FIFTH SECTION
CASE OF HASANALI ALIYEV AND OTHERS v. AZERBAIJAN
(Application no. 42858/11)
 
 
 
JUDGMENT
Art 8 • Respect for home • Applicants’ eviction from a State-owned flat allocated to the first applicant on the basis of an occupancy voucher during his military service • No adequate possibility of review of the eviction’s proportionality in the light of their personal circumstances
 
STRASBOURG
9 June 2022
 
FINAL
 
09/09/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hasanali Aliyev and Others v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Mārtiņš Mits,
 Ganna Yudkivska,
 Lətif Hüseynov,
 Lado Chanturia,
 Arnfinn Bårdsen,
 Kateřina Šimáčková, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 42858/11) 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 five Azerbaijani nationals (see the Appendix) on 14 July 2011;
the decision to give notice to the Azerbaijani Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 10 May 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the eviction of the applicants from a State-owned flat and raises issues mainly under Article 8 of the Convention. THE FACTS
2. The applicants’ details are set out in the Appendix. The first two applicants are spouses. The third, fourth and fifth applicants are their sons. All applicants were represented by Mr S. Bagirov and Mr N. Heydarov, lawyers based in Azerbaijan. 3. The Government were represented by their Agent, Ç. Əsgərov. 4. The facts of the case may be summarised as follows. 5. The first applicant is a retired military officer. On 25 September 1984, while still serving in the army, the Ministry of Defence of the USSR granted the applicant an occupancy voucher for a flat in a military settlement in Nakhchivan city (Azerbaijan). It appears that no tenancy agreement was entered into, but the applicants moved into the flat and lived there on the basis of the occupancy voucher. The second and third applicants were registered in the flat in 1986 and 1992 respectively. No information is available in the case file about the residence registration date of the fourth applicant and the initial registration date of the fifth applicant (see paragraph 9 below) in the flat in question. 6. On 2 March 1994 the Julfa District Agrarian Reform Commission decided to allocate jointly to the first, fourth and fifth applicants a plot of land for agricultural use. They were issued with a title deed on 27 October 1998. It appears that on 9 November 2000 the first applicant was issued a certificate of ownership for another plot of land (copies of these documents are not available in the case file). 7. On 4 September 2003 the first applicant was issued with an identity card according to which his residence registration address was in the village of Arafsa in the Julfa district of the Nakhchivan Autonomous Republic (“the NAR”) in Azerbaijan (a copy is not available in the case file). 8. In April 2010 the Nakhchivan District Unit for the Exploitation of Accommodation under the Ministry of Defence lodged a claim with the Nakhchivan City Court asking for termination of the residence registration of the first applicant and his family members at the flat, and their eviction. It argued that there was a need for housing for new military officers and that the first applicant had a house in Arafsa. 9. On 17 May 2010 the first, second and fifth applicants renewed their identity cards, according to which their residence registration was at the address of the flat (copies are not available in the case file). 10. On 26 May 2010 the territorial administration office of the village of Arafsa under the Julfa District Executive Authority (“the JDEA”) issued a certificate (arayış) to the first applicant to present to the first-instance court. The certificate stated, inter alia, that the first applicant (i) had been living permanently in Nakhchivan city; and (ii) did not have any flat or house in Arafsa. 11. On 23 June 2010 the first applicant lodged an objection with the Nakhchivan City Court citing numerous provisions under domestic law and submitting that he did not live in Arafsa. 12. It appears from the record of the court hearing held on the same date that the first applicant submitted that (i) he had been allocated a plot of land in Arafsa while he had his residence registration there, but he and his family had never lived there; (ii) he and his family members had been registered again at the flat on 17 May 2010, and until that time they had had their residence registration in Arafsa; and (iii) they did not have any other place to live. The Nakhchivan City Court granted the claim referring, inter alia, to Articles 2 and 5 of the Law on Registration of the Place of Residence and Stay, Article 12 of the Law on Land Reform and Article 60 of the Housing Code of 1982 (see paragraphs 21, 24 and 26 below). It held that the first applicant had had his residence registration in Arafsa between 4 September 2003 and 17 May 2010. It further noted that the first, fourth and fifth applicants were allocated a plot of land in Arafsa, and that persons who permanently lived at the sovkhoz (State-owned farm) or kolkhoz (collective farm) had a right to receive shares from land belonging to the sovkhoz and kolkhoz. The court concluded that the first applicant had left the flat more than seven years ago and had been registered in Arafsa. 