CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 5 mars 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s88036C24 { width:29.79pt; display:inline-block } .s766CA6F { width:155.43pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 14722/08 Tofig VALIYEV against Azerbaijan   The European Court of Human Rights (Fifth Section), sitting on 5 March 2019 as a Committee composed of:   André Potocki, President,   Mārtiņš Mits,   Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, Having regard to the above application lodged on 27 February 2008, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Tofig Birmali oglu Valiyev, is an Azerbaijani national, who was born in 1937 and lives in Baku. He was represented before the Court by Ms S. Aliyeva, a lawyer practising in Azerbaijan. 2.     The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3.     On 11 March 2013 the application was communicated to the Government. A.     The circumstances of the case 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The applicant owns a flat on the ground floor of a residential building located on A.   Neymatulla Street in Baku. 6.     On 24 December 2004 he requested the Baku City Executive Authority (“the BCEA”) to grant permission for a conversion project to transform a window facing the street into a door and to build a staircase on the pavement in front of the door (“the conversion project”), allowing the use of one of the rooms of the flat as a florist’s shop. The window in question faces A.   Heydarov Street, which is perpendicular to A.   Neymatulla Street. 7.     According to the applicant, in the meantime the BCEA granted permits for similar conversion projects in respect of eleven other windows of the same building, including five windows belonging to one particular neighbour (see paragraph 8 below). He did not provide any specific details about other neighbours; nor did he specify on which side of the building the eleven allegedly converted windows were located. 8.     On 20 February 2006 the BCEA refused to grant the permit requested by the applicant. It noted that the window in question was located high off the ground and, therefore, the conversion project proposed by the applicant required construction of a staircase and a stair landing, which would narrow the pavement and would alter the architectural appearance of the building’s façade. It further noted that one of the applicant’s neighbours had been unlawfully granted a permit to transform a window into a door by the Narimanov District Executive Authority (“the NDEA”) and that the BCEA had quashed that permit and had ordered the NDEA to restore that flat into its original condition. 9.     On 20 March 2006 the applicant lodged a claim against the BCEA with the Sabail District Court, requesting the court to order the BCEA to grant him the permit. 10.     The court ordered an expert report on the conversion project. 11.     On 15 August 2006 an expert report was issued finding that the conversion project was technically possible and in compliance with the State Construction Norms (AzDTN 2.6-1) approved by the State Committee for Construction and Architecture on 12 October 2001. 12.     On 29 August 2006 the Sabail District Court delivered a judgment granting the applicant’s claim and ordering the BCEA to grant the permit requested and to prepare the necessary documents. In granting the applicant’s claim, the court relied primarily on the expert report and did not refer to any relevant provisions of the domestic law. 13.     According to a handwritten note by a judge on the copy of the judgment, the judgment entered into force and became final on 1 November 2006. 14.     On 28 November 2006 a writ of execution was issued. 15.     On the same date a judge of the Sabail District Court sent a letter to the enforcement officer requesting the execution of the judgment of 29   August 2006 and enclosing a copy of the judgment and the writ of execution. 16.     On 4 December 2006 the enforcement officer sent a letter to the BCEA asking it to execute the judgment within five days. 17.     On 10 January 2007 the enforcement officer sent a further letter to the BCEA, again asking for the execution of the judgment within five days and also warning of the administrative and criminal responsibility for non ‑ execution. 18.     On 24 January 2007 the Ministry of Justice sent a letter to the enforcement office instructing them to review the applicant’s complaint concerning non-enforcement of the judgment and to carry out necessary measures. 19.     On an unspecified date the BCEA lodged an appeal directly with the Court of Appeal. There was a handwritten date on the copy of the appeal indicating 30 October 2006 as the date of lodging. 20.     In its appeal, the BCEA argued that the Sabail District Court’s judgment of 29 August 2006 was unlawful and unsubstantiated. It noted that, under the domestic law, no construction or reconstruction project could be authorised in Baku on the basis of only a technical expert report, and that permission by the BCEA’s Chief Department for Architecture and Urban Planning for it was required. It further argued that its refusal to grant permit was lawful under the Law on architectural activity, the Law on fundamentals of urban planning and the Housing Code. 21.     On 25 January 2007 the Court of Appeal delivered a decision declaring the BCEA’s appeal admissible indicating without further details that it had been lodged in compliance with the CCP. 22.     The applicant lodged an objection. He stated that the judgment of 29   August 2006 had already become final and that the BCEA had lodged a belated appeal against that final judgment merely to avoid executing it. 23.     