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AKHUNDOV v. AZERBAIJAN - 39941/07 [2011] ECHR 188 (3 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/188.html
Cite as:
[2011] ECHR 188
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FIRST
SECTION
CASE OF AKHUNDOV v. AZERBAIJAN
(Application
no. 39941/07)
JUDGMENT
STRASBOURG
3 February
2011
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 Akhundov v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Commitee
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 13 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 39941/07) 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,
Mr Marif Khalil oglu Akhundov (Marif Xəlil
oğlu Axundov - “the
applicant”), on 12 September 2007.
The
applicant was represented by Mr F. Ağayev, a lawyer
practising in Azerbaijan. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç. Asgarov.
The
applicant alleged that failure to enforce the judgment of 23 February
1998 had violated his rights to a fair trial and to an
effective remedy, as guaranteed by Articles 6 and 13 of the
Convention, and his right to peaceful enjoyment of his possessions,
as guaranteed by Article 1 of Protocol No. 1 to the Convention.
On
26 November 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
The
applicant was born in 1951 and lives in Baku.
The
applicant worked as an inspector at the Baku Audit Department (Bakı
şəhəri üzrə Nəzarət-Təftiş
İdarəsi - “the Department”) of the Ministry
of Finance (“the Ministry”). On 1 May 1997 the applicant
was dismissed from his job by an order of the Ministry for
unsatisfactory work performance.
The
applicant lodged an action against the Ministry, claiming unlawful
dismissal. By a judgment of 23 February 1998 the Sabayil District
Court allowed the applicant’s claim, ordering his reinstatement
in his previous job. Moreover, the court ordered the Ministry to pay
the applicant his unpaid salary in an unspecified amount for the
period from 1 May 1997 (date of dismissal) to 23 February 1998 (date
of delivery of the judgment). No appeals were lodged against the
judgment of 23 February 1998 within the time-limits specified by law
and, pursuant to the domestic law in force at
the material time, it entered into legal force ten days after its
delivery.
Despite
the applicant’s numerous demands and the fact that the writ of
execution had been sent several times to the Ministry for execution,
the competent authorities did not take any measures to enforce the
judgment.
By
a letter of 18 January 2000 the Ministry informed the applicant that,
upon the reorganisation of the Ministry, the Department had been
abolished by an internal order of 28 January 1999 of the Ministry and
that therefore it was not possible to reinstate him in his previous
job.
On
14 November 2002 the applicant lodged an action against the Ministry,
seeking compensation for non-execution of the judgment of 23 February
1998. On 17 January 2003 the Nasimi District Court delivered a
judgment in the applicant’s favour. The court noted that the
judgment of 23 February 1998 was still in force and awarded the
applicant 4,704,000 Old Azerbaijani manats (AZM, approximately 920
euros (EUR)) as his unpaid salary calculated from 23 February 1998 to
17 January 2003 (date of delivery of this judgment). This amount was
calculated on the basis of the applicant’s previous average
salary.
On
17 February 2003 the applicant appealed against the judgment of
17 January 2003, claiming a higher amount of compensation. In
the meantime, it appears from the case file that the Ministry
requested the Court of Appeal to suspend the proceedings due to the
Ministry’s cassation appeal lodged with the Supreme Court
against the judgment of 23 February 1998. After the Ministry’s
above-mentioned request, the proceedings before the Court of Appeal
were formally suspended.
By
a judgment of 10 May 2006 the Court of Appeal upheld the
first instance court’s judgment, noting that the amount of
compensation had been calculated correctly. On 15 March 2007 the
Supreme Court upheld the Court of Appeal’s judgment.
On
28 January 2009 the judgment of 17 January 2003 was executed and the
applicant received the amount awarded by the judgment (approximately
EUR 920).
