Last Updated on February 10, 2021 by LawEuro
FIFTH SECTION
DECISION
Application no. 2773/09
Beyler Soltanoglu ABBASOV
against Azerbaijan
The European Court of Human Rights (Fifth Section), sitting on 14 January 2021 as a Committee composed of:
Lado Chanturia, President,
Latif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above application lodged on 10 December 2008,
Having regard to the observations submitted by the respondent Government,
Having regard to the factual developments in the case and the parties’ comments in this respect,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr BeylerSoltanogluAbbasov, is an Azerbaijani national, who was born in 1970 and lives in Tartar. He was represented before the Court by Mr M. Mehdiyev, a lawyer based in Azerbaijan.
2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant participated in the military operations for the territorial integrity of the Republic of Azerbaijan between 7 November 1993 and 10 February 1996.
5. On an unspecified date in September 2004 the applicant applied to the Tartar District Military Commissariat (“the TDMC”) for a war veteran’s card.
6. In October 2004, November 2005 and January 2006 the TDMC sent letters to the Archive of the Ministry of Defence asking for a certificate confirming the applicant’s military service.
7. Meanwhile, Presidential decree no. 257 (“Decree no. 257”) establishing a monthly allowance of 11 Azerbaijani manats (AZN) for war veterans for payment of utility bills and other services became effective as of 1 August 2005 (see paragraph 29 below). On 1 January 2006 the Law on social allowances entered into force (see paragraphs 30-31 below).
8. On 17 April 2006 the Ministry of Defence sent the certificate sought to the TDMC.
9. On 22 February 2007 the TDMC sent a list to the Military Commissariat of the Republic of Azerbaijan with the details of 25 persons, including the applicant, to be awarded with war veteran status and issued a veteran’s card.
10. On 1 February 2007 the amount of the monthly allowance was raised to AZN 15.
11. On 2 April 2007 the TDMC issued a veteran’s card to the applicant.
12. On 17 April 2007 the applicant applied to the Tartar Office of the Centre for Social Protection of Population (“the Centre”) and was awarded a monthly allowance of AZN 15 with effect from 2 April 2007.
13. On 1 May 2007 the applicant lodged a civil claim with the Tartar District Court against the Centre, the TDMC and the Ministry of Defence asking for payment of AZN 243, the total unpaid allowance for the period from 1 August 2005, the date when Decree no. 257 came into force, to 2 April 2007. He argued that he had requested a veteran’s card in 2004 and the delay of two and a half years was attributable to the inactivity of the State authorities.
14. At the court hearing, the applicant submitted that he had received AZN 15 for April 2007 and asked the court to grant him AZN 228.
15. On 17 July 2007 the Tartar District Court granted the applicant’s claim. It held that the applicant was entitled to the allowance from the date Decree no. 257 came into force and that his inability to receive it during the period in question had been caused by the inactivity of the State authorities which had failed to examine the applicant’s request for a veteran’s card in a timely manner. Taking into account that the applicant had received AZN 15 for April 2007, the court ordered payment of AZN 228 to the applicant by the Centre.
16. The Centre lodged an appeal arguing that under the Law on veterans of 28 June 1994 the applicant was entitled to the said allowance from the date when he received the card.
17. On 7 September 2007 the appellate court summoned the applicant for the first appellate hearing on 8 October 2007 and informed him that he could lodge his objection to the Centre’s appeal up until that date. The applicant did not submit any comments in reply to the Centre’s appeal because no copy of it had been sent to him (see paragraph 19 below).
18. After two hearings, on 23 October 2007 the Court of Appeal quashed the first-instance court’s judgment and granted the Centre’s appeal. Referring to Article 7 of the Law on veterans, the appellate court found that the allowance had to be paid from the time the card had been issued.
19. The applicant lodged a cassation appeal reiterating his previous arguments. In addition, the applicant also complained that the appellate court had failed to send him a copy of the other party’s appeal, therefore putting him at a disadvantage vis-à-vis that party.
20. On 13 June 2008 the Supreme Court upheld the judgment of the appellate court reiterating its reasoning. It did not address the complaint concerning non-communication of the Centre’s appeal to the applicant.
B. Further factual developments
21. On 18 August 2018 the applicant informed the Court about new proceedings he had lodged (see paragraphs 22-26 below) and submitted only the copy of the final decision (the Supreme Court’s judgment of 30 May 2018). Despite the Court’s request, the applicant failed to provide copies of the first-instance and appellate courts’ judgments and his appeals in those proceedings. The Government have not submitted any documents concerning the new proceedings either. The following can be discerned from the Supreme Court’s judgment of 30 May 2018.