On 30 May 2007 the Court of Appeal examined the appeal on the merits, quashed the judgment of 29 August 2006 and dismissed the applicant’s claim. The court found that the mere fact that the conversion project was technically possible and in accordance with the technical standards did not mean that the BCEA was obliged to grant a permit. It further found that the BCEA’s refusal to grant the permit, on the ground that the conversion project would have narrowed the pavement and altered the architectural appearance of the building’s façade, was in accordance with the relevant provisions of the domestic law (summarised in paragraphs   26 ‑ 28 below). The court did not address the issue of the finality of the first-instance judgment. 24.     On 6 September 2007 the Supreme Court upheld the Court of Appeal’s judgment reiterating its reasoning. The Supreme Court did not address the issue of the finality of the first-instance judgment. B.     Relevant domestic law 1.     Civil procedure 25.     The relevant provisions of the Code of Civil Procedure of 1   September 2000 (“the CCP”) provided, at the material time, as follows: Article 360 “An appeal may be lodged within one month after official delivery (receipt) of the judgment.” Article 362 “Appeal application and attached written documents shall be submitted to the first instance court which has heard the case in a number of copies equal to the number of parties in a case.” Article 366 “366.1.     The appellate court shall examine the admissibility of an appeal. The examination shall include existence of the procedural grounds for hearing a case on appeal. ... 366.3.     The court shall deliver a decision on the admissibility of an appeal. 366.4.     A decision rejecting the appeal as inadmissible may be appealed against to the court of cassation instance.” Article 367 “367.1.     If the appeal is declared admissible, the court presents the appeal and the accompanying documents to the opposing party. 367.2.     The parties to the proceedings may send to the court an objection or comments on the appeal within twenty days after receipt of the copy of the appeal. ...” Article 386 “The substantive law is considered to be breached or misapplied when the court of first-instance makes a mistake in application of the law, does not apply the applicable law or other normative-legal document, or misinterpretes the law.” Article 417 “417.1.     While examining a case, the court of cassation instance is competent to: 417.1.1.     uphold the judgment or decision of the apellate court without any changes and dismiss the complaint; 417.1.2.     amend the judgment or decision of the appellate court; 417.1.3.     quash the judgment or decision of the appellate court in whole or in part and to remit the case to the appellate court for re-examination; 417.1.4.     quash the judgment or decision of the appellate court in whole or in part and to deliver a new judgment based on circumstances and the evidence established by the appellate court; 417.1.5.     quash the judgment or decision of the appellate court in whole or in part and to hold the claim unexamined in whole or in part in accordance with Articles 259.0.1 -259.0.3 and 259.0.8 - 259.0.10 of the CCP or to terminate the proceedings in accordance with Articles 261.0.1 - 261.0.7 of the CCP. 417.2.     A judgment stipulated in Article 417.1.4 of this Code is delivered only if the appellate court breaches or misapplies the substantive law.” 2.     Legislation on housing, architecture and urban planning 26.     According to the Housing Code of 1982, as in force until 30 June 2009, residential premises were designated for use as permanent dwelling of individuals (Article 6). As a general rule, it was not permitted to transform residential premises suitable for dwelling into non-residential premises. Such transformation could be exceptionally permitted pursuant to a decision of the relevant authority (Article 8). 27.     According to Article 4 of the Law on architectural activity of 15   May 1998, as in force at the material time, an architectural building must be in conformity with the existing construction rules and regulations, the principal provisions of the territorial planning projects and the requirements for ensuring safety and comfort of the environmental and social aspects of human activity. A design of an architectural building, including the rules for design’s technical and environmental audit, was subject to approval by the relevant executive authority. 28.     According to the Law on principles of urban planning of 11 June 1999, as in force at the material time, individuals and legal entities engaging in urban building activities must comply with the State rules and regulations on urban planning (Article 8). Individuals or legal entities undertaking re ‑ planning, reconstruction or structural modification projects in respect of existing buildings must obtain prior permission of the relevant authority (Article 17). Modifying the functional profile of a building or its re ‑ planning or reconstruction, without obtaining permission by the relevant executive authority in accordance with the law, might result in administrative or civil liability of individuals or legal entities (Article 25). COMPLAINTS 29.     The applicant complained under Article 6 § 1 of the Convention about the breach of the principle of legal certainty on account of the quashing of the final judgment of 29 August 2006. 30.     The applicant complained under Article 1 of Protocol No. 1 to the Convention that the refusal of the BCEA to grant him the permit had infringed his right to the peaceful enjoyment of his possessions. 31.     The applicant complained under Article 6 § 1 of the Convention that his right to a reasoned judgment had been breached as the Court of Appeal had failed to take into consideration some of the evidence, specifically the expert report, in its judgment. 32.     The applicant complained under Article 14 of the Convention that he had been discriminated against vis-à-vis his neighbours. THE LAW A.     Complaint under Article 6 § 1 of the Convention 33.     The applicant complained about the breach of the principle of legal certainty on account of the quashing of the final judgment of 29 August 2006. He relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 1.     The parties’ submissions 34.     