of charge may be exercised only once (Article 7). 22. Article 2 of the Law provides as follows: “Persons displaced from the places of their permanent residence in the territory of the Republic of Azerbaijan to other places within the territory of the country as a result of foreign military aggression, occupation of certain territories or continuous gunfire, shall be considered as internally displaced persons subject to the provisions of this Law.” 23. Article 5 of the Law provides as follows: “The relevant executive authority [the Cabinet of Ministers, State Committee on the Refugees' Affairs and local executive authorities, within the scope of their respective competence] shall deal with the housing of internally displaced persons. Residential, administrative and auxiliary buildings, as well as other buildings, shall be used for such housing purposes. Where there is no possibility to house internally displaced persons in such buildings or where the density of population in a specific settlement does not allow such a possibility, they shall be settled in camps specially set up for internally displaced persons. ... The internally displaced persons may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure re-settlement of the internally displaced persons to other accommodation...” 24. Article 4 of the Regulations provides: “In order to prevent the eviction of the internally displaced persons from dwellings in which they settled during the period of 1992-1994, the legal force of the occupancy vouchers issued by the relevant authorities to individual citizens in respect of those dwellings shall be temporarily suspended...” 25. In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the former must be provided with other suitable accommodation (Article 4). 26. The judge examining a civil case may, upon a petition by a party to the case, decide to postpone or suspend the execution of the judgment or change the manner of execution, due to the parties' property situation or other circumstances (Article 231).