FIRST SECTION

DECISION

Application no. 13058/10 Shahmir Oruj oglu MAMMADOV against Azerbaijan

The European Court of Human Rights (First Section), sitting on 16 May 2023 as a Committee composed of:

Krzysztof Wojtyczek , President , Lətif Hüseynov, Ivana Jelić , judges , and Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 13058/10) 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 22 February 2010 by an Azerbaijani national, Mr Shahmir Oruj oglu Mammadov ( Şahmir Oruc oğlu Məmmədov – “the applicant”), who was born in 1956 and lives in Baku, and who was represented by Mr K. Bagirov, a lawyer based in Azerbaijan;

the decision to give notice of the application to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the applicant’s complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the allegedly unlawful demolition of a part of his property and the non ‑ enforcement of a final domestic court judgment in his favour.

2. The applicant is the director and sole owner of Chaldash LLC (“the company”). On 15 May 2003 the Ismayilli Municipality sold the company a plot of land of 0.335 ha for construction purposes. A petrol station and café were subsequently built on the land. On 2 February 2008 one room of the café (10-12 sq. m in size) and a metal forecourt canopy in front of the café were demolished by order of the Ismayilli District Executive Authority (“the IDEA”). It appears that the IDEA had asked the applicant to voluntarily demolish the room by 5 February 2008 owing to the fact that it was located within the protection zone of a public road, but the applicant had refused to do so.

3. The company brought proceedings against the IDEA before the Ismayilli District Court and asked the court to award it 231,250 Azerbaijani manats (AZN) in respect of pecuniary damage (namely, the demolition of the room, the destruction of appliances inside it and legal expenses) and AZN 100,000 in respect of non-pecuniary damage (a copy of the claim is not available in the case file).

4 . On 3 November 2008 the first-instance court found that the room of the café had been demolished by order of the IDEA without the owner’s consent and held that its property rights should have been protected by the State and that it should therefore be awarded compensation. The court noted that an on ‑ site examination of the property in question showed that other parts of the property were operating as usual, and that the demolished metal canopy was still being kept in the yard of the café. Relying on an expert opinion of 8 September 2008 (a copy is not available in the case file), the court awarded the applicant AZN 9,072 (approximately 8,808 euros (EUR) at the relevant time) in respect of the demolished room and AZN 500 (approximately EUR 485 at the relevant time) in respect of non-pecuniary damage. As to the metal canopy, the court held that it had been unlawfully constructed without permission and had not been registered in the State register. Therefore, no compensation was payable in respect of it.

5 . The applicant appealed (a copy of the appeal is not available in the case file), arguing mainly that, while the expert opinion had valued the metal canopy at AZN 31,594, the first-instance court had failed (i) to award that sum to him and (ii) to substantiate the amount awarded for non-pecuniary damage. On 7 April 2009 the Shaki Court of Appeal dismissed the appeal, reiterating the lower court’s reasoning.

6. The applicant lodged a cassation appeal (a copy is not available in the case file), complaining that the domestic courts’ judgments dismissing his claims, in particular in respect of the destroyed appliances and lost profits, had been in breach of domestic law.

7 . On 10 September 2009 the Supreme Court dismissed his cassation appeal and upheld the appellate court’s judgment. That judgment was enforced on 30 March 2010.

8. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that his property had been demolished unlawfully and that the domestic courts’ decisions in that regard had not been reasoned. He also complained of non-enforcement of the Supreme Court’s judgment of 10 September 2009.

THE COURT’S ASSESSMENT

9 . The Government argued that the applicant could no longer claim to be a “victim”, because the domestic courts had (i) held that there had been a violation of his property rights and (ii) ordered the payment of compensation for pecuniary damage based on an expert evaluation, the conclusions of which had not been contested by the applicant, and for non-pecuniary damage. As regards the metal canopy, the Government referred to the domestic courts’ conclusions (see paragraphs 4-5 and 7 above). They also submitted that the Supreme Court’s judgment of 10 September 2009 had been fully enforced and the total amount awarded to the applicant by the domestic courts had been transferred to his account and duly accepted by him.

