FIRST SECTION

CASE OF GURBANOVA v. AZERBAIJAN

( Application no. 18005/08 )

JUDGMENT

STRASBOURG

18 December 2012

This judgment is final but it may be subject to editorial revision.

In the case of Gurbanova v. Azerbaijan ,

The European Court of Human Rights ( First Section ), sitting as a Committee composed of:

Nina Vajić , President, Khanlar Hajiyev , Erik Møse , judges, and André Wampach , Deputy Section Registrar ,

Having deliberated in private on 27 November 2012 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 18005/08) 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 nati onal, Ms Mahira Gurbanova (“the applicant”), on 5 April 2008 .

2 . The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov .

3 . On 12 July 2010 the application was communicated to the Gove rnment.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1946 and lives in Baku .

5 . On 1 7 February 1998 the applicant ’ s husband was issued an occupancy voucher ( yaşayış orderi ) to an apartment in Baku on the basis of an order of the Yasamal District Executive Authority. On 13 March 1998 the applicant ’ s husband died.

6 . On an unspecified date the applicant b ecame aware that the apartment had been occupied by H. and her family , who were internally displaced persons (“IDP”) . According to the applicant, despite her numerous demands, the family refused to vacate the apartment.

7 . In 2007 the applicant lodged a court action with the Sabunchu District Court asking the court to order the relevant authorities to change the documents of the apartment into her name and the eviction of H. and her family from the apartment. On 5 October 2007 the Sabunchu District Court partly granted the applicant ’ s request. The court held that the defendants had no right to use the apartment and that they unlawfully occupied it and ordered their eviction from the apartment. Concerning the changes in the apartment ’ s documents, the court held that it was not possible to provide the applicant with the relevant documents as the construction of the building had not yet been terminated. No appeals were filed against this judgment and, pursuant to the domestic law in force at the material time, it became enforceable within one month after its delivery . However, the IDP family refused to comply with the judg ment.

8 . In 2008 the applicant lodged an action with the Yasamal District Court asking compensation for non-enforcement of the judgment of 5 October 2007. On 16 September 2008 the Yasamal District Court and on 24 November 2008 the Baku Court of Appeal dismissed the applicant ’ s request. On 20 May 2009 the Supreme Court upheld the lower courts ’ judgments.

9 . At the time of the latest communication with the applicant, the judgment of 5 October 2007 in her favour remained unenforced.

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 VIOLATION S OF ARTICLE 6 § 1 OF THE CONVENTION

11 . Relying on Article 6 § 1 of the Convention, t he applicant complained about the non-enforcement of the judgment in h er 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 ...”

A. Admissibility

12 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

13 . The Court points out that the factual circumstances of the present case are similar – and 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.

14 . Having examined all the material 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 application.

15 . In particular, the Court is prepared to accept that, in the present case, the existence of a large number of IDPs in Azerbaijan created certain difficulties in relation to the execution of the judgment in the applicant ’ s favour. Nevertheless, the judgment remained final and enforceable, but no adequate measures were taken by the authorities to ensure compliance with it. It has not been shown that the authorities acted with expedition and diligence in taking any measures necessary for the enforcement of the judgment 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 judgment.

16 . There has accordingly been a violation of Article 6 § 1 of the Convention.

II . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

17 . The applicant complained under Article 14 of the Convention that she was discriminated. She also complained under Articles 6 and 13 of the Convention about the outcome of the compensation proceedings. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention .

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

18 . 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

19 . The applicant claimed 107,149 . 2 euros (EUR) in respect of pecuniary damage, which included the market value of the flat and the loss of profit from the eventual bank deposit interests the applicant would have gain ed had she been able to s e l l the flat and to keep the amount in a bank . In support of her c laims the applicant submitted some estimates by a local NGO on sale prices for comparable flats in similar condition s and some extracts from the “Statistical Bulletins” issued by the National Bank on official interest rates on deposits.

20 . The Government submitted that there was no casual link between the alleged violation and the part of the applicant ’ s ju st satisfaction claims under this head.

21 . T he Court rejects this part of the claims as it does not find any causal link between the violation found and this claim .

2. Non-pecuniary damage

22 . The applicant claimed EUR 6,000 in respect of non-pecuniary damage.

23 . The Government submitted that the amount claimed was excessive and indicated that an amount of EUR 2,000 would be a reasonable amount to be awarded under this head.

24 . The Cou rt considers that the applicant must have sustained some non-pecuniary damage as a result of the lengthy non-enforcement of the final judgment in her favour. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the amount of EUR 3, 6 00 under this head, plus any tax that may be chargeable on this amount.

25 . Moreover, the Court considers that, in so far as the judgment in the applicant ’ s favour remains in force, the State ’ s outstanding obligation to enforce it cannot be disputed. Accordingly , the applicant is still entitled to the enforcement of the judgments in her favour . The Court re iterates 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, t he Court finds that this principle also applies in the applicant ’ s case . It , therefore , considers that the Government shall secure, by appropriate means, the enforcement of the judgment in her favour .

B . Default interest

26 . 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 . Declares the complaint concerning non-enforcement admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds that the respondent State, within three months, according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the final domestic judgment in the applicant ’ s favour;

4 . Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3 ,6 00 ( three thousand six hundred euros ) in respect of n on-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 amount s at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 18 December 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             André Wampach Nina Vajić              Deputy Registrar President