European Court of Human Rights

FIRST SECTION

CASE OF BAGIROVA AND OTHERS v. AZERBAIJAN

(Applications nos. 37706/17 and 5 others)

JUDGMENT
(Merits)

Art 1 P1 -� Peaceful enjoyment of possessions -� Unlawful expropriation of the applicants-� properties for State needs -� Failure to comply with domestic legal procedure on expropriation of privately-owned property

STRASBOURG

31 August 2023

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bagirova and Others v. Azerbaijan,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

 Marko Bošnjak, President,
 Alena Poláčková,
 Krzysztof Wojtyczek,
 Lətif Hüseynov,
 Péter Paczolay,
 Ivana Jelić,
 Gilberto Felici, judges,
and Renata Degener, Section Registrar,

Having regard to:

the six 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 six Azerbaijani nationals on various dates (see the appended table);

the decision to give notice to the Azerbaijani Government (-�the Government-�) of the complaints under Article 6 § 1 (right to a reasoned judgment) and Article 8 of the Convention as well as Article 1 of Protocol No. 1 to the Convention and to declare the remainder of the applications inadmissible;

the parties-� observations;

Having deliberated in private on 4 July 2023,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The present applications concern the expropriation of the applicants-� properties for State needs and raise issues mainly under Article 1 of Protocol No. 1 to the Convention.

THE FACTS

2.  The personal details of the applicants and their representatives are set out in the appended table.

3.  The Government were represented by their Agent, Mr Ç. Əsgərov.

4.  The facts of the cases may be summarised as follows.

1. BAckground information and relevant legal acts

5.  On 12 December 2013 the head of the Baku City Executive Authority (-�the BCEA-�) issued order no. 501 on the basis of which the buildings and houses located in the area bounded by Azerbaijan, N. Narimanov and Inshaatchilar Avenues and A. Huseynzade, Tolstoy, I. Gutgashinli, G. Khalilov, B. Aghayev and Landau Streets in Baku were to be vacated and demolished for the purpose of construction and landscaping works in connection with a project to improve road-traffic infrastructure. The implementation of the order was assigned to the Yasamal District Executive Authority (-�the YDEA-�).

6.  The applicants owned private houses, parts of houses or flats (-�the properties-� -� see the appended table) located in the above-mentioned area.

7.  Starting from the beginning of 2014, the representatives of the YDEA and various other State authorities had meetings with the residents of the area. According to the applicants, during one of those meetings, held on 3 March 2014, A.S., the deputy head of the Cabinet of the Ministers of Azerbaijan at the relevant time, stated that the properties would not be expropriated for State needs and instead would be purchased on the basis of contracts of sale, which would be entered into on a voluntary basis.

8.  Sometime in the spring of 2014 the representatives of the YDEA invited the residents in the area to leave their properties in exchange for 1,500 Azerbaijani manats (AZN -� approximately 1,380 euros at the relevant time) per sq. m of their properties in compensation. Some of the residents accepted the offer and left their properties. Following their departure, the YDEA started demolishing those residents-� properties and also completely or partially suspended the provision of utility services to the remaining properties, which made living conditions difficult for the remaining residents.

9.  On 11 November 2015 the Cabinet of Ministers adopted decision no. 358, on the basis of which the YDEA was designated as the State body responsible for expropriating the properties located in a certain area, which included the area bounded by the above-mentioned streets (see paragraph 5 above) for the purpose of construction of roads and other communication networks of State importance in accordance with the General Development Plan of the City of Baku. By the same order, the Cabinet of Ministers instructed the YDEA to carry out preparatory measures for the expropriation of properties for State needs and to present proposals to the Cabinet of Ministers to that end.

10.  Starting from December 2015, A.E., a private company which had been engaged by the YDEA to act as an evaluator, issued valuation reports (qiymətləndirmə aktları) in respect of the applicants-� properties. According to those reports, the market value of the properties to be expropriated was AZN 1,250 per sq. m and thus, together with additional 20% compensation to be paid in accordance with Presidential Decree no. 689 of 26 December 2007 (see paragraph 21 below), the amount of the proposed compensation was AZN 1,500 per sq. m, that is, the same amount as had been offered by the State authorities in 2014.

11.  On various dates the applicants-� properties were demolished (see the appended table).

12.  On various dates and, in some cases, after their properties had been damaged or partially demolished, the applicants, except the applicant in application no. 47835/17, entered into sale and purchase contracts with the YDEA and received certain sums by way of compensation (see the appended table).

