THIRD SECTION
CASE OF ALIYEVA AND OTHERS v. AZERBAIJAN
(Application no. 67879/12)
JUDGMENT
STRASBOURG
20 May 2025
This judgment is final but it may be subject to editorial revision.
In the case of Aliyeva and Others v. Azerbaijan,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Oddný Mjöll Arnardóttir, President,
Lətif Hüseynov,
Canòlic Mingorance Cairat, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 67879/12) 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 19 October 2012 by the applicants listed in the appended table (“the applicants”), who were represented by Mr F. Agayev, a lawyer based in Azerbaijan;
the decision to give notice of the complaints under Articles 6, 8 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 in private on 29 April 2025,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the applicants’ complaints about the allegedly unlawful demolition of their properties.
2. The facts of the present case are similar in several respects to those of Akhverdiyev v. Azerbaijan (no. 76254/11, 29 January 2015), and Khalikova v. Azerbaijan (no. 42883/11, 22 October 2015). As in those cases, in the present case the applicants’ properties were demolished on the basis of an order issued by the head of the Baku City Executive Authority (“the BCEA”). Under the order of 9 March 2010, the buildings located on Mikayil Useynov Avenue were to be demolished for the purpose of constructing a shopping centre, and the residents were to be relocated. As in the case of Akhverdiyev, the relocation of the residents was to be carried out at the expense of a private company – in the instant case by Cooperative B, a subsidiary of Company A. However, unlike in the cases of Akhverdiyev and Khalikova, in the present case, the demolition was carried out not directly by the local executive authority, but by Cooperative B. The residents and the applicants were offered by Cooperative B (which was apparently acting on the basis of an order issued by the BCEA) the possibility to exchange their flats for either i) compensation in the amount of 1,500 to 2,000 Azerbaijani manats (AZN) per sq. m of the floor area of their flats, or ii) a new flat in one of several buildings located in another part of the city that had been built by Company A.
3. Most of the residents accepted that offer and vacated their properties. The applicants rejected the offer. The demolition of the building was completed on 10 June 2011. In September 2011, the third applicant entered into a sale contract in respect of her flat with Company A and was paid AZN 1,886 per sq. m of her flat – a total of AZN 165,000.
4. On different dates the applicants brought proceedings against N.R., who was working for Company A, the BCEA and other State authorities, seeking, inter alia, (i) the invalidation of the BCEA’s order (see paragraph 2 above), and (ii) an award of compensation in respect of pecuniary and non-pecuniary damage. The applicants did not submit to the first-instance court any valuation report with their claims. Moreover, the first applicant, referring to a sketch of the layout of the flat approved by the Housing and Utilities Unit (no copy is contained in the case file), asserted that the total surface area of her flat was in fact 254 sq. m. The second applicant asserted that the Sabail District Executive Authority had issued several orders on various dates between 1997 and 2005 authorising him to enlarge his flat (by using certain non-residential rooms adjacent to his flat as his own); as a result, the total surface area of his property measured 251.1 sq. m.
5. By a judgment of 8 December 2011, the Sabail District Court allowed the applicants’ claims in part, holding that the order of the BCEA had been lawful, but that the applicants’ property rights had been violated by Cooperative B because it had begun to demolish the building without first obtaining the applicants’ consent. Having regard to the relevant provisions of domestic law and to various documents issued by the State authorities, the first-instance court established that the size of the properties was as indicated in the appended table.
6. The court also ordered an expert valuation in order to determine the market value of the flats. According to the expert valuation report (dated 6 October 2011), the average market value per 1 sq. m in respect of the flats in question was AZN 3,180. However, in its calculations, the court refused to rely on that report, noting that it had incorrectly stated the surface areas of the respective flats. Instead, the court referred to another expert opinion (dated 30 November 2011). That opinion lacked any explanation of calculation but merely set the average market value per sq. m of the flats at AZN 1,500-1,900. The court awarded each applicant AZN 1,900 per sq. m of their respective properties in compensation for pecuniary damage and AZN 1,000 in compensation for non-pecuniary damage.
7. Following an appeal lodged by the applicants, the judgment was upheld by a judgment of 5 April 2012 of the Baku Court of Appeal. The appellate court, endorsing the reasoning of the first-instance court, additionally noted that the expert report dated 6 October 2011 had not estimated the average market value of properties on the basis of the price of properties located the area in which the demolished buildings were located, but rather on the basis of the price of properties located in a different area. It also dismissed a letter (submitted by the applicants) from a private company that indicated that the market value of properties located in the same area was between AZN 2,500 and 3,000 per sq. m, holding that it had not been submitted for examination by the first-instance court.
