FIRST SECTION
DECISION
Application no. 26216/08
by Musa RASULOV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 26 August 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Registrar,
Having regard to the above application lodged on 12 May 2008,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Musa Rasulov, is an Azerbaijani national who was born in 1972 and lives in Baku. He is represented before the Court by Mr R. Yolchuyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) are represented by their Agent, Mr Ç. Asgarov.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 September 2000 the applicant got married. The applicant and his wife only lived together for about three months.
According to the applicant, three months after their marriage, when he intended to commence divorce proceedings, he found out that his wife was pregnant. Believing that he was not the father of the unborn child, the applicant lodged a lawsuit disputing his paternity and asking for annulment of their marriage.
In the meantime, while the proceedings were underway, on 21 June 2001 the applicant's wife gave birth to a boy and the child was registered as the applicant's son.
In the proceedings before the first-instance court, a biological expert examination was carried out in order to determine the applicant's paternity. On 27 May 2002 an expert of the Ministry of Health issued an opinion on the applicant's paternity. The expert performed a blood group test by comparing the applicant's, the child's and the mother's blood types and, based on its results, concluded that the possibility that the applicant was the child's biological father could not be ruled out.
After the biological expert examination, the court ordered a DNA test in order to have a definitive result. On 20 May 2003 an expert of the Ministry of Health issued an opinion concluding that, pursuant to the results of the DNA test, the applicant was not the father of the child. In order to resolve the possible contradiction between the two expert opinions, the court ordered an additional expert examination. On 28 March 2006 the expert issued an opinion confirming the results of the DNA test. The expert held that the results of a DNA test were more precise and reliable than the results of a blood group test, which were very imprecise. He also stated that the results of a DNA test should prevail over blood group test results from a medical point of view.
Relying on the results of the DNA test, on 11 May 2006 the Azizbayov District Court granted the applicant's claim in the part concerning his paternity. The court held that the applicant was not the child's biological father.
The judgment was appealed by both parties. In his appeal, the applicant asked additionally for the annulment of the marriage. The applicant's wife complained about the outcome of the paternity dispute.
On 4 September 2007 the Baku Court of Appeal delivered a new judgment on the merits. The Baku Court of Appeal quashed the judgment of 11 May 2006 and dismissed the applicant's claim, relying on the fact that the applicant and his wife had been living together at the time of the child's conception. The Baku Court of Appeal did not take into account the results of the expert opinions, holding that their conclusions had been contradicted by the other circumstances of the case.
The applicant lodged a cassation appeal complaining that the court had wrongly assessed the evidence.
On 20 November 2007 the Supreme Court upheld the Baku Court of Appeal's judgment and dismissed the applicant's cassation appeal.
On 2 June 2010 the Plenum of the Supreme Court quashed the lower courts' judgments and remitted the case to the appellate instance for a new examination.
The proceedings are still pending.
COMPLAINT
The applicant complained under Article 6 of the Convention that the proceedings had been unfair. He argued that despite the fact that, according to the DNA test, he was not the biological father of the child born to his wife, the domestic courts had dismissed his claim in which he contested his paternity.
THE LAW
The Court notes that by a letter of 4 June 2010 the applicant informed the Court of his wish to withdraw the application due to the fact that the Plenum of the Supreme Court had quashed the impugned judgments and remitted the case to the appellate instance for a new examination.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Søren NielsenChristos Rozakis Registrar President
Full & Egal Universal Law Academy