Resolution CM/ ResDH (201 1) 185 [1]

Execution of the judgment of the European Court of Human Rights

Paykar Yev Haghtanak against Armenia

(Application No. 21638/03, judgment of 20/12/2007, final on 02/06/2008)

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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the refusal by the Court of Cassation in 2003 to grant the applicant company ’ s request for deferral of payment of court fees (violation of Article 6§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

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

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)185

Information on the measures taken to comply with the judgment in the case of Paykar Yev Haghtanak against Armenia

Introductory case summary

The case concerns the violation of the applicant ’ s right of access to a court in that the Court of Cassation refused in 2003 to grant the applicant company ’ s request for deferral of payment of court fees, with the result that the company ’ s cassation appeal against an earlier court decision upholding the imposition of certain tax fines was not examined (violation of Article 6§1).

The European Court noted that the Court of Cassation had been prevented from making any assessment of the applicant company ’ s ability to pay court fees by the express provisions of Article 70§3 of the Code of Civil Procedure which flatly prohibited exemption of commercial entities from payment of court fees. The Court considered that such a blanket prohibition raised of itself an issue under Article 6§1 of the Convention.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1,200 EUR

25 EUR

1,225 EUR

Paid on 27/11/2008

b) Individual measures

The European Court awarded the applicant company just satisfaction in respect of non-pecuniary damage.

As regards pecuniary damage, the Court stated that it could not speculate as to what the outcome of the trial would have been if the Court of Cassation had examined the applicant company ’ s cassation appeal. The Court recalled that the finding of a violation imposes on the respondent state a legal obligation to adopt individual measures. The Court noted in this connection that Article 241.1 of the Code of Civil Procedure allows the reopening of the domestic proceedings and that the most appropriate form of redress in cases where an applicant was denied access to court in breach of Article 6 § 1 of the Convention would, as a rule, be to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial.

Following the European Court ’ s judgment, the applicant lodged an appeal for re-opening of the domestic proceedings before the Administrative Court which was accepted on 03/11/2008. Following a legislative amendment (Article 20 of the Law amending the Code of Civil Procedure of 26/12/2008 that entered into force on 1/1/2009), the Administrative Court transferred the case to the Court of Cassation on 13/02/2009 as it had become competent to examine the case. On 26/07/2009, the Court of Cassation decided to examine the applicant ’ s appeal. In its decision, the Court of Cassation referred extensively to the obligations of states to abide by final judgments of the European Court in accordance with Article 46 of the European Convention and to the conclusions of the European Court in the present judgment.

Eventually, after having examined the merits of the cassation appeal, the Court of Cassation rejected it and confirmed the Tax Inspectorate ’ s and the Commercial Court ’ s subsequent conclusions that the applicant company had failed to meet the requirements of the tax legislation.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

On 07/04/2009, Article 70§3 of the Code of Civil Procedure, which excluded commercial entities from the right of deferral of payment of court fees (and which was thus at the basis of the present violation) was abolished (Amendment ՀՕ -85- Ն ). Simultaneously, Article 22 §4 of the Law on State Fees was abolished, as it had the same wording as Article 70§3 of the Code of Civil Procedure (Amendment ՀՕ -84- Ն ). The government considers that following these reforms, nothing will prevent the domestic courts from making their own assessment of companies ’ ability to pay court fees in the light of the requirements of the Convention as regards access to court.

In order to guide court practice the judgment was translated into Armenian and published on the websites of the Ministry of Justice ( www . m o j.am ), of the Prosecutor ’ s Office ( www.genpro c .am ), of the Judicial authority of Armenia ( ww w .court.am ), of the Police of the Republic of Armenia ( www.p o lice.am ) and of the Court of Cassation, on 2 September 2008.

III. Conclusions of the respondent state

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

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies