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FIRST
SECTION
CASE OF RAHMANOVA v. AZERBAIJAN
(Application
no. 34640/02)
JUDGMENT
STRASBOURG
10 July
2008
This
judgment is final but it may be subject to editorial revision. This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Rahmanova v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 19 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34640/02) 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”) by an Azerbaijani national,
Mrs Leyli Pasha qizi Rahmanova (Leyli Paşa
qızı Rəhmanova – “the
applicant”), on 5 September 2002.
- The
applicant was represented by Mr N. Abdullayev, a lawyer practising in
Baku. The Azerbaijani Government (“the Government”) were
represented by their Agent, Mr C. Asgarov.
- The
applicant alleged that the quashing of the final judicial decision in
her favour by way of the procedure of additional cassation had
violated her rights under Articles 6 § 1 and 13 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
- By
a decision of 1 September 2005 the Court declared the application
admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Facts leading to litigation
- The
applicant was born in 1938 and lives in Baku.
- She
owned a three-room apartment in Baku. In 1991, after getting married,
the applicant’s son and his wife (G.R.) moved into the
applicant’s apartment. After some time, the applicant’s
relations with G.R. started to deteriorate. For this reason, the
family decided to divide the apartment, with two rooms taken by the
applicant and the remaining one room by her son and G.R.
- In
1995 they decided to sell the apartment, divide the proceeds and live
separately thereafter. After the sale of the apartment, the applicant
used her part of the proceeds to purchase herself a new, smaller
apartment, where she began to live alone. Her son and G.R. used their
part of the proceeds to pay off their debts and resided temporarily
in various places.
- According
to the applicant, in 1996 her son asked her to temporarily register
him and his family in her new apartment as co-residents. He explained
that without proper residence documents he was unable to get a job.
The applicant allowed her son and G.R. to register temporarily, for a
term of one year, as co-residents in her apartment. However,
according to the applicant, pursuant to their agreement, her son and
G.R. never moved in and never lived in the apartment. Later, the
applicant successfully applied for their removal from the relevant
registration records.
- In
2001 the applicant’s son and G.R. divorced. They had two
children who appear to have stayed in G.R.’s custody.
B. Original proceedings
- In
2000 G.R. filed a lawsuit, claiming the right to reside in the
applicant’s apartment with her children and requesting the
court to order their re-registration in the apartment as the
applicant’s co-residents. On 24 July 2000 the Narimanov
District Court upheld G.R.’s claim and recognised her and her
children’s residence rights to the apartment.
- Upon
an appeal by the applicant, on 29 August 2000 the Baku City Court
(the court of cassation under the old civil procedure laws effective
at that time) quashed the district court’s judgment, finding
that it had not assessed all the relevant facts of the case. The case
was remitted for re-trial at the first instance.
- After
re-trial, on 8 December 2000 the Narimanov District Court ruled in
the applicant’s favour and dismissed G.R.’s claims. It
found that G.R. had failed to produce sufficient evidence supporting
her claims to the apartment.
- On
27 March 2001 the Court of Appeal, in the absence of the applicant,
set aside the district court’s second judgment and ruled in
G.R.’s favour. Contrary to the applicant’s arguments, it
determined that G.R. had permanent registration in the disputed
apartment and, therefore, had residence rights.
- Upon
the applicant’s appeal in cassation, on 4 July 2001 the Supreme
Court quashed the Court of Appeal’s judgment. It found that the
Court of Appeal had breached the procedural rules by hearing the case
in the applicant’s absence. Furthermore, it found that the
Court of Appeal had failed to consider certain crucial facts,
including the fact that G.R. had allegedly never resided in the
disputed apartment. The case was remitted back to the Court of Appeal
for re-examination.
- On
11 October 2001 the Court of Appeal found that G.R.’s
registration in the disputed apartment had been temporary, that she
had never lived there and never engaged in joint household activities
with the applicant. Thus, relying on the relevant provisions of the
Housing Code, the court held that G.R. had never acquired residence
rights to the apartment. Accordingly, it dismissed G.R.’s
appeal and upheld the district court’s ruling of 8 December
2000 in favour of the applicant.
- On
11 January 2002 the Supreme Court upheld the Court of Appeal’s
judgment. The Supreme Court’s decision became final and
enforceable upon its delivery.
C. Reopening of the proceedings
- Having
disagreed with the outcome of the proceedings in the domestic courts,
G.R. filed an additional cassation appeal asking for a review of the
Supreme Court’s final decision by the Plenum of the Supreme
Court (“the Plenum”). By a
letter of 14 May 2002, the President of the Supreme Court rejected
G.R.’s request, finding no grounds for reopening the
proceedings in the Plenum and confirming the correctness of the
Supreme Court’s decision.
