FIRST SECTION

DECISION

Application no. 27741/13 Basti Aslan gizi ORDUKHANOVA against Azerbaijan

The European Court of Human Rights (First Section), sitting on 9 May 2023 as a Committee composed of:

Krzysztof Wojtyczek , President , Lətif Hüseynov, Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar ,

Having regard to:

the application (no. 27741/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 March 2013 by an Azerbaijani national, Ms Basti Aslan gizi Ordukhanova ( Bəsti Aslan qızı Orduxanova – “the applicant”), who was born in 1957, lives in Baku and was represented by Mr V. Hajibeyli, a lawyer based in Azerbaijan;

the decision to give notice of the complaints concerning Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The present case concerns the length of the domestic proceedings between private parties concerning the applicant’s property title to a flat.

2. On 5 April 2005 the applicant bought part of a flat, with a floor surface area of 81.9 sq. m, from L.A., who claimed to be the sole owner of the flat.

3. In the meantime, on an unspecified date in 2004 T.G., who was L.A.’s sister-in-law, lodged an appeal to have her inheritance rights over the same flat recognised. By a decision of 23 September 2005 of the Baku Court of Appeal, title to the flat was divided between L.A. and T.G. on the basis of a friendly settlement and some parts of the flat bought by the applicant was recognised as being the property of T.G.

4. In separate proceedings, on 20 August 2005 the applicant brought a civil action in the Yasamal District Court against L.A. and T.G., as well as twenty other respondents who allegedly were registered in the flat. The civil action concerned title to and possession of the part of the flat that she had bought on 5 April 2005 from L.A. At the same time, T.G., who resided in the flat, brought a counterclaim, seeking to have the sale agreement for the flat invalidated on the grounds that the part of the flat that the applicant had bought overlapped with her own property.

5. By a decision of 16 November 2005, the Yasamal District Court adjourned the proceedings pending the completion of the proceedings relating to the establishment of T.G.’s inheritance rights (see paragraph 3 above). It appears that the applicant stated before the court that she was not aware of the decision of 23 September 2005 and that she would lodge an appeal against that decision.

6. Following a series of proceedings, the Baku Court of Appeal delivered the final decision regarding those proceedings (relating to T.G.’s inheritance rights) on 29 January 2008.

7. On 29 April 2008 the Yasamal District Court resumed the proceedings in the applicant’s case. On 21 July 2008 the court granted the applicant’s claim in part. On 10 December 2008 the Baku Court of Appeal dismissed an appeal by the applicant. It was established that the applicant had title to 37.5 sq. m and the other part of the disputed flat was recognised as belonging to T.G.

8. Following a cassation appeal by the applicant, on 7 July 2009 the Supreme Court quashed the judgment of the Baku Court of Appeal and remitted the case for fresh examination.

9. In the course of the court proceedings before the appellate court, T.G. requested the court to suspend these proceedings until the end of another set of court proceedings concerning inheritance rights which were pending before the Yasamal District Court. On 26 November 2009 the Baku Court of Appeal granted T.G.’s request and adjourned the proceedings pending the completion of those proceedings. On 10 March 2010 the Supreme Court upheld that decision.

10. Following a series of proceedings, the Baku Court of Appeal delivered the final decision regarding those proceedings on 13 May 2011.

11. On 29 September 2011 the Baku Court of Appeal resumed the proceedings in the applicant’s case and, by a judgment of 13 October 2011, the Baku Court of Appeal upheld the Yasamal District Court’s judgment of 21 July 2008. Following a cassation appeal by the applicant, on 7 March 2012 the Supreme Court partially granted it and remitted the case to the appellate court for fresh consideration.

12. In a judgment of 29 June 2012, the Baku Court of Appeal granted the applicant’s claims in part, making minor corrections regarding the size of the property that belonged to her.

13. On 27 December 2012 the Supreme Court upheld the Baku Court of Appeal’s judgment, dismissing the applicant’s cassation appeal.

14. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained that the domestic proceedings had been excessively lengthy.

THE COURT’S ASSESSMENT

15. The Court considers that the applicant’s complaint should be examined solely under Article 6 § 1 of the Convention (see Rad omilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018).

16. The Government referred to the complexity of the case and justified the periods of inactivity by the existence of other pending proceedings which had affected the length and outcome of the proceedings in the applicant’s case.

17. The applicant maintained her complaint, without making any further submissions about the length of the domestic proceedings. She also complained that the expropriation in 2015 of the flat by the State to create a park had been unlawful.

18. The Court observes at the outset that on 8 February 2018, the Government were given notice of the applicant’s original complaint, raised in her application under Article 6 of the Convention, concerning the length of the domestic proceedings. The Court considers that the applicant’s complaint concerning the alleged breach of her property rights due to the expropriation of her property cannot be regarded as an elaboration of her original complaint under Article 6 of the Convention concerning the length of the domestic proceedings. Accordingly, it is not appropriate to take up this matter in the context of the present case (see Aliyeva and Others v. Azerbaijan , nos. 66249/16 and 6 others, §§ 94-96, 21 September 2021).

19. As regards the applicant’s complaint relating to the length of proceedings, the Court notes that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV; and Ramiz Jafarov v. Azerbaijan , no. 40424/12, § 55, 16 June 2022).

20. The Court observes that the civil proceedings in the present case were instituted on 20 August 2005 and ended with the Supreme Court’s final decision of 27 December 2012. Thus, in total, the proceedings at three levels of jurisdiction lasted more than seven years and four months. In this respect, the Court notes that the Supreme Court remitted the case twice to the lower courts for reassessment.

21. The Court further observes that the proceedings were admittedly complex, involving numerous parties, namely the applicant, twenty-two respondents and two interested parties.

22. Moreover, in the present case a number of legal disputes concerning a variety of legal issues were resolved by way of separate sets of proceedings, including a dispute relating to the division of an estate (see Omdahl v. Norway , no. 46371/18, § 54, 22 April 2021). In addition, the parties’ claims triggered several counterclaims which the domestic courts could not examine in parallel and so they had to adjourn the applicant’s case pending the outcome of those proceedings.

23. The applicant did not argue that there had been any relevant periods of complete inactivity on the part of the domestic courts. The Court observes that the major delays in the proceedings were from 16 November 2005 to 29 April 2008 and from 26 November 2009 to 29 September 2011, when the case was adjourned because another set of proceedings was taking place in order to establish T.G.’s rights in relation to the disputed property and there was no practical opportunity for the domestic courts to consider separate disputes in parallel, as the outcome of one set of proceedings affected the other.

24. As to the applicant’s conduct, the Court notes that applicants are entitled to make use of all relevant domestic procedural steps, as the applicant did in the present case, but they should do so with diligence and must bear the consequences when such procedural applications result in delay (see Luli and Others v. Albania , nos. 64480/09 and 5 others, § 90, 1 April 2014).

25. As regards what was at stake for the applicant, although she argued that owing to the length of the domestic proceedings she had not been able to fully enjoy her property rights over the flat, the Court observes that there is no evidence that the applicant had any difficulty in accessing her own property of 37.5 sq. m while the domestic proceedings were ongoing.

26. Accordingly, the Court discerns no reasons of relevance under Article 6 § 1 of the Convention to support the applicant’s contention, in so far as it has been substantiated, that what was at stake for her in the present proceedings called for special diligence within the meaning of that provision.

27. It therefore finds that the applicant’s complaint under Article 6 § 1 should be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 June 2023.

Liv Tigerstedt Krzysztof Wojtyczek Deputy Registrar President