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FIRST
SECTION
CASE OF TARVERDIYEV v. AZERBAIJAN
(Application
no. 33343/03)
JUDGMENT
STRASBOURG
26 July 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Tarverdiyev v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E.
Jebens,
Mr G. Malinverni, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 5 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33343/03) 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 Bahram Bey oglu Tarverdiyev (Bəhrəm
Bəy oğlu Tarverdiyev – “the
applicant”), on 29 July 2003.
- The
applicant was represented by Mr S. Mammadov. The Azerbaijani
Government (“the Government”) were represented by their
Agent, Mr C. Asgarov.
- The
applicant alleged that the failure to enforce the judgment of
20 August 2001 violated his right to a fair trial and right to
an effective remedy, as guaranteed by Articles 6 and 13 of the
Convention.
- On
26 November 2004 the President of the Chamber decided to give notice
of the application to the Government. Under the provisions of
Article 29 § 3 of the Convention, the Court decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in Ismayilli.
A. The applicant's dismissal from his job
- The
applicant worked as a director of the Ismayilli Region Forestry
(İsmayıllı meşə
təsərrüfatı), which was an enterprise
under the control of the Azerbmeşe Production Union
(“Azərbmeşə”
İstehsalat Birliyi), a state authority responsible
for administration of forests. In May 2001 he fell ill for a short
time and was hospitalised from 21 May to 7 June 2001.
- On
23 May 2001, while the applicant was in hospital, he was dismissed
from his job by an order of the Azerbmeşe Production
Union.
B. Liquidation of the Azerbmeşe Production Union
- On
23 May 2001, on the same day that the applicant was dismissed from
his job, the Azerbmeşe Production Union was liquidated by
the Presidential Decree on Establishment of the Ministry of
Environment and Natural Resources of the Republic of Azerbaijan.
- The
Statute of the Ministry of Environment and Natural Resources
(“Ministry of Environment”), approved by a presidential
decree of 18 September 2001, vested it with the duty to
implement activities in the field of use, restoration, creation and
protection of forests.
- In
accordance with the Cabinet of Ministers' resolution of 16 October
2001, enterprises and organisations previously under control of the
liquidated Azerbmeşe Production Union, including the
Ismayilli Region Forestry, were transferred to the Ministry of
Environment.
C. Proceedings concerning the applicant's reinstatement
in his job
- In
the meantime, the applicant filed a lawsuit against the Ministry of
Environment, as the legal successor of the Azerbmeşe
Production Union, arguing that his dismissal had been unlawful. By a
judgment of 20 August 2001, the Narimanov District Court upheld the
applicant's claim. The court noted that Article 79 § 1 of the
Labour Code prohibited an employer from dismissing an employee from
his job during his or her temporary inability to work, which included
temporary illness and hospitalisation. The court ordered the
applicant's reinstatement in his job as the director of the Ismayilli
Region Forestry. The court also granted the applicant's request to
leave the issue of material and moral compensation open.
- No
appeals were filed against the judgment of 20 August 2001 and it
entered into legal force.
- On
12 December 2001 the Minister of Environment issued an order on
liquidation of regional forest authorities, including the Ismayilli
Region Forestry.
- On
31 January 2002 the Narimanov District Court issued a writ of
execution which, on 14 February 2002, was sent to the Ministry of
Environment through the Narimanov District Department of Judicial
Observers and Enforcement Officers (Nərimanov rayon Məhkəmə
Nəzarətçiləri və Məhkəmə
İcraçıları şöbəsi;
hereinafter the “Narimanov Department of Enforcement
Officers”).
- On
20 February 2002 the Ministry of Environment informed the Narimanov
Department of Enforcement Officers that, upon the reorganisation of
the Ministry, the Ismayilli Region Forestry had been liquidated on 12
December 2001 and that, therefore, it was not possible to reinstate
the applicant in his previous job.
- By
a letter of 25 February 2002, the Ministry of Environment also
informed the applicant of the impossibility of the judgment's
execution.
- On
10 May 2002 the writ of execution was returned to the Narimanov
District Court.
