FIRST SECTION

DECISION

Application no . 37129/08 Emiran DUNYAMALIYEV 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 , Erik Møse , judges, and André Wampach , Dep ty Section Registrar ,

Having regard to the above application lodged on 10 July 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Emiran Dunyamaliyev , is an Azerbaijani national, who was born in 1961 and lives in Sumgayit . He is represented before the Court by Mr A. Mustafayev , a lawyer practising in Azerbaijan .

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

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

On 19 June 2006 the applicant was dismissed from his job at Sumgayit “ Sintezkauçuk ” Plant (“the Plant”). The applicant lodged a court action seeking reinstatement in his previous job and payment of his salaries for the period of unemployment. A fter a series of appeals and quashings , on 14 September 2007 the Sumgayit Court of Appeal delivered a judgment in the applicant ’ s favour. The court ordered the Plant to reinstate the applicant to his previous job and to pay his salaries for the period from his dismissal until the date of execution of judgment, without specifying the exact amount of compensation. The judgment became enforceable immediately after its delivery.

On 24 September 2007 the enforcement proceedings were initiated by the Sumgayit City Enforcement Department (“the SCED”). The SCED sent several letters to the Plant requesting the applicant ’ s reinstatement and payment of compensation. Upon the Plant ’ s failure to execute the judgment in question, the SCED lodged an administrative action agai nst the Plant. On 30 December 2007 the Sumgayit Cit y Court fined the Plant for non ‑ execution of the judgment in the applicant ’ s favour.

In 2008 the Plant lodged a cassation appeal against the judgment of the Sumgayit Court of Appeal of 14 September 2007. On 17 January 2008 the Supreme Court quashed the judgment in question and remitted the case for a new examination. A fter a series of appea ls and quashings , on 12 January 2009 the Sumgayit Court of Appeal delivered a new judgment on the merits. It dismissed the applicant ’ s claims against t he Plant as unsubstantiated. On 4 June 2009 the Supreme Court upheld the judgment of the Sumgayit Court of Appeal of 12 January 2009.

COMPLAINTS

The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the judgment of 14 September 2007 delivered in his favour was not enforced.

THE LAW

The applicant complained about the non-enforcement of the judgment of 14 September 2007 in his favour. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, which provided, insofar as relevant, as follows:

Article 6 of the Convention

“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

“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 ... .”

The Government submitted that the judgment referred to by the applicant had been quashed by the Supreme Court on 17 January 2008, while the applicant lodged his app lication before the Court on 10 July 2008. Accordingly, the applicant knew that the judgment had been quashed and was no longer enforceable, but did not inform the Court about it. The applicant also failed to inform the Court about the fact that the new examination of his case ended by a decision ruling against him. The Government therefore asked that the application be rejected as abusive, pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant maintained his complaint about the non-enforcement of the judgment of 14 September 2007. He did not comment on the Government ’ s submissions concerning his alleged abuse of the right of petition.

The Court reiterates that an application may be rejected as abusive if it was knowingly based on untrue facts (see, among other authorities, Varbanov v. Bulgaria , no. 31365/96, § 36, ECHR 2000-X; Akdivar and Others v. Turkey [GC] , 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996-IV; and Řehák v. the Czech Republic ( dec .), no. 6 7208/01, 18 May 2004) or if incomplete and therefore misleading information was submitted to the Court (see Hüttner v. Germany ( dec .), no. 23130/04, 9 June 2006, Predescu v. Romania , no. 21447/03, § 25, 2 December 2008 and Liuiza v. Lithuania , no. 13472/06 , § 52, 31 July 2012).

In the present case, on 10 July 2008 the applicant complained to the Court of the impossibility of obtaining execution of the domestic judgment of 14 September 2007, whereas it had been quashed by the Supreme Court on 17 January 2008, that is more than five months before the application was lodged. The new examination of the case ended by a decision of the Supreme Court of 4 June 2009 ruling against the applicant. No information was sent to the Court by the applicant on these new developments and the application was communicated to the respondent Government on 6 July 2010, that is more than one year after the end of the proceedings in question. The applicant did not dispute the fact that he was aware of the quashing of the judgment in his favour and remittal of his case for a fresh consideration. According to the material in the case-file, he took part, together with his lawyer, in the court hearings where the judgment in his favour was quashed. The applicant also participated, represented by his lawyer, in the new proceedings. The Court therefore concludes that the applicant was aware of the developments in his case. However, neither before nor after notice of the application was given to the Government on 6 July 2010 did the applicant inform the Court about the above developments.

The Court considers that the applicant tried to mislead the Court by lodging an application based on knowingly untrue facts.

In the light of the foregoing observations, the Court considers that, with regard to annulment of the judgment in his favour, the applicant made incomplete assertions. Having regard to the importance of that information for the proper determination of the present case, the Court finds that the conduct of the applicant, who was represented by a qualified lawyer, was contrary to the purpose of the right of individual petition as provided for in Article 34 of the Convention (see Khvichia and Others v. Georgia ( dec .), no. 26446/06, 23 June 2009; Lozinschi v. Moldova ( dec .), no. 33052/05, 4 November 2008; Dostál v. the Czech Republic ( dec .), no. 19057/02, 23 October 2007) .

The application must accordingly be rejected as abusive, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

André Wampach Nina Vajić Deputy Registrar President