President Ilham Aliyev
19 Istiqlaliyyat Street
Baku 370066, Azerbaijan
Via facsimile: +994-12-923-543, +994-12-492-35-43, +994 - 12- 492-06-25, and e-mail: firstname.lastname@example.org
Dear President Aliyev,
Please accept my greetings on behalf of Human Rights Watch. We are writing to you because we are concerned about reports of human rights abuses related to the ongoing property expropriations and destruction of homes in central Baku carried out by the Baku City Executive Authority (Baku mayor's office). Based on interviews with numerous property owners in central Baku and a lawyer representing property owners, we believe that the expropriation and demolition of properties in central Baku are unlawful and violate Azerbaijan's international human rights commitments.
We also believe that existing procedures for notifying residents of expropriation, establishing compensation and resettlement, and allowing residents to challenge valuations remain inadequate and lack transparency. We respectfully ask you to insist that the Baku authorities halt all further expropriations and demolitions until expropriations can be carried out in a manner consistent with Azerbaijani national law and Azerbaijan's international commitments. We also urge you to ensure that any future expropriations are carried out in a fair and transparent manner and that property owners receive fair compensation to which they are entitled under national and international law. Those already harmed by unlawful expropriations and demolitions should also have access to an effective remedy for the violations they sustained.
Unlawful Expropriation of Property in Central Baku
As you are aware, the Baku City Executive Authority (Baku mayor's office) has been carrying out expropriation of private properties, including homes and businesses, in central Baku since 2009. Initial expropriations were based on executive order no. 511 of September 24, 2008 in which the mayor's office undertook to demolish buildings in central Baku in order to construct a "garden-park complex" as part of a broader program to promote the "social and economic development" in the city through "reconstruction" and the "construction of public places," such as plazas, parks, as well as residential buildings. A second order, no. 76, dated February 16, 2011, specifies demolition of a second group of properties in central Baku also for the construction of the garden-park complex.
With respect to the expropriation of properties and the compensation provided to Baku property owners, we believe that the state has violated its obligations under national law and the European Convention on Human Rights regarding the right to property. Article 13 of Azerbaijan's constitution guarantees the right to private property. Article 29 guarantees that property shall not be expropriated except by court decision and that property owners must be fairly compensated based on the value of the property.
Article 157.9 of the Civil Code of Azerbaijan indicates that property can be expropriated by the state when required by state needs and only in cases permitted by law based on a decision of the Cabinet of Ministers for the purpose of construction of roads or other communication lines, the location of a frontier zone, or construction of defense facilities. The relevant Cabinet of Ministers decision must then be entered into the State Register of Immovable Property and property owners must be notified one year in advance that their properties will be expropriated.
The actions of the Baku mayor's office to expropriate and demolish properties in central Baku clearly violate Azerbaijani national law, insofar as there have been no court decisions validating the expropriations and demolitions of properties in central Baku, as stipulated in article 29 of the Constitution of Azerbaijan. In addition, there is no Cabinet of Ministers decision approving the expropriations. Finally, there is no national law to govern expropriations for the purpose of "reconstruction" or "development of public spaces."
The expropriation and demolition of properties in central Baku also violates Azerbaijan's obligations under the European Convention on Human Rights (ECHR), which explicitly protects against unlawful expropriation of property. Article 1 of Protocol No. 1, paragraph 1, states:
"Every 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."
According to the jurisprudence of the European Court of Human Rights, any deprivation of property, including by expropriation or forced sale, must comply with the principle of lawfulness, be in the public interest, and pursue a legitimate aim in a proportionate manner. It is our belief that the ongoing expropriation and demolition of properties in central Baku by the Baku mayor's office is not lawful, as they have no legal basis in national law and in fact directly violate provisions of existing national law on expropriation.
Insufficient Compensation Mechanisms
There are several aspects of the expropriation actions undertaken by the Baku mayor's office that are also in violation of Azerbaijan's international obligations, including certain aspects of the compensation schemes.
