Communicated on 30 August 2017

FIFTH SECTION

Application no. 1781/09 Sevda JAVANSHIROVA against Azerbaijan lodged on 25 December 2008

STATEMENT OF FACTS

The applicant, Ms Sevda Javanshirova , is an Azerbaijani national, who was born in 1963 and lives in a psychiatric hospital in Mashtaga settlement in Baku, Azerbaijan. She is represented before the Court by Ms T. Humbatova , chairperson of the Evangelical Lutheran community in Baku.

The circumstances of the case

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

The applicant was diagnosed with schizophrenia in 1981 and was attributed a second-degree disability.

It appears that from her birth in 1963 and until May 1993 the applicant lived in a flat situated in Baku. In May 1993 the applicant was placed in a psychiatric hospital by Mr C.A., who had married her a month earlier. Mr C.A. occupied the flat in question and later allowed some other individuals to occupy it.

On an unspecified date the applicant ’ s mother took her to the Russian Federation. There they lived in an abandoned dwelling without communal utilities. It is not clear for how long the applicant lived with her mother before returning to Azerbaijan and being again placed in a psychiatric hospital in Mashtaga , where she currently resides. According to the applicant, for some periods of time she stayed as a homeless in various places such as train stations.

In 1994 by a decision of a court in the Russian Federation the applicant was declared legally incapacitated. Her mother was appointed her guardian.

From the end of 1994 until September 2004 the applicant was engaged in court proceedings against Mr C.A. and the individuals who had occupied the above mentioned flat.

Those proceedings ended by a final decision of 30 September 2004 of the Plenum of the Supreme Court, which confirmed a first-instance court ’ s judgment of 8 July 2003 in favour of the applicant. The domestic courts recognised the applicant ’ s right to use the flat in question as a tenant and ordered eviction of the individuals occupying it. However, it appears that until April 2006 those individuals did not move out.

In the beginning of 2006 the applicant privatised the flat in question. On 28 February 2006 t he Baku City Department of Technical Inventory and Registration of Property Rights issued a certificate confirming the applicant ’ s property rights over it.

According to the applicant, in the beginning of April 2006 the flat in question was vacated and she planned to move in it.

However, on 21 April 2006, at notary office no. 3, the applicant ’ s mother, as her guardian, signed a general authority form ( генеральная доверенность ) authorising Mr D.R. to sell the flat in question.

On 29 April 2006 Mr D.R. sold the applicant ’ s flat to Mr. A.G. The sale contract was approved by notary office no. 9 of the Narimanov district .

According to the documents submitted by the applicant, before signing the general authority form on 21 April 2006, on the same day, the applicant ’ s mother lodged a request before the local guardianship authority – the Narimanov district executive authority – (“the local guardianship authority”) asking for permission to sell the applicant ’ s flat.

On the sam e day, 21 April 2006, the local guardianship authority issued a permission requested by the applicant ’ s mother, stating that “[the Narimanov district executive authority] did not object to sale of the flat ... [provided that] the interests of [the applicant] were taken into consideration”.

From the documents submitted to the Court it appears that the applicant ’ s mother used the money, which she had received for the sale of the flat in question, to pay back her own debt to a third party.

According to the applicant, her mother was forced to sign the relevant documents and sell the flat under coercion.

On an unspecified date Mr A.G. sold the flat in question to Mr M.S.

In October 2007 the applicant lodged an action against the notary officers of notary offices no. 3 and 9 (Mr N.O. and Mr R.S. respectively), Mr D.R., Mr A.G. and Mr. M.S. She asked the Narimanov District Court to invalidate the above mentioned general authority form given by her mother to Mr D.R. and all the subsequent sale contracts concluded in respect of her flat. She argued that her interests as a mentally disabled person were not taken into account when her mother gave that general authority form to Mr D.R.

According to the applicant, she also requested the court to involve the local guardianship authority as a respondent party. However, that request was not granted.

On 22 January 2008 the Narimanov District Court dismissed the applicant ’ s action. The court found that the general authority form had been issued in accordance with the legislation (namely, Articles 33.2, 33.5, 34.3 and 36.2 of the Civil Code) because the local guardianship authority had given its permission to the applicant ’ s mother to sell the flat in question.

The applicant appealed. She argued that the first-instance court took for granted the permission given by the local guardianship authority without examining whether that authority indeed took her interest into account before deciding to issue the permission.

On 15 May 2008 the Court of Appeal upheld the judgment of the first ‑ instance court of 22 January 2008.

On 25 September 2008 the Supreme Court upheld the judgment of 15 May 2008.

COMPLAINTS

The applicant complains under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that the authorities, including the domestic courts, failed to protect her right to respect for her home and her right to peaceful enjoyment of her possessions.

QUESTIONS TO THE PARTIES

1. Did the flat in question constitute the applicant ’ s “home”, within the meaning of Article 8 of the Convention? If so, did the State authorities have a positive duty under Article 8 of the Convention to protect the applicant ’ s right to respect for her home?

2. Did the State authorities have a positive duty under Article 1 of Protocol No. 1 to the Convention to protect the applicant ’ s right to peaceful enjoyment of possessions?

3. If so, did they comply with those duties under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention? In particular,

(a) Did the legal and administrative framework contain sufficient safeguards to protect the applicant ’ s rights under Article 8 of the Convention in the present case? The Government are invited, in particular, to comment on the availability of preventive and retrospective remedies.

(b) Which procedure did the local guardianship authority (the Narimanov district executive authority) follow when giving the permission for the sale of the flat in question?

( c ) Was the existing legal and administrative framework functioning properly in the applicant ’ s situation? In particular,

(i) Did the local guardianship authority take all actions that could reasonably be expected from it to protect the applicant ’ s interests as a mentally disabled person?

(ii) Did the domestic courts strike a fair balance between the rights of the parties when dismissing the applicant ’ s civil claims?

4. Did the applicant have at her disposal an effective domestic remedy for her Convention complaints, as required by Article 13 of the Convention?

5. Has the applicant suffered discrimination in the enjoyment of her Convention rights on the ground of her mental disability , contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention?

6. The parties are requested to submit copies of all documents relating to the domestic proceedings, including the applicant ’ s judicial complaints and appeals.