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Cite as: [2011] ECHR 194
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
25512/06
by Jahangir AMIROV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 18 January 2011 as a Chamber composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having regard to the above application lodged on 6 June 2006,
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
The applicant, Mr Jahangir Amirov is an Azerbaijani national who was born in 1942 and lives in Ganja. He is represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) are represented by their Agent, Mr Ç. Asgarov.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, an associate professor at the Ganja State University, was the head of the Ganja branch of the opposition party Musavat.
On 28 April 2003 the applicant was arrested for obstructing police. On the same day the Nizami District Court of Ganja sentenced him to thirteen days’ “administrative” detention under Article 310 (obstructing police) of the Code of Administrative Offences, finding that the applicant, inebriated, insulted police officers.
The applicant did not appeal against the Nizami District Court’s decision on his administrative detention.
Following his arrest, by an order of 30 April 2003 of the Ganja State University, the applicant was dismissed from his job under Article 74.1 (ç) of the Labour Code which provided for termination of an employment contract of an employee sentenced to imprisonment. The relevant part of this order, signed by the rector of the university, read as follows:
“On 28 April 2003, during an inspection of the university, it was established that Mr Jahangir Huseyn oglu Amirov, an associate professor of the department of physics, was absent from the workplace. According to the information provided by the faculty dean and the department chair, at 8.30 a.m. on 28 April 2003, J. Amirov was at the workplace and gave a lecture. During the inspection it was established that associate professor J. Amirov left the university on the same day and did not return to work for the rest of the working day. The next day, 29 April 2003, he did not come to work. The department chair, associate professor Z. Hasanov, and the faculty dean, associate professor A. Rasulov, made a representation to the university rector’s office concerning this matter. The matter was examined at the request of the university administration and it was determined that, owing to a conflict with the police on 27 April 2003, by a decision of 28 April 2003 of the Nizami District Court of Ganja, associate professor J. Amirov had been sentenced to thirteen days’ administrative detention under Article 310.1 of the Code of Administrative Offences... [I order] that Jahangir Huseyn oglu Amirov, associate professor of the department of physics, be dismissed by terminating his contract of employment, with effect from 30 April 2003, under Article 74.1 (ç) of the Labour Code of the Republic of Azerbaijan.”
The applicant brought an action for wrongful dismissal. It appears from the case file that, due to various applications by the parties and the applicant’s temporary departure from Azerbaijan in October 2003, the proceedings were postponed several times and the case was ultimately left unexamined.
At the beginning of 2005 the proceedings were reopened and on 5 April 2005 the Dashkasan District Court delivered a judgment dismissing the applicant’s claim as unsubstantiated. The court found that, as the applicant’s conviction for an administrative offence was still in force, his dismissal was in accordance with Article 74.1 (ç) of the Labour Code.
On 30 April 2005 the applicant appealed against this judgment, claiming that the first-instance court had misapplied the relevant law. He alleged in particular that his dismissal had been unlawful, because Article 74.1 (ç) of the Labour Code provided for dismissal of employees sentenced to imprisonment following a criminal conviction, while he had been sentenced only to “administrative” detention under the Code of Administrative Offences.
It appears from the transcripts of the hearings in the proceedings before the Court of Appeal that the first hearing took place on 25 July 2005 and that the parties made oral submissions. In this hearing, the applicant argued that his dismissal had been unlawful and the representative of the defendant party asked the court to uphold the first-instance court’s judgment, arguing that “the dismissal order is fully legal”. At the end of the hearing the president of the court informed the parties that the next hearing would take place on 29 July 2009 and that the parties could make additional submissions.
On 29 July 2005 the Court of Appeal held the second hearing in that case. There were no additional submissions by the parties. On the same day, the Court of Appeal delivered a judgment rejecting the applicant’s appeal, but changed the ground for his dismissal from the job. The Court of Appeal noted that Article 74.1 (ç) of the Labour Code was not applicable to the applicant’s case. However, the Court of Appeal held that the applicant should have been dismissed under Article 70 (ç) of the Labour Code due to his failure to carry out his work duties, because the applicant had been absent from work for thirteen days without a good reason. The court found that, although the circumstances of the case provided a sufficient basis for the employer to terminate the applicant’s contract of employment, the employer had mistakenly relied on an improper provision of the Labour Code in the dismissal order. For these reasons, the Court of Appeal decided that the applicant should be considered to have been dismissed under Article 70 (ç) of the Labour Code and not Article 74.1 (ç).
