In Azerbaijan the Rights of Citizens to Property are not Protected
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The demolition of the house-office of the Institute for Peace and Democracy on August 11, 2011 |
| The houses on 12 streets in the center of the Baku City were destroyed in 2016-2017 |  |
The Baku Administrative and Economical Court No. 1
Criminal case № 2-1(81) 201/2018
January 26, 2018
Judge: Tahira Asadova
Applicants: Vasif Guliyev, Solmaz Guliyeva, Viktor Sapkunov, Maxim Tyshin, Bahruz Agalarov, Kamala Mustafayeva, Matanat Abdulrahmanov, Mirzali Suleymanov, Shirmai Amirkhanova, Islam Huseynov, Mansur Alekperov, Saringul Agalarov, Zumrud Balakishiyeva and her representative Afiyaddin Balakishiyev
Respondent: Nasimi District Executive Authority
Representative of defendant: Khafiz Aberkarov
Stranger to the litigation: Gloria Palas Housing Cooperative
Mass demolition of houses and non-residential premises, a violation of the property rights of citizens of the Azerbaijan started in Baku from 2010 onwards. In the city center houses were destroyed on Fizuli, Shamsi Badalbeyli, Rasul Rza, A. Topchubashev, Mirza-aga Aliyeva, N. Yusifbeyli, Vidadi, Abbas Sahhat and other streets. More than 60 thousand citizens were unlawfully deprived of their property (apartments, houses) in the center of Baku in 2010-2011. On the site of the demolished houses the authorities laid out parks or built shopping centers. For example, the so-called “Winter Park” was built in 2012 on the territory of Fizuli, Sh. Badalbeyli, Mirza-aga Aliyev streets, etc.
The citizens did not want to leave their homes, in which they and their parents had lived for decades and to which they had legal title according to the legislation of Azerbaijan. Especially, when the public authorities paid (sometimes refused to pay) scanty compensations – 1.500 manat per square meter. People who had no place to go remained in their apartments. Then, under the leadership of the police (sometimes even led by the police chiefs of the central districts of Baku) workers with bulldozers and construction cranes demolished houses and inhabitants of the houses were literally being thrown on the street with their personal possessions. Often, personal possessions of inhabitants were looted or broke.
How single women were thrown from their apartments, how they were beaten, whole units of the police invaded into apartments of inhabitants and demolished houses of citizens together with their property, you can see in this video: Property Right Goes Unprotected in Azerbaijan. – http://www.publicdialogues.info/en/node/356
The demolitions were carried out by the decision of Executive power of Baku. During the period 2015-2017 more than 300 thousand inhabitants of Baku were unlawfully deprived of their property. From 2015 on the territory of the demolished houses the authorities stopped laying out parks but started a construction of new buildings. At the same time, the executive authorities signed contracts with various construction cooperatives on construction of new buildings.
On February 25, 2016, the Azerbaijani Cabinet of Ministers adopted the Resolution on additional action to facilitate the socio-economic development of Surakhany, Nasimi, Khatai, Narimanov, Sabayil, Yasamal, Khazar districts of Baku and Pirallahi peninsula adjacent to the mainland of Azerbaijan. According to the paragraph 1.1. of this Resolution, 226 of residential buildings located on N. Yusifbeyli and Abbas Sahhat streets in Nasimi district of Baku were subject to demolition. According to the paragraph 1.3. of this Resolution, the houses in a dangerous condition should be destroyed. And inhabitants who had been relocated from these houses are to be given financial compensation for temporary rent of apartments and will later be provided with apartments in the new houses in place of the old. On June 19, 2017, the State Agency for Safety Control of Construction of the Ministry of Emergency Situations approved the conclusion that 226 houses on those streets are in an emergency condition.
On October 21, 2017, the Nasimi District Executive Authority of Baku issued a directive instruction that the houses through the streets of Han Shushinski, Abbas Sahhat and on the crossing of N. Yusifbeyli Street and Azadlyg Avenue should be demolished due to their bad condition. The lands under these houses should be leased to Gloria Palas Housing Cooperative and on the site of old houses new buildings should be built. Gloria Palas Housing Cooperative was responsible for the contract with residents. According to this contract, residents had to be given financial compensation for temporary rent of apartments and after completing of new buildings to be relocated to a new apartment.
It should be noted that the resolution of the Cabinet of Ministers did not include private houses. However, all houses started to be demolished. Inhabitants from a number of houses on N. Yusifbeyli and Abbas Sahhat streets had the serious reasons of grievances with the specified normative acts of government institutions. For protection of their property rights inhabitants have appealed to court with the claim for annulment of the resolution of the Nasimi District Executive Authority of Baku from October 21, 2017.
During the trial, it turned out that the Nasimi District Executive Authority (head Asif Askerov) without notifying the owners of the property, to lease the land plot of 1,2 hectares on which these houses are located to Gloria Palas Housing Cooperative. On May 16, 2016, the Nasimi District Executive Authority unilaterally entered into the lease of the land with Gloria Palas Housing Cooperative. However, the inhabitants found out about this contract only on January 12, 2018. The claimants considered this land lease illegal, because such a contract should be signed by owners of the houses and must be registered in the Joint Property Committee. The Nasimi District Executive Authority had no right to enter into agreement with the stranger to the litigation (Gloria Palas Housing Cooperative) because it did not own the land plot on which the property of claimants is located. The applicants claim that the above-stated Gloria Palas Housing Cooperative put pressure on the owners of the apartments in the houses on Abbas Sahhat, N. Yusifbeyli and H. Shushinskiy streets, threatening with demolitions without the consent of residents. As a result of strict pressure some residents had serious stress and got cardiovascular diseases, diabetes. One of the applicants Khalsa Osmanova had a stroke after the meeting with officials of the Nasimi District Executive Authority after which she died. Further, her daughter Shirmai Amirkhanova acted as the right successor of H. Osmanova.