2. Court proceedings

13.  On various dates the YDEA brought proceedings against the applicants, or the applicants lodged claims against the YDEA, within the same proceedings or separately, with Baku Administrative-Economic Court No. 1 or the Yasamal District Court. Relying on the Cabinet of Minister-�s decision of 11 November 2015, the YDEA submitted that the applicants-� properties fell within the framework of the said decision and asked the first-instance courts to order their expropriation, in return for compensation based on A.E.-�s valuation reports, and the applicants-� eviction from those properties. The applicants, for their part, complained that YDEA-�s actions had breached their rights, in particular their property rights. The applicants who had entered into sale and purchase contracts with the YDEA (see paragraph 12 above) also initiated separate proceedings seeking the invalidation of those contracts.

14.  On various dates, relying, inter alia, on Articles 157.9, 246.1 and 248 of the Civil Code and Articles 3.1, 4.1, 9.1, 20, 22.1 and 52 of the Law on Expropriation of Land for State Needs (-�the Law on Expropriation-�; see paragraphs 21-28 below), the above-mentioned first-instance courts granted the YDEA-�s claims and dismissed those of the applicants. Following subsequent appeals against the judgments of the first-instance courts, they were upheld by the Baku Court of Appeal and the Supreme Court (see the appended table).

15.  The arguments presented by the applicants during those proceedings and the findings of the domestic courts may be summarised as follows.

16.  The applicants argued, referring also to the statement made by A.S. (see paragraph 7 above), that there had been no State need for the expropriation of their properties as the roads to be improved in the area were of only local importance. They further argued that the Cabinet of Ministers-� decision of 11 November 2015 had failed to specify the State need at stake, instead using general formulae taken from the text of Article 3 of the Law on Expropriation (see paragraph 22 below), and that it had referred to the General Development Plan of the City of Baku which had covered the period up to 2005 and had therefore no longer been in force at the time of the events in question. They also argued that the above-mentioned decision could not be a basis for expropriating their properties because it had concerned only the preparatory phase with a view to expropriation for State needs whereas domestic law required the adoption of another decision by the Cabinet of Ministers on the expropriation itself.

17.  The applicants further argued that the designation of a valuation commission and an independent evaluator (A.E. in the present case) could only have been done following a decision in that respect adopted by the Cabinet of Ministers. They also contested the amounts offered or paid to them, arguing that they had not been in accordance with the market value of their properties. In support of that argument, the applicants, except the applicant in application no. 59194/17, submitted expert valuations prepared by private companies and sought awards for pecuniary and non-pecuniary damage. The applicants in applications nos. 37706/17, 59194/17, 73757/17, 75028/17 and 753/18 also claimed compensation in respect of the land underlying and/or attached to their properties.

18.  As to the sale and purchase contracts, the applicants argued that they had had no choice but to sign them either because the living conditions, as a result of the demolition work going on around them and frequent cuts in the provision of utility services, had become too difficult or, in some cases, because their properties had been damaged or partially demolished during the demolition of neighbouring properties while their cases had still been pending before the courts.

19.  The domestic courts found that the expropriation of the applicants-� properties in return for the compensation proposed by the YDEA had complied with the requirements under domestic law, and that the amounts offered or paid to them under the sale and purchase contracts had been adequate. The courts held that those contracts had been entered into voluntarily and in compliance with the provisions of domestic law and that the applicants had failed to submit any evidence to the contrary.

20.  The courts dismissed the applicants-� claims in respect of the plots of land underlying and/or attached to their properties as well as the expert reports presented by them. In the proceedings concerning the claims of the applicants in applications nos. 47835/17 and 73757/17, the courts specifically noted that the reports submitted by the applicants could not be accepted as reliable evidence because the surface areas of their properties according to those reports were different from the surface areas indicated in their ownership documents. In the proceedings concerning the claim of the applicant in application no. 753/18, the courts dismissed the report, finding that the estimated market value included the value of the plot of land underlying the house, when in fact that land was State-owned and had been occupied by ten individuals (including the applicant).

RELEVANT LEGAL FRAMEWORK

21.  The relevant provisions of domestic law and the relevant international reports concerning expropriation in Azerbaijan were summarised in Khalikova v. Azerbaijan (no. 42883/11, §§ 71-75 and 80-92, 22 October 2015), and Aliyeva and Others v. Azerbaijan (nos. 66249/16 and 6 others, §§ 48-71 and 89-91, 21 September 2021).

