AS TO THE ADMISSIBILITY OF
Application no. 20700/03
by Fimar HAJIYEVA
The European Court of Human Rights (First Section),
22 September 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 28 April 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mrs Fimar Hajiyeva, is an Azerbaijani national who was born in 1957 and lives in Baku. She is represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as a chief editor at the State Tele-Radio Company pursuant to a temporary employment contract. On 18 April 2002 the head of the company’s human resources department informed the applicant that her employment contract had already expired on 31 March 2002, that the company had no intention to renew it and that the applicant had been dismissed from her job as of 1 April 2002.
The applicant filed a lawsuit, alleging wrongful dismissal and asking for reinstatement in the job and compensation for material damages. She claimed that she had not been timely notified of the employer’s wish to terminate the contract and that, in the absence of such notification, the contract was subject to automatic renewal for another term. In addition, she claimed that she had signed a new contract on 3 April 2002. The trial was held in the Sabail District Court.
At the end of the trial, on 11 June 2002, the Sabail District Judge publicly pronounced the “conclusive” part of the judgment, according to which the applicant’s claim was partially satisfied and she was reinstated in her job. According to the applicant, there were eleven persons (including the parties, their lawyers and the public) present in the courtroom when the judgment was pronounced.
However, several days later, when the written copy of the judgment was made available to the applicant, she discovered that this written version was contrary to the one orally pronounced by the judge at the closure of the trial. The written judgment was against the applicant, dismissing her claim in full. According to this version of the judgment, the Sabail District Court found that the decision not to renew the applicant’s contract had been taken by her employer on 29 March 2002 and that the copy of this decision had been posted at the applicant’s workplace. The court further held that the applicant had been lawfully dismissed due to the expiry of the term of her temporary employment contract. As for the applicant’s allegation that she had signed a new contract on 3 April 2002, the court found that no new contract had been signed by the employer.
The applicant appealed, claiming, inter alia, that the first-instance judge had unlawfully changed the initially pronounced judgment. She also claimed that the judge had violated the procedural rules requiring him to put the orally pronounced part of the judgment in writing, sign it and attach it to the case file on the same day when the judgment was partially pronounced.
During the proceedings in the Court of Appeal, the judge twice asked the parties if they wished to file a motion concerning any aspect of the examination of the case (such as admission of new witness testimony, etc.). The applicant did not file any motions. On 30 July 2002 the Court of Appeal upheld the district court’s judgment, finding that the lower court had properly decided the case on the merits. The decision of the Court of Appeal was silent as to the alleged contradiction between the oral and written versions of the first-instance court’s judgment.
In the meantime, while the proceedings were underway, the applicant wrote letters to the President of the Supreme Court, the Chief Prosecutor, the Minister of Justice and the President of Azerbaijan, in which she complained about the actions of the first-instance judge. According to the applicant, she did not receive any answers.
The applicant then filed a cassation appeal where, apart from the arguments relating to the merits of the case, she briefly stated, without specific details, that the Court of Appeal had committed procedural mistakes. On 30 October 2002 the Supreme Court upheld the Court of Appeal’s judgment.
B. Relevant domestic law
Code of Civil Procedure of the Republic of Azerbaijan
Article 214. Pronouncement of a judgment
“214.1. After deciding upon and signing the judgment, the judge shall return into the courtroom and pronounce the judgment ...
214.3. With respect to complicated cases, the judge may pronounce only the conclusive part of the judgment.
214.4. The orally pronounced conclusive part of the judgment must be drawn up in writing, signed by the judge(s) and attached to the case file. After the pronouncement of the conclusive part of the judgment, the presiding judge shall notify the parties and their representatives of the time when the full text of the judgment will be available to them.”
Article 220. Contents of a judgment
“220.2. The judgment shall consist of the introductory, descriptive, justificatory and conclusive parts. ...
220.5. The conclusive part of the judgment shall contain the court’s conclusion as to the full or partial satisfaction or dismissal of the claim, the manner of distribution of the judicial expenses, the period and procedure for filing an appeal ...”
Article 227. Drawing up of a judgment
“227.1. The judgment must be drawn up after the examination of the case has been completed.
227.2. Exceptionally, with respect to highly complicated cases, the drawing up of the full judgment shall be completed within a period of ten days after the pronouncement of the conclusive part of the judgment. The presiding judge shall also notify the parties of the time when they can obtain the full judgment.
227.3. The [full] judgment shall be sent or handed over to the parties within three days after it has been drawn up.”
Article 270. Requirement to keep trial transcripts
“Trial transcripts shall be drawn up during the court hearings as well as with respect to any separate procedural action performed outside the court.”