- However,
contrary to the rejection letter of 14 May 2002 and under
circumstances unknown to the applicant, on 19 July 2002 the case was
actually referred to and reviewed by the Plenum. At that time, more
than six months had passed from the Supreme Court’s decision of
11 January 2002.
- The
Plenum noted that the main argument for the lower courts’
decisions in the applicant’s favour had been that G.R. and her
children had never lived in the apartment. It deemed that, under
domestic law, this fact was an insufficient basis for adjudging the
case in the applicant’s favour. The Plenum further found that
the lower courts had misapplied the domestic law and failed to
establish the facts necessary for applying the appropriate legal
provisions. It held that, instead, it would be proper to apply
Articles 60 and 87 of the Housing Code, as well as the decision of
the Constitutional Court of 12 March 1999 on the interpretation of
Article 60 of the Housing Code. In accordance with these provisions,
the Plenum found that the facts of the case did not establish grounds
for G.R.’s loss of residence rights to the apartment.
- In
conclusion, the Plenum “varied” the Supreme Court’s
decision of 11 January 2002 and ordered that G.R. and her children be
allowed to move into the applicant’s apartment.
D. Latest developments in the case
- On
8 January 2005 the applicant sold the apartment to G.R. The sale
contract was certified by a notary public. According to the contract,
the purchase price was 140,000,000 Azerbaijani manats. On 24 February
2005 G.R. obtained an ownership certificate to the apartment as its
sole owner.
- It
appears that the applicant moved out of the apartment after the sale
and established residence elsewhere.
- In
October 2006 the applicant challenged the validity of the sale
contract of 8 January 2005 in the domestic courts. She relied on two
arguments. First, she argued that she had not known that she was
signing a contract concerning the sale of the apartment, because G.R.
had lied to her about the nature of the contract. Second, the
applicant argued that the contract had been drafted in the new Latin
alphabet,
which she allegedly did not know how to read.
- Following
a series of appeals, on 20 November 2007 the Supreme Court upheld the
lower courts’ ruling dismissing the applicant’s claim. It
held that the claim was unsubstantiated as there was sufficient
evidence in the case file proving that the sale contract was valid
and that she had sold and moved out of the apartment voluntarily. It
found that the contract had been duly concluded in the presence of a
notary public. The court further noted that, shortly after the sale,
the applicant applied for the removal of her name from the
apartment’s registration documents and that, from 4 April 2005,
she had been registered as a resident of another apartment pursuant
to her own application. It further noted the existence of documentary
evidence showing that, after the sale, G.R. and her children were
registered as residents in the disputed apartment and that G.R. paid
all the communal charges for the apartment.
II. RELEVANT DOMESTIC LAW
A. Legislation
- The
Law on Courts and Judges of 1997 provides as follows:
Article 77. The Supreme Court
“[T]he Supreme Court shall be the highest judicial
authority with regard to civil ..., criminal, administrative and
other disputes falling within the jurisdiction of the general and
specialised courts.
The Supreme Court [is] a court of cassation instance
...”
Article 79. The Plenum of the Supreme
Court and its competence
“The Plenum of the Supreme Court shall be composed
of the President, Vice Presidents and judges of the Supreme Court,
the President of the Economic Court, the President of the Court of
Appeal and the President of the Supreme Court of the Nakhchivan
Autonomous Republic. ...
The Plenum of the Supreme Court ... shall, in the manner
established by law, review cases under the procedure of additional
cassation ..., on submission of the President of the Supreme Court,
or pursuant to a protest by the Chief Prosecutor or appeal by the
defendant ...”
Article 83. The competence of the
President of the Supreme Court
“The President of the Supreme Court ... shall, in
cases and under the procedure provided by law, submit
cassation-instance decisions for the review of the Plenum of the
Supreme Court ...”
- The
Code of Civil Procedure of the Republic of Azerbaijan of 2000
provides as follows:
Article 419. The decision of the
cassation-instance court
“419.4. The decision [of the
cassation-instance court] shall enter into force from the moment of
its delivery.”
Article 422. Review of cassation-instance
decisions
“Decisions of the Supreme Court of the Republic of
Azerbaijan ... may be reviewed by the Plenum of the Supreme Court of
the Republic of Azerbaijan under the procedure of additional
cassation upon a submission, appeal or protest.”
Article 423. The right to file a
submission, appeal or protest
“A submission concerning a decision of the Supreme
Court of the Republic of Azerbaijan ... may be made by the President
of the Supreme Court on the basis of an application by persons
non-parties to the case whose interests are affected by the judicial
acts. An appeal may be filed by a party to the case represented by an
advocate. [A protest may be filed by the Chief Prosecutor in certain
specified circumstances.]”
Article 424. The grounds for review by the
Plenum of the Supreme Court
“424.1. The Plenum considers cases
exclusively on the points of law.