- On
1 May 2003 the applicant was hired as an economic manager (təsərrüfat
müdiri) at the Ismayilli Enterprise for Forest Protection
and Restoration (İsmayıllı Meşə
Mühafizəsi və Bərpası Müəssisəsi)
of the Ministry of Environment. On 1 December 2003 he was dismissed
from this job upon his own request.
- In
the meantime, the applicant wrote numerous letters to the Ministry of
Justice, the President's Office, the Ombudsman, the Parliament, and
the Constitutional Court, complaining about non-enforcement of the
judgment of 20 August 2001. These letters were forwarded to the
Department of Judicial Observers and Enforcement Officers of the
Ministry of Justice (Azərbaycan Respublikası Ədliyyə
Nazirliyinin Məhkəmə Nəzarətçiləri
və Məhkəmə İcraçıları
İdarəsi – “Ministry of Justice”). In
its similar reply letters of 16 May 2002, 4 July 2002, 30 November
2002, 23 July 2003 and 5 June 2004, the latter informed the
applicant that, due to the impossibility of execution of the judgment
of 20 August 2001, the writ of execution had been returned to the
Narimanov District Court. The applicant was, therefore, advised to
apply to this court in order to re-institute the enforcement
proceedings.
- The
case was subsequently transferred to the Yasamal District Court, as
the Ministry of Environment was located under the territorial
jurisdiction of that district court. On 4 April 2004 the Yasamal
District Court issued a new writ of execution, instructing the
Yasamal Department of Enforcement Officers to proceed with the
enforcement of the judgment of 20 August 2001.
- By
a letter of 23 July 2004, the Ministry of Justice, noting the
impossibility to reinstate the applicant to his previous job,
requested the Ministry of Environment to provide the applicant with a
similar job adequate to his professional qualification.
- On
3 September 2004 the Ministry of Justice informed the applicant that,
due to impossibility of the judgment's execution, the Yasamal
Department of Enforcement Officers had returned the writ of execution
to the district court.
- On
11 November 2004 the Ministry of Justice, noting that the matter had
still not been resolved, again requested the Ministry of Environment
to comply with the judgment and provide the applicant with another
job in accordance with Article 74 of the Labour Code. It appears that
the Ministry of Environment did not respond to this request.
- In
early 2005 the Ministry of Environment filed a petition with the
Narimanov District Court, requesting that the period for filing an
appeal against the judgment of 20 August 2001 be restored. At the
time of the latest communication with the parties, the petition was
pending before the domestic courts following a series of appeals.
II. RELEVANT DOMESTIC LAW
A. Labour Code of 1999
- In
accordance with Article 74.2, if a court delivers a judgment ordering
reinstatement to the former post of an employee who has been
unlawfully or groundlessly dismissed from his or her job, the
employer must immediately execute the court's judgment and reinstate
the employee in his or her former post (or another post subject to
the employee's consent).
B. Code of Civil Procedure of 2000
- Article
231.1 provides as follows:
“The judge who examined the case may, upon
application by persons participating in the case and having regard to
the parties' property situation and other circumstances, decide to
suspend the execution of the judgment, order its execution in
instalments, or modify the method and manner of its execution.”
C. Law on Civil Service of 1 September 2001
- According
to Article 2, the provisions of this Law apply to civil servants
performing their service duties in the state executive, legislative
and judicial authorities, as well as in the prosecution, justice,
national security, border service, internal affairs, customs, tax,
foreign affairs, courier communication authorities and the National
Bank. The Law does not apply to employees of various enterprises
subordinated to state executive authorities. Issues related to
employment of such employees are regulated by the Labour Code.
D. Law on Execution of Court Judgments of 27 December
2001
- According
to Article 23.7, in case the enforcement officer takes a decision to
return the writ of execution to the district court, the parties to
the enforcement proceedings may lodge, with the relevant court, a
complaint against this decision within 10 days after receipt of its
copy.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- Relying
on Articles 6 § 1 and 13 of the Convention, the applicant
complained about the non-enforcement of the Narimanov District
Court's judgment of 20 August 2001. Article 6 § 1 of the
Convention reads 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 provides 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.”
