CASE OF DOMAZYAN v. ARMENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
5. The applicant was born in 1954 and lives in St Petersburg. 6. She had a garage and a small storage building (‘the construction’) in Yerevan measuring 21 sq. m. in total, that she had apparently built without authorisation. 7. On 22 July 2005 the Mayor of Yerevan adopted a decision which, inter alia, recognised the applicant’s ownership of the construction and allocated the underlying plot of land to her with the right of lease. 8. On 26 August 2005 a lease agreement, valid until 22 July 2010, was concluded between the Mayor of Yerevan and the applicant. 9. On 5 September 2005, based on the Mayor’s decision of 22 July 2005, the applicant received an ownership certificate in respect of the construction. 10. It appears that on 19 June 2006 the Mayor of Yerevan adopted another decision, which annulled the decision of 22 July 2005 in its part concerning the recognition of the applicant’s ownership in respect of the construction. 11. On 20 July 2006 the Mayor of Yerevan lodged a claim against the applicant with the Kentron and Nork-Marash District Court of Yerevan seeking to invalidate her ownership certificate in respect of the construction and the lease, on the basis of the decision of 19 June 2006. 12. On 20 October 2006 the applicant issued a power of attorney whereby she authorised advocate G. to represent her in court. This power of attorney was then signed and sealed by G. 13. The first hearing before the District Court took place on 24 October 2006. The record of this hearing states, inter alia, the following: “... [the applicant] has not appeared; advocate G. has appeared on her behalf stating that he represents the defendant and asked to be given time to study the case file and produced a power of attorney signed by the applicant but not certified by a notary. ... The court decides to adjourn the examination of the case until 12 a.m. on 1 November 2006 in order for [the applicant] to submit a written reply and a proper power of attorney in compliance with the procedure established by the law. ...” 14. On 1 November 2006 G. lodged a counter-claim on behalf of the applicant seeking to invalidate the Mayor’s decision of 19 June 2006 as taken in violation of the domestic law. 15. On the same day the Kentron and Nork-Marash District Court of Yerevan decided not to admit the counter-claim and to return it. The relevant parts of the District Court’s decision reads as follows: “Having examined ... the presented power of attorney, the court finds that the counter-claim ... must be returned, taking into account that the power of attorney has been issued in violation of Article 41 § 1, 2 and 4 of the [the Code of Civil Procedure]. Pursuant to that Article, a representative’s powers must be stipulated in a power of attorney issued and drawn up in accordance with the law, the power of attorney issued by a citizen shall be certified by a competent official, while the powers of an advocate shall be certified in accordance with the law. In the present case, the power of attorney as submitted by advocate [G.] has been issued in violation of the legal requirements. In accordance with ... Article 92 § 1 (2) of the Code of Civil Procedure ... the court decides to return the counter-claim lodged by [G.]. The decision to return the counter-claim can be appealed in cassation proceedings within three days from its receipt by the claimant.” 16. On the same day the District Court also examined the Mayor’s claim and decided to grant it. The relevant parts of its judgment read as follows: “...The defendant [the applicant] was duly notified about the date and the place of the court hearing but has failed to appear before the court while the court has not accepted the power of the advocate who has appeared on her behalf as her representative, on the ground that the power of attorney was not duly certified. ... Taking into account that the ground [the Mayor’s decision of 22 July 2005], based on which the lease agreement was concluded and the title registered, no longer exists, the court finds that ... the agreement on lease of land concluded between [the applicant] and the Yerevan Municipality should be terminated and her certificate of ownership/use [and] the right of lease of immovable property be annulled.” 17. On 8 November 2006 the District Court sent a copy of its judgment to the applicant by post. It appears from the postal envelope that the copy of the judgment was delivered to the applicant’s local post office on 18 November 2006 and was received by the applicant on 20 November 2006. 18. On 15 November 2006 advocate G. lodged an appeal on points of law with the Court of Cassation against the District Court’s decision not to admit the counter-claim. He claimed that the provisions of the civil legislation did not require that a power of attorney issued to an advocate be certified by a notary. He also added that the imposition of such a requirement restricted the right of access to court since the notary, as a public official, interfered with the relationship between advocate and client and made the possibility to institute court proceedings conditional on his prior approval. 