JURIST Guest Columnist Leyla Safarova, an LL.M. Candidate at the University of Pittsburgh School of Law, is the author of the fifth entry in a 14-part series from the LL.M. students of the University of Pittsburgh School of Law. Safarova explores property law in Azerbaijan, arguing that ineffective laws, distrust in the courts and a lack of enforcement protocol are to blame for the current state of property rights in the country...
In May 2012, Baku, the capital of Azerbaijan, will host the Eurovision Song Contest, an annual competition held among active member countries of the European Broadcasting Union. The Azerbaijani government has allocated around USD 105 million for the construction of the concert hall where the contest will take place. The concert hall will be built where apartment buildings are currently located. According to a Human Rights Watch report, the inhabitants of the last apartment building on the construction site were forced to evacuate their dwellings and residents were offered compensation for their dwellings well below the property's market value.
Mass media condemned these forced evictions and declared them unlawful, stating that such expulsions are direct violations of the fundamental human rights proclaimed in the Constitution of the Republic of Azerbaijan. The Public Association for Assistance to Free Economy has described the evictions as human rights violations and as having no legal authority. However, since 2008, such forceful evictions have occurred on a massive scale. These unlawful and unjust evictions continue because of the lack of a proper enforcement policy.
The Constitution of the Republic of Azerbaijan, the Civil Code of the Republic of Azerbaijan and the Law on Expropriation of Lands for State Needs [PDF] regulate property laws. The Republic of Azerbaijan also signed the European Convention on Human Rights on January 1, 2001, which went into effect in Azerbaijan on April 15, 2002. The first section of the convention provides that, "[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
The Constitution and other laws provide the conditions for expropriation. Under the Constitution, the expropriation of property is only allowed for state needs, and fair market value well in advance. Other than that, property is intact and is protected by the state. State needs are clearly defined in the Civil Code of the Republic of Azerbaijan and are limited to the construction of roads and other communication lines and demarcation or the construction of strategic defense complexes. Prior to the 2009 amendments to the Constitution, property could be taken for state needs and for public use. The limitation of the 2009 amendments can be considered a positive step forward, yet the situation declined with the enactment of the Law on Expropriation of Lands for State Needs on April 20, 2010. One of the negative aspects of the expropriation law is that it expanded the definition of state needs. Under the expropriation law, state needs now include building strategic roads and the installation of other communication lines, such as oil and gas pipelines, sewerage system, high tension electric power lines and hydro-technical constructions, the assurance of consistent protection of the state's border, the construction of strategic defense and security complexes and the construction of strategic mine industry complexes.
Although the expropriation law clearly draws limits for expropriation cases in practice, governmental officials and wealthy private businesses rarely obey these restrictions. Even though the government does sometimes tear down buildings due to state needs, more often buildings are frequently torn down for mere business purposes or reasons that have little to do with actual state needs. An example of this practice was the order that the Baku Executive Power issued in 2008. On September 24, 2008, the head of Baku Executive Power signed an order for the demolition of the residential and non-residential buildings located behind the Heydar Aliyev Palace in downtown Baku. The order also called for the eviction of the residents of those buildings in conjunction with the development of a park plan. The residents were notified to vacate their homes for which they would have been compensated AZN 1,500 (USD 1,875) per 11 square feet, although the properties were valued around AZN 3,000-5,000 (USD 3750-6250) per 11 square feet. The market value of those properties at the time was two to three times the offered price. Human rights defenders reported that the water, electricity and gas utilities were shut off in the buildings to force occupants to vacate. At the year's end, residents remained dissatisfied and tensions with local authorities continued. Most houses had, at that point, been demolished and fenced off from the residents. By giving this order, the head of Baku Executive Power clearly abused his power under the Constitution, as absent a court order, nobody can be forced to leave their property. In addition, the residents who were forced to leave were not fairly compensated. Generally, the unfairness and inadequacy of money offered invokes endless disputes between owners and expropriators and these disputes ultimately end up in the courts.
Despite the imperfection of the legislation on property rights and the array of gaps in the laws, they can protect basic property rights. In light of Azerbaijan's apparent plans to respect the provisions of the European Convention on Human Rights, gaps and shortcomings that exist in laws do not serve as an excuse for leaving property rights unprotected. The issue rests in the poor enforcement of current laws and provisions.
People who are forced to leave their homes, in some cases, simply may not want to leave and, in other cases, people willing to leave oftentimes are not satisfied with the amount of compensation offered for their dwellings. In both cases, however, the end result is that they are compelled to vacate their homes dissatisfied with the situation. The main reason for people's dissatisfaction is the discrepancy between the offered compensation and the property's real market value. As a result, many pursue legal action in the court system in pursuance of justice. However, the impartiality and corruptness of the court system has not brought favorable results. According to the US Department of State's Bureau of Economic, Energy and Business Affairs' report, an effective mechanism to protect property rights in Azerbaijan is by no means assured.
The Monitoring Committee of the Council of Europe noted in its report that "[j]udicial corruption and the lack of independence of the judiciary remain serious problems in Azerbaijan, as the authorities themselves acknowledge. The shortcomings of the Azerbaijani judicial system result in the creation of new cases of unfair and politically motivated trials." People who pursue actions look forward to exhausting local remedies, so that they can have recourse to the European Court of Human Rights (ECHR). According to the Azeri-Press Agency (APA), Azerbaijani citizens applied to the ECHR mostly for the protection of property rights. Correspondingly, the number of property cases brought before the ECHR are increasing year by year. Pursuant to the APA report on January 27, 2012, the ECHR in 2011, delivered nine judgments with respect to Azerbaijan; four out of nine judgments were related to property rights. Also, according to the APA report, 14 out of the 42 total ECHR judgments dealt with the violation of property rights. In practice, the courts are weak and the judges are often inexperienced. The flaws in the court system lead to distrust in the system and, as a result, the vast majority of the people who are forced to abandon their dwellings are unwilling to pursue actions in the courts.
Leyla Safarova received her bachelor's degree in International Law from Baku State University in 2008. She received an LL.M. in Commercial Law from the same institution in 2010, and was a member of the 2010 Vis International Commercial Moot team. Safarova also holds a certificate in International Relations from Eastern Michigan University. Safarova has worked for Baker & McKenzie's law offices in Azerbaijan, is the recipient of a Fulbright Fellowship administered by the Institute of International Education.
Suggested citation: Leyla Safarova, The Need for Greater Protection of Property Rights in Azerbaijan, JURIST - Dateline, May. 1, 2012, http://jurist.org/dateline/2012/03/leyla-safarova-azerbaijan-property.php.
This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at email@example.com