FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33875/02 by Tofik FATULLAYEV against Azerbaijan

The European Court of Human Rights (First Section), sitting on 28 September 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs F. Tulkens , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 4 July 2002 ,

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

The applicant, Mr Tofik Fatullayev , is an Azerbaijani national who was born in 1936 and lives in Baku . He was represented before the Court by Mr T. Eminov , a lawyer practising in Baku . The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov .

The facts of the case, as submitted by the parties, may be summarised as follows.

By an order of 21 January 1992 , the Binagadi District Executive Authority (hereinafter “BDEA”) granted the applicant the right of use of a small plot of land measuring 2x4 meters. The applicant constructed a small workshop on this plot of land, which he used for providing repair services for small household items. According to the applicant, he paid all the relevant taxes and levies related to the plot of land and the business.

On 3 March 2001 BDEA withdrew the plot of land from the applicant ’ s use and destroyed his workshop based on an order of the Baku City Executive Authority concerning the dismantling of small workshops and other constructions which violated the architectural integrity of the city. As a result, the applicant lost his business.

The applicant filed a lawsuit against BDEA, claiming that he had been unlawfully deprived of his possessions and demanding the restoration of his workshop.

On 25 June 2002 the Binagadi District Court dismissed the applicant ’ s claim, finding that the workshop had been removed in accordance with the city planning rules and in the public interest. On 6 September 2002 the Court of Appeal dismissed the applicant ’ s appeal and upheld the first-instance judgment. On 10 December 2002 the Supreme Court dismissed the cassation appeal and upheld the lower courts ’ judgments.

The applicant filed an additional cassation complaint with the President of the Supreme Court, requesting the reopening of the proceedings. The proceedings were reopened and the case was examined by the Plenum of the Supreme Court. On 6 May 2004 the Plenum quashed the Supreme Court ’ s decision of 10 December 2002 and the related judgment of the Court of Appeal of 6 September 2002 . The Plenum found that the courts had not properly assessed the lawfulness of the destruction of the applicant ’ s workshop in the light of the fact that the order granting him the right to use the plot of land had not been repealed. The case was remitted to the Court of Appeal.

On 5 August 2004 the Court of Appeal ruled in the applicant ’ s favour and awarded him a compensation of 37,664,000 Azerbaijani Manats (AZM). The court found that the applicant had been deprived of his possessions and his business without any lawful compensation.

Both the applicant and BDEA filed cassation appeals against this judgment. The applicant claimed that the compensation was too low and demanded 100,000 euros (EUR) . BDEA claimed that the compensation was too high and that the applicant had failed to substantiate his claim. On 5 October 2004 the Supreme Court upheld the Court of Appeal ’ s judgment.

Both the applicant and BDEA filed cassation appeals against this decision, reiterating their arguments. On 27 January 2005 the Plenum of the Supreme Court quashed the Supreme Court ’ s decision of 5 October 2004 and the related Court of Appeal ’ s judgment of 5 August 2004 . The Plenum found that the amount of compensation had not been supported by sufficient evidence and that the courts had not properly substantiated their decision to award this amount. The case was again remitted to the Court of Appeal.

On 24 February 2006 the Court of Appeal found that the applicant ’ s compensation claim was too high and largely unsubstantiated. The court awarded the applicant 1,000 New Azerbaijani Manats (AZN) in compensation. [1] The applicant appealed in cassation against this judgment to the Supreme Court. As of the date of the present decision on admissibility, the Supreme Court has not delivered its final decision.

COMPLAINT

The applicant complained under Article 1 of Protocol No. 1 to the Convention that , by removing his workshop, the authorities unlawfully deprived him of his possessions .

THE LAW

The applicant complained of the alleged violation of his property rights contrary to the requirements of Article 1 of Protocol No. 1 to the Convention, which provides 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.”

The Government argued that the applicant had not exhausted the available domestic remedies because the proceedings were still pending. The Government also submitted that, in any event, the domestic courts had acknowledged the violation of the applicant ’ s rights and rectified the situation by awarding him reasonable compensation.

The applicant noted that he had exhausted the domestic remedies when the Supreme Court delivered its final decision of 10 December 2002 , before he lodged the present application with the Court. Thereafter, the domestic courts twice reopened the proceedings in a mere attempt to avoid the Government ’ s responsibility in his case. The applicant further maintained that the compensation which had been awarded to him was insufficient to remedy the violation of his property rights.

The Court finds that it is unnecessary to decide whether the applicant has exhausted the domestic remedies or whether he is still a victim of the alleged violation because, even assuming this to be the case, the application is inadmissible for the following reasons.

The Court recalls that , in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see e.g. Kazimova v. Azerbaijan ( dec .), no. 40368/02, 6 March 2003; Kadikis v. Latvia ( dec .), no. 47634/99, 29 June 2000). The Convention entered into force with respect to Azerbaijan on 15 April 2002 .

However, the Court notes that the applicant ’ s workshop was removed, by an administrative decision, on 3 March 2001, before the date of the Convention ’ s entry into force with respect to Azerbaijan . On the other hand, the proceedings concerning the lawfulness of this removal took place after that date.

In this respect, the Court has held that its competence ratione temporis is to be determined in relation to the facts constitutive of the alleged interference. In cases where the alleged interference pre-dates ratification while the refusal to remedy it post-dates ratification, to retain the date of the latter act in determining the Court ’ s temporal jurisdiction would result in the Convention being binding for that State in relation to a fact that had taken place before the Convention entered into force in respect of that State. However, this would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law. At the same time it would render Azerbaijan ’ s declaration recognising the Court ’ s competence to receive individual applications nugatory (see Blečić v. Croatia [GC] , no. 59532/00, § 77- 79, ECHR 2006 ‑ ... ; Kadikis , cited above; Stamoulakatos v. Greece (no. 1) , judgment of 26 October 1993 , Series A no. 271, § 33 ).

The Court considers that the removal of the applicant ’ s workshop was an instantaneous act, which d id not produce any continuous situation of a violation of the Convention (see e.g. Malhous v. the Czech Republic ( dec .), no. 33071/96, ECHR 2000 ‑ XII ) . It follows that the alleged interference with the applicant ’ s property rights occurred prior to the date of the Convention ’ s entry into force in respect of Azerbaijan and is therefore outside the Court ’ s temporal jurisdiction. The fact that the domestic proceedings took place after the Convention ’ s entry into force with respect to Azerbaijan cannot bring the interference within the Court ’ s temporal jurisdiction. Furthermore, as to the domestic judicial proceedings, in so far as they do fall within the Court ’ s competence ratione temporis , the applicant does not make any separate complaints.

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President

[1] Pursuant to denomination of national currency effective from 1 January 2006 , AZN 1 is equal to AZM 5,000.