8. The applicants lodged a cassation appeal, arguing, inter alia, that the properties referred to in the first report commissioned by the court were located ten metres away from their properties and that that report should have therefore been relied on in the determination of the market value of their properties. By a final judgment of 2 August 2012, the Supreme Court dismissed the applicants’ cassation appeal.
9. On an unspecified date, the applicants were paid in full the amounts awarded by the domestic courts.
10. The applicants complained that the de facto expropriation (by way of demolition) of their properties had amounted to an unlawful and unjustified interference with their property rights under Article 1 of Protocol No. 1 to the Convention. They further complained that they had not been paid any sum for the plots of land underlying/attached to the building. The applicants further complained under Articles 6 and 8 of the Convention about violation of their right to a reasoned judgment and their right to respect for their home.
THE COURT’S ASSESSMENT
(a) The plots of land underlying/attached to the building
11. The Government argued that the plots of land underlying/attached to the building in which the applicants’ flats had been located had not constituted their “possessions”. The applicants disagreed.
12. The Court has held that the land underlying apartment buildings is in the common, shared ownership of the owners of the apartments; such owners do not have the right to divide in kind or to sell their shares, and therefore such shares cannot be regarded as constituting separate “possessions”, constituting instead one whole property with the apartment (see Bagirova and Others v. Azerbaijan, nos. 37706/17 and 5 others, § 38, 31 August 2023). Therefore, the applicants’ complaint concerning the plots of land is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 (a) and must accordingly be rejected, pursuant to Article 35 § 4.
(b) Residential properties
13. It is undisputed that the demolished flats had been in the applicants’ private ownership (see the appended table). However, the first applicant asserted that her flat had measured 229 sq. m, while the second applicant asserted that his flat had measured 251.1 sq. m.
14. The Court notes that having regard to the findings of the domestic courts (see paragraph 5 above) and the documents contained in the case file, it cannot be established that the first and second applicants’ above-mentioned assertions in respect of the additional surface area of their respective flats amounted to their “possessions” within the meaning of Article 1 of Protocol No. 1. It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must accordingly be rejected, pursuant to Article 35 § 4 (compare Rahimov v. Azerbaijan [Committee] (dec.), no. 40026/09, § 14, 7 July 2022, and Bagvanov and Others v. Azerbaijan [Committee], nos. 77919/11 and 13 others, § 11, 10 November 2022).
15. The Government argued that the applicants could not claim to be victims of a violation of Article 1 of Protocol No. 1 to the Convention because the domestic courts had established a violation of their property rights by a private company and had awarded them adequate compensation. The applicants did not comment on this issue.
16. In view of the fact that Cooperative B demolished the building in question on the basis of the BCEA’s order of 9 March 2010, the interference with the applicants’ right to property occurred at the point when the BCEA had issued that order. The Court, however, observes that the domestic courts did not find that a breach of property rights had been committed by the State authorities; it further observes that, despite the applicants’ repeated arguments regarding the alleged unlawfulness of the BCEA’s order, they held that the order had been lawful and that there were no grounds to declare it invalid (see paragraph 5 above). In the absence of any such acknowledgement, the Court considers that the applicants can still claim to be victims of the alleged violation (compare Bagirova and Others, cited above, § 41).
17. The Court notes that this complaint (except the parts declared inadmissible in paragraphs 12 and 14 above) is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
18. The general principles concerning Article 1 of Protocol No. 1 have been summarised, inter alia, in Akhverdiyev (cited above, §§ 79-82) and Khalikova (cited above, §§ 134-36).
19. The Court has previously held that the BCEA has no authority to expropriate private property and that its orders in this regard cannot be considered to constitute a lawful basis for expropriation (see Akhverdiyev, cited above, §§ 91-92, and Khalikova, cited above, § 138). In the present case, the Court observes that even though the flats were not demolished directly by the BCEA, it nevertheless (without having the necessary authority) issued the order of 9 March 2010 allowing Cooperative B to demolish and relocate the residents, which resulted in the de facto expropriation of the applicants’ properties. Moreover, no lawful expropriation order was issued in respect of the area where those flats located by the Cabinet of Ministers, which was the competent authority in respect of expropriation matters (see Khalikova, cited above, § 139).
20. The Court therefore concludes that the expropriation of the applicants’ properties was not carried out in compliance with “conditions provided for by law”. This conclusion renders it unnecessary to ascertain whether a fair balance was struck between the demands of the general interest of the community and the requirement of the protection of the fundamental rights of the individuals in question (see Akhverdiyev, cited above, § 99).
21. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
22. Turning to the applicants’ complaints under Articles 6 and 8 of the Convention (see paragraph 10 above), the Court – having regard to the facts of the case, the submissions of the parties, and its findings above – considers that it has dealt with the main legal question raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. The applicants claimed various amounts in respect of pecuniary and non-pecuniary damage, and for costs and expenses (see the appended table). The applicants’ claims for compensation for pecuniary damage also contained claims for an additional 20% compensation under Presidential Decree no. 689 of 26 December 2007 and compensation for hardship under Article 66 of the Law on the Expropriation of Land for State Needs (see Aliyeva and Others v. Azerbaijan, nos. 66249/16 and 6 others, §§ 69-70, 21 September 2021). They also submitted that adjustments for inflation and interest rates should be awarded.
24. The Government asked the Court to reject the applicants’ claims under all heads.
25. The Court observes that the applicants never claimed an additional 20% compensation and compensation for hardship in their complaints before the domestic courts and in their initial application to the Court. It therefore rejects these parts of the claim (compare Akhverdiyev v. Azerbaijan (just satisfaction), no. 76254/11, § 31, 21 March 2019).
26. As regards compensation for the properties in question, the Court considers that the assessment of pecuniary damage in the instant case should be based on the principles adopted in Guiso-Gallisay v. Italy ((just satisfaction) [GC], no. 58858/00, 22 December 2009) and reiterated in Akhverdiyev (just satisfaction) (cited above, § 33).
27. The Court notes that the letter submitted by the applicants to the Baku Court of Appeal, and the second expert opinion which the domestic courts relied on (see paragraphs 6-7 above), merely set out estimated values for the applicants’ flats and lacked any explanation of the methodology used or any references to previous expert opinions or to any other data relied on (compare Maharramov v. Azerbaijan (just satisfaction), no. 5046/07, §§ 17 and 19, 9 May 2019). Furthermore, the applicants have failed to provide any supporting documents in respect of the adjustments claimed.
28. The Court therefore considers it reasonable to proceed on the basis of the expert report of 6 October 2011 (see paragraph 6 above), while taking into account the domestic courts’ findings as regards the surface areas of the applicants’ properties (see paragraphs 5 and 14 above). Taking into account the amounts already received by the applicants, and the applicable statutory interest rates of the Central Bank, it awards the amounts indicated in the appended table to the applicants in respect of pecuniary damage, plus any tax that may be chargeable to them.
29. Ruling on an equitable basis, the Court also awards each applicant 3,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable to them.
30. As regards costs and expenses, the part of the claims in respect of legal costs is not supported by documentary evidence and must therefore be rejected (compare Malik Babayev v. Azerbaijan, no. 30500/11, § 97, 1 June 2017). Having regard to the receipt provided by the second applicant, the Court awards him EUR 38 for postal expenses.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
Done in English, and notified in writing on 20 May 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Oddný Mjöll Arnardóttir
Deputy Registrar President
APPENDIX
List of applicants:
No. | Applicant’s name, year of birth and place of residence | Properties and their sizes | The amounts awarded by the domestic courts/ paid under the sale contract | The amounts claimed by the applicants in respect of a) pecuniary damage, b) non-pecuniary damage, and c) cost and expenses (in euros) | The amounts awarded by the Court in respect of a) pecuniary damage, b) non-pecuniary damage, and c) cost and expenses (in euros) |
1. | Aida Alish gizi ALIYEVA 1961 Baku, Azerbaijan | Flat 209,2 sq. m | AZN 397,480 in respect of pecuniary damage;
AZN 1,000 in respect of non-pecuniary damage.
| a) 2,200,000 b) 50,000 c) 10,500 for legal services | a) 278,000 b) 3,000 |
2. | Yomatdin Malik oglu SHIKHALIYEV 1954 Baku, Azerbaijan | Flat 161,7 sq. m
| AZN 307,230 in respect of pecuniary damage;
AZN 1,000 in respect of non-pecuniary damage. | a) 3,000,000 b) 200,000 c) 10,500 for legal services and AZN 200 for postal expenses | a) 215,000 b) 3,000 c) 38 |
3. | Lyubov Ilyaguyevna YASHAYEVA 1975 Baku, Azerbaijan | Flat 87,7 sq. m | AZN 1,630 and AZN 165,000 (paid under the contract) in respect of pecuniary damage;
AZN 1,000 in respect of non-pecuniary damage. | a) 340,000 b) 50,000 c) 10,500 for legal services | a) 117,000 b) 3,000 |