Azerbaijan: Letter to the Council of Europe Monitoring Committee

To: Members of the Committee on the Honouring of Obligations and Commitments by Member States (Monitoring Committee)

Cc: President of the Parliamentary Assembly
Cc: Secretary General of the Council of Europe
Cc: Commissioner for Human Rights

Re: The Monitoring Committee’s work on Azerbaijan
 

Dear Members of the Monitoring Committee,

We are writing to express our concerns about the facts presented in the Information Note submitted by the co-rapporteurs on Azerbaijan to the Monitoring Committee on April 25, 2012. The Information Note summarizes the fact finding mission the co-rapporteurs, Mr. Pedro Agramunt Font De More and Mr. Joseph Debono Grech, undertook to Azerbaijan’s capital, Baku, on January 31 – February 2, 2012. We understand that the co-rapporteurs intend to prepare a full report on Azerbaijan’s honoring of accession obligations later in the year and they have undertaken another mission to Azerbaijan in early June to further inform that report. However, we are deeply concerned that the information shared by the co-rapporteurs in the April 25 note does not fully reflect Azerbaijan’s failure to meet its accession commitments and overlooks important, well-documented facts.

We are further concerned that the Information Note limits itself to relaying information received from, on the one hand, the Azerbaijani authorities, and on the other hand, from civil society and other nongovernmental sources, but stops short taking a position on the information received. The absence of any attempt at an assessment of the state of Azerbaijan’s compliance with its Council of Europe commitments and obligations is at odds with the core role of the Monitoring Committee and raises serious questions about what it deems its responsibilities are with respect to fulfilling its mandate.

While the Information Note covers a wide range of issues relevant to assessing Azerbaijan’s Council of Europe’s obligations, this letter focuses on the section concerning illegal house demolitions and forced evictions, an issue Human Rights Watch researched in-depth and published our findings in a comprehensive report in February 2012, ‘They Took Everything from Me’: Forced Evictions, Unlawful Expropriations, and House Demolitions in Azerbaijan’s Capital. (https://www.hrw.org/reports/2012/02/29/they-took-everything-me-0)

The concern highlighted above regarding the rapporteurs’ failure to assess compliance is particularly striking in the section on illegal house demolitions and forced evictions. While the Information Note enumerates both concerns raised by NGOs and the government’s position, it draws no conclusions on the issues at hand. Moreover, it leaves unchallenged incomplete and factually incorrect information that appear to ground the government’s position. It makes no assessment of the government’s conduct that has so clearly violated Azerabaijani law and European Convention norms.

As mentioned above, Human Rights Watch has a substantial body of research on illegal expropriations, forced evictions, and unlawful house demolitions in Azerbaijan. We began the research in June 2011 and have undertaken several research missions, interviewing dozens of people subjected to expropriations, forced evictions, and house demolitions, who were living or who had lived in four different neighborhoods in Baku. We also engaged with the authorities regarding the issue, meeting with them and sending several letters to the President of Azerbaijan, Baku City Executive Authorities, and other government agencies involved in expropriations in the capital. 

As stated in the Information Note, Azerbaijani authorities have undertaken a sweeping program of urban renewal in Baku. In the course of this program, the authorities have illegally expropriated hundreds of properties, primarily apartments and homes in middle-class neighborhoods, to be demolished to make way for parks, roads, a shopping center, and luxury residential buildings. Human Rights Watch has documented human rights violations at every stage of the government’s development campaign, including in the process by which the authorities identified homes and properties for expropriation, notified homeowners and residents of impending expropriations and demolitions, and assessed and awarded compensation, as well as in the manner in which expropriations, evictions, and demolitions were executed. Our research found that the evictions in central Baku were unlawful because they had no basis in national law and directly violated provisions in the national law on expropriation. Further, the government’s conduct during the expropriation and evictions processes was abusive and those whose rights were affected have had no effective legal recourse or access to a remedy.

On the illegality of expropriations
The Information Note takes for granted the government’s assertion that the expropriations are permitted by constitutional law, “which provides for expropriation based on the need of state” and does not challenge the authorities’ argument that “the large scale reconstruction of the capital accounts for such a need.” While Azerbaijani law indeed envisages expropriation, in the cases Human Rights Watch documented the authorities did not adhere to the laws governing expropriation and evictions. The expropriations and forced evictions were therefore unlawful.