The Baku mayor's office executive order no. 511 of September 24, 2008 indicates that in "the absence of a mechanism in existing legislation to govern the appraisal of home values located in the demolition area," the mayor's office authorized a private individual, Rufan Habil oglu Kiazimov, to purchase the properties slated for demolition by concluding private contractual agreements with individual property owners. Executive order no. 511 also explained the decision to empower a private person to purchase properties claiming that, knowing of the impending expropriations, "residents artificially overprice their homes several times above market rate, resulting in additional expenses [for the mayor's office]." As also indicated in executive order no. 511, the State Oil Company of the Azerbaijan Republic (SOCAR) initially transferred five million Azeri manat (US$6,331,000) to Mr. Kiazimov in order to purchase the designated properties.
In these circumstances, as the mayor's office has authorized a private individual to execute the governments' policy, Mr. Kiazimov is treated as an agent of the state, and the mayor's office, and ultimately the government of Azerbaijan, bear full responsibility for Mr. Kiazimov's actions in carrying out these functions. (See Articles 5 and 8 of the Articles on the Responsibility of States for Internationally Wrongful Acts.) Also as the European Court of Human Rights has affirmed, whether agency is given to a private individual formally, as in this case, or informally "the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State's responsibility under the Convention," see Cyprus v. Turkey, no. 25781/94, ECHR 2001-IV, para. 81.
Executive order no. 76 dated February 16, 2011 and specifying a second area in central Baku to be subject to expropriation and demolition indicates that the State Property Committee has fixed the price for compensation of all properties at 1,500 manat (US$1,900) per square meter, irrespective of the property's use (residential or non-residential), age, condition, quality of renovation or any other factors.
Human Rights Watch research found that officials in the Baku mayor's office responsible for expropriation and resettlement indeed informed property owners in central Baku whose properties were identified for expropriation and demolition that they would receive monetary "compensation" for their properties exclusively through private real estate transactions in the form of a "purchase-sale" agreement with Mr. Kiazimov, at the price of 1,500 manat (US$1,900) per square meter. According to a lawyer representing dozens of property owners in central Baku, in approximately April or May 2011, a representative from the Baku mayor's office began concluding "purchase-sale" agreements with property owners.
This mechanism amounts to a forced sale by property owners since, by order of the Baku mayor's office, property owners do not have the opportunity to sell their properties by any other means.
Some property owners told Human Rights Watch that officials responsible for expropriation and resettlement offered them an apartment of approximately the same size as their existing property but located outside of the city center. These offers appear to be typically made when properties are larger than 60 square meters.
We believe the existing mechanisms and proposals for monetary compensation, in particular compensation that is based on a single price for all properties, irrespective of use, condition or any other factors per square meter, violate Azerbaijan's obligations under the European Convention.
The European Court has made clear on repeated occasions that when depriving an individual of his or her property, the authorities must strike a ‘fair balance' between the demands of the public interest and the protection of the individual's fundamental rights. The expropriation measure must not impose an excessive burden on the individuals and the state cannot derive unjust enrichment from the measure.
The Court has said that compensation terms are material to the assessment of whether an expropriation measure respects the requisite fair balance and whether it does not impose a disproportionate burden on the individual whose property has been expropriated. The Court has held that there is a direct link between the importance or compelling nature of the public interest pursued and the compensation that should be provided in order to guarantee compliance with Article 1 of Protocol No. 1. The government must balance the scope and degree of importance of the public interest against the nature and amount of compensation provided to the persons concerned. The European Court has held that failing to pay compensation of a sum reasonably related to the value of the property is an excessive interference with an individual's rights. In addition, in many cases of expropriation, the only appropriate sum deemed to be "reasonably related to the value of the property" will in fact be full compensation - that is the market price of the property, plus costs or losses incurred as a result of the expropriation.
In this context, Human Rights Watch believes that the ‘fair balance' between state needs and the protection of the individual's right to property and applicable human rights standards are not being met. We call on you to insist that the Baku mayor's office establishes a mechanism whereby each property subject to expropriation and demolition will be subject to an independent appraisal and that compensation to individual property owners accurately reflects the market value of each property.