A. Admissibility
1. The Court's competence ratione
temporis
- The Court recalls that it is only competent to examine
complaints of violations of the Convention arising from events that
have occurred after the Convention had entered into force with
respect to the High Contracting Party concerned (see, for example,
Kazimova v. Azerbaijan (dec.), no. 40368/02, 6 March
2003). The Court notes that the Convention entered into force with
respect to Azerbaijan on 15 April 2002.
- Accordingly,
the Court's competence is limited to the part of the application
relating to the events that occurred after 15 April 2002, whereas the
remainder of the application falls outside of its competence ratione
temporis. Nevertheless, where necessary, the Court shall take
into account the state of affairs as it existed at the beginning of
the period under consideration.
2. Applicability of Article 6 § 1
- Referring to Pellegrin v. France ([GC], no.
28541/95, ECHR 1999 VIII), the Government argued that
Article 6 did not apply to the proceedings in question. The
Government maintained that the applicant, in his former capacity as
the director of the Ismayilli Region Forestry, had been a civil
servant and had responsibilities affecting matters of general
interest and participated in the exercise of powers conferred by
public law, wielding a portion of the sovereign power of the State.
The Forestry was an enterprise of the Azerbmeşe
Production Union which was in turn subordinated directly to the
Cabinet of Ministers. The applicant's duties involved a significant
responsibility in the field of regulation of natural resources, which
was an area where the State exercised its sovereign power.
- The
applicant did not comment on this objection.
- At
the outset, the Court notes that, even if the complaint concerns only
lengthy non-enforcement of a final judgment as in the present case,
the Court will examine whether Article 6 § 1 applies to the
“trial” resulting in that judgment, because the ensuing
enforcement proceedings must be regarded as an integral part of that
“trial” (see Kanayev v. Russia, no. 43726/02,
§ 19, 27 July 2006; see also paragraph 58 below).
- The
Court recalls that, for Article 6 § 1 to be applicable under its
“civil” limb, there must be a dispute over a “right”
that can be said, at least on arguable
grounds, to be recognised in 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.
Moreover, the outcome of the proceedings must be directly decisive
for the civil right in
question (see, for example, Stojakovic v. Austria, no.
30003/02, § 38, 9 November 2006, and Frydlender v. France
[GC], no. 30979/96, § 27, ECHR 2000 VII). In the
present case, it is uncontested that there was a “dispute”
over a right recognised under domestic law, that the dispute was
genuine and serious and that the outcome of the proceedings was
directly decisive for the right concerned.
- Furthermore,
in order to determine the applicability of Article 6 § 1 to
civil servants, whether established or employed under contract, the
Court previously used a functional criterion based on the nature of
the employee's duties and responsibilities. The only disputes
excluded from the scope of Article 6 § 1 of the Convention were
those which were raised by civil servants whose duties typified the
specific activities of the public service in so far as the latter was
acting as the depositary of public authority responsible for
protecting the general interests of the State or other public
authorities (see Pellegrin, cited above, §§
64-66).
- However,
the Court notes that it has recently changed this approach, finding
that the functional criterion adopted in the Pellegrin case
must be further developed (see Eskelinen and Others v. Finland
[GC], no. 43803/98, §§ 50-56, 19 April 2007).
Specifically, the Court held in the Eskelinen case that it is
primarily for the Contracting States, in particular the competent
national legislature, and not the Court, to identify expressly those
areas of public service involving the exercise of the discretionary
powers intrinsic to State sovereignty where the interests of the
individual must give way. If a domestic system bars access to a
court, the Court will verify that the dispute is indeed such as to
justify the application of the exception to the
guarantees of Article 6. If it does not, then there is no issue and
Article 6 § 1 will apply. It is for the respondent Government to
demonstrate, first, that a civil-servant applicant does not have a
right of access to a court under national law and, second, that the
exclusion of the rights under Article 6 for the civil servant is
justified (ibid., §§ 61-62).