Under Azerbaijani and international law, authorities should resort to expropriations only in exceptional circumstances, for purposes that are clearly in the public interest, and with appropriate due process, including the provision of fair compensation and/or alternative housing options. Under Azerbaijani law, as the report notes, the government may expropriate property only in limited circumstances for state needs,^[1] with a court order, by purchasing the properties at market prices, and by providing residents with at least one year’s notification of the impending demolition, among other requirements.

Our research has shown that there have been no court decisions validating the expropriations and demolitions of the properties in Baku. Many of the residents were notified less than a year in advance of demolitions, and property owners had no warning at all, or as little as a few hours’ or weeks’ notification. In some cases, homeowners never received any official notification, but learned about impending demolitions from neighbors. In a number of cases, evictions and demolitions took place in violation of court orders prohibiting the authorities from taking action against the properties.

On the forcible eviction of residents
Paragraph 68 of the Information Note states that “those residents who refused financial compensations or a resettlement proposal have been forcibly evicted.” The highly abusive manner of the forced evictions merits the Committee’s attention and should be reflected in its report. The authorities often carried out forced evictions and demolitions with willful disregard for the dignity, health, and safety of homeowners and residents. In many cases, the authorities dismantled apartment buildings or houses in which families and individuals continued to live, including by removing roofs, doors, and damaging shared walls, exposing residents to the elements and to the risk of partial collapse of buildings. In many cases, the authorities also cut water, sewer, electricity, gas, or telephone lines while homeowners remained in their homes. These actions rendered the properties uninhabitable, ultimately compelling the residents and homeowners to move out and accept unfair compensation offers.

In some cases, the authorities forcibly evicted residents with little or no notice immediately prior to demolishing their houses or apartment buildings. In some cases officials arrived without warning with a bulldozer and other machinery at night or in pre-dawn hours to begin demolishing homes immediately after telling homeowners to vacate. In these circumstances, homeowners had a few hours or less to remove their personal belongings and valuables. In some cases police escalated the evictions process by detaining homeowners in a police station following their eviction while the authorities demolished their homes.

On authorities’ failure to provide fair compensation
The Information Note rightly states that the residents were offered US$1900 per square meter irrespective of the property’s use, age, or condition. But while paragraph 70 notes the overall lack of transparency in expropriations and forced evictions, the Information Note glosses over the utter failure by the authorities to establish a process for determining the market value of the expropriated properties, including by not conducting independent appraisals. This failure renders irrelevant government claims, cited in paragraph 75, that “the premises to be destroyed are mostly old and dilapidated.”

In some cases, typically when property exceeded 60 square meters, the government offered homeowners resettlement to apartments built in high rise buildings, typically outside of the city center. However, it did not give them ownership title to these apartments prior to their relocation, instead promising ownership at a later, unspecified date. In addition, photographic evidence and testimony from those living or expected to live in the new apartments indicate that the quality of at least some the apartments, and the buildings themselves, is low and possibly in violation of building code standards. Problems include standing water in the basement, cracks in walls, including load bearing walls, unfinished windows, and peeling and damaged floors.

On the lack of an effective legal remedy
Another reason the expropriations process in Azerbaijan cannot be considered fair is the lack of an effective mechanism for resolving grievances. Such a mechanism should have ensured that those affected by expropriation had the opportunity to register grievances and have them addressed in a clear and transparent manner. Under Azerbaijan’s national laws, property owners may appeal to court to challenge the government’s expropriation and compensation mechanisms, including by seeking court injunctions to stop the expropriations and demolitions.

However, the government pursued evictions and demolitions in blatant violation of court orders or when court cases were still pending, raising serious questions as to whether the courts can provide an effective means of redress. After learning about the possible demolition of their homes, many homeowners filed complaints with the courts, but the authorities’ repeated failure to appear for hearings has caused these proceedings to be delayed for months at a time. Most importantly, the Information Note does not reflect on the fact that in several cases, the authorities have demolished homes in violation of court injunctions explicitly prohibiting any harm to the buildings or apartments while court cases challenging the intended demolitions were pending.

