FIRST SECTION
DECISION
Application no. 42574/13
Nazim Huseyn oglu MAMMADOV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 7 November 2023 as a Committee composed of:
Krzysztof Wojtyczek, President,
Lətif Hüseynov,
Ivana Jelić, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 42574/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 20 June 2013 by an Azerbaijani national, Mr Nazim Huseyn oglu Mammadov (Nazim Hüseyn oğlu Məmmədov - "the applicant"), who was born in 1954 and lives in Goygol, and who was represented by Mr H. Hasanov, a lawyer based in Azerbaijan;
the decision to give notice of the complaint under Article 1 of Protocol No. 1 to the Convention to the Azerbaijani Government ("the Government"), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;
the parties' observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the annulment of the applicant's title to a plot of land without any compensation and raises an issue under Article 1 of Protocol No. 1 to the Convention.
2. On 11 March 2004 the Gadabay District R. Aliyev Village Municipality sold a plot of land of 0.08 ha to the applicant for the construction of a mosque, for 280,000 Azerbaijani manats (equal to 56 new Azerbaijani manats (AZN), which was equivalent to approximately 53 euros (EUR) at the relevant time). The following day, the applicant and the municipality concluded a deed of sale (alqı-satqıya dair akt) in respect of the plot of land. On 15 February 2005 the applicant was issued with a deed of title.
3. By a decision of 30 June 2010, the municipality annulled its previous decision of 11 March 2004 on the grounds that the land in question was part of the common land used by the people living in the village and that it had been sold to the applicant unlawfully.
4. In October 2011 the applicant lodged a claim with the Ganja Administrative-Economic Court against the municipality, seeking to have its decision of 30 June 2010 set aside. He also complained that he was not allowed to use his land and asked the court to order the municipality to cease interfering with his property rights, and to award him AZN 100 (approximately EUR 95 at the relevant time) - the money that he had spent on legal and other expenses - in respect of pecuniary damage.
5. On 3 April 2012 the municipality lodged a claim with the same court against the former head of the municipality, the applicant and several State authorities which had issued the relevant documents in respect of the sale of the plot of land and asked that the decision of 11 March 2004 be declared null and void. It also sought the annulment of the deeds of sale and title (see paragraph 2 above). The municipality argued that the plot of land had been in common use as part of a park and that its sale to the applicant, by the previous head of the municipality, had therefore been unlawful.
6. On 30 May 2012 the first-instance court, examining both claims together, found that the municipality had overstepped its powers in annulling its own decision of 11 March 2004. However, it pointed out several irregularities concerning the sale of the plot of land to the applicant. In particular, it found that the minutes and the decision concerning the sale of the land in question had not been registered in the municipality's record book. It further found that the plot of land in question was part of the common land, which could not be privatised under domestic law. The court also noted that although the plot of land had been sold to the applicant in 2004 for the construction of a mosque, he had not applied to the relevant authorities to obtain authorisation to start the construction and had not carried out any work on the land. It thus declared the sale of the plot of land to the applicant null and void and annulled the relevant deeds of sale and title, while noting that the applicant had a right to lodge a claim for compensation.
7. The applicant appealed, asking the Ganja Court of Appeal to quash the first-instance court's judgment and to find a violation of his right of property under Article 1 of Protocol No. 1 to the Convention.
8. On 13 September 2012 the appellate court dismissed the appeal, upholding the lower court's judgment.
9. The applicant lodged a cassation appeal, arguing, mainly, that the plot of land had not been part of the park and had therefore not been in common use.
10. On 9 January 2013 the Supreme Court upheld the appellate court's judgment.
11. The applicant complained under Article 1 of Protocol No. 1 to the Convention that his title to the plot of land had been unlawfully annulled without any compensation.
THE COURT'S ASSESSMENT
12. The Government argued that the applicant had not exhausted domestic remedies, that he had not suffered a significant disadvantage, and that, alternatively, the application was manifestly ill-founded. The applicant disagreed.
13. The Court does not find it necessary to examine all the objections raised by the Government as the application is in any event manifestly ill-founded for the following reasons.