424.2. The grounds for quashing decisions of
the cassation-instance court are the following:
424.2.1. the decision of the
cassation-instance court is based on a legal norm declared
unconstitutional by the Constitutional Court;
424.2.2. the cassation-instance court’s
ruling infringes the rights of persons who were not a party to the
proceedings;
424.2.3. there is no substantive basis for
the reasons referred to in the decision of the cassation-instance
court;
424.2.4. the resolutive part of the decision
of the cassation-instance court does not correspond to its
descriptive and reasoning parts.”
Article 426. Referral of a submission,
appeal or protest [to the Plenum]
“426.1. If appropriate grounds exist,
the President [of the Supreme Court] shall refer the submission,
appeal or protest, together with the case file, to the Plenum of the
Supreme Court.
426.2. The submission, appeal or protest
shall be filed within two months after the date of delivery of the
[relevant] decision of the Supreme Court. ...”
Article 429. The competence of the Plenum
of the Supreme Court
“429.0. Upon review of a case under the
procedure of additional cassation, the Plenum of the Supreme Court
has the competence to: ...
429.0.1. uphold the decision of the
cassation-instance court and dismiss the submission, appeal or
protest;
429.0.2. vary the decision of the
cassation-instance court;
429.0.3. quash, in full or in part, the
decision of the cassation-instance court, as well as the related
decision of the appellate court, and remit the case for
re-examination by the appellate court; ...”
B. Position of the Constitutional Court
- In
its decision On review of the conformity of the decision of the
Plenum of the Supreme Court of 1 February 2002 to the
Constitution and laws of the Republic of Azerbaijan, based on the
complaint by A.H. Zalov, dated 21 May 2004, the Constitutional
Court expressed its position concerning the competence of the Plenum
of the Supreme Court to vary the final decisions of the Supreme Court
under the procedure of additional cassation.
- The
Constitutional Court acknowledged that, according to Article 429.0.2
of the CCP, the Plenum of the Supreme Court was empowered to vary
(that is, introduce amendments to) the decision of the
cassation instance court. However, amendments made in such a
manner could comprise only matters that were not related to the
merits of the case. The Plenum of the Supreme
Court could vary the cassation-instance court’s decision only
if the factual circumstances of the case had been fully established
by the lower courts, and if there was no need for a new inquiry into
the circumstances of the case, re-assessment of evidence or
examination of additional evidence. Since the cassation-instance
court could not examine the case on points of fact, it followed that
the Plenum of the Supreme Court could not vary the cassation-instance
court’s decision relying upon the factual circumstances of the
case either.
- The
Constitutional Court further held that, unlike the first-instance and
appellate courts, the courts of cassation and additional cassation
did not have competence to deliver a judgment on the merits. If,
during the additional-cassation review, the Plenum of the Supreme
Court found that the circumstances of the case had not been clearly
established during the original proceedings and that it was necessary
to admit and assess additional evidence, the Plenum had to quash the
erroneous decision of the Supreme Court, as well as the related
judgment of the Court of Appeal, and remit the case for
re-examination in the Court of Appeal. Accordingly, if it discovered
judicial errors in the Supreme Court’s decision, the Plenum of
the Supreme Court had no competence to rule on the merits, thus
substituting its own judgment for the judgment of the lower courts,
but was obligated to remit the case to the appropriate judicial
instance.
C. Domestic practice
- Additional
cassation proceedings in the Plenum of the Supreme Court can be
initiated at the discretion of the President of the Supreme Court,
and may be done so following a motion (an additional cassation
appeal) by a party to the proceedings. The Plenum itself does not
take a decision on the reopening of the proceedings and admissibility
of additional cassation appeals.
- An
additional cassation appeal is first submitted to the President of
the Supreme Court. The President, at his or her sole discretion and
without holding any formal judicial hearing, decides if there are any
grounds to reopen the case and transmit the appeal to the Plenum. If
the President decides that the proceedings should be reopened, he or
she then transmits the additional cassation appeal, together with the
case file, for the in substance review of the Plenum at its next
sitting. Meanwhile, if necessary, the President may issue an order
suspending the execution of the final judgment pending the review of
the case by the Plenum.
- If
the President deems that there are no grounds for additional
cassation review, he or she sends a rejection letter to the
applicant, briefly describing the reasons for the refusal to reopen
the proceedings and to transmit the appeal to the Plenum.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
A. The parties’ submissions
- On
31 May 2006 the Government informed the Court for the first time
about the fact that the applicant had sold her apartment on 8 January
2005 and was no longer its owner (see paragraphs 22-23 above).
Although the sale had taken place prior to the Court’s decision
on admissibility in the present case, the applicant had failed to
inform the Court about it and the Court examined the admissibility of
the applicant’s complaints without knowledge of this fact. The
Government claimed to have likewise had no knowledge of this fact
prior to the Court’s decision on admissibility.
