FIRST SECTION

CASE OF HEYDAROVA v. AZERBAIJAN

( Application no. 59005/08 )

JUDGMENT

STRASBOURG

18 December 2012

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

In the case of Heydarova 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. 59005/08) 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 national, Ms Zarintaj Heydarova (“the applicant”), on 18 November 2008 .

2 . The applicant was represented by Mr I. A liyev, a lawyer practising in Azerbaijan . The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov .

3 . On 6 July 2010 the application was communicated to the Gove rnment.

4 . The Government objected to the examination of the application by a Committee. After having considered the Government ’ s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1939 and lives in Lankaran .

6 . The applicant owned a house of 315 m² built on a land plot of 615 m². She was delivered a land registration certificate on 18 January 1991.

7 . J.E. had owned a land plot of 346 m² adjacent to the applicant ’ s land plot. J.E. died in 1957. However on 23 September 1992 the L anka ran Land Commission (“the Commission”) registered an additional land plot in the name of late J.E. and the Lankaran Inventory Office ( the local office of the State Service for Registration of Real Property ) documented the total area of J.E. ’ s land plot as 938 m², which included a part of the land plot actually belonging to the applicant. The reasons for such registration in the name of the deceased person are n ot clear from the case file.

8 . The applicant lodged a court action asking the court to declare the Commission ’ s decision of 23 September 1992 unlawful and to annul all further registration operations in the part concerning her land plot. On 11 March 1993 the Lankaran District Court upheld the applicant ’ s request and annulled the Commission ’ s decision of 23 September 1992 and the subsequent registrations by the Lankaran Inventory Office. Pursuant to the domestic law in force at the material time, the judgment became enforceable ten days after its delivery.

9 . Nevertheless, on 17 May 1993 the size of late J.E. ’ s land plot as inherited by his son I.E. was re-registered in I.E. ’ s name with the total area of 938 m². I.E. was delivered a land certificate for 938 m² of land. In 1993, in accordance with the Code of Civil Procedure in force at the material time, the Lankaran Prosecutor ’ s Office intervened in the applicant ’ s favour and lodged a court action against Lankaran Inventory Office and I .E., asking the court to annul the erroneous records of the Lankaran Inventory Offi ce and the land certificate delivered to I.E. The applicant participated in the proceedings as a co-plaintiff . On 21 January 1999 the Masalli District Court upheld the request. The court ordered that the Commission ’ s decision of 23 September 1992 and the subsequent registrations by the Lankaran Inventory Office be annulled. Pursuant to the domestic law in force at the material time, the judgment became enforceable ten days after its delivery. However, despite the applicant ’ s complaints to various authorities, the judgment in question was not e xecuted for a lengthy period of time by the Lankaran Inventory Office , which had to make the relevant modifications in its records concerning the size of applicant ’ s and I.E. ’ s land plots . According to the applicant, owing to the domestic authorities failure to ensure the enforcement of the judgment in question, a part of her land plot had been used by her neighbour during that time. She could not prevent her neighbour from doing so, as the official document determining the size of her land plot was erroneous and in spite of the courts ’ judgment, the domestic authorities failed to correct the mentioned errors in official records.

10 . After the communication of the application to the respondent Government, on 20 August 2010 the judgment in the applicant ’ s favour was enforced and relevant modifications were made in the Lankaran Inventory Office ’ s records.

II. RELEVANT DOMESTIC LAW

11 . According to the legislation in force, ownership right to immovable property must be registered with the State Service for Registration of Real Property . The Civil Code stipulates that bo undaries of land plots are determined in the documents issued by this Service. According to the Law on the State Service for Registration of Real Property , registration of ownership right to a land plot is an official document on legal recognition of this right .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 O F THE CONVENTION AND ARTICLE 1 O F PROTOCOL No.1 TO THE CONVENTION

12 . Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained of the non-enforcement of the judgment of 21 January 1999 . Article 6 of the Convention reads , as far as relevant, as follows:

“1. 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.”

A. Admissibility

1. T he Court ’ s competence ration a e temporis

13 . The Court observes that the domestic judgment in the applicant ’ s favour was 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 ’ lengthy failure to execute the judgment in question, it remain ed unenforced for a long period . Therefore, there was a continuous situation and the Court is thus competent to examine the part of the application relati ng to the period after 15 April 2002 ( see Gulmammadova, cited above, § 26).

2. The victim status of the applicant

15 . The Government submitted that owing to the fact that the domestic judgment in the applicant ’ s favour was enforced, she could not claim to be a victim of the alleged violations of the Convention ’ s provisions. T her efore , the complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§3 and 4 of the Convention.

16 . The Court notes that the judgment in the applicant ’ s favour was enforced on 20 August 2010. 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.

