ARIF ISLAMZADE AND OTHERS v. AZERBAIJAN - 57745/11 (Judgment : Violation of Right to a fair trial ( Enforcement proceedings Access to court) (Ar...) [2017] ECHR 879 (12 October 2017)

In the case of Arif Islamzade v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Nona Tsotsoria, President,
          Gabriele Kucsko-Stadlmayer,
          Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 21 September 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The applications were communicated to the Azerbaijani Government (“the Government”).

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the non-enforcement of domestic decisions.

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. THE GOVERNMENT’S REQUEST FOR THE CASES TO BE STRUCK OUT UNDER ARTICLE 37 § 1 OF THE CONVENTION

6. In some of the applications (nos. 42843/13, 57382/14, 46520/14 and 13873/15), the Government submitted unilateral declarations inviting the Court to strike the applications out of the list of cases in accordance with Article 37 § 1 of the Convention. The applicants did not comment on the Government’s unilateral declarations.

7. Having studied the terms of the Government’s unilateral declarations and finding in particular that the amount of compensation offered in respect of pecuniary and non-pecuniary damage does not constitute adequate and sufficient redress for the violations of the applicants’ rights under the Convention (see, among many others, Gulmammadova v. Azerbaijan, no. 38798/07, §§ 51-63, 22 April 2010, and Zulfali Huseynov v. Azerbaijan, no. 56547/10, §§ 21-37, 26 June 2012), the Court considers that the proposed declarations do not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of these applications (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003-VI, and Magoch v. Poland, no. 29539/07, §§ 15-20, 2 February 2010).

8. Therefore, the Court rejects the Government’s requests to strike the applications out of its list of cases under Article 37 § 1 of the Convention and will accordingly pursue its examination of the admissibility and merits of the cases.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

9. The applicants complained of the non-enforcement of domestic decisions given in their favour. They relied, expressly or in substance, on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1 to the Convention, which read as follows:

Article 6 § 1

“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 or to secure the payment of taxes or other contributions or penalties.”

10. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997-II).

11. In the leading cases of Akhundov v. Azerbaijan (no. 39941/07, §§ 15-40, 3 February 2011) and Jafarli and Others v. Azerbaijan (no. 36079/06, §§ 29-58, 29 July 2010), as well as in the case of Mirzayev v. Azerbaijan (no. 50187/06, §§ 23-41, 3 December 2009), the Court already found a violation in respect of issues similar to those in the present case.

12. The Court further notes that the decisions in the present applications ordered specific action to be taken. The Court therefore considers that the decisions in question constitute “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.

13. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour.

14. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

15. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

16. Regard being had to the documents in its possession and to its case-law (see, among many others, Zulfali Huseynov v. Azerbaijan, no. 56547/10, §§ 21-37, 26 June 2012), the Court considers it reasonable to award the sums indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicants.

17. The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable.

18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Rejects the Government’s request to strike the applications nos. 42843/13, 57382/14, 46520/14 and 13873/15 out of its list of cases under Article 37 § 1 of the Convention;

3. Declares the applications admissible;

4. Holds that these applications disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the non-enforcement of domestic decisions;

5. Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table;

6. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts indicated in the appended table, to be converted into New Azerbaijani manats at the rate applicable at the date of settlement:

(i) in respect of damage, plus any tax that may be chargeable;

(ii) in respect of costs and expenses, plus any tax that may be chargeable to the applicants, to be paid into the applicants’ representatives’ bank accounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 12 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Nona Tsotsoria

Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1

(non-enforcement or delayed enforcement of domestic decisions)

