DAMIROV v. AZERBAIJAN - 40051/09 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2016] ECHR 597 (30 June 2016)

In the case of Damirov v. Azerbaijan,

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

          Faris Vehabović, President,
          Khanlar Hajiyev,
          Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 7 June 2016,

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

PROCEDURE

1. The case originated in an application (no. 40051/09) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Rustam Hasan oglu Damirov (Rüstəm Həsən oğlu Dəmirov - “the applicant”), on 7 July 2009.

2. The applicant was represented by Ms S. Jamalzade, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. On 6 July 2010 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1963 and lives in Mingachevir.

5. The applicant worked as the executive director at the “Mingachevir Technical Rubber” Joint Stock Company, which was an enterprise under the control of the Department for Privatization and Management of State Property (“the DPMSP”) of the Ministry of the Economic Development. On 15 March 2005 the applicant was dismissed from his job by an order of the DPMSP of the Ministry of the Economic Development.

6. The applicant lodged an action against the DPMSP, seeking reinstatement in his previous job and payment of his unpaid salaries.

7. On 25 August 2005 the Sabayil District Court granted the applicant’s claim, ordering his reinstatement in his previous job. The court also ordered the DPMSP to pay the applicant his unpaid salary for the period from 15 March 2005 (date of dismissal) until the date of his reinstatement, without specifying the due amount.

8. On 25 November 2005 the Court of Appeal upheld the judgment of 25 August 2005, dismissing the DPMSP’s appeal. The judgment became enforceable immediately after its delivery. On 13 December 2005 a writ of execution was issued and sent to the DPMSP.

9. On 12 April 2006 the Supreme Court upheld the Court of Appeal’s judgment and dismissed the cassation appeal lodged by the State Committee for Management of State Property (“the SCMSP”), which was the legal successor of the former DPMSP.

10. It appears from the documents in the case file that in spite of the issuance of the writ of execution and numerous letters of the enforcement officers requesting the execution of the judgment, the SCMSP took no action to comply with the judgment in question.

11. Following the SCMSP’s continuous failure to comply with the judgment, on 14 July 2006 the Sabayil District Court decided to refer the case to the Sabayil District Prosecutor’s Office for institution of criminal proceedings against the SCMSP’s responsible official for non-execution of an enforceable judgment. However, it transpires from the case file that on an unspecified date the prosecuting authorities returned the case to the enforcement officers without taking any formal decision as regards the institution of criminal proceedings.

12. At the time of the latest communication with the parties in June 2011, the judgment delivered in the applicant’s favour remained unenforced.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT

13. Relying on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained about the non-enforcement of the judgment of 25 August 2005. Article 6 § 1 of the Convention reads, as far as relevant, as follows:

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

Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol No. 1 provides as follows:

“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. ...”

A. Scope of the case

14. The Court observes that, at the time of the latest communication with the parties in June 2011, the judgment delivered in the applicant’s favour remained unenforced. However, the Court did not receive any further information concerning the state of progress of the domestic enforcement proceedings. In these circumstances, the Court considers it appropriate to limit the scope of the case now before it to the period until June 2011 on which the parties have commented.

B. Admissibility

15. The Court notes that the application 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.

C. Merits

1. Articles 6 § 1 and 13 of the Convention

16. The Government did not make any observations on the merits.

17. The applicant maintained his complaint.

18. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it 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. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to court and the conduct of proceedings could lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II).

19. The Court further notes that a delay in the execution of a judgment may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6 § 1 of the Convention (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III). In the instant case, the applicant should not have been prevented from benefiting from the success of the litigation, which concerned the reinstatement of the applicant in his job after wrongful dismissal as well as the payment of his unpaid salaries.

20. The Court notes that, from 25 November 2005 - the date on which the Sabayil District Court’s judgment of 25 August 2005 became enforceable following the delivery of the Court of Appeal’s judgment - till June 2011, the judgment of 25 August 2005 remained unenforced for almost five years and seven months. No reasonable justification was advanced by the Government for this delay.

21. By failing for all those years to take the necessary measures to comply with the final judgment in the present case, the authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect (see Burdov, cited above, § 37). There has accordingly been a violation of Article 6 § 1 of the Convention.

22. In view of the above finding, the Court does not consider it necessary to rule on the complaint under Article 13 of the Convention because Article 6 is lex specialis in regard to this part of the application (see, for example, Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25 October 2007, and Akhundov v. Azerbaijan, no. 39941/07, § 37, 3 February 2011).

