CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 5 décembre 2013

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border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s6227A0B3 { width:15.64%; border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top }       FIRST SECTION             CASE OF VALIYEV AND OTHERS v. AZERBAIJAN   (Applications nos. 58265/09, 7526/10, 73346/10, 7928/11 and 16785/11)             JUDGMENT         STRASBOURG   5 December 2013               This judgment is final but it may be subject to editorial revision. In the case of Valiyev and Others v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Julia Laffranque, President,   Khanlar Hajiyev,   Erik Møse, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 12 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in five 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 the following Azerbaijani nationals: -              Mr Ramiz Valiyev, born in 1962, represented by Ms Gunel Abdurahimova, a lawyer practising in Azerbaijan (application no.   58265/09, lodged on 22 October 2009); -              Mr Damir Mammadov, born in 1960, represented by Mr Ruslan Mustafazade, a lawyer practising in Azerbaijan (application no.   7526/10, lodged on 25 January 2010); -              Ms Sevda Mammadova, born in 1968, represented by Ms Shafa Jamalzade, a lawyer practising in Azerbaijan (application no.   73346/10, lodged 25 November 2010); -              Ms Leyla Abbasova, born in 1963 (application no.   7928/11, lodged 5 January 2011); -              Ms Saadiya Aliyeva, born in 1985, represented by Ms Sevinj Aliyeva, a lawyer practising in Azerbaijan (application no.   16785/11, lodged 28 February 2011). 2.     The Azerbaijani Government (“the Government”) were represented by their Agent, Mr   Ç.   Asgarov. 3.     On 5 May 2011 applications nos. 58265/09, 7526/10, 7928/11, 16785/11 and on 7 April 2011 application no. 73346/10 were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.       All of the applicants have either tenancy rights to their flats on the basis of occupancy vouchers ( yaşayış sahəsi orderi ) issued by the relevant executive authorities or ownership rights to them on the basis of an ownership certificate issued by the competent domestic authority (see Appendix - Table I). 5.     In four of these cases, the applicants’ flats were unlawfully occupied by internally displaced persons (“IDPs”) from different regions of Azerbaijan under occupation by Armenian military forces following the Armenian Azerbaijani conflict over Nagorno-Karabakh, and in one case (application no. 7928/11) by a family of refugees from Armenia. 6.     The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats. 7.     On the dates indicated in the Appendix (Table I), the applicants’ claims were granted by various domestic courts, which ordered the eviction of the IDPs from their flats. 8.     The respective judgments became final and enforceable. However, the IDP families refused to comply with those judgments and despite the applicants’ complaints to various authorities, the judgments were not enforced. 9.     According to the Government’s letter of 17 May 2012, the judgments in the applicants’ favour in applications nos. 58265/09, 73346/10, 7928/11 and 16785/11 were enforced in April 2012. II.     RELEVANT DOMESTIC LAW 10.     The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22   April   2010). THE LAW I.     ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 11.     Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the non-enforcement of the judgments in their favour. Article 6 § 1 of the Convention reads, as far as relevant, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 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.” 12.     The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. A.     Admissibility 1.     The Court’s competence rationae temporis in applications nos.   58265/09 and 7928/11 13.     The Court observes that in the case of Mr Ramiz Valiyev (application no.   58265/09) and Ms Leyla Abbasova (application no. 7928/11) the domestic judgments in the applicants’ favour were delivered prior to 15 April 2002, the date of the Convention’s entry into force in respect of Azerbaijan. 14.     The Court notes that in the light of the authorities’ continued failure to execute the judgments in question, they remained unenforced for a long period. Therefore, there was a continuous situation and the Court is thus competent to examine the part of the applications relating to the period after 15 April 2002 (see Gulmammadova, cited above, § 26).   