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FIRST
SECTION
CASE OF EFENDIYEVA v. AZERBAIJAN
(Application
no. 31556/03)
JUDGMENT
STRASBOURG
25
October 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 Efendiyeva 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 D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni,
judges,
Mr L. Huseynov, ad hoc judge,
and Mr
S. Nielsen, Section Registrar,
Having
deliberated in private on 4 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31556/03) 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,
Mrs Latifa Talat qizi Efendiyeva (Lətifə Tələt
qızı Əfəndiyeva – “the
applicant”), on 11 September 2003.
- The
applicant, who had been granted legal aid, was represented by
Mr M. Mustafayev, a lawyer practising in Baku. The
Azerbaijani Government (“the Government”) were
represented by their Agent, Mr C. Asgarov.
- The
applicant alleged, in particular, that the failure to enforce the
judgment of 9 September 1994 violated her right to a fair trial and
right to an effective remedy, as guaranteed by Articles 6 and 13 of
the Convention, and her right to peaceful enjoyment of her
possessions, as guaranteed by Article 1 of Protocol No. 1 to the
Convention.
- On
15 December 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.
- Mr K. Hajiyev, the judge elected in respect of
Azerbaijan, withdrew from sitting in the Chamber (Rule 28). The
Government accordingly appointed Mr L. Huseynov to sit as an ad
hoc judge in his place (Article 27 § 2 of the
Convention and Rule 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Baku.
- The
applicant worked as a head physician (director) of the Republican
Maternity Hospital. In December 1993 the Ministry of Healthcare
dispatched an “attestation commission” to the applicant's
hospital in order to evaluate the applicant's work performance. In
its evaluation report, the attestation commission found that the
applicant had been incompetent in administering the hospital's
affairs and had committed a number of breaches of her job duties.
Based on the commission's evaluation report, by an order of the
Minister of Healthcare of 30 December 1993, the applicant was
dismissed from her job.
- The
applicant sued the Ministry for unlawful dismissal, demanding
reinstatement in her position and compensation for lost earnings. On
9 September 1994 the Nasimi District Court found that the
attestation commission's report had been largely unsubstantiated.
Accordingly, the court held that the applicant's dismissal had been
arbitrary and ordered her reinstatement as the head physician of the
Republican Maternity Hospital. The court also awarded the applicant
87,045 Azerbaijani manats (AZM) as a compensation for lost earnings.
- The
Ministry of Healthcare did not file any appeals against this judgment
and it entered into force. On 14 September 1994 the writ of execution
was sent to the Ministry. The Ministry, however, took no action to
comply with the judgment. Despite further warnings from the Nasimi
District Judge on 13 and 27 October 1994, the Ministry failed to take
any steps to execute the judgment.
- Following
the Ministry's continuous failure to comply with the judgment, on 10
January 1995 the Nasimi District Court instituted criminal
proceedings against the Minister of Healthcare and referred the case
to the Nasimi District Prosecutor's Office for investigation.
- On
an unspecified date in early 1995, the Deputy President of the
Supreme Court filed a protest against the judgment of 9
September 1994, referring the case for supervisory review by the
Presidium of the Supreme Court. On 10 March 1995 the Presidium of the
Supreme Court upheld the Nasimi District Court's judgment of 9
September 1994.
- On
29 May 1996 the Ministry of Healthcare applied to the President of
the Supreme Court with a request to reopen the proceedings and refer
the case to the Plenum of the Supreme Court for review. By a letter
of 12 August 1996, the President of the Supreme Court rejected
this request, noting that the law precluded the parties from filing
any appeals for supervisory review in employment-related disputes
after a period of one year from the judgment's entry into force.
- Meanwhile,
the Nasimi District Prosecutor's Office, dealing with the
investigation of the criminal case against the Minister of
Healthcare, was continuously unable to secure the Minister's
participation in the investigation process. Despite a number of
summonses sent to him, the Minister did not appear before the
investigator for interrogation. Accordingly, on 10 June 1995, 10
November 1995, 12 January 1996, 17 March 1996, 20 June 1996, 20
January 1997 and, finally, on 23 July 2001 the investigator of the
Nasimi District Prosecutor's Office issued similarly-worded decisions
on suspension of the criminal proceedings on the ground of inability
to interrogate the Minister due to the latter's continuous failure to
appear before the investigator.
- While
the enforcement proceedings were pending, on 27 December 1995 the
applicant was hired as a part-time physician to the Baku City
Healthcare Department. She worked there until 15 April 2003, when she
was dismissed due to staff redundancy.