19. On 28 November 2006 G. lodged an appeal with the Civil Court of Appeal against the District Court’s judgment of 1 November 2006 on behalf of the applicant, together with a request to restore the missed time-limit for appeal, alleging that a copy of the judgment had been served upon the applicant outside the time-limit for lodging an appeal against it. 20. On 1 December 2006 the Court of Cassation declared G.’s appeal against the decision refusing the admission of the counter-claim inadmissible for lack of merit. The relevant parts of this decision state the following: “The Civil Chamber of the Court of Cassation ... having examined the appeal on points of law against the decision of 1 November 2006 ...lodged by [the applicant’s] representative [G.] ... found that it should be returned for the following reasons: According to Article 230 § 1 (4.1) of the Code of Civil Procedure of the Republic of Armenia, an appeal on points of law should contain one of the grounds stated in Article 231.2 § 1 of the Code of Civil Procedure. ... the present appeal on points of law only mentions the elements of points 1 and 3 of Article 231.2 § 1; however the appellant has not submitted proper and sufficient arguments in relation to them; therefore the requirements of Article 230 § 1 (4.1) of the ... Code of Civil Procedure have not been met. In such circumstances, the violations of the above-mentioned requirements serve as a basis for returning the appeal on points of law. ... In view of the above reasoning ... the Court of Cassation decides to return the appeal on points of law against the decision of ... of 1 November 2006 lodged by [the applicant’s] representative [G.]...” 21. On 19 January 2007 the Court of Appeal rejected the request to restore the missed time-limits for lodging an appeal and left the appeal against the judgment of 1 November 2006 unexamined stating the following: “Having examined the appeal lodged by [G.], the representative of the defendant in the present case, and the request seeking to restore the missed time-limit, [the Court of Appeal] found out that on 28 November 2006 an appeal was lodged against the judgment ... of 1 November 2006 by ... [the applicant’s] representative G., who had failed to respect the fifteen-day time-limit prescribed by the law. The appellant has requested ... to restore the missed time-limit for lodging an appeal in view of the fact that the District Court served the copy of the given judgment on the defendant belatedly. The court finds that the request should be rejected and the appeal dismissed since the appellant has failed to submit any documentary proof which would substantiate this allegation; moreover, ... the case file contains a postal receipt ... according to which a copy of the above judgment was sent to [the applicant] on 8 November 2006 with registered mail in accordance with the procedure and within the time-limits prescribed by ... the Code of Civil Procedure. ...” 22. On 26 January 2007 G. lodged an appeal on points of law against this decision with the Court of Cassation, on behalf of the applicant. He argued, in particular, that there was no evidence in the case file, such as an acknowledgement of receipt, which would substantiate that the defendant had received the copy of the judgment in a timely manner. In such circumstances, where it was the courts’ duty to serve their decisions in due time, the Court of Appeal should not have placed the responsibility of producing proof of belated receipt of the judgment on the party to the proceedings. 23. On 15 February 2007 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. In doing so, it stated, in particular, that: “The Civil Chamber of the Court of Cassation ... having examined the appeal on points of law lodged by [G.] against the decision of the Civil Court of Appeal of 19 January 2007 to return [the applicant’s] appeal, found that it should be returned for the following reasons... The Court of Cassation finds that the admissibility criteria set out in Article 231.2 § 1 of the Code of Civil Procedure are absent in the appeal on points of law lodged in the present case. Besides, the person who has lodged the appeal has failed to submit a power of attorney drafted in compliance with the civil legislation ... At the same time, the Court of Cassation does not find it appropriate to provide a time-limit to rectify the errors and resubmit the appeal on points of law. ... the Court of Cassation decides to return the appeal on points of law lodged by [G.] against the decision of the Civil Court of Appeal of 19 January 2007 to return [the applicant’s] appeal...”