10. The applicant argued that he had been only partially compensated for the demolition of part of his property and that, in particular, no compensation had been paid to him for the plot of land underneath the room and the metal canopy. He argued that the metal canopy should not have been considered immovable property and therefore had not needed to be registered in the State register. He further contested the domestic courts’ conclusions and the Government’s submission that the demolished parts of the metal canopy had been kept in the yard of the café (see paragraphs 4 and 9 above), arguing that it had been totally ruined. As to the Supreme Court’s judgment of 10 September 2009, the applicant submitted that it had been enforced only on 30 March 2010, after he had lodged his complaint with the Court.

11. Before examining the Government’s objection, the Court observes at the outset that the events complained of in the present case affected the company, whereas on the application form the applicant indicated himself rather than the company as the applicant. The Court reiterates that where the acts or omissions complained of affect a company, the application should be brought by that company. Disregarding a company’s legal personality as regards the question of being a “victim” will be justified only in exceptional circumstances. On the other hand, the sole owner of a company can claim to be a “victim” within the meaning of Article 34 of the Convention in so far as the impugned measures taken in respect of his or her company are concerned, because in the case of a sole owner there is no risk of differences of opinion among shareholders or between shareholders and a board of directors as to the reality of an infringement of Convention rights or the most appropriate way of reacting to such an infringement (see Vladimirova v. Russia , no. 21863/05, §§ 39-40, 10 April 2018, with further references).

12. In the present case, the applicant informed the Court that he was the company’s director and sole owner, with the result that there was no risk of the existence of any competing interests which could create difficulties, as reflected in the Court’s case-law on the subject. The Court is therefore satisfied that the applicant himself had the status of a “victim” within the meaning of Article 34 of the Convention, in so far as the events affecting his company were concerned, when he lodged the present application with the Court.

13. The Court will next examine whether the applicant can still be considered a “victim” in view of the Government’s submissions (see paragraph 9 above).

14. In the present case, the domestic courts held that the applicant’s property rights had been breached on account of the demolition of one room of his café without his consent. The domestic courts therefore acknowledged that there had been a violation of the applicant’s right of property. Moreover, they ordered the payment of compensation for pecuniary damage, on the basis of an expert report (see paragraph 4 above), the conclusions of which had not been contested by the applicant before the domestic courts (compare Gejer Missbach v. Poland (dec.), no. 36300/15, § 28, 23 March 2021), and for non-pecuniary damage. As to the demolished metal canopy, the domestic courts found that it had been an unauthorised construction and therefore no compensation was payable for it. Even though the applicant argued before the Court that the metal canopy should not have been regarded as immovable property requiring State registration and that it had been totally ruined, the Court notes that it does not appear from the documents in its possession that the applicant had raised those arguments before the domestic courts. Neither does it appear from the case file that the applicant, in his appeals before the domestic courts, had ever requested a separate sum for the plot of land underneath the room and the metal canopy.

15. In this connection, the Court notes that it has already declared complaints inadmissible where a violation of Convention rights had been fully established by the domestic courts and where the applicant had not attempted to obtain compensation at the domestic level. It has also found in the past that decisions of domestic courts awarding no compensation in the absence of a claim, or awarding only a part of the sum claimed in compensation corresponding to the evidence submitted to them, could be accepted as offering sufficient redress (see, for instance, Vladimir Kolobov v. Russia (dec.), no. 26528/03, 28 June 2011, and Prohorov v. the Republic of Moldova (dec.), no. 21040/06, § 19, 21 October 2014).

16. As concerns the belated enforcement of the Supreme Court’s judgment of 10 September 2009, the Court notes the following. It is not disputed by the parties that the amount awarded in the above-mentioned judgment was fully paid to the applicant on 30 March 2010, that is, less than seven months after the judgment was delivered. The Court has already held that a period of seven months taken by the authorities to enforce a final judgment does not appear to be unreasonable (see, for instance, Sökmen v. Turkey (dec.), no. 3212/05, 30 June 2009, and Kravtsov v. Russia , no. 39272/04, § 24, 5 April 2011).

17. In such circumstances, the applicant should be regarded as having lost his victim status in relation to the present application. The Court therefore concludes that the applicant is no longer a victim of the alleged violations and that the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 June 2023.

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Attila Teplán Krzysztof Wojtyczek Acting Deputy Registrar President