- In
the present case, it is undisputed that under national law the
applicant had access to a court to challenge the lawfulness of his
dismissal. It follows that Article 6 of the Convention is applicable.
3. The applicant's victim status
- The
Government submitted that, in accordance with Article 74.2 of the
Labour Code, the judgment of 20 August 2001 had been enforced
because, on 1 May 2003, the applicant was appointed as an economic
manager to the Ismayilli Enterprise for Forest Protection and
Restoration. The Court considers that, in substance, this submission
amounted to an assertion that the applicant was no longer a victim of
the alleged violation of the Convention.
- The
applicant disagreed, noting that he applied for this job himself,
that it was a job of a lower profile than his previous job, that he
continued to demand enforcement of the judicial order to reinstate
him in his previous position, and that the enforcement proceedings
had not been terminated after he started to work at the Ismayilli
Enterprise for Forest Protection and Restoration.
- The
Court recalls that a decision or measure favourable to an applicant
is not in principle sufficient to deprive him of his status as a
“victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Amuur v. France,
judgment of 25 June 1996, Reports of Judgments and Decisions
1996-III, p. 846, § 36, and Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999-VI). Only when these
conditions are satisfied does the subsidiary nature of the protective
mechanism of the Convention preclude examination of an application.
- The
Court finds that, in the present case, the authorities have neither
acknowledged, nor afforded redress for the alleged breach of the
Convention. The judgment of 20 August 2001 expressly ordered the
applicant's reinstatement in his former full-time position as the
director of the Ismayilli Region Forestry. The applicant had not been
reinstated in that particular position before the Forestry was
liquidated. Neither has he been offered an equivalent position in an
equivalent institution after the Forestry's liquidation. Although the
applicant was subsequently employed as an economic manager by the
Ismayilli Enterprise for Forest Protection and Restoration during the
period from 1 May 2003 to 1 December 2003, his position there was not
comparable to the position of a director and was of a lower grade.
There is no evidence in the case file showing that the applicant was
hired by the Ismayilli Enterprise for Forest Protection and
Restoration as a result of enforcement of the judgment of 20 August
2001, or that the applicant had ever waived his judgment claim or
consented to accept the employment at the Ismayilli Enterprise for
Forest Protection and Restoration in lieu of execution of the
judgment of 20 August 2001. In fact, the enforcement proceedings had
not been closed and were still pending after the applicant was hired
for this job (see paragraphs 20-23 above).
- Accordingly,
the Court rejects the Government's objection as to the applicant's
loss of victim status.
4. Domestic remedies
- The
Government argued that the applicant had failed to exhaust domestic
remedies. In particular, when the writ of execution was returned to
the Narimanov District Court on 10 May 2002 due to impossibility to
reinstate the applicant to the same position, the applicant was
informed of his right to lodge an application with the court for
re-initiation of the enforcement proceedings. This avenue of redress
was provided for in Article 23.7 of the Law on Execution of Court
Judgments. However, the applicant failed to make use of this remedy.
The Government also argued that, taking into account the fact that
his position at the Ismayilli Region Forestry had been liquidated, he
had a right to apply to the court asking for “modification of
the method and procedure of execution” of the judgment in
accordance with Article 231.1 of the Code of Civil Procedure (“CCP”).
- The
applicant contested these submissions, claiming that he had
complained to various authorities about the non-enforcement of the
judgment. The applicant submitted that he was not required to
challenge the decision to return the writ of execution to the
district court as he had not been informed about it when the decision
was taken. Furthermore, the applicant claimed that, following his
complaints to various organs, the Narimanov District Court had
transferred the case to the Yasamal District Court which subsequently
again forwarded the writ of execution for enforcement.
- The
Court reiterates that Article 35 § 1 of the Convention, which
sets out the rule on exhaustion of domestic remedies, provides for a
distribution of the burden of proof. 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 (see Selmouni
v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud
v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII).
