FIFTH SECTION
CASE OF ALASGAROV AND OTHERS v. AZERBAIJAN
(Application no. 32088/11)
 
 
 
JUDGMENT
(Merits)
 
Art 1 P1 • Peaceful enjoyment of possessions • Unlawful restriction of access by the State to the applicants’ plots of land • Failure to comply with domestic law on expropriation of privately-owned property and compensation
 
STRASBOURG
10 November 2022
FINAL
 
10/02/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Alasgarov and Others v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mārtiņš Mits, President,
Stéphanie Mourou-Vikström,
Lətif Hüseynov,
Lado Chanturia,
Ivana Jelić,
Arnfinn Bårdsen,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 32088/11) 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”) by eighty‑two Azerbaijani nationals (“the applicants” – see Appendix I and II), on 28 April 2011;
the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints under Article 6 § 1 (right to a reasoned decision) and Article 1 of Protocol No. 1 to the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 11 October 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the alleged unlawful interference by the State authorities with the applicants’ peaceful enjoyment of their possessions and raises issues mainly under Article 1 of Protocol No. 1 to the Convention. THE FACTS
2. The applicants’ details are set out in the Appendix I and II. Except for applicants nos. 32 and 77, the applicants are members of nineteen different families. All applicants were initially represented by Mr E. Mustafayev, a lawyer based in Azerbaijan. After the filing of observations by the parties was finalised, several applicants (applicants nos. 3, 6, 9, 14 and 19) appointed Mr A. Layij, a lawyer based in Azerbaijan, as their representative. 3. The Government were represented by their Agent, Mr Ç. Əsgərov. 4. The facts of the case may be summarised as follows. 5. On 10 November 1998 the Absheron District Agrarian Reform Commission issued decision no. 21 allocating plots of land of different sizes to the applicants for agricultural use (a copy of the decision is not available in the case file). On 24 December 1998 the applicants were issued title deeds in respect of those plots of land. It appears from the copies of the title deeds that the head of each family was indicated as the owner of the plot of land (see Appendix I and II – names in bold). The names of all family members also appeared on the deeds, under the heading “family members”. It appears that, despite the fact that the title deeds contained coordinates of each plot of land, the boundaries of the plots had not been established by cadastral survey. 6. In March-April 2008 the Absheron District Mehdiabad Municipality (“the Mehdiabad Municipality”) sent notifications to applicants nos. 18, 51 and 77 referring to Article 70.1 of the Land Code (see paragraph 21 below) and stating that they would be reallocated plots of land in “another place” because their plots were required for the construction of a State building. The Mehdiabad Municipality asked the applicants to present their title deeds to it within three days and warned that if they failed to do so court proceedings would be initiated to invalidate their title to the land. 7. On 30 June 2008 the Absheron District Fatmayi Municipality (“the Fatmayi Municipality”) sold a plot of land of 64.4 ha to E.G. to carry out construction for business purposes. The transfer documents contained no indication of an intention that the land would subsequently be transferred to the applicants. 8. On 31 October 2008 the heads of each of the families (applicants nos. 1, 6, 9, 14, 18, 23, 28, 33, 39, 42, 45, 51, 54, 58, 60, 63, 66 and 72) and applicants nos. 32, 77 and 78, together with other individuals, brought a claim against the Mehdiabad Municipality before the Absheron District Court. They complained that the defendant had occupied their land and had been carrying out construction work in the area. Referring to Article 157.9 of the Civil Code (see paragraph 19 below), the above-mentioned applicants argued that privately owned property could be expropriated for State needs only under circumstances provided for by law and subject to prior payment of compensation. They further argued that they had asked the defendant to present a decision to that effect issued by the relevant authorities, if any such decision existed, but to no avail. They asked the court to order the Mehdiabad Municipality to stop the construction work and to “restore their rights” over their property. 