DOMAZYAN v. ARMENIA - 22558/07 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 228 (25 February 2016)

In the case of Domazyan v. Armenia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Mirjana Lazarova Trajkovska, President,
          Ledi Bianku,
          Kristina Pardalos,
          Aleš Pejchal,
          Robert Spano,
          Armen Harutyunyan,
          Pauliine Koskelo, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 2 February 2016,

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

PROCEDURE

1. The case originated in an application (no. 22558/07) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Ms Tamara Domazyan (“the applicant”), on 29 May 2007.

2. The applicant was represented by Mr A. Grigoryan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.

3. The applicant alleged, in particular, that she was deprived of the right of access to court due to the unjustified refusal to admit the counter-claim lodged on her behalf by her representative in civil proceedings she was involved in.

4. On 15 September 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1954 and lives in St Petersburg.

6. She had a garage and a small storage building (‘the construction’) in Yerevan measuring 21 sq. m. in total, that she had apparently built without authorisation.

7. On 22 July 2005 the Mayor of Yerevan adopted a decision which, inter alia, recognised the applicant’s ownership of the construction and allocated the underlying plot of land to her with the right of lease.

8. On 26 August 2005 a lease agreement, valid until 22 July 2010, was concluded between the Mayor of Yerevan and the applicant.

9. On 5 September 2005, based on the Mayor’s decision of 22 July 2005, the applicant received an ownership certificate in respect of the construction.

10. It appears that on 19 June 2006 the Mayor of Yerevan adopted another decision, which annulled the decision of 22 July 2005 in its part concerning the recognition of the applicant’s ownership in respect of the construction.

11. On 20 July 2006 the Mayor of Yerevan lodged a claim against the applicant with the Kentron and Nork-Marash District Court of Yerevan seeking to invalidate her ownership certificate in respect of the construction and the lease, on the basis of the decision of 19 June 2006.

12. On 20 October 2006 the applicant issued a power of attorney whereby she authorised advocate G. to represent her in court. This power of attorney was then signed and sealed by G.

13. The first hearing before the District Court took place on 24 October 2006. The record of this hearing states, inter alia, the following:

“... [the applicant] has not appeared; advocate G. has appeared on her behalf stating that he represents the defendant and asked to be given time to study the case file and produced a power of attorney signed by the applicant but not certified by a notary.

...

The court decides to adjourn the examination of the case until 12 a.m. on 1 November 2006 in order for [the applicant] to submit a written reply and a proper power of attorney in compliance with the procedure established by the law.

...”

14. On 1 November 2006 G. lodged a counter-claim on behalf of the applicant seeking to invalidate the Mayor’s decision of 19 June 2006 as taken in violation of the domestic law.

15. On the same day the Kentron and Nork-Marash District Court of Yerevan decided not to admit the counter-claim and to return it. The relevant parts of the District Court’s decision reads as follows:

“Having examined ... the presented power of attorney, the court finds that the counter-claim ... must be returned, taking into account that the power of attorney has been issued in violation of Article 41 § 1, 2 and 4 of the [the Code of Civil Procedure]. Pursuant to that Article, a representative’s powers must be stipulated in a power of attorney issued and drawn up in accordance with the law, the power of attorney issued by a citizen shall be certified by a competent official, while the powers of an advocate shall be certified in accordance with the law. In the present case, the power of attorney as submitted by advocate [G.] has been issued in violation of the legal requirements.

In accordance with ... Article 92 § 1 (2) of the Code of Civil Procedure ... the court decides to return the counter-claim lodged by [G.].

The decision to return the counter-claim can be appealed in cassation proceedings within three days from its receipt by the claimant.”

16. On the same day the District Court also examined the Mayor’s claim and decided to grant it. The relevant parts of its judgment read as follows:

“...The defendant [the applicant] was duly notified about the date and the place of the court hearing but has failed to appear before the court while the court has not accepted the power of the advocate who has appeared on her behalf as her representative, on the ground that the power of attorney was not duly certified.

...

Taking into account that the ground [the Mayor’s decision of 22 July 2005], based on which the lease agreement was concluded and the title registered, no longer exists, the court finds that ... the agreement on lease of land concluded between [the applicant] and the Yerevan Municipality should be terminated and her certificate of ownership/use [and] the right of lease of immovable property be annulled.”