On
8 April 2009 the Ministry executed the judgment of 23 February 1998:
the applicant was reinstated in his previous post and an amount of
AZN 9,155.12 (approximately EUR 9,063) was paid to him as
compensation for lost earnings, in addition to compensation awarded
by the judgment of 17 January 2003.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE ARTICLES 6 § 1 AND
13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION ON ACCOUNT OF LENGTHY NON ENFORCEMENT
Relying
on Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1 to the Convention, the applicant complained about the
non enforcement of the judgment of 23 February 1998. Article 6 §
1 of the Convention reads, as far as relevant, 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 reads 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.”
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. ...”
A. Admissibility
1. Abuse of the right of application
On
8 April 2009 the applicant informed the Court that the judgment in
his favour had been enforced by the relevant authorities and that he
wished to withdraw his application. However, by a letter of 15 April
2009 the applicant submitted that he wished to pursue examination of
his case before the Court and that he had signed the letter of 8
April 2009 under pressure from Ministry officials and in the absence
of his lawyer.
The
Government submitted that the applicant had abused his right of
application. They noted that although by his letter of 8 April 2009
the applicant had withdrawn his application, he had subsequently
submitted that he wished to pursue the examination of his case by the
Court. Such attitude amounted, according to the Government, to an
abuse of the right of application within the meaning of Article 35 §
3 of the Convention which, in so far as relevant, reads as follows:
“The Court shall declare inadmissible any
individual application submitted under Article 34 which it considers
incompatible with the provisions of the Convention or the Protocols
thereto, manifestly ill-founded, or an abuse of the right of
application”.
The
Court reiterates that, except in extraordinary cases, an application
may only be rejected as abusive if it is knowingly based on untrue
facts (see Akdivar and Others v. Turkey, 16 September 1996,
Reports of Judgments and Decisions 1996-IV, §§
53-54; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; and
Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X).
The
Court finds that the applicant’s attitude cannot be considered
as amounting to an abuse of the right of petition and therefore
rejects the Government’s objection.
Taking
into account the applicant’s letter of 15 April 2009, the
Court notes that it has not been established that the applicant
genuinely wished to withdraw his application.
2. The Court’s competence rationae
temporis
The Court reiterates that it is only competent to
examine complaints of violations of the Convention arising from
events that have occurred after the Convention has entered into force
with respect to the High Contracting Party concerned (see, for
example, Kazimova v. Azerbaijan (dec.), no. 40368/02, 6
March 2003). The Court notes that the Convention entered into force
with respect to Azerbaijan on 15 April 2002.
Accordingly,
the Court’s competence is limited to the part of the
application relating to the events that occurred after 15 April 2002,
whereas the remainder of the application falls outside of its
competence rationae temporis. Nevertheless, where necessary,
the Court shall take into account the state of affairs as it existed
at the beginning of the period under consideration.
3. The applicant’s victim status
Following
the applicant’s reinstatement in his previous post on 8 April
2009 and payment of the compensation for lost earnings, the
Government argued that the applicant could no longer be considered a
“victim”, as the violations of his Convention rights had
been remedied at the domestic level.
The
applicant did not comment on this issue. However, he complained that
his lost earnings had not been calculated properly.
The
Court reiterates that a decision or measure favourable to an
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Amuur v. France,
judgment of 25 June 1996, Reports of Judgments and Decisions
1996-III, p. 846, § 36, and Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999-VI). Only when these
conditions are satisfied does the subsidiary nature of the protective
mechanism of the Convention preclude examination of an application.
The
Court notes that the enforcement of the judgment in the applicant’s
favour and payment of the judgment award and compensation for lost
earnings may arguably have constituted an acknowledgment by the
authorities of the alleged violations of the Convention. In this
regard the Court notes the applicant’s allegation concerning
allegedly wrong calculation of pecuniary awards made by the domestic
judgments. This can be understood as an argument alleging that the
violations of the Convention have not been acknowledged because the
judgment in the applicant’s favour had not been fully enforced.
The Court observes that on 8 April 2009 the applicant was reinstated
in his former post in the Ministry of Finance and a sum of money was
paid to him as compensation for lost earnings. The Court further
notes that the applicant’s complaint about alleged errors in
calculation of the amount of compensation are new complaints which
are not within the scope of the present case, which concerns
non-enforcement of a final judgment in the applicant’s favour.
