FIFTH SECTION

DECISION

Application no. 1776/09 Solmaz Polad gizi ORUJOVA against Azerbaijan

The European Court of Human Rights (Fifth Section), sitting on 17 June 2021 as a Committee composed of:

Lado Chanturia, President, Lətif Hüseynov, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 17 December 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Solmaz Polad gizi Orujova, is an Azerbaijani national, who was born in 1936 and lives in Shabran (previously named Davachi). She was represented before the Court by Mr A. Orujov.

2 . The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Çingiz Əsgərov.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 31 October 2006 the Davachi Municipality decided to sell a plot of land of 10 sq. m, situated outside the entrance of the secondary school no. 1 (“the school”), to the applicant, for construction of a kiosk selling school supplies. According to the receipt dated 30 October 2006 the applicant paid the municipality 200 Azerbaijani manats (AZN) (approximately 171 euros (EUR) at the material time) for the plot of land.

5 . On 5 March 2007 the State Land and Cartography Committee (“the SLCC”) issued an opinion stating that the plot of land in question belonged to the Davachi city and its sale for commercial purposes was lawful.

6 . On 30 May 2007 the Construction and Architecture Department of the Davachi District Executive Authority (“the DDEA”) issued an opinion stating that, after the preparation of relevant documents by the municipality, the applicant had to apply for authorisation to carry out construction on the plot of land. It also contained a warning that in case of failure to do so, the construction would be considered unlawful.

7 . On 12 June 2007 the DDEA issued an order (“the order of 12 June 2007”), signed by its head S.B., allowing the applicant to carry out construction on the plot of land allocated to her.

8 . According to the applicant, on an unspecified date, several days after she had started the construction work, representatives of the DDEA asked her to demolish the construction according to the instruction by N.N., the new head of the DDEA.

9 . According to the applicant, on 11 July 2007 S.A., the head of the Education Department of the Davachi city, demolished her construction following N.N. ’ s instructions.

10 . On 4 September 2007, following a proposal by the pedagogical council of the school, the DDEA issued an order relating to construction of a bas-relief in front of the school, which also covered the area where the plot of land allocated to the applicant was situated. The bas-relief was later transferred to the school ’ s inventory by an order of 12 May 2008.

11 . On 17 June 2008 the DDEA issued an order, signed by N.N., declaring the order of 12 June 2007 null and void. The order stated that (i) when allocating the plot of land in question to the applicant, its status had not been clearly identified; (ii) that area was part of the administrative territory of the secondary school no. 1 according to the decision no. 30 of the Davachi city Council of Working Deputies of 13 December 1957 and was in its use; (iii) although the Davachi municipality issued a decision on allocation of the plot of land, that decision did not generate property rights to the land; (iv) the plot of land had not been registered in the State cadastre and the State register; and (v) the authorisation was given by the order of the former head of the district executive authority on 13 June 2006 without registration of any document (sketch of construction project) at the Construction and Architecture Department of the DDEA.

12 . The applicant brought two separate court proceedings against the head of the DDEA. Those proceedings can be summarised as follows.

13 . On 30 April 2008 the applicant lodged a claim before the Davachi District Court arguing that she had been unlawfully deprived of her property. She argued that the kiosk that she was constructing on the plot of land had been demolished without any court order and her construction materials were stolen under N.N. ’ s instructions. She asked the domestic courts to restore her property rights by returning the plot of land to her, and to award her AZN 25,000 (approximately EUR 19,316) for pecuniary and non-pecuniary damages sustained as a result of N.N. ’ s actions.

14 . At the hearing before the first-instance court of 1 July 2008 the representative of the DDEA submitted, inter alia , that the plot of land in question was part of the school ’ s territory, its allocation by the municipality to the applicant had been unlawful and the DDEA had given neither written nor verbal instructions for demolishing any construction.

15 . The representative of the SLCC submitted that, after receiving the municipality ’ s letter on allocation of the plot of land in question, they had prepared a draft based on the factual situation of the city and drew the plan of the plot of land in question based on that draft. However, since later it was discovered that the plot of land in question belonged to the school and there was a dispute over it, they did not issue the cadastre plan to the applicant.

16 . The representative of the municipality stated that they had erred when allocating the plot of land to the applicant and that, therefore, their decision had been unlawful.