17. On 8 November 2006 the District Court sent a copy of its judgment to the applicant by post. It appears from the postal envelope that the copy of the judgment was delivered to the applicant’s local post office on 18 November 2006 and was received by the applicant on 20 November 2006.

18. On 15 November 2006 advocate G. lodged an appeal on points of law with the Court of Cassation against the District Court’s decision not to admit the counter-claim. He claimed that the provisions of the civil legislation did not require that a power of attorney issued to an advocate be certified by a notary. He also added that the imposition of such a requirement restricted the right of access to court since the notary, as a public official, interfered with the relationship between advocate and client and made the possibility to institute court proceedings conditional on his prior approval.

19. On 28 November 2006 G. lodged an appeal with the Civil Court of Appeal against the District Court’s judgment of 1 November 2006 on behalf of the applicant, together with a request to restore the missed time-limit for appeal, alleging that a copy of the judgment had been served upon the applicant outside the time-limit for lodging an appeal against it.

20. On 1 December 2006 the Court of Cassation declared G.’s appeal against the decision refusing the admission of the counter-claim inadmissible for lack of merit. The relevant parts of this decision state the following:

“The Civil Chamber of the Court of Cassation ... having examined the appeal on points of law against the decision of 1 November 2006 ...lodged by [the applicant’s] representative [G.] ... found that it should be returned for the following reasons:

According to Article 230 § 1 (4.1) of the Code of Civil Procedure of the Republic of Armenia, an appeal on points of law should contain one of the grounds stated in Article 231.2 § 1 of the Code of Civil Procedure.

... the present appeal on points of law only mentions the elements of points 1 and 3 of Article 231.2 § 1; however the appellant has not submitted proper and sufficient arguments in relation to them; therefore the requirements of Article 230 § 1 (4.1) of the ... Code of Civil Procedure have not been met.

In such circumstances, the violations of the above-mentioned requirements serve as a basis for returning the appeal on points of law.

...

In view of the above reasoning ... the Court of Cassation decides to return the appeal on points of law against the decision of ... of 1 November 2006 lodged by [the applicant’s] representative [G.]...”

21. On 19 January 2007 the Court of Appeal rejected the request to restore the missed time-limits for lodging an appeal and left the appeal against the judgment of 1 November 2006 unexamined stating the following:

“Having examined the appeal lodged by [G.], the representative of the defendant in the present case, and the request seeking to restore the missed time-limit, [the Court of Appeal] found out that on 28 November 2006 an appeal was lodged against the judgment ... of 1 November 2006 by ... [the applicant’s] representative G., who had failed to respect the fifteen-day time-limit prescribed by the law.

The appellant has requested ... to restore the missed time-limit for lodging an appeal in view of the fact that the District Court served the copy of the given judgment on the defendant belatedly.

The court finds that the request should be rejected and the appeal dismissed since the appellant has failed to submit any documentary proof which would substantiate this allegation; moreover, ... the case file contains a postal receipt ... according to which a copy of the above judgment was sent to [the applicant] on 8 November 2006 with registered mail in accordance with the procedure and within the time-limits prescribed by ... the Code of Civil Procedure.

...”

22. On 26 January 2007 G. lodged an appeal on points of law against this decision with the Court of Cassation, on behalf of the applicant. He argued, in particular, that there was no evidence in the case file, such as an acknowledgement of receipt, which would substantiate that the defendant had received the copy of the judgment in a timely manner. In such circumstances, where it was the courts’ duty to serve their decisions in due time, the Court of Appeal should not have placed the responsibility of producing proof of belated receipt of the judgment on the party to the proceedings.

23. On 15 February 2007 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. In doing so, it stated, in particular, that:

“The Civil Chamber of the Court of Cassation ... having examined the appeal on points of law lodged by [G.] against the decision of the Civil Court of Appeal of 19 January 2007 to return [the applicant’s] appeal, found that it should be returned for the following reasons...

The Court of Cassation finds that the admissibility criteria set out in Article 231.2 § 1 of the Code of Civil Procedure are absent in the appeal on points of law lodged in the present case. Besides, the person who has lodged the appeal has failed to submit a power of attorney drafted in compliance with the civil legislation ...

