FIRST SECTION

DECISION

Application no . 8019/08 Chingiz IBRAHIMOV against Azerbaijan

The European Court of Human Rights (First Section), sitting on 27 November 2012 as a Committee composed of:

Nina Vajić , President, Khanlar Hajiyev , Julia Laffranque , judges, and André Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 12 January 2008,

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 Chingiz Ibrahimov , is an Azerbaijani national, who lives in Khachmaz . He was represented before the Court by Mr I. Aliyev and Ms S. Hajiyeva , lawyers practising in Baku .

The Azerbaijani Government (“the Government”) were represented by their Agent, by their Agent, Mr Ç. Asgarov .

A. The circumstances of the case

1. Civil proceedings

On 3 November 2004 the applicant concluded a contract with M. on the purchase of M. ’ s flat. According to the contract, the applicant undertook to pay 8,300 US dollars (“USD”) to M. and the latter agreed to vacate the flat in three or four months after the conclusion of the contract.

In the beginning of 2005 the applicant brought an action asking for M. ’ s eviction from the flat. At the same time, M. ’ s daughter (N.) brought an action asking for annulment of the contract. N. alleged that, despite the fact that she was registered as a resident in that flat, the sale contract had been concluded without her consent.

By the decision of 29 April 2005 the Khachmaz District Court joined both actions in the same proceedings and decided to examine them together.

On 12 May 2005 the Khachmaz District Court delivered a judgment dismissing the applicant ’ s claim. The court granted N. ’ s claim and declared the sale contract unlawful, as it had been concluded without N. ’ s consent. Moreover, the court stated that the applicant had paid to M. only the amount of USD 7,700 of the agreed price of the flat and ordered M. to return this amount to the applicant.

The applicant appealed against this judgment. On 18 August 2005 the Court of Appeal dismissed the applicant ’ s appeal. The Court of Appeal noted that the relevant law had been applied correctly by the lower court.

Pursuant to the domestic law, the judgment of 18 August 2005, as an appellate court ’ s judgment, became enforceable immediately after its delivery.

On 15 December 2005 the Supreme Court upheld the Court of Appeal ’ s judgment.

2. Enforcement proceedings

On 13 June 2005 the Khachmaz District Court issued a writ of execution.

On 16 June 2005 the Khachmaz Department of Enforcement Officers launched enforcement proceedings.

On 17 June 2005 the Department of Enforcement Officers informed the debtor (M.) that she should execute, voluntarily, the judgment within five days.

On 28 June 2005 the enforcement officers visited the debtors ’ house.

Pending the above-mentioned appeals against the judgment of 12 May 2005 the enforcement proceedings were postponed.

On 12 January 2006 the Department of Enforcement Officers received the Supreme Court ’ s decision of 15 December 2005 upholding the judgment of 12 May 2005. The enforcement proceedings were resumed.

On 16 February 2006 the debtor lodged a request with the Department of Enforcement Officers proposing that her debt be withdrawn in instalments from her monthly pension.

On 24 February 2006 the applicant refused the debtor ’ s proposal.

On 24 March 2006, upon a request by the Department of Enforcement Officers, the State Fund for Social Protection informed the former that the debtor ’ s pension amounted to 125,000 old Azerbaijani manats (approximately 25 Euros).

On 29 June 2006 the Department of Enforcement Officers applied to various public authorities (the Ministry of Taxes, the Ministry of Internal Affairs, the Khachmaz Technical Inventorisation and Property Rights Registry Office) and some private banks asking for information on M. ’ s property in order to secure execution of the judgment. It was found that M. did not own any property other than the flat she lived in and had no bank account.

On 26 July 2006 the enforcement officers visited M. ’ s house for the second time in order to identify her property to be seized. On the same date M. again requested to secure the execution of the judgment by deduction from her pension.

On 2 August 2006 the Department of Enforcement Officers issued an act indicating the positions of the parties and stating that the execution of the judgment of 12 May 2005 was impossible.

According to the Government, this act was sent to the applicant.

B. Relevant domestic law

Law on Execution of Court Judgments of 27 December 2001

According to Article 87, t he claimant in the enforcement proceeding has a right to challenge the bailiffs and complain about their acts (or omission to act) within ten days after the commitment of the act (omission).

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the domestic authorities failure to enforce the Khachmaz District Court ’ s judgment of 12 May 2005, as upheld by the higher courts. He also complained that non-enforcement of the judgment of 12 May 2005 had infringed his right to peaceful enjoyment of his possessions as secured by Article 1 of Protocol No. 1 to the Convention.