- Relying
on Rule 47 of the Rules of Court, the Government argued that the
applicant’s failure to disclose all the facts of the case
amounted to an abuse of the right of petition under Article 35 §
3 of the Convention. Alternatively, the Government argued that the
applicant was no longer a victim of the alleged violations (in
particular, the alleged violation of Article 1 of Protocol No. 1 to
the Convention) within the meaning of Article 34 of the Convention,
because the private sale of the apartment led to a situation where it
would no longer be possible for the State to “restore”
the applicant’s property rights to her.
- Asked
by the Court to comment on the Government’s objections, the
applicant replied that she had not been aware that she had, in fact,
concluded a sale contract with G.R. on 8 January 2005. Therefore, she
could not have informed the Court about this fact because she had not
been aware of it. She maintained that she had been defrauded by G.R.
and forced to sign the contract without understanding its true
nature. She had allegedly been led to believe that she was signing a
contract relating to a different matter. She also claimed that she
could not understand the text of the contract that she had signed
because she could not read or write in the new Latin alphabet.
B. The Court’s assessment
- The
Court reiterates that, pursuant to Rule 55 of the Rules of Court, any
plea of inadmissibility must be made by the respondent Party in its
observations on the admissibility of the application, in so far as
its character and the circumstances permit. Unless there are
particular reasons which would have absolved the Government from
raising their objection in the proceedings on admissibility, they are
stopped from doing so at a later stage (see Akimova v. Azerbaijan,
no. 19853/03, § 32, 27 September 2007). In the
present case, however, the Court accepts the Government’s
argument that they had no knowledge of the fact of the apartment’s
sale prior to the Court’s decision on admissibility. As it was
a transaction between private parties and the applicant’s court
action challenging its validity took place after the Court’s
decision on admissibility, it is reasonable to make an inference that
the Government may not have been immediately aware of it.
Accordingly, it cannot be concluded that the Government are stopped
from raising their objections at this stage of the proceedings. The
Court will therefore proceed to examine them.
- As
to the Government’s argument concerning abuse of the right of
petition, the Court reiterates that, according to Rule 47 § 6 of
the Rules of Court, applicants shall keep the Court informed of all
circumstances relevant to the application. An application may be
rejected as abusive under Article 35 § 3 of the Convention if,
among other reasons, it was knowingly based on untrue facts (see
Varbanov v. Bulgaria no. 31365/96, § 36, ECHR
2000-X; Řehák v. Czech Republic (dec.), no.
67208/01, 18 May 2004; and Kérétchachvili
v. Georgia (dec.), no. 5667/02, 2 May 2006). Incomplete and
therefore misleading information may also amount to abuse of the
right of application, especially if the information concerns the very
core of the case and no sufficient explanation is given for the
failure to disclose that information (see Hüttner v. Germany
(dec.), no. 23130/04, 19 June 2006).
- In
the present case, it indeed seems that the applicant failed to
disclose and subsequently misrepresented the information concerning
the sale of the apartment. The Court notes that after it had asked
the applicant to comment on the Government’s objections
concerning her failure to disclose this information, she attempted to
challenge the validity of the sale contract in the domestic courts.
At the outcome of those proceedings, it was found that the contract
was valid and that, accordingly, the applicant had been fully aware
of the nature of the contract at the time it was concluded (see
paragraphs 24-25 above). In the absence of any indication that these
proceedings were somehow unfair or arbitrary, the Court accepts the
factual findings of the domestic courts in those proceedings.
- Moreover,
as it appears from the materials made available to the Court, shortly
after the sale of her title to the apartment the applicant had
changed the registration of her residence from the disputed apartment
to another by filing the necessary applications with the relevant
authorities. Therefore, whereas the facts of the case show that the
applicant had voluntarily applied to change her residence records and
moved out of the sold apartment, the Court finds it difficult to
believe her submission that she had no intention to sell her
apartment and that she had concluded the sale contract without the
knowledge that it was in fact a sale contract. It is equally
difficult to accept the applicant’s argument that she could not
read or write Azeri in the Latin alphabet, taking into account the
fact that her initial application to the Court was drafted using the
Latin alphabet by the applicant herself at the stage when she was not
yet represented by a lawyer.
- Nevertheless,
the Court is of the opinion that the applicant’s failure to
disclose the information concerning the subsequent sale of her title
to the apartment, even if intentional, cannot be considered as
amounting to abuse of the right of petition. The withheld information
did not concern “the very core of the case” and was not
directly relevant to any of the applicant’s complaints. The
mere fact that the applicant sold the apartment at a later date,
pursuant to a private agreement, was not capable of changing the
Court’s reasoning, both in its decision on admissibility and in
the present judgment, with regard to the alleged violation of the
applicant’s rights due to the Plenum’s decision of 19
July 2002.
- Likewise,
the Court cannot agree with the objection that the applicant can no
longer be considered a victim of the alleged violation of Article 1
of Protocol No. 1 to the Convention. The applicant’s complaint
concerns the restriction of her property rights to the apartment by
the Plenum’s decision of 19 July 2002. Although it is
undisputed that after the alleged interference the applicant still
remained the apartment’s title holder, her property rights to
it were allegedly restricted after the Plenum’s decision. The
fact that she subsequently sold her title to the apartment does not
deprive her of the status of a victim during the period prior to this
sale.
- For
the above reasons, the Court rejects the Government’s
preliminary objections.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained that the reopening of the proceedings and the
decision of the Supreme Court’s Plenum of 19 July 2002 had
violated her rights under Articles 6 § 1 and 13 of the
Convention. In particular, she maintained that the reopening of the
proceedings and setting aside of the final decision of 11 January
2002 set at naught the entire judicial process that had ended in her
favour. She also complained that she had not been informed about the
referral of the case to the Plenum and had not been invited to attend
the hearing. Lastly, she complained that the Plenum had exceeded its
competence by examining the case on points of fact and delivering a
new judgment on the merits.
Article
6 § 1 of the Convention provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
Article
13 of the Convention provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] 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.”
A. The parties’ submissions
- The
Government argued that the reopening of the proceedings had been
carried out in a lawful manner. Even though the President of the
Supreme Court initially rejected G.R.’s request for a reopening
of the proceedings, the Plenum nevertheless had competence to decide,
of its own motion, to reopen the proceedings and to examine the case.
There was no provision in the domestic law prohibiting the referral
of the additional cassation appeal to the Plenum despite a prior
refusal by the Supreme Court’s President to re-open the
proceedings.
- The
Government further submitted that Article 426.2 of the Code of Civil
Procedure (“the CCP”) provided for a two-month deadline
for filing an additional cassation appeal. However, the domestic law
did not establish any time-limits for examination of such an appeal
by the Plenum.
- As
to the Plenum’s competence to vary the Supreme Court’s
final decision, the Government maintained that the Plenum had not
exceeded its competence, because under Article 429.0.2 of the CCP it
was specifically empowered to do so. According to the Government, the
Plenum examined the case exclusively on the points of law. It did not
establish any new facts, but simply assessed the facts as established
by the domestic courts and applied another set of domestic legal
provisions to those facts.
- The
applicant submitted that, in accordance with the domestic law, the
reopening of the proceedings and referral of the case to the Plenum
was within the exclusive competence of the Supreme Court’s
President. Any additional cassation appeal was to be submitted to the
Supreme Court’s President and not directly to the Plenum. The
Plenum had no competence to examine the case of its own motion in the
absence of a referral by the President of the Supreme Court.
Accordingly, the applicant submitted that the examination of the case
by the Plenum after the Supreme Court’s President’s
refusal to reopen the proceedings had been unlawful under the
domestic law and in breach of her right to a fair trial under Article
6 § 1 of the Convention and right to an effective remedy under
Article 13 of the Convention.
- The
applicant acknowledged that, in accordance with Article 429.0.2 of
the CCP, the Plenum had competence to vary the final decision of the
court of cassation instance. However, she disagreed with the
Government as to the scope and extent of the Plenum’s power to
vary the cassation decision in the manner specified under that
provision. Specifically, relying on the case-law of the
Constitutional Court, she maintained that the Plenum was empowered to
vary the Supreme Court’s final decision only when the
amendments introduced by the Plenum would not interfere with the
merits of the case and would not alter the conclusions reached. On
the other hand, if the Plenum found the Supreme Court’s
decision on the merits incorrect or unlawful, it should have quashed
it and remitted the case to the Court of Appeal for a new examination
on the merits.
- The
applicant further submitted that the Plenum had, in essence, examined
the case on points of fact, which was outside its competence. In its
decision, the Plenum had given its own assessment as to the facts of
the case and relied on a different set of domestic legal provisions,
which required a new round of fact-finding within the framework of an
adversarial judicial process. However, the Plenum delivered its
decision without remitting the case to the Court of Appeal for an
examination of the relevant factual circumstances. In essence, under
the guise of “varying” the Supreme Court’s
decision, the Plenum issued a new judgment on the merits upholding
G.R.’s claim in full and, thus, set at naught the entire
judicial process that had ended in the applicant’s favour.
B. The Court’s assessment
- The
Court considers that the present complaints concern two distinct,
albeit related, sets of issues. The first, substantive, issue raises
a question whether the quashing of a final judgment under the
procedure of additional cassation in the present case was in itself
compatible with the applicant’s “right to court”
under the Convention. The second, procedural, set of issues concerns
the question whether the alleged procedural defects during the review
of the applicant’s case by the Plenum violated her rights to a
fair trial and effective remedy.