At the same time, the Court of Cassation does not find it appropriate to provide a time-limit to rectify the errors and resubmit the appeal on points of law.

... the Court of Cassation decides to return the appeal on points of law lodged by [G.] against the decision of the Civil Court of Appeal of 19 January 2007 to return [the applicant’s] appeal...”

II. RELEVANT DOMESTIC LAW

The Code of Civil Procedure (in force from 1 January 1999)

24. The relevant provisions of the Code of Civil Procedure (the CCP), as in force at the material time, read as follows:

Article 40: Persons who can be representatives in court

“Any person can be a representative in court, provided that he has a duly drawn up power of attorney.”

Article 41: Drawing up a power of attorney

“1. The powers of a representative shall be stipulated in a power of attorney issued and drawn up in accordance with the law.

2. The power of attorney issued by a citizen shall be certified by a competent official.

...

4. The powers of an advocate shall be certified in accordance with the law.”

Article 77: Restoration of procedural time-limits

“1. Based on a request from the party to the case, the court shall restore a missed time-limit in case it finds the reasons for missing the time-limit ... justified.”

Article 78: Court summons

“2. The summons shall be sent by registered post with acknowledgement of receipt or by other means of communication ensuring the registration of notification or is served against a receipt (hereafter, in due manner).”

Article 92: Returning a claim

“1. The judge shall return a claim if: ... 2) it is not signed, or it has been signed by a person not authorised to do so or by a person whose official position is not indicated...

4. The decision to return the claim can be appealed in cassation proceedings within three days from the date of its receipt by the party.”

Article 96: Lodging a counterclaim

“1. Before the adoption of a judgment in the case the defendant has the right to lodge a counterclaim against the plaintiff to be examined jointly with the initial claim.

2. A counterclaim is lodged in accordance with the general rules for lodging a claim.

3. A counterclaim is admitted if:

...

2) granting the counterclaim in full or partially precludes the granting of the initial claim;

3) there is a link between the counterclaim and the initial claim, and their joint examination can ensure a more speedy and correct resolution of a dispute.”

Article 138: Pronouncement of a judgment

“1. Immediately after adopting a judgment the presiding judge shall pronounce its operative part at the court hearing and shall announce when the parties to the case will be able to consult the text of the judgment...

2. The text of the judgment shall be drawn up with no longer than three days’ delay, or, exceptionally, in particularly complex cases, with no longer than seven days’ delay.”

Article 139: Service of the judgment on the parties to the case

“The court judgment shall be sent in due manner to the parties to the case immediately after it has been drawn up.”

Article 207: The time-limit for lodging an appeal

“An appeal shall be lodged within fifteen days after the pronouncement of a judgment by the first instance court.”

Article 230: The content of an appeal on points of law

“1. An appeal on points of law must contain:

...

(4.1) Arguments required by any of the subparagraphs of Article 231.2 of this Code;

...”

Article 231.1: Returning an appeal on points of law

“1. An appeal on points of law shall be returned if it does not comply with the requirements of Articles 230 and 231.2 § 1 of this Code or if it has been lodged by a person whose rights have not been violated.

3. In its decision to return an appeal on points of law the Court of Cassation may fix a time-limit for correcting the shortcoming and lodging the appeal anew.”

Article 231.2: Admitting an appeal on points of law

“1. The Court of Cassation shall admit an appeal on points of law, if (1) the judicial act to be adopted in the given case by the Court of Cassation may have a significant impact on the uniform application of the law, or (2) the contested judicial act contradicts a judicial act previously adopted by the Court of Cassation, or (3) a violation of the procedural or the substantive law by the lower court may cause grave consequences, or (4) there are newly discovered circumstances.”

25. Article 41 of the CCP, as amended on 28 November 2007 with effect from 1 January 2008, reads as follows:

Article 41: Formulation and certification of the powers of a representative

“1. The power of attorney issued by a citizen is certified by a notary or another official vested with such authority by the law. A power of attorney issued to an advocate should be in simple written form and is not subject to certification.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

26. The applicant complained that her right of access to a court had been violated as a result of the District Court’s refusal to examine her counter-claim on the ground that the power of attorney submitted by her representative did not comply with the requirements of the law. She relied on Article 6 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

27. The Government contended that Article 6 was not applicable to the present case since the District Court’s decision not to admit the applicant’s counter-claim did not concern the determination of her civil rights.