On 3 October 2005 the applicant lodged a cassation appeal. In his cassation appeal, the applicant argued that the Ganja State University’s order of 30 April 2003 concerning his dismissal had been unlawful and that the first-instance court had been wrong in upholding this order. As to the part of the applicant’s cassation appeal concerning the proceedings before the Court of Appeal, this part of the complaint was very brief and read as follows:
“The Court of Appeal had unlawfully exceeded the scope of the case and had changed the ground for my dismissal from work from Article 74.1 (ç) of the Labour Code to Article 70 (ç) of the same Code. However, the defendant party had not submitted such a request.”
It appears from the transcripts of the hearing of 14 December 2005 in the proceedings before the Supreme Court that the applicant was present at the hearing, while the defendant party was absent. The relevant part of the transcripts concerning the applicant’s submissions before the Supreme Court read as follows:
“The presiding judge gave the floor to the applicant Mr J. Amirov. He defended his cassation appeal’s arguments giving detailed explanations and asked the court to quash the Court of Appeal’s judgment of 29 July 2005 and to remit the case for a new examination.”
On the same day the Supreme Court delivered its decision upholding the Court of Appeal’s judgment. According to the Supreme Court’s decision, the applicant argued that, despite the fact that he had been unlawfully dismissed from work under Article 74.1 (ç) of the Labour Code, the first instance court had not assessed this fact and that the Court of Appeal had exceeded its competence in changing the ground for his dismissal. As to the relevant part of the decision concerning the applicant’s complaint on the ground for his dismissal, it read as follows:
“It appears from the case file that on 28 April 2003 during the inspection of teaching and work discipline at the university Mr J. Amirov, an associate professor of the department of physics, was absent from work. During the clarification of the reason of his absence, it was established that on 27 April 2003 he, inebriated, had not complied with a lawful request of the police on the Khasmammedov street in Ganja and disturbed the public order by insulting the police and, for these reasons, he had been sentenced to thirteen days’ administrative detention under Article 310 of the Code of Administrative Offences. Because of his detention, J. Amirov was absent from work from 28 April to 11 May.
Therefore, the court panel considers that, taking into consideration the factual circumstances of the dismissal, the appellate court had correctly brought the ground for the dismissal into conformity with the labour legislation in force.”
According to the applicant, he submitted complaints concerning his unlawful dismissal and unfairness of the domestic proceedings to various international organisations, including the OSCE Office in Azerbaijan.
B. Relevant domestic law and practice
1. The Labour Code
Article 70 provides that a contract of employment may be terminated on the employer’s initiative if: (a) the enterprise is liquidated; (b) there is staff redundancy; (c) a competent body decides that the employee lacks professional competence for the job he holds; (ç) the employee fails to fulfil his job function or to carry out his duties as defined by the employment contract or breaches the job duties stipulated in Article 72 of the Code; or (d) the employee does not successfully complete his trial period.
The employment contract may be terminated under Article 70 (ç) only if the employee, by failing to perform his professional duties, has deliberately or negligently violated disciplinary rules at the workplace or has caused damage to the owner’s, employer’s, or other employees’ rights and interests protected by law (Article 71.2). The employer must give a reason when he terminates an employment contract on the basis of one of the grounds provided in Article 70 of the Code (Article 71.3).
Article 72 (a) provides that failure to attend work for an entire working day without a good reason, except in the case of the employee’s own illness or a close relative’s illness or death, is a serious violation of the job duties.
Article 74 regulates termination of an employment contract in circumstances that do not depend on the parties. In particular, Article 74.1 (ç) provides that an employment contract shall be terminated regardless of the will of the parties in the case of entry into legal force of a court judgment sentencing the employee to imprisonment.
2. The Code of Civil Procedure (“the CCP”)
Justice shall be exercised on the basis of facts, principle of adversarial proceedings and equality of parties. The judge shall always secure the principle of adversarial proceedings (Article 9).
A court (judge) shall base its decision only on evidence examined in court hearing (Article 217.4). If the judge considers it essential to clarify new matters relating to the case or to examine additional evidence, he or she delivers a decision (qərardad) on a new court hearing (Article 218.2).
Articles 358 and 404, in force at the material time, provide that the Court of Appeal of the Republic of Azerbaijan and the Supreme Court of the Republic of Azerbaijan are, respectively, an appellate instance court and a cassation instance court.
