Eviction from the applicant’s only residence without examining the proportionality of the intervention! Violation of the right to housing
JUDGMENT
Ahmadova v. Azerbaijan 18.11.2021 (app. no. 9437/12)
SUMMARY
Loss of residence through eviction. The most extreme form of interference with the right to respect for one’s home.
The case concerned an order for the demolition of the applicant’s residence and the eviction of her and her daughter, without payment of compensation.
The applicant purchased a house in the Sabail district of Baku in 2007 without complying with the legal procedure for drawing up a notarial deed and registering it in the land registry. Domestic courts ordered her evicted from her home, finding it to be an arbitrary construction, built on state-owned property allocated for oil extraction. The demolition and eviction decisions have not yet been executed and the applicant is still living in the house. She filed a complaint for violation of the right to property and respect for her residence.
As regards property rights, the ECtHR found that the applicant’s property status, which it had known from the outset, was not sufficiently substantiated and strong enough to be equivalent to ‘property’ within the meaning of Article 1 of the First Additional Protocol. Dismissed the appeal against this article as inadmissible.
Regarding the right to respect for residence, he stressed that eviction is the most extreme intervention and the proportionality of the measure should be able to be determined. It found that the national courts had focused solely on the fact that it was an arbitrary construction built on state-owned land and that the applicant had no recourse to obtain a comprehensive examination of the proportionality of the intervention. Finally, it was not found that there was a procedure for considering alternative housing accessible to it.
The ECtHR ruled that any eviction of the applicant would violate her right to respect for her place of residence (Article 8), and ruled that acknowledging the violation was in itself a just satisfaction.
PROVISIONS
Article 8
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Sayyara Nemat gizi Ahmadova, is an Azerbaijani national who was born in 1955 and
lives in Baku.
The case concerns orders to demolish the applicant’s house and evict her and her daughter, without
compensation.
The applicant purchased a house in the Sabail District in Baku in 2007. In 2010 the courts upheld a
claim brought against the applicant by the subsidiary of a State oil company seeking the house’s
demolition and her eviction, finding that it was an unauthorised construction built on a State-owned
plot of land assigned for oil extraction. The demolition and eviction orders have not yet apparently
been enforced and the applicant still lives in the house.
Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on
Human Rights and Article 8 (right to respect for private life and the home) of the European
Convention, the applicant complains about the demolition and eviction. She alleges in particular that
the land was not urgently needed, whereas she and her daughter will become homeless if evicted.
THE DECISION OF THE COURT…
Article 8:
The applicant had lived in the house with her daughter after purchasing it in 2007. Therefore, the house had been the applicant’s home within the meaning of Article 8.
The eviction order, not yet enforced, had been upheld by a final court decision and had become enforceable, and the applicant had no further legal recourse against it. Accordingly, there was an interference with the applicant’s right to respect for her home that was in accordance with the domestic law and pursued the legitimate aim of protecting the rights of Azneft.
It remained to be determined whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”.
While ordering the demolition of the house and the applicant’s eviction, the domestic courts had focused exclusively on the fact that it had been an unauthorised construction built on State-owned land. Even though the applicant had argued in her appeals that the house in question had been her only home and that she and her daughter would become homeless if they were evicted as they had no means to buy another house, the domestic courts had entirely ignored this point and had failed to weigh the competing interests against each other.
Furthermore, neither Azneft, in its claim brought before the domestic courts, nor the Government, in their submissions, had argued that the land had been needed urgently for petroleum operations or any other development purposes.
The Government had not argued that the applicant could have obtained a proper examination of the proportionality of her eviction by using other remedies under domestic law. Domestic law had provided for the possibility to request the courts to delay the enforcement of a final judgment or for the bailiffs to postpone the execution of a judgment. However, even if the applicant had used this avenue, all she could have obtained would have been a temporary reprieve from the effects of the eviction order rather than a comprehensive examination of its proportionality.
Finally, it had not been claimed either that there had been a procedure for considering alternative housing accessible to the applicant. Moreover, the applicant did not appear to belong to any specific category of persons who had had the right to apply for State-provided housing. The Government had not argued either that a temporary stay at a social shelter could be seen as a solution satisfying the proportionality requirement in the particular circumstances of the present case.
In sum, the applicant had not been afforded a procedure enabling her to obtain an adequate review of the proportionality of the interference, in the light of her personal circumstances.
Conclusion: violation in case of eviction without a proper review of its proportionality in the light of the applicant’s personal circumstances (unanimously).
Article 41: finding of a violation sufficient for non-pecuniary damage; claim for pecuniary damage dismissed
