The Individual and State Interest Opposed in Azerbaijan’s Illegal Construction Crisis – Proportionality as the Starting Point of Humane Justice
Ahmadova v Azerbaijan (App. No. 9437/12), is a property case, decided by the European Court of Human Rights (hereinafter: the Court) on the 18th of November, 2021. The Court was tasked with balancing the applicant’s home and family life rights with the State’s oil company, Azneft’s, industrial interests and property rights. The applicant’s home was built on what was seemingly state-owned land, according to a City Council document dating back to 1962, when Azerbaijan was still a Soviet Republic.
The case highlights the decades of uncertainty in the housing sector that followed Azerbaijan’s separation from the Soviet Union.
This legal uncertainty caused an illegal construction crisis, which is rooted in the privatization of property. In its first phase, the State’s policy was to freely hand out property and land to people, with no further information on the legal and financial implications of such transfers. The regulatory environment was unclear as Soviet law was still in use. As a result, many took matters into their own hands
– instead of initiating the lengthy procedure of obtaining a building permit, many families resorted to illegal constructions.
The most common cases occur either by illegally extending permitted buildings or, like in the applicant’s case, squatting on another’s land, without the necessary permits. This case sets an important precedent for domestic courts on how to deal with the extensive illegal construction crisis, while respecting the tenants’ human rights.
Facts and Domestic Law
The applicant and her daughter resided in an unauthorized construction on state-owned land, assigned for petroleum operations by Azneft. In 2010, Azneft commenced proceedings against the applicant, with the intention of evicting the tenants and demolishing the building concerned. The civil code of Azerbaijan regulates the position of those living in unauthorized properties as follows: pursuant to §1, article 180§2 the person in charge shall be unable to obtain the title of ownership and rights conferred therefrom. Under §4, a court may order for the demolition of the property. The applicant could not claim to have made the purchase in good faith – her ownership had not been appropriately registered and approved by a notary, as required by the constitutive registration system for the transfer of immovables in Azerbaijan. Thus, her occupation of the property was considered squatting on the land, prohibited under article 111 of the land law. Article 111 authorizes the demolition of buildings on squatted land, pursuant to a court order, without compensation. Based on this article, in conjunction with the civil code, the Sabail District Court issued the order for eviction and the demolition on the grounds that the applicant should have been aware of the illegal nature of the property.
Following fruitless appeals, the applicant submitted the case to the Court for review under article 1 of Protocol No. 1, peaceful enjoyment of property, in conjunction with article 8, the right to respect for home and family life, of the European Convention on Human Rights (hereinafter: the Convention).
The applicant argued that the demolition of the house, without compensation and at her expense, would amount to a disproportionate interference under article 1 of Protocol no 1. The right to peaceful possession of property is not absolute – it can be restricted in cases of public interest, when subject to conditions provided for by law, to be read in light of general principles of law. As a counterargument, the government raised the issue of non-compliance with the requirements for the transfer of immovables. The contract of sale included a section meant for the notary to fill, but it was left blank – a fact pointing to possible awareness concerning the lack of relevant documents.They argued that the land should be vacated, because there should be no residential buildings in an industrial area, as established in a Sabail City Council Decision.
The applicant responded by citing another City Council decision from 2001, which allocated a part of land designated for industrial purposes in 1962 for residential use. The applicant asserted that her house was situated on this plot, among other residential buildings on the land. Her stay in the house and on the land had been acknowledged – which, in turn, had raised reasonable expectations under article 1 to preserve the status quo. During her stay, there had been no interventions on the part of the authorities. Additionally, the parent company of Azneft, SOCAR, by issuing utility bills to her, had also tolerated her tenancy in the house. Moreover, she argued that evicting her would lead to uncertainty, and an interference with the social and family life that she had established in the building.
The Court interprets “possession” broadly – its definition is not only limited to an existing possession, but can also cover assets and claims towards which the applicant may have a legitimate or reasonable expectation of obtaining effective enjoyment of a property right. Thus, despite not having the title of ownership under domestic law, the applicant could still enjoy the protection provided by article 1 of Protocol No. 1, should her expectations fall within the scope of the above mentioned categories. A legitimate expectation may only be derived from a legal act, meaning it is not applicable to the case. The “reasonable” criterion requires the circumstances of the case to be considered as a whole, in order to determine whether they conferred a title to a substantive interest on the part of the applicant.
