FIRST SECTION

CASE OF YUSIFOVA v. AZERBAIJAN

( Application no. 25315/08 )

JUDGMENT

STRASBOURG

18 December 2012

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

In the case of Yusifova v. Azerbaijan ,

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

Nina Vajić , President, Khanlar Hajiyev , Julia Laffranque , 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. 25315/08) 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 Aybaniz Yusifova (“the applicant”), on 5 May 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 12 March 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 1965 and lives in Baku .

6 . The facts of the case, as submitted by the partie s, ma y be summarised as follows.

7 . On 12 January 1998 t he applicant was issued an occupancy voucher ( yaşayış orderi ) to a flat in a recently constructed residential building in Baku on the basis of the Baku City Executive Authority ’ s order of 7 January 1998 .

8 . At the same time, the applicant became a ware that the flat was occupied by O. and her family , who were internally displ aced persons (“IDP”) from Gubadly , a region under occupation of Armenian military forces following the Armenian-Azerbaijan conflict over Nagorno-Karabakh.

9 . According to the applicant, despite h er numerous demands, O. refused to vacate the fla t noting that s he was an IDP and s he had no other place to reside in.

10 . On 1 July 2004 the applicant was delivered an ownership certificate to the flat.

11 . On an unspecified date in 2005 , the applicant lodged a lawsuit with the Yasamal District Court asking the court to order the eviction of O . and her family from the flat .

12 . On 5 July 2007 the Yasamal District Court granted the applicant ’ s request. The court held that the applicant was the lawful owner of the flat on the basis of the ownership certificate of 1 July 2004 and, therefore, the flat was unlawfully occupied by O. and her family. The court ordered the eviction be conducted once the IDP family was provided with other accommodation by the Sumgayit City Executive Authority . The applicant appealed before the Court of Appeal asking the immediate eviction of the IDP family. On 20 April 2007 the Court of Appeal upheld the applicant ’ s request and ordered that the IDP family be evicted. On 13 September 2007 the Supreme Court upheld the judgment of 20 April 2007.

13 . According to the applicant, O. and her family refused to comply with the judgment a nd the competent authorities did not take any measures to enforce it.

14 . After the lodging of the present application before the Court, on 28 Oct ober 2008 the applicant sold the flat in question to O. O n 26 November 2008 she lodged a request before the Yasamal District Enforcement Department asking that the enforcement pro c eedings be terminated owing to the resolution of the matter by the parties. On 10 December 2008 the Yasamal District Court terminated the enforcement proceedings in question.

II. RELEVANT DOMESTIC LAW

15 . 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 OF ARTICLE 6 § 1 O F THE CONVENTION AND ARTICLE 1 OF PROTOCOL No .1 TO THE CONVENTION

16 . Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained of the lengthy non ‑ enforcement of the judgment of 20 April 2007 . 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 . The victim status of the applicant

17 . The Government submitted that owing to the fact that the applicant sold her flat to O., the domestic judgment in the applicant ’ s favour had to be considered as enforced and therefore, she could not claim to be a victim of the alleged violations of the Convention ’ s provisions.

18 . T he applicant did not comment on this point. She reiterated her complaints about lengthy non-enforcement of the judgement until the termination of the enforcement proceedings.

19 . The Court notes that the judgment in the applicant ’ s favour was delivered on 20 April 2007. O n 28 October 2008 t he applicant sold her flat to O . and on 10 December 2008 the enforcement proceedings were terminated. Thus, the judgment in the applicant ’ s favour remained in force during more than one year and seven months , which is a substantial delay. T he Court reiterates that a decision or measure favourable to an applicant is not , in principle , sufficient to deprive him or her of a “victim” status 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.

20 . The Court observes that the fact that the applicant subsequently sold the flat to the IDP family is not relevant to the issue of the applicant ’ s victim status under the Convention in respect of her complaint about the non-enforcement of the judgment in her favour . H aving regard to the fact that the judgment in question remained unexecuted for more than one year and seven months , the Court finds that no redress was afforded to the applicant for this delay and no compensation was offered to her in respect of the alleged violation of the Convention.

21 . In such circumstances, although the enforcement proceedings were eventually terminated because the flat was sold to the IDPs in question , the C ourt finds that no measures were taken by the domestic authorities in the applicant ’ s favour to deprive her of “victim” status in respect of the time period while the final judgment remained unenforced.

2. Other admissibility criteria

22 . 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

23 . 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 and Article 1 of Protocol No. 1.

24 . 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.

25 . 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.

26 . As regards the applicant ’ s submissions concerning the alleged violation of h er property rights, it has not been established either in the domestic proceedings or before the Court that any specific measures were taken by the domestic authorities in order to comply with their duty to balance the applicant ’ s right to peaceful enjoyment of his possessions protected under Article 1 of Protocol No. 1 to the Convention against the IDPs ’ right to be provided with accommodation. In such circumstances, the lengthy failure to ensure the execution of the judgment resulted in a situation in which the applicant was forced to bear an excessive individual burden. The Court considers that, in the absence of any compensation for this excessive individual burden, the authorities failed to strike the requisite fair balance between the general interest of the community in providing the IDPs with temporary housing and the protection of the applicant ’ s right to peaceful enjoymen t of her possessions (see Gulmammadova , cited above, §§ 43-50).

27 . There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

28 . 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

29 . The applicant claimed an amount of 53,000 Azerbaijani manats (AZ N ) in respect of pecuniary damage . The amount claimed covered the loss of rent from the date of the occupation of the applicant ’ s flat by the IDP family (AZN 50,000) and an amount the applicant has alleged ly paid for her medical treatment (AZN 3,000) necessitated by the stress and anxiety related to her inability to use her flat and to the material loss she suffered .

30 . The Government contested the claim noting that the applicant had failed to prove her claims. In particular, the Government argued that the applicant had not substantiated, nor submitted any proof concerning her claims on the loss of rent. Concerning the part of the claim for medical expenses , the Government submitted that there was no casual link between this claim and the all eged violation of the applicant ’ s rights.

31 . The Court considers that the applicant has not submitted any documentary evidence proving the amount of the alleged los t rent. As for the remainder of the claim, no causal link has been established between the alleged pecuniary loss and the violations found. Therefore, the Court dismisses the applicant ’ s claim under this head.

2. Non-pecuniary damage

32 . The applicant claime d EUR 500,000 in respect of non- pecuniary damage.

33 . The Government reiterated that the applicant was n ot victim in the meaning of Article 34 of the Convention and therefore her complaints and claims for pecuniary and non-pecun iary damage were manifestly ill ‑ founded.

34 . The Court considers that the applicant must have sustained some non-pecuniary damage as a result of the 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 EUR 900 to the applicant under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

35 . The applicant also claimed AZN 1,400 for legal and translation services (AZN 1,000 for legal fees and AZN 400 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.

36 . The Government considered that the claim was excessive in the part concerning the legal and translation fees, taking into account the nature and the volume of the case. As for the postal expenses, the Government noted that this part of the claim was unsupported by any evidence.

37 . 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

38 . 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 § 1 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 thre e months , EUR 900 (nine hundred euros ) in respect of n on-pecuniary damage and EUR 500 (five hundred euros ) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into Azerbaijani manats at the rate appli cable 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 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