FIRST SECTION
DECISION
Application no. 40413/12
Javid ZULFUGAROV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 8 September 2015 as a Committee composed of:
Linos-Alexandre Sicilianos, President,
Khanlar Hajiyev,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 16 June 2012,
Having regard to the declaration submitted by the respondent Government on 27 October 2014 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Javid Zulfugarov, is an Azerbaijani national, who was born in 1982 and lives in Baku. He was represented before the Court by Ms T. Bahadirbeyli, a lawyer practising in Azerbaijan.
The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
The applicant complained under Article 6 of the Convention about the continued non-enforcement of the judgment delivered in his favour and under Article 1 of Protocol No. 1 to the Convention about the violation of his right to peaceful enjoyment of his possessions as a result of non‑enforcement of the judgment.
The application was communicated to the Government.
THE LAW
The applicant complained about the continued non-enforcement of the judgment delivered in his favour. He relied on Article 6 of the Convention and on Article 1 of Protocol No. 1 to the Convention.
After the failure of attempts to reach a friendly settlement, by a letter of 27 October 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of the Republic of Azerbaijan hereby wish to express – by way of unilateral declaration – their acknowledgement of the fact that there has been a violation of the applicant’s rights guaranteed under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
The Government are prepared to pay to the applicant, Mr Javid Zulfugarov, the sum of EUR 3,500 (three thousand five hundred euros) for pecuniary and non‑pecuniary damage. This sum shall be free of any tax that may be applicable and shall be payable within three months from the date of the notification of the striking‑out [decision] of the Court pursuant to Article 37 of the European Convention on Human Rights. From the expiry of the above-mentioned period, 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.
This declaration does not exempt the Government from their obligation to enforce the court’s judgment delivered in the applicant’s favour.
In the light of above, the Government would suggest that the circumstances of the present cases allow the Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying to discontinue the examination of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invite the Court to strike the application out of its list of cases.”
By a letter of 14 January 2015, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the proposed amount was not sufficient and requested the total amount of EUR 42,400 for pecuniary and non-pecuniary damage.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court has examined the declaration carefully in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against Azerbaijan, its practice concerning complaints under Articles 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of final judgments pronounced in the applicant’s favour (see, for example, Mirzayev v. Azerbaijan, no. 50187/06, 3 December 2009).
Having regard to the nature of the admissions contained in the Government’s declaration, which can only be interpreted as an undertaking to enforce the judgment in the applicant’s favour, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
The Court considers that this amount should be converted into Azerbaijani manats at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 1 October 2015.
André WampachLinos-Alexandre Sicilianos
Deputy RegistrarPresident
Full & Egal Universal Law Academy