A court of appellate instance shall, as a court of full jurisdiction, examine the case on its merits on the basis of the evidence in the file or additionally submitted evidence. The appellate court reviews the legality of the first instance court’s judgment in respect of the part of the judgment which is directly or indirectly disputed in the appeal. However, if the appeal complaint asks for the judgment to be quashed or if the subject matter of the dispute is indivisible, the appellate court reviews the entire judgment. Moreover, the appellate court, regardless of the arguments raised in complaint, reviews the observance of material and procedural law by the lower court (Article 372).
Article 415 provides that parties to the case and their representatives shall be informed of the time and place of the hearing before the court of cassation instance.
The court of cassation has competence to examine the case on points of law, but not on points of fact. That means that the court cannot reassess any factual evidence or change the lower courts’ factual findings, but it is competent to review the correctness of application of the material law as well as any procedural shortcomings in the proceedings before lower courts. In particular, the court of cassation instance shall verify whether the appellate court has applied the material and procedural law correctly (Article 416). The violation or misapplication of the material and procedural law are grounds for quashing the appellate court’s judgment or decision. The material law is considered to be violated or misapplied in circumstances specified in Article 386 of the CCP. According to that Article, the material law shall be considered violated or misapplied only if a first-instance court made a mistake upon application of law, failed to apply the relevant applicable law or other normative legal act, or misinterpreted the law. The violation or misapplication of the procedural law is a ground for quashing of the judgment or decision only if this has resulted or may result in adoption of a wrongful judgment (Article 418). The court of cassation has the competence to quash the impugned judgment or decision and either to take a decision itself, or to remit the case to an appellate court (Article 417).
3. The decision of the Plenum of the Supreme Court of 23 December 1993 on judicial practice concerning the application of labour legislation governing conclusion, change and termination of employment contracts
The relevant part of the decision reads as follows:
“31. If, during examination of a dispute concerning reinstatement in a job, a court concludes that, whether or not an administration had grounds for termination of an employment contract, it did not state correctly the reasons for dismissal or referred to irrelevant law, the court, taking into consideration the factual circumstances giving rise to dismissal from a job, may change the reasons for dismissal in order to bring them into conformity with the labour legislation in force.”
4. The relevant case-law of the Constitutional Court concerning the scope of the Supreme Court’s competence in the cassation appeal proceedings
The Constitutional Court had the opportunity to clarify the scope of the Supreme Court’s competence in the cassation appeal proceedings in several cases (see, inter alia, the Constitutional Court’s decision of 12 April 2004 on complaint lodged by A. Ibrahimov; the Constitutional Court’s decision of 21 May 2004 on complaint lodged by A. Zalov; the Constitutional Court’s decision of 21 June 2010 on complaint submitted by M. Vazirova). According to the Constitutional Court, the cassation proceedings, without dealing with the assessment of the factual circumstances of the case, are limited only to the points of law. The cassation instance court examines, on the basis of the facts and evidence established by the appellate court, whether the material law has been applied correctly. It also examines whether the procedural law has been breached by the lower courts.
COMPLAINTS
THE LAW
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The parties’ submissions
1. The Government
The Government argued that the applicant had not complied with the six month rule. In this regard the Government noted that the application had been lodged with the Court on 29 August 2006, while the final domestic decision by the Supreme Court had been delivered on 14 December 2005.
The Government also alleged that, according to the applicant’s own admission, he had complained about the same subject before other international organisations. Therefore, the Court could not deal with the same complaint, pursuant to Article 35 § 2 (b) of the Convention.
The Government further argued that the applicant had failed to exhaust domestic remedies. In particular, according to the Government, the applicant’s cassation appeal had been made in very vague terms and it could not be regarded as a comprehensive complaint of violation of the Convention provisions.
As to the merits of the application, the Government submitted that the change by the Court of Appeal, of its own motion, of the legal ground for the applicant’s dismissal was in accordance with the domestic law and practice. For that purpose, the Government relied on the decision of the Plenum of the Supreme Court of 23 December 1993.
The Government alleged that the applicant’s defence rights had not been violated by the change of the ground for dismissal. They submitted that the Court of Appeal relied on the facts of the case and considered the factual circumstances concerning the applicant’s absence from his workplace as new evidence within the meaning of Article 218 of the CCP. The Government noted that after having admitted these factual circumstances as new evidence the Court of Appeal allowed the parties to make further submission on them; however, they failed to do so.
