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FIRST
SECTION
CASE OF PASHAYEV v. AZERBAIJAN
(Application
no. 36084/06)
JUDGMENT
STRASBOURG
28
February 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Pashayev v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić, President,
Peer
Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 7 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36084/06)
against the Republic of Azerbaijan lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by an
Azerbaijani national, Mr Chingiz Amirhamza Oglu Pashayev (“Çingiz
Əmirhəmzə oğlu Paşayev
- the applicant”), on 4 August 2006.
2. The
applicant was represented by Mr E. Zeynalov, a lawyer practising in
Baku. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç.
Asgarov.
3. The
applicant alleged, in particular, that the conditions of his
detention were harsh and that he had been denied adequate medical
assistance in prison. He argued that domestic
proceedings concerning the alleged lack of medical assistance had
been held in his absence. The applicant further alleged that his
right of access to court and right of appeal in criminal matters had
been violated by the domestic courts’ failure to examine the
appeal against his criminal conviction.
- On
24 September 2009 the Court declared
the application partly inadmissible and decided to communicate the
complaint to the Government concerning the conditions of the
applicant’s detention, lack of medical assistance, unfairness
of the civil proceedings and the domestic courts’ failure to
examine the applicant’s appeal against his criminal conviction.
It also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 in Baku
and is currently serving a life sentence in Gobustan Prison.
A. The applicant’s criminal conviction and
commutation of his sentence
- The
applicant was a member of an organised criminal group which committed
a series of robberies and murders in the Azerbaijan SSR, Russian SFSR
and Georgian SSR between 1987 and 1989.
- On
12 November 1991 the Supreme Court of Azerbaijan, sitting as the
court of first instance, convicted the applicant of involvement in
organised crime and premeditated murder. By way of a merger of
sentences, the applicant was sentenced to death and confiscation of
property. Being a decision of the highest tribunal, this judgment was
final and was not subject to appeal at the material time.
- Following
the conviction, the applicant was transferred to the 5th wing of
Bayil Prison, designated for convicts sentenced to death. Despite the
existence of the death penalty as a form of punishment under the
criminal law applicable at that time, the Azerbaijani authorities had
pursued a de facto policy of a moratorium on the execution of
the death penalty from June 1993 until the abolition of the death
penalty in 1998.
- On
10 February 1998 Parliament passed the Law on Amendments to the
Criminal Code, Code of Criminal Procedure and Correctional Labour
Code of the Republic of Azerbaijan in connection with the Abolition
of the Death Penalty in the Republic of Azerbaijan (“the Law of
10 February 1998”), which amended all the relevant domestic
legal provisions, replacing the death penalty with life imprisonment.
The penalties of all convicts sentenced to death, including the
applicant, were to be automatically commuted to life imprisonment.
B. The applicant’s attempts to have his
conviction reviewed
- In
2000 a new Code of Criminal Procedure (“the CCrP”) and
new Criminal Code were enacted. Before the new CCrP’s entry
into force on 1 September 2000, on 14 July 2000 Parliament
passed a transitional law allowing the lodging of an appeal under the
new CCrP against final judgments delivered in accordance with the old
criminal procedure rules (“the Transitional Law”).
- On
24 January 2005 the applicant lodged an appeal, together with a
“petition to restore the missed appeal period” (without
specifying which appeal period), with the Court of Appeal under the
Transitional Law. He noted in particular that when he was convicted
in 1991 there was no possibility of appeal against his conviction.
- By
a letter of 15 March 2005 a clerk of the Court of Appeal replied that
“the applicant could apply to the Supreme Court with an appeal
against his criminal conviction”.
- The
applicant complained about the letter of 15 March 2005 to the Supreme
Court, asking it to examine the appeal against his conviction. By a
letter of 19 May 2005, a deputy president of the Supreme Court
replied that, since the applicant’s appeal concerned solely the
issue of the alleged unlawfulness of commuting the death penalty to
life imprisonment (instead of fifteen years’ imprisonment, as
claimed by the applicant), the issue was outside the jurisdiction of
the courts, as the applicant’s conviction had been final and
the commutation of the sentence had been effected by a legislative
act. The deputy president of the Supreme Court also stated that “the
relevant law had been misinterpreted in the Court of Appeal’s
letter of 15 March 2005 according to which the Supreme Court can deal
with this issue”.
- In
August 2005 the applicant lodged a new appeal with the Court of
Appeal, challenging his conviction in 1991. In August 2005 the
applicant also lodged a new appeal with the Supreme Court,
reiterating his previous requests.
- By
a letter of 1 September 2005 a clerk of the Supreme Court noted that
the applicant “requested that his sentence be changed by way of
lodging complaints under various procedures”. He further noted
that the applicant should apply to a first-instance court under the
procedure for complaints regarding execution of sentences. There was
no information in the letter about the applicant’s appeal
against his criminal conviction of 1991.
C. Proceedings concerning the alleged unlawfulness of
the commutation of the sentence
- On
9 August 2005 the applicant lodged an action with the Garadagh
District Court, complaining that the new sentence of life
imprisonment had been applied retroactively, to his detriment. He
argued that his sentence should have been commuted to fifteen years’
imprisonment, which had been the only alternative to the abolished
death penalty at the time when he had committed the criminal
offences. He also asked the court to lift the criminal sentences
imposed under the Criminal Codes of the Georgian SSR and Russian SFSR
because, according to him, they did not apply in Azerbaijan.
- On
12 October 2005 the Garadagh District Court confirmed the commutation
