Resolution CM/ ResDH (2019)71 Execution of the judgment of the European Court of Human Rights Rahmanova against Azerbaijan

(Adopted by the Committee of Ministers on 4 April 2019 at the 1343 rd meeting of the Ministers’ Deputies)

Application No.

Case

Judgment of

Final on

34640/02

RAHMANOVA

10/07/2008

10/10/2008

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violations established;

Recalling the respondent State’s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the information provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see Appendix);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH ( 2019)71

Information about the measures taken to comply with the judgment

in the Rahmanova case against Azerbaijan

Case summary

This case concerns a violation of the applicant’s right of access to a court on account of the quashing, by the Plenum of the Supreme Court, of a final judicial decision in her favour and the delivery of a new decision on the merits, following an additional cassation procedure (an extraordinary judicial procedure) in 2002 (violation of Article 6 § 1).

The case also concerns the interference with the applicant’s right to peaceful enjoyment of her property for which neither the Plenum of the Supreme Court in its decision nor the Government before the Court have offered any justification (violation of Article 1 of Protocol No. 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Paid on

Rahmanova

(34640/02)

-

EUR 2,000

-

EUR 2,000

04/02/2009

b) Other individual measures

The Court awarded just satisfaction for the non-pecuniary damage incurred by the applicant. As regards pecuniary damage for the period before the applicant sold her flat, the Court did not award any just satisfaction as the applicant failed to comply with the Rules of Court in this respect.

As regards the merits of the case at domestic level, it concerned the applicant’s disagreement with residential rights of a third party in her flat. On 17 April 2009 the Plenum of the Supreme Court examined the applicant’s case and held that no re-examination was required following the European Court’s judgment as in 2005 the applicant had sold her flat to the said third party and the issue of residential rights had become irrelevant. Consequently, no further individual measures are required.

II. General measures

It appears that this is an isolated case. The European Court has not delivered any other similar judgment against Azerbaijan concerning the unjustified quashing of a final judgment through the additional cassation procedure. Further, it is noted that according to the established case-law of the Constitutional Court (see §§ 28-30 of the judgment), although the Plenum of the Supreme Court is empowered to vary (that is, introduce amendments to) the decision of the cassation-instance court, amendments made in such a manner could comprise only matters that are not related to the merits of the case. Since the cassation-instance court may not examine a case on points of fact, the Plenum of the Supreme Court may not vary the cassation-instance court’s decision relying upon the factual circumstances of the case either. This established jurisprudence constitutes an adequate safeguard able to prevent similar violations.

In addition, the European Court’s judgment was translated and published, as well as widely disseminated among judges and legal professionals. It was also included in the training curricula for judges and candidate judges.

Lastly, it is also noted that the domestic legal system includes possibilities for requesting compensation for judicial errors in relation to both civil and criminal proceedings. No further general measures are therefore required.

III. Conclusions of the respondent State

The government considers that the measures adopted have fully remedied the consequences of the violations of the Convention found by the European Court in this case and that these measures will prevent similar violations in the future. Azerbaijan has, therefore, complied with its obligations under Article 46, paragraph 1, of the Convention.