9. On 26 December 2008 the court dismissed the applicants’ claims. It noted that on-site examination of the plots of land in question, in the presence of the parties and a specialist from the State Land and Cartography Committee (“the SLCC”), had revealed that, even though a wall had been constructed around the applicants’ plots of land, it was not situated on their land. It held that the applicants had failed to provide any evidence that their access to their plots of land had been restricted by the Municipality or any other person. 10. On 30 January 2009 the above-mentioned applicants (see paragraph 8 above) appealed, reiterating their claims. The list of the persons lodging the appeal, attached to it, also indicated the number of the family members (114 persons in total including other individuals). 11. On 12 June 2009 the Sumgayit Court of Appeal dismissed their appeal. In doing so, it referred to a letter from the Absheron District Executive Authority (“the ADEA”), sent in reply to the court’s request for information. The letter stated that the plots of land in question were to be used for military purposes and measures were being taken to allocate other plots of land to the applicants by mutual agreement. It also referred to a letter from SLCC of 25 February 2009 stating that
(i) municipal land of the same quality and size had been “allocated” in exchange for the plots of land in question; and
(ii) since the court proceedings were ongoing, the measures would be implemented after the court’s decision. 12. Following a cassation appeal brought by applicants nos. 9, 18, 77 and their representative Mr E. Mustafayev, on 2 November 2009 the Supreme Court quashed the appellate court’s judgment and remitted the case for fresh examination. It noted in particular that the lower court
(i) had based its conclusions on the opinion of the specialist from the SLCC (see paragraph 9 above), which did not reflect the actual situation of the plots of land in question;
(ii) had not examined the applicants’ claims with reference to the coordinates indicated in the title deeds; and
(iii) had failed to order an expert examination despite it being necessary. It noted that the lower court had to examine whether any construction work had been carried out on the applicants’ plots of land and to discuss the necessity of an expert examination to establish the existence of any restrictions on the applicants’ property rights. It appears from the Supreme Court’s judgment that, as well as applicants nos. 9, 18 and 77, applicants nos. 23, 45, 51, 54, 60, 63, 66, 72 and 78 also attended the hearing before the Supreme Court and submitted that they supported the cassation appeal. 13. On 1 February 2010 the applicants’ representative filed several requests with the appellate court. He asked the court to order the SLCC to determine the boundaries of the applicants’ land and show the boundaries to them on the ground, arguing that the SLCC had failed to do that despite the applicants’ previous repeated requests. He further argued that, despite the fact that the applicants had presented photos and video recordings of the area in question, the domestic courts had concluded that the applicants had failed to provide any evidence showing that their rights had been breached. He therefore asked the appellate court to order an expert examination of the plots of land in question. 14. On 1 March 2010 the Sumgayit Court of Appeal dismissed the applicants’ claims. In addition to its previous reasoning, the court noted that the on-site examination of the area had shown that a high stone wall had been erected around the plots of land in question and that construction work was being carried out in the area. At the court hearing, E.M., an employee of the State Border Service (“the SBS”) who was heard as a witness, said that a special building for the SBS was being constructed in the area in question. The court further noted that a plot of land of 64.4 ha had been allocated to E.G. by the Fatmayi Municipality. Lastly, it found that the applicants were not able to show where exactly their plots of land were situated. 15. By a separate decision delivered on the same date, the appellate court dismissed the request for an expert examination. It held that since the applicants were not able to show the exact location of their plots of land and their exact size, there was no need for such an examination. 16. On 1 April 2010 applicants nos. 9 and 18, represented by Mr E. Mustafayev, lodged a cassation appeal arguing that
(i) if their land was required for military purposes, lawful measures had to be taken to expropriate it by paying its market value;