Means to Challenge Decisions regarding Demolitions
One component of a fair and transparent expropriation process is the existence of a mechanism for resolving grievances. Such a mechanism should ensure that those affected by expropriation have the opportunity to register their grievances and that those grievances would be addressed in a clear and transparent manner. Several property owners in Baku told Human Rights Watch that they have appealed to local courts in attempts to secure their right to property, protect their properties from demolition, and in an effort to secure fair compensation for their properties. However, according to a lawyer representing several dozen plaintiffs in claims against the mayor's office regarding expropriation, he is not aware of a single case being decided in favor of private property owners. In at least one case, demolition of a home went ahead despite a pending legal decision before a local court.
In this case, Khajibaba Azimov, a property owner on A. Topchubashev Street, appealed to the district court in April 2010 to protect his right to property and to receive compensation at market value which an independent appraisal had valued at 4,000 manat (US$ 5,065) per square meter, significantly greater the 1,500 manat ($US1,900) per square meter compensation mandated by the mayor's office. In response to this suit, the mayor's office filed a number of counter suits over the following months, for example claiming that the plaintiff's suit should have been filed in a different district. The case was subsequently referred to various different courts over a period of many months. As a result of the protracted legal battle, the final decision in the case was not handed down until March 2011. Despite the pending court decision, on December 30, 2010 the Baku authorities evicted Azimov and his family and demolished the building housing his apartment. A final court decision was issued only in March 2011, 11 months after the original suit was filed. The court rejected the plaintiff's claims.
Other property owners similarly told Human Rights Watch that they have filed suits against the Baku mayor's office, yet they were evicted and their properties destroyed despite the pending court cases. Property owners have also submitted complaints regarding the unlawful expropriation of their property to a number of government agencies, including the General Prosecutor's Office, the Internal Ministry, the Mayor's Office, and the Presidential Administration, but have received no responses.
Threats, Intimidation, and Lack of Transparency
In interviews with Human Rights Watch, property owners described an atmosphere of intimidation and uncertainty when interacting with government officials regarding the expropriation and demolition of their homes. In addition, the government has not publicized a plan for the redevelopment of the city center which could provide important information to property owners and residents about expectations for future development and which buildings will be or are likely to be expropriated and demolished.
Property owners typically learn that their property is to be expropriated when they receive a notice indicating that the Baku mayor's office is conducting evictions in the area and instructing them to visit the "resettlement board headquarters." According to the notices, in the event that property owners do not visit the resettlement board within two weeks, "all necessary measures will be taken in accordance with the law." No further information is indicated about what measures might be taken against property owners or their properties, what law governs any such measures, or owners' options regarding rights of appeal in the event of a dispute. These notices were often on plain paper, without letterhead, official stamps, or signatures, and many residents initially experienced confusion and anxiety about which agency or government authority was issuing these instructions.
Threats and Intimidation by Resettlement Officials
Property owners who visited the resettlement board headquarters, which is housed not in an official government building but in a temporary trailer located behind the Heidar Aliyev concert hall in the city center, described hostile and intimidating encounters with government officials representing the resettlement board. Officials did not introduce themselves or provide any information about the expropriation and demolition process. Owners later learned that the officials are from the State Property Committee and from the mayor's office. These officials inform property owners of the compensation options available to them, but provide no additional information about property owners' rights, including their rights of appeal. Typically, for homes greater than 60 square meters, officials offer owners an apartment of approximately the same size as their existing property but located outside of the city center. For homes smaller than 60 square meters, residents are typically offered compensation of 1,500 manat (US$1,900) per square meter. These offers are presented to owners orally, without written documentation.
Owners who are not immediately inclined to accept the official offer have faced threats and intimidation. For example, one property owner who lives in an apartment on Mirzaga Aliyev Street told Human Rights Watch that when he indicated his dissatisfaction with the official compensation offer for his property, the State Property Committee official threatened him saying, "Take the money and get out of your apartment! If you don't, you will see, I will throw you out by force anyway in 15 days." When this property owner had entered the office initially to discuss the compensation offer, one official had asked to him, "How many square meters is your apartment?" And then began laughing, saying, "I have a bathroom bigger than your whole apartment!"
Threats and Intimidation of Property Owners at their Homes
In addition, property owners have described how officials from the city housing administration office (in Russian, Zhilizhno-Eksplutatsionnaya Kontora, or Zhek) or other agencies, often accompanied by police, have come to their homes, often repeatedly over a period of months, and threatened them, saying that the owners and other residents must vacate their homes within a specified period, usually one to two weeks, or face forcible removal. The officials typically do not introduce themselves or indicate which agency they represent. Residents only learned later who these individuals are and where they work. Property owners feel that these actions are designed to intimidate them and scare them into accepting compensation packages to which they do not agree.
