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FIRST
SECTION
CASE OF JAFAROV v. AZERBAIJAN
(Application
no. 17276/07)
JUDGMENT
STRASBOURG
11 February 2010
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 Jafarov v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17276/07) 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,
Mr Jafar Jafarov (“the applicant”), on 27 March 2007.
- The
applicant was represented by Mr N. Ismayilov and Mr M Mustafayev,
lawyers practising in Baku. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç. Asgarov.
- The
applicant alleged, in particular, that the
failure to enforce the judgment of 21 July 2003 had violated his
right to a fair trial and his property rights, as guaranteed by
Article 6 of the Convention and Article 1 of Protocol No. 1 to the
Convention.
- On
3 September 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Baku.
- On
1 December 1998 the applicant was issued with an occupancy voucher
(yaşayış orderi)
for a flat in a recently constructed residential building in Baku on
the basis of an order of the Baku City Executive Authority of 20
November 1998.
- At
the same time, the applicant became aware that the flat had been
occupied since 1 January 1998 by M. and his family, who were
internally displaced persons (“IDP”) from Shusha, a
region under the occupation of the Armenian military forces following
the Armenian-Azerbaijan conflict over Nagorno-Karabakh.
- According
to the applicant, despite numerous demands, M. refused to vacate the
flat, pointing out that he was an IDP and had no other place to live.
- On
an unspecified date in 2003 the applicant lodged an action with the
Yasamal District Court asking the court to order the eviction of M.
and his family from the flat.
- On
21 July 2003 the Yasamal District Court granted the applicant’s
claim and ordered that M. and his family be evicted from the flat.
The court held that the applicant was the sole lawful tenant of the
flat on the basis of the occupancy voucher of 1 December 1998 and
therefore that the flat was being unlawfully occupied by M. and his
family.
- No
appeals were lodged against this judgment and, pursuant to the
domestic law, it became enforceable within one month of its delivery.
However, M. and his family refused to comply with the judgment and,
despite the applicant’s complaints to various authorities, it
was not enforced.
- On
an unspecified date in 2006, the applicant and a group of other
persons who were in the same situation lodged an action with the
Yasamal District Court complaining that the Yasamal District
Department of Judicial Observers and Enforcement Officers (“the
Department of Enforcement Officers”) had not taken measures to
enforce the judgments.
- On
27 December 2006 the Yasamal District Court dismissed that complaint
as unsubstantiated. The applicant appealed against this judgment. On
2 May 2007 the Court of Appeal quashed the first-instance court’s
judgment and delivered a new judgment on the merits in the
applicant’s favour. The Court of Appeal held that the
Department of Enforcement Officers’ inaction had been unlawful
and that the judgment of 21 July 2003 should be enforced.
- On
an unspecified date in 2008 the applicant lodged an action against
different authorities, seeking compensation for non-enforcement of
the judgment of 21 July 2003. On 19 December 2008 the Yasamal
District Court dismissed the applicant’s claim as
unsubstantiated. On 3 March 2009 the Baku Court of Appeal and on 3
July 2009 the Supreme Court upheld the first-instance court’s
judgment.
- It
appears from the case file that, after the lodging of the present
application with the Court, M. lodged a request with the Yasamal
District Court asking for postponement of the execution of the
judgment of 21 July 2003. He alleged that, as he was an IDP, he had
no other place to live but the flat in question.
- On
2 July 2008 the Yasamal District Court granted M.’s request and
ordered the postponement of the execution of the judgment of 21 July
2003 until M. could move to one of the houses recently constructed
for temporary settlement of IDPs. The court relied on the
Presidential Order of 1 July 2004 on Approval of the State Programme
for Improvement of Living Conditions and Increase of Employment of
Refugees and Internally Displaced Persons (“the Presidential
Order of 1 July 2004”), according to which the relevant State
organs were instructed that until the return of the IDPs to their
native lands or until their temporary settlement in new houses, IDPs
should not be evicted from public apartments, flats, land and other
premises, regardless of ownership, they had settled in between 1992
and 1998. Following a series of appeals by the applicant, on 15 March
2009 the Baku Court of Appeal upheld the first-instance court’s
decision. It appears from the case file that on 12 May 2009 the
applicant appealed against this decision to the Supreme Court and
that the proceedings before the latter court are still pending.
