THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34465/02 by Leonid Isakovic PERCHENOK against Azerbaijan

The European Court of Human Rights ( Third Section) , sitting on 30 January 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 29 June 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Leonid Isakovic Perchenok , is an Azerbaijani citizen born in 1938, who has been living in Germany since December 1998.

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

On 28 May 2001 a flat the applicant owned and had lived in, in Baku , before migrating to Germany, was sold by his former wife to a third person, I.A. The applicant lodged an application with the Khatai District Court requesting the annulment of the sale agreement concluded between his former wife and I.A. and to restore his right of ownership. The applicant claimed that he had divorced his wife before he moved to Germany, and consequently she had lost whatever right she may have had with respect to his property. He alleged that the documents presented by his former wife to the Notary Public to legalise the transaction were false.

On 18 December 2001 the Khatai District Court held that the sale agreement between the applicant’s wife and I.A. was void and ordered the restoration of the applicant’s right of ownership.

However, I.A., in turn, appealed against that decision to the Azerbaijan Court of Appeal. He stated that, at the time of purchase, he honestly believed that the property was owned by the seller and all the documents accompanying the sale were, to the best of his belief and knowledge, accurate and legal.

On 11 March 2002 the Azerbaijan Court of Appeal took a decision in favour of I.A. The court held that the very fact of the purchase by I.A. was not in contradiction of the law since he had not known and could not have known that this flat was being sold by a person who was in fact ineligible to do so. However, the court also ordered the applicant’s former wife to pay the applicant compensation equivalent to the sale value since the property had been sold without the applicant’s consent.

COMPLAINTS

The applicant complains that he was deprived of his property as a result of an unlawful sale. He states that his former wife had no right either of ownership or disposal of the property on his behalf. He claims that she used false documents in order to sell the property. He invokes Article 1 of Protocol No.1 to the Convention.

The applicant also invokes Article 6 of the Convention claiming that the decision of the second instance court was unfair.

THE LAW

The applicant complains under Article 1 of Protocol No.1 to the Convention  that he was deprived of a property belonging to him.

The applicant further complains under Article 6 § 1 of the Convention that the decision of the Court of Appeal was unfair.

The Court points out that the Convention entered into force in respect of Azerbaijan on 15 April 2002, and in accordance with the generally recognised principle of international law, the Court is only competent to examine complaints against violations of the Convention by virtue of acts, facts or decisions that have occurred after that date (see Stoitchkov and Shindarov v. Bulgaria , no. 24572/94 and no. 24571/94 (joined), Commission’s decision of 28 June 1995, Decisions and Reports 82, p. 85).

The applicant’s complaints relate to the facts that occurred in a period of time prior to 15 April 2002. The Court notes that no formal proceedings were instituted after that date. Even assuming that the applicant’s complaints are to be examined under Article 1 of Protocol No.1 or Article 6 § 1 of the Convention, the Court finds that the application is outside its competence ratione temporis and therefore incompatible with the provisions of the Convention. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President