The Government argued that the BCEA had lodged its appeal on 30   October 2006, which had been within statutory time-limit and not belated. 35.     The Government further argued that the applicant had not exhausted domestic remedies. In particular, the Government noted that the applicant could have expressly raised the issue of admissibility of the appeal lodged by the BCEA before the Court of Appeal and the Supreme Court, but he had failed to do so. 36.     The applicant disagreed arguing that the BCEA’s appeal had not been lodged on 30 October 2006, but much later, after the judgment of 29   August 2006 had become final. 37.     The applicant further argued that in accordance with Article 366.4 of the CCP a court decision concerning admissibility of an appeal could be appealed against only in case such a decision declares the appeal inadmissible. Consequently, the applicant could not have challenged the decision of the Court of Appeal declaring the appeal lodged by the BCEA admissible. 2.     The Court’s assessment 38.     The Court notes, at the outset, that the Government and the applicant disagreed about the actual date on which the BCEA had lodged its appeal. 39.     The Court nevertheless sees no need to address this issue as the complaint in any event should be declared inadmissible for the following reasons. (a)     Exhaustion of domestic remedies 40.     The Court reiterates that an infringement of the litigant’s “right to a court” only occurs when a higher court quashes a final and enforceable judicial decision (see Nosov v. Russia (dec.), no. 30877/02, 20 October 2005, with further references). Therefore, the Court will examine whether the applicant had effective remedies on account of the quashing of the judgment of 29 August 2006. 41.     The Court observes that the Court of Appeal declared the BCEA’s allegedly belated appeal admissible on 25 January 2007. It appears that this decision was not subject to appeal to the court of cassation instance: the domestic law provided for a right of appeal only against inadmissibility decisions, and did not expressly provide for a right of appeal against decisions on admissibility (see Article 366 of the CCP cited in paragraph 25 above). The right to submit an objection to the appeal, of which the applicant availed himself (see paragraph 22 above), could be exercised before the appellate court only after the decision on the admissibility of the appeal had been taken; therefore, in principle, this right was meant to provide the opposing party with an opportunity to comment on the merits of the appeal and not on its admissibility (see Article 367 of the CCP cited in paragraph 25 above). Furthermore, after declaring the BCEA’s appeal admissible, by its judgment of 30 May 2007 the Court of Appeal both quashed the first-instance judgment of 29 August 2006 and dismissed the applicant’s claim by examining the case on the merits. The judgment of 30   May 2007 was subject to an ordinary appeal and the applicant indeed appealed against it to the Supreme Court. However, the Court notes that the judgment of the Supreme Court examining the applicant’s appeal could not remedy the alleged breach of the principle of legal certainty under any of the possible scenarios stipulated in Article 417 of the CCP (see paragraph 25 above). Even if the Supreme Court had quashed the judgment of 30 May 2007 in whole and had remitted the case to the Court of Appeal for re ‑ examination under Article 417.1.3 of the CCP, the Court of Appeal still had to decide the case on the merits and under the most positive scenario for the applicant, to dismiss the appeal of the BCEA on the merits. Therefore, even if the original judgment of 29 August 2006 had been upheld in the course of these proceedings, this would not have remedied the alleged breach of the principle of legal certainty, given the below-mentioned (see paragraph 44 below) instantaneous nature of the violation resulting from the act of quashing (see The Mrevli Foundation v. Georgia (dec.), no.   25491/04, 5   May 2009). Moreover, the principle of legal certainty requires that where the courts have finally determined an issue their ruling should not be called into question. The principle of legal certainty also does not allow a party to seek the review of a final and binding judgment merely for the purpose of a rehearing and a fresh determination of the case (see Brumărescu v. Romania [GC], no. 28342/95. § 61, ECHR 1999 ‑ VII). However, in the present case, by its judgment of 30 May 2007 the Court of Appeal not only quashed the judgment of 29 August 2006, but also carried out a fresh determination of the case on the merits and in accordance with the CCP, any further examination of the case would similarly cover determination of the case on the merits. 42.     It follows that, insofar as the applicant complained about breach of the principle of legal certainty on account of the quashing of a final judgment, it has not been shown that he had at his disposal an effective domestic remedy. 43.     The Court therefore dismisses the Government’s objection as to the non-exhaustion of domestic remedies. (b)     Compliance with the six-month time-limit 44.     The Court reiterates that the quashing of a final judgment is an instantaneous act which does not create a continuing situation, even if it entails the reopening of the proceedings, as in the instant case (see Topallaj v. Albania , no. 32913/03, § 103, 21 April 2016, with further references). Taking into account the scope of the complaint as raised by the applicant, the Court considers that, in the circumstances of the present case, it was, at the latest, the Court of Appeal’s judgment of 30 May 2007 which allegedly breached the applicant’s rights under Article 6 § 1 of the Convention. As the Court found in paragraph 42 above, the applicant did not have at his disposal an effective remedy against this alleged violation. 45.     Therefore, the Court considers that, at the latest, 30 May 2007 was the date triggering the start of the six-month time-limit in respect of the complaint about the quashing of a final judgment. 