The Government argued that the applicant had been apprised of the date and place of the Supreme Court hearing and that he was present at this hearing. In support of this, the Government submitted the transcripts of the Supreme Court hearing, according to which the applicant was present at the hearing and spoke before the court. The Government also produced a copy of the summons dated 20 October 2005 sent to the applicant informing him of the date and place of the hearing.
2. The applicant
The applicant disagreed with the Government on the date of introduction of the application and produced the documents concerning the date of posting of his application.
The applicant contested the Government’s other objections and maintained his complaints.
As to the merits of the application, the applicant contested the Government’s submissions and maintained his complaints. He submitted that the change of the ground for his dismissal had not been in accordance with the requirements of Article 6 of the Convention.
The applicant did not make any submission concerning his alleged absence from the hearing in the Supreme Court.
B. The Court’s assessment
At the outset, the Court observes that the present application, duly signed and dated by the applicant, was sent to the Court on 6 June 2006 by mail. This application drafted in English was received by the Court on 15 June 2006. Subsequently, on 29 August 2006, the applicant sent an Azerbaijani version of the same application, previously posted on 6 June 2006. Accordingly, the application was initially lodged on 6 June 2006, within the six-month period which began running on 14 December 2005, the date on which the Supreme Court delivered the final decision. Therefore, the Government’s objection concerning the alleged non compliance with the six-month rule should be dismissed.
As to the Government’s objection relating to submission of the complaints on the same subject by the applicant to other international organisations, the Court, having regard to the materials in the case file, cannot establish that any of the organisations to which the applicant had written, such as the OSCE Office in Azerbaijan, constituted a procedure of international investigation or settlement within the meaning of Article 35 § 2 (b) of the Convention. Therefore, this objection on the part of the Government should also be dismissed.
As for the Government’s objection concerning the rule of exhaustion of domestic remedies, the Court notes that the present application raises two different issues: firstly, whether the Court of Appeal was competent to change, of its own motion, the ground for the applicant’s dismissal and, secondly, whether the change of the ground for the applicant’s dismissal by the Court of Appeal violated the applicant’s right to adversarial proceedings.
1. As to the competence of the Court of Appeal
The Court considers that it is not necessary to examine the Government’s objection that the applicant has not exhausted domestic remedies as, assuming that he has done so, this part of the complaint is in any event inadmissible for the following reasons.
The Court notes that the applicant’s complaint in question is that his right to a fair trial was violated by the change by the Court of Appeal, of its own motion, of the legal ground for the termination of his employment contract. In this connection, the Court reiterates that, as a general rule, 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). The Court further notes that it is in the first place for the national authorities, and notably the courts, to interpret domestic law and that the Court will not substitute its own interpretation for theirs in the absence of arbitrariness (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997 VIII, and Bulut v. Austria, 22 February 1996, § 29, Reports of Judgments and Decisions 1996 II).
The Court observes that the change of the ground for dismissal by the Court of Appeal was in accordance with the decision of the Plenum of the Supreme Court of 23 December 1993. Moreover, compliance with the relevant law and practice of the change of the ground for the applicant’s dismissal was confirmed by the Supreme Court’s decision of 14 December 2005. Therefore, keeping in mind that it is primarily for the national courts to interpret and apply the domestic law, the Court considers that the Supreme Court’s conclusion on the Court of Appeal’s competence to change the ground for dismissal was not arbitrary or manifestly unreasonable.
This part of the application is thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. As to the alleged violation of the applicant’s right to adversarial proceedings
The Court reiterates that the concept of a fair hearing implies the right to adversarial proceedings, according to which the parties must have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations submitted, with a view to influencing the court’s decision (see Nideröst-Huber v. Switzerland, 18 February 1997, § 24, Reports of Judgments and Decisions 1997 I, and Krčmář and Others v. the Czech Republic, no. 35376/97, § 40, 3 March 2000).
The Court notes that the judge himself should respect the adversarial principle, in particular when he or she rejects an appeal or rules on a dispute of his or her own motion (see Skondrianos v. Greece, nos. 63000/00, 74291/01 and 74292/01, § 30, 18 December 2003, and Prikyan and Angelova, no. 44624/98, § 42, 16 February 2006).
