FIRST SECTION

CASE OF ISGANDAROV AND OTHERS v. AZERBAIJAN

( Applications nos. 50711/07, 50793 /07, 50848/07, 50 894/07 and 50924/07)

JUDGMENT

This version was rectified on 15 July 2010

under Rule 81 of the Rules of the Court

STRASBOURG

8 July 2010

FINAL

08/10 /2010

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Isgandarov and Others v. Azerbaijan ,

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

Christos Rozakis , President, Nina Vajić , Anatoly Kovler , Elisabeth Steiner , Khanlar Hajiyev , Dean Spielmann , Sverre Erik Jebens , judges, and Søren Nielsen , Section Registrar ,

Having deliberated in private on 17 June 2010 ,

Delivers the following judgment, which was adopted on th at date:

PROCEDURE

1 . The case originated in five applications 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 8 August 2007 by five Azerbaijani nationals :

– Mr Asif Isgandarov, born in 1954, application no. 50711/07;

– Mr Vagif Ismayilov, born in 1949, application no. 50793/07;

– Ms Mirtarana Karimova, born in 1964 , application no. 50848/07;

– Mr Samid Karimov, born in 1959 , application no. 50894/07; and

– Ms Sadagat Ahmadova, born in 1959, application no. 50924/07 .

2 . The applicants were represented by Mr N. Ismayilov, a lawyer practising in Azerbaijan . Th e Azerbaijani Government ( “ the Government ” ) were represented by their Agent, Mr Ç. Asgarov .

3 . The applicants alleged that the failure to enforce the judgments in their favour violated their rights to a fair trial and their property rights, as guaranteed by Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

4 . T he President of the First Section decided to give notice of the application s to the Government o n the following dates: on 23 October 2008 ( application no. 50711/07 ), on 3 December 2008 ( applica tion s nos. 50793/07 and 5084 8 /07), on 17 December 2008 ( a pplication no. 50894/07) and on 8 January 2009 (application no . 50924/07) .

5 . It was also decided to examine the merits of the application s at the same time as their admissibility (Article 29 § 1 ).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . On the dates indicated in the Appendix each applicant w as issued with an occupancy voucher ( yaşayış orderi ) for a flat in the same recently constructed residential building in Baku (see Table I) .

7 . At the same time, the applicants became aware of the fact that the ir respective flats had been occupied by families of internally dis placed persons (“IDP”) from different regi ons under the occupation of Armenian military forces following the Armenian-A zerbaijan conflict over Nagorno ‑ Karabakh.

8 . According to the applicants, despite their numerous demands , the IDP families refused to vacate the flats, pointing out that they were IDPs and had no other place to live.

9 . On different dates the applicants lodged civil actions with the Yasamal District Court asking the court to order the eviction of these families from their flats.

A. Application s nos. 50711/07, 50793/07, 50848/07 and 50894/07

10 . On the dates indicated in the Appendix (Table I) , the Yasamal District Court granted the applicants ' claim s and ordered that the IDP families be evicted from the flats. In all cases, the court held that the applicants were the sole lawful tenants of the flats on the basis of the occupancy vouchers and therefore the flats were being unlawfully occupied by the IDP families.

11 . No appeals were lodged against the judgment s of the Yasamal District Court an d pursuant to the domestic law , they became enforceable upon the expiry of the relevant appeal periods. However the IDP families refused t o comply with the judgments and despite the applicants ' complaints to various authorities, they w ere not enforced.

12 . On an unspecified date in 2006, the applicants, who were in the same situation, lodged a joint action with the Yasamal District Court complaining that the Yasamal District Department of Judicial Observers and Enforcement Officers (“the Department of Enforcement Officers”) had not taken measures to enforce the judgments.

13 . On 27 December 2006 the Yasamal District Court dismissed that complaint as unsubstantiated. The applicants appealed against this judgment. O n 12 November 2007 , a fter a series of appeals and quashings, the Court of Appeal dismissed the applicant s ' request and terminated the case noting that there was no need to deliver a separate judgment on enforceability of the judgment s .

14 . It appears from the case file that after the lodging of the present applications with the Court, the defendant IDP families lodged several request s with the Yasamal District Court asking for postponement of the execution of the judgments on their eviction from the applicants ' flats. They alleged that, as they were IDPs, they had no other place to live but the flats in question. At the time of the latest communications with the applicants, it appears that after a series of appeals and quashings, none of the IDPs ' requests for postponement were upheld. These proceeding s can be summarised as follows.