17 . The director of the school and S.A. submitted that no construction work had been carried out by the applicant and no one had stolen her construction materials; part of them were placed inside the school ’ s yard on her instruction and the rest had been sold by the applicant ’ s son.

18 . The court also heard two construction workers who had been employed by the applicant for construction work. One of them stated that they had carried the construction materials inside the school ’ s yard following the school director ’ s request. The other stated that N.N. had seen him carrying out construction work and after several days, he had been asked to stop the work.

19 . The first-instance court firstly examined the plan of the school from 1960, and the decision of 13 December 1957 of the Davachi city Council of Working Deputies, whereby two hectares of land had been allocated for construction of a new school building and concluded that the plot of land allocated to the applicant was part of the school ’ s territory. Referring, inter alia , to Article 67.4 of the Land Code and Articles 178.1 and 178.2 of the Civil Code (see paragraphs 36 and 37-38 below), the court stated that the applicant had failed to register her right over the plot of land in the State register of immovable property. Therefore, the court concluded that she had not acquired any property rights in respect of the plot of land. The court further noted some irregularities in allocation of the plot of land, holding that the opinion by the SLCC and the plan of the plot of land had to be obtained before the municipality ’ s decision to sell it, contrary to the situation in the present case. The court also referred to the order of 17 June 2008 and stated that the order of 12 June 2007 authorising the applicant to construct a kiosk had been invalidated.

20 . As to the applicant ’ s claims for damages, the first-instance court dismissed them holding that the applicant had failed to provide any proof showing that she had sustained any damage. It noted that, as established during the hearing, some construction materials had been sold by the applicant herself, while the rest had been kept inside the school ’ s yard.

21 . The applicant appealed arguing, inter alia , that her failure to register the plot of land in the State cadastre and State register could not be a basis for demolition of her construction and that her construction materials had been stolen.

22 . On 4 September 2008 the appellate court upheld the lower court ’ s judgment reiterating the same reasoning.

23 . On 5 November 2008 the Supreme Court dismissed the applicant ’ s cassation appeal.

24 . On 10 December 2008 the applicant lodged a new claim and asked the domestic authorities to declare the DDEA ’ s orders of 12 May 2008 and 17 June 2008 null and void. She complained that N.N. had unlawfully destroyed her construction, invalidated the order of 12 June 2007 and ordered the construction of a bas-relief in order to embezzle State funds.

25 . On 12 May 2009 the Gubadli District Court, referring, inter alia, to Article 44.2 of the Law on normative acts (see paragraph 40 below) dismissed her claims. It referred to the letter of 16 May 2008 of the Khachmaz City Regional Department of the State Real Estate Registration Service which stated that the applicant had not been issued the relevant document of ownership to the plot of land due to the fact that the documents she submitted were incomplete. It also referred to the Davachi District Court ’ s judgment of 8 August 2008 finding that the plot of land allocated to the applicant was State property and declaring the decision of 31 October 2006 null and void (see paragraph 32 below).

26 . The applicant appealed, reiterating her previous arguments and arguing that the area where the plot of land allocated to her was situated had never been part of the school ’ s territory.

27 . On 14 September 2009 the Sumgayit Court of Appeal upheld the first-instance court ’ s judgment reiterating its reasoning.

28 . On 11 February 2010 the Supreme Court dismissed the applicant ’ s cassation appeal.

29 . On an unspecified date, the director of the school brought proceedings against the municipality asking the courts to invalidate its decision of 31 October 2006 (see paragraph 4 above) .

30 . It appears from the case file that the applicant was summoned by the first-instance court as an interested party to the proceedings but failed to appear during the hearing.

31 . At the hearing, the representative of the municipality accepted the claim and reiterated that the municipality had not been aware that the plot of land in question was part of the school ’ s territory when allocating it to the applicant. After discovering this fact, it had offered her another plot of land, which she had refused.

32 . On 8 August 2008 the Davachi District Court granted the claim and invalidated the decision of 31 October 2006. The court noted that the plot of land in question was the property of the State and not the municipality and, therefore, the municipality ’ s decision to sell it had been unlawful. It further held that the applicant had not acquired any property rights to the plot of land because she had failed to register her rights in the State register as required under Article 178.1 of the Civil Code.

33 . The applicant appealed presenting similar arguments as in the previous proceedings.

34 . On 16 December 2008 and 31 March 2009, respectively, the Sumgayit Court of Appeal and the Supreme Court dismissed her appeals.