2. Article 1 of Protocol No. 1 to the Convention

23. The Government did not make any observations on the merits.

24. The applicant maintained his complaint.

25. The Court observes that the Sabayil District Court’s judgment of 25 August 2005 ordered payment of the applicant’s unpaid salary from 15 March 2005 (the date of his dismissal) until the date of his reinstatement. Although the judgment had become final and the enforcement proceedings had been instituted, the judgment remained unenforced for almost five years and seven months. The inability of the applicant to obtain execution of this judgment constituted an interference with his right to peaceful enjoyment of his possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

26. By failing to comply with the judgment of 25 August 2005 in a timely manner, the national authorities prevented the applicant from being paid the money he could reasonably have expected to receive. The Government have not advanced any plausible justification for this interference (see Burdov, cited above, § 41).

27. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

28. 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

1. Pecuniary damage

29. In respect of pecuniary damage, the applicant claimed 20,353 Azerbaijani manats (AZN) (principal amount of AZN 18,572.72 for unpaid salaries considered together with an indexation rate for unpaid salaries from the period of 15 March 2005 to 20 May 2011 and AZN 1,780.28 as an interest rate). In support of his claim, the applicant submitted calculations of a commercial consulting firm with respect to the unpaid salaries as indexed according to the Central Bank’s interest rates.

30. The Government considered that the applicant’s submissions with respect to his salary, the indexation and default interest rate were irrelevant. The Government submitted that the applicant’s salary was subject to 14 % income tax as well as 3% social duties and that consequently his pecuniary damage might amount to AZN 11,880.55. The Government further submitted that there was no causal link between the applicant’s rights stipulated in Article 6 § 1 of the Convention and his claims with respect to indexation of his salary caused due to the inflation and default interest rate for the said period.

31. The Court notes that, as a result of the non-enforcement of the judgment of 25 August 2005 ordering the applicant’s reinstatement, as well as payment of unpaid salaries for the period from 15 March 2005 (date of dismissal) until the date of his reinstatement, the applicant was deprived of the wages to which he was entitled in accordance to that judgment in his favour. Therefore, the Court considers that there is a causal link between the violations found and the applicant’s claims in respect of pecuniary damage as regards his unpaid salaries.

32. Having examined the parties’ submissions, the Court will take as a reference point the estimates of unpaid salaries submitted by the applicant, as they had been prepared by a commercial consulting firm specialised in such matters. The Court also considers that the rates should be adjusted for inflation and other financial factors, and that the Central Bank’s default interest rates can be used for such adjustment. This adjusted amount (total estimated amount of unpaid salaries for the period of 15 March 2005 to 20 May 2011, plus interest) should serve as a starting point for calculating the final amount of the award (compare Zulfali Huseynov v. Azerbaijan, no. 56547/10, § 26, 26 June 2012).

33. The Court also takes note of the Government’s argument that the salary would be subject to taxation, mainly 14 % income tax and 3% for social duties (see Radanović v. Croatia, no. 9056/02, § 65, 21 December 2006, and Zulfali Huseynov, cited above, § 28). Accordingly, the amount to be awarded to the applicant should be further adjusted by deducting the amount of tax that should have been paid, calculated at the rate of 17 %.

34. In view of the above findings, and taking into account the fact that the awarded amount should also take into consideration the effects of inflation, the Court awards the applicant the sum of EUR 16,000, net of additional taxes, in respect of pecuniary damage.

2. Non-pecuniary damage

35. The applicant claimed EUR 30,000 in respect of non-pecuniary damage. In this connection, he also relied on his wife’s illness claiming that as a result of his unlawful dismissal he could not afford the medical treatment that his wife needed.

36. The Government considered the sum claimed by the applicant unsubstantiated and unreasonable. The Government also claimed that there was no causal link between the alleged violation of the applicant’s rights and the illness of the applicant’s wife. The Government further submitted that the finding of a violation of the Convention would constitute sufficient reparation in respect of any non-pecuniary damage suffered by the applicant.

37. The Court considers that the applicant must have sustained some non-pecuniary damage as a result of the lengthy non-enforcement of the final judgment in his favour. However, the amount claimed is excessive. The Court also notes that there is no causal link between the violations found and the applicant’s claims in respect of non-pecuniary damage as regards his wife’s illness. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 3,600 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

38. The applicant claimed EUR 5,000 for the costs and expenses incurred before the Court.

39. The Government considered that the claim was unsubstantiated and lacked documentary evidence, except the bill confirming payment of AZN 300 to the consulting firm.

40. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant was represented before the Court, and it is undisputed that the representative provided relevant documentation and observations, as requested by the Court. In these circumstances, the Court finds it appropriate to award the applicant EUR 1,300 in respect of costs and expenses (see Rzakhanov v. Azerbaijan, no. 4242/07, § 92, 4 July 2013, and Novruz Ismayilov v. Azerbaijan, no. 16794/05, § 100, 20 February 2014).

C. Default interest

41. 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 application admissible;

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

3. Holds that there is no need to examine the complaint under Article 13 of the Convention;

4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5. Holds

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

(i) EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 1,300 (one thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

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

Done in English, and notified in writing on 30 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Faris Vehabović
Deputy Registrar President

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