15 . On 6 June 2008 the Yasamal District Court declared the defendants ' joint postponement request inadmissible for non-compliance with procedural norms. The court explained that the IDPs should lodge their requests separately.

16 . Such separate requests were lodged by the IDP families concerned only by two applications (nos. 50848/07 and 50894/07) :

(a) As for the IDPs concerned by application no . 50848/07 , o n 10 November 2008 , the Yasamal District Court upheld the postponement request. On 19 December 2008 the Baku Court of Appeal upheld the postponement decision. On 23 February 2009 the Supreme Court quashed the postponement decision and returned the case for review to the Baku Court of Appeal.

(b) As for the IDPs concerned by application no . 50894/07, o n 2 July 2008 , the Yasamal District Court upheld the postponement request. On 21 August 2008 the Baku Court of Appeal quashe d the postponement decision. On 20 October 2008 the Supreme Court upheld the quashing.

B . Application n o . 50924/07

17 . In the case of Ms Sadagat A hm a dova , on 12 April 2007 , the Yasamal District Court held that the applicant was the sole lawful tena n t of the flat on the basis of the occupancy voucher and that the IDP family occupied the flat unlawfully. However taking into account the fact that the defendant IDP family could not return to their permanent place of residence in Lachin and, in the meantime had no other place to reside, the court held that the execution of its judgment should be postponed until they could return to Lachin or be provided with another place of residence. The applicant appealed against this judgment claiming misinterpretation of the relevant law. On 6 November 2007 the Baku Court of Appeal delivered a new judgment quashing the first-instance court ' s judgment in the part concerning the po stponement of the judgment ' s execution. T he Baku Court of Appeal reaffirmed the order on the eviction of the defendant IDP family from the flat. No appeal s were filed against this judgment and it became enforceable.

C . Compensation proceedings

18 . On an unspecified date in 2008 , all the applicants lodged a joint action against different authori ties seeking compensation for non ‑ enforcement of the judgments delivered in their fav our. On 19 December 2008 the Yasamal District Court dismissed the applicants ' claim s as unsubstantiated. On 3 March 2009 the Baku Court of Appeal and on 3 July 2009 the Supreme Court upheld the first-instance court ' s judgment.

19 . At the time of the latest communications with the applicants, the respective judgments remained unenforced.

II. RELEVANT DOMESTIC LAW

20 . The relevant domestic law is summarised in Gulmammadova v. Azerbaijan (no . 38798/07 , § § 18-24, 22 April 2010 ) .

THE LAW

I. ALLEGED VIOLATION S OF ARTICLE S 6 § 1 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

21 . Relying on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, t he applicant s complained about the non ‑ enforcement of the Yasamal District Court ' s judgment s in their favour . Article 6 § 1 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 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

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.”

22 . Pursuant to Rule 42 § 1 of the Rules of the Court, the Court decides to join the applications given their common factual and legal background.

A. Admissibility

1. T he Court ' s competence ration a e temporis in applications nos . 50711/07 and 50793/07

23 . The Court observes that in two cases (application nos . 50711/07 and 50793/07) the domestic judgment s in favour of the applicant s had been delivered prior to 15 April 2002, the date of the Convention ' s entry into force in respect of Azerbaijan .

24 . T he Court notes that in the light of the authorities ' continued failure to execute the judgment s in question, they rem ain still unenforced. Therefore there is a continuous situation and the Court is therefore competent to examine the part of the application s relating to the period after 15 April 2002 (see Gulmammadova , cited above, § 26 ).

2. Domestic remedies

25 . In connection with the application s nos. 50711/07, 50793/07, 50848/07 and 50894/07, t he Government argued that the applicant s had failed to exhaust domestic remedies. In this regard, the Government argued that on the dates of introduction of the present applications before the Court, the proceedings against the Department of Enforcement Officers instituted by the applicant s were still pending before the domestic courts .

26 . The applicant s disagreed with the Government and maintained that the remedies suggested by the Government were not appropriate in the circumstances of the present case.

