BABAYEV v. AZERBAIJAN
Inadmissible
Christos Rozakis
The applicant, Mr Hasan Babayev, is an Azerbaijani national, who was born in 1944 and lives in Baku. He was represented before the Court by Mrs L. Madatova, a lawyer practising in Baku. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant's father, before his death, owned a part of a non-residential building used as a garage. At the material time, according to the applicant, the garage was used by T.B. under a lease agreement. In 1995, the applicant's father died and the applicant formally registered his ownership rights to the part of the garage he inherited from his father. According to the applicant, the remaining parts of the property were open for inheritance by his relatives, but none of them formalized their rights. In 2002 T.B. filed a lawsuit before the Nasimi District Court, claiming ownership rights to the garage based on a de facto sale and purchase agreement allegedly concluded in 1969 with some of the applicant's relatives, who had then been the owners of the garage. The applicant counterclaimed, asking the court to order T.B.'s eviction from the garage. He denied T.B.'s allegations that the garage had been de facto sold in 1969, arguing that there were no proper documents verifying that such a sale had ever taken place. He claimed that the garage had remained in the ownership of his family until his father's death and that, thereafter, he had rightfully inherited his father's share of the property and properly formalized his ownership rights. On 4 June 2002 the Nasimi District Court upheld T.B.'s claim in full and rejected the applicant's counterclaim. The applicant appealed, alleging that the district court had wrongfully assessed the facts. On 13 August 2002 the Court of Appeal set aside the district court's judgment and ruled in the applicant's favour. Following T.B.'s cassation appeal, on 4 December 2002 the Supreme Court held that the Court of Appeal improperly applied the relevant provisions of the domestic law to the facts of the case. The Supreme Court modified the Court of Appeal's decision and declared that the disputed property was in T.B.'s ownership. The Supreme Court's decision became final and enforceable upon its delivery. On 27 January 2003 the applicant filed an “additional cassation” appeal with the President of the Supreme Court, asking for the reopening of the proceedings and quashing the Supreme Court's decision of 4 December 2002 by the Plenum of the Supreme Court (Azərbaycan Respublikası Ali Məhkəməsinin Plenumu). By a letter of 23 April 2003, the President of the Supreme Court rejected the applicant's request, finding no grounds for the reopening of the proceedings. 1. Law On Courts and Judges of 1997 “[T]he Supreme Court shall be the highest judicial authority with regard to civil ..., criminal, administrative and other disputes falling within the jurisdiction of the general and specialized courts. The Supreme Court [is] a court of cassation instance ...” “The Plenum of the Supreme Court shall be composed of the President, Vice Presidents and judges of the Supreme Court, the President of the Economic Court, the President of the Court of Appeal and the President of the Supreme Court of the Nakhchivan Autonomous Republic. ... The Plenum of the Supreme Court ... shall, in the manner established by law, review cases under the procedure of additional cassation, on submission of the President of the Supreme Court, or pursuant to a protest by the Chief Prosecutor or an appeal by the defendant ...” “The President of the Supreme Court ... shall, in cases and under the procedure provided by law, submit cassation instance decisions for the review of the Plenum of the Supreme Court ...” 2. Code of Civil Procedure of the Republic of Azerbaijan of 2000 “The decision [of the cassation instance court] shall enter into legal force from the moment of its delivery.” “Submissions, appeals or protests concerning decisions of the Supreme Court of the Republic of Azerbaijan ... may be reviewed by the Plenum of the Supreme Court of the Republic of Azerbaijan under the procedure of additional cassation.” “A submission concerning a decision of the Supreme Court of the Republic of Azerbaijan ... may be made by the President of the Supreme Court on the basis of an application by persons non-parties to the case whose interests were affected by the judicial acts. An appeal may be filed by a party to the case who has been represented by an advocate. [A protest may be filed by the Chief Prosecutor in certain specified circumstances.]” “The Plenum shall consider cases exclusively on the points of law.” Article 424 § 2 lists the grounds which merit the reconsideration of the Supreme Court's cassation instance decision by the Plenum of the Supreme Court. These grounds are present if, inter alia, the Supreme Court's decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision, or was based on a legal norm declared as unconstitutional by the Constitutional Court, or if the Supreme Court's ruling infringed the rights and obligations of persons who were not a party to the case. “If appropriate grounds exist, the President [of the Supreme Court] shall transmit the submission, appeal or protest, together with the case file, to the Plenum of the Supreme Court.” 3. Relevant domestic practice Any additional cassation proceedings in the Plenum of the Supreme Court can be reopened only at the discretion of the President of the Supreme Court, following a motion by the relevant party (e.g., an additional cassation appeal or Chief Prosecutor's protest). The Plenum itself does not take a decision on the reopening of the proceedings or on the admissibility of additional cassation appeals. An additional cassation appeal is first submitted to the President of the Supreme Court. The President, in his or her sole discretion and without holding any formal judicial hearing, decides if there are any grounds to reopen the case and transmit the appeal to the Plenum. If the President decides that the proceedings should be reopened, he or she then transmits the additional cassation appeal, together with the case file, for the in-substance review of the Plenum at its next sitting. Meanwhile, if necessary, the President may issue an order suspending the execution of the final judgment pending the review of the case by the Plenum. However, if the President deems that there are no grounds for additional cassation review, he or she simply sends a rejection letter to the applicant, briefly describing the reasons for the refusal to reopen the proceedings and transmit the appeal to the Plenum. The recent practice shows that the President of the Supreme Court routinely denies additional cassation review in the majority of domestic cases, due to the absence of the relevant grounds.