One property owner on Shamsi Badalbeili Street told Human Rights Watch, "I live with my husband and two daughters. One evening, some officials, together with 15-16 police, came to our door. They were knocking on the door loudly and kicking the door. When I opened it they said that I must vacate the apartment and they threatened me, saying that if we don't leave willingly that they would drag us out, throw out our belongings and destroy the house anyway. I asked them to introduce themselves but they didn't. I learned later that the woman was from the city housing administration office. They have come a total of three times since February. We were really scared by all of this. It has really harmed my health."
In addition to facing these threats and harassment, property owners live with a high level of uncertainty and anxiety about the future because they do not know when they will be evicted, when their homes will be demolished, and where they will live once the destruction occurs. One property owner, a pediatrician living on Shamsi Badalbeili Street, described her anxiety to Human Rights Watch, saying, "I am afraid to go to work or to the store out of fear that the bulldozers will come while I am away. And what then?"
People who will lose their land for construction in Baku should have clear information about the timing of the expropriation, their compensation and resettlement options, and the means of appealing decisions so they do not have to live in uncertainty. State officials should refrain from hostile and intimidating behavior.
Treatment of Property Owners who have Refused to Vacate their Properties
Human Rights Watch research found that many property owners and residents of buildings subject to expropriation and demolition have been forcibly evicted, in some cases without notice, with their possessions forcibly removed, damaged and lost. In one case several property owners and other residents were forcibly detained in a police station following their eviction while their apartment building was being demolished. In at least one case, a property owner who was evicted was also denied medical treatment.
It is clear that expropriations and demolitions carried out in this way are a form of forced eviction, which are considered a serious violation of international law. In particular under the European Convention these evictions constitute a serious violation of the right to private and family life, as guaranteed under article 8, which states: "Everyone has the right to respect for his private and family life, his home and his correspondence." The government may interfere with this right only in accordance with the law and as necessary in a democratic society. In numerous cases, the European Court has held that the government's destruction of private homes and household property "constitute particularly grave and unjustified interferences with the applicants' rights to respect for their private and family lives...." (See, inter alia, Selcuk and Asker v. Turkey, para. 86)
Moreover, the treatment of evictees in Baku in certain cases rises to a level of severity that constitutes inhuman and degrading treatment in violation of article 3 of the European Convention which reads "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." In its jurisprudence, the European Court has found that forcible evictions and destruction of homes of this level of severity can amount to inhuman and degrading treatment, for example when the government undertakes "deliberate destruction in utter disregard for [residents'] ... welfare, depriving them of most of their personal belongings and leaving them without shelter and assistance." (See, inter alia, Selcuk and Asker v. Turkey, para. 74)
Illegal Detention of Residents of 58 Fizuli Street
Human Rights Watch has received reports that in at least one case property owners and other residents were forcibly detained in a police station during the demolition of an apartment building. For example, in the morning of November 19, 2010, police and other officials surrounded an apartment building located at 58 Fizuli Street in order to evict eight families remaining in the building. Demolition on the building had begun in June 2010, and residents on the third floor had already vacated their apartments, since the roof had been removed. Residents told Human Rights Watch that they had no notification or warning that their eviction would take place on November 19. One apartment owner, Nuria Khalikova, described how she went out in the morning to buy bread and saw the large numbers of police surrounding the building, causing her to return immediately to her apartment.
Soon thereafter, 10-12 police forcibly entered her home by breaking down the door. Khalikova described feeling ill as a result of a spike in her blood pressure and called an ambulance. Police denied the ambulance access to the courtyard. Instead, police forced her into a police car and took her police station no. 22. They gave Khalikova and the other residents no time to pack any personal belongings. Police detained Khalikova together with seven other property owners and residents of the building for approximately nine hours, apparently to prevent them from interfering with the demolition of the building. Police attempted to force the residents to sign a statement saying that they had been detained for participating in an illegal demonstration, which the property owners and other residents refused to do.