II. RELEVANT DOMESTIC LAW
A. Housing Code of 8 July 1982
- Azerbaijani citizens are
entitled to obtain the right of use of apartments owned by the State
or other public bodies under the terms of a tenancy agreement
(Articles 10 and 28). A decision to grant an apartment is
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). The right of use
of apartments is granted for an indefinite term (Article 10).
B. Law on Privatisation of Housing of 26 January 1993
- Individuals residing, pursuant
to a tenancy agreement, in apartments owned by the State and other
public bodies have a right to transfer those 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).
C. Law on Social Protection of Internally Displaced
Persons and Equivalent Individuals of 21 May 1999
- IDPs are defined as “persons
displaced from their places of 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” (Article 2).
The IDPs 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 that the
internally displaced persons are resettled in other accommodation
(Article 5).
D. Regulations on Settlement of Internally Displaced
Persons in Residential, Administrative and Other Buildings Fit for
Residence or Feasible to make to Fit for Residence, adopted by the
Cabinet of Ministers, Resolution No. 200 of 24 December 1999
(“the IDP Settlement Regulations”)
- Article
4 of the IDP Settlement Regulations provides as follows:
“In order to prevent the eviction of internally
displaced persons from dwellings in which they settled between 1992
and 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...”
E. Regulations on Resettlement of Internally Displaced
Persons in Other Accommodation, adopted by the Cabinet of Ministers
Resolution No. 200 of 24 December 1999 (“the IDP Resettlement
Regulations”)
- Article
4 of the IDP Resettlement Regulations provides as follows:
“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”
F. Order of the President of the Republic of Azerbaijan
of 1 July 2004 on Approval of the State Programme for Improvement of
Living Conditions and Increase of Employment of Refugees and
Internally Displaced Persons
- In
the order, inter alia, the relevant State organs of the
Republic of Azerbaijan are instructed that until the return of the
IDPs to their native lands or until their temporary settlement in new
houses, IDPs should not be evicted from public apartments, flats,
land and other premises, regardless of ownership, they had settled in
between 1992 and 1998.
G. Code of Civil Procedure of 1 September 2000 (“the
CCP”)
- A
judge examining a civil case may, at the request of a party to the
case, decide to postpone or suspend the execution of the judgment or
change the manner of its execution because of the parties’
property situation or other circumstances (Article 231).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13
OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- Relying
on Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1 to the Convention, the applicant complained about the
non enforcement of the Yasamal District Court’s judgment
of 21 July 2003. Article 6 § 1 of the Convention reads as
follows:
“1. In the determination of his civil rights
and obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...”
Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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.”
A. Admissibility
- The
Government argued that the applicant had failed to exhaust domestic
remedies. In particular, the Government noted that, by a decision of
2 July 2008 of the Yasamal District Court, the execution of the
judgment of 21 July 2003 had been postponed and that an appeal
against this postponement was still pending before the domestic
courts.
- The
applicant disagreed with the Government and maintained that the
remedies suggested by the Government were not appropriate in the
circumstances of the present case.
