CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 mai 2006

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Rozakis, President,   Mr   L. Loucaides,   Mrs   F. Tulkens,   Mrs   E. Steiner,   Mr   K. Hajiyev,   Mr   D. Spielmann,   Mr   S.E. Jebens, judges, and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 27 November 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mrs Latifa Aliyeva, is an Azerbaijani national who was born in 1960 and lives in Baku. The President of the Chamber has granted leave to the applicant to present her own case in accordance with Rule   36   §   2 in fine of the Rules of Court. The respondent Government were represented by Mr C.   Asgarov, Agent of the Republic of Azerbaijan before the Court. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The applicant’s dismissal from her job The applicant worked as an engineer in the Aviation Maintenance Centre of the State company Azərbaycan Hava Yolları (Azerbaijan Airlines) of the Republic of Azerbaijan (hereinafter “AZAL”). On 23 August 2001 the applicant wrote a letter to the President of the Republic of Azerbaijan, alleging certain shortcomings in the technical documentation and technical maintenance of the “lettered” aircraft serving the President and other high government officials. The applicant also expressed critical views concerning the management of AZAL. She attached to her letter copies of technical documentation of the lettered aircraft as well as the relevant AZAL correspondence. In response to this letter, in September 2001 the Director General of AZAL established an expert commission with the task of verifying the allegations contained in the applicant’s letter. Having investigated the matter, on 8 October 2001 the commission concluded that the applicant’s allegations were false. On 11 October 2001 the applicant was dismissed from her job for deliberate disclosure of confidential information concerning the lettered aircraft. 2.     Original proceedings concerning the reinstatement claim The applicant filed a lawsuit, alleging wrongful dismissal and seeking reinstatement. She claimed that her right to address the President concerning aircraft safety was guaranteed by the Constitution. On 23 April 2002 the Azizbekov District Court dismissed the applicant’s claim. It found that the applicant had an obligation under her employment contract not to disseminate AZAL’s industrial and commercial secrets. However, by gaining access to the confidential documents and by enclosing copies of them in her letter to the President, she deliberately breached this obligation. Therefore, the court found that the applicant had breached her employment duties and that the grounds for her dismissal had been lawful. According to the applicant, during the proceedings in the Azizbekov District Court, she was unable to obtain full access to her case file and see copies of the defendant’s pleadings submitted to the court. Upon the applicant’s appeal, on 5 June 2002 the Court of Appeal upheld the district court’s judgment. According to the applicant, while the hearing was held in public, the Court of Appeal’s judgment was pronounced in   camera . The applicant appealed in cassation, claiming misapplication of material and procedural law by the lower courts and requesting that their judgments be quashed. She also requested the court to provide her with free legal assistance. By a final decision of 21 August 2002, the Supreme Court dismissed the applicant’s request and upheld the lower courts’ judgments. According to the applicant, the Supreme Court decided the case in absentia , considering it unnecessary to allow the parties into the courtroom and have their oral pleadings heard. 3.     Reopening of the proceedings Having disagreed with the final result of the domestic proceedings, the applicant filed an “additional-cassation” appeal, requesting the President of the Supreme Court to reopen the proceedings and refer the case to the Plenum of the Supreme Court. In this appeal, she claimed, inter alia , that the domestic courts had violated her procedural rights and breached the principles of adversarial process. The applicant’s request was granted and the case was reopened and referred to the Plenum of the Supreme Court. On 13 February 2004 the Plenum found that the applicant’s complaints about procedural violations had not been properly addressed by the higher courts. Therefore, the Plenum quashed the Court of Appeal’s judgment of 5 June 2002 and the Supreme Court’s subsequent final decision of 21 August 2002 and remitted the case to the Court of Appeal. On 8 July 2004 the appellate judge dealing with the applicant’s case sent the applicant a summons to appear before the court for a hearing on 13 July 2004. The applicant then wrote a letter to the President of the Court of Appeal, expressing a doubt as to the lawfulness of the Plenum’s decision of 13 February 2004 to remit the case for re-trial and refusing to attend the re-trial unless certain allegedly “missing” case-file materials were made available to her. However, she did not appear before the judge to file a formal petition asking for additional leave to consult the case file. On 13 July 2004 the applicant did not attend the hearing. On the same day the appellate judge postponed the hearing until 27 July 2004 and sent the applicant another summons. On 27 July 2004 neither the applicant nor the respondent appeared before the Court of Appeal. In such circumstances, relying on Articles 259.0.6 and 259.0.7 of the Code of Civil Procedure (hereinafter “CCP”), the Court of Appeal issued a procedural decision ( qərardad ) to “leave the claim without examination” (i.e., stay the proceedings), because the applicant had failed to attend the hearing without any good reason