Communicated on 8 January 2018

FIFTH SECTION

Application no. 22823/10 Naida ISMAYILZADE against Azerbaijan lodged on 19 April 2010

STATEMENT OF FACTS

The applicant, Ms Naida Ismayilzade , is an Azerbaijani national, who was born in 1955 and lives in Baku.

The circumstances of the case

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

The applicant was a doctor at the Diagnostical Treatment Centre (“the Centre”), which formed part of the Special Medical Service under the President. During her career at the Centre she had participated at the professional evaluation exams (“ attestasiya ” ‑ “the exam”) three times.

On 17 November 2008 the head of the Centre ordered carrying out an exam among the Centre ’ s staff.

From 1 to 10 December 2008 the exam was carried out. The applicant participated at the exam and failed.

On 16 December 2008 she was dismissed from her job due to failure at the exam.

On 23 December 2008 the applicant ’ s lawyer requested the Centre to provide the documents related to the exam (”the documents”) and the applicant ’ s personal file (“the file”).

By its letter dated 5 January 2009 the Centre refused to provide the documents indicating that it can be provided only if requested by a court.

On an unspecified date the applicant lodged a claim with the Sabail District Court against the head of the Centre asking the court to declare the actions of the head of the Centre and the results of the exam in respect to her unlawful. She also requested the court to issue a decision ordering disclosure of the documents and the file.

On 24 February 2009 the Sabail District Court dismissed the applicant ’ s claims finding that the exam was carried out in compliance with the law. The court did not provide any reasoning concerning the applicant ’ s request for disclosure of the documents and the file and apparently did not issue a decision ordering such disclosure.

The applicant appealed against the first-instance court ’ s judgment mainly arguing that she had already participated at such exams three times and thus, in accordance with Article 66 of the Labour Code she had been exempted from participation at the exam of 10 December 2008. She further argued that she had been unable to prove her participation at previous exams, since only evidence in that respect was stored in the file, which had not been disclosed by the Centre. Lastly, the applicant argued that the exam was not carried out in compliance with Point 1.2 of the Rules for the organization of the professional evaluation exams (approved by the decision of the Cabinet of Ministers dated 23 May 2001).

On 2 June 2009 the Baku Court of Appeal and on 7 October 2009 the Supreme Court upheld the first-instance court ’ s judgment. The courts did not provide any reasoning concerning the applicant ’ s request for disclosure of the file. In its judgment the appellate court indicated that the applicant had failed to provide any evidence proving that she had previously participated at exams three times. The appellate court also referred to the Centre ’ s letter dated 23 January 2009 which stated that the applicant ’ s lawyer could become familiar with the documents at the Centre. The applicant and her lawyer had not received that letter and became aware of it only at the appellate hearing.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the civil proceedings were not fair; in particular that the domestic courts failed to grant her request to obtain her personal file from the defendant, which was the only evidence proving her allegations.

2. The applicant complains, under Article 8 of the Convention, that dismissal from her job amounted to a violation of her right to respect for private life.

3. T he applicant complains, under Article 13 of the Convention in conjunction with Articles 6 § 1 and 8 of the Convention, that she was not afforded a remedy providing effective protection against the violation of her rights.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her civil rights and obligations in the proceedings concerning the professional evaluation exam, in accordance with Article 6 § 1 of the Convention? In particular, was the lack of access to the relevant documents and the file compatible with a fair trial guarantees under Article 6 § 1 of the Convention?

2. Has there been an interference with the applicant ’ s right to respect for her private life, within the meaning of Article 8 § 1 of the Convention, on account of dismissal from her job due to the failure at the allegedly unlawful professional evaluation exam? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3. Did the applicant have at her disposal an effective domestic remedy for her complaints under Articles 6 § 1 and 8 of the Convention, as required by Article 13 of the Convention?