The Court further observes that the applicant has not challenged
before any domestic authorities the basis of calculation of the
amounts paid to him. In such circumstances the Court considers that
the domestic judgment has been fully enforced.
However,
having regard to the fact that the judgment remained unexecuted for
more than eleven years, of which more than seven years fall within
the period after the Convention’s entry into force in respect
of Azerbaijan, the Court finds that the compensation awarded to the
applicant was meant to cover only the domestic pecuniary award in
respect of the lost earnings and no compensation was offered in
respect of the alleged violation of the Convention, that is the
lengthy non-enforcement of the judgment of 23 February 1998.
In
such circumstances, while it is true that the applicant has been
reinstated in his previous job in accordance with the judgment of
23 February 1998, as well as paid the domestic award in respect
of pecuniary damage, the Court finds that the measures taken in the
applicant’s favour were nevertheless insufficient to deprive
him of “victim” status in the present case (compare with
Ramazanova and Others v. Azerbaijan, no. 44363/02, §
38, 1 February 2007).
Accordingly, the Court rejects the Government’s
objection as to the applicant’s loss of victim status.
4. Conclusion
Having regard to its findings above, the Court further
notes that the complaints are not inadmissible on any other grounds
and that they are not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. They must therefore be
declared admissible in the part relating to the period after 15 April
2002.
B. Merits
1. Articles 6 § 1 and 13 of the Convention
The
Government submitted that although the relevant authorities had taken
all necessary actions, the enforcement of the judgment of 23 February
1998 had been impossible because of the abolition of the department
where the applicant had worked before his dismissal. The Government
alleged that the Ministry had regularly offered the applicant
different posts but the applicant had refused them, requesting
higher-level posts. Furthermore, the Government submitted that the
judgment of 17 January 2003 delivered in connection with the
applicant’s compensation claim for non-enforcement of the
judgment of 23 February 1998 had been executed on 28 January 2009.
The
applicant maintained his complaints.
The
Court reiterates that 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,
binding judicial decision to remain inoperative to the detriment of
one party. It would be inconceivable that Article 6 § 1 should
describe in detail procedural guarantees afforded to litigants
without protecting the implementation of judicial decisions; to
construe Article 6 as being concerned exclusively with access to
court and the conduct of proceedings could lead to situations
incompatible with the principle of the rule of law which the
Contracting States undertook to respect when they ratified the
Convention. Execution of a judgment given by any court must therefore
be regarded as an integral part of the “trial” for the
purposes of Article 6 (see Hornsby v. Greece, judgment of 19
March 1997, Reports 1997 II, p. 510, § 40).
The
Court further notes that a delay in the execution of a judgment may
be justified in particular circumstances. But the delay may not be
such as to impair the essence of the right protected under Article 6
§ 1 of the Convention (see Burdov v. Russia, no.
59498/00, § 35, ECHR 2002 III). In the instant case, the
applicant should not have been prevented from benefiting from the
success of the litigation, which concerned the reinstatement of the
applicant in his job after wrongful dismissal as well as the payment
of compensation for pecuniary damage.
The
Court notes that, from the date of the Convention’s entry into
force with respect to Azerbaijan on 15 April 2002 to the date of
enforcement of the judgment on 8 April 2009, the Sabayil District
Court’s judgment of 23 February 1998 remained unenforced for
almost seven years. Before 15 April 2002, the judgment had not been
enforced for approximately four years. No reasonable justification
was advanced by the Government for this delay.
By
failing for all those years to take the necessary measures to comply
with the final judgment in the present case, the authorities deprived
the provisions of Article 6 § 1 of the Convention of all useful
effect (see Burdov, cited above, § 37). There has
accordingly been a violation of Article 6 § 1 of the Convention.