28. The applicant submitted that the Government’s argument concerning the inapplicability of Article 6 was devoid of any reasoning and unsubstantiated.

29. The Court reiterates that Article 6 § 1 of the Convention embodies the ‘right to a court’, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). This right to a court extends only to ‘disputes’ (‘contestations’ in the French text) over ‘civil rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law. The ‘dispute’ must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question (see Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV).

30. The Court observes that the Government claimed that the District Court’s refusal to admit the applicant’s counter-claim did not concern her civil rights.

31. The Court observes that the applicant was involved as a defendant in civil proceedings brought against her by the Mayor of Yerevan, whereby the latter sought the annulment of her ownership in respect of the construction and the lease for the underlying plot of land, based on his decision of 19 June 2006. Within the framework of the same proceedings the applicant lodged a counter-claim seeking the annulment of the Mayor’s decision of 19 June 2006 as unlawful which, if granted, would preclude the granting of the main claim against her.

32. The Court notes that the law does not contain special rules concerning admission and examination of counter-claims; it appears however that counter-claims are dealt with as separate claims within the main proceedings in accordance with the relevant provisions of the CCP concerning admission and determination of civil claims (see paragraph 15 above). This finding is further reinforced by the fact that the decision to return the counter-claim was subject to separate appeal to the Court of Cassation (ibid.). Therefore, although the counter-claim was lodged within the main proceedings and, if admitted, would be eventually determined together with the main claim by the same judgment, the Court considers that the counter-claim was a separate claim which in its turn also concerned the determination of the applicant’s ‘civil rights and obligations’. Accordingly, the applicant was entitled to have her counter-claim examined in accordance with the requirements of Article 6 § 1 of the Convention. The Government’s objection must therefore be dismissed.

33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

34. The applicant submitted that the limitation of her right of access to a court was unlawful and did not pursue any legitimate aim. She argued that, in refusing to admit her counter-claim, the District Court had failed to specify which requirement of the law had allegedly not been respected and had led to the finding that G.’s power of attorney was not valid. She submitted that she had no obligation under the law to provide G. with a power of attorney certified by a State notary, if that was the reason for the District Court to consider that the power of attorney did not comply with the requirements of the law. She submitted that Article 41 §§ 1 and 4 of the CCP provide that the powers of a representative should be specified in a power of attorney drawn up and certified in a manner prescribed by the law but there was no provision in the law, including the Advocacy Act, establishing a special procedure for the certification of a power of attorney.

35. The Government submitted that the District Court took into account the specific circumstances of the applicant’s case when ruling on the admissibility of her counter-claim. In particular, given that the applicant resided abroad and that the power of attorney submitted by G. contained a simple signature, the District Court judge needed to verify whether the document was genuine. According to the Government, certification by a notary was only one of the options open to the applicant to verify that she had indeed given power to G. to represent her in the proceedings. Moreover, the District Court had given the applicant an opportunity to submit the required document by adjourning the trial for a week, but she had failed to do so. The Government finally submitted that the applicant had the opportunity to put her arguments concerning all the aspects of the case within the framework of the existing proceedings, including the issues raised in her counter-claim. Also, she could have lodged the counter-claim in person, and she had a week in which to do that, but she did not avail herself of this opportunity.

2. The Court’s assessment

36. The Court reiterates that the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. Nonetheless, the limitations applied must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, Levages Prestations Services v. France, 23 October 1996, § 40, Reports of Judgments and Decisions 1996-V citing Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 59, Series A no. 316-B and Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012).

37. It is not the Court’s task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts of appeal and of first instance, to resolve problems of interpretation of domestic legislation (see Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 33, ECHR 2000-I). The role of the Court is limited to verifying whether the effects of such interpretation are compatible with the Convention. This applies in particular to interpretation by courts of rules of a procedural nature (see, among many other authorities, Nowiński v. Poland, no. 25924/06, § 32, 20 October 2009).

