What changes will Constitutional amendments bring to property rights?!

On September 26, 2016, at the proposal of Azerbaijani President Ilham Aliyev there will be certain changes made to the country’s constitution 

The draft Referendum Act entails two new paragraphs (4th and 5th) added to Article 29 of Constitution on Property Rights. The article reads:

IV. "Private property causes certain social obligations."

V. "For achieving social justice as well as efficient use of land, rights for private property can be restricted by law."

Like in many other modern states, property rights in Azerbaijan are not only limited to being a category of human rights. It also serves as one of the pillars of the state. Therefore, property rights are first defined under Article 13 of Section 2, within “Fundamentals of the State" of Constitution.

Also mentioned in Article 29 of Section 3 under “Basic rights, liberties and responsibilities” of the Constitution, the subject of property rights is strengthened again as a primary human right.

Article 155 of the Constitution which declares property rights to be one of the most prominent human rights and liberties as mentioned in Section 3, states that recommendations over limiting these rights beyond accepted norms of international treaties ratified by Azerbaijani Republic cannot be taken to referendum.

The last one being in 2009, the Constitution of Azerbaijan has changed twice already. As a result of the last change, acquisition of private property by force for “public use” has been taken out of the Constitution. This change was made due to observed tendency of forcible expropriation of a private property which was incompatible with state guarantee of private ownership.

Ostensibly, lack of clear explanation in legislation on expropriation of private property for “public use” was allowing forcible acquisition to occur.

Followed by the changes made to the Constitution as well as adoption of law on “Acquisition of lands for public use”, the state has identified 5 cases[1] which restricts unlawful expropriation of private property.

If adopted, the new referendum act will further expand restrictions of the right to property.

The Constitutional amendment states that private property bears certain “social obligation”. But "social obligation" concept can be defined in many diverse ways. At the same time in constitutional and administrative law, social obligation is used as a concept that is characterized more of a state obligation. Therefore, "social obligation" concept is uncertain about whose obligations the landowner bears as well as areas defining the borders of their social obligations are unclear. Thus, landowners can face interventions to their property which could be any projects or event carrying social function or status. Such uncertainty with broad discretion to authority will severely damage property rights that is poorly protected in the country.

Another matter of concern is that the proposed amendment contradicts with another provision of the Constitution. Although Paragraph 2 of Article 29 precisely states giving no preference to the kind of property, the proposed provision "private property causes social obligations" refers only to private property while prioritizing lands under the state or municipality mandate.

In addition, according to Annex 2 to Article 29, the term “social justice” used in provision “Property rights over land ownership can be restricted by law for achieving social justice and efficient use of lands” is wide enough, by itself, to be ground for increase of unlawful restrictions for property rights on land ownership.

The second justification to proposed provision is “achieving efficient use of land”. Land laws are directed towards achieving effective land use and protection, as well as the maintenance and improvement of the natural environment, which is a legitimate objective for considering such restrictions. In order to ensure effective use of lands, the Land law as well as the Land Code imposes certain restrictions on private owners. However, with current constitutional amendments, property rights are severely restricted.

Conclusively, new constitutional amendments will extend the scope of possible interventions and restrictions permissible with property rights, which will weaken the protection of property rights in general. Particularly, addition of ambiguous phrases to the Constitution in an environment with no independent and effective judicial defense mechanism will lead to numerous disputes and contradictions which will weaken the protection of property rights.  

  • [1] State needs a) construction and installation of state roads and other communication lines (oil and gas pipelines, sewers, high-voltage power lines, hydraulic structures); b) to ensure reliable protection of the state frontiers; c) construction of important defence and state security facilities; d) the construction of facilities for public mining; e) extension of of sea port area.

    Emin Isayev,    Lawyer