2. The victim status of the applicants in applications nos.   58265/09, 73346/10, 7928/11 and 16785/11 15.     The Court notes that the judgments in favour of the applicants Mr   Ramiz Valiyev, Ms Sevda Mammadova, Ms Leyla Abbasova and Ms   Saadiya Aliyeva (applications nos. 58265/09, 73346/10, 7928/11 and 16785/11) were enforced in April 2012. However the Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Amuur v. France , judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no.   28114/95, § 44, ECHR 1999-VI). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application. 16.     In the present cases, having regard to the fact that the judgments remained unexecuted for more than two and three years in cases nos.   16785/11 and 73346/10 respectively, and for seventeen and eighteen years in cases nos. 58265/09 and 7928/11 respectively of which more than ten years fall within the period after the Convention’s entry into force in respect of Azerbaijan, the Court finds that no redress was afforded to the applicants, as no compensation was offered to them in respect of the alleged violations of the Convention, that is the lengthy non-enforcement of the judgments in favour of the applicants. 17.     In such circumstances, while it is true that the judgements in the applicants’ favour were enforced, the Court finds that the measures taken in the applicants’ favour were nevertheless insufficient to deprive them of “victim” status in the present cases (see Gasimova and others v. Azerbaijan [Committee], no.7867/09 etc., §§ 16-18, 3 May 2012). 3.     Other admissibility criteria 18.     The Court further considers that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must, therefore, be declared admissible. B.     Merits 19.     The Court points out that the factual circumstances of these cases are similar and that the complaints and legal issues raised are identical to those in the Gulmammadova case (cited above), in which it found violations of Article 6 § 1 and Article 1 of Protocol No. 1. 20.     Having examined all the materials in its possession, the Court finds that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in respect of the present applications. 21.     In particular, the Court is prepared to accept that, in these cases, the existence of a large number of IDPs in Azerbaijan created certain difficulties in relation to the execution of the judgments in the applicants’ favour. Nevertheless, the judgments remained final and enforceable, but no adequate measures were taken by the authorities to ensure compliance with them. It has not been shown that the authorities acted with expedition and diligence in taking any measures necessary for the enforcement of the judgments in question. In such circumstances, the Court considers that no reasonable justification has been advanced by the Government for the significant delay in the enforcement of the judgments. 22.     As regards the applicants’ submissions concerning the alleged violation of their property rights, it has not been established either in the domestic proceedings or before the Court that any specific measures were taken by the domestic authorities in order to comply with their duty to balance the applicants’ right to peaceful enjoyment of their possessions protected under Article 1 of Protocol No. 1 to the Convention against the IDPs’ right to be provided with accommodation. In such circumstances, the failure to ensure the execution of the judgments for considerable periods of time resulted in a situation in which the applicants were forced to bear an excessive individual burden. The Court considers that, in the absence of any compensation for this excessive individual burden, the authorities failed to strike the requisite fair balance between the general interest of the community in providing the IDPs with temporary housing and the protection of the applicants’ right to peaceful enjoyment of their possessions (see Gulmammadova , cited above, §§ 43-50). 23.     There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 24.     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.” 25.   Ms Leyla Abbasova (application no.   7928/11) failed to submit her claims for just satisfaction within the time limit set by the Court. Therefore, the Court considers that there is no call to make an award in this application. A.     Damage 1.     Pecuniary damage 26.     