CASE OF GURBANOVA AND PASHAYEVA v. AZERBAIJAN

FIFTH SECTION

CASE OF GURBANOVA AND PASHAYEVA v. AZERBAIJAN

(Application no. 26553/08)

JUDGMENT

STRASBOURG

20 February 2020

This judgment is final but it may be subject to editorial revision.

In the case of Gurbanova and Pashayeva v. Azerbaijan,

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

André Potocki, President,
Lәtif Hüseynov,
Anja Seibert-Fohr, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 28 January 2020,

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

PROCEDURE

1.  The case originated in an application (no. 26553/08) 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 Azerbaijani nationals, Ms Mahira Gandali gizi Gurbanova (Mahirə Qəndalı qızı Qurbanova - “the first applicant”) and Ms Rahila Gandali gizi Pashayeva (Rahilə Qəndalı qızı Paşayeva - “the second applicant”) (together – “the applicants”), on 20 April 2008.

2.  The applicants were self-represented. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.

3.  The applicants complained, in particular, under Article 6 § 1 of the Convention of the non-enforcement of a final judgment delivered in their favour. Relying mainly on Article 6 § 1 of the Convention, the first applicant further complained of being denied access to the Supreme Court as a result of not having been granted legal aid for an advocate to lodge a cassation appeal on her behalf in the civil proceedings.

4.  On 8 December 2010 notice of the application was given to the Government.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

5.  The applicants were born in 1946 and 1953 respectively, and both live in Baku.

6.  On 13 June 1990 the first applicant’s husband and the second applicant were allocated plots of land in the Azizbeyov District.

7.  The first applicant’s husband passed away in 1998.

8.  On an unspecified date the applicants requested the State Register of Real Estate, the State Committee of Land and Cartography and the Baku City Executive Authority (“the authorities”) to provide them with certain documents necessary for the registration of their property rights over the plots of land in question.

9.  Upon a refusal by the authorities to provide the applicants with the relevant documents, the applicants lodged a joint action against the above‑mentioned State authorities.

10.  On 17 October 2007 the Azizbeyov District Court granted the applicants’ claims and ordered the authorities to provide the applicants with the documents concerning their respective plots of land and to register the applicants’ property rights over the plots of land.

11.  No appeal was lodged against the Azizbeyov District Court’s judgment of 17 October 2007 and it became final and enforceable within a month of its delivery.

12.  On an unspecified date in 2008 the applicants brought a civil action, claiming, inter alia, compensation for the non-enforcement of the Azizbeyov District Court’s judgment of 17 October 2007. By a judgment of 4 April 2008, the Narimanov District Court dismissed the applicants’ compensation claim. On 11 September 2008 the Baku Court of Appeal dismissed an appeal lodged by the applicants against the Narimanov District Court’s judgment of 4 April 2008.

13.  On an unspecified date in 2008 the first applicant lodged a cassation appeal against the Baku Court of Appeal’s judgment of 11 September 2008. On 28 November 2008 the Baku Court of Appeal returned the applicant’s cassation appeal on the grounds that it had not been lodged by an advocate. It relied on Article 67 of the Code of Civil Procedure (“the CCP”).

14.  On an unspecified date the first applicant requested the Baku Court of Appeal to provide her with legal aid, claiming that she did not have sufficient financial means to pay for the legal services of an advocate in order to lodge a cassation appeal. On 27 January 2009 the Baku Court of Appeal dismissed the first applicant’s request on the following grounds:

“The Court notes that the applicant’s request for free legal aid from a State‑appointed lawyer must be dismissed on the grounds that the civil procedure legislation in force does not provide for an appeal court to appoint a State-funded lawyer so that he or she can prepare a cassation appeal and participate in cassation proceedings, or to examine the financial situation of the applicant, who has submitted a request for free legal assistance ...

... This decision is amenable to a cassation appeal ... within 10 (ten) days of its delivery ...”

15.  The first applicant did not lodge a cassation appeal against the Baku Court of Appeal’s decision of 27 January 2009.

16.  At the time of the latest correspondence with the applicants, the Azizbeyov District Court’s judgment of 17 October 2007 remained unenforced.RELEVANT DOMESTIC LAW AND PRACTICECode of Civil Procedure (“the CCP”) of 2000

17.  Article 67 (compulsory presence of an advocate in proceedings) of the CCP, in force at the material time, read, as far as relevant, as follows:

“Cassation appeals ... shall be admitted [for examination on their merits] only if they were prepared by an advocate and shall only be examined on their merits in the presence of an advocate.”