13. The first applicant appealed arguing, inter alia, that (i) the sole reason for changing his residence registration address was because of administrative formalities concerning his pension payments; (ii) the fourth and fifth applicants had attended secondary school in Nakchivan city; (iii) the applicants could not be evicted from the flat without being provided with another living space; and (iv) if evicted, the family would end up on the street. 14. In the proceedings on appeal before the Supreme Court of the NAR, acting as the appellate court, it appears that the second, third, fourth and fifth applicants joined the proceedings as defendants at the appellate court’s instruction and, with the exception of the third applicant, were heard at the court hearing. They submitted that they had been living in the flat since 1984 and had not been registered at another address after their registration there. The first applicant submitted that the third applicant had been working and living with his family in Ukraine since 2009 and had not therefore been able to attend the hearing. 15. On 7 September 2010 the Supreme Court of the NAR upheld the first‑instance court’s judgment without providing any reasoning. 16. According to the applicants, they were evicted from the flat following the court judgment which was delivered at the end of the hearing on 7 September 2010. It appears from a video recording submitted by the applicants that at the time of the eviction the flat was fully furnished and there were household items inside. 17. On 22 October 2010 the first applicant lodged a cassation appeal, signed by him and his lawyer. In addition to his previous arguments, the first applicant argued that (i) the need to accommodate other military servicemen could not justify the applicants’ eviction from the flat; (ii) if they had not been living in the flat in question the claimant would not have brought an action against them asking for their eviction; and (iii) a simple visit to the flat in question could easily have allowed verification of whether the applicants lived there or not. 18. On 8 November 2010 the first applicant entered into a rental contract for another flat for a period of two years. The contract listed the remaining applicants, except the third applicant, as his family members who would occupy the flat. 19. On 6 January 2011 the Supreme Court upheld the appellate court’s judgment, providing similar reasons as the first-instance court (see paragraph 12 above). In addition, it also referred to the renewed identity cards of the second and fifth applicants (see paragraph 9 above). The text of the judgment, in certain parts, referred to the “first applicant and his family members” or “the defendants” in plural while holding that the lower court’s judgment had been lawful. RELEVANT LEGAL FRAMEWORK
Housing Code of 1982, in force until 30 june 2009
20. Articles 10, 28, 48 and 51 of the Code are summarised in Gulmammadova v. Azerbaijan (no. 38798/07, § 18, 22 April 2010). 21. A tenant’s family members had the same rights and obligations as the tenant (Article 53). Premises were kept for temporarily absent tenants or their family members for six months (Article 60). A tenancy agreement was considered to be null and void if a tenant and his or her family members moved to another place of permanent residence, effective from the date of such a move (Article 87). Retired and discharged military servicemen and persons living with them could be evicted from residential premises in military towns by granting them another living space (Article 93). Code of civil procedure of 2000
22. Article 393 of the Code, as in force at the material time, provided that if no appeal was lodged against the judgment of a court of appeal, that judgment came into force two months after its delivery. Law on Privatisation of Housing of 26 January 1993
23. Flats in closed military towns, including service flats could not be privatised (Article 6). Law on Registration of the Place of Residence and Stay of 4 April 1996
24. A place of residence was considered to be, inter alia, a flat or service residence where a person lived permanently or most of the time, on the basis of a lease or tenancy agreement (Article 2). Place of residence of the citizens of the Republic of Azerbaijan was determined on the basis of the national identity card (Article 3). In the case of a change of place of residence, a citizen had to apply to the relevant authority for registration within ten days after his arrival at the new place (Article 5, as in force at the material time). 25. It appears that residence registrations and entries on identity cards concerning a person’s registration address were based, at the relevant time, on a declaration by the person concerned and did not involve any procedure for checking whether that person actually lived at the address in question. Law on land reform of 16 July 1996
