CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 26 septembre 2024

.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 } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9C156EF7 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s448F0C15 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D1564D { width:34.89pt; display:inline-block } .s4A7642F0 { width:147.75pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }     FIRST SECTION DECISION Application no. 35474/13 Zohrab ISMAYILOV against Azerbaijan   The European Court of Human Rights (First Section), sitting on 26   September 2024 as a Committee composed of:   Raffaele Sabato , President ,   Lətif Hüseynov,   Alain Chablais , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   35474/13) 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”) on 2   May 2013 by an Azerbaijani national, Mr Zohrab Neyman oglu Ismayilov ( Zöhrab Neyman oğlu İsmayılov - “the applicant”), who was born in 1971 and lives in Baku, and who was initially represented by Ms   S.   Jamalzade and later by Mr   E. Abbasov, lawyers practising in Azerbaijan; the decision to give notice to the Azerbaijani Government (“the Government”), represented by their Agent, Mr   Ç. Əsgərov, of the complaints under Article 8 of the Convention and Article 1 of Protocol No.   1 to the Convention and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns a court order to evict the applicant from a house in which he had lived for several years, and to demolish it, on the grounds that it was an unauthorised construction built on a State-owned plot of land. 2.     According to the applicant, in 2004 he built a house in the Bibiheybat area of Baku, without a construction permit or any other form of authorisation, and subsequently lived in it with his wife and daughter. He did not have any registered title to the house or to the land underlying it. The house was connected to public utilities and the applicant received and paid the related bills. 3.     On 28 September 2010 the Azneft Production Union (“Azneft”), a subsidiary of the State Oil Company of the Republic of Azerbaijan (“SOCAR”), brought a court action against the applicant, seeking to evict him from the house, and to demolish the house at his expense, on the grounds that it was an unauthorised construction, built unlawfully on State-owned industrial land that had been assigned to SOCAR for petroleum operations. In support of its claim, Azneft relied on a 1962 decision by the Executive Committee of the Baku City Council of Workers’ Deputies (a predecessor of the Baku City Executive Authority (“the BCEA”)), which had assigned the land to Azneft for petroleum operations, and a map of the land in question, approved on 17 December 2008 by the BCEA’s Main Department of Architecture and Urban Planning. Azneft argued that, under domestic law, land designated for industrial use could not be used for the construction of residential buildings, and that the applicant did not have planning permission, or any documentary evidence of title to the property or land. 4.     On an unspecified date the applicant brought a counterclaim against Azneft, seeking compensation in the amount of 100,000   Azerbaijani manats (AZN). The applicant argued that (i) he had been living in the house in question since 2006, with no objection from authorities; (ii) the plot of land in question had been left unused by Azneft for decades, and had been re-designated for residential use; (iii) although the house had been built without planning permission, it constituted a possession within the meaning of Article   1 of Protocol No.   1 to the Convention; and (iv) he had no other place to live. 5.     On 17 March 2011 the Sabail District Court upheld Azneft’s claim and dismissed the applicant’s counterclaim, ordering his eviction and demolition of the house at his expense. The court held that there was no evidence of the applicant’s right to the plot of land and the house built on it. It found that the house was an unauthorised construction built on a State-owned plot of land, which had been designated for permanent use by Azneft, and that, in consequence, the squatted land was to be returned to Azneft without any compensation being paid to the applicant. It further concluded that the applicant’s proprietary interest in the house did not amount to “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. 6.     On 8 June 2011 the Baku Court of Appeal upheld the first-instance court’s judgment, endorsing its reasoning. 7.     The Supreme Court remitted the case to the Baku Court of Appeal, which re-examined the case and upheld the lower court’s judgment on 15   February 2012. It added that although the applicant had been entitled to claim compensation for materials used in construction of the house, he had failed to substantiate his claim in that regard. 8.     On 2 November 2012 the Supreme Court upheld the appellate court’s judgment. 9 .     At the time of the most recent communication with the parties (in 2019), the applicant’s house had not yet been demolished and his former wife and their daughter were still living there. To date, the applicant has not informed the Court of any steps taken to enforce the demolition or eviction order. 10.     The applicant complained that demolishing the house, at his expense and without awarding him any compensation, would constitute a disproportionate interference with his rights under Article 1 of Protocol No.   1 to the Convention. Moreover, under Article 8 of the Convention, he claimed that the eviction order, if enforced, would constitute an interference with his right to respect for his home. THE COURT’S ASSESSMENT Alleged violation of Article   1 of Protocol No.   1 to the Convention The house in question 11.     The Government submitted that the house in question was an unauthorised construction and that the applicant had no ownership rights over it. The applicant disagreed, alleging that he had sufficient proprietary interest in the house for it to qualify as “possession” under Article 1 of Protocol No.   1 to the Convention. 