The Court notes that the present issue raises the question whether the change of the legal ground by the Court of Appeal, of its own motion, infringed the applicant’s right to adversarial proceedings as guaranteed under Article 6 of the Convention, by way of preventing him from putting forward any arguments concerning the merits of the fresh ground for his dismissal (compare, mutatis mutandis, Clinique des Acacias and Others v. France, nos. 65399/01, 65406/01, 65405/01 and 65407/0, §§ 39 40, 13 October 2005, and Prikyan and Angelova v. Bulgaria, cited above, §§ 43-47). If so, the Court will further determine whether the Supreme Court was capable of remedying any perceived unfairness at the appellate instance (see, mutatis mutandis, Ranson v. the United Kingdom, (dec.), 14180/03, 2 September 2003).
In the present case, according to the transcripts of the hearings held by the Court of Appeal, the defendant party had not asked the court to change the legal ground for the dismissal and that issue had not been discussed between the parties in those proceedings. The Court observes that the applicant was not aware of the change of the legal ground for his dismissal until the delivery of the Court of Appeal’s judgment. In this connection, the Court cannot accept the Government’s argument that the applicant had the opportunity to advance his arguments before the Court of Appeal in respect of the change of the legal ground for his dismissal.
However, the Court notes that compliance with Article 6 must be determined in the light of the proceedings as a whole, including the appeal procedures. The subsequent review proceedings could, in principle, remedy any shortcomings of the trial (see, mutatis mutandis, Dallos v. Hungary, no. 29082/95, §§ 47-53, ECHR 2001 II, and Sipavičiu v. Lithuania, no. 49093/99, §§ 30-33, 21 February 2002). In this connection, the Court notes that it should be, firstly, determined whether the Supreme Court was competent to remedy the alleged procedural shortcomings that occurred in the proceedings before the Court of Appeal. If the reply to this question is positive, it should then be determined, whether the applicant raised before the Supreme Court a complaint concerning the alleged violation of his right to adversarial proceedings because of the change of the ground for his dismissal by the Court of Appeal.
The Court observes that the Supreme Court, as a court of cassation, does not deal with the facts and evidence of a given case and it decides on the basis of the factual circumstances established by the first-instance and appellate courts. However, the Supreme Court verifies whether the material and procedural law has been applied correctly by the lower courts. A procedural flaw which has resulted or may result in adoption of a wrongful judgment is a ground for quashing of the appellate court’s judgment by the Supreme Court. As, in the present case, the main issue concerns the Supreme Court’s competence in respect of procedural flaws, the Court is satisfied that the scope of the Supreme Court’s competence as defined by the domestic law enables it to remedy procedural shortcomings that occurred in the proceedings before the Court of Appeal (see Relevant Domestic Law above and, in particular, Article 417 of the CCP).
It remains to establish whether the applicant had raised before the Supreme Court a complaint concerning violation of his right to adversarial proceedings because of the change of the ground for his dismissal by the Court of Appeal. In this regard the Court reiterates that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 XI). The Court further notes that the rule of exhaustion of domestic remedies does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time limits laid down in domestic law (see, inter alia, Cardot v. France, 19 March 1991, § 34, Series A no. 200).
In this connection, examining carefully the text of the applicant’s cassation appeal to the Supreme Court, the Court observes that the applicant claimed only that the Court of Appeal had allegedly exceeded the scope of its competence in changing the ground for his dismissal. Nothing indicates in the cassation appeal that the applicant also intended to complain about his inability to challenge before the Court of Appeal the change of the ground for his dismissal by the latter court. Accordingly, he did not complain, in substance, about a breach of his procedural right to adversarial proceedings. In this connection, the Court notes that, according to the transcripts of the hearing in the Supreme Court, the applicant was present at the hearing and had an opportunity to submit and express before the Supreme Court his arguments in respect of the change of the legal ground for his dismissal, while the defendant party was absent.
In this regard the Court notes that, unlike the Clinique des Acacias and others and the Prikyan and Angelova cases (cited above), in which the applicants had no opportunity to challenge the domestic courts’ rulings made of their own motion, in the instant case the applicant had an opportunity to advance before the Supreme Court arguments in respect of the violation of his right to adversarial proceedings because of the change of the ground for his dismissal by the Court of Appeal. However, he did not avail himself of this opportunity.
It follows from the above findings that this part of the application must be rejected under to Article 35 §§ 1 and 4 of the Convention for non exhaustion of the domestic remedies.
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 considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
Registrar President