Virtual Parallels
Right to Property in Armenia and Azerbaijan
Right to Property in Armenia and Azerbaijan
Ist the right to property of the citizens of Armenia and Azerbaijan protected legislatively and in pratice?
Under what circumstances is the right usually violated and what chances do the citizens have to get justice in their own countries?
This Is not How a State Should Be Built
- How well are the rights of the RA citizens protected legislatively? What is the statistics of violations of the right to property for the citizens of Armenia in the last five years?
- The right to property in Armenia is guaranteed by Article 31 of the RA Constitution and the European Convention on Human Rights. According to the legal acts, the seizure of property for public and state needs may take place only in exceptional cases, in case there is a prevailing public interest and in the manner established by the law, following an equal compensation.
In 2004 the eviction of 5000 residents from the avenue (currently – the North Avenue in Yerevan) happened by the Governmental decree, at that time there was no relevant law. The citizens were only interested in the compensation. If an equal compensation were provided, there would be no need to speak of compliance with the law. But this never happened. Not achieving justice here, the citizens began to go to the European Court. The European Court of Human Rights began to satisfy the claims, because, as I have already mentioned, the alienation of property took place not according to the law, but by the governmental decree.
In 2006 the Government promptly launched the adoption of the RA Law on Property Alienation for Public and State Needs. A last-minute amendment to the draft was made with a provision that established the regulation of all the previously signed contracts between builders and citizens. That is to say, the law was given retroaction in order for citizens not to go to the European Court anymore and not to get compensation from state budget. Otherwise, these compensations would be quite an unmanageable burden for the state. This is how the Government solved the problem if, in fact, the impoverishment of the citizens could be considered a solution.
In our country the right to property is in most cases violated in the context of prevalent public interest. I am not against development and the improvement of the capital. But the builders are never selected in a competition, they are connected with the municipality with corruption links, as a result of which the citizens are the ones to suffer.
And here are the examples. In 2007, according to the decree passed by the Government, 345.000 square meters in Yerevan (the districts of Kond, Kozern, Firdus and some sections of Agatangheghos Street) were announced territories of prevalent public interest.
Glendale Hills Ltd. concluded an agreement with 50 residents from the Firdus area by which they were supposed to be given new apartments in the buildings to be built in the place of the houses pulled down in three years’ time. The three years have passed, and so far only the foundation pit has been dug. Similar illegalities can be detected in the territory of Kond. The construction company, Downtown Yerevan, signed contracts with 150 residents and after the construction of 4 – 5 levels of the building declared itself bankrupt. Many of these citizens are currently living in rented apartments, and they do not know how their problem will be solved.
- Who most often seizes residents’ property (land, houses) in violation to the law? What is the mechanism of property seizure from residents?
- I think that the violation of the right to property is largely conditioned by the action and inaction of the government in the person of the municipality. As I have already mentioned, the builders are never selected in a competition. The residents know whether the construction company the municipality has signed an agreement with has the relevant resources to complete the works or not.
As an NGO, we have not yet managed to put hands on at least a sample of such agreements and to familiarize ourselves with the conditions, established there.
The Municipality, that concludes the agreement with the construction company, does not bear any responsibility before the citizens. Meanwhile, I am convinced that the Municipality must sign agreements with residents to guarantee compensation in case of the disappearance or bankruptcy of the construction company. There have been many cases of the kind.
There is another problem here. An organization that specializes in the selection of a construction company conducts the appraisal of property. When the Kond, Kozern, and Firdus residents turned to other organizations to appraise their property, they refused to do it. These so-called third-party appraisal companies have their own interests. They are licensed by the government, and they do not want to have extra problems.
- What are the chances of the citizens of Armenia to protect their own rights to property guaranteed by legislation in the courts of the republic? Are there any success stories on the protection of the property, what is the mechanism of implementing the court decisions in favor of the citizens’ right to property?
- If there is the Governmental Decree on the acknowledgement of the land as that of public interest, the citizen has no chances to seek justice, even if they go to court. By law, this decision may be appealed within 6 days, but all attempts turn out to be in vain.
The notion of prevalent public interest is applicable to me, but it is quite broad. In the end, it needs to be defined, for example, as for the construction of an airport, a dam and so on, and they should not be private. Proportional compensation should be provided, and namely in this issue, the citizens cannot stand for themselves. People are not properly informed and easily believe in the builders’ promises.
I do not know of any case when the court passes a decision in favor of citizens, I can say for sure that there have been no such cases.
There are multiple examples of the contrary. In 2003 the property of one of the citizens was appraised 47.000 US dollars. He managed to get an alternative estimate – 185.000 USD. He was evicted at the decision of the local court. Years later the European Court of Human Rights obligated to compensate additional 150.000 USD to the citizen, naturally, from the state budget. If the courts passed just decisions, the compensations would be paid by the construction companies, and not by every single one of us, from the state budget. And no one bears responsibility for this.
- What is the statistics of applications to Armenian courts? What is the statistics on the applications to the European Court of Human Rights (ECHR)? Are there ECHR decisions passed on RA citizens’ applications, and are they implemented?
- So far 30 citizens, victims of state needs have turned to the European Court. 10 of them have already received compensations from the state budget, amounting to 500.000 USD. Yes, the decisions of the European Court are implemented.