18.  In accordance with Article 408.1.3 (return of a cassation appeal) of the CCP, a cassation appeal that has not been lodged by an advocate has to be returned to the appellant.

19.  Law no. 819-IIIQD of 26 May 2009, which entered into force on 24 June 2009, introduced a new paragraph to Article 14 (principles governing court proceedings) of the CCP, which reads, as far as relevant, as follows:

“14.5. In instances where this Code requires compulsory representation by an advocate, parties to the case who do not have sufficient financial means to pay for the services of an advocate, have the right to free (State-appointed) professional legal assistance for the representation of their interests and for the exercise of their procedural rights.”

20.  Law no. 819-IIIQD also amended Article 67 of the CCP, as far as relevant, as follows:

“67.1.  Cassation appeals ... shall be admitted [for examination on their merits] only if they are prepared by an advocate. Persons involved in a case shall participate in cassation ... court hearings only when represented by an advocate.

67.2.  In the instances where this Code requires the compulsory presence of an advocate in court proceedings [and] the persons involved in a case do not have sufficient financial means to pay for the services of an advocate, the court which has delivered the decision [against which a cassation appeal was lodged] shall ensure, on the basis of a written request by [those] persons, the participation of an advocate in the proceedings.”Law on Advocates and Advocacy Activity

21.  Article 20 (free legal assistance by a State-appointed lawyer) of the Law, as in force at the material time, reads, as far as relevant, as follows:

“... Persons lacking financial means who are in need of free legal assistance in court proceedings shall be granted free (State-appointed) legal assistance without any restriction. The amount to be granted as free legal aid and the method of payment shall be regulated by the relevant executive authority.”Decision of the Constitutional Court

22.  By a decision of 11 June 2002, the Constitutional Court found that Article 67 of the CCP was compatible with the Constitution. It further held, as far as relevant, as follows:

“... Upon the request of a party to the case, the domestic court examining the case shall determine the issue of providing the person who seeks the assistance of a lawyer, but does not have the financial means for this purpose, with a State-appointed lawyer ...

The Cabinet of Ministers is recommended to adopt the rules on free legal assistance in civil cases ...”

THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT

23.  The applicants complained of the non-enforcement of the Azizbeyov District Court’s judgment of 17 October 2007 delivered in their favour. They relied on Article 6 § 1 of the Convention, which 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 ...”Admissibility

24.  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.Merits

25.  The applicants maintained their complaints.

26.  The Government submitted that the applicants themselves had not displayed sufficient diligence in pursuing the enforcement of the judgment. In particular, the Government noted that the applicants should have shown the exact borders of the plots of land to the State Committee of Land and Cartography and should have provided the State Register of Real Estate with the corresponding documents.

27.  The Court reiterates that the execution of a judgment given by any court must 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).

28.  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).

29.  The Court observes that in the present case the continuing non‑enforcement of the judgment of 17 October 2007 delivered in favour of the applicants deprived them of the benefits of success in the litigation which concerned their property rights. The Court finds that no reasonable justification was advanced by the Government for this delay. The Court also cannot accept the Government’s assertion that the non-enforcement of the judgment was attributable to the applicants since neither the State Committee of Land and Cartography, nor the State Register of Real Estate had informed the enforcement authorities that the judgment of 17 October 2007 could not be enforced as a result of the applicants’ alleged lack of cooperation with them. The Court therefore considers that by failing to take the necessary measures to comply with the final judgment in the instant case, the authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect (see Burdov, cited above, § 37 and Tarverdiyev v. Azerbaijan, no. 33343/03, §§ 55-61, 26 July 2007).

30.  There has accordingly been a violation of Article 6 § 1 of the Convention.ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF ACCESS TO COURT

31.  The first applicant complained under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention that she had been denied access to the Supreme Court on account of the domestic court’s refusal to grant her legal aid at a time when she could not afford the services of an advocate to represent her in lodging a cassation appeal in civil proceedings. The Court considers that this complaint essentially raises an issue of access to court and should therefore be examined solely from the standpoint of Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

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

32.  The Government submitted that the first applicant had failed to exhaust domestic remedies in respect of her complaint. In that connection, the Government pointed out that the first applicant had failed to lodge a cassation appeal against the Baku Court of Appeal’s decision of 27 January 2009 to refuse legal aid, although there had been no requirement for compulsory representation for this purpose.