14. The Court firstly notes that the annulment of the applicant's title to the plot of land constituted an interference with his right of property which must be considered a deprivation of possessions. Accordingly, the second rule of Article 1 of Protocol No. 1 to the Convention applies (see Ibrahimbeyov and Others v. Azerbaijan, no. 32380/13, § 45, 16 February 2023, with further references).
15. It must be ascertained whether the deprivation of possessions was lawful and effected in the public interest and whether it pursued a legitimate aim by means reasonably proportionate to the aim sought to be realised.
16. As regards the lawfulness of the interference, the Court notes that when annulling the deed of title, the domestic courts pointed out certain irregularities concerning the sale of the plot of land to the applicant (see paragraph 6 above). They further established that the municipality had not had the right to sell that land to the applicant as it was in common use and could not be privatised. Although the applicant contested the latter finding (see paragraph 9 above), the Court, having examined the case file, finds no cogent reason to question the conclusion reached by the domestic courts. It follows that the interference with the applicant's property rights was a lawful consequence of the application of the relevant domestic provisions. It was aimed at securing respect for the rule of law and was thus in the public interest (compare Ibrahimbeyov and Others, cited above, § 48).
17. As to the proportionality of the measure, Article 1 of Protocol No. 1 requires of any interference that there should be a reasonable relationship of proportionality between the means employed and the aim pursued. This fair balance will be upset if the person concerned has to bear an individual and excessive burden (see, for instance, Yusifli and Others v. Azerbaijan (dec.), nos. 21274/08 and 6 others, § 71, 6 December 2022).
18. In the present case, the plot of land in question was sold to the applicant by the municipality. The relevant authorities which issued the applicant with the deed of title, also failed to detect the irregularities later established by the domestic courts.
19. The Court has on many occasions emphasised the particular importance of the principle of "good governance". This principle should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence. In the context of revoking ownership of a property transferred erroneously, the good governance principle may not only impose on the authorities an obligation to act promptly in correcting their mistake but may also necessitate the payment of adequate compensation or another type of appropriate reparation to its former bona fide holder (see Beinarovič and Others v. Lithuania, nos. 70520/10 and 2 others, §§ 139-40, 12 June 2018, with further references).
20. In the assessment whether adequate compensation was available to the applicant, the Court must have regard to the particular circumstances of each case, including the amounts received and losses incurred and, as the case may be, the availability of compensation and the practical realities in which the applicant found himself or herself (see Pavlinović and Tonić v. Croatia (dec.), nos. 17124/05 and 17126/05, 3 September 2009).
21. In the present case, the applicant was not awarded any compensation. The domestic courts found that although the plot of land had been sold to the applicant for the construction of a mosque, he had not taken any steps in that regard. There is nothing in the case file showing that any construction work had been carried out on the land after its purchase.
22. As to the plot of land, the first-instance court held that the applicant had a right to claim compensation (see paragraph 6 above). The Court observes that domestic law indeed provided for the possibility of claiming damages sustained as result of an unlawful act by a State or local authority (see Ibrahimbeyov and Others, cited above, §§ 31-32). However, the applicant has never brought any proceedings against the municipality asking for the reimbursement of the purchase price or compensation for any other damage sustained as a result of his reliance on the wrongful allocation of the plot of land to him. It is also significant that the applicant never asked the domestic courts for reimbursement of the purchase price paid for the plot of land in the course of the above-mentioned domestic proceedings (ibid., § 56).
23. The Court therefore finds that the possibility of seeking compensation in respect of the plot of land in question was available to the applicant and that he has not substantiated any argument showing that such compensation, if it had been duly sought, would not have been adequate. In such circumstances, seeing that the nullification was necessary for the restoration of legality and that the possibility to seek compensation was open to the applicant at the relevant time, the Court considers that the interference with the applicant's right under Article 1 of Protocol No. 1 did not breach the requirement under that provision that a fair balance must be struck between the individual's Convention rights and the public interest.
24. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons
, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 30 November 2023.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President