- The Court reiterates that Article 35 § 1 of the
Convention, which sets out the rule on exhaustion of domestic
remedies, provides for a distribution of the burden of proof. It is
incumbent on the Government claiming non exhaustion to satisfy
the Court that the remedy was an effective one available in theory
and in practice at the relevant time, that is to say that it was
accessible, was one which was capable of providing redress in respect
of the applicant’s complaints and offered reasonable prospects
of success (see Akdivar and Others v. Turkey, 16 September
1996, § 68, Reports of Judgments and Decisions 1996 IV,
and Selmouni v. France [GC], no. 25803/94, § 76,
ECHR 1999 V). The Court further emphasises that the domestic
remedies must be “effective” in the sense either of
preventing the alleged violation or its continuation, or of providing
adequate redress for any violation that has already occurred (see
Kudła v. Poland [GC], no. 30210/96, § 158, ECHR
2000 XI).
- The
Court observes that in the instant case the
proceedings concerning the postponement of the execution of the
judgment were instituted after the present application had been
lodged with the Court at the request of M. and the purpose of the
institution of these proceedings was not to ensure or to accelerate
the execution of the judgment, but on the contrary to deprive it of
its binding force for an indefinite period. The Court notes
that the Government failed to provide any explanation as to how the
proceedings concerning the postponement of the execution of the
judgment of 21 July 2003 could have put an end to the continued
situation of non execution or as to the kind of redress which
the applicant could have been afforded as a result of these
proceedings. In any event, the Court observes that the applicant did
not complain about the outcome of the proceedings concerning the
postponement of the execution of the judgment in question but rather
about the fact that the judgment was not enforced. Even if the
domestic courts had ruled in favour of the applicant in the
postponement proceedings and decided that the execution of the
judgment of 21 July 2003 should not be postponed, such a decision
would only have produced the same results, the only outcome being
confirmation of the judgment’s enforceability enabling the
enforcement officers to proceed with the enforcement proceedings
(see, mutatis mutandis, Tarverdiyev v. Azerbaijan,
no. 33343/03, § 47, 26 July 2007, and Yavorivskaya v. Russia
(dec.), no. 34687/02, 13 May 2004).
- In
view of the above, the Court rejects the Government’s objection
concerning the non-exhaustion of domestic remedies. The
Court further considers that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
- The Government submitted that, due to the large number
of IDPs in Azerbaijan as a result of the Armenian-Azerbaijani
conflict over Nagorno Karabakh, there was a serious problem with
housing for IDPs in Azerbaijan. The Government noted that, despite
the fact that the judgment of 21 July 2003 had ordered the eviction
of M. from the flat, this judgment could not be enforced because
there was no other accommodation available for the IDPs settled in
the flat in question. The Government further argued that, due to the
postponement of the judgment of 21 July 2003, it was no longer
enforceable. Moreover, relying on different provisions of the
domestic law (see Relevant Domestic Law above), the Government
alleged that IDPs should not be evicted from their temporary places
of residence until their return to their native lands or their
resettlement in other accommodation. The Government also submitted
that the solution of the IDPs’ housing problem was one of the
priorities of the Government’s policy and that the relevant
measures were being implemented in this respect.
- The
applicant reiterated his complaint.
2. The Court’s assessment
(a) Articles 6 and 13 of the Convention
- The
Court reiterates that Article 6 § 1
secures to everyone the right to have any claim relating to his civil
rights and obligations brought before a court or tribunal; in this
way it embodies the “right to a court”, of which the
right of access, that is the right to institute proceedings before
courts in civil matters, constitutes one aspect. However, that right
would be illusory if a Contracting State’s domestic legal
system allowed a final, binding judicial decision to remain
inoperative to the detriment of one party. It would be inconceivable
that Article 6 § 1 should describe in detail procedural
guarantees afforded to litigants, namely to have proceedings that are
fair, public and expeditious, without protecting the implementation
of judicial decisions; to construe Article 6 as being concerned
exclusively with access to a court and the conduct of proceedings
would be likely to lead to situations incompatible with the principle
of the rule of law which the Contracting States undertook to respect
when they ratified the Convention. Execution of a judgment given by
any court must therefore be regarded as an integral part of the
“trial” for the purposes of Article 6 (see
Hornsby v. Greece, 19 March 1997, § 40,
Reports of Judgments and Decisions 1997 II).
- The
Court notes that a delay in the execution of a
judgment may be justified in particular circumstances. But the delay
may not be such as to impair the essence of the right protected under
Article 6 § 1 of the Convention (see Burdov v. Russia,
no. 59498/00, § 35, ECHR 2002 III).
