Communicated on 19 January 2015

FIRST SECTION

Application no. 32780/12 Elmira RAHIMOVA against Azerbaijan lodged on 3 May 2012

STATEMENT OF FACTS

The applicant, Ms Elmira Rahimova , is an Azerbaijani national, who was born in 1959 and lives in Baku. She is represented before the Court by Mr A. Ismayılov , a lawyer practising in Azerbaijan.

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

The applicant was the private owner of a plot of land with a total area of 491 sq. m. and a commercial building of 152.2 sq. m. and several outbuildings located on that plot of land. The main building contained a café and a small shop, while the outbuildings were freestanding awning-type structures designed to host the café ’ s customers. The property was adjacent to the Z ığ Road in the Khatai District of Baku. Parts of the property were in the ownership of the applicant herself, while other parts were owned by Salam-R, a company wholly-owned by the applicant.

In November 2008 officials of the Khatai District Executive Authority (“the KDEA”), the Ministry of Transport and Azeryolservis Joint Stock Company, a company subordinate to the Ministry of Transport, demolished first the outbuildings and then the main building located on the applicant ’ s property.

The applicant was told that this was done in connection with the planned works on reconstructing and adding more traffic lanes to the Z ığ Road, pursuant to Presidential Order no. 1255 of 1 February 2006 approving the action plan for years 2006 and 2007 in connection with the improvement of the transport system in Baku. The applicant ’ s land plot fell into the zone previewed for the expansion of the Z ığ Road and was expropriated.

The applicant lodged a court action with the Khatai District Court against the KDEA, the Ministry of Transport and Azeryolservis , complaining that her ownership rights had been violated and seeking 1,200,000 Azerbaijani new manats (AZN) in damages.

The court ordered two expert evaluations of the value of the applicant ’ s property. According to the expert report of 29 May 2009, prepared by an expert of the Forensic Department ( Məhkəmə Ekspertizası Mərkəzi ) of the Ministry of Justice, the market value of the buildings was AZN 426,000 and the market value of the plot of land was AZN 137,500, giving a total of AZN 563,500. Another expert report of 17 August 2009, prepared by the same expert, confirmed that the market value of the plot of land was AZN 137,500.

By a judgment of 8 October 2009 the Khatai District Court partly upheld the applicant ’ s claim, finding that the applicant had been deprived of her private property by the Ministry of Transport and Azeryolservis without compensation, and that she should be paid damages. The court noted that Presidential Decree no. 689 of 26 December 2007 provided that the compensation for property expropriated for State needs should comprise an amount corresponding to its market value, increased by 20%. Therefore, the court awarded the applicant AZN 676,200 in damages, which represented the market value of the property as assessed by the expert (AZN 563,500) increased by 20%, to be paid to her jointly by the Ministry of Transport and Azeryolservis .

The defendants lodged an appeal, seeking a lower award, contesting the evaluation of the market value by the expert and arguing that the applicant ’ s property was worth AZN 213,024.

On 5 March 2010 the Baku Court of Appeal dismissed the appeal and upheld the Khatai District Court ’ s judgment of 8 October 2009.

The defendants appealed to the Supreme Court.

On 11 August 2010 the Supreme Court granted the appeal and quashed the Baku Court of Appeal ’ s judgment of 5 March 2010, finding that the lower courts did not subject the expert reports of 29 May and 17 August 2009 to sufficient scrutiny. It remitted the case for re-examination, instructing the appellate court to order a new expert evaluation.

The Baku Court of Appeal ordered a new expert report from the Forensic Department of the Ministry of Justice, but this time noting that the department should ensure that its expert should also consult with an expert appointed by the Ministry of Finance. The new expert report of 17 February 2010 assessed the total market value of the applicant ’ s property, including both the land and the buildings, at AZN 262,195.

The court noted that it could not overlook the significant difference between the amounts indicated in the two initial expert reports and the latest expert report. Therefore, the court heard the expert who had signed the latest report of 17 February 2010 and requested explanation. The expert stated that the initial expert reports of 29 May and 17 August 2009 had assessed the value of the property according to the current market prices, while in the latest expert evaluation of 17 February 2010 the calculation had been done by the experts of the Ministry of Finance who influenced the final result.

The applicant procured another expert opinion by a private expert company, MBA LTD. This expert report, issued on 17 March 2011, found that the total market value of the property was AZN 560,000, almost the same amount as indicated in the first expert report of 29 May 2009, and that, factoring in the 20% increase, the final amount of lawful compensation to be awarded was AZN 672,000. The expert report by MBA LTD was also submitted to the court.

In its judgment of 19 April 2011 the Baku Court of Appeal noted, in respect of the difference between the expert reports, that, while the original expert reports of 29 May and 17 August 2009 indicated the amount calculated based on the market value, the expert report of 17 February 2010 indicated a price that reflected “the State ’ s financial interests”. The court considered that, where interference with private property was lawful and in public interest, compensation for expropriated property could be lower than its real market value as long as it reflected a “fair balance” between various interests. Based on this approach, the court found it reasonable to award the applicant an amount which was an approximate average between the amounts indicated in the expert reports. It accordingly awarded the applicant AZN 456,000.

Both the applicant and the defendants appealed against this judgment.

On 18 November 2011 the Supreme Court dismissed both appeals and upheld the Baku Court of Appeal ’ s judgment of 19 April 2011.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. to the Convention that her property was expropriated in breach of the conditions and requirements of the domestic law in respect of expropriation and compensation, provided for in the Constitution, the Civil Code and the Land Code. As such, the interference with her property rights was unlawful. The compensation awarded by the courts was inadequate.

2. The applicant complains under Article 6 of the Convention that the Baku Court of Appeal ’ s judgment of 19 April 2011, as upheld by the Supreme Court ’ s decision of 18 November 2011, has not been executed and the judgment award has not been paid to her.

QUESTIONS TO THE PARTIES

1. Has the applicant been deprived of her possessions in the public interest, and in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1? In particular, how was that deprivation qualified under domestic law (expropriation, State purchase or otherwise)? What was the legal basis for the relevant authorities ’ actions aimed at alienating the applicant ’ s private property? In particular, w hat act (document or physical action of a public authority) constituted the interference in the present case? What were the substantive and procedural conditions (including the conditions in respect of the compensation to be paid) required by the applicable law for this type of deprivation of property to be lawful, and were those conditions complied with in the present case?

Moreover, did that deprivation impose an excessive individual burden on the applicant?

2. Has the Baku Court of Appeal ’ s judgment of 19 April 2011, as upheld by the Supreme Court ’ s decision of 18 November 2011, been enforced? If not, did the delayed non-enforcement of the judgment amount to an infringement of the applicant ’ s rights under Article 6 of the Convention?

3. The Government are requested to submit copies of all decrees, orders, decisions and correspondence (both between various State authorities, and between the State authorities and the applicant, if any) relating to the deprivation of the applicant ’ s property, and in particular those mentioned in the domestic courts ’ judgments.

4. The parties are requested to submit copies of all claims, requests and appeals lodged with the domestic courts by both parties to the domestic proceedings as well as all interim decisions taken by the domestic courts.