Communicated on 17 December 2015

FIFTH SECTION

Application no. 40026/09 Rashid RAHIMOV against Azerbaijan lodged on 8 July 2009

STATEMENT OF FACTS

The applicant, Mr Rashid Agababa oglu Rahimov , is an Azerbaijani national, who was born in 1950 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 ’ s grandfather owned a multi-storey house built in 1896, located at 83/23 Tolstoy Street in Baku. According to the applicant, the total surface area of the house was 242 sq. m. The house was located on a plot of land measuring 155 sq. m.

After the death of the applicant ’ s grandfather in 1967, his four sons inherited the house. They did not register their acceptance of the inheritance. According to the applicant, each of the four sons, including his father, accepted a quarter of the property as inheritance. The applicant ’ s father died in 2001. The applicant inherited his father ’ s share of the property. The applicant ’ s acceptance of the inheritance was not registered.

On 23 January 2008 the Yasamal District Executive Authority (“the YDEA”) issued an order to relocate residents of houses in several streets, including Tolstoy Street, in connection with a project to develop the area around the Teze Pir Mosque. The order specified that relocated owners should be paid compensation in the amount of 2,500 Azerbaijani manats (AZN) per square metre of the total surface area of their house.

By a letter of 19 March 2008 the YDEA asked the applicant to vacate his part of the house which, according to the YDEA, consisted of a two-room flat with a total surface area of 44.55 sq. m. It offered him AZN 2,500 per sq. m in exchange.

The applicant refused, arguing that his part of the house measured 60.5 sq. m (a quarter of 242 sq. m) and that, in addition, he also owned a quarter (38.75 sq. m) of the plot of land belonging to the house.

The YDEA disagreed with the applicant ’ s claim. It also noted that the plot of land was not in the applicant ’ s formal ownership.

On 3 April 2008 the YDEA demolished the house.

On 4 April 2008 the applicant lodged an action with the Yasamal District Court against the YDEA, arguing that he had been unlawfully deprived of his property. He claimed compensation in the amount of AZN 297,000, which included compensation for the total area of his part of the house (60.5 sq. m) and his share of the land (38.75 sq. m) calculated on the basis of AZN 2,500 per sq. m, increased by 20 per cent in accordance with Presidential Decree No. 689 of 26 December 2007.

On 9 July 2008 the Yasamal District Court partially dismissed and partially granted the applicant ’ s claim and awarded him AZN 111,375 in compensation (AZN 2,500 per sq. m multiplied by 44.55). On 24 October 2008 the Baku Court of Appeal upheld that judgment. On 6 February 2009 the Supreme Court upheld the lower courts ’ judgments.

The courts did not address the issue whether the expropriation had been lawful. They found that a part of the house was in the applicant ’ s ownership through inheritance. However, since neither he nor his father had ever registered their acceptance of the inheritance, it was impossible to determine the exact share of the house inherited by the applicant through his father. The applicant could not produce any documentary evidence before the courts proving that his share of the house was 60.5 sq. m, as he claimed. Therefore, the courts found that the compensation should be based on the area determined by the YDEA, namely 44.55 sq. m.

The courts dismissed the claim in respect of a 20 per cent increase in the compensation, finding that Presidential Decree No. 689 of 26 December 2007 provided for such an increase only in cases of expropriation of property for State needs by the Cabinet of Ministers. However, in the present case, there had been no expropriation decision by the Cabinet of Ministers and therefore the decree could not be applied.

The courts also dismissed the applicant ’ s claim for compensation for expropriated land, finding that he had no registered rights to the land and that, according to Article 67.4 of the Land Code and its interpretation by the Plenum of the Supreme Court, registration of ownership and other rights to land was mandatory and the State did not guarantee the protection of unregistered rights to land.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was unlawfully deprived of his property and that the amount of compensation paid to him for his share of the house was unlawful and inadequate.

2. The applicant complains that the unlawful demolition of the house amounted to a violation of his right to respect for his home under Article 8 of the Convention.

3. The applicant complains under Article 6 of the Convention that the domestic courts delivered unreasoned judgments by failing to examine the issue of the lawfulness of the interference in accordance with the applicable domestic legislation.

QUESTIONS TO THE PARTIES

1. Has the applicant been deprived of his 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?

Did the house and, in particular, the land belonging to the house constitute the applicant ’ s “possessions” (see Akhverdiyev v. Azerbaijan , no. 76254/11 , § § 74-78, 29 January 2015)?

What was the legal basis for the Yasamal District Executive Authority ’ s order of 23 January 2008 and for the other acts and decisions of that authority in the present case, and did that authority have competence under the domestic law to take decisions resulting in expropriation of privately owned property?

Has the determination by the domestic courts of the total surface area of the house belonging to the applicant been carried out in accordance with the conditions provided for by law? The parties are requested to substantiate their response with reference to applicable legal provisions concerning ownership rights obtained through unregistered acceptance of inheritance and other applicable legal provisions.

Was the amount of compensation awarded to the applicant based on the applicable legal provisions concerning expropriation of property for State needs, including Presidential Decree no. 689 of 26 December 2007?

2. Has there been an interference with the applicant ’ s right to respect for his home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant ’ s right to a reasoned decision respected?