The Court also reiterates that State responsibility for enforcement
of a judgment against a private party extends no further than the
involvement of State bodies in the enforcement procedures. When the
authorities are obliged to act in order to enforce a judgment and
they fail to do so, their failure to take action can engage the
State’s responsibility under Article 6 § 1
of the Convention (see, mutatis mutandis,
Cebotari and Others v. Moldova,
nos. 37763/04, 37712/04, 35247/04, 35178/04 and 34350/04, § 39,
27 January 2009).
- At
the outset, the Court observes that the
judgment of 21 July 2003 in favour of the applicant remained
unenforced for almost six years, thus preventing the applicant from
benefiting from the success of the litigation which concerned his
property rights. The Court notes that the dispute in the present case
was between private parties. However, in so far as the judgment of 21
July 2003 ordered the eviction of the IDPs from the applicant’s
flat, the situation at hand necessitated action by the State in order
to assist the applicant with the enforcement of the judgment when the
IDPs, as a private party, refused to comply with it. In the instant
case, it is undisputed by the parties that the judgment of 21 July
2003 had been enforceable under the domestic law at least until the
delivery of the decision of 2 July 2008 by the Yasamal District Court
concerning the postponement of the enforcement proceedings. It
appears from the case file that, despite the fact that the
enforcement proceedings had been instituted one month after the
delivery of the judgment of 21 July 2003, the Government had taken no
action in this connection and had not advanced any justification for
non-enforcement of the judgment in question during this period.
- As
for the order on postponement of the execution, the Court notes that
it has already examined a similar case, in which the execution of the
judgment on eviction was postponed by the court which delivered the
judgment (see Akimova v. Azerbaijan, no. 19853/03, §§
45-50, 27 September 2007). The Court found
in that case that the order on the postponement of the judgment’s
execution without any lawful basis and justification was in breach of
Article 1 of Protocol No. 1 to the Convention; the Court further
found that it was not necessary to examine the same complaint under
Article 6 in that case. Unlike that
case, in the present case the order on the postponement of the
execution of the judgment was taken approximately five years after
the judgment became final and enforceable. The Court notes that in
the instant case the postponement of the
execution of the judgment was based on the Presidential Order of 1
July 2004. The Court notes, however, that this Presidential Order did
not contain any specific provisions on civil procedure vesting
the domestic courts with the competence to postpone indefinitely the
execution of judicial eviction orders, which is what happened in the
present case. Moreover, the Law of 21 May 1999
provided that if the settlement of the IDPs of their own accord
infringed the rights and lawful interests of other persons, the
domestic authorities must ensure the resettlement of the IDPs in
other accommodation. Accordingly, the relevant presidential order
appeared to be contradictory to the legislative act possessing
superior force; in such circumstances, a question arises as to the
lawfulness of the postponement order based on this Presidential
Order. However, from the standpoint of Article 6 of the Convention,
the Court is not concerned with the question whether such
postponement was “lawful” under the domestic law. The
Court reiterates that the
rights guaranteed by Article 6 of the Convention would be illusory if
the Contracting State’s domestic legal system allowed a final,
binding judicial decision to remain inoperative to the detriment of
one party (see § 32 above). Moreover, a formal postponement of
execution of a final judgment for an indefinite period of time
without compelling reasons is incompatible with the principle of
legal certainty.
- The
Court is prepared to accept that, in the instant case, the existence
of a large number of IDPs in Azerbaijan created certain difficulties
in the execution of the judgment of 21 July 2003. Nevertheless, the
judgment remained in force, but for more than six years no adequate
measures were taken by the authorities to comply with it. It has not
been shown that the authorities had continuously and diligently taken
the measures for the enforcement of the judgment in question. In such
circumstances the Court considers that no reasonable justification
was advanced by the Government for the significant delay in the
enforcement of the judgment.
- The
Court considers that by failing to take necessary measures to comply
with the final judgment in the instant case, the authorities deprived
the provisions of Article 6 § 1 of the Convention of all useful
effect (see Burdov,
cited above, § 37). There has accordingly been a violation of
Article 6 § 1 of the Convention.
