AS TO THE ADMISSIBILITY OF
by Bakhtiyar OSMANOV
The European Court of Human Rights (First Section), sitting on 17 September 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 5 January 2006,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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 applicant, Mr Bakhtiyar Osmanov, is an Azerbaijani and Israeli national who was born in 1952 and lives in Baku. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 January 2002 the applicant concluded an investment agreement with M., a representative of RMB Limited Liability Company (“RMB”). According to information given to the applicant by M., RMB was a subsidiary of Teletrade D.J. International Consulting Ltd (“Teletrade”), an international investment and stock-trading company based in Hong Kong. M. also claimed to be an official representative of Teletrade in Azerbaijan. The applicant invested 29,993 US dollars (USD). In exchange, he was promised high profits from international stock exchange operations to be carried out by RMB dealers.
In August 2002 the applicant was informed that all of the money that he had invested had been lost due to unsuccessful stock-trading deals. The applicant demanded financial reports proving this, but they were not made available to him.
The applicant brought an action against M., RMB and Teletrade, demanding compensation for pecuniary and non-pecuniary damage. On 19 March 2003 the Khojaly District Court rejected the claim, finding that RMB, and M. personally, could not be held responsible for the loss of the applicant’s money because the contract had formally been concluded between the applicant and Teletrade. According to the contract terms, all disputes were to be resolved under Hong Kong law. The court advised the applicant to lodge a lawsuit against Teletrade in Hong Kong.
The applicant lodged an appeal. He asked the court, inter alia, to institute criminal proceedings against M. and RMB. On 3 June 2003 the Court of Appeal delivered an interim decision (qərardad) instructing the Baku City Prosecutor’s Office to investigate whether the actions of RMB, and M. personally, involved any elements of such criminal offences as fraud, illegal business dealings, false advertising and falsification of official seals and documents. The Court of Appeal stayed the civil proceedings pending the conclusion of the criminal investigation.
On 3 February 2004 the Baku City Prosecutor’s Office refused to institute criminal proceedings, finding that the matter did not raise any issues under criminal law. This decision was upheld on 8 April 2004 and 12 May 2004 by the Sabail District Court and the Court of Appeal respectively.
Thereafter, the Court of Appeal resumed the suspended civil proceedings. Following an expert examination ordered by the court, it was established that certain documents pertaining to the applicant’s transaction and the partnership agreements between RMB and Teletrade had been falsified.
On 17 March 2005 the Court of Appeal quashed the Khojaly District Court’s judgment of 19 March 2003. The court found that, at the relevant time, RMB had not been properly set up as a legal entity in Azerbaijan, that Teletrade had no subsidiaries in Azerbaijan, that the “partnership” documents between RMB and Teletrade were false, and that the alleged official seals of Teletrade used on the investment agreement signed with the applicant were also false. The court partially upheld the applicant’s claim, ordering M. to compensate him for pecuniary damage in the amount of USD 29,993. The court rejected the applicant’s claim for non-pecuniary damages.
The Court of Appeal’s judgment of 17 March 2005 became operative immediately upon its delivery. On 1 April 2005 the Court of Appeal issued a writ of execution of the judgment.
Both the applicant and M. lodged cassation appeals against the Court of Appeal’s judgment of 17 March 2005. On 22 July 2005 the Supreme Court upheld the judgment.
On 6 September 2005 the Baku City Prosecutor’s Office instituted criminal proceedings for falsification of documents by RMB.
It appears from the case file that, following the institution of the enforcement proceedings, the Nasimi Department of Enforcement Officers applied to various public authorities, including the Baku City Technical Inventorisation and Property Rights Registry Office, the Ministry of Internal Affairs and the State Committee for Management of State Property, asking for information on M.’s property. However, according to the respective letters of 1 June, 13 July and 26 December 2005 of the aforementioned public authorities, M. did not possess any property in Azerbaijan.
Moreover, it was established that M. did not have a permanent residence in Azerbaijan and, according to his father’s statement, had been abroad since July 2004.
Upon the request of the Nasimi Department of Enforcement Officers, on 20 December 2006 M. was reprimanded in absentia by the Nasimi District Court under Article 313 (non-execution of court judgments) of the Code of Administrative Offences due to the continued non-execution of the judgment of 17 March 2005.
According to the information provided by the Government, the judgment was executed in full on 28 February 2007 and the applicant received USD 29,993.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1 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 submitted that the applicant had failed to exhaust domestic remedies as he had never brought an action against the competent authorities for damages in respect of the alleged delay in enforcement. The Government noted that effective domestic remedies were available in the domestic law against any act or omission of enforcement officers.
The Government further argued that, as the judgment had been executed on 28 February 2007, the applicant could not claim to be a victim of the alleged violations. For these reasons, they invited the Court to declare the application inadmissible.