22.  Article 3.1 of the Law on Expropriation of Land for State Needs of 20 April 2010 provides an exhaustive list of State needs for which expropriation may take place under that Law. Building and installing roads of State importance and other communication networks (main oil and gas pipelines, sewers, high-voltage electricity lines and hydraulic structures) is one of them.

23.  Article 9 of the Law provides that the existence of a State need is determined by a decision issued by the Cabinet of Ministers. By the same decision the expropriating authority is appointed and preparation for issuing a decision on expropriation is started. During that phase, the borders of the land to be expropriated, its category and ownership status are determined, the list of persons that could be affected by the proposed expropriation is drawn up, an initial estimate of the cost and the source of the financing is established, and other relevant steps are taken.

24.  Article 18 of the Law provides that after the relevant steps are carried out, the expropriating authority presents its proposal concerning the expropriation of the land to the Cabinet of Ministers.

25.  Article 19 of the Law provides that, after examining the expropriating authority-�s proposal and all the relevant documents, the Cabinet of Ministers may issue a decision on the expropriation of the land. By the same decision a valuation commission is set up in order to evaluate the land and any other property that has to be expropriated.

26.  Article 20 of the Law provides that the land at issue is officially recognised as the land to be expropriated following the issuance of the decision on expropriation.

27.  Articles 21-24 of the Law provide for further steps to be taken following the adoption of the decision on expropriation, such as, for instance, establishment of an expropriation group comprised of the representatives of different State authorities, which should hold meetings with the persons affected by the expropriation, and the commissioning of an independent evaluator, on the basis of a competition held in accordance with domestic law, who then presents his or her or its proposals on valuation to the valuation commission and the Ministry of Finance.

28.  Article 52 of the Law and Article 248 of the Civil Code of 2000 provide that the acquisition of the land from the person affected by expropriation is subject to court approval, which should verify the compliance of the acquisition of the land with the requirements of the Law on Expropriation, and examine the type and amount of the compensation to be paid to the affected persons.

29.  Under Article 35.1 of the Housing Code of 2009 a plot of land underlying an apartment building is in the common shared ownership of the owners of the apartments. Article 36.4 of the Code prohibits the owner of an apartment from dividing in kind or selling his or her share in the common property or performing other acts aimed at the separate disposal of their share.

THE LAW

1. JOINDER OF THE APPLICATIONS

30.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 1 of Protocol no. 1 to THE CONVENTION

31.  The applicants complained that there had been an unlawful and unjustified interference with their property rights, in breach of Article 1 of Protocol No. 1 to the Convention, which 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.-�

1. Admissibility
   1. Possessions

32.  It is undisputed that the applicants owned houses, parts of houses or flats in accordance with the ownership documents issued to them (see the appended table). The applicants in applications nos. 37706/17, 59194/17, 73757/17, 75028/17 and 753/18 claimed that the plots of land underlying and/or attached to their properties also constituted their respective possessions. The Government did not make any particular submissions on that issue.

(a)   Application no. 37706/17

33.  It appears from the certificate of ownership issued to the applicant that the plot of land underlying her house was in her private ownership. That plot of land thus constituted her possession.

(b)   Applications nos. 73757/17 and 753/18

34.  The applicant in application no. 73757/17 owned 1/3 of a private house and claimed ownership of 50 sq. m of the total plot of land underlying that house which, according to her, occupied in total 100 sq. m of land. The Court notes that the applicant has not provided it with a copy of her certificate of ownership and that there is no information about the plot of land underlying the house in question in the case file.

35.  The applicant in application no. 753/18 owned a room in a private house of which nine other individuals also had shares. While she claimed that the land underlying and attached to the house in question was also in her shared ownership, she did not specify the size of any such share. When dismissing her claim in so far as it concerned pecuniary damage in respect of the plot of land, the domestic courts held that the plot of land underlying the house, which was in the shared ownership of ten persons in total, was State-�owned land (see paragraph 20 above).

36.  The Court notes in this connection that, in the case of Akhverdiyev v. Azerbaijan (no. 76254/11, 29 January 2015), it held that a -�lawful user-� of immovable property located on State-owned land had a right to have the land transferred into his or her ownership free of charge and that this right gave rise to a -�legitimate expectation-� of acquiring ownership of the land. Plots of land underlying and attached to a private residential house constituted the -�possessions-� of the owner of the house by virtue of provisions of domestic law (ibid., §§ 73-78).