35 . Article 55 of the Code provided as follows:

“Physical and legal persons ’ rights over the plot of land are established on the basis of the following:

decisions of the relevant executive authorities and municipalities and contracts concluded with them; ...”

“The State does not guarantee protection and inviolability of the unregistered rights over the land.”

37 . Article 178.1 of the Code, as in force at the material time, provided that the ownership right to immovable property passed to the acquirer from the moment of the registration of the transfer of the ownership in the State register of immovable property.

“Ownership right over a new immovable property is established from the moment of the property ’ s registration in the State register.”

39 . Article 6.2 of the Law provided that allocation of the plots of land in the municipality ’ s ownership to physical persons had to be carried out on the basis of a decision by the municipalities and a contract concluded between the parties.

40 . Article 44.2 of the Law, in force at the material time, provided that a normative act was invalidated by an act of the authority which had issued it or by another authority authorised by law.

41 . Article 20.3 of the Rules, in force at the material time, provided that the architecture and construction services of the local executive authorities and municipalities could issue permits to start construction after obtaining the opinion of the relevant State authorities and the approval of the construction project in accordance with these Rules. Otherwise, the construction had to be stopped.

42 . Article 11 of the Regulation provided that physical persons could apply to municipalities for allocation of a plot of land.

43 . Under Article 17 of the Regulation, if the municipality considered the allocation possible, it had to forward such requests within five days to the SLCC to prepare the plan of the plot of land.

44 . Under Article 18 of the Regulation the SLCC had to determine the location of the plot of land to be allocated and the zone where it was situated (for the purpose of determining the normative price of the land).

45 . Article 25 of the Regulation provided that upon receipt of the above ‑ mentioned documents the municipality issued a decision on allocation of the plot of land. A sale and purchase contract had to be concluded and the purchase price of the land had to be paid within the period specified in that decision.

COMPLAINTS

46 . The applicant complained under Article 1 of Protocol No. 1 to the Convention that she had been unlawfully deprived of her property.

47 . The applicant further complained under Article 6 of the Convention that the domestic courts had delivered unreasoned judgments in her case.

48 . Relying on Article 13 of the Convention, the applicant complained that she had not been afforded a remedy providing effective protection against the violation of her property rights.

THE LAW

49 . The applicant complained under Article 6 and Article 1 of Protocol No. 1, that she had been unlawfully deprived of her property and that the domestic courts ’ decisions in that respect had not been reasoned. The Court, being master of the characterisation to be given in law to the facts of the case, will examine the complaints solely under Article 1 of Protocol No. 1 to the Convention, the first paragraph of which reads as follows:

“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.”

50 . The Government argued that the applicant cannot claim to be in possession of the plot of land since she had failed to register her title to it as required under domestic law. They submitted, in respect of the kiosk, that no reliable evidence of being deprived of the property or any damage to it had been presented by the applicant. It was thus impossible for the authorities to calculate the damage she had allegedly suffered.

51 . The applicant disagreed with the Government ’ s submission that the land was not her “possession”. As to the merits, she argued that the area where the plot of land in question was situated was not State property and belonged to the municipality. She complained that the invalidation of the decision of 31 October 2006 on the basis of the school director ’ s action had been unlawful. She further complained that N.N. had unlawfully declared the order of 12 June 2007 null and void, and that her construction had been demolished under his instructions.

52 . The Court notes that the applicant ’ s complaints concern both the plot of land and the construction allegedly built on it. The Court will examine them separately below.

(a) As regards the plot of land

53 . The Court firstly observes that the parties disagree as to whether the plot of land in question constituted the applicant ’ s “possession”.

54 . The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of this provision. “Possessions” can be “existing possessions” or claims that are sufficiently established to be regarded as “assets”. The Court has also referred to claims in respect of which an applicant can argue that he or she has at least a “legitimate expectation” that they will be realised, that is, that he or she will obtain effective enjoyment of a property right. However, a legitimate expectation has no independent existence; it must be attached to a proprietary interest for which there is a sufficient legal basis in national law (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 142-43, 20 March 2018, and the cases cited therein).

55 . The Court observes that under domestic law, upon receipt of a request from physical persons for allocation of a plot of land, the municipalities had to first forward the request, for preparation of the plan of the plot of land, to the SLCC, who then had to determine the location of the plot of land to be allocated and the zone where it was situated. Once these documents were sent to the municipality, it could issue a decision to sell the plot of land, which had to indicate the purchase price and the period within which a sale and purchase contract had to be concluded (see paragraphs 42 ‑ 45 above).

