The Right to Property is not Guaranteed in Azerbaijan
Samed Rahimli, lawyer
The Right to Property is not Guaranteed in Azerbaijan
- What is the situation with violations of property rights like in Azerbaijan today and is there any difference compared with the past?
First of all, we have to define what is the right to property, since the right to property presents itself in two aspects: the first aspect is the constitutional right to property, which establishes that the state should not interfere with this right, the second is the right to property that exists in civil law which regulates the right to property between two individuals. Usually, when we talk about the right to property, we mean the constitutional right to property, in the context of which the state cannot interfere with this right without legal grounds, or establishes the cases when the state may interfere or restrict the right to property. In such cases, the state should pay a fair compensation, such intervention should be based on the needs of the state or the public.
Over years, we have seen a situation in which the state deprives citizens of property, takes away houses and apartments in Baku. Demolitions are periodically massive. Even whole neighborhoods are being demolished. This is justified by the fact that the demolition is carried out in order to improve the city or design parks. There are two problems in this regard: the first problem is that the goals set by the state, namely the improvement of the city, the creation of parks, are not a necessity to address the needs of the state or the public. If the state withdraws property from someone, it should be for the purposes of state needs and be absolutely necessary. For example, if a state seizes land for military needs that is important for the security of the state, this is legal and necessary. However, the arrangement of the city, the creation of parks do not constitute state needs. Unfortunately, the property of citizens is seized by the state on such frivolous grounds.
Compensation is another problem. The compensation offered to the citizens in return for their property is usually very low, it is not fair. The reason is that the state approaches this only from the technical perspective. The apartments built during the Soviet times are usually small-sized, in the range of 30-50 square meters. The compensation offered by the state for these apartments is not enough to buy a normal living space now. For this reason, many citizens who have been deprived of apartments in the center of Baku are forced to buy apartments far from the city center. This creates a rather unfair situation. In some cases, citizens are given an apartment in the same area as the old one. However, this is not always the case.
The worst thing is that this process continues to this day. Thus, the state, under frivolous pretexts and by paying unjust compensation, deprives citizens of their right to property.
Now there is another tendency, too, to seize land plots, that is, the situation has gone beyond the limits of the capital. In most cases, the seized land plots are transferred to the ownership of legal entities.
The difference from the past is that the violation of the right to property is continually aggravating. Thus, it can be said that there is only nominal protection of and guarantees for property rights in Azerbaijan. This nominal protection suggests that there are no effective guarantees for property rights in Azerbaijan.
- Who is more involved in the protection of property rights of citizens – human rights organizations or lawyers hired by the citizens?
Usually, the citizens whose rights have been violated protect their own property rights. Some non-governmental organizations are involved in their protection, too. In 2014, after making the law on non-governmental organizations stricter, many such possibilities were abolished. The lack of state legal assistance had a negative impact on the protection of citizens' property rights. Previously, some citizens could invite proxies who, for a low pay, engaged in the protection of their rights in the courts. However, after limiting the institution of representation in 2017, citizens lost this opportunity as well. Currently, due to high attorney fees, citizens are increasingly left without protection. In addition, many lawyers specialize in criminal cases, they have little experience in property seizure cases for state needs. This also creates some problems. Many cases are sent to the European Court of Human Rights. Until 2017, these cases mostly engaged representatives.
Thus, due to the stricter law on non-governmental organizations in 2014 and the limitation of the institution of representation in 2017, the citizens themselves now engage in the protection of their own property rights.
- Are there any high-profile cases of violations of property rights in Azerbaijan and was it possible to defend these rights through legal proceedings in the country?
The legal remedies in the country cannot be considered sufficiently effective. Judicial practice shows that the courts do not want to deal with state administrative bodies, so most of the lawsuits are not satisfied.
The courts do not delve into the concept of "state" or "public" needs. They are basically guided by the amount offered to the property owner by the executive power. Therefore, local courts can not be effective. As for the European Court of Human Rights, this court considers cases for a long time, which also plays against the citizens deprived of their right to property.
Sufficiently high-profile cases of violations of property rights in Azerbaijan are mainly related to cases of demolition of houses in the center of Baku: in Fizuli (formerly Basin) street and N.Narimanov Avenue (formerly Soviet). There were mass protests by the citizens during the demolition of the houses.
- How does the situation with property rights in the country impact on the development of entrepreneurship, foreign investment, and attitudes in the society, in general?
The situation with the right to property, of course, affects the development of the country. If the right to property is not guaranteed, the economy cannot develop. Speaking about the economy, we mean the main globally practiced forms of market economy, free enterprise, the system of free initiative. As I noted above, the protection of property rights is nominal in Azerbaijan: property rights are not guaranteed and the courts are not effective in protecting property rights.
The free enterprise system cannot operate where the right to property is nominal, and the protection of this right is practically ineffective. Such a country cannot be attractive for foreign investment, it can have no room for economic, political, and social development. The foundation of free enterprise is the desire of individuals to maintain ownership over procured/obtained property. When protection of property rights is nominal, and state bodies or non-state structures can deprive citizens of their property rights, no one is interested in engaging in free enterprise, as entrepreneurs know that they cannot keep the accumulated capital to themselves. In this situation, foreign investors will also not be interested in making investments. Why should they invest their money in another country, and then lose this money? In general, if there is no protection of property rights, citizens cannot develop economically, politically and socially. If there is no protection of private property, citizens cannot save the financial means acculumated, hence, they earn little and spend a lot, which affects their social development.
All of the above suggests that the right to property must be protected and guaranteed.