46.     As the application was introduced on 27 February 2008, the applicant’s complaint under Article 6 § 1 of the Convention must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention as being out of the six-month time-limit. B.     Complaint under Article 1 of Protocol No. 1 to the Convention 47.     The applicant complained that the refusal of the BCEA to grant him the permit for the conversion project had infringed his right to the peaceful enjoyment of his possessions as provided in 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.     The parties’ submissions 48.     The applicant submitted that the refusal of the BCEA to grant him the permit for the conversion project had infringed his right to the peaceful enjoyment of his flat. The applicant further noted that the BCEA had granted permits for similar conversions in respect of eleven other windows of the same building in question. 49.     The Government maintained that the interference with the applicant’s right to peaceful enjoyment of his possessions was justified as the conversion project would have narrowed the pavement, which is in public use, and would have altered the architectural appearance of the building’s façade. 2.     The Court’s assessment 50.     The Court notes, at the outset, that the final domestic decision in respect of this complaint was delivered by the Supreme Court on 6   September 2007. As the application was lodged with the Court on 27   February 2008, this complaint was not lodged out of the six-month time ‑ limit. 51.     The applicable case-law principles are set out, for example, in Lay Lay Company Limited v. Malta (no. 30633/11, § 83, 23 July 2013). In particular, the Court reiterates that in the area of land development and town planning, the Contracting States enjoy a wide margin of appreciation in order to implement their town and country planning policies (ibid.). 52.     The applicant was the owner of the flat in issue which constitutes a possession for the purposes of the Convention. The Court notes that the complaint before it is limited to the refusal to issue a permit for a project seeking to convert part of the flat into a shop by transforming a window facing the street into a door and building a staircase on the public pavement in front of the door to allow street access. Such refusal, which constitutes the impugned interference in this case, must be considered as a control of the use of property (compare Lay Lay Company Limited , cited above, § 84), to be examined under the third rule, that is under the second paragraph of Article 1 of Protocol No. 1.     Under the third rule, the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose (see, among other authorities Fábián v. Hungary , no. 78117/13, § 60, 15 December 2015). The Court will therefore examine the lawfulness, purpose and proportionality of the BCEA’s and the domestic courts’ decisions in the present case. 53.     Having had regard to the domestic higher courts’ judgments and the relevant provisions of the domestic law (see paragraphs 23-24 and 26-28 above), the Court accepts that the refusal was in accordance with the law. The Court further finds that the legitimate aim behind the refusal to grant the permit was to facilitate compliance with housing and urban planning regulations, which purpose falls within the general interest. 54.     As to the proportionality of the measure, the Court notes that the applicant wished to transform part of the residential flat that he owned, which was located in a multi-flat residential building, into non-residential commercial premises, which was not in conformity with the purpose for which the flat was designated to be used under the domestic law. Granting permission for such transformation was within the BCEA’s discretion in exceptional circumstances (see paragraph 26 above). The Court sees no reasons to doubt the BCEA’s and domestic courts’ findings that the proposed conversion project would have narrowed the public pavement and altered the architectural appearance of the building’s façade. As to the applicant’s argument that the BCEA had permitted similar conversion projects in the same building, the Court considers that the information provided in this respect (see paragraphs 7 and 48 above) is insufficient in order to determine whether the other alleged conversion projects were indeed comparable to the applicant’s situation or whether there were exceptional circumstances justifying granting those permits. Therefore, the alleged fact that other persons had been allowed to convert their flats cannot be considered of relevance in the present case. Lastly, the Court notes that, despite the refusal of the permit, the applicant has at all times been able to continue to live in the flat on the same conditions; there was no adverse material change to his possessions or their value or to his right to enjoy those possessions within the limits of their lawful designated use. Having had regard the above circumstances, the Court is not convinced that the applicant has suffered any excessive individual burden. 55.     Accordingly, the Court finds that the refusal to grant the permit complained of does not disclose any appearance of a violation of the applicant’s rights under Article 1 of Protocol No. 1.   It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. C.     Remainder of the complaints 56.     The applicant complained under Article 6 § 1 of the Convention that his right to a reasoned judgment had been breached as the Court of Appeal had failed to take into consideration some of the evidence, specifically the expert report, in its judgment. 57.     The applicant further complained under Article 14 of the Convention that he had been discriminated against vis-à-vis his neighbours. 58.     In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions relied on by the applicant. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 28 March 2019.   Milan Blaško   André Potocki   Deputy Registrar   President