- In
early 2003, the applicant wrote a letter to the Chief Prosecutor's
Office, complaining of the allegedly unjustified delays by the Nasimi
District Prosecutor's Office in dealing with the criminal case
against the Minister of Healthcare. On 1 February 2003 the Chief
Prosecutor's Office forwarded the applicant's complaint for the
consideration of the Nasimi District Prosecutor's Office. However, it
appears that no further action was taken by the authorities.
- The
applicant then filed a complaint with the Nasimi District Court,
claiming that the investigator had unlawfully suspended the criminal
proceedings and asking the court to quash the investigator's latest
suspension decision of 23 July 2001. On 1 July 2003 the Nasimi
District Court upheld the investigator's decision to suspend the
criminal proceedings. On 17 July 2003 the Court of Appeal upheld the
district court's decision.
- The
applicant filed a lawsuit against the Ministry of Healthcare, the
Ministry of Justice and the Ministry of Finance, complaining about
the non enforcement of the judgment and asking for monetary
compensation. On 12 October 2004 the Nasimi District Court
refused to admit the lawsuit, finding that the applicant's claim
concerning reinstatement and compensation had already been granted by
the judgment of 9 September 1994.
- On
24 November 2004 the Court of Appeal quashed the Nasimi District
Court's decision of 12 October 2004, ruling that the first instance
court's decision on the inadmissibility of the compensation claim was
incorrect. The case was remitted for examination on the merits.
- On
17 June 2005 the Nasimi District Court rejected the applicant's
compensation claim, finding that the claim was barred by the
three-year statute of limitations which had started to run from the
date of the entry into force of the judgment of 9 September 1994. On
20 April 2006 the Court of Appeal upheld this judgment. On 12 July
2006 the Supreme Court quashed the Court of Appeal's judgment and
remitted the case for re-examination.
- Finally,
on 25 May 2007 the Court of Appeal re-examined the case, quashed the
Nasimi District Court's judgment of 17 June 2005, and awarded the
applicant 5,036.87 New Azerbaijani manats (AZN)
in compensation for earnings lost due to non-execution of the
judgment of 9 September 1994. On 2 July 2007 the applicant filed
a cassation appeal against the Court of Appeal's judgment of 25 May
2007, claiming a higher amount of compensation. This appeal was
pending before the Supreme Court as of the time of the latest
communication with the parties.
- Meanwhile,
in late 2005 the Minister of Healthcare was dismissed from his
position and charged with a number of criminal offences, including
offences involving abuse of official power. On 20 April 2007 the
Assize Court convicted the Minister of Healthcare on several counts,
one of them being his failure to execute the judgment of 9 September
1994 ordering the applicant's reinstatement to her previous job.
- On
11 July 2007, by the order of the new Minister of Healthcare, the
applicant was reinstated to her position of the head physician of the
Republican Maternity Hospital in accordance with the judgment of
9 September 1994. On 13 July 2007 the applicant was paid AZN
5,036.87 awarded by the Court of Appeal's judgment of 25 May 2007.
- On
20 July 2007 the Nasimi District Court terminated the enforcement
proceedings in respect of the judgment of 9 September 1994.
II. RELEVANT DOMESTIC LAW
A. Law of the Azerbaijan SSR on Healthcare of 2 July
1971 (repealed on 2 April 1999)
- According
to Article 9, the Ministry of Healthcare manages institutions,
enterprises and organisations which are directly subordinate to it
and is responsible for the quality of medical assistance provided to
the population.
B. Law on the Protection of Public Health of 26 June
1997
- According
to Article 4, the state healthcare system includes the relevant
executive authority of the Republic of Azerbaijan (i.e. the Ministry
of Healthcare), medico-prophylactic, scientific-research,
educational, pharmaceutical and sanitary-prophylactic institutions,
as well as institutions dealing with logistical support to healthcare
system, institutions producing medical equipment and medicines, as
well as sanitary and epidemiological services and forensic
examination institutions.
- According
to Article 5, the private healthcare system comprises medical
institutions in private ownership or private leasehold which operate
in the manner specified by law, including inter alia
individuals engaging in private medical practice or pharmaceutical
activities.
- According
to Article 9, the state healthcare system is financed mainly from the
state budget, as well as funds from mandatory medical insurance,
voluntary donations from various enterprises and individuals, as well
as other sources not prohibited by law. The funds of the state
healthcare system are directed inter alia for preparation and
implementation of healthcare programmes, development of logistical
resources of state healthcare institutions, maintaining of
medico-prophylactic and sanitary epidemiological institutions,
development of medical science, and other purposes.