17 . In the present case, having regard to the fact that the judgment remained unexecuted for more than eleven years, of which more than eight 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 applicant, as no compensation was offered to her in respect of the alleged violation of the Convention, that is the lengthy non-enforcement of the judgment of 21 January 1999 .

18 . In such circumstances, while it is true that the judgement in the applicant ’ s favour was eventually enforced, the Court finds that the measures taken in the applicant ’ s favour were nevertheless insufficient to deprive her of “victim” status during the time period prior to the enforcement (compare with Ramazanova and Others v. Azerbaijan , no. 44363/02, § 38 , 1 February 2007 ).

3. Other admissibility criteria

19 . T he Court further considers that the complaints a re not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. They must, therefore, be declared admissible.

B. Merits

1. Article 6 of the Convention

20 . The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State ’ s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece , 19 March 1997, § 40 , Reports of Judgments and Decisions 1997 ‑ II ).

21 . Turning to the present case, in the light of the domestic requirement of registration of the ownership right to land for the determination of the property ’ s ownership status , the Court notes that the underlying su bject-matter of the domestic proceedings was real property -related and pecuniary in nature and that, as such, it clearly falls within the scope of Article 6 § 1 (see, mutatis mutandis, Backović v. Serbia , no. 47997/06 , § 47, 7 February 2012 ). The Court further notes that a delay in the execution of a judgment may be justified in pa rticular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6 § 1 of the Convention (see Burdov v. Russia , no. 59498/00, § 35, ECHR 2002 ‑ III ). The Court observes that in the present case the continuing non-enforcement of the judgment delivered in the applicant ’ s favour deprived her of benefiting from the success of the litigation which concerned her property rights.

22 . Having examined all the materials in its possession, the Court finds that the Government have not put forward any fact proving that they took necessary measures to enforce the judgment of 21 January 1999 or any argument capable of persuading it that they were objectively precluded from complying speedil y with this judgment.

23 . In such circumstances, the Court finds that, by failing for many years to take necessary measures complying with the enforceable judgment in the applicants ’ favour, the authorities deprived the provisions of Article 6 § 1 of all useful effect. Accordingly, there has been a violation of Article 6 § 1 of the Convention.

2. Article 1 of Protocol No. 1 to the Convention

24 . The applicant submitted that owing to the lengthy non-enforcement of the domestic courts ’ judgment in her favour, she could not use a part of her land plot occupied by the neighbour on the basis of erroneous register records . She could not prevent her neighbour f rom doing so , as the official document determining the size of her land plot was erroneous and , despite the courts ’ judgment in this respect , the domestic authorities failed to correct the mentioned errors in official records. Therefore, she was deprived of the possibility of enjoying her property .

25 . The Court reiterates that a property-related claim can constitute a “possession” if it is sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, § 59, Series A no. 301 ‑ B). The Court considers that, by virtue of the judgment of 21 January 1999 , the applicant ’ s claim had been sufficiently established so as to constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. The domestic courts ordered that the records concerning the size of the applicant ’ s land plot be modified. The impossibility of obtaining the execution of the judgment of 21 January 1999 constituted an interference with the applicant ’ s right to peaceful enjoyment of her possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Burdov , cited above, § 40, and JasiÅ«nienÄ— v. Lithuania , no. 41510/98, § 45, 6 March 2003 ). T he Government have not advanced any acceptable justification for this interference.

26 . There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

27 . 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

28 . The applicant claimed 41,500 Azerbaijani mana ts (AZN ) in respect of pecuniary damage for the lost income which she would gain had she been able to use the land plot from the period from 1999.

29 . The Government argued that the applicant had failed to submit any documents supporting her claims.

30 . The Court considers that the applicant did not submit any proof supporting her claims for pecuniary damage. It therefore rejects this claim.

2. Non-pecuniary damage

31 . The applicant claimed AZN 10,000 in respect of non-pecuniary damage.

32 . The Government submitted that the amount claimed was excessive. They indicated that EUR 1,000 would be a reasonable amount to be awarded to the applicant under this head.

33 . The Court 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 applicant EUR 3,600 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

34 . The applicant also claimed AZN 1,050 for legal services, AZN 300 for translation expenses and AZN 300 for postal expenses. In support of her claims, she submitted a contract for legal services rendered in the proceedings before the Court and a contract for translation services. Both contracts stipulated that the amounts due were to be paid in the event that the Court found a violation of the applicant ’ s rights.

35 . The Government submitted that the amounts claimed were excessive.

36 . 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 were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads, plus any tax that may be chargeable to the applicants on this amount.

C. Default interest

37 . 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 application admissible;

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

3 . Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention ;

4. Holds

(a) that the respondent State is to pay the applicant , within three months, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:

(i) EUR 3,600 ( three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 500 ( five hundred euros), plus any tax that may be chargeable to the applicant , 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;

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