56 . However, as established by the domestic courts, in the present case the relevant opinions of the SLCC were obtained several months after the decision of 31 October 2006 was issued (see paragraph 19 above). Moreover, according to the provisions of domestic law, apart from the decision on allocation of a plot of land, the conclusion of a sale and purchase contract between the parties was also necessary (see paragraphs 35, 39 and 45 above). No such contract had been concluded in the present case. No reasons have been provided for this failure.

57 . It appears from the case file that the SLCC later refused to issue the applicant a cadastre plan after finding out that the plot of land in question was part of the school ’ s territory and her ownership rights over the plot of land were not registered by the relevant authority due to her documents being incomplete (see paragraphs 15 and 25 above). As a result, the applicant ’ s title to the plot of land had never been entered in the State register of immovable property as required under Article 178.1 of the Civil Code and, therefore, she had never acquired any property rights in respect of it under domestic law (see paragraphs 19 and 32 above).

58 . The Court notes that the decision of 31 October 2006 was declared null and void by the first-instance court on 8 August 2008 upon finding that the plot of land was the property of the State and not the municipality and, therefore, the municipality ’ s decision to sell it had been unlawful. This decision was later upheld by the higher courts (see paragraphs 32-34 above). In that connection, the Court observes that as a general principle the authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. Holding otherwise may lead to a situation which runs contrary to the public interest (see Yavashev and Others v. Bulgaria , no. 41661/05, § 64, 6 November 2012). Having regard to the time period between the dates of the issuance of the above decision and its nullification, the Court considers that the domestic authorities did not fail to act promptly in correcting their mistake. While the situation at hand during that time period may have caused the applicant to expect that she would obtain ownership over the plot of land, it has not been demonstrated to the Court that there was sufficient legal basis under domestic law which could give rise to a “legitimate expectation” of acquiring such ownership rights in the circumstances of the present case.

59 . In view of the above, the Court finds that the applicant did not have an existing possession or a claim constituting an asset within the meaning of Article 1 of Protocol No. 1 to the Convention (compare Çakar v. Turkey (dec.), no. 47136/06, § 29, 25 April 2017).

60 . It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

(b) As regards the construction

61 . The Government did not dispute the existence of the applicant ’ s “possessions” in respect of the construction but argued that the applicant had failed to present any proof in respect of being “deprived of the property or any damage to it”.

62 . The Court observes that it is not clear from the domestic courts ’ decisions whether they established that the applicant had started any construction which was later allegedly demolished. They noted only that some of the construction materials were sold by the applicant, while the rest were kept in the school ’ s yard (see paragraph 20 above). In any event, even assuming that the applicant had indeed started construction of a kiosk following the order of 12 June 2007, the Court considers that it did not constitute the applicant ’ s “possessions” within the meaning of Article 1 of Protocol No. 1 for the following reasons.

63 . It appears from the case file that the applicant had applied for authorisation for construction before obtaining all necessary documents, namely a sketch of the construction project. The applicant has not contested this fact (see paragraphs 11 and 19 above). While it is true that the former head of the DDEA issued an order authorising construction by the applicant in the absence of the relevant documents, the applicant was or should have been aware that such authorisation, in the absence of those documents, did not fully comply with the requirements of domestic law. Furthermore, it is also relevant that the applicant had started construction work without having been issued the cadastre plan and the ownership documents to the plot of land.

64 . In view of the above, the applicant had neither a “possession” under Article 1 of Protocol No. 1 nor a legitimate expectation under the relevant domestic law of obtaining recognition of her rights to such construction.

65 . It follows that this part of the complaint is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

66 . The applicant complained that she did not have effective domestic remedies in respect of her complaints. She relied on 13 of the Convention, which read as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

67 . The Court, having declared inadmissible the substantive complaint under Article 1 of Protocol No. 1, concludes that the applicant has no arguable claim for the purposes of Article 13 of the Convention (compare Kozaliev and Starchev v. Bulgaria (dec.), no. 59845/14, § 44, 15 September 2020). It follows that the complaint under Article 13 of the Convention must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 July 2021 .

             {signature_p_2}

Martina Keller Lado Chanturia Deputy Registrar President