26. Under Article 12.1 of the Law, among other categories, persons whose permanent residence was at the kolkhoz or sovkhoz area until the day the Law came into force had the right to receive shares from kolkhoz or sovkhoz land that was to be privatised. THE LAW
ALLEGED VIOLATION OF ARTICLE 8 of THE CONVENTION
27. The applicants complained that their alleged unlawful eviction from the State-owned flat in question had violated their right to respect for their home. They relied on Article 8 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
28. The Government submitted that only the first applicant had lodged a cassation appeal and appeared at the court hearing before the Supreme Court. The remaining applicants had therefore failed to exhaust the domestic remedies. They further submitted that the applicants did not reside in the flat in question and could not therefore claim to be victims of a violation of Article 8 of the Convention. They argued that the claim against the applicants was sent to the first-instance court in April 2010 and that the applicants, who might have been aware of that fact, had arranged to change their residence registration, so that their residence registration was again at the flat on 17 May 2010. 29. The applicants argued that they had been represented by the first applicant in the proceedings before the Supreme Court. They further argued that the flat in question constituted their home and that they had never left it. Non-exhaustion of domestic remedies
30. The Court observes that the cassation appeal was signed by the first applicant and his lawyer (see paragraph 17 above). There is no document in the case file showing that the remaining applicants had given a power of attorney to the first applicant or the lawyer to represent them before the Supreme Court. However, the Court firstly notes that the second, third, fourth and fifth applicants joined the domestic proceedings at the appellate court’s instruction (see paragraph 14 above). Secondly, it appears from the text of the cassation appeal and submissions at the court hearing, that the first applicant and the lawyer contested the lower courts’ judgments and presented arguments on behalf of all of the applicants as a family. The Supreme Court dismissed the cassation appeal and upheld the termination of the applicants’ registration at the flat and the eviction order. In such circumstances, the Court does not see how the submission of a cassation appeal by the remaining four applicants could have led to a different outcome (compare Khamzayev and Others v. Russia, no. 1503/02, § 155, 3 May 2011, and Rastorguyev and Others v. Russia [Committee], no. 11808/15 and 4 others, § 27, 25 July 2017). Moreover, the Supreme Court referred in its judgment to the other applicants as well (see paragraph 19 above) and could be seen as having ruled on the dispute as regards all applicants. In any event, even if it is considered that the Supreme Court did not directly rule on the rights of the second, third, fourth and fifth applicants, it is clear that their tenancy rights were fully dependent on the tenancy right of the first applicant and that, therefore, the essence of the dispute now before the Court was brought to the Supreme Court and it ruled on it. Accordingly, the Court dismisses the Government’s objection. Applicability of Article 8
31. The Court reiterates that the concept of “home” within the meaning of Article 8 is not limited to premises which are lawfully occupied or which have been lawfully established. It is an autonomous concept which does not depend on classification under domestic law. Whether or not particular premises constitute a “home” which attracts the protection of Article 8 will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see Prokopovich v. Russia, no. 58255/00, § 36, ECHR 2004‑XI (extracts)). (a)   The first, second, fourth and fifth applicants
32. The Court notes that the applicants moved into the flat on the basis of the occupancy voucher issued to the first applicant during his military service. It is not contested that they lived in the flat until 2003. According to the applicants, they lived there until their eviction in 2010, whereas the domestic courts concluded that the applicants had left the flat in 2003, mainly on the basis of (i) the renewed identity cards of the first, second and fifth applicants, and (ii) allocation of plots of land in Arafsa to the first, fourth and fifth applicants (see paragraphs 12, 15 and 19 above). While in principle it is not the Court’s role to replace the national courts in their assessment of evidence (see, among other authorities, Turek v. Slovakia, no. 57986/00, § 114, ECHR 2006‑II (extracts)), for purposes of determining whether the flat from which the applicants were evicted was their “home” within the meaning of Article 8 of the Convention, it must examine the relevant facts, including the manner in which the domestic courts came to their conclusions. 