The remaining applicants made the following claims in respect of pecuniary damage. - Mr   Ramiz Valiyev (application no.   58265/09), claimed EUR   27,934 euros (EUR), which included the loss of rent as calculated from the date of the illegal occupation of his flat by the IDP families. - Ms Sevda Mammadova (application no. 73346/10) claimed EUR   37,000, which included the loss of rent as calculated from the date of the Convention’s entry into force in respect of Azerbaijan. - Ms Saadiya Aliyeva (application no. 16785/11) claimed EUR 11,658, which included the loss of rent as calculated from the date of the Convention’s entry into force in respect of Azerbaijan. - Mr Damir Mammadov (application no. 7526/10) claimed EUR 67,320, which included the loss of rent as calculated from the date of the illegal occupation of his flat by the IDP families. 27.     The Government submitted that no award should be made to Ms   Sevda Mammadova and Mr Damir Mammadov having regard to the fact that the applicant would inevitably have experienced certain delays in finding suitable tenants and would have incurred certain reparation expenses in connection with the flat, as well as subjected to taxation which amounts to 14 % of the cost of contract. As to the claims submitted by the other applicants, the Government indicated their willingness to accept the applicants’ claims for pecuniary damage up to the respective amounts indicated in the Appendix (Table II). 28.     The Court considers that the applicants must have suffered pecuniary damage as a result of their lack of control over their flats and finds that there is a causal link between the violations found and the pecuniary damage claimed in respect of lost rent (see Zulfali Huseynov v. Azerbaijan , no.   56547/10, § 24, 26 June 2012). The Court considers that the damage suffered by Ms Sevda Mammadova (application no. 73346/10), Ms Saadiya Aliyeva (application no. 16785/11) and Mr Damir Mammadov (application no. 7526/10) should be calculated as from the date when the respective judgments in the applicants’ favour became final (ibid., § 25) . The damage suffered by Mr   Ramiz Valiyev (application no.   58265/09) should be calculated from the date of the Convention’s entry into force in respect of Azerbaijan (ibid.). 29.     Having examined the parties’ submissions in applications nos.   58265/09, 73346/10, 7526/10 and 16785/11 the Court will take as a reference point the estimates submitted by the parties. In making its assessment, the Court takes into account the fact that the applicants would inevitably have experienced certain delays in finding suitable tenants and would have incurred certain maintenance expenses in connection with the flats. They would have also been subject to taxation (ibid., §§ 26-28 ). 30.     Having regard to the foregoing, and deciding on an equitable basis, the Court awards the following amounts to the applicants:   - Mr   Ramiz Valiyev (application no.   58265/09): EUR 14,890 - Mr Damir Mammadov (application no. 7526/10): EUR 4,290 - Ms Sevda Mammadova (application no. 73346/10): EUR 11,192 - Ms Saadiya Aliyeva (application no. 16785/11): EUR 2,500 2.     Non-pecuniary damage 31.     Each applicant, except for Ms Leyla Abbasova (see paragraph 25 above) claimed various sums as indicated in the Appendix (Table II) in respect of non-pecuniary damage. 32.     The Government indicated their willingness to accept the applicants’ claims for non-pecuniary damage up to the respective amounts indicated in the Appendix (Table II). 33.     The Court considers that the applicants must have sustained some non-pecuniary damage as a result of the lengthy non-enforcement of the final judgments in their favour. However, the amounts claimed in most of the cases are excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the following amounts under this head, plus any tax that may be chargeable on these amounts: - Mr   Ramiz Valiyev (application no.   58265/09): EUR 4800; - Mr Damir Mammadov (application no. 7526/10): EUR 3,000; - Ms Sevda Mammadova (application no. 73346/10): EUR 2,100; - Ms Saadiya Aliyeva (application no. 16785/11): EUR 1,200. 34.     Moreover, the Court considers that, in so far as the judgment in favour of Mr Damir Mammadov remains in force, the State’s outstanding obligation to enforce it cannot be disputed. Accordingly, Mr Damir Mammadov is still entitled to the enforcement of the judgment in his favour. The Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicants, as far as possible, are put in the position they 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 case of Mr Damir Mammadov (application no. 7526/10). It, therefore, considers that the Government shall secure, by appropriate means, the enforcement of the judgment in his favour. B.     Costs and expenses 35.     