(ii) they did not agree to the allocation of the other plots of land by the Fatmayi Municipality because that land was not of the same quality, and domestic law prohibited the allocation of land in lieu of compensation without the owner’s agreement;
(iii) the appellate court had failed to follow the Supreme Court’s instructions concerning an expert examination;
(iv) the courts had failed to provide reasoned decisions and relied on the letters provided by the relevant authorities (see paragraph 11 above); and
(v) as a result of this situation the applicants’ access to their land had been restricted indefinitely. At the end of the cassation appeal the applicants stated that they were asking the Supreme Court to quash the appellate court’s judgment on behalf of all 114 persons whose property rights had been breached. 17. On 24 November 2010 the Supreme Court dismissed the cassation appeal. It appears from the case file that standard notifications about court hearings before the Supreme Court, which stated that the parties could lodge their objections or explanations in respect of the cassation appeal lodged by applicants nos. 9 and 18, were sent to all the heads of families and to applicant no. 78. A copy of the Supreme Court’s judgment of 24 November 2010 was also sent to them. RELEVANT LEGAL FRAMEWORK
18. The relevant provisions of domestic law on expropriation have been summarised in Aliyeva and Others v. Azerbaijan (nos. 66249/16 and 6 others, §§ 48-71, 21 September 2021). 19. Article 157.9 of the Civil Code provided that private property could be alienated by the State if required for State needs only in the cases permitted by law and subject to prior payment of compensation in an amount corresponding to its market value. 20. Article 247.3 of the Civil Code, as in force at the material time, provided that, subject to agreement with the owner, another plot of land could be allocated to him or her for expropriated land. 21. Article 70.1 of the Land Code, as in force at the material time, provided that land held in ownership or usufruct or on a lease could be expropriated for State or public needs. Under Article 70.8 of the Land Code, the owner or user (or lessee) could be given another plot of land of the same size and quality based on mutual agreement. 22. Regulation 5 of the Regulations on Preparation, Registration and Issuing of Documents on Rights of Ownership and Use of Land (“the Regulations”), approved by the Presidential Decree of 10 January 1997 and in force at the material time, provided that title deeds were to be issued to the head of the family. They had to indicate the name of each family member and the share of the land belonging to him or her. THE LAW
PRELIMINARY REMARKS
23. In the applicants’ observations, their representative, Mr. E. Mustafayev, informed the Court that only twenty-two of the applicants (five families) had maintained their application before the Court. In view of this submission, the Court considers that the remaining applicants may be regarded as no longer wishing to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, it finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of their case. The Court therefore finds it appropriate to strike the application out of the list in so far as it concerns applicants nos. 23-82 (see Appendix II). 24. The Court further notes that Mr Aydin Ramazanov (applicant no. 18) died while the application was pending before the Court and that Ms Kifayet Jafarova (applicant no. 19), his spouse, has expressed her wish to continue the proceedings before the Court. 25. In various cases in which an applicant has died in the course of the Convention proceedings, the Court has taken into account the statements of the applicant’s heirs or close family members expressing the wish to pursue the proceedings before the Court. The Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Mammadov and Others v. Azerbaijan, no. 35432/07, § 80, 21 February 2019, with further references). In view of the above and having regard to the circumstances of the present case, the Court accepts that the deceased applicant’s spouse, Ms Kifayet Jafarova, has a legitimate interest in pursuing the application in the late applicant’s stead. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
26. The applicants complained that there had been an unlawful interference with their right to the peaceful enjoyment of their possessions as provided in Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
AdmissibilityIncompatibility ratione personae