27 . The Court notes that a similar objection was raised by the Government in the Gulmammadova case and was dismissed by the Court (see Gulmammadova , cited above, § 27) . The Court refers to its reasoning in that case and sees no ground to depart from it. Therefore the Government ' s objec tion should be dismissed.

3. Conclusion

28 . T he Court further considers that the application s are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissibl e on any other grounds. They must therefore be declared admissible.

B. Merits

29 . The Government submitted that, due to the large number of IDPs in Azerbaijan as a result of the Armenian-Azerbaijani conflict over Nagor no ‑ Karabakh, there was a serious problem with housing for IDPs in Azerbaijan . The Government noted that the judgments in the applicants ' favour could not be enforced because there was no other accommodation available for the IDPs settled in the flats in question.

30 . The applicants reiterated their complaints.

31 . The Court notes that judgments in the applicants ' favour remained unenforced for considerable period s of time, ranging approximately from three years to eight years .

32 . The Court points out that the factual circumstances of theses cases are similar and the complaints and legal issues raised are identical to those in the Gulmammadova c ase (cited above) . The Court reiterates that it has found violations of Article 6 § 1 and Article 1 of Protocol No. 1 in that case.

33 . Having examined all the material in its possession, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the se case s .

34 . In particular, the Court is prepared to accept that, in the instant case, the existence of a large number of IDPs in Azerbaijan created certain difficulties in the execution of the judgment s in the applicants ' favour . Nevertheless, the judgment s remained in force, but no adequate measures were taken by the authorities to comply with them . It has not been shown that the authorities had continuously and diligently taken the measures for the enforcement of the judgment s in question. In such circumstances the Court considers that n o reasonable justification was advanced by the Government for the significant delay in the enforcement of the judgment s (see Gulmammadova , cited above, § 40) .

35 . Concerning the applicants ' submissions about violation of their property rights, it has not been established either in the domestic proceedings or before the Court that any specific measures have been taken by the domestic authorities in order to comply with their duty of balancing the applicants ' right to peaceful enjoyment of their possessions protected under Article 1 of Protocol No. 1 to the Convention against IDPs ' right to be provided with accommodation. In such circumstances, the failure to ensure the execution of the judgment s for several years resulted in a situation where the applicant s w ere forced to bear an excessive individual burden. The Court considers that, in the absence of any compensation for having this excessive individual burden to be borne by the applicant s , 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 applicants ' right to peaceful enjoyment of their possessions (see Gulmammadova , cited above, §§ 43-50) .

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

37 . T he Court does not consider it necessary to rule on the complaint under Article 13 of the Convention because Article 6 is lex specialis in regard to this part of the application (see, for example, Efendiyeva v. Azerbaijan , no. 31556/03, § 59 , 25 October 2007 ) .

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

38 . 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

39 . The applicant s claimed different s ums indicated in the Appendix (Table II) in respect of pecuniary damage . The amount s claimed covered the loss of rent and the alleged current market value of the flats . The applicant calculated the amount of the lost rent based on the information on the monthly market rent of flats situated in the relevant area of the city. This information was obtained from an association specialising in these matters.

40 . The Government argued that the applicant s could not claim any compensation for the market value of the flat s . T he Government further noted that , having applied to the same association, they had checked the grounds for the remainder of the claim corresponding to the loss of rent sustained as a result of the applicants ' inability to use their flats and indicated their willingness to a ccept the part of the applicant s ' claim s in respect of the pecuniary damage under this head , up to the sums indica ted in the Appendix (Table II) .

41 . As for the part of the claims relating to the market value of the flats, the Court rejects this part as it does not find any causal link between the violation found and this part of the claim.

42 . As for the part of the claim s relating to the loss of rent, the Court finds that there is a causal link between this part of the claims and the violations found and that the applicants must have suffered pecuniary damage as a result of their lack of control over their flats. Having examined the parties ' submissions and deciding on an equitable basis, the Court accepts the basis for calculation of the damage proposed by the Government and awards the applicants the amounts indicated in the Appendix (Table II , sum accepted by the Government ) on account of their loss of rent, plus any tax that may be chargeable on those amounts.

2. Non-pecuniary damage

43 . The applicant s claimed different amounts ranging from EUR 20,000 to EUR 25,000 in respect of non ‑ pecuniary damage (see the Appendix, T able II) .

44 . The Government indicated their willingness to accept the applicants ' claim s for non-pecuniary damage up to a maximum of EUR 1,000 each .