33.  The first applicant contested the Government’s submissions. In particular, she noted that in accordance with Article 67 of the CCP, she had been required to have an advocate in order to lodge a cassation appeal against the Baku Court of Appeal’s decision of 27 January 2009 and had she lodged a cassation appeal without such representation, it would have been returned to her owing to the lack of an advocate.

34.  The Court reiterates that in order to comply with the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports 1998‑VIII).

35.  The only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to show that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed which absolved him or her from this requirement (see Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001‑XI (extracts), and Melnik v. Ukraine, no. 72286/01, § 67, 28 March 2006).

36.  In the present case, the Court observes that Articles 67 and 408 of the CCP, as in force at the material time, required representation by an advocate in order to lodge a cassation appeal. Otherwise, the court would return the cassation appeal to the relevant party. The Court therefore dismisses the Government’s objection of non-exhaustion of domestic remedies.

37.  The Court further 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.MeritsThe parties’ submissions

38.  The first applicant maintained her complaint.

39.  The Government submitted that the CCP, as in force at the material time, had not sufficiently regulated the issue of which authority was competent to grant requests for free legal aid in civil proceedings. In that connection, the Government pointed out that by its decision of 11 June 2002, the Constitutional Court, which had found Article 67 of the CCP to be compatible with the Constitution, had indicated that the domestic courts shall examine and address requests of parties to civil proceedings concerning the provision of free legal aid in the event that the parties did not have the financial means to pay for the legal services of an advocate. The Government further noted that on 26 May 2009 relevant amendments had been made to Article 67 of the CCP, introducing the procedure for examining legal aid requests made in civil proceedings.The Court’s assessment

40.  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, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations 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, Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012; Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 89, ECHR 2016 (extracts); Baka v. Hungary [GC], no. 20261/12, § 120, 23 June 2016; Naït-Liman v. Switzerland [GC], no. 51357/07, § 115, 15 March 2018; and Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018).

41.  The Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations” (see, among other authorities, Andrejeva v. Latvia [GC], no. 55707/00, § 97, ECHR 2009). However, the manner in which Article 6 § 1 is to be applied in relation to appellate or cassation courts depends upon the special features of the proceedings involved. Account must be taken of the entirety of the proceedings conducted in the domestic legal order and of the role of the appellate or cassation court therein (see Monnell and Morris v. the United Kingdom, 2 March 1987, § 56, Series A no. 115, and Tolstoy Miloslavsky, cited above, § 59).

42.  The Court further reiterates that the requirement that the applicant be represented by a qualified lawyer before the Supreme Court, such as that applicable in the present case, cannot, in itself, be seen as contrary to Article 6 of the Convention. This requirement is clearly compatible with the characteristics of the Supreme Court as the highest court examining appeals on points of law and it is a common feature of the legal systems in several member States of the Council of Europe (see, for instance, Siałkowska v. Poland, no. 8932/05, § 106, 22 March 2007, and Gillow v. the United Kingdom, 24 November 1986, § 69, Series A no. 109; and Shamoyan v. Armenia, no. 18499/08, § 35, 7 July 2015).

43.  The Court reiterates that, although the Convention does not contain similar requirements concerning the provision of legal aid in criminal proceedings and proceedings concerning the determination of “civil rights and obligations”, Article 6 § 1 may compel the State to provide for the assistance of a lawyer in civil proceedings when such assistance proves indispensable for effective access to court because legal representation is rendered compulsory (see, mutatis mutandis, Airey v. Ireland, 9 October 1979, § 26, Series A no. 32).

44.  The Court further notes that it is for the Contracting States to decide how they should comply with the fair hearing obligations arising under the Convention. However, the Court must satisfy itself that the method chosen by the domestic authorities in a particular case is compatible with the Convention. In discharging obligation to provide parties to civil proceedings with legal aid, when it is provided by domestic law, the State must, moreover, display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6. It is also essential for the legal aid system to offer individuals substantial guarantees to protect those having recourse to it from arbitrariness (see Siałkowska, cited above, §§ 106-107).

45.  Turning to the circumstances of the present case, the Court notes that the Baku Court of Appeal, having dismissed the first applicant’s request for legal aid, relied on the lack of regulation of the matter – in particular, the procedure for examining the applicant’s financial status – and held that it did not have the competence to decide on the issue under the domestic law.

46.  In that connection, the Court notes that in accordance with Article 67 of the CCP, as in force at the material time, only an advocate – a member of the Bar Association – would have been authorised to act before the Supreme Court by lodging a cassation appeal on behalf of the first applicant. However, as the Government admitted in their observations before the Court, the legislation, as in force at the material time, and particularly the CCP, did not provide for a procedure governing the appointment of a State‑funded lawyer in civil proceedings. The Court observes that, in view of the state of the legislation in force at the material time, by its decision of 11 June 2002, the Constitutional Court held that the domestic courts shall grant free legal aid to parties in civil proceedings in the event that they did not have sufficient means to pay for the legal services of a lawyer.

47.  In the light of the foregoing, the Court considers that the Baku Court of Appeal’s refusal to grant legal aid to the first applicant on the grounds of the lack of relevant regulation in this field placed a disproportionate restriction on the first applicant’s effective access to court, given the procedural requirement that cassation appeals could only be lodged by advocates.

48.  The Court welcomes the amendments made to the CCP on 24 June 2009 (see paragraph 20 above) introducing a new procedure governing requests for legal aid pending cassation proceedings. This fact, however, does not have any bearing on the first applicant’s case, which concerned the relevant domestic law applicable at the material time.

49.  There has accordingly been a violation of Article 6 § 1 of the Convention in respect of the first applicant.ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

50.  The applicants complained under Article 14 of the Convention taken in conjunction with Article 6 § 1 that they had been discriminated against on account of the authorities’ failure to enforce the final judgment, in contrast to the enforcement steps taken in the cases of other persons in similar situations.

51.  In the light of all the evidential material in its possession, and in so far as the matters complained of are within its competence, the Court finds that this complaint does 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 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

52.  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.”DamagePecuniary damage

53.  The applicants claimed 30,139 euros (EUR) each in respect of pecuniary damage, which included the market value of the plots of land and the loss of profit from the potential bank account interest that the applicants would have benefited from had they been able to sell the plots of land and keep the proceeds of sale in a bank account. In support of their claims, the applicants submitted some estimates, prepared by a local NGO, of market values for comparable plots of land in similar conditions, some extracts from the “Statistical Bulletins” issued by the National Bank on official interest rates applicable to deposits and the template of a deposit contract with one of the banks in Azerbaijan, signed by somebody other than the applicants.

54.  The Government submitted that there was no causal link between the alleged violation and the part of the applicants’ just satisfaction claim submitted under this head. Furthermore, relying on a report issued by “Mizan Consulting Ltd”, they submitted that other plots of land situated in the same area had a lower value than that indicated by the applicants.

55.  The Court finds that the claim in respect of pecuniary damage has not been sufficiently substantiated; it therefore rejects this claim.Non-pecuniary damage

56.  The first applicant claimed EUR 10,000 and the second applicant EUR 5,000 in respect of non-pecuniary damage.

57.  The Government submitted that the amounts claimed by the applicants were unsubstantiated and excessive. They further submitted that the finding of a violation in the present case would constitute sufficient reparation in respect of the applicants’ claims.

58.  The Court considers that the applicants have suffered non‑pecuniary damage which cannot be compensated solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the first applicant the sum of EUR 4,600 and the second applicant EUR 3,600 under this head, plus any tax that may be chargeable on these amounts.Costs and expenses

59.  The second applicant claimed EUR 149 for the services of the consultant NGO and other costs incurred in the proceedings before the domestic courts and the Court. In support of the claim, the second applicant submitted the bill for the services of the NGO.

60.  The Government contended that the second applicant’s claims were unsubstantiated. In that connection, the Government asked the Court to apply a strict approach in respect of the second applicant’s claims. They further asked the Court to take into consideration the fact that the bill for the services of the local NGO had been paid not by the second applicant, but by another person who was not a party to the present case. The second applicant had also failed to present proof of her claims for costs and expenses incurred before the domestic courts.

61.  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. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim in respect of costs and expenses before the domestic courts and the Court.Default interest

62.  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,Declares the complaints under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention on account of the non-enforcement of the final decision in respect of both of the applicants;Holds that there has been a violation of Article 6 § 1 of the Convention on account of the denial of access to a court in respect of the first applicant;Holds

(a)  that the respondent State is to pay the first applicant EUR 4,600 (four thousand six hundred euros) and the second applicant EUR 3,600 (three thousand six hundred euros), within three months, in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 20 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško André Potocki
Deputy RegistrarPresident

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