- According
to Articles 55 and 56, employment rights of persons working in the
healthcare system shall be regulated by employment contracts.
C. Labour Code of 1999
- In
accordance with Article 74, 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).
D. 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.
E. Regulations on Head Physician of a Maternity
Hospital, approved by the Order of the USSR Ministry of Healthcare of
8 April 1980
- The
head physician has full authority to manage the maternity hospital
and is responsible for all medico-prophylactic, administrative and
financial activities of the hospital (§ 1), and is in direct
subordination of the relevant state authority for public healthcare
(i.e. the Ministry of Healthcare) (§ 3). The head physician is
directly responsible for, inter alia, quality of medical
assistance provided to hospitalised women and newborn babies, staff
management, rational use and management of the hospital's material
resources and equipment, ensuring the observance of sanitary and
hygienic standards and carrying out necessary anti-epidemic measures,
and other management activities (§ 7). The head physician is
obliged, inter alia, to draw up and submit to the supervising
authorities the hospital's budget as well as statistical, financial
and economic reports on the hospital's activities.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- Relying
on Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1 to the Convention, the applicant complained about the
non enforcement of the Nasimi District Court's judgment of 9
September 1994. 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 reads 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.”
Article
1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law. ...”
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 the Convention provisions to the
present case
- 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 her former capacity as the head
physician of the Republican Maternity Hospital, 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.
Specifically, referring to the Regulations on Head Physician of a
Maternity Hospital, approved by the Ministry of Healthcare of the
USSR on 8 April 1980 (“the Regulations”), which,
according to the Government, were in force at the time of the
applicant's dismissal, the Government claimed that the post of a head
physician involved responsibility for the medico prophylactic,
administrative and financial activities of the state-owned hospital.
- The
Government further argued that the complaints under Article 13 of the
Convention and Article 1 of Protocol No. 1 should be considered in
conjunction with the complaint under Article 6 and were therefore
likewise inapplicable to the present case on the same grounds.
- The
applicant disagreed, claiming that the Regulations could not be
interpreted as classifying head physicians of maternity hospitals as
civil servants. Instead, the Regulations merely established “general
standards” for the post of a head physician, regardless of
whether the hospital was public or private. The applicant noted that,
according to Article 2 of the Law on Public Service, only employees
in the service of specified State authorities could be considered as
civil servants. In support of her position, the applicant submitted a
letter from the Ministry of Labour and Social Protection, sent to her
on 3 May 2005 in reply to her inquiry, which stated that the post of
the head physician of the Republican Maternity Hospital did not
belong to the category of public-service posts.
- 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 49 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,
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 her
dismissal. It follows that Article 6 of the Convention is applicable.
- Finally,
the Court finds no circumstances precluding the applicability of
Article 13 of the Convention and Article 1 of Protocol No. 1 to the
present case.
3. The applicant's victim status
- The Government initially argued that the judgment of 9
September 1994 had been enforced because, on 27 December 1995, the
applicant was appointed as a part-time physician to the Baku City
Healthcare Department. However, the Court finds that the applicant's
appointment to a part-time position of a lower grade in a healthcare
institution of a different type does not amount to enforcement of the
judgment of 9 September 1994. Moreover, the enforcement proceedings
were not closed and were still pending at the time of the applicant's
appointment to this position (compare with Tarverdiyev v.
Azerbaijan, no. 33343/03, §§ 39-43, 26 July
2007). It follows that this part of the Government's objection must
be rejected.
- Following
the applicant's actual reinstatement as the head physician of the
Republican Maternity Hospital on 11 July 2007 and payment of the
compensation for lost earnings, the Government argued that the
applicant could no longer be considered as a “victim” as
the violations of her Convention rights had been remedied on the
domestic level.
- The
applicant disagreed. She noted that the judgment had remained
unenforced for almost thirteen years and argued that the amount of
compensation paid to her for such a long delay was substantially
lower than it should have been and did not take into consideration
interests accrued on the late payment of salaries.
- 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 notes that the full enforcement of the judgment of 9 September
1994 and payment of compensation for lost earnings may have arguably
constituted an acknowledgment by the authorities of the alleged
violations of the Convention. However, even assuming that there has
been such an acknowledgment, the Court considers that the authorities
nevertheless failed to afford full redress to the applicant for the
following reasons.