Article 273. Remarks on trial transcripts
“Parties to the case and their representatives have a right to consult the trial transcripts and to make, within three days from the date of signing the transcripts, any written remarks concerning any deficiencies or omissions therein.”
1. The applicant complained under Article 6 § 1 of the Convention that the full written text of the first-instance judgment contradicted the judgment that had been orally pronounced by the judge in the courtroom and that the higher courts had ignored her complaint concerning the unlawful actions of the first-instance judge. In addition, she alleged that the domestic courts had misinterpreted the domestic employment laws when deciding the case against her.
2. Invoking Article 13 of the Convention, the applicant complained that she had not had any effective domestic remedy because, despite of an alleged violation of her employment rights, the domestic courts as well as other state authorities failed to protect her rights.
A. Article 6 § 1 of the Convention
The applicant complained that the written version of the first-instance judgment contradicted the version that had been orally pronounced by the judge in the courtroom and that the higher courts had failed to address this issue. She also complained that the domestic courts had misinterpreted the domestic employment laws. Article 6 § 1 provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
1. The parties’ submissions
The Government submitted that, if the applicant’s allegations concerning the difference between the written and orally pronounced texts were true, she or her lawyer should have made relevant remarks to the trial transcripts. However, since no such remarks had been made, the Government considered the applicant’s allegations doubtful.
The Government further submitted that, in any event, the applicant failed to exhaust the domestic remedies, because she had not properly raised the same complaint in substance before the higher courts. Although during the appellate proceedings the judge twice invited the applicant to submit a motion for examination of new witnesses, the applicant failed to substantiate, with any witness testimony or any other evidence, her allegations concerning the alleged discrepancy between the written and orally pronounced versions of the first-instance judgment. Furthermore, in her cassation appeal, the applicant did not raise the complaint in substance before the Supreme Court.
The applicant disagreed, noting that she had expressly raised the complaint in substance in her appellate complaint. Even if the complaint was not sufficiently supported by witness testimony or other evidence, the Court of Appeal was still obliged to address the issue in its judgment and express its position concerning the alleged procedural violation by the first-instance court.
As for her cassation complaint, the applicant acknowledged that she had not specifically referred to the discrepancies between the written and orally pronounced versions of the first-instance judgment as well as to the Court of Appeal’s failure to address this matter in its judgment. Nevertheless, she maintained that she had complained, in general terms, about procedural violations committed by the lower courts, and that the Supreme Court was under a duty to verify, of its own motion, whether all the relevant procedural requirements had been respected.
2. The Court’s assessment
With regard to the domestic courts’ alleged
misinterpretation of domestic legislation, the Court recalls that, in
accordance with Article 19 of the Convention, its only task is to ensure
the observance of the obligations undertaken by the Parties in the Convention.
In particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts, except
where it considers that such errors might have involved a possible violation
of the rights or freedoms protected by the Convention (see e.g. Schenk v. Switzerland,
12 July 1988, Series A no. 140, § 45).
It is true that in the present case the applicant also complained, relying on Article 6 § 1 of the Convention, that a procedural error was committed in that the first-instance judgment contradicted the decision that had been orally pronounced by the judge in the courtroom and that the higher courts failed to address this issue.
In this respect, however, the Court recalls that the rule of exhaustion of domestic remedies does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, § 34). Even if the domestic courts were able, or even obliged, to examine the case of their own motion under the Convention, this cannot have dispensed an applicant from relying on the Convention in those courts or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem the applicant intended to submit subsequently, if need be, to the institutions responsible for European supervision (see Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, § 33).
The Court observes that the applicant had indeed specifically raised before the Court of Appeal her present complaint concerning the discrepancies between the written and orally pronounced versions of the first-instance judgment. However, the Court further notes that, in her cassation appeal filed with the Supreme Court, the applicant merely alleged, without giving relevant details, that the Court of Appeal had committed procedural mistakes. She did not raise the present complaint in substance before the Supreme Court. Neither did she specifically complain about the Court of Appeal’s allegedly unlawful failure to properly deal with this complaint during the appellate proceedings. Moreover, the examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant from raising her complaint in the proceedings referred to.
It follows that this complaint must be rejected for non-exhaustion of the domestic remedies under Article 35 §§ 1 and 4 of the Convention.
B. Article 13 of the Convention
Invoking Article 13 of the Convention, the applicant complained that she did not have an effective remedy before the domestic courts.
However, having regard to its above conclusion, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Christos
HAJIYEVA v. AZERBAIJAN DECISION
HAJIYEVA v. AZERBAIJAN DECISION