No.	Application no. Date of introduction	Applicant name Date of birth / Date of registration	Representative name and location	Relevant domestic decision	Start date of non-enforcement period	End date of non-enforcement period Length of enforcement proceedings	Amount awarded for pecuniary damage per applicant/household (in euros)[1]	Amount awarded for non-pecuniary damage (in euros)[2]	Amount awarded for costs and expenses per application (in euros)[3]
1.	57745/11 01/09/2011	Arif Islamzade 09/01/1949		Sumgayit Court of Appeal, 14/10/2009	14/10/2009	Pending more than 7 years and 9 months	0	0
2.	33585/13 06/05/2013	Almas Abdullayeva 22/05/1966	Mustafazade Ruslan	Sumgayit Court of Appeal, 17/09/2012	17/09/2012	Pending more than 4 years and 10 months	2,500	3,000	200
3.	36130/13 08/05/2013	Mazahir Bagirov 01/04/1956	Mustafazade Ruslan	Sumgayit Court of Appeal, 03/02/2009	03/02/2009	Pending more than 8 years and 5 months	6,180	3,600	200
4.	42843/13 17/06/2013	Namig Hajiyev 01/04/1967	Mustafazade Ruslan	Supreme Court, 19/04/2012	19/04/2012	Pending more than 5 years and 2 months	3,570	3,600	200
5.	53125/13 25/07/2013	Isa Rustamov 01/08/1988	Mustafazade Ruslan	Sumqayit City Court, 13/02/2013	13/03/2013	Pending more than 4 years and 4 months		2,400	0
6.	54494/13 05/08/2013	Rana Gasimova 01/09/1963	Mustafazade Ruslan	Sumgayit Court of Appeal, 24/07/2012	24/07/2012	Pending more than 4 years and 11 months		3,000	0
7.	17212/14 15/02/2014	Sohbat Gayibov 22/04/1963	Mustafazade Ruslan	Supreme Court, 20/10/1999	15/04/2002	Pending more than 15 years and 3 months		3,600	0
8.	17225/14 13/02/2014	Akif Khalilov 01/07/1948	Mustafazade Ruslan	Sumqayit Court of Appeal, 18/11/2009	18/11/2009	Pending more than 7 years and 8 months		3,600	0
9.	41015/14 19/05/2014	Aziz Agasbeyov 12/09/1956	Aliyev Akif	Surakhani District Court, 01/06/2011	01/07/2011	Pending more than 6 years		3,600	200
10.	46520/14 13/06/2014	Elman Shahmuradov 26/05/1961	Mustafazade Ruslan	Sumgayit City Court, 15/01/2014	15/02/2014	Pending more than 3 years and 5 months	2,070	1,800	200
11.	46522/14 13/06/2014	Jumshud Ismiyev 23/09/1956	Mustafazade Ruslan	Sumgayit City Court, 14/04/2000	15/04/2002	Pending more than 15 years and 3 months		3,600	0
12.	57382/14 06/08/2014	Najafali Babayev 25/12/1958	Nuriyev Alimammad	Baku Court of Appeal, 05/05/2010	05/05/2010	Pending more than 7 years and 2 months	4,860	3,600	0
13.	70660/14 20/10/2014	Tabriz Hasanov 10/08/1956	Mustafazade Ruslan	Sumgayit City Court, 23/04/2013	23/05/2013	Pending more than 4 years and a month		2,400	200
14.	13873/15 05/03/2015	Shahlar Guliyev 02/02/1964	Mustafazade Ruslan	Sumgayit City Court, 12/06/2012	12/07/2012	Pending more than 5 years	3,670	3,000	200
15.	35865/15 14/07/2015	Tahir Majidov 20/01/1996	Mustafazade Ruslan	Baku Court of Appeal, 21/07/2010	21/07/2010	Pending more than 6 years and 11 months		3,600	200
16.	37075/15 22/07/2015	Dashdamir Aliyev 03/08/1960	Mustafazade Ruslan	Supreme Court, 20/02/2013	20/02/2013	Pending more than 4 years and 4 months		2,400	200
17.	40227/15 04/08/2015	Leyla Mammadova 24/08/1961	Alizade Akif	Supreme Court, 21/07/2014	21/07/2014	Pending more than 2 years and 11 months		1,500	200
18.	60598/15 27/11/2015	Xaladdin Mammadov 27/01/1961	Mustafazade Ruslan	Narimanov District Court, 01/09/1998	15/04/2002	Pending more than 15 years and 3 months		3,600	200
19.	9308/16 04/02/2016	Kamil Najafov 13/12/1941	Mustafazade Ruslan	Surakhani District Court, 11/04/2013	11/05/2013	Pending more than 4 years and 2 months		2,400	200
20.	12222/16 23/02/2016	Mahammad Abbasov 03/04/1962	Baloglanov Teymur	Nasimi District Court, 27/12/1994	15/04/2002	Pending more than 15 years		3,600	200
21.	15499/16 03/03/2016	Salbi Bakhshaliyeva 02/09/1957	Mustafazade Ruslan	Sumgayit Court of Appeal, 07/06/2010	07/06/2010	Pending more than 6 years and 1 month		3,600	200
22.	17069/16 26/02/2016	Ziyadkhan Ahmadov 01/09/1957	Mustafazade Ruslan	Sumgayit City Court, 08/12/2009	08/01/2010	Pending more than 7 years and 6 months		3,600	200

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