IVANOV v. AZERBAIJAN
Inadmissible
Christos Rozakis
The applicant, Mr Dmitriy Ivanov, is an Azerbaijani national who was born in 1973 and lives in Kazi-Magomed. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Azerbaijan. 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. In December 1999 the applicant got married. He and his wife lived together until March 2000. After the applicant had moved out of his wife’s house, he had an intention to commence divorce proceedings. However, approximately at this time, he found out that his wife was pregnant. Believing that he was not the father of the yet unborn child, in August 2000 he requested the AliBayramli Register of Civil Status Acts not to list him as the biological father in the birth certificate upon the child’s birth. In October 2000 the applicant’s wife gave birth to a daughter. Despite the applicant’s earlier request, based on a statutory presumption of paternity, the Register of Civil Status Acts issued a birth certificate mentioning the applicant as the child’s father. As the applicant and his wife were separated and no longer lived together as a family, on 27 November 2000 the AliBayramli District Court ordered the applicant to pay child support to his wife. The applicant then instituted civil proceedings, disputing his paternity and asking the court to strike out his name as the child’s father from the relevant civil status documents. He claimed that, on the night after his wedding, he discovered that his wife was not a virgin as he expected. He was shocked by this and refused to continue the sexual intercourse with her. He further maintained that thereafter he had never had any sexual intercourse with his wife and that the child had been conceived in an adulterous relation with another person. After a preliminary hearing, on 22 February 2001 the Ali-Bayramli District Court ordered a biological expert examination to determine the paternity. On 29 November 2001, an expert of the Ministry of Health issued an opinion on the applicant’s paternity. The expert performed an ABO blood group test by comparing the applicant’s, the child’s and the mother’s blood types and, based on its results, concluded that the applicant “could be the child’s father”. The expert noted that a DNA test would yield a more precise conclusion, but the expert did not possess adequate medical inventory to perform such a test. Relying on the results of the ABO blood group test, the fact that the applicant and his wife lived together at the time of the child’s conception, as well as the witness testimony concerning the relations between the applicant and his wife, on 10 January 2002 the Ali-Bayramli District Court dismissed the applicant’s claim. The applicant filed an appeal, arguing that the District Court’s judgment was arbitrary, because the expert opinion used by the court did not provide a definite conclusion and because the results of the ABO test could not be considered as a reliable source for identifying the child’s biological father. He further argued that only the DNA test could provide a conclusive answer to the question of paternity. On 13 May 2002 the Court of Appeal upheld the first instance court’s judgment, holding that the applicant failed to substantiate his arguments or present any new evidence proving that he was not the child’s father. In its judgment, the court was silent about the applicant’s request for a DNA test. Upon the applicant’s appeal in cassation, on 29 January 2003 the Supreme Court upheld the lower courts’ judgments dismissing the applicant’s claim. In May 2003 the applicant filed an additional cassation complaint with the President of the Supreme Court, requesting that the proceedings be reopened. On 6 June 2003 the President rejected this request. However, in April 2005 the proceedings were reopened and the case was referred to the Plenum of the Supreme Court based on an application by the President of the Supreme Court. On 15 April 2005 the Plenum found that the Court of Appeal breached the procedural requirements by ignoring the applicant’s request to order a DNA test. It further noted that such a test would constitute the “principal type of evidence” in this case. The Plenum quashed the decision of the Supreme Court of 29 January 2003 and the related judgment of the Court of Appeal of 13 May 2002 and remitted the case to the Court of Appeal. On 11 August 2005 the Court of Appeal instructed the Forensic Medicine and Pathologic Anatomy Department of the Ministry of Health to conduct a DNA test of the applicant, his former wife and her child. Despite having been notified about the time and place of the DNA testing, the applicant failed to appear for the test without any good reason. According to the Government, the applicant received several such notifications. Furthermore, although they had been informed about the time and place of the appeal hearing, neither the applicant nor his former wife appeared for the hearing. In such circumstances, on 8 December 2005 the Court of Appeal noted that it had been impossible to obtain DNA evidence due to the applicant’s failure to cooperate. It therefore found that the parties (and in particular, the applicant) were not interested in obtaining new evidence that would enable the court to reach a different conclusion. For these reasons, the Court of Appeal again upheld the Ali-Bayramli District Court’s original judgment of 10 January 2002. No cassation appeal was filed against the Court of Appeal’s judgment of 8 December 2005 within the statutory three-month period for filing cassation appeals. “[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 specialised 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 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...” “419.4. The decision [of the cassation-instance court] shall enter into force from the moment of its delivery.” “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 upon a submission, appeal or protest.” “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 are affected by the judicial acts. An appeal may be filed by a party to the case represented by an advocate. [A protest may be filed by the Chief Prosecutor in certain specified circumstances.]” “424.1. The Plenum considers cases exclusively on the points of law.” Article 424.2 lists the grounds which merit the review 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. “426.1. If appropriate grounds exist, the President [of the Supreme Court] shall refer the submission, appeal or protest, together with the case file, to the Plenum of the Supreme Court. 426.2. The submission, appeal or protest shall be filed within two months after the date of delivery of the [relevant] decision of the Supreme Court. ...” “429.0. Upon review of a case under the procedure of additional cassation, the Plenum of the Supreme Court has the competence to: ... 429.0.1. uphold the decision of the cassation-instance court and dismiss the submission, appeal or protest; 429.0.2. make amendments to the decision of the cassation-instance court; 429.0.3. quash, in full or in part, the decision of the cassation-instance court, as well as the related decision of the appellate court, and remit the case for re-examination by the appellate court; ...”