The Appeals and Supreme Courts confirmed the eviction of citizens from their own homes

On September 26, 2018, a meeting of the Supreme Court was held at the suit of two residents of houses on Abbas Sahhat and Nasib Yusifbeyli streets in the Nasimi district of Baku - Zumrud Balakishiyeva and Aladdin Aliyev. A cassation appeal was considered against the decision of the Court of Appeal, which satisfied the requirement of the Executive Authority of the Nasimi district No. 196 of October 21, 2016 to recognize the property of Baku"s property as an emergency, demolish this property and build a new high-rise building at this place, with the construction of allocation of funds for the rental of temporary housing. This decision is based on the Decree of the Cabinet of Ministers of Azerbaijan No. 86 dated February 25, 2016, in which the local executive authority of the city of Baku (including the Nasimi district) is instructed to demolish and rebuild houses in emergency condition for 5 years, and allocate funds to residents for temporary residence, Turan was told by a resident, a representative of many of the plaintiffs Viktor Sapunkov.

The Supreme Court of Azerbaijan also took the side of the construction company Gloria Palace LLC and the executive institution of the Nasimi district.

According to clause 1.2 of the Resolution of the Cabinet of Ministers No. 86, construction companies are entrusted with carrying out construction at their own expense or with the involvement of credit funds. In the same paragraph 1.2 it is indicated that this construction should be carried out only with the consent of individuals and legal entities and on the basis of current civil law. Citizens must either pay the value of their property or a piece of land that is in their ownership or use, or in exchange for housing on the same land. It is clear that the payment of property value should be carried out according to the market price, as well as according to the zone of the city in which the housing is located.

Paragraph 1.2 was initially ignored by the Nasimi District Executive Office of Baku, and the courts turned a blind eye, said Sapunkov on behalf of the residents. "I saw similar decisions from other districts of Baku, in which paragraph 1.2 of the 86th resolution of the Cabinet of Ministers was also ignored. All orders of the heads of the executive agencies, as a template, say about recognizing housing as emergency, are given instructions to dubious Housing and Construction Cooperatives (in our case Housing Complex Cooperative (HCC) Gloria Palace) demolish this housing and build a new one. The authorized capital of such companies is so miserable that if these HCC cannot fulfill their obligations, then they will not be able to pay their creditors for debt obligations. and citizens are forced to the conclusion of a contract between the owner and HCC and the local executive power which permits building is not responsible in the future."

The Executive Power indicated at her disposal that the accident rate of the building was recognized in accordance with the act of visual inspection issued by the State Agency for Construction Supervision at the Emergencies Ministry of Azerbaijan. The fact is that in Azerbaijan, recognition of housing as an emergency can be recognized only by the court and for good reason according to Article 28 of the Housing Code of Azerbaijan, as well as state construction standards approved by the State Committee for Construction and Urban Development of Azerbaijan "Rules for Surveying and Monitoring the Technical Condition of Buildings and Structures" AzDTN 1.7-1 and international standards GOST 31937-2011, joined by Azerbaijan. These standards indicate that the inspection of the technical condition of a building or structure that is owned is carried out exclusively with the permission of the owner or at his request. Otherwise, it is possible to apply the Article 28 of the Living Code of Azerbaijan.

All these moments were ignored by the courts of the 1st and 2nd instances. The Supreme Court considered the decision of the Court of Appeal to be correct, because the land under immovable property is not the property of the plaintiffs. But taking into account the legal ownership of real estate, land under the ownership of citizens is in their legitimate use. This point is mentioned in paragraph 1.2 of the 86th Resolution, and is also confirmed by the land code, which states that the land plot is displayed as a document, indicating its boundaries and displayed in a topographical plan. Such a document is a technical passport, which is issued with the bill of sale. According to Article 88 of the Land Code, the ownership of a part of the land plot on which a building is located (a private residential house), or a structure and which is necessary for its use is transferred to the acquirer. According to the Law of the Republic of Azerbaijan "On the State Register of Real Estate"

"The land plot on which the ownership right is registered and the immovable property located on it are registered as a single immovable property item." There are no restrictions on the ownership and use of the aforementioned property at the discretion of citizens in the certificates of ownership of these people. This means that citizens really are the owners of the property, and the land located under the property is indeed in the legitimate use of citizens. Without their consent, no one has the right to dispose of the property at its discretion. However, the Supreme Court blatantly ignored this fact.

Further, the Supreme Court believes that, despite the fact that Gloria Palace LLC offers to sign the same type of agreement with the owners, this does not give reason to not trust this LLC. This is despite the fact that, according to the subject of the contract that the company proposes to sign, the contract is bilateral and the LLC acts as a customer there, and the company does not indicate how they will settle accounts with the owner in the event of their bankruptcy. In the contract there is no preliminary registration of property in the State Property Committee, there is no concept of pledge by the Gloria Palace in case of unforeseen circumstances.

Decree No. 86 of the Cabinet of Ministers for some reason was called a "pilot project," although this is clearly a project to renovate the housing stock, which is allegedly being carried out at the state level. If this pilot project is executed at the state level, then adequate questions arise: Why does the executive power not act as a customer, and the construction company does not act as a contractor? Why does not the Executive Power participate in the contract as the first party, and does not give any state guarantees to the owner on his property in case of a force majeure situation?

The answer may be this: Executive Power is interested in the profits from this project, without incurring special obligations for it, and this is already a corrupt scheme, which is a criminal offense.

Further, the Supreme Court did not consider such a question as the lease of a plot of land by the executive power to a building society, on which our property is located. According to the law on land lease, as well as the law on the state register of real estate, such agreements, if they are concluded for a period of more than 11 months, must be registered notarized with the consent of the legal owner of the land or owner. As a result, the Executive Power without the consent of citizens leased the land, which is under the real estate of people and in their legitimate use of some construction company, which the tenants do not believe, and forces apartment owners to enter into an agreement with an LLC.

"From all this it follows that no matter what the orders of the local heads of the executive power and the decision of the Cabinet of Ministers are, these decisions must comply with the rule of law - the Constitution of the Republic. As a result, we have: the Supreme Court of Azerbaijan did not consider the cassation on the merits, did not check the decision of the Court of Appeal on the correctness of the interpretation of the laws, our courts are corrupt and not independent as suggested by law. Property rights are violated in a gross form," Y. Sapunkov concluded.

In connection with the unconstitutional decision of the Supreme Court, he will appeal to the Constitutional Court of Azerbaijan with a request to consider the interpretation of the cassation appeal of the Supreme Court, and will also file a complaint about a gross violation of property rights in the European Court of Human Rights.