- In
view of the above finding, the Court does not consider it
necessary to rule on the complaint under Article 13 of the Convention
because Article 6 is lex specialis in regard to this part of
the application (see, for example, Efendiyeva v. Azerbaijan,
no. 31556/03, § 59, 25 October 2007, and Jasiūnienė
v. Lithuania, no. 41510/98, § 32, 6 March 2003).
(b) Article 1 of Protocol No. 1 to the Convention
- The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 if it is sufficiently established to be enforceable (see Stran
Greek Refineries and Stratis Andreadis v. Greece, 9 December
1994, § 59, Series A no. 301 B).
- The
Court observes that in the instant case the applicant did not own the
flat in question, but had only tenancy rights to it pursuant to the
occupancy voucher issued by the local executive authority. However,
the Court has found that a claim to a flat based on such an occupancy
voucher constitutes a “possession” falling within the
ambit of Article 1 of Protocol No. 1 (see Akimova, cited
above, §§ 39-41). In the present case, the applicant’s
tenancy right to the flat was recognised by the judgment of 21 July
2003. Moreover, the judgment ordered the eviction of the IDPs from
the flat, thus granting the applicant an enforceable claim to recover
the use of the flat in question.
- The
judgment had become final and enforcement proceedings had been
instituted, giving the applicant a right that he would recover the
use of the flat. It follows that the impossibility for the applicant
to obtain the execution of this judgment for more than six years
constituted an interference with his right to peaceful enjoyment of
his possessions, as set out in the first sentence of the first
paragraph of Article 1 of Protocol No. 1. The Court has previously
dealt with similar issues in the case of Radanovic v. Croatia. For
the reasons set out in that judgment, as well as those in paragraph
36 above, the Court finds that no acceptable justification for this
interference has been advanced by the Government (see, mutatis
mutandis, Radanović v. Croatia, no. 9056/02, §§
48-50, 21 December 2006).
- Accordingly,
there has also been a violation of 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.”
A. Damage
1. Pecuniary damage
- The
applicant claimed 68,809 euros (EUR) in respect of pecuniary damage.
He argued that, owing to the non-enforcement of the judgment, he had
to rent another place to live with his family. The amount claimed
covered the rent and the alleged current market value of his flat.
- The
Government argued that the applicant could not claim any compensation
for the market value of the flat. The Government further noted that
they had checked the grounds for the remainder of the claim
corresponding to the rental expenses and indicated their willingness
to accept the part of the applicant’s claim in respect of the
rent up to a maximum of EUR 8,695.
- As
for the part of the claim relating to the market value of the flat,
the Court rejects this part as it does not find any causal link
between the violation found and this part of the claim.
-
As for the part of the claim relating to the rental expenses, the
Court notes that there is a causal link between this part of the
claim and the violation found. However, the Court observes that the
applicant did not submit any evidence supporting this claim or any
basis for calculation of the amount claimed. In particular, he has
not submitted any rental contracts or other documents certifying
payment of rent. However, taking into account that the Government
agreed to compensate the applicant for the pecuniary damage in an
amount of EUR 8,695, the Court awards the applicant the sum of EUR
8,695 in respect of pecuniary damage, plus any tax that may be
chargeable.
2. Non-pecuniary damage
- The
applicant claimed EUR 20,000 in respect of non pecuniary damage.
- The
Government indicated their willingness to accept the applicant’s
claim for non-pecuniary damage up to a maximum of EUR 1,000.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage as a result of the lengthy non-enforcement of
the final judgment in his favour. However, the amount claimed is
excessive. Making its assessment on an equitable basis, as required
by Article 41 of the Convention, the Court awards the applicant the
sum of EUR 4,800 under this head, plus any tax that may be chargeable
on this amount.
- Moreover,
the Court considers that, in so far as the judgment of 21 July
2003 remains in force, the State’s outstanding obligation to
enforce it cannot be disputed. Accordingly, the applicant is still
entitled to enforcement of that judgment. The Court reiterates that
the most appropriate form of redress in respect of a violation of
Article 6 is to ensure that the applicant as far as possible is put
in the position he 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 case. It therefore considers that the Government shall
secure, by appropriate means, the enforcement of the judgment of 21
July 2003.