and, moreover, had not asked the court to examine the case in her absence. Likewise, the respondent had not requested the court to proceed with the examination of the case on its merits in the applicant’s absence. On 30 December 2004 the Supreme Court upheld the Court of Appeal’s procedural decision to stay the proceedings. It appears that, in the beginning of 2005, the proceedings were re ‑ instituted based on a petition by the applicant. The Court of Appeal held a hearing on the merits of the case on 12 April 2005. Representatives of the respondent, AZAL, appeared at the hearing. However, the applicant again failed to attend the hearing, although she had received two summonses sent to her on 25 March and 8 April 2005. Pursuant to Article 376 of CCP, having found no good reason for the applicant’s absence, the Court of Appeal decided to proceed with the examination of the merits of the case in the presence of the respondent. On 12 April 2005 the Court of Appeal found that the applicant had breached her duty of confidentiality to her employer and, therefore, had been lawfully dismissed. As to the allegations concerning a violation of the applicant’s right to free legal aid, the court noted that, unlike criminal and administrative proceedings, the domestic law did not provide for the right to be represented by a state-paid lawyer in civil proceedings. The court further noted that, in any event, the issue of the applicant’s representation in court was not ripe for examination in the light of the applicant’s apparent lack of interest in attending the new appellate proceedings despite numerous summonses from the court. As to the applicant’s allegations concerning other procedural irregularities, the court dismissed them as unsubstantiated. The applicant filed a cassation appeal. However, once again, she failed to appear at the hearing in the Supreme Court, despite having received summonses to attend it. On 2 November 2005 the Supreme Court decided to proceed with the examination of the case in the applicant’s absence and upheld the Court of Appeal’s judgment of 12 April 2005. COMPLAINTS 1.     The applicant complained under Article 10 of the Convention that she had been dismissed from her job solely because she had criticised the management of AZAL in her letter to the President. 2.     The applicant complained under Article 6 § 1 of the Convention that she had not received a fair trial by the domestic courts. Specifically, she maintained that she did not have full access to the case file, including the respondent’s pleadings submitted to the court, during the first-instance and appellate proceedings. Moreover, the applicant alleged that the courts violated her right to free legal assistance. THE LAW 1.     Relying on Article 10 of the Convention, the applicant complained that she had been dismissed from her job in the state-owned company solely because she had expressed her opinion concerning alleged shortcomings in the technical maintenance of aircraft serving high-ranking state officials. Article 10 provides as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...” The Government argued that the applicant’s complaint fell outside the ambit of Article 10 of the Convention. The applicant was obliged under her employment contract to keep work-related information confidential. Moreover, according to the Government, the applicant’s job functions did not include the maintenance of the lettered aircraft and she was not permitted to have access to secret documents that she had forwarded in her letter to the President. Accordingly, she had obtained copies of those documents illegally, i.e. in violation of her employment duties. Therefore, the Government maintained that the disclosure of the illegally obtained secret documentation was outside the scope of the applicant’s freedom to impart information. The applicant disagreed and reiterated her complaint. The Court finds that it is unnecessary to decide whether the complaint falls within the scope of Article 10 of the Convention because, even assuming this to be the case, it is inadmissible for the following reasons. The Court recalls that, in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see e.g. Kazimova v. Azerbaijan (dec.), no. 40368/02, 6 March 2003; and Kadikis v.   Latvia (dec.), no.   47634/99, 29 June 2000). The Convention entered into force with respect to Azerbaijan on 15 April 2002. However, the Court notes that the applicant was dismissed from work on 11 October 2001, i.e. before the date of the Convention’s entry into force with respect to Azerbaijan. On the other hand, the proceedings concerning the lawfulness of her dismissal and ending with a final decision dismissing her claim occurred after that date. In this respect, the Court has held that its competence ratione temporis is to be determined in relation to the facts constitutive of the alleged interference. In cases where the alleged interference pre-dates ratification while the refusal to remedy it post-dates ratification, to retain the date of the latter act in determining the Court’s temporal jurisdiction would result in the Convention being binding for that State in relation to a fact that had taken place before the Convention entered into force in respect of that State. However, this would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law. At the same time it would render Azerbaijan’s declaration recognising the Court’s competence to receive individual applications nugatory (see Blečić v.   Croatia [GC], no. 59532/00, §   77-79, ECHR 2006 ‑ ...; Kadikis v.   