37.  The situation in the present applications is, however, different. The applicants had shared ownership rights to the houses. They have not indicated whether in such a case they could automatically have any individual share in the plots of land underlying and/or attached to the houses transferred into their ownership or whether the plot of land underlying and/or attached to the house had to be first privatised by all owners who had shared ownership of the houses following which each person could transfer any corresponding share in the land to his or her ownership. In the absence of any substantiated arguments to that end, the Court considers that the applicants-� claim in respect of the plot of land underlying and/or attached to the houses, to which they had shared ownership rights, has not been made out. It cannot therefore be established that the parts of the plots of land underlying and/or attached to their properties amounted to their -�possessions-� within the meaning of Article 1 of Protocol No. 1.

(c)   Applications nos. 59194/17 and 75028/17

38.  The applicants owned flats in apartment buildings. The Court firstly observes that the domestic law provisions giving rise to a -�legitimate expectation-� of acquiring ownership of the land, which were referred to in the case of Akhverdiyev (cited above), concerned private residential houses and not flats in apartment buildings. Under Articles 35.1 and 36.4 of the Housing Code (see paragraph 29 above), the land underlying such buildings was in the common, shared ownership of the owners of the apartments in that building, who did not have the right to divide in kind or sell their shares or to perform other acts aimed at the separate alienation of their respective shares. Therefore, such shares cannot be regarded as separate -�possessions-� as such because they were attached to an apartment in the building of which they formed a part, thus constituting one whole property.

2. Victim status

39.  In the present case, the Government have not contested the applicants-� victim status. However, this issue concerns a matter which goes to the Court-�s jurisdiction and which the Court is not prevented from examining of its own motion (see, for example, Akshin Garayev v. Azerbaijan, no. 30352/11, § 36, 2 February 2023).

40.  The Court reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for a breach of the Convention (see, for example, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 80-81, ECHR 2012, and Mifsud and Others v. Malta, no. 38770/17, § 49, 13 October 2020).

41. The Court observes that in the present cases the applicants received various amounts as compensation (see the appended table). Without examining whether those amounts could be regarded as appropriate and sufficient, the Court notes that the domestic courts held that the expropriation of the applicants-� properties had been in compliance with the domestic law (see paragraph 19 above). There was no acknowledgement of a breach of Article 1 of Protocol No. 1 by the domestic courts. In the absence of any such acknowledgement, the Court considers that the applicants can still claim to be victims of the alleged violation.

3. Conclusion as regards admissibility

42.  The Court notes that this complaint, excluding the parts of the complaint concerning the claims of the applicants in applications nos. 59194/17, 73757/17, 75028/17 and 753/18 in respect of the plots of land underlying and/or attached to their properties which are incompatible ratione materiae, is neither manifestly ill-�founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

2. Merits
   1. The parties-� submissions

43.  The applicants presented similar arguments to those submitted before the domestic courts (see paragraphs 16-18 above).

44.  The Government submitted that the applicants-� properties fell under the framework of the BCEA-�s order of 12 December 2013 and that the Cabinet of Ministers had designated the YDEA as the expropriating authority in its decision of 11 November 2015. They therefore argued that the interference had been lawful and was in the general interest of the community, as the demolition of the properties had been carried out for the construction of roads and communication networks of State importance. The Government further argued that the applicants had freely entered into the sale and purchase contracts, accepting the sums offered by the YDEA as compensation, and since those amounts had been found to be fair and adequate by the domestic courts, the interference could not be said to have imposed an excessive burden on the applicants.

2. The Court-�s assessment

45.  The relevant case-law principles are summarised, in particular, in the cases of Akhverdiyev (cited above, §§ 79-82), and Khalikova (cited above, §§ 134-36).

46.  It is not disputed by the parties that there has been an interference with the applicants-� peaceful enjoyment of their possessions. The Court does not find any ground to hold otherwise and notes that the demolition of the applicants-� properties amounted to a -�depriv[ation] of ... possessions-� within the meaning of the second sentence of Article 1 of Protocol No. 1 to the Convention.

47.  The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see Guiso-�Gallisay v. Italy, no. 58858/00, § 82, 8 December 2005; Lekić v. Slovenia [GC], no. 36480/07, § 94, 11 December 2018; and Aliyeva and Others, cited above, § 128).

