Communicated on 14 December 2017

FIFTH SECTION

Application no. 40367/15 Yelena BEREZINSKAYA against Azerbaijan lodged on 5 August 2015

STATEMENT OF FACTS

The applicant, Ms Yelena Berezinskaya , is an Azerbaijani national who was born in 1945 and lives in Baku.

The circumstances of the case

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

The applicant, her husband (Y.V.), and t heir son were living in a State ‑ owned flat consisting of two rooms (“the first and the second rooms”).

On 14 August 1990 Y.V. moved out of the flat.

On 13 January 1993 the Nasimi District Executive Authority (“the NDEA”) issued an order on the basis of Article 85 of the Housing Code effective at the material time, recognising the applicant and her son as the tenants of the flat.

On 16 April 1993 the NDEA issued an order on the basis of Article 43 of the Housing Code effective at the material time, allowing the joining of another flat – consisting of one room (“the third room”), formerly owned by a certain K. – to the applicant ’ s flat.

On 26 October 1996 the applicant was issued a certificate of ownership in respect of the flat, which now consisted of three rooms.

On 23 April 1997 the NDEA issued an order allowing the joining of the third room to the flat of a certain S.S. (the applicant ’ s neighbour). The order did not mention anything about the order of 16 April 1993 concerning the third room.

On 22 January 2004 S.S. ’ s flat (together with the third room) was sold to certain E.A.

On 2 August 2012 the applicant was issued a duplicate of the certificate of ownership in respect of the flat consisting of three rooms.

On 6 September 2012 the Nasimi District Executive Authority issued an order (the legal basis of which was unspecified) joining the second room to E.A. ’ s flat.

On an unspecified date in 2012 E.A. applied to the State Real Estate Registry (“the SRER”) asking for a certificate of ownership in respect of the second room.

On 12 December 2012 the SRER rejected E.A. ’ s application, stating that the second room had been registered as part of the applicant ’ s flat.

On 31 May 2013 E.A. lodged a claim with Baku Administrative ‑ Economic Court No. 1. against the SRER asking for the annulment of the applicant ’ s title to the flat and the orders of 13 January 1993 and 16 April 1993 (“the orders”). E.A. argued that Y.V. had sold the second room to her in 1990 on the basis of an oral agreement and that it had been in her use since then. The applicant and the NDEA joined the proceedings as third parties.

On 27 December 2013 Baku Administrative-Economic Court No.1 upheld the claim in part, finding that the second room had actually been in use by E.A. at the material time. The court further held that the applicant had failed to submit originals of the orders. On these grounds the court annulled the applicant ’ s title and the orders in respect of the second room.

The SRER lodged an appeal with the Baku Court of Appeal arguing that the applicant ’ s title had been lawfully registered on the basis of the orders and that E.A. had failed to submit any evidence proving her property rights to the flat at the material time. The applicant also asked the Baku Court of Appeal to uphold the SRER ’ s appeal.

On 8 July 2014 the Baku Court of Appeal dismissed the appeal and quashed the first-instance court ’ s judgment, finding that the third room too had actually been in E.A. ’ s use at the material time. On these grounds the court annulled the applicant ’ s title also in respect of the third room.

The applicant lodged a cassation complaint with the Supreme Court, arguing that E.A. had purchased her own flat in 2004 and had failed to submit any evidence concerning her property rights in respect of the applicant ’ s flat at the time when the certificate of ownership and the orders had been issued. The applicant further argued that E.A. had not appealed against the judgment of the first-instance court and that the appellate court had thus exceeded its competence by also annulling the applicant ’ s title in respect of the third room. Lastly, the applicant argued that E.A. had been aware of her certificate of ownership on 12 December 2012; however she had lodged the claim on 31 May 2013, whereas the statutory time-limit for such claims was thirty days.

On 5 February 2015 the Supreme Court upheld the Baku Court of Appeal ’ s judgment, reiterating its reasoning.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of a failure by the State to protect her property interests in relation to the annulment of her property title.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

2. Has there been a violation of Article 1 of Protocol No. 1 with regard to the alleged failure of the State to protect the applicant ’ s property interests in relation to the annulment of her property title? In particular, did the domestic courts provide relevant and sufficient reasons as regards the assessment of evidence and the findings that the applicant ’ s certificate of ownership and the orders of the NDEA had been unlawful in respect of two rooms of the flat, as when they had been issued, E.A. had owned those rooms?