B. Costs and expenses
- The
applicant also claimed EUR 1,500 for the costs and expenses incurred
before the Court. This claim was not itemised or supported by any
documents.
- The
Government considered the claim to be unjustified.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, having regard to the
fact that the applicant failed to produce any supporting documents,
the Court dismisses the claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that the respondent State, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, shall secure, by appropriate
means, the enforcement of the domestic court’s judgment of 21
July 2003;
- Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 8,695 (eight thousand six hundred and ninety-five
euros) in respect of pecuniary damage and EUR 4,800 (four
thousand eight hundred euros) in respect of non pecuniary
damage, plus any tax that may be chargeable to the applicant, to be
converted into New Azerbaijani manats at the rate applicable at the
date of settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge
Malinverni joined by Judge Spielmann is annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE MALINVERNI, JOINED BY JUDGE
SPIELMANN
(Translation)
I
voted without hesitation for the finding that there had been a
violation of Article 6. I am not convinced, however, that in the
present case the authorities’ refusal to enforce the judgment
of 21 July 2003 also entailed a violation of Article 1 of Protocol
No. 1.
I
note first of all that the applicant was issued
with an occupancy voucher for a flat in a recently constructed
residential building on 1 December 1998. It transpired, however, that
the flat had been occupied since 1 January 1998 – for
eleven months – by a family whose members were internally
displaced persons (“IDPs” – see paragraphs 6 and
7). This situation inevitably gives rise to a question which was in
fact the root cause of the dispute: how could the competent
authorities allocate a flat to the applicant when they knew –
or at least should have known – that the flat was already
occupied by an internally displaced family? Should they not have made
sure beforehand that the flat was unoccupied?
I
further observe that, in the present case, the applicant did not own
the flat in question, but had only tenancy rights to it pursuant to
the occupancy voucher (see paragraph 40). Notwithstanding the finding
that a claim to a flat based on such an occupancy voucher constituted
a “possession” falling within the ambit of Article 1 of
Protocol No. 1, the applicant was not actually the owner (idem).
It is
correct to say, as the Court found, that the impossibility for the
applicant to obtain the execution of the judgment in his favour for
more than six years constituted an interference with his right to
peaceful enjoyment of his possessions, as set out in the first
sentence of the first paragraph of Article 1 of Protocol No. 1 (see
paragraph 41).
However,
I have greater difficulty agreeing with my colleagues when they state
that, for the reasons set out in paragraph 36, the Court finds that
no acceptable justification for this interference has been advanced
by the Government (see paragraph 41, last sentence).
In
other words, the reasons that led to a finding of a violation of
Article 6 are said to be equally valid for a finding of a violation
of Article 1 of Protocol No. 1. Is this reasoning correct? I
personally do not find it convincing.
Whilst
Article 6 does not give rise to a balancing of interests, such an
exercise is required by Article 1 of Protocol No. 1. In the present
case, the
two interests at stake were, on the one hand, the applicant’s
interest, protected as it was by Article 1 of Protocol No. 1, in
occupying the flat allocated to him, and on the other, the right of
M. and his family to their home, as protected by Article 8, which
covered the right not to be evicted.
Faced
with these conflicting rights, which one should prevail? I am not
persuaded that it should necessarily be the right under Article 1 of
Protocol No. 1. In its judgment of 21 July 2003 the Yasamal District
Court does not seem to have carried out this balancing of interests
(see paragraph 10). However, in its decision of 2 July 2008 that same
court seems to have taken into account the right of M. and his family
not to be evicted, because it granted M.’s request and ordered
a stay of execution of the judgment of 21 July 2003 until M.
could move into one of the houses recently constructed for temporary
settlement of IDPs (paragraph 16).
I
regret, for my part, that the judgment did not balance the two
competing interests before concluding that there had been a violation
of Article 1 of Protocol No. 1. Instead of confining itself to
finding that this Article had been breached, the Court should have
taken into consideration the internally displaced family’s
right to their home, and should have ensured that the family could be
rehoused elsewhere.