1. Substantive issue
- At
the outset, having regard to the differences in the parties’
opinions concerning this matter, the Court considers that it is
necessary to assess the scope and consequences of the Plenum’s
decision. In doing so, it will look behind appearances and
investigate the realities of the situation complained of.
- The
Court notes that, formally, the Plenum “varied” the
Supreme Court’s decision of 11 January 2002 in accordance with
Article 429.0.2 of the CCP. This raises a question as to what extent
such “varying” differed in its legal consequences from
the simple quashing of the final decision. The Court takes note of
the ruling of the Constitutional Court of Azerbaijan, according to
which Article 429.0.2 of the CCP did not empower the Plenum to “vary”
the Supreme Court’s decisions based on a finding of errors of
fact or law, as this would, in essence, constitute a new judgment on
the merits of the case. Instead, in such a situation, the Plenum had
to remit the case for re examination. It therefore follows that,
relying on Article 429.0.2 of the CCP, the Plenum could make only
technical changes to the Supreme Court’s decisions that would
not interfere with the substantive conclusion on the merits of the
case.
- The
Court notes, however, that in the present case the substance of the
Plenum’s decision involved a direct examination of the merits
of the case and comprised both an assessment of the factual
circumstances of the case and the application of the relevant
domestic law to those facts. Furthermore, following such an
examination, the Plenum “varied” the operative part of
the original judgment which had been in the applicant’s favour
in that it dismissed G.R.’s claim. The Plenum upheld G.R.’s
claim in full and thus reversed the ruling in G.R.’s favour. In
such circumstances, the Court considers that the Plenum’s
decision, albeit characterised as merely “varying” the
existing judicial ruling, in essence quashed the final decision of 11
January 2002 and constituted a new judgment on the merits of the
case.
- Accordingly,
the Court will base its analysis under Article 6 of the Convention
below on the premise that the Plenum quashed the final domestic
decision and delivered a new judgment on the merits, ruling against
the applicant.
- The
Court reiterates that the right to a fair hearing before a tribunal
as guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which
declares, in its relevant part, the rule of law to be part of the
common heritage of the Contracting States. One of the fundamental
aspects of the rule of law is the principle of legal certainty, which
requires, among other things, that where the courts have finally
determined an issue, their ruling should not be called into question
(see Brumărescu v. Romania [GC], no. 28342/95, § 61,
ECHR 1999 VII).
- Article
6 § 1 secures to everyone the right to have any claim relating
to his civil rights and obligations brought before a court or
tribunal. In this way it embodies the “right to a court”,
of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect.
However, that right would be illusory if a Contracting State’s
domestic legal system allowed a final and binding judicial decision
to be quashed by a higher court on an application made by a State
official whose power to lodge such an application is not subject to
any time-limit, with the result that the judgments were liable to
challenge indefinitely (see Ryabykh v. Russia, no. 52854/99,
§§ 54-56, ECHR 2003-X).
- The
Court has previously found a violation of the principle of legal
certainty and an applicant’s “right to court” in
many cases in which a judicial decision that had become final and
binding was subsequently quashed by a higher court on an application
by a State official whose power to intervene was not subject to any
time-limit (see, among many other authorities, Brumărescu,
cited above, §§ 61-65; Ryabykh, cited above,
§§ 51-56; Volkova v. Russia,
no. 48758/99, §§ 34-36, 5 April 2005; and Kutepov
and Anikeyenko v. Russia, no. 68029/01, §§ 48-52,
25 October 2005).
- Admittedly,
the procedure of additional cassation under Azerbaijani law had
certain characteristic features which were distinct from those
examined by the Court in the cases cited in the above paragraph.
First, the initial motion to reopen the proceedings under the
procedure of additional cassation could be made by one of the parties
to the proceedings in the form of an additional cassation appeal,
although the decision whether to submit the case for the Plenum’s
review was ultimately within the discretionary power of the Supreme
Court’s President (see Articles 423 and 426 of the CCP and
Article 83 of the Law on Courts and Judges). Second, there was a
two-month time-limit for filing an additional cassation appeal and
re opening of the proceedings (see Article 426.2 of the CCP).
However, following such an appeal, there appeared to be no specific
time-limit for the actual review of the case by the Plenum. Third,
the procedure of additional cassation could be initiated only when
the ordinary appeals had been exhausted, that is, after the delivery
of a final decision by the court of cassation instance, and could not
be used to obtain a review of judgments of first-instance or
appellate courts which had become final (see Article 422 of the CCP).