27. The Court observes that Ms Zuleykha Alasgarova (applicant no. 2) died before the application was lodged by the applicants’ legal representative. The Court cannot therefore accept that she had standing as an applicant for the purposes of Article 34 of the Convention. It follows that the application in respect of her is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. Non-exhaustion of domestic remedies
28. The Government submitted that only two of the applicants (see paragraph 16 above) had exhausted all effective domestic remedies. They argued in particular that the remaining applicants had not lodged a cassation appeal. Referring to Saghinadze and Others v. Georgia (no. 18768/05, 27 May 2010), the Government further argued that participation of each applicant in the proceedings before the Supreme Court would have promoted the interests of further factual clarity and legal certainty. They also argued that the applicants could have designated either of the above-mentioned two applicants as their representative by giving them a power of attorney. 29. The applicants argued that in accordance with the Regulations in force at the material time (see paragraph 22 above), title deeds were issued in the name of the head of a family. Therefore, the claims before the domestic courts had been lodged by the heads of each family on behalf of all family members. They further argued that the domestic courts had not contested their standing on behalf of their family members. Moreover, applicant no. 1 had given a power of attorney to applicant no. 18, and applicants nos. 6 and 16 had given a power of attorney to M.T. to represent their interests before the domestic courts in relation to their plots of land. They submitted copies of those powers of attorney which were dated 24 and 27 July 2009 respectively and also contained a note that the powers granted therein could be delegated to other persons. They further argued that applicant no. 1 and M.T. had later concluded a contract for legal services with Mr E. Mustafayev (copies are not available in the case file) and that therefore the representative had lodged the cassation appeal on behalf of applicants nos. 1, 6 and 14 as well. The applicants further argued that the cassation appeal stated that they were lodged on behalf of all 114 persons whose property rights had been breached. Furthermore, the Supreme Court’s letter sending a copy of its judgment listed the names of applicants nos. 1, 6 and 14. 30. It appears from the case file that the initial claim before the domestic courts had been lodged and signed by the heads of each family and by applicants nos. 32, 77 and 78. The applicants argued that this was because under the provisions of domestic law in force at the material time, title deeds were issued in the name of the head of the family. The Court observes from the copies of title deeds submitted by the applicants that the heads of the families were mentioned as the owners of the plots of land, while the family members’ names were also listed (see paragraph 5 above). 31. The Court further observes that the second cassation appeal was signed only by applicants nos. 9 and 18 and their representative Mr E. Mustafayev. There is no document in the case file showing that applicants nos. 1, 6 and 14 had given a power of attorney to Mr E. Mustafayev. As to the argument that those three applicants had given power of attorney to applicant no. 18 and M.T. respectively, who later concluded a contract for legal services with Mr E. Mustafayev, the copies of the contracts not being available in the case file, it is not possible to verify whether applicant no. 18 and M.T. had indeed transferred representation rights in respect of applicants nos. 1, 6 and 14 to Mr E. Mustafayev. The Court notes at the same time that in their cassation appeal applicants nos. 9 and 18 asked the Supreme Court to quash the lower court’s judgment on behalf of 114 persons, which included all the applicants before the Court (see paragraph 16 above). The Government have not commented on these particular submissions of the applicants. The Court notes that while it is questionable whether, in the light of the above-mentioned arguments, it could be accepted that the cassation appeal had been lodged by all applicants by way of representation, having regard to its conclusions below, it does not find it necessary to resolve this issue. 32. It appears from the case file that, while title deeds in respect of the plots of land in question were issued in the name of the head of each family as the paper owner, those deeds concerned the property rights of all family members. It can therefore be said that the legal basis for the property rights of all twenty-one applicants was the same and, consequently, they were affected by the alleged violations of their rights to the same extent. Moreover, their claims and complaints before the domestic courts were clearly the same (contrast Saghinadze and Others, cited above, § 82). All the heads of families complained in their initial claim and in the appeal lodged with the appellate court that they had been unable to freely access their land because of the State authorities’ actions (see paragraphs 8 and 10 above). Applicants nos. 9 and 18, who are the heads of the families whose members are applicants nos. 10‑13 and 19-22, complained of the same issue in their cassation appeal. The Supreme Court dismissed their cassation appeal and upheld the lower courts’ judgments finding that the applicants had failed to provide any evidence that there had been an interference with their property rights. It is true that the families of applicants nos. 1, 3-8 and 14-17 did not join the second cassation appeal. However, in the specific circumstances, the Court does not see how the submission of a cassation appeal on the same legal matter by each applicant, be it the family members or the remaining heads of families, could have led to a different outcome (compare Laska and Lika v. Albania, nos. 12315/04 and 17605/04, §§ 46-47, 20 April 2010; Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, § 46, 28 October 2010; Khamzayev and Others v. Russia, no. 1503/02, § 155, 3 May 2011; and Hasanali Aliyev and Others v. Azerbaijan, no. 42858/11, § 30, 9 June 2022). In particular, the Supreme Court never entered into issues that may be specific to some of the applicants only and the grounds for its judgment concerned all applicants in the same manner. Accordingly, the Court dismisses the Government’s objection. 33. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

34. The applicants argued that they had been de facto deprived of their property without any legal basis and without compensation. They submitted that the domestic courts had failed to order an expert examination of their land, and that all the coordinates of each plot of land had been indicated in the title deeds issued to them. 35. The Government argued that the applicants had failed to provide any reliable evidence before the domestic courts proving that there had been interference with their property rights. They submitted that the applicants had failed to show the exact situation and boundaries of their plots of land during the on‑site examination.

Outcome for Article P1-1: violation