Latvia , cited above; and Stamoulakatos v. Greece (no. 1) , judgment of 26 October 1993, Series A no. 271, §   33). The Court considers that the applicant’s dismissal from her work was an instantaneous act, which did not produce any continuous situation of a violation of the Convention (compare with Jovanović v. Croatia (dec.), no.   59109/00, ECHR 2002 ‑ III). It follows that the alleged interference of Article 10 of the Convention occurred prior to the date of the Convention’s entry into force in respect of Azerbaijan and is therefore outside the Court’s temporal jurisdiction. The subsequent failure of the remedies aimed at redressing that interference cannot bring it within the Court’s temporal jurisdiction. Furthermore, as to the domestic judicial proceedings concerning the lawfulness of her dismissal, insofar as they took place after the ratification date, the applicant did not make any separate complaint as to their compatibility with Article 10 of the Convention. In any event, the Court has held that, while it is true that from the ratification date onwards all of the State’s acts and omissions must conform to the Convention, the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to that date (see Blečić , cited above, §   81; and Kopecký v. Slovakia [GC], no. 44912/98, §   38, ECHR 2004 ‑ ...). It cannot be argued that the domestic courts’ refusal to afford such redress amounted to a new or independent interference, since such obligation cannot be derived from the Convention. The domestic law in force at the time of the applicant’s dismissal did not include the Convention and the domestic courts could not therefore apply it retroactively (see Blečić , cited above, 88-91). It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35   §   3 and must be rejected in accordance with Article 35   §   4. 2.     The applicant complained under Article 6 § 1 of the Convention about certain procedural errors committed by the domestic courts. That provision reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Government did not submit any specific comments concerning the substance of this complaint, noting that the applicant had not exhausted the domestic remedies, because her case was still pending before the domestic courts at the time the application was communicated to the Government. The applicant reiterated her complaint, stating that she was not granted free legal aid and that she allegedly was not given full access to the case file during the original judicial proceedings. The Court does not find it necessary to decide on the Government’s objection as to the exhaustion of domestic remedies because this part of the application is in any event inadmissible for the following reasons. As to the applicant’s argument concerning refusal to grant her free legal assistance, the Court recalls that, although Article 6 § 1 of the Convention does not guarantee a right to free legal aid in all civil cases, the unavailability of legal aid may under certain circumstances give rise to a violation of the right of access to court and to a fair hearing, either because legal representation is rendered compulsory, or by reason of the complexity of the procedure of the case (see Airey v. Ireland , judgment of 9 October 1979, Series A no. 32, §§   24-26). The question whether or not Article 6 § 1 requires the provision of legal representation to an individual litigant will depend upon the specific circumstances of the case and, in particular, upon whether the individual would be able to present his case properly and satisfactorily without the assistance of a lawyer (see McVicar v. the United Kingdom , no. 46311/99, §   48, ECHR 2002 ‑ III). The Court finds that the applicant has not convincingly elaborated on the alleged effects which the refusal to provide free legal aid had on her right to access to court. It has not been established with sufficient certainty that the applicant was at a significant disadvantage without free legal aid. In particular, having regard to the case materials, the Court considers that the case was not complex, given that, in essence, the domestic courts had to examine the sole question of whether the applicant had breached her duty of confidentiality under her employment contract. There was no need to examine numerous witnesses, seek any expert opinions or perform other complicated procedural actions. The Court further notes that the applicant appeared before the courts in the original civil proceedings ending with the Supreme Court’s decision of 21 August 2003 without the assistance of a lawyer. It appears that she was able to properly present her substantive arguments in the original domestic proceedings. In the reopened proceedings ending with the Supreme Court’s decision of 2 November 2005, the applicant failed to attend hearings without a good reason despite having received numerous summonses from the courts. Since it appears that the applicant was in fact able to pursue her claims herself in the original proceedings and would be able to do so in the reopened proceedings had she not ignored the summonses to attend hearings, the Court finds that the applicant has failed to establish that, by refusal of free legal aid, she has been denied effective access to court or a fair hearing contrary to Article 6 of the Convention. As to the applicant’s allegation that she has not been given access to the whole case file during the original proceedings, the Court notes that the court decisions related to those proceedings have been quashed and the applicant’s allegations have been examined during the reopened proceedings. It was found that the applicant’s allegations were unsubstantiated. There is no indication that these reopened proceedings were unfair or arbitrary. Moreover, the applicant has failed to provide the Court with any convincing evidence showing that her access to her case file was somehow restricted throughout the entire domestic proceedings. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President