I am one of the citizens who were evicted from Byuzand Street. Together with two other neighbors, we applied to the ECHR. In 2011 the Government suggested that we should come to terms, and they would allocate 170 square meters of residential area in a newly-built building in the place of our pull-down house.
After some inquiries made, it became clear that the apartment offered to us had an owner since 2009. Something of the kind happened to other citizens, too. I informed the ECHR about this. I hope that this year we will have a final decision.
When I study the correspondence between ECHR and our government, I am surprised to see how arbitrarily our authorities construe the Constitution and falsify answers. I often contemplate on the probable problems my fellow-citizens and I could encounter if the European Court were not there. But this is not right; a state should not be built in this manner.
Right to Property in Azerbaijan
In 2008 – 2013 in the capital of Azerbaijan tens of thousands of citizens were illegally deprived of property, hundreds are now left without homes.
- How well are the rights of the citizens of Azerbaijan protected legislatively? What is the statistics of violations of the right to property for the citizens of Azerbaijan in the last five years?
- In Azerbaijan, as in most countries in the world, the citizens’ right to property in guaranteed by the main law – the Constitution. Besides, the right to property is regulated by various legal acts, and chiefly by the Civil Code, the Law on the Seizure of Lands for state needs, as well as the Land Code. Along with the national legislation, the property rights of the citizens are protected by the international conventions adopted by Azerbaijan. However, regardless of the clear guarantees for the citizens’ rights to property, provided by the legislation, in reality they are not complied with properly.
The violation of the right to property takes place in Azerbaijan as a result of harsh violations of the laws in place. As a result, we can see the lack of judicial control over the actions and decisions of state authorities, which makes citizens vulnerable before the illegal intrusion into their rights to property.
The lack of an independent judicial system will also give citizens a possibility to protect their own right to property in court.
As for the statistics of violations, there is no official statistics kept on the violations of the citizens’ right to property by state authorities; however, it is possible to get the information from the monitoring projects, conducted by international and local NGOs. The Government of Azerbaijan does not keep such statistics, regardless of the requirements of the UN Committee on Economic, Social and Cultural Rights. The most common reasons for the violation of property rights are the obligatory eviction and the leveling of houses. On the basis of surveys conducted by local and international NGOs, we can surely state that a mass violation of property rights has been under way in Azerbaijan in the recent years.
Support to Free Economy NGO published a report, called The Map and Statistics of Violations of the Right to Property in Baku. It records that since 2006 the Government of Azerbaijan set to the implementation of large-scale infrastructure projects at the expense of the incomes from oil contracts. The report mentions that in the period between 2009 and 2012 private residential houses, buildings, and structures were pulled down at the intervention of state bodies. The authors of the report mentioned that in 2009 – 2012 3.930 forced evictions were recorded only in Baku within the framework of the infrastructure projects under implementation. Taking into consideration the fact that every case of eviction involved one household, which might on average have 4 – 5 members, we can calculate how many citizens were left homeless.
- Who most often seizes residents’ property (land, houses) in violation to the law? What is the mechanism of property seizure from residents?
- According to the report by Support to Free Economy NGO on the situation with the right to property in 2011 – 2012, the citizens’ right to property was violated by central and local executive bodies. In the vast majority of cases the lands and real estate of the citizens were seized under compulsion and illegally. In practice, you face facts with citizens forcefully evicted from their houses with the help of workers even though there was a court decision, prohibiting eviction.
- What are the chances of the citizens of Azerbaijan to protect their own rights to property guaranteed by legislation in the courts of the republic? Are there any success stories on the protection of the property, what is the mechanism of implementing the court decisions in favor of the citizens’ right to property?
- The citizens’ chances to protect their rights to property in the courts are very low. Thus, the judicial system that is not independent, is unable to fulfill the function of control over the activities of state authorities. In the recent years the authorities have somehow modernized the judiciary. However, the Judicial-Legal Council that fulfills the function of control over judicial power is still headed by the Ministry of Justice, a representative of the executive power.
Regardless of the lack of confidence in courts by the citizens, there are cases when in regional courts you may come across decisions in favor of citizens. However, such decisions are, as a rule, annulled in higher instances. Or these decisions are not implemented by the executive structures, are procrastinated or are not implemented properly. The function of the primary legal mechanism on the implementation of court decisions is fulfilled by the local executive structures. However, in practice, there is no information on the implementation or non-implementation of court decisions by state bodies or measures established by the law in relation to the loss inflicted on the citizens. As a result of the inability to protect their rights in the AR courts, citizens file in their numerous complaints with the ECHR.
- What is the statistics of applications to Azerbaijani courts? What is the statistics on the applications to the European Court of Human Rights (ECHR)? Are there ECHR decisions passed on AR citizens’ applications and are they implemented?
- In Azerbaijan there is no practice of providing official information on the citizens’ applications to courts. Along with this, the complaints that were brought to the Supreme and Constitutional Courts are mainly related to the violation of the right to property. Azerbaijan implements the decision of ECHR regarding concrete cases, however, and unfortunately, local courts do not consequently refer to the decisions passed by the European Court, even though the ECHR decisions are mandatory for local courts as case laws.
Bulletins
ARMENIA AND AZERBAIJAN TODAY: EVENTS AND COMMETS - 2012
