RAHIMOV v. AZERBAIJAN
Inadmissible
Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
The applicant, Mr Ogtay Rahimov, is an Azerbaijani national who was born in 1951 and lives in Baku. He was represented before the Court by Mrs N. Huseynova, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was the chairman of the Metanet Construction Cooperative (“the Cooperative”). In 1993 the Cooperative concluded a construction contract with the Education Department of the Nasimi District of Baku (“the Nasimi Education Department”) according to which the Cooperative agreed to repair the heating system in one of the district’s public schools. In 1997 a similar contract was concluded with the Education Department of the Narimanov District of Baku (“the Narimanov Education Department”). Although the Cooperative had completed its contract obligations, it did not receive any payments under either contract. The Cooperative, represented by the applicant, lodged an action against the Nasimi Education Department. By a judgment of 27 January 1998 the Economic Court ordered the Nasimi Education Department to pay the Cooperative 34,492,634 Azerbaijani manats (AZM). Subsequently, on an unspecified date the Economic Court revised its judgment and reduced the awarded amount to AZM 18,321,250. No appeal was filed against the judgment and it entered into force. In January 1998 the Economic Court issued a writ of execution of the judgment. Following a number of complaints by the applicant to the enforcement authorities, it appears that on an unspecified date in 2001 the judgment was partially executed and AZM 5,000,000 of the judgment amount paid to the Cooperative. However, despite the applicant’s continuous complaints to the Nasimi District Department of Judicial Observers and Enforcement Officers (Nəsimi rayon Məhkəmə Nəzarətçiləri və Məhkəmə İcraçıları şöbəsi; “the Nasimi Department of Enforcement Officers”), the remainder of the judgment award, amounting to AZM 13,321,250, was not paid. The Cooperative lodged a new action against the Nasimi Education Department and Nasimi District Finance Department complaining about non-execution of the judgment. On 29 January 2004 the Nasimi District Court ordered the defendants to comply with the judgment of 27 January 1998. On 29 April 2004 the Court of Appeal quashed this decision, finding that the complaints concerning non-enforcement of final judgments should be directed against the Nasimi Department of Enforcement Officers and not the original defendant. The Cooperative lodged another action asking the court for “indexation” of the judgment amount due to inflation. On 19 May 2004 the Local Economic Court No. 1 granted this request. It found that, taking into account the inflation, the remainder of the amount to be paid by the Nasimi Education Department pursuant to the judgment of 27 January 1998 constituted AZM 17,317,625. The Cooperative, again represented by the applicant, lodged a separate action against the Narimanov Education Department. By a judgment of 5 January 2000 the Economic Court ordered the Narimanov Education Department to pay the Cooperative AZM 135,505,731. Although the applicant sent numerous inquiries to the Narimanov District Department of Judicial Observers and Enforcement Officers within the next two years, the judgment was not enforced. The Cooperative lodged a new action against the Narimanov Education Department and Narimanov District Finance Department complaining about non-execution of the judgment. On 26 March 2004 the Narimanov District Court ordered the defendants to comply with the judgment of 5 January 2000. On 17 August 2004 the Court of Appeal upheld this decision. The Cooperative lodged another action asking the court for “indexation” of the judgment award due to inflation. On 19 May 2004 the Local Economic Court No. 1 granted this request. It found that, taking into account the inflation, the amount to be paid by the Narimanov Education Department pursuant to the judgment of 5 January 2000 constituted AZM 149,056,304. According to the Government the delayed execution of the judgments of 27 January 1998 and 5 January 2000 was due to the fact that the Cooperative’s bank account was closed since 1998 for unspecified reasons. On 19 April 2007 the outstanding amounts awarded by both judgments were transferred to an alternative bank account as directed by the applicant. By a letter of 19 April 2007 addressed to the Nasimi Department of Enforcement Officers, the applicant acknowledged the receipt of the outstanding amounts and noted that he had no further complaints before the domestic authorities concerning the execution of the judgments of 27 January 1998 and 5 January 2000. In accordance with the Civil Code of 1 September 2000 a cooperative is a type of commercial company which is a voluntary union of individuals or legal entities established for the purpose of satisfying material and other needs of its members through consolidation of their material contributions (Article 109.1). A cooperative can be established by at least five members (Article 109-1.1). A “full” member, in essence, enjoys rights similar to those of founders or shareholders of other types of legal entities, including rights to participate in the management and to receive a share of the cooperative’s profits (Articles 109.2 and 109.4 in fine). An “associative” member’s rights to participate in the management are limited (Article 109.3). The cooperative’s profits are distributed to the members in accordance with their shares, as well as the extent of their participation in the function of the cooperative, by way of contributing personal labour or otherwise (Article 110). The supreme management body of a cooperative is the general meeting of members. Each member has one vote at the general meeting regardless of the size of his or her contribution to the cooperative’s fund (Articles 111.1 and 111.5). The executive bodies of a cooperative are a management board and/or a chairman. A cooperative’s chairman may be elected only from among the cooperative’s members. The chairman is elected for a specified term at the general meeting of members and has a right to represent the cooperative (Articles 111.1 and 111.10). Article 69.2 of the Code of Civil Procedure of 1 September 2000 provides that legal entities can be represented before courts by their bodies, acting within the scope of powers conferred on them by law, regulations or articles of incorporation of the legal entity, or by representatives acting on the basis of a power of attorney.