12.     The relevant general principles under Article 1 of Protocol No. 1 to the Convention were summarised in Öneryıldız v. Turkey   ([GC], no.   48939/99, § 124, ECHR 2004 ‑ XII), Saghinadze and Others v.   Georgia (no.   18768/05, §   103, 27 May 2010) and Keriman Tekin and Others v.   Turkey (no.   22035/10, § 41, 15   November 2016). 13.     In the present case, the house was declared an unauthorised construction by the domestic courts. It appears that under Azerbaijani law, unauthorised constructions could not form the subject of property rights (see Ahmadova v. Azerbaijan , no. 9437/12, § 29, 18   November 2021, with further references). 14.     The Court observes that there was no uncertainty in the domestic provisions on unauthorised constructions and prohibition on squatting which might have caused the applicant to believe that those provisions would not be applied in respect of the house in question (compare ibid., §   31, and Alif Ahmadov and Others v. Azerbaijan , no. 22619/14, § 43, 4 May 2023). 15.     It cannot be established that the applicant paid any taxes on the house in question (contrast   Öneryıldız , cited above, § 105, and compare   Barahona Guachamin and Others v. Italy   (dec.), no.   33295/15, §   67, 4 December 2018). While the Court has previously taken into account, inter alia , the provision of utility services as a pertinent element when examining State authorities’ attitude towards unauthorised constructions (see, for example, Öneryıldız , cited above, §§   105 and 127, and Hamer v.   Belgium , no. 21861/03, § 83, ECHR 2007 ‑ V (extracts)), it notes that in the present case the demolition order was issued within a reasonable time after the house had been constructed (compare Ivanova and Cherkezov v.   Bulgaria , no. 46577/15, §   75, 21 April 2016, and Ahmadova , cited above, §   32). 16.     The Court further notes that the absence of any reaction from the State authorities over a certain period of time should not have been understood by the applicant as meaning that proceedings for the demolition of the house could not be brought against him (compare   Hamer , cited above, § 85). Lastly, the duration of the possession of the house is not, in itself, enough to lead to the conclusion that the applicant’s proprietary interest in the house was sufficiently established and weighty as to amount to a “possession” within the meaning of the rule expressed in the first sentence of Article 1 of Protocol No.   1 (see Alif Ahmadov and Others , cited above, §   44, with further references) . 17.     It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article   35 § 3 (a) and must be rejected in accordance with Article 35 § 4. The obligation to pay for the demolition 18.     The Court observes that the applicant was ordered to demolish the house in question at his own expense. While it appears that, to date, the house has not yet been demolished (see paragraph 9 above), the demolition order was upheld by a final court decision and became enforceable. The imposition of the obligation on the applicant to pay for the demolition thus constituted an interference with his property rights (compare   Agapov v. Russia , no.   52464/15, § 49, 6 October 2020). Article 1 of Protocol No. 1 is therefore applicable in respect of that part of the demolition order. However, the applicant has not substantiated this part of the complaint with arguments demonstrating that there was an issue of lawfulness or proportionality of the said interference. It follows that this part of the complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and   4 of the Convention (see   Ahmadova , § 36, and Alif Ahmadov and Others , §   47, both cited above). Alleged violation of Article 8 of the Convention 19.     As concerns the complaint under Article 8 of the Convention that the eviction order, if enforced, would constitute an interference with the applicant’s right to respect for his home,   the Government argued that the applicant had not resided at the house in question for several years. The applicant submitted that he had lived in the house in question until 2010, while his former wife and their daughter continued to live there. 20.     The Court reiterates that the concept of “home” within the meaning of Article 8 is not limited to premises which are lawfully occupied or which have been lawfully established. It is an autonomous concept which does not depend on classification under domestic law. Whether or not particular premises constitute a “home” which attracts the protection of Article 8 will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see Ahmadova , cited above, § 41). 21.     According to the applicant’s own submission before the Court, he had lived in the house in question until 2010 (see paragraph 19 above). Thus, he was no longer living in the house at the time his counterclaim was being examined by the domestic courts and when he lodged the present application with the Court. It has been neither argued nor demonstrated that he had been staying there occasionally (contrast McKay-Kopecka v.   Poland (dec.), no.   45320/99, 19   September 2006, and Halabi v. France , no.   66554/14, § 40, 16 May 2019). In these circumstances, the Court does not find it established that the applicant retained sufficient and continuous links with the house in question for it to be considered his home (compare   Hasanali Aliyev and Others v. Azerbaijan , no. 42858/11, § 38, 9   June 2022, with a further reference). 22.     It therefore rejects the applicant’s complaint as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article   35 §§ 3 (a) and 4 of the Convention (compare Nasirov and Others v.   Azerbaijan , no. 58717/10, §   75, 20 February 2020, and   Hasanali Aliyev and Others , cited above, § 39). For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 17 October 2024.     Liv Tigerstedt   Raffaele Sabato   Deputy Registrar   President