38. Turning to the circumstances of the present case the Court observes that the applicant, who resided abroad and was represented by advocate G., attempted to counter-claim, seeking the annulment of the Mayor’s decision of 19 June 2006 based on which the latter had brought a civil claim against her. The District Court returned the counter-claim filed by G. on the ground that the power of attorney produced by the latter was not in compliance with the requirements of the law, namely Article 41 §§ 1, 2 and 4 of the CCP. The Court further observes that the District Court did not specify which requirement of the legal provisions referred to had not been respected and had thus rendered G.’s power of attorney invalid. However, it appears from the record of the District Court’s hearing of 24 October 2006, submitted to the Court by the Government, that the problem with G.’s power of attorney was that it had not been certified by a notary.

39. The Court observes at the same time that the Court of Cassation appears to have accepted the power of attorney submitted by G. since it referred to the latter as the applicant’s ‘representative’ in its decision of 1 December 2006 (see paragraph 20 above). However, the Court of Cassation refused to examine the applicant’s appeal on points of law since it considered that the admissibility criteria for admission of appeals on points of law had not been met. Furthermore, the Court of Cassation was called to examine the District Court’s decision to return the applicant’s counter-claim and not the counter-claim itself. Therefore, it cannot be considered that the Court of Cassation, even though it appears to have accepted G.’s powers, determined the applicant’s civil rights within the meaning of Article 6 of the Convention.

40. The Court notes that at the relevant time Article 41 §§ 1, 2 and 4 of the CCP provided that a power of attorney should be certified by a competent official and that the power of an advocate should be certified in accordance with the law.

41. The Court further notes that both the Government and the domestic courts failed to indicate any legal provision in force at the material time which would stipulate an obligation to have certified by a notary a power of attorney for representation before the courts. Indeed, the Government did not claim that such a specific obligation existed under the law. Instead, they argued that certification by a notary was only one of the options open to the applicant enabling her to prove that the power of attorney produced by G. was genuine. The Court, however, cannot accept such a line of argumentation in view of the fact that the wording of the District Court’s relevant decision expressly stated that the applicant had failed to respect a requirement of the law, which was the reason for not admitting her counter-claim, without specifying either the provision of the law or the requirement which was considered not to have been respected.

42. In view of the foregoing, the Court finds that at the material time the law did not contain clear rules establishing the manner in which a power of attorney issued by a person to an advocate should be drawn up, including the procedure for its certification. Consequently, the Court considers that the District Court’s decision not to admit the applicant’s counter-claim for examination on the merits lacked clear legal basis in the domestic law as it stood at the material time. The Court lastly notes that, as a result of amendments to the relevant provisions of the CCP introduced on 1 January 2008, the law currently stipulates that the power of attorney issued to an advocate should be in a simple written form and is not subject to certification.

43. The foregoing considerations are sufficient to enable the Court to conclude that due to the Government’s failure to adduce any legal basis under domestic law, on which the domestic court could have relied upon to require the applicant to present a power of attorney that had been certified by a notary or in accordance with another procedure prescribed by law, the limitation of the right of access to court suffered by the applicant did not by its nature pursue a legitimate aim nor can it be said to have been proportionate to such an aim. By dismissing the applicant’s counter-claim on this basis, the domestic courts thus undermined the very essence of the applicant’s right to a court guaranteed under Article 6 § 1 of the Convention.

44. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

45. Lastly, the applicant raised a number of other complaints relying on Articles 6, 13 and Article 1 of Protocol No. 1 to the Convention.

46. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. 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.”

A. Damage

48. The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage.

49. The Government submitted that there was no causal link between the non-pecuniary damage claimed and the alleged violation of the applicant’s Convention rights. Also, the applicant had failed to produce any evidence proving that she had suffered non-pecuniary damage.

50. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,600 in respect of non-pecuniary damage.

B. Costs and expenses

51. The applicant did not submit any claims under this head.

C. Default interest

52. 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. Declares the complaint concerning lack of access to a court admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,600 (three thousand six hundred euros) in respect of non-pecuniary damage, to be converted into Armenian drams at the rate applicable at the date of settlement plus any tax that may be chargeable;

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

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Mirjana Lazarova Trajkovska
Deputy Registrar President

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