Without commenting on the issue of exhaustion of domestic remedies, the applicant disagreed with the Government and maintained his complaints. As to the execution of the judgment, the applicant alleged that on 28 February 2007 he had received only USD 5,000, without submitting any evidence.
The Court finds that it is not necessary to examine whether the applicant has exhausted domestic remedies as, even assuming that he has done so, the complaint is in any event inadmissible for the following reasons.
At the outset, the Court observes that the Government submitted a copy of a receipt signed by the applicant and a copy of a deed drawn up by the Nasimi Department of Enforcement Officers, also signed by the applicant. According to these documents, the Court of Appeal’s judgment of 17 March 2005 was enforced in full on 28 February 2007 and the applicant received USD 29,993.
The Court notes that the applicant did not contest the authenticity of these documents. However, he claimed, without submitting any evidence, that he had not received the full amount, although he had signed a receipt for the full amount. The Court notes that the applicant signed these documents, in which he clearly acknowledged having received USD 29,993. No evidence to the contrary has been submitted. Likewise, there is no evidence showing that he had to sign these documents under any form of undue pressure. In these circumstances, in the light of the documents at its disposal, the Court finds that the applicant’s allegations concerning non payment of the full judgment award are unsubstantiated. Therefore, the Court accepts that the judgment was enforced in full on 28 February 2007 and observes that the overall period during which the court award in question remained unenforced was around one year and seven months from the date of the Supreme Court’s final decision of 22 July 2005.
The Court reiterates that execution of a final judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997 II). However, a delay in the execution of a judgment may be justified in particular circumstances (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002 III) and the right of “access to court” does not impose an obligation on a State to execute every judgment of a civil character without having regard to the particular circumstances of the case (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). The Court notes that State responsibility for enforcement of a judgment against a private party extends no further than the involvement of State bodies in the enforcement procedures. When the authorities are obliged to act in order to enforce a judgment and they fail to do so, their inactivity can engage the State’s responsibility under Article 6 § 1 of the Convention (see, mutatis mutandis, Cebotari and Others v. Moldova, nos. 37763/04, 37712/04, 35247/04, 35178/04 and 34350/04, § 39, 27 January 2009).
In this case, the dispute was between two private parties. The Court notes that it is for each State to equip itself with legal instruments which are adequate and sufficient to ensure the fulfilment of positive obligations imposed upon the State. The Court’s only task is to examine whether the measures applied by the authorities in the present case were adequate and sufficient (see Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003). In cases such as the present one, which necessitate actions by a debtor who is a private person, the State, as the possessor of the public authority, has to act diligently in order to assist a creditor with the execution of a judgment (see Fociac v. Romania, no. 2577/02, § 70, 3 February 2005).
The Court observes that the writ of execution was issued on 1 April 2005 by the Court of Appeal following its judgment of 17 March 2005. However, the latter judgment was subsequently appealed by both parties in the proceedings. The domestic proceedings were therefore terminated upon the delivery of the Supreme Court’s decision of 22 July 2005.
It appears from the case file that the national authorities did not remain passive and took action to execute the Court of Appeal’s judgment of 17 March 2005. In fact, immediately after the writ of execution had been issued, the Nasimi Department of Enforcement Officers applied to different public authorities (Baku City Technical Inventorisation and Property Rights Registry Office, the Ministry of Internal Affairs, the State Committee for Management of State Property) asking for information on M.’s property in order to secure execution of the judgment. It was established, however, that M. did not own any property in Azerbaijan. Moreover, M. did not have a permanent residence in Azerbaijan and, according to his family, he lived abroad.
It should be noted that, due to the continued non-execution of the judgment, upon the request of the Nasimi Department of Enforcement Officers, on 20 December 2006 M. was reprimanded in absentia by the Nasimi District Court under Article 313 (non-execution of court decisions) of the Code of Administrative Offences.
Furthermore, the judgment was ultimately executed approximately one year and seven months after the delivery of the Supreme Court’s final decision of 22 July 2005. Having regard to the above, the Court considers that, in this case, the State appears to have taken adequate measures in order to ensure the execution of the judgment by the debtor, who was a private person (compare Ciprova v. The Czech Republic (dec.), no. 33273/03, 22 March 2005, and Topciov v. Romania (dec.), no. 17369/02, 15 June 2006; see, by contrast, Ruianu v. Romania, cited above, §§ 72-73, and Cebotari and Others v. Moldova, cited above, § 49). Moreover, in the circumstances of the present case the overall period during which the judgment remained unexecuted cannot be considered unreasonably long.
Having regard to its findings in respect of Article 6 § 1 of the Convention, the Court considers that there was no interference with the applicant’s property rights under Article 1 of Protocol No. 1 to the Convention.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court observes that the applicant failed to substantiate his complaints. In so far as the applicant’s complaints may be understood to concern the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
Having found no such infringements of the rights and freedoms protected by the Convention, it follows that these complaints are manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Nina