48.  It observes that the Government relied on the BCEA-�s order of 12 December 2013 and the Cabinet of Ministers-� decision of 11 November 2015 in support of their argument that the interference with the applicants-� rights in the present cases had been lawful (see paragraph 44 above).

49.  The Court has previously held in cases against Azerbaijan that the BCEA did not have any authority to expropriate privately-owned property (see Akhverdiyev, § 92, and Khalikova, § 138, both cited above). Therefore, its decision of 12 December 2013 could not serve as a lawful basis for expropriation of the applicants-� properties.

50.  As to the Cabinet of Ministers-� decision of 11 November 2015, the Court notes the following.

51.  Under Article 9 of the Law on Expropriation, the existence of a State need was determined by a decision issued by the Cabinet of Ministers. The expropriating authority was designated by the same decision and preparatory work for adoption of the decision on expropriation started after that (see paragraph 23 above). It appears that the Cabinet of Ministers-� decision of 11 November 2015 served the purposes dictated by the above-mentioned provision of the Law on Expropriation (see paragraph 9 above). While the applicants also argued that in its decision the Cabinet of Ministers had failed to specify the State need for which their properties were being expropriated and that it had referred to an outdated General Development Plan of the City of Baku (see paragraph 16 above), the Court does not find it necessary to address those issues because, even assuming that the Cabinet of Ministers-� decision of 11 November 2015 fully complied with the requirements of domestic law, it still could not serve as a basis for the expropriation of the applicants-� properties for the following reasons.

52.  As is apparent from the case files, the Cabinet of Ministers-� decision of 11 November 2015 concerned the preparatory phase of the expropriation procedure only. Following a certain number of steps to be taken during that phase, the YDEA had to present its proposal for the expropriation of the relevant land to the Cabinet of Ministers and the latter then had to issue a decision on the expropriation in accordance with Article 19 of the Law on Expropriation. Only after the adoption of such a decision could a valuation commission be set up and an independent evaluator be involved in the process for the valuation of the properties to be expropriated (see paragraphs 25 and 27 above). However, that did not happen in the present cases given that the Cabinet of Ministers never issued a decision on expropriation and the evaluator A.E. was involved in the process upon YDEA-�s request without any decision of the Cabinet of Ministers to that effect (see paragraph 10 above).

53.  The foregoing considerations are sufficient to enable the Court to conclude that the domestic procedure for the expropriation of privately-�owned property was not followed in the present cases. Therefore, the interference with the applicants-� peaceful enjoyment of their possessions was not carried out in compliance with the -�conditions provided for by law-�. That conclusion makes it unnecessary to ascertain whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual-�s fundamental rights (see, for example, Maharramov v. Azerbaijan, no. 5046/07, § 65, 30 March 2017).

54.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

3. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

55.  All the applicants complained under Article 6 § 1 of the Convention that the domestic courts-� judgments in their cases had not been properly reasoned. They also complained under Article 8 of the Convention of a violation of their right to respect for their home.

56.  Having regard to the facts of the cases, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal question raised in the present applications and that there is no need to examine the admissibility and merits of the above-mentioned complaints (compare Akhverdiyev, cited above, § 105; compare also Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.47848/08, § 156, ECHR 2014).

4. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57.  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.-�

58.  The applicants claimed various amounts in respect of pecuniary and non-pecuniary damage and in respect of costs and expenses (see the appended table).

59.  The Government submitted that the sums claimed were excessive and exaggerated and that the applicants had failed to submit any documents to substantiate their claims.

60.  The Court considers that the question of the application of Article 41 is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicants (Rule 75 §§ 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the part of the complaint under Article 1 of Protocol No. 1 to the Convention concerning the claims of the applicants in applications nos. 59194/17, 73757/17, 75028/17 and 753/18 in respect of the plots of land underlying and/or attached to their properties inadmissible, and the remainder of the complaints in those applications admissible;
3. Declares the complaint under Article 1 of Protocol No. 1 to the Convention in applications nos. 37706/17 and 47835/17 admissible;
4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
5. Holds that there is no need to examine the admissibility and merits of the complaints under Articles 6 and 8 of the Convention;
6. Holds that the question of the application of Article 41 of the Convention is not ready for decision; accordingly,

(a)  reserves the said question in whole;

(b)  invites the Government and the applicants to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;

7. Reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.

Done in English, and notified in writing on 31 August 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Renata Degener Marko Bošnjak
 Registrar President

APPENDIX