On the illegal demolition of the office of the Institute for Peace and Democracy
The Information Note elaborates on the demolition of property belonging to Leyla Yunus, a prominent human rights defender in Azerbaijan, and her husband, Arif Yunus. The Information Note, however, gives inaccurate information about the compensation offered to the Yunuses and fails to mention that the property was destroyed in violation of a court order.

The property at 38-1 and 2 Shamsi Badalbeili Street housed three human rights organizations: the Yunuses’ Institute for Peace and Democracy, the Azerbaijan Campaign to Ban Landmines, and the only women’s crisis center in Baku. Although the building fell within a neighborhood identified in February 2011 by the Baku City Executive Authority for expropriation and demolition, in May 2011 the Yunuses obtained an injunction from Administrative-Economic Court no. 1 prohibiting expropriation or demolition of the property pending a final court decision.

Nevertheless, on August 11, 2011, the municipal authorities demolished the building without warning and at night. Two weeks after the demolition, on August 25, 2011, the Yunuses received a letter from the Baku City Executive Authority alleging that the Yunuses had not responded to repeated offers by the authorities to purchase their property. The Information Note includes similar information, stating that according to “Official sources […] Ms. Yunus herself had repeatedly refused to evacuate [her belongings]....”

However, according to the Yunuses, they never received any written compensation offers from the government. This position is not reflected in the Information Note.

Further, the Information Note cites government claims that Ms. Yunus rejected supposed compensation offers, “in order to get more international publicity and support for her political protest action.” It is deeply troubling that a document whose stated aim is to address the Azerbaijani government’s compliance with Council of Europe obligations would include a personal attack and speculation on the part of the government regarding Ms. Yunus’s thinking and motives – all the more so when leaving those allegations unchallenged.

The Information Note also fails to elaborate that there was no reason for the Yunuses to remove their belongings from the building as they had a court order explicitly banning the demolition of their property.

The Information Note further leaves unaddressed the government’s claim that the Yunuses demanded US$625,000 for their property, which would be the equivalent of US$7,300 per square meter. Leyla Yunus has repeatedly denied ever making any such demand. 

Finally, the Information Note leaves unchallenged the government’s position that the Yunuses could have resolved a dispute over compensation for her property “through a civil law procedure.” This is precisely what the Yunuses tried persistently to do, and to this end had obtained the court injunction that was violated by the Baku City Executive Authority.

On the recommendations
The co-rapporteurs give the following recommendation: “For any future eviction programmes, the government should ensure a fully transparent process that is clearly provided for in law, and an effective means for registering complaints.”

The Information Note thus entirely ignores the plight of those who have already been victims of unlawful expropriations and evictions. It also fails to address the issue of expropriations being carried out in complete disregard for the safety and security of the residents. Besides effectively registering the complaints, the authorities have the duty to provide for effective remedy.

We urge the Monitoring Committee to revise the Information Note to reflect the concerns outlined in this letter and to ensure it gives an authoritative, accurate assessment in conformity with the Committee’s mandate. The Information Note should clearly conclude that the authorities in Baku have conducted expropriations and evictions in central Baku in violation of Azerbaijani law and European Convention norms, as documented in this letter and in Human Rights Watch’s February 2012 report. In order to remedy the concerns identified, the Committee should urge the Azerbaijani authorities to take the following steps as a matter of urgent priority:

• Provide those who have already been victims of unlawful expropriations and evictions full and fair compensation for their loss and violations endured;
• Halt all further evictions, expropriations, and demolitions until they can be carried out in a fair and transparent manner and in conformity with Azerbaijani national law and international human rights obligations;
• Ensure that any future evictions of homeowners who refuse to leave their properties are carried out with full respect for the safety and dignity of those evicted;
• Ensure that whenever the authorities expropriate property, the relevant authorities establish a mechanism whereby each property affected by 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;
• Provide property owners affected by expropriation with clear information about the timing and legal basis of expropriations, compensation, and resettlement options as well as access to an effective complaint mechanism that addresses grievances in a clear and transparent manner and an effective remedy to resolve complaints.

Thank you very much for your urgent attention to this important matter.

Hugh Williamson
Executive Director
Europe and Central Asia Division