22. On 25 September 2017 the applicant lodged a claim with the Ganja Administrative-Economic Court against the Tartar District Department of the Social Security Protection Fund asking for payment of the unpaid social allowance for the period from 2 April 2004 to 2 April 2007.
23. It is not clear on which provisions of domestic law the applicant based his claim. The first-instance court examined his claim on the merits, but the procedural grounds for admitting his claim for examination are also unclear.
24. On 16 November 2017 the first-instance court dismissed the applicant’s claim. It noted that since the applicant had obtained the card on 2 April 2007 and on that date he was already entitled to a pension, under Article 9.1 of the Law on social allowances, he could not claim the payment of allowance for the period before that date.
25. On 22 February 2018 the Ganja Court of Appeal dismissed the applicant’s appeal.
26. On 30 May 2018 the Supreme Court partly granted the applicant’s cassation appeal. It firstly noted that the delay in issuance of the veteran’s card to the applicant should not affect his rights under Article 3.1.2 of the Law on veterans. The court further found that, according to Article 9.1 of the Law on social allowances, the applicant was entitled to the payment of the allowance from the date when that Law came into force, that is from 1 January 2006. It therefore ordered the defendant authority to pay the applicant the unpaid social allowance for the period from 1 January 2006 to 2 April 2007. While doing so, the Supreme Court did not refer to Decree no. 257. However, it appears that the awarded allowance was the same as the one provided for by the Decree, namely a monthly allowance for utility bills, transport and other services.
C. Relevant domestic law
1. The Law on veterans of 28 June 1994
27. Article 3.1.2 of the Law provides that persons who participated in military actions for the territorial integrity of the Republic of Azerbaijan shall be recognised as war veterans.
28. Article 7 of the Law provides that terms and conditions for awarding the title of a war veteran, a veteran of the armed forces and veteran of labour shall be provided by the relevant executive authority. The privileges envisaged for veterans shall be applicable from the time of the issuance of a veteran’s card.
2. Presidential decree no. 257 of 11 July 2005
29. Article 1 of the decree provides that, in order to strengthen the social protection of war veterans who participated in the military battles for the territorial integrity of the Republic of Azerbaijan, they shall be paid a monthly allowance of AZN 11 as assistance in payment of utility bills and other services.
3. The Law on social allowances of 1 January 2006
30. Under Article 1.0.1 of the Law, social allowances are funds paid monthly or as a lump-sum to certain categories of persons in accordance with the procedure established by this Law for providing social support.
31. Article 9.1 of the Law provides that monthly allowances, regardless of the time of the request, are granted from the day the right to receive them arises, with the possibility of the payment of the sums for up to three previous years prior to applying for such allowance.
COMPLAINTS
32. The applicant complained under Article 6 § 1 of the Convention that he had not been informed of the defendant party’s appeal against the Tartar District Court’s judgment of 17 July 2007 and, therefore, had been deprived of the opportunity to lodge an objection to it.
33. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the failure by the State authorities to pay him the statutory allowance, to which he was entitled as a veteran of war, for the period from 1 August 2005 to 2 April 2007.
THE LAW
34. The applicant complained that the domestic courts’ failure to forward to him the defendant’s appeal was in breach of Article 6 of the Convention. He also complained that the domestic authorities’ refusal to award him the statutory allowance for the period claimed, referring to the issue date of his veteran’s card, which was belated due to inactivity of the State authorities, violated his rights under Article 1 of Protocol No. 1 to the Convention. These provisions, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal …”
Article 1 of Protocol No. 1
“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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The parties’ submissions
35. Referring to the Court’s case-law and in particular, to the case of Gulmammadov v. Azerbaijan ((dec.), no. 33234/08, 12 December 2017), where the applicant was found not to suffer a significant financial disadvantage as a result of a fine equivalent to EUR 185, the Government argued that, similarly, in the present case, the amount claimed by the applicant was insignificant and that he had not suffered a significant disadvantage.
36. The Government further argued that, as in the Gulmammadov case, the applicant had not shown that the financial implications of the proceedings had represented a particular hardship for him. They also argued that, the proceedings did not concern a question of principle for him. Therefore, the Government considered that he had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention.
37. Further, the Government argued that, in any event, the applicant’s complaints were manifestly ill-founded.
38. The applicant’s belated submissions were not admitted to the case file.
39. Following the new developments in the present case (see paragraphs 21-26 above), the Government stated that the matter had now been resolved and asked the Court to strike the application out of the list of cases. The applicant asked the Court to continue the examination of the case.
