Published on 5 February 2024

FOURTH SECTION

Application no. 51855/18 Anushavan GRIGORYAN against Armenia lodged on 24 October 2018 communicated on 16 January 2024

SUBJECT MATTER OF THE CASE

In 2006 a writ of execution was issued against the applicant within the scope of proceedings concerning payment of child support according to which he had to pay monthly child support to A.S., the mother of his child. Thereafter A.S. gave her consent for the child to live with the applicant and withdrew her request to have child support confiscated from the applicant. As a result, the Department for the Enforcement of Judicial Acts (“the DEJA”) terminated the compulsory enforcement proceedings in 2009. On 8 September 2015 the enforcement proceedings were resumed upon A.S.’s request although, as the applicant claims, the child had been living with him all along. The DEJA put a lien on the applicant’s assets and seized them.

In 2016 the applicant brought a claim against the DEJA before the Administrative Court asking it to declare the resumption of the enforcement proceedings by the DEJA as an unlawful action.

On 22 August 2017 the Administrative Court granted the applicant’s claim․ Relying on the relevant case-law of the Court of Cassation (decision of 22 April 2016 in case no. ՎԴ/0794/05/14), it concluded that A. S.’s request to resume the enforcement proceedings had been made out of time. The DEJA and A.S. appealed. On 18 April 2018 the Administrative Court of Appeal (“the Court of Appeal”) decided to terminate the judicial proceedings on the grounds that the applicant had lodged the wrong type of claim. In particular, he had lodged an “acknowledgment claim” asking the court to declare the resumption of the enforcement proceedings as an unlawful action. Instead, he should have asked the court to annul or declare unlawful the DEJA’s decision of 8 September 2015 to resume the enforcement proceedings. The Court of Appeal admitted that the lower court had been under an obligation to propose the applicant to change the type of his claim by the virtue of Article 5 of the Code of Administrative Procedure (“the CAP”), according to which the court points out the formal errors in claims and proposes to correct them, including to replace the wrong types of claims with the appropriate types. The Court of Appeal further noted that in any event the applicant had been asked during the appeal proceedings whether he was willing to correct the type of the claim but he had insisted on the wrong type which was not subject to judicial examination. The applicant appealed arguing, in particular, that the Court of Appeal had never proposed to him to change the type of the claim. He claimed that during the hearing before the Court of Appeal the judges had put unclear questions to him from which he had not been able to understand that they were proposing to him to correct the wrong type of the claim. The applicant further argued that, by virtue of Article 5 of the CAP, the Court of Appeal should have proposed to him in clear and unambiguous terms to correct the type of his claim, if it considered that the type of the claim had been erroneous. With reference to the Court of Cassation’s decision of 20 June 2017 (case no. ՎԴ/0229/05/15), the applicant also claimed that the wrong choice of the claim could not per se be grounds to terminate the proceedings. In the said decision the Court of Cassation had held in particular that the fundamental principle of ex officio examination of the case by the Administrative Court imposed on the latter an obligation to clarify the correct type of the claim to the plaintiff and propose to him to correct the error. It had therefore concluded that the prima facie wrong choice of the claim by the plaintiff did not per se render the claim not subject to judicial examination.

The Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit on 15 August 2018.

The applicant complains that he was deprived of access to a court in breach of the requirements of Article 6 § 1 of the Convention.

QUESTION TO THE PARTIES

Has there been a violation of the applicant’s right of access to a court, in breach of the requirements of Article 6 § 1 of the Convention, on account of the termination of the proceedings by the Administrative Court of Appeal? ( Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, 29 November 2016; and Zubac v. Croatia [GC], no. 40160/12, §§ 76 ‑ 99, 5 April 2018)?

The Government are invited to submit the record of the hearing before the Administrative Court of Appeal when, as noted in its decision of 18 April 2018, the applicant had been asked whether he insisted on the type of the claim that he had initially introduced.