The Court further emphasises that the domestic remedies must be
“effective” in the sense either of preventing the alleged
violation or its continuation, or of providing adequate redress for
any violation that had already occurred (see Kudła v. Poland
[GC], no. 30210/96, § 158, ECHR-XI).
- The
Court notes that the Government failed to provide any explanation as
to how a complaint about the return of the writ of execution to the
district court could have put an end to the continued violation or to
the kind of redress which the applicant could have been afforded as a
result of the complaint. In any event, the Court observes that the
applicant did not complain about any unlawful act on the part of the
enforcement officers but, rather, about the fact that the judgment
was not enforced. Even if the applicant had brought a complaint
against the enforcement officer and obtained a decision confirming
that the decision to return the writ of execution had been unlawful
in domestic terms, such an action would only have produced repetitive
results, the only outcome being the issue of another writ of
execution enabling the enforcement officers to proceed with the
enforcement of the judgment of 20 August 2001 (see Yavorivskaya
v. Russia (dec.), no. 34687/02, 15 May 2004, and Jasiūnienė
v. Lithuania (dec.), no. 41510/98, 24 October 2000). The Court
concludes that such an action would have been ineffective.
- As
to the Government's argument that the applicant should have used the
procedure under Article 231.1 of CCP, the Court does not see its
relevance in the context of the present case. The above-mentioned
Article of CCP provides for a right to request the court to suspend
the execution of a judgment, or to order its execution in
instalments, or to otherwise modify the method of execution. The
Government did not elaborate on or provide any specific examples of
how, exactly, this provision could be applied in the present case and
what results the applicant could expect to obtain by using it. In any
event, it appears that, usually, this procedure may be used by a
defendant in cases of inability to execute a judgment due to
financial difficulties or other impeding circumstances. The Court
does not see any reason why the applicant, a claimant whose claim of
reinstatement had been granted by the final court judgment and was
thus enforceable, should be required to resort to this procedure when
no part of the responsibility for failure to execute the judgment is
attributable to him. In sum, the Court finds that the Government have
failed to substantiate their contention that the remedy at issue was
an effective one.
- For
the above reasons, the Court finds that the application cannot be
rejected for non-exhaustion of domestic remedies.
5. Six-months rule
- The
Government argued that the “last decision” in the present
case was taken on 10 May 2002 when the Narimanov Department of
Enforcement Officers returned the writ of execution to the Narimanov
District Court. According to the Government, more than six months
elapsed between this “last decision” and the date of
submission of the application form to the Court in December 2003.
- For
the purposes of clarification, the Court notes that, although the
complete application form was submitted by the applicant at a later
date, the formal date of introduction of the application was 29 July
2003, the date on which the applicant submitted his initial letter
with the intention to lodge a complaint with the Court. Moreover,
after the decision of 10 May 2002, new decisions were taken by
enforcement authorities (see paragraphs 20 and 22 above).
- In
any event, the Court finds that the argument is irrelevant. The
decision of 10 May 2002 is a decision taken by the enforcement
officer in the course of enforcement proceedings. As stated above,
the applicant did not complain about unlawful acts of the enforcement
officers but, rather, about the fact that the judgment of 20 August
2001 was not enforced. Accordingly, in so far as the judgment is
still in force and remains unexecuted, the situation the applicant
complained about is of a continuing nature. In such circumstances, no
issue arises under the six-month rule of Article 35 § 1 of the
Convention.
- Accordingly,
the Court rejects this objection.
6. Conclusion
- Having
regard to its findings above, the Court further notes that the
application is not inadmissible on any other grounds and that it is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It must therefore be declared admissible in the
part relating to the period after 15 April 2002.
B. Merits
- The
Government did not submit any observations on the merits other than
reiterating their argument that the applicant's subsequent
“appointment” as an economic manager at the Ismayilli
Enterprise for Forest Protection and Restoration should be regarded
as the full execution of the judgment of 20 August 2001 in accordance
Article 74.2 of the Labour Code. The Court notes that it already
rejected the identical argument in its findings concerning the
applicant's victim status (see paragraphs 39-43 above).
