Insufficient justification of court decisions and failure to respond to the parties’ allegations violated the fair trial


Mazahir Jafarov v. Azerbaijan 02.04.2020 (no. 39331/09)

see here


Right to be heard. Rejection of the courts to return the use of the applicant’s apartment to him by removing it from his ex-wife and children, in exchange for the payment of compensation on his behalf.  Insufficient justification for domestic court decisions. According to the ECtHR, the national courts rejected the applicant’s claim, finding that the amount of compensation he had offered was insufficient, without specifying the amount that would be considered sufficient. The courts also did not consider whether the amount offered corresponded to the actual market rental value of the apartment and whether it was sufficient to ensure adequate alternative housing for family members. The ECtHR also ruled that there was no reason not to take into account the applicant’s arguments and evidence, which were at first glance critical to the outcome of the case. Violation of a fair trial (Article 6 (1) of the ECHR).


Article 6 § 1


 In 1991 the applicant and his wife, son and daughter (“the family members”) took up residence in a State-owned three-room flat on the basis of an occupancy voucher issued by the applicants employer, a State-owned company. In 1994 the applicant privatised the flat in question and became its owner with the consent of his only family member who was an adult at the time (his wife), who waived any claims to ownership rights at the time of privatisation. All the family members, including the children, had residence rights in respect of the flat (“right of use”).

In 2007 the applicant and his wife divorced. After the divorce the applicant and his family members continued to reside in the same flat and had frequent domestic conflicts. According to the applicant, on certain occasions the family members either did not allow him into the flat or insulted him. Because of this situation, eventually the applicant had to move out and reside elsewhere. On an unspecified date in 2008 the applicants former wife lodged a claim with the Narimanov District Court against the applicant, seeking a declaration that she had an ownership right to three-quarters of the flat.

On an unspecified date in 2008 the applicant lodged a counterclaim against the family members seeking termination of their right of use in relation to the flat, subject to his making a payment of compensation of 6,000 Azerbaijani manats (AZN) to each of them (AZN 18,000 in total). The applicant contended that the proposed amount would be sufficient for the family members to afford comparable alternative accommodation for a period of at least five years.

On 24 July 2008 the Narimanov District Court dismissed both the claim by the applicants former wife and the applicants counterclaim. As regards the applicants former wifes claim, the first-instance court found that the flat did not constitute common property of the applicant and his former wife because it had not been acquired using their joint family income earned during the marriage, but had been allocated to the applicant from the State housing fund and subsequently privatised by him free of charge. At the time of the privatisation of the flat, the former wife had voluntarily waived any right to a share of ownership of the flat.

As regards the applicants counterclaim, the first-instance courts reasoning began with a reference to Article 228.2 of the Civil Code, which provided for the possibility of terminating family members right of use on the basis of a court decision and subject to the payment of compensation. The court further referred to a decision of the Constitutional Court of 26 September 2007, which stated that such compensation should be sufficient for former family members to live in “suitable alternative accommodation on a continuous basis and for a certain period of time”

 The court did not specify the amount of compensation that would be sufficient. Referring to Articles 14.2, 217.3 and 217.4 of the Code of Civil Procedure (“the CCP”).

The applicant appealed, arguing that the first-instance court had failed to carry out an assessment of what would be an adequate sum of compensation to be paid in his case and had not provided any substantiated reasons for its finding that the proposed compensation was insufficient, in breach of his right to a reasoned decision both under the domestic law and under Article 6 of the Convention, as well as in breach of his property rights. He also argued that, if there was insufficient evidence of the “real market value” in order to determine the compensation, the court could have appointed an expert to carry out a relevant assessment.

It appears from the documents in the case file that, during the appellate proceedings, the applicant submitted to the appellate court a letter from an NGO called Property Market Participants, dated 20 September 2008, which stated that, according to their assessment, the current market value of the monthly rent for two rooms of the flat in question was 230 United States dollars (USD) (approximately AZN 187 at the relevant time).

On 14 October 2008 the Baku Court of Appeal upheld the firstinstance judgment, reiterating the first-instance courts reasoning 

The Baku Court of Appeals judgment was silent as to the evidence submitted by the applicant.

The applicant lodged a cassation appeal with the Supreme Court, arguing that the lower courts judgments were unreasoned. He noted that neither lower court had provided reasons for finding that the proposed amount of compensation was insufficient, and the appellate court had failed to assess the evidence that he had submitted to it and had not provided any reasons for that failure in its judgment. He reiterated his submission that the amount that he had proposed was sufficient for his family members to reside in alternative accommodation in comparable conditions for at least five years.

On 24 February 2009 the Supreme Court upheld the lower courts judgments, briefly reiterating their finding on insufficiency of the compensation, without expressly responding to the applicants abovementioned arguments. In its decision, the Supreme Court referred to Article 228.2 of the Civil Code and the Constitutional Courts decision of 26 September 2007.


Article 6

The first trial court rejected the applicant’s counterclaim, finding that the amount of compensation did not correspond to the actual rental value of the apartment and was not in compliance with national law.

Due to the ambiguity and brevity of the first instance decision, it is impossible to ascertain whether the court rejected the applicant’s claim, deeming the amount of compensation insufficient, having assessed the amount that would have been considered sufficient. It also raises the question of whether he has fully or partially dismissed the action for lack of credible evidence submitted by the applicant or if he has not made any assessment. The trial court did not justify its decision that the proposed amount of compensation “did not correspond to the market rental value” and did not provide any indication of what the market value was. Under these circumstances, the ECtHR finds that the Court of First Instance’s decision was not sufficiently reasoned.

The applicant submitted new evidence in support of his claim before the Baku Court of Appeal, in order to prove that the proposed compensation was sufficient. However, the appellate decision fell silent on the evidence it provided, making it impossible to ascertain whether it had in fact been taken into account, and failed to state the specific reasons for not naming it, or if it indirectly refused to accept it as evidence. Given that the evidence on the cost of renting such accommodation was very important in assessing the appropriate compensation in the present case, the Court of Appeal was required by the Convention to provide a reasoned assessment in relation to such data.

It is true that the Baku Court of Appeals stated that, rejecting the appeal, it had taken into account three factors: (i) that the apartment had originally been distributed according to the size of the family, (ii) that the parties had been staying at the accommodation from the first time stayed there and (iii) that family members had no other accommodation options. However, he failed to provide any explanation as to how these factors led to the approval of the first instance decision that the proposed amount of compensation was insufficient and contrary to the law. In addition, in order to determine the “market value” in order to determine the amount of compensation, there are more important factors, such as the extent and condition of the said residential area, its territorial position, the amount of rent in comparable real estate, personal financial situation of the parties and so on. However, none of the national courts took them into account.

In addition, both the Court of First Instance and the Court of Appeal failed to respond to the applicant’s argument regarding the time period (5 years), which, in his view, could be considered reasonable for the calculation of compensation, especially in the present case.

Finally, regarding the reasoning given by the Supreme Court in its decision, the Court points out that the Supreme Court did not respond to the applicant’s relevant arguments regarding the lack of adequate reasoning by the lower courts, but upheld the lower court’s decisions. first repeating their findings.

In short, the Court held that the decisions of the national courts, in this case, did not sufficiently justify their finding that the amount of compensation proposed was insufficient and incompatible with the law, but also did not provide sufficient reason why they did not take them into account. arguments and evidence provided by him, which at first sight seemed to be about the outcome of the case.

In view of the above, the ECtHR found that the applicant’s right to a reasoned decision had been violated in the present case. Consequently, there has been a violation of Article 6 § 1 of the Convention. The applicant did not file a claim for non-pecuniary damage (edited by


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