- These
distinctions, however, are not of crucial importance. What is
relevant in the present case is that the procedure of additional
cassation allowed a final and binding judicial decision to be quashed
on the ground that the substantive law had not been applied correctly
by the ordinary civil courts.
- In
this regard, the Court observes that, under the domestic law, the
highest judicial authority in Azerbaijan for ordinary appeals in
civil proceedings was the Supreme Court, as a court of cassation
instance (see Article 77 of the Law on Courts and Judges and Article
419 of the CCP). The judgment concerning the applicant’s case
became final and the civil proceedings were terminated upon the
delivery of the Supreme Court’s decision of 11 January 2002.
Thereafter, there was no higher judicial instance to which the
parties would have direct access. In this connection, the Court
reaffirms its previous finding that the procedure of additional
cassation, available after the Supreme Court’s final decision,
constituted in its essence an indirect, extraordinary appeal (see
Babayev v. Azerbaijan (dec.), no. 36454/03, 27 May 2004).
- The
Court reiterates that the principle of legal certainty insists that
no party is entitled to seek a reopening of proceedings merely for
the purpose of a rehearing and a fresh examination of the case. The
power to quash or alter binding and enforceable judicial decisions
should be exercised to correct fundamental defects, but not to carry
out a fresh examination. The review should not constitute an appeal
in disguise, and the mere possibility of there being two views on the
subject is not a ground for re-examination. Departures from that
principle are justified only when made necessary by circumstances of
a substantial and compelling character (see Ryabykh, cited
above, § 52, and Kot v. Russia, no. 20887/03, § 24,
18 January 2007).
-
The Court observes that, before the additional cassation proceedings
were instituted, the merits of the applicant’s case had been
examined in ordinary civil proceedings before the first-instance,
appellate and cassation courts and such examination resulted in the
Supreme Court’s final decision of 11 January 2002 upholding the
lower courts’ judgments in the applicant’s favour.
However, this final decision was quashed, and its ruling reversed, by
the Plenum solely on the ground that the substantive law had been
incorrectly applied. It was not claimed or established during the
additional cassation proceedings that the domestic courts of three
levels of jurisdiction acted outside their competences or that there
was a fundamental defect in the proceedings before them.
- It
is unavoidable that in civil proceedings the parties would have
conflicting views on the application of the substantive law. The
domestic courts are called upon to examine their arguments in a fair
and adversarial manner and make their assessment of the claim. The
fact that the Supreme Court’s President and Plenum disagreed
with the assessment made by the domestic courts was not, in itself,
an exceptional circumstance warranting the reopening of the
proceedings concerning the applicant’s case and using this
extraordinary remedy to set aside a binding and enforceable judgment
(compare with Kot, cited above, § 29).
- Having
regard to these considerations, the Court finds that, by quashing the
Supreme Court’s final decision of 11 January 2002, the Plenum
of the Supreme Court infringed the principle of legal certainty and
the applicant’s “right to court” under Article 6 §
1 of the Convention. There has accordingly been a violation of that
Article.
2. Procedural issues
- With
regard to the applicant’s further complaints about the
procedural defects of the proceedings before the Plenum of the
Supreme Court, the Court considers that, having concluded that there
has been an infringement of the applicant’s “right to
court” by the very use of the additional cassation procedure,
it is not necessary to examine additionally whether the procedural
guarantees of Article 6 were respected in those proceedings (compare
with Ryabykh, cited above, § 59).
- The
Court finds that it is likewise not necessary to examine the present
complaint separately under Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicant complained that the decision of the Supreme Court’s
Plenum of 19 July 2002 had interfered with the exercise of her
property rights to her apartment in breach of Article 1 of Protocol
No. 1 to the Convention, which provides 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.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government denied that there had been any interference with the
applicant’s property rights, because the Plenum had not
deprived her of her right to reside in the apartment. The Government
maintained that the Plenum’s decision to grant G.R.
co-residence rights had been lawful, because it “ensured the
right of a family member to reside at the owner’s place after
the family relationship had been terminated”.
- The
applicant reiterated her complaint.
- It
is undisputed that the applicant had a “possession” for
the purposes of Article 1 of Protocol No. 1. At the outcome of the
original civil proceedings which ended with the Supreme Court’s
final decision of 11 January 2002, the applicant was found to be
the sole lawful owner and resident of the apartment and all of G.R.’s
claims to the apartment were dismissed. Relying on the final outcome
of these proceedings, the applicant could have legitimately expected
to have peaceful enjoyment of her possession.
- The
Court reiterates that the quashing of a final judgment which
recognised the applicant’s right to peacefully enjoy his or her
possessions constitutes an interference with that right (see
Brumărescu, cited above, § 74). In the present
case, the Plenum of the Supreme Court quashed the Supreme Court’s
final decision of 11 January 2002 and granted G.R.’s claim in
full. Although after the Plenum’s decision the applicant
technically retained the title to the apartment, she was now
required, inter alia, to give up space in the apartment for
G.R. to reside, as well as to seek the consent of the latter, as a
registered co-resident, for future transactions involving the
apartment. The applicant could no longer enjoy unrestricted rights to
possess, use and dispose of her property free of all encumbrances,
which had been confirmed by the final decision 11 January 2002.
