FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36454/03 by Hasan BABAYEV against Azerbaijan

The European Court of Human Rights (First Section), sitting on 27 May 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 17 October 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hasan Babayev, is an Azerbaijani national, who was born in 1944 and lives in Baku. He was represented before the Court by Mrs L. Madatova, a lawyer practising in Baku.

A. The circumstances of the case

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

The applicant's father, before his death, owned a part of a non-residential building used as a garage. At the material time, according to the applicant, the garage was used by T.B. under a lease agreement.

In 1995, the applicant's father died and the applicant formally registered his ownership rights to the part of the garage he inherited from his father. According to the applicant, the remaining parts of the property were open for inheritance by his relatives, but none of them formalized their rights.

In 2002 T.B. filed a lawsuit before the Nasimi District Court, claiming ownership rights to the garage based on a de facto sale and purchase agreement allegedly concluded in 1969 with some of the applicant's relatives, who had then been the owners of the garage.

The applicant counterclaimed, asking the court to order T.B.'s eviction from the garage. He denied T.B.'s allegations that the garage had been de facto sold in 1969, arguing that there were no proper documents verifying that such a sale had ever taken place. He claimed that the garage had remained in the ownership of his family until his father's death and that, thereafter, he had rightfully inherited his father's share of the property and properly formalized his ownership rights.

On 4 June 2002 the Nasimi District Court upheld T.B.'s claim in full and rejected the applicant's counterclaim.

The applicant appealed, alleging that the district court had wrongfully assessed the facts. On 13 August 2002 the Court of Appeal set aside the district court's judgment and ruled in the applicant's favour.

Following T.B.'s cassation appeal, on 4 December 2002 the Supreme Court held that the Court of Appeal improperly applied the relevant provisions of the domestic law to the facts of the case. The Supreme Court modified the Court of Appeal's decision and declared that the disputed property was in T.B.'s ownership. The Supreme Court's decision became final and enforceable upon its delivery.

On 27 January 2003 the applicant filed an “additional cassation” appeal with the President of the Supreme Court, asking for the reopening of the proceedings and quashing the Supreme Court's decision of 4 December 2002 by the Plenum of the Supreme Court ( Azərbaycan Respublikası Ali Məhkəməsinin Plenumu ) .

By a letter of 23 April 2003, the President of the Supreme Court rejected the applicant's request, finding no grounds for the reopening of the proceedings.

B. Relevant domestic law and practice

1. Law On Courts and Judges of 1997

Article 77 reads, in the relevant part:

“[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 specialized courts.

The Supreme Court [is] a court of cassation instance ...”

Article 79 reads, in the relevant part:

“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 an appeal by the defendant ...”

Article 83 reads, in the relevant part:

“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 ...”

2. Code of Civil Procedure of the Republic of Azerbaijan of 2000

Article 419 § 4 reads as follows:

“The decision [of the cassation instance court] shall enter into legal force from the moment of its delivery.”

Article 422 reads as follows:

“Submissions, appeals or protests concerning 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.” 

Article 423 reads as follows:

“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 were affected by the judicial acts. An appeal may be filed by a party to the case who has been represented by an advocate. [A protest may be filed by the Chief Prosecutor in certain specified circumstances.]”

Article 424 § 1 reads as follows:

“The Plenum shall consider cases exclusively on the points of law.”

Article 424 § 2 lists the grounds which merit the reconsideration of the Supreme Court's cassation instance decision by the Plenum of the Supreme Court. These grounds are present if, inter alia , the Supreme Court's decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision, or was based on a legal norm declared as unconstitutional by the Constitutional Court, or if the Supreme Court's ruling infringed the rights and obligations of persons who were not a party to the case.

Article 426 § 1 reads, in the relevant part:

“If appropriate grounds exist, the President [of the Supreme Court] shall transmit the submission, appeal or protest, together with the case file, to the Plenum of the Supreme Court.”

3. Relevant domestic practice

Any additional cassation proceedings in the Plenum of the Supreme Court can be reopened only at the discretion of the President of the Supreme Court, following a motion by the relevant party (e.g., an additional cassation appeal or Chief Prosecutor's protest). The Plenum itself does not take a decision on the reopening of the proceedings or on the admissibility of additional cassation appeals.

An additional cassation appeal is first submitted to the President of the Supreme Court. The President, in 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.