While police detained the building residents, other police officers, workmen and others collected the contents of the apartments in advance of the building's demolition later that day. When the property owners returned to their former home later in the evening, heavy machinery had already started demolishing the apartment building and workers had taken residents' belongings to a storage warehouse. When Khalikova and others went to recover their belongings, they found that many personal items such as furniture were broken and many other items, including jewelry and other valuables were missing.
Interviews with other property owners and their relatives who have remained in their properties until the moment of demolition indicate more steps can be taken to ensure the human dignity of those evicted at the last moment as well as sufficient protection of the personal possessions and other private property remaining in homes at the moment of demolition.
Eviction on A. Topchubashov Street
Khajibaba Azimov, who owned an apartment in a building on A. Topchubashov Street that was demolished in December 2010, described the forcible eviction of him and his family. He told Human Rights Watch, "Many times they came and told us to leave our apartment. There was a lot of pressure on us to leave. The last time was one week before the actual demolition. All of the buildings around us had already been demolished. Ours was the last to be demolished. In the evening the bulldozers came right to the house and even started to knock it down. The police came, dragged us out of the apartment and made us stand on the street. They packed up our belongings and threw them out on the street. We watched as the building was demolished. We didn't have the chance to immediately move our belongings to another location and so some things remained outside on the street and many of our belongings went missing."
The Office of the Institute for Peace and Democracy
Human Rights Watch is particularly concerned to learn that the property of Arif Yunus, husband of Leila Yunus, the director of the Institute for Peace and Democracy (IPD), located at 38 Shamsi Badalbeili Street, apartments 1 and 2, has been identified for expropriation and demolition. In addition to the IPD, the building is home to the Azerbaijan Campaign to Ban Landmines and the Women's Crisis Center, which is the only women's shelter available to women in crisis in Baku. Mr. and Mrs. Yunus have made appeals through the court system, but both the court of first instance and court of appeals have refused to hear their complaint. These civil society organizations serve a critical function in providing legal and other support to citizens, including women in crisis. Their capacity to operate as they do is strongly linked to their ability to use this private property owned by Mr. Yunus.
We strongly encourage you to insist that the Baku mayor's office immediately halt all plans to expropriate and demolish Ms. Yunus private property at 38 Shamsi Badalbeili Street, apartments 1 and 2, as well as all other properties in Baku, given that, as described above, the expropriation is not consistent with Azerbaijan's national laws and also in violation of Azerbaijan's obligations to respect the right to private property under international law.
With respect to the expropriations, evictions, and demolitions that have already taken place, we urge you to initiate an independent inquiry into why the expropriations and demolitions in central Baku have been allowed to take place given that they clearly violate Azerbaijan's constitution and national laws and Azerbaijan's international human rights commitments. As part of this inquiry, the authorities should investigate all violations of the right to private property, including the broken, ruined and missing property removed from homes and apartments as a result of forcible evictions. In addition, in cases of forced evictions, the government must investigate violations of the right to private and family life and instances of inhuman and degrading treatment. All property owners affected by expropriation should be given access to an effective complaint mechanism and provided with a remedy including compensation (in accordance with the right to an effective remedy guaranteed by article 13 of the European Convention).
We also respectfully call on you to ensure a transparent and fair process, with a clear basis in law, for any possible future property expropriation and compensation that complies with Azerbaijan's human rights obligations. People who may lose their property for development in central Baku or in other locations should have clear information about the legal basis for the expropriation, the timing of the expropriation, their compensation and resettlement options, and the means of appealing decisions so they do not have to live in uncertainty. The compensation calculation for individual properties should take into account the full and actual sale value of each property and not be dependent on one fixed price.
We also encourage you to insist that the executive authorities in Baku hold regular, well-publicized public meetings where the plans are discussed and to establish a meaningful mechanism for resolving grievances. Such a mechanism would ensure that those affected by the development in Baku have the opportunity to register their grievances and that those grievances would be addressed in a clear and transparent manner.
We look forward to receiving information regarding the steps that you and your administration will take in response to these concerns.
Europe and Central Asia Division
Hajibala Ibrahim Abutalybov, Head of the Executive Authority of Baku, email@example.com