2. The Court’s assessment
40. The Court considers that it is not necessary to determine whether the matter giving rise to the application has been resolved within the meaning of Article 37 § 1 (b) of the Convention, as the application is in any event inadmissible for the following reasons.
41. Article 35 § 3 of the Convention reads:
“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
…
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
42. First, as to whether the applicant suffered a significant disadvantage, the Court reiterates that a violation of a right, however real from a purely legal point of view, should be minimally severe to warrant consideration by an international court. The assessment of this minimum level is relative and depends on all the circumstances of the case, taking account of both the applicant’s subjective perceptions and what is objectively at stake. The applicant’s subjective feeling about the impact of the alleged violations has to be justifiable on objective grounds (see Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). The finding that no such disadvantage exists can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Gulmammadov, cited above, § 25, with further references).
43. In the present case, the dispute concerned the award of a monthly allowance for payment of utility bills and other services, which did not constitute the primary source of income for the applicant. Originally, the overall amount at stake was AZN 228 (approximately EUR 190 at the time of lodging the domestic claim, currently EUR 120) (see paragraph 14 above). Following the new proceedings in the present case, the applicant’s claim for social allowance was granted for most of the period that he originally claimed before the domestic courts and in his complaint before the Court (see paragraph 26 above). The Supreme Court’s judgment of 30 May 2018 does not specify the exact amount of the award and the parties have not provided the Court with such information either. However, calculating the award on the basis of AZN 11 (January 2006 – January 2007) and AZN 15 (February – March 2007) per month, as originally claimed by the applicant, the amount awarded could be estimated to be around AZN 173. Therefore, the actual amount at stake appears to be around AZN 55 (approximately EUR 28).
44. The Court is conscious that the impact of pecuniary loss must not be measured in abstract terms: even modest pecuniary damage may be significant in the light of the person’s individual circumstances and the economic situation of the country or region in which he lives (see Bazelyuk v. Ukraine (dec.),no. 49275/08, 27 March 2012, and Moiseyev v. Russia (dec.), no. 35722/04, 27 June 2017). However, it observes that in the present case the applicant does not argue that the loss of the above-mentioned sum would cause him serious financial hardship and have a major impact on his personal life in the light of his specific circumstances (compare Svystun and Others v. Ukraine (dec.), no. 25250/16 and two other applications, 3 November 2016).
45. At the same time the Court is mindful that the pecuniary sum involved is not the only element that determines whether the applicant has suffered a significant disadvantage. Indeed, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting any pecuniary interest. However, the Court does not consider that any such issues have been raised by the applicant in the present case in respect of his complaint under Article 1 of Protocol No. 1 or his complaint under Article 6 concerning non-communication of the opposing party’s appeal to him (compare Burov v. Moldova (dec.), no.38875/03, § 30, 14 June 2011, and Gulmammadov, cited above, § 29).
46. Moreover, it appears from the case file that the applicant made no effort at domestic level to request a copy of the opposing party’s appeal and failed to raise this issue before the appellate court during its two hearings. Therefore, even assuming that the non-communication of the defendant’s appeal to the applicant could raise an issue of fairness of the proceedings, in the circumstances of the present case, it may not be seen as having caused any significant disadvantage to him in terms of Article 35 § 3 (b) of the Convention (compare Puškárová v. Slovakia (dec.), no. 19356/14, §§ 21-22, 7 May 2019).
47. The second element set out in Article 35 § 3 (b) compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance where there is a need to clarify the respondent State’s obligation under the Convention or to induce the respondent State to resolve a structural deficiency (see, for example, Zwinkels v. the Netherlands (dec.), no. 16593/10, § 28, 9 October 2012). Considering the present case from this perspective the Court does not see any compelling reason to warrant its examination on the merits (compare Bondarenko v. Ukraine (dec.), no. 35432/10, 17 September 2019).
48. Lastly, as regards the third condition of this inadmissibility criterion, namely that the case must have been “duly considered” by a domestic tribunal, the Court notes that the applicant’s case was examined by courts at three levels of jurisdiction in two sets of proceedings and his claim was subsequently partially granted by the Supreme Court in the new proceedings.
49. The three conditions of the inadmissibility criterion having therefore been satisfied, the Court finds that this complaint must be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 February 2021.
Martina Keller Lado Chanturia
Deputy Registrar President
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