Communicated on 18 May 2017

FIFTH SECTION

Application no. 62490/09 Fatma GANIYEVA and others against Azerbaijan lodged on 20 October 2009

STATEMENT OF FACTS

The applicants are Azerbaijani nationals. They were born on various dates and live in Baku (see Appendix for all details). They are represented before the Court by Ms Sevinj Aliyeva , a lawyer practising in Azerbaijan.

The circumstances of the case

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

On various dates in 2000, 2001 and 2005 the Union for Development and Exploitation of Gardens ( Bağlar Təsərrüfatının İnkişafı və İstismarı Birliyi – “the UDEG”), an entity apparently acting under the Baku City Executive Authority (“the BCEA”) at the material time leased a garden of 0.09 ha in Sabunchu District to each applicant for ten years (see Appendix).

Starting from the beginning of 2005, persons presenting themselves as local residents of Kurdakhani settlement repeatedly attacked the applicants, demolished the fences of the gardens and made the applicants ’ use of the gardens impossible.

On 11 December 2006 the applicants lodged a complaint with the Sabunchu District Police Department (“the SDPD”) concerning unlawful occupation of the gardens by unknown persons. After several further complaints and a series of court proceedings, on 4 June 2007 the SDPD refused to institute criminal proceedings indicating that the allegations had not been confirmed to be true. The SDPD ’ s decision also stated that the respective gardens were leased by the Kurdakhani Municipality (“the Municipality”) to local residents other than the applicants.

By the Presidential Decree of 22 May 2007 the entities under the local executive authorities dealing with gardens (including the UDEG) were liquidated and the Cabinet of Ministers was instructed to prepare the measures for registration of individuals ’ ownership rights to the gardens in their lawful use prior to 22 May 2007.

On 20 June 2007 the head of the Baku City Executive Authority issued order no. 84 (“the order of 20 June 2007”), on the basis of which a plot of land of 30 ha, including the respective gardens allocated to the applicants, was transferred to the Municipality in order to be sold to private company K. The applicants were not notified about the order.

On 8 August 2007 the applicants, relying on the SDPD ’ s decision of 4 June 2007, sent an inquiry to the Municipality asking whether any lease agreements were concluded by the Municipality in respect of the gardens.

On 6 September 2007 the Municipality replied stating that lease agreements for ten years had been concluded between the Municipality and local residents.

On 9 October 2007 the Municipality issued a decision (“the decision of 9 October 2007”) granting the plot of land to company K. On 12 October 2007 the Municipality and company K. executed a deed and contract of sale in respect of the plot of land including the gardens.

On an unspecified date in 2007 the applicants lodged a claim with the Sabunchu District Court against the Municipality asking the court to declare the lease agreements between the Municipality and the local residents invalid. They also asked for return of the gardens to their lawful use and removal of the local residents from the gardens.

In the meantime, on 1 February 2008 the Law on state registry of real estate was amended and having a lease agreement to a garden was added as a ground for acquiring the ownership right to it.

During the court proceedings the applicants became aware of order of 20 June 2007, the decision of 9 October 2007 and sale of the gardens to company K.

On 7 February 2008 the applicants amended their initial claim and asked to join the BCEA and company K. as additional defendants. They asked the court to declare the order of 20 June 2007, the decision of 9 October 2007, the deed and the contract of 12 October 2007 and the relevant certificate of title issued to company K. invalid in parts concerning the gardens. They also asked for return of the gardens to their lawful use and removal of company K. from the gardens.

On 28 April 2008 the BCEA lodged a counter-claim with the Sabunchu District Court asking the court to declare the lease agreements between the applicants and the UDEG invalid.

On 2 June 2008 the Sabunchu District Court dismissed the applicants ’ claims and upheld the BCEA ’ s counter-claim terminating the lease agreements concluded with the applicants.

On 28 October 2008 the Baku Court of Appeal quashed the first-instance court ’ s judgment in part and declared the lease agreements concluded with the applicants invalid. The court held that the UDEG was not entitled to lease the gardens without the BCEA ’ s consent.

On 21 April 2009 the Supreme Court upheld the appellate court ’ s judgment.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that the civil proceedings instituted by them in connection with the deprivation of their possessions were not fair; in particular that the domestic courts delivered unreasoned judgments by failing to properly verify the compliance of the interference with the applicable domestic legislation.

2. The applicants complain that the sale of the gardens in their lawful use to company K. and also the domestic courts ’ judgments declaring the lease agreements invalid amounted to an unlawful and unjustified interference with their property rights under Article 1 of Protocol No. 1 to the Convention. The applicants also complain that because of this interference they could not obtain ownership to the gardens, a right that they legitimately expected to acquire under the domestic law.

QUESTIONS TO THE PARTIES

1. Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1 to the Convention?

In particular, does the present case concern existing possessions (right to the gardens under the lease agreements), a legitimate expectation of acquiring possessions (title to the gardens), or both? How was the deprivation qualified under domestic law? What act(s) (document or physical action of a public authority) constituted the interference(s) in the present case? What were the substantive and procedural conditions required by the applicable law for the relevant form of deprivation of property to be lawful, and were those conditions complied with in the present case?

Who was the legal owner of the gardens at the material time? What was the legal basis for the Baku City Executive Authority ’ s order of 20 June 2007? Was it in compliance with the Presidential decree of 22 May 2007? What was the legal basis for the Kurdakhani Municipality ’ s decision of 9 October 2007? What was the legal basis for the deed and contract of sale of 12 October 2007 between the Kurdakhani Municipality and company K?

Did the Baku City Executive Authority have competence under domestic law to instruct the Kurdakhani Municipality to sell the respective plot of land to company K.? Did the Kurdakhani Municipality have competence under domestic law to sell the respective plot of land to company K.?

What were the applicants ’ legitimate expectations under the Presidential decree of 22 May 2007 and the amendments of 1 February 2008 to the Law on state registry of real estate?

What was the legal basis for the invalidity of the lease agreements in the present case? What was the legal status of the Union of Development and Exploitation of Gardens at the material time when the lease agreements between it and the applicants were concluded? What was its legal relationship with the Baku City Executive Authority? What was the legal procedure required for the conclusion of such lease agreements?

If the interference complained of was lawful, did that interference impose an excessive individual burden on the applicants (see, mutatis mutandis, Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999 ‑ V)?

2. Did the applicants have a fair hearing in the determination of their civil rights and obligations in the proceedings concerning the alleged violation of their property rights, in accordance with Article 6 § 1 of the Convention? In particular, was the applicants ’ right to a reasoned judgment respected?

Appendix

No

Applicant ’ s name

Date of birth

1Fatma GANIYEVA

28/10/1965

2Aghayar HASANOV

10/07/1962

3Nizami KARIMLI

08/05/1961

4Zinyat GURBANOVA

22/11/1968

5Hagigat ISKANDAROVA

25/04/1957

6Rafig AHMADOV

01/07/1947

7Telman TATARAYEV

10/05/1942

8Abakar ABAKAROV

17/08/1965

9Fatma SULEYMANOVA

17/02/1946

10Mohtaman EYNIYEV

05/01/1937

11Khanlar AGAYEV

20/05/1952

12Gudrat MAMMADOV

03/11/1934

13Rasim MIRZAZADE

30/10/1948

14Yashar MAMMADKHANOV

31/05/1954

15Rubaba MAMMADOVA

13/09/1942

16Nazira BAGIROVA

15/07/1950

17Farhad AGAYEV

31/01/1983

18Yegana EYYUBOVA

23/02/1966