33. Under domestic law, citizens’ place of residence was determined on the basis of the information on their national identity cards (see paragraph 24 above). It has been established that the first applicant did indeed have his residence registration in Arafsa between 2003 and 2010 (see paragraphs 7, 9 and 12 above). The Court observes that the applicants’ submissions before the domestic courts concerning the residence registration address of the remaining applicants were not unequivocal; the first applicant submitted at the first-instance court hearing that he and his family members had their residence registration in Arafsa before being registered at the flat again in 2010, whereas the other applicants submitted at the appellate court hearing that they had not been registered at another address (see paragraphs 12 and 14 above). However, the domestic courts did not comment on this discrepancy and the Court does not find it decisive in the circumstances of the present case. 34. In particular, the Court has previously found that the sole fact of being registered at a different address was not sufficient to conclude that the person had established his or her home there (compare Bagdonavicius and Others v. Russia, no. 19841/06, § 89, 11 October 2016, and Yevgeniy Zakharov v. Russia, no. 66610/10, § 32, 14 March 2017). That is so because the factual existence of sufficient and continuous links is determinative for purpose of the concept of “home” under Article 8 (see the case-law cited in § 31 above).When deciding, therefore, whether the flat in question constituted the applicants’ home, the fact that some applicants had been registered at a different address during a certain period cannot be decisive, and all the relevant circumstances have to be taken into account. The Court notes the following in this regard. 35. While the first, fourth and fifth applicants had been allocated plots of land in Arafsa (see paragraph 6 above), it has never been established by the domestic courts that there was any house present on that land. Despite the applicants’ repeated submissions before the domestic courts that they had never actually left the flat, and had no other place to live (contrast Lazarenko and others v. Ukraine (dec.), no. 27427/02, § 60, 11 December 2012), the domestic courts failed to address this argument, and the Government, omitted to indicate, in this connection, what premises could have been their “home” (compare Prokopovich, cited above, § 38). The Court also notes that following their eviction, the first applicant rented a dwelling for his family (with exception of the third applicant) which can be seen as confirmation of their assertion that they did not have a place to live other than the flat from which they were evicted (see paragraph 18 above). 36. Additionally, it appears from the case file that at the time of the eviction the flat was fully furnished (see paragraph 16 above; compare McKay-Kopecka v. Poland (dec.), no. 45320/99, 19 September 2006; Sagan v. Ukraine, no. 60010/08, § 52, 23 October 2018; and Halabi v. France, no. 66554/14, § 43, 16 May 2019). Moreover, by the time the domestic courts examined the claim against the applicants, the first, second and fifth applicants were again registered at the flat in question (see paragraph 9 above). 37. In sum, the Court considers that the flat in question constituted the first, second, fourth and fifth applicants’ home for the purposes of Article 8 of the Convention. Article 8 is therefore applicable. (b)   The third applicant
38. As it appears from the case file, the third applicant had been living with his own family in Ukraine since 2009 (see paragraph 14 above). It has not been argued nor demonstrated that he lived in the flat in question after 2009 and at the time of the eviction (contrast Orlić v. Croatia, no. 48833/07, § 55, 21 June 2011) or that he had been staying there occasionally after he had left for Ukraine (contrast McKay-Kopecka, and Halabi, § 40, both cited above). In these circumstances, the Court does not find it established that the third applicant retained sufficient and continuous links with the flat in question for it to be considered his home (compare Boyko v. Ukraine (dec.), no. 17382/04, 23 October 2007). 39. It therefore rejects the third applicant’s complaint as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention (compare Nasirov and Others v. Azerbaijan, no. 58717/10, § 75, 20 February 2020). Conclusion as regards admissibility
40. The Court notes that, in respect of the first, second, fourth and fifth applicants, 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

41. The applicants argued that in accordance with Article 93 of the Housing Code they could not be evicted from the flat without being provided with another living space. They further argued that they had been evicted from the flat after the hearing at the appellate court, before its judgment came into force under domestic law (see paragraph 22 above). 42. The Government submitted that the fact that the first, fourth and fifth applicants had received land shares in Arafsa proved that they had permanently resided there.

Outcome for Article 8: violation