- Having
regard to the fact that the judgment had remained unexecuted for
almost thirteen years, of which more than five years fall into the
period after the Convention's entry into force in respect of
Azerbaijan, the Court finds that the amount of compensation awarded
to the applicant cannot be considered as a full redress for the
breach of the applicant's Convention rights. Moreover, the
compensation awarded to the applicant was meant to cover only the
lost earnings and no compensation was offered in respect of the
alleged violation of the Convention, i.e. lengthy non-enforcement of
the judgment of 9 September 1994, which must have caused the
applicant distress.
- In
such circumstances, while it is true that the applicant has now been
reinstated in her previous job in accordance with the judgment of
9 September 1994, as well as awarded a certain amount of
compensation for lost earnings, the Court finds that the measures
taken in the applicant's favour were nevertheless insufficient to
deprive her of the “victim” status in the present case
(compare with Ramazanova and Others v. Azerbaijan,
no. 44363/02, § 38, 1 February 2007).
- Accordingly, the Court rejects the Government's
objection as to the applicant's loss of victim status.
4. Conclusion
- Having regard to its findings above, the Court further
notes that the complaints are not inadmissible on any other grounds
and that they are not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. They must therefore be
declared admissible in the part relating to the period after 15 April
2002.
B. Merits
1. Articles 6 § 1 and 13 of the Convention
- The
Government did not submit any observations on the merits of these
complaints other than reiterating their argument that the judgment
had been enforced. In this regard, the Court refers to its findings
in the paragraphs 44-51 above.
- The
applicant maintained her claims.
- 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
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 could 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 the reinstatement of the
applicant in her job after wrongful dismissal as well as the payment
of compensation for pecuniary damage.
- The
Court notes that, from the date of the Convention's entry into force
with respect to Azerbaijan on 15 April 2002, the Nasimi District
Court's judgment of 9 September 1994 remained unenforced for almost
five years and three months. Before 15 April 2002, the judgment had
not been enforced for approximately seven and a half years. No
reasonable justification was advanced by the Government for this
delay.
- By
failing for years to take the necessary measures to comply with the
final judgment in the present 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).
2. Article 1 of Protocol No. 1 to the Convention
- The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 if it is sufficiently established to be enforceable (see Stran
Greek Refineries and Stratis Andreadis v. Greece, judgment of 9
December 1994, Series A no. 301-B, p. 84, § 59).
- The
Nasimi District Court's judgment awarded the applicant AZM 87,045
in compensation, which constituted an enforceable claim. Although the
judgment had become final and the enforcement proceedings had been
instituted, the judgment remained unenforced for almost five years
and three months after the Convention's entry into force with respect
to Azerbaijan. It follows that the impossibility for the applicant to
obtain the execution of this judgment constituted an interference
with her right to peaceful enjoyment of her possessions, as set out
in the first sentence of the first paragraph of Article 1 of Protocol
No. 1.
- By
failing to comply with the judgment of 9 September 1994 in a timely
manner, the national authorities prevented the applicant from being
paid the money she could reasonably have expected to receive. The
Government have not advanced any plausible justification for this
interference (see Burdov, cited above, § 41).
- Accordingly,
there has been a violation of Article 1 of Protocol No. 1 to the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained under Article 10 of the Convention that she had
been prevented by the authorities from expressing in the media her
opinions concerning the actions of the Minister of Healthcare and
other authorities who, collectively, avoided the execution of the
judgment of 9 September 1994. Article 10 provides as follows:
“Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority
and regardless of frontiers. ...”
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in Article 10 or the Convention.
III. 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 claimed 54,953 euros (EUR) in respect of pecuniary damage,
EUR 150,000 in respect of non-pecuniary damage and EUR 4,128 for
costs and expenses.
- The
Government contested the applicant's claims in respect of pecuniary
and non-pecuniary damage and did not make any submissions in respect
of the costs and expenses.
- The
Court considers that the question of the application of Article 41 is
not ready for decision. Accordingly, it shall be reserved and the
subsequent procedure fixed having regard to any agreement which might
be reached between the Government and the applicant (Rule 75 § 1
of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1 to the
Convention admissible and the remainder of the application
inadmissible;
- 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 there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that the question of the application of
Article 41 is not ready for decision; accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final according to Article 44
§ 2 of the Convention, their written observations on the matter
and, in particular, to notify the Court of any agreement that they
may reach;
(c) reserves
the further procedure and delegates to the President of the Chamber
the power to fix the same if need be.
Done in English, and notified in writing on 25 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