On January 26, 2018, the Baku Administrative and Economical Court No. 1 had issued an order for dismissal of the claim for compensation.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. According to the article 13 (I) of the Constitution of the Azerbaijan Republic, “the property in the Azerbaijan Republic is inviolable and is protected by state”. Article 29 (I) of the Constitution states that everyone has the right to own property.
In the Civil Code of the Azerbaijan Republic there are articles that regulates the buy-out of property for public use. Thus, according to the article 157.9. of the Civil Code, “private property may be alienated by the State if required for State needs only in the cases provided for by the Law of the Azerbaijan Republic “On the Expropriation of Land for State Needs”, for the purposes of building and installing roads or other communication lines, ensuring the reliable protection of the State border within the border strip, constructing defence and security facilities, or constructing mining-industry facilities of State importance.”
According to the article 152 of the Civil Code of Azerbaijan Republic, “The right of ownership is legally recognized and protected by the State, use and dispose of property (thing) at one’s discretion. An owner may freely possess, use and dispose of property (thing) within the limits set by legislation or otherwise. In particular, by contractual restrictions an owner can use and dispose of them, can allow possession of this property by others, make at discretion any actions concerning the property belonging to them, if such actions do not violate the rights of neighbors or the third parties or there is no abuse of the right”.
During the trial it was revealed that the Gloria Palas Housing Cooperative had provided to the court the Act of accident of buildings prepared by the Central State Inspectorate of the State Construction Control Agency under the Ministry of Emergency Situations. In this Act, the Ministry does not indicate what standards had been followed during the preparation of the Act. According to the “Rules for monitoring of buildings and constructions” the accident rate of buildings and constructions occurs in 3 stages:
• the preparation for the survey;
• a preliminary (visual) survey;
• detailed (instrumental) survey.
In addition, either the owner of the building and a construction or public authority of executive power must apply for determination of accident rate of the building if this building or a construction is owned by the state. The court adopted the Act of accident rate of buildings as “the report of accident rate”, which is incorrect. The court considered the conclusion of the Ministry of Fire Protection as “the conclusion creating the right for demolition”, which is also incorrect.
It should be noted that the Gloria Palas Housing Cooperative did not provided to the court the main conclusion on building permission from the Ministry approved by the Committee of Architecture and Urban Planning. The court ignored the lack of this important document.
According to the Law of the Azerbaijan Republic “On the State Registry for Immovable Property”, “in the Azerbaijan Republic lands can be leased directly by the decision (consent) of owners or by their authorized bodies through land tenders or auction. Direct transfer of private leased lands, which is based on treaty, concluded between lessor and lessee and approved by a notary”. As mentioned above, the contract was not concluded between owners or their authorized bodies, but between the Nasimi District Executive Authority of Baku who did not have property rights of these land plots and Gloria Palas Housing Cooperative.
In Order of the Nasimi District Executive Authority of Baku from October 21, 2017 mentioned the document of Committee of Architecture and Urban Planning of the Azerbaijan Republic from October 12, 2016 which allegedly gives grounds for demolition of the hazardous houses and building new ones in its place. However, this document was not provided to the court. Instead of this document, the letter from October 12, 2016 was provided to the court. In this letter, the chairman of Committee of Architecture and Urban Planning of the Azerbaijan Republic Abbas Aleskerov reported to the chief the Nasimi District Executive Authority Asif Askerov that “the draft of project is being approved”. As we can see, the building permit was not granted.
The violation of the national legislation led to violation of the Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, according to the article 1 of the Protocol No. 1 to the European Convention, “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.
The seizure of property must be allowed by the law. Above we have listed the violations of national legislation which the court ignored. The owners were deprived of their property rights, which was not in their interest. Therefore, a fair balance between private and state interests was absent.
It in turn didnot correspond to decisions of the European Court of Human Rights (ECHR). In the judgement of ECHR in the case of Akhverdiyev v. Azerbaijan on January 29, 2015 is said: “Article 1 of Protocol No. 1 contains three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest. These rules are not, however, unconnected: the second and third rules are concerned with particular instances of interference with the right to the peaceful enjoyment of possessions and are therefore to be construed in the light of the principle laid down in the first rule” – https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-150772%22]}In the judgment of ECHR in the case of Khalikova v. Azerbaijan on October 22, 2015 is said: “As to the first condition, the Court reiterates that Article 1 of Protocol No. 1 requires that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph of that Article authorises the deprivation of possessions “subject to the conditions provided for by law”. The law upon which the interference is based should be in accordance with the domestic law of the Contracting State, including the relevant provisions of the Constitution. Moreover, the rule of law, one of the fundamental principles of a democratic society, is a notion inherent in all the Articles of the Convention”. – https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-157964%22]}The Illegal actions of executive authorities have caused gross violation of the property rights of the inhabitants of the demolished houses who appealed to the court for protection of their rights. But the judge Tahira Asadova issued the illegal and unreasonable ruling, thereby supporting and acquitting the illegal actions of executive authorities.
The mass demolition of houses, architectural and historical monuments which began in Baku in 2010, continues today and with it the extensive violations of fundamental human rights continue