Accordingly, the quashing of the final and binding judicial decision
frustrated the applicant’s reliance on it and deprived her of
the possibility to peacefully enjoy her possession.
- Article
1 of Protocol No. 1 provides that such interference with the peaceful
enjoyment of possessions can be justified only if it is shown, inter
alia, to be “in the public interest” and “subject
to the conditions provided by law”. The Court observes that
neither the Plenum of the Supreme Court itself nor the Government
have sought to offer any justification for the interference that has
taken place in the present case. In these circumstances, the Court
considers that the quashing of the final domestic decision by way of
the additional cassation procedure placed an excessive burden on the
applicant and was therefore incompatible with Article 1 of Protocol
No. 1 (compare with Brumărescu, cited above, §§
77-79, and Kot, cited above, § 33). There has
therefore been a violation of that Article.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- Having
been asked to submit her just satisfaction claims in accordance with
Rule 60 of the Rules of Court, the applicant replied that she claimed
just satisfaction and referred to the original claims she set out in
her application form lodged with the Court on 5 September 2002. The
Court will therefore have regard to the amounts claimed in the
application form.
A. Damage
1. Pecuniary damage
- The
applicant claimed 20,000 United States Dollars (USD) in respect of
pecuniary damage. According to the applicant, this amount included
the value of her apartment (as of 2002) as well as the expenses she
incurred in the domestic court proceedings (see below).
- The
Government submitted that the applicant was not entitled to any
pecuniary damage because she had sold her apartment in January 2005
and received its sale price.
- At
the outset, the Court accepts that the applicant must have suffered
some pecuniary damage due to the restriction of her property rights
to the apartment. However, it would be inappropriate to award the
applicant the full market value of the apartment as claimed by her,
because even though the Plenum’s decision of 19 July 2002
resulted in restriction (and diminishment of the value) of her rights
to possess, use and dispose of her property, she nevertheless
retained the title to the apartment. In the circumstances of the
present case, it could be more appropriate to award the applicant,
inter alia, the difference between the full market value of
the apartment at the time of its sale in 2005 and the price for which
she sold her title to the apartment (assuming that this price was
lower than the actual market value due to the restriction of the
applicant’s property rights).
- However,
the Court points out that under Rule 60 of the Rules of the Court,
any claim for just satisfaction must be itemised and submitted in
writing together with the relevant supporting documents or vouchers,
failing which the Court may reject the claim in whole or in part. The
Court notes that, while the applicant claimed a combined amount of
USD 20,000 for the value of the apartment and her expenses in the
domestic proceedings, she failed to itemise this claim and specify
the part of the claim which corresponded to the exact market value of
the apartment. She also failed to submit any documents or evidence
which would support her claims in respect of pecuniary damage.
- In
these circumstances, the Court concludes that the applicant failed to
comply with Rule 60 of the Rules of Court and to submit relevant
information which would enable the Court to assess the pecuniary
damage suffered by her. It therefore rejects the applicant’s
claim in respect of pecuniary damage.
2. Non-pecuniary damage
- The
applicant claimed USD 80,000 in respect of non-pecuniary damage. The
Government did not submit any specific comments in this respect.
- The
Court considers that the applicant suffered distress and frustration
as a result of the quashing of the judicial decision in her favour
under the procedure of additional cassation. However, the amount
claimed is excessive. Making its assessment on an equitable basis,
the Court awards the applicant 2,000 euros in respect of
non-pecuniary damage, plus any tax that may be chargeable on this
amount.
B. Costs and expenses
- As
noted above, the applicant claimed a combined amount of USD 20,000
in respect of both pecuniary damage and costs and expenses in the
domestic proceedings.
- The
Government did not comment on this point.
- The
Court again notes that the applicant failed to duly itemise her
claims and to specify what portion of the claimed amount corresponded
to the costs and expenses which she had allegedly incurred. She also
failed to submit any documentary evidence in support of her claim.
The Court therefore rejects the applicant’s claim in respect of
costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of the
applicant’s right to a court guaranteed by Article 6 § 1
of the Convention in that the final judicial decision was quashed
under the procedure of additional cassation;
- Holds that it is not necessary to examine the
allegations of procedural unfairness of the additional cassation
proceedings;
- Holds that it is not necessary to examine
separately the complaint under Article 13 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,000 (two thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
New Azerbaijani manats at the rate applicable at the date of
settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos
Rozakis
Deputy Registrar President