According to the Court, there was no reason for the applicant to believe that the domestic law on the transfer of property would not apply to her. While in the case Öneryildiz v Turkey, which also concerned an eviction on the grounds of an unauthorized construction, the Court took the provision of utility services into account, in the Ahmadova case, the Court did not. There are significant differences between the cases. Firstly, in the present case, the legal status of the house was not still disputed and the applicant had not paid any taxes on the house. Secondly, the demolition order was within a reasonable timeframe and therefore, allowed. Finally, the absence of a reaction on the part of the authorities should not have led the applicant to believe that no proceedings could be brought against her. This expectation did not create a substantial and weighty proprietary interest and thus, failed to amount to a possession within the meaning of article 1 of protocol No. 1.
Similarly to the term ‘possession’, the concept ‘home’ has an autonomous meaning under article 8 of the Convention. It is not dependent on the classification established under domestic law and thus, can entail a wider range of dwellings, whether lawful or not. The determinant factor is the existence of sufficient and continuous links to the building in question. The applicant has established this and therefore, together with her daughter, she had adequately established that her family life in the house falls within the ambit of article 8.
Despite the fact that the eviction order had not yet been enforced, it remained enforceable, which amounted to an interference of the applicant’s rights under article 8. The Court proceeded to analyze the justifications for the interference.
The above mentioned articles of the civil code and land law satisfied the Court that the measure was in accordance with the law. Despite the applicant’s arguments, the Court held that the interference pursued a legitimate aim, albeit not the economic wellbeing of the state as argued by the government, but the protection of legitimate interests of Azneft.
The interests at stake proceeded to be weighed in the necessity test. The applicant raised the issue of proportionality as the fact her eviction would lead to homelessness was completely ignored by domestic courts. Moreover, SOCAR had neither used the land since 1962, nor was it urgently needed for public use. The Court’s case law suggests that mere judicial review is not enough to satisfy due diligence, but rather there should be a real possibility of a case-by-case review. Yordanova and Others v Bulgaria listed factors that could be of relevance, including knowledge of the unlawfulness of the building, the nature and degree of illegality at issue, the interest that is protected by the demolition and whether there is alternative accommodation available to the persons affected. Overall, the least severe action should be taken, while providing adequate reasons.
In the light of the criteria above, the Court noted that the domestic courts based their judgments solely on the fact that the building was on state-owned land, with no regard to the applicant’s personal circumstances; however, the government and Azneft did not argue that the land was urgently needed for industrial operations. Thus, the proceedings at the domestic level failed to give adequate reasons for the proportionality of the measure. No alternative measures were considered, nor was there an opportunity for alternative housing, because the individual did not qualify as a member of a vulnerable group. However, the Court has previously ruled that the loss of a home is the most serious form of interference, whether the person belongs to a vulnerable group or not. Therefore, the Court held that the eviction and demolition orders were not necessary in a democratic society under article 8 of the Convention due to the lack of a proportionality review which properly assessed the applicant’s personal circumstances.
The question whether the house in question was on the plot of former industrial land subsequently allocated to residential purposes was left unresolved. The two pertinent City Council Decisions only raised further questions. Firstly, the 2001 Decision was dismissed by the Court, on the grounds that it was impossible to see whether the house was located on the re-allocated plot of land. Secondly, the 1962 Decision to allocate the land for industrial use was approved as late as 2008, a year after the applicant moved in, which may pose a threat to their legal certainty. Moreover, the land allocation system in use when the decision was taken was completely different from the one adopted in the 1990s, and still in use in 2008, both practically and ideologically.
The case is yet another reminder of the importance of a comprehensive proportionality review when it comes to the right to respect for one’s home. Personal circumstances weigh heavily in this regard, as a home is of “central importance” to an individual’s physical and moral integrity, and a secured place in the community. The state is thought to represent the will of the people and in case of unauthorized constructions, the right to property of others must be protected.
Balancing combating illegal activity and upholding the law, with humane justice can be difficult, but the proportionality test provides a way for the Court to come to a fair and reasonable conclusion.
For a long time, the state did not establish sanctions for illegal constructions. The consequences can be seen in the architecture of the capital today – approximately 500,000 unauthorized constructions are located in Baku alone. Azerbaijan has recently announced its intention to reform the urban scenery in the city. One can only wonder what this means to the homes established in times of uncertainty and the physical and moral integrity of the people living there.