The
Court does not consider it necessary to rule on the complaint under
Article 13 of the Convention because Article 6 is lex specialis
in regard to this part of the application (see, for example,
Jasiūnienė v. Lithuania, no. 41510/98, §
32, 6 March 2003).
2. Article 1 of Protocol No. 1 to the Convention
The
Sabayil District Court’s judgment of 23 February 1998
ordered payment of the applicant’s unpaid salary from the date
of his dismissal to the date of delivery of the judgment (23 February
1998). Although the judgment had become final and the enforcement
proceedings had been instituted, the judgment remained unenforced for
almost seven years after the Convention’s entry into force with
respect to Azerbaijan. The inability of the applicant to obtain
execution of this judgment constituted an interference with his right
to peaceful enjoyment of his possessions, as set out in the first
sentence of the first paragraph of Article 1 of Protocol No. 1.
By
failing to comply with the judgment of 23 February 1998 in a
timely manner, the national authorities prevented the applicant from
being paid the money he could reasonably have expected to receive.
The Government have not advanced any plausible justification for this
interference (see Burdov, cited above, § 41).
Accordingly,
there has been a violation of Article 1 of Protocol No. 1
to the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON
ACCOUNT OF THE COMPENSATION PROCEEDINGS
Relying
on Articles 6 § 1 of the Convention and Article 1 of Protocol
No. 1 to the Convention, the applicant complained that the
compensation proceedings had exceeded a “reasonable” time
and that the compensation awarded by the judgment of 17 January
2003 had been insufficient.
As
to the complaint about the alleged excessive length of compensation
proceedings, having regard to its findings under Article 6
§ 1 of the Convention in respect of lengthy non-enforcement of
the final judgment in the applicant’s favour, the Court does
not consider it necessary to examine this complaint.
In
so far as the applicant complains about the insufficiency of the
amount of compensation awarded by the domestic courts, having
carefully examined the applicant’s submissions in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention.
It
follows that this part of the application is inadmissible under
Article 35 § 3 and must be rejected pursuant to Article 35 §
4 of the Convention.
III. 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.”
A. Damage
1. Pecuniary damage
The
applicant claimed a total amount of EUR 35,409 in respect of
pecuniary damage. This amount included the alleged lost earnings and
the amount the applicant had allegedly had to borrow from his family
and friends during his unemployment, due to non-enforcement of the
judgment.
The
Government submitted that the applicant’s claims were
unsubstantiated and that the applicant had failed to submit any
evidence supporting his allegations.
The
Court considers that the applicant did not submit any proof
supporting his claims for pecuniary damage. It therefore rejects this
claim.
2. Non-pecuniary damage
The
applicant claimed EUR 15,000 in respect of non pecuniary damage.
The
Government considered this amount unjustified and excessive and
submitted that the finding of a violation of the Convention would
constitute sufficient reparation.
The
Court considers that the applicant must have sustained some
non-pecuniary damage as a result of the lengthy non-enforcement of
the final judgment in his favour. However, the amount claimed is
excessive. Making its assessment on an equitable basis, as required
by Article 41 of the Convention, the Court awards the applicant the
sum of EUR 4,800 under this head, plus any tax that may be chargeable
on this amount.
B. Costs and expenses
The
applicant also claimed EUR 1,600 for the costs and expenses (EUR 1500
for legal and EUR 100 for postal services) incurred before the
domestic courts and before the Court.
The
Government considered that the claim was excessive and that the
amounts had not actually been incurred.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present cases, having regard to the
fact that the applicant failed to produce any supporting documents,
the Court dismisses the claim for 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
Declares the part of the application concerning
non-enforcement of the judgment in the applicant’s favour
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
Holds that there is no need to examine the
complaint under Article 13 of the Convention;
5. Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,800 (four thousand
eight hundred euros) in respect of non-pecuniary damage, plus any tax
that may be chargeable to the applicant, to be converted into New
Azerbaijani manats (AZN) at the rate applicable on 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 amounts 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 3 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Section
Registrar President