45 . The Court considers that the applicant s must have sustained some non-pecuniary damage as a result of the lengthy non-enforc ement of the final judgment in their favour. However the amount s claimed are excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the following amounts under this head, plus any ta x that may be chargeable on these amount s :

– Mr Asif Isgandarov (no. 50711/07) – EUR 4,800 ;

– Mr Vagif Ismayilov (no. 50793/07) – EUR 4,800 ;

– Ms Mirtarana Karimova (no. 50848/07) – EUR 4,800 ;

– Mr Samid Karimov (no. 50894/07) – EUR 4,800 ; and

– Ms S adagat Ahmadova (no. 50924/07) – EUR 1, 600 .

46 . Moreover , the Court considers that, in so far as the judgment s remain in force, the State ' s outstanding obligation to enforce them cannot be disputed. Accordingly , the applicant s are still entitled to enforcement of those judgment s . 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 present case s . It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgment s in the applicant s ' favour .

B. Costs and expenses

47 . Each of the applicant s also claimed EUR 1,500 for the costs and expenses incurred before the Court. These claim s w ere not itemised or supported by any documents.

48 . The Government considered the claim s to be unjustified.

49 . 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 are reasonable as to quantum. In the present case s , having regard to the fact that the applicant s failed to produce any supporting documents, the Court dismisses the claim s for costs and expenses.

C. Default interest

50 . The Court considers it appropriate that the default interest 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. Decides to join the applications ;

2. Declares the application s admissible ;

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

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

5 . Holds that there is no need to examine the complaint under Article 13 of the Con vention ;

6 . Holds that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the domestic courts ' judgments in the applicants ' favour;

7 . Holds

(a) that the respondent State is to pay the applicants , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention , the following sum s :

– Mr Asif Isgandarov (application no . 50711/07) – EUR 13,051 (thirteen thousand and fifty- one e uros) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred e uros) in respect of non ‑ pecuniary damage ;

– Mr Vagif Ismayilov (application no . 50793/07) – 12,191.35 (twelve thousand on e hundred and ninety - one e uros and thirty- five cents) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred Euros) in respect of non-pecuniary damage ;

– Ms Mirtarana Karimova (application no . 50848/07) – EUR 11,369 (eleven t housand three hundred and sixty- nine euros) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred Euros) in respect of non-pecuniary damage ;

– Mr Samid Karimov (application no . 50894/07) – EUR 10, 407 . 8 (ten thousand four hundred and seven euros and eight cents) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred Euros) in respect of non-pecuniary damage ; and

– Ms Sadagat Ahmadova (application no . 50924/07) – EUR 12,196 (twelve thousa nds one hundred and ninety- six euros) in respect of pecuniary damage and EUR 1,600 (one thousand six hundred Euros) in respect of non-pecuniary damage;

(b) that the above amounts shall be converted into New Azerbaijani m anats at the rate applicable at the date of settlement , plus any tax that may be chargeable;

(c ) 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;

7 . Dismisses the remainder of the applicants ' claim for just satisfaction.

Done in English, and notified in writing on 8 July 2010 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis Registrar President

APPENDIX

Table I

A pplication no.

A pplicant

Date of issue of the occupancy voucher

Date of final domestic judgment

50711/07

Asif Isgandarov

19 January 1998

20 April 1998 , the Yasamal District Court

50793/07

Vagif Ismayilov

21 January 1998

9 June 1999 , the Yasamal District Court

50848/07

Mirtarana Karimova

14 January 2000

16 May 2002 , the Yasamal District Court

50894/07

Samid Karimov

29 January 1998

11 July 2003 , the Yasamal District Court

50924/07

Sadagat Ahmadova

3 December 2007

6 November 2007 , The Baku Court of Appeal

Table II

Application no.

Claim for pecuniary damage (EUR)

Sum accepted by the Government in respect of pecuniary damage

(EUR)

Claim for non pecuniary damage (EUR)

Claim for c ost and expenses

50711/07

72,944

13,051

25,000

1 , 500

50793/07

72,944

12,191.35

25,000

1,500

50848/07

68,809

11,369

20,000

1,500

50894/07

68,809

10,407.8

20,000

1,500

50924/07

72,944

12,196

25,000

1,500