- The
applicant reiterated his complaint. He also noted that the
Government's position was self-contradictory. On the one hand, the
domestic enforcement authorities repeatedly claimed that it had been
impossible to enforce the judgment of 20 August 2001 due to the
liquidation of the Ismayilli Region Forestry. On the other hand, the
Government claimed before the Court that the judgment had been
enforced.
- The
applicant further argued that the currently-existing Ismayilli
Enterprise for Forest Protection and Restoration was an institution
which in fact replaced, and was equivalent to, the liquidated
Ismayilli Region Forestry. Therefore, in accordance with the judgment
of 20 August 2001, he should have been appointed as a director of
that institution by an order of the Minister of Environment.
- 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 –
proceedings that are fair, public and expeditious – without
protecting the implementation of judicial decisions; to construe
Article 6 as being concerned exclusively with access to a court and
the conduct of proceedings would be likely to 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, judgment of 19
March 1997, Reports 1997 II, p. 510, § 40).
- The
Court further recalls 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 reinstatement in his job
after wrongful dismissal.
- The
Court notes that, from the date of the Convention's entry into force
with respect to Azerbaijan on 15 April 2002, the Narimanov District
Court's judgment of 20 August 2001 remained unenforced for more than
five years (until the present date). Before 15 April 2002, the
judgment had not been enforced for several months. The Court is
prepared to accept that, in the instant case, the internal
reorganisation of the enterprises under the control of the Ministry
of Environment, including the liquidation of the Ismayilli Region
Forestry, created certain difficulties in the execution of the
judgment of 20 August 2001. Nevertheless, the judgment remained in
force, but for several years no adequate measures were taken by the
authorities to comply with it. No reasonable justification was
advanced by the Government for this delay.
- 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). There has accordingly been a
violation of Article 6 § 1 of the Convention.
- 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,
Jasiūnienė v. Lithuania, no. 41510/98, §
32, 6 March 2003).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant demanded that the judgment of 20 August 2001 be enforced,
but did not submit a claim for just satisfaction within the
time limit set by the Court. Accordingly, the Court considers
that there is no call to award him any sum on that account.
- However,
the Court considers that, in so far as the judgment of 20 August
2001 remains in force, the State's outstanding obligation to enforce
it cannot be disputed. Accordingly, the applicant is still entitled
to enforcement of that judgment. The Court recalls that the most
appropriate form of redress in respect of a violation of Article 6 is
to ensure that the applicant as far as possible is put in the
position he would have been in had the requirements of Article 6 not
been disregarded (see Piersack v. Belgium (Article 50),
judgment of 26 October 1984, Series A no. 85, p. 16, § 12).
Having regard to the violation found, the Court finds that in the
present case this principle applies as well. It therefore considers
that the Government shall secure, by appropriate means, the
enforcement of the judgment of 20 August 2001.
- The
Court further points out that its judgments are essentially
declaratory in nature. In general, it is primarily for the State
concerned to choose the means to be used in its domestic legal order
in order to discharge its legal obligation under Article 46 of the
Convention (see Shofman v. Russia, no. 74826/01, §
53, 24 November 2005, with further references). By finding a
violation of Article 6 § 1 in the present case, the Court has
established the Government's obligation to take appropriate measures
to remedy the applicant's individual situation, i.e. ensure the
compliance with the applicant's enforceable claim under the judgment
of 20 August 2001 (compare with Fadeyeva v. Russia, no.
55723/00, § 142, ECHR 2005-...). Whether such measures would
involve reinstating the applicant in an equivalent job at an
equivalent institution or, in case of impossibility to do so,
granting him reasonable compensation for non-enforcement, or a
combination of these and other measures, is a decision that falls to
the respondent State. The Court, however, emphasises that any
measures adopted must be compatible with the conclusions set out in
the Court's judgment (see Assanidze v. Georgia [GC], no.
71503/01, § 202, ECHR 2004-II, with further references).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds that the respondent State, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, shall secure,
by appropriate means, the enforcement of the judgment of 20 August
2001.
Done in English, and notified in writing on 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
