The Right to Property in Azerbaijan

Fuad Agayev, Attorney, Member of the Bar Association

- Is the property right guaranteed to the citizens of Azerbaijan in the legislation of Azerbaijan? What norms of national and international law guarantee the right to property for Azerbaijani citizens?

The right to property is guaranteed primarily by the Constitution of Azerbaijan, namely Articles 13 and 29. No one shall be arbitrarily deprived of the right to property. Termination of the right of ownership by the state for public needs can take place only with prior and fair payment of compensation for property owned by a citizen or a legal entity.

Naturally, the Civil Code, the Land Code, the Housing Code and other legislative acts in general sufficiently guarantee the right to property.

In addition to the norms of national law guaranteeing property rights, this right is guaranteed by Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Law of the Republic of Azerbaijan on the Protection of Historical and Cultural Monuments regulates relations linked with the protection, study and use of historical and cultural monuments. In lawsuits relating to violations of property rights, we refer to this law in case of demolitions of architectural buildings, which is a frequent happening in Baku. This law defines that legislative bodies, executive and judicial authorities, and local governments are obliged to protect historical and cultural monuments. Despite the fact that it is prohibited to change the artistic and aesthetic appearance of the monuments, destroy them, conduct maintenance, repair, and construction works, economic and other activities that may create a danger for monuments, local executive authorities often issue orders that violate the law.

The purpose of the state policy in the field of urban planning and construction activities is to ensure socio-economic development of territories and settlements, the protection of private interests, the prevention of harm to people’s life, health, and property, environmental safety and environmental protection, as well as protection of historical and cultural monuments. There was no master plan during the construction boom in Baku. In the absence or expiry of such a plan, according to the law, construction projects could be allowed only if the documentation on the envisaged project corresponded with the plans (the master plan and (or) the general plans) for the area of the undertaken project. However, this rule was violated by the executive authorities, too.

- Who violates the rights of the citizens of Azerbaijan to the property and how frequently?

The right to property is constantly violated by state bodies, administrative bodies, and the past 3 years since 2016, this has been done under the slogans of the so-called “innovation” in Baku.

The judiciary violates the rights of citizens in the most brutal way, too. This applies particularly to the first instance and appeal courts.

The Supreme Court usually takes the side of the citizens in such affairs. However, before it lands with the Supreme Court, many have been already deprived of their property and become homeless.

In addition, there are massive demolitions of houses without the consent of the residents. In such cases, the residents and property owners who have not agreed to the conditions offered by the so-called developers, building cooperatives or other suspicious organizations appeal to local courts, and after exhausting domestic remedies, they file a complaint with the European Court of Human Rights. These complaints raise the issue of the violation of property rights, guaranteed by Article 1 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Recently, citizens have been offered to leave their apartments, upon a grant of a small amount for renting other housing for a year or two and a promise of providing an apartment in a new house to be built on the site of the old one. However, there are no guarantees. Citizens do not receive guarantees of whether the house will be built, when construction will be completed, when the house will be commissioned. The situation is so uncertain that citizens can be said to buy “a sight unseen”, running a very probable risk of becoming homeless.

- Is there any statistics on the violations of citizens’ property rights?

As far as I know, there is no such statistics. It is not kept by state authorities. One local non-governmental organization kept statistics on the city of Baku. But this statistics is not published anywhere.

As I have already said, architectural monuments and buildings that are over 100 years old are often demolished in Azerbaijan. The saddest part is that this happens in the very center of the capital.

The statistics on the violations of property rights could be provided by the courts and the executive authorities, since citizens whose property rights are violated, first of all apply to either the body that ordered the demolition or the court to restore the violated rights.

Judging by the information in the local press, there are a lot of people dissatisfied with the illegal demolition of their homes. Some of them tried to hold protests.

- How effective is the judicial system in Azerbaijan in protecting the property rights of the citizens?

The judicial system in Azerbaijan is not effective in general, in the protection of property rights, in particular. The judicial system has been inactive in the protection of property rights, especially in the past 12 years.

In addition, it acts as an accomplice to those gross violations committed by the state and administrative authorities, as well as other organizations involved in the construction of new buildings, and parks, etc.

It is for this reason that citizens, after exhausting domestic remedies, apply to the European Court of Human Rights. However, a small number of decisions of the ECHR on the right of ownership are executed by the state.

So far, only two such decisions of the ECHR are known: “Akhverdiev against Azerbaijan” and “Khalikova against Azerbaijan”. Azerbaijan implemented the decision of the ECHR in the case of Khalikova, that is, the compensation was paid. In the case of Akhverdiyev, the decision on compensation was made only on March 21, 2019, so it is still too early. The decision has not yet entered into force. It is known that the ECHR decisions are fully executed if the assigned compensation is paid and individual and general measures are taken. If the first part, that is, the payment of compensation, is executed, the general and individual measures are not applied at all in Azerbaijan. The state simply ignores them.

That is why such violations, even grosser ones happening in the country, continue to happen. If earlier, people were deprived of the right to their own property at the claim of the executive power, now they are deprived of it even under the claims of the housing cooperative or other private organizations. At least at the level of district and appellate courts, a lot of such decisions are passed.

The Supreme Court is more cautious about this category of cases. In most cases, justice can be achieved only at the ECHR. But for this you need to go through all three judicial instances within the country. But while the case is communicated to the ECHR and before decision is made by the ECHR, a lot of time may elapse and not all applicants will still be alive up to that point.

This material was prepared in the framework of ”Public Dialogues for Communication between Armenian and Azerbaijani Specialists” project, supported by the Black Sea Trust for Regional Cooperation (a project by the G. Marshall Fund). Opinions expressed in the material do not necessarily represent those of the Black Sea Trust or its partners.