However, if the President deems that there are no grounds for additional cassation review, he or she simply sends a rejection letter to the applicant, briefly describing the reasons for the refusal to reopen the proceedings and transmit the appeal to the Plenum. The recent practice shows that the President of the Supreme Court routinely denies additional cassation review in the majority of domestic cases, due to the absence of the relevant grounds.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the domestic judicial proceedings had not been fair. He alleged that the courts had erred in assessing the relevant evidence and misapplied the domestic laws. The applicant also complained that, contrary to the requirements of Article 1 of Protocol no. 1 to the Convention, the allegedly unfair judicial proceedings had resulted in unlawful deprivation of his property.

THE LAW

Invoking Article 6 § 1 of the Convention and Article 1 of Protocol no. 1 to the Convention, the applicant complained of the unfairness of the domestic proceedings and the resulting unlawful deprivation of property. Article 6 § 1 reads, in the relevant part:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law.”

Article 1 of Protocol no. 1 of the Convention reads, in the relevant part:

“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 Court finds that, due to the decision reached below, it is not required to decide whether the facts alleged by the applicant disclose any appearance of violation of the mentioned provisions of the Convention. Specifically, pursuant to Article 35 § 1 of the Convention, the Court is only competent to consider complaints after all effective domestic remedies had been exhausted, according to the generally recognised rules of international law, and when the application has been introduced within six months of the final domestic decision.

In this regard, the Court notes the applicant's submission that the Plenum of the Supreme Court was the highest domestic judicial instance in Azerbaijan and that the letter of the President of the Supreme Court of 23 April 2003, rejecting the applicant's request to reopen the proceedings, constituted the final domestic decision in his case. Accordingly, the applicant appears to allege that the six-month period set by Article 35 § 1 of the Convention started running from 23 April 2003.

The Court recalls that the six-month period runs from the date of the final domestic decision after effective and sufficient domestic remedies have been used (see e.g. Bethlen v. Hungary , no. 26692/95, Commission decision of 10 April 1997, unreported). However, an extraordinary remedy dependent on the discretionary power of a public authority cannot be considered as an effective remedy to be exhausted within the meaning of Article 35 § 1 of the Convention, and any unsuccessful attempt to exhaust such a remedy cannot restart the running of the six-month period (see e.g. Austin v. the United Kingdom, no. 41616/98, 20 March 2001; Durante v. Italy , no. 39693/98, 2 July 1998).

As to the present case, the Court observes that, under the domestic law effective at the material time, the Supreme Court, as a cassation instance, was the highest judicial authority in Azerbaijan. The judgment concerning the applicant's case became final and enforceable, and the relevant civil proceedings were terminated, upon the delivery of the Supreme Court's decision of 4 December 2002. Thereafter, there was no higher judicial instance directly accessible to the applicant.

It is true that, pursuant to the domestic law, the final decision of the Supreme Court could be reviewed, in certain limited circumstances, by the Plenum of the Supreme Court under the so-called “additional cassation” procedure. However, pursuant to Article 83 of the Law On Courts and Judges and Article 426 § 1 of the Code of Civil Procedure, as well as the general domestic practice, the Plenum was not directly accessible to the applicant and the decision to reopen the proceedings was within the complete discretionary power of the President of the Supreme Court. Therefore, the applicant's request to have the case reopened and reviewed by the Plenum, in its essence, constituted an indirect, extraordinary appeal (see, mutatis mutandis , Çiraklar v. Turkey , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VII, pp. 3070-71, §§ 29-32; Kucherenko v. Ukraine (dec.) , no. 41974/98, 4 May 1999; Bethlen v. Hungary , cited above ).

Having regard to the mentioned case-law and the relevant provisions of the domestic law, the Court finds that, when the Supreme Court delivered its judgment of 4 December 2002, the applicant had exhausted all effective and sufficient domestic remedies available to him at the material time. The applicant's additional cassation appeal filed with the President of the Supreme Court constituted an extraordinary remedy which he was not required to exhaust within the meaning of Article 35 § 1 of the Convention. Since the applicant's attempt to avail himself of this extraordinary remedy was unsuccessful, the rejection letter of the Supreme Court's President dated 23 April 2003 did not restart the running of the six-month period and the Supreme Court's decision of 4 December 2002 remained as the final decision in the proceedings concerning the applicant's case.

Accordingly, the Court finds that the final domestic decision in this case was the decision of the Supreme Court of 4 December 2002, which is more than six months prior to the introduction date of the present application. It follows that the application has been lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President