All the applicants, except Ms Leyla Abbasova (see paragraph 25 above), also claimed various sums as indicated in the Appendix (Table II) for the costs and expenses incurred before the domestic courts and the Court. 36.     The Government considered the claims to be unjustified except the amount of EUR 183,52 paid by Ms Sevda Mammadova (application no. 73346/10) for the estimation of the loss of rent and the amount of EUR 500 for Mr Damir Mammadov (application no. 7526/10) in respect of the legal services rendered by his representative. 37.     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. 38.     The Court note that the cases concern matters on which there is well-established case-law. In view of the above consideration and having regard to the supporting documents submitted by the applicants, the Court awards the amount of EUR 500 each to Mr   Ramiz Valiyev (application no.   58265/09), Mr Damir Mammadov (application no. 7526/10), and Ms   Saadiya Aliyeva (application no. 16785/11) in respect of the legal services rendered by their respective representatives. The Court awards EUR 683,52 to Ms Sevda Mammadova (application no. 73346/10) in respect of the legal costs and other expenses. C.     Default interest 39.     The Court considers it appropriate that the default interest rate 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 1.     Decides to join the applications;   2.     Declares the applications admissible;   3.     Holds that there has been a violation of Article   6 § 1 of the Convention;   4.     Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;   5.     Holds that the respondent State, within three months, shall secure, by appropriate means, the enforcement of the domestic court’s judgment in favour of applicant Damir Mammadov (application no. 7526/10);   6. Holds (a)     that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement: - Mr   Ramiz Valiyev (application no.   58265/09): EUR 14,890 (fourteen thousand eight hundred and ninety euros) in respect of pecuniary damage; EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and EUR 500 (five hundred euros) in respect of costs and expenses; - Mr Damir Mammadov (application no. 7526/10): EUR 4,290 (four thousand two hundred and ninety euros) in respect of pecuniary damage; EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and EUR 500 (five hundred euros) in respect of costs and expenses; - Ms Sevda Mammadova (application no. 73346/10): EUR 11,192 (eleven thousand one hundred ninety two) in respect of pecuniary damage; EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and EUR 683,52 (six hundred eighty three euros and fifty two cents) in respect of costs and expenses; - Ms Saadiya Aliyeva (application no. 16785/11): EUR 2,500 (two thousand five hundred euros) in respect of pecuniary damage; EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and EUR 500 (five hundred euros) in respect of costs and expenses;   (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;   7.     Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 5 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André Wampach   Julia Laffranque Deputy Registrar   President   APPENDIX Table I No. Application number Date of introduction Applicant name   Represented by Document confirming the applicant’s property rights Date of delivery of the enforceable judgments                    58265/09 22/10/2009 Ramiz VALIYEV   Gunel ABDURAHIMOVA The ownership certificate of   12   August 1997 The Yasamal District Court’s judgment of 11   May 1995                    7526/10 25/01/2010 Damir MAMMADOV   Ruslan MUSTAFAZADE The occupancy voucher of 30   November 1995 The Supreme Court’s judgment of 3   March 2009                    73346/10 25/11/2010 Sevda MAMMADOVA   Shafa JAMALZADE The ownership certificate of 27   July 1996 The Baku Court of Appeal’s judgment of 19   August 2008                    7928/11 05/01/2011 Leyla ABBASOVA   - The ownership certificate of 7   April 1995 The Baku City Court’s judgment of 27 December 1993                    16785/11 28/02/2011 Saadiya ALIYEVA   Sevinj ALİYEVA The occupancy voucher of 25 June 1992 The Supreme Court’s judgment of 12 February 2010 Table II     Case no.   Applicant’s name Claim in respect of pecuniary damage (EUR) Claims in respect of non-pecuniary damage (EUR) Claims in respect of costs and expenses (EUR) Amounts accepted by the Government in respect of pecuniary damage (EUR) Amounts accepted by the Government in respect of non-pecuniary damage (EUR) 58265/09 Ramiz Valiyev 27,934 50,000 2,368 3,000 4,800 7526/10 Damir Mammadov 67,320 6,000 1,500 - 1,200 73346/10 Sevda Mammadova 37,000 30,000 5,000 - 1,200 16785/11 Saadiya Aliyeva 11,658 50,000 2,215 2,500 1,200