THE LAW

The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the authorities ’ failure to enforce the Khachmaz District Court ’ s judgment of 12 May 2005, as upheld by the Supreme Court ’ s decision of 15 December 2005. Article 6 provides, 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 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.”

A. The parties ’ submissions

The Government submitted that the applicant had failed to exhaust domestic remedies as he had never brought any action against the competent authorities concerning their alleged inactivity or ineffectiveness of the enforcement proceedings, neither had he asked for damages in respect of the non-enforcement of the judgment in his favour. The Government noted that effective domestic remedies were available in the domestic law against any act or omission by enforcement officers.

The applicant submitted that a court action against the enforcement Department of Enforcement Officers was not an effective remedy.

The Government further argued that the national authorities did not remain passive and took action to execute the judgment of 12 May 2005. In fact, immediately after the writ of execution had been issued, the Department of Enforcement Officers applied to various public authorities and to the banks 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 other than the flat where she lived together with her family. The Government noted that, according to the Azerbaijani legislation, in a private property dispute where the claimant is not a bank, the debt cannot be secured by the debtor ’ s flat where he or she lives together with his or her family.

Furthermore, the Government submitted that the Department of Enforcement Officers had informed the applicant about the debtor ’ s proposal to secure her debt by her social pension. However, the applicant refused to accept this solution.

The applicant disagreed with the Government ’ s submissions and maintained his complaints. He also submitted that he had not accepted the debtor ’ s proposal to take her monthly social pension because its amount was so insignificant that it would take her more than twenty-two years to pay off her debt.

B. The Court ’ s assessment

The Court notes that a similar objection on the non-exhaustion of domestic remedies was raised by the Government in some other n on ‑ enforcement cases and was rejected by the Court. These were cases where the debtor was the State or a State authority (see, for example, Tarverdiyev v. Azerbaijan , no. 33343/03, 26 July 2007; Efendiyeva v. Azerbaijan , no. 31556/03, 25 October 2007; and Humbatov v. Azerbaijan , no. 13652/06 , 3 December 2009) and cases concerning non-execution of judgments ordering eviction of IDPs from unlawfully occupied private flats, where execution of the judgments by private parties necessitated a prior action by the State ( see Mirzayev v. Azerbaijan, no. 50187/06, 3 December 2009; Gulmammadova v. Azerbaijan, no. 38798/07, 22 April 2010; and Hasanov v. Azerbaijan , no. 50757/07, 22 April 2010).

The Court considers that the present case differs from those cases. In the present case the judgment debtor was a private party. Accordingly, unlike in the above-cited cases, the applicant ’ s complaint should be deemed as being not about the non-execution of the judgment as such, but rather about allegedly inadequate action by the enforcement officers in ensuring the execution of the judgment by a private defendant.

The Court r ecalls in this connection that the execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 (see the Hornsby v . Greece judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40). However, that does not mean that a State co uld be held responsible for non ‑ enforcement of a judgment due to the insolvency of the debtor (see Sanglier v. France , no. 50342/99, § 39, 27 May 2003 or Topciov v. Romania ( dec ), no. 17369/02, 15 June 2006). T he Court further reiterates that 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 only a duty 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 in the present case the writ of execution was issued on 13 May 2005 by the Khachmaz District Court following its judgment of 12 May 2005. T he judgment was subsequently appealed. The domestic proceedings were, therefore, terminated upon the delivery of the Supreme Court ’ s decision of 15 December 2005. The Court further observes that the enforcement authorities took some steps to enforce the judgment of 12 May 2005. On 2 August 2006 the enforcement officers issued an act indicating the positions of the parties and stating that the execution of the judgment of 12 May 2005 was impossible. The case file does not contain any document on any further steps taken by the enforcement authorities.

The Court observes that Article 87 of the Law on Execution of Court Judgments of 27 December 2001 provides for a possibility to challenge, before the domestic courts, the lawfulness of actions and omissions of the enforcement authorities. Although the applicant complained before the Court that domestic enforcement authorities did not act diligently, he had failed to apply to the domestic courts against the Department of Enforcement Officers to challenge their alleged omissions or inactivity. The applicant also failed to indicate, either before the national courts or the Court, which additional specific steps the enforcement authorities had failed to take in order to ensure the enforcement of the judgment in his favour. Accordingly, the applicant cannot be regarded as having exhausted the domestic remedies (compare, among other authorities, Dzizin v. Ukraine ( dec .), no. 1086/02, 24 June 2003, Kukta v. Ukriane ( dec .), no. 19443/03, 22 November 2005 and Ponomaryov v. Ukraine ( dec .), no. 3236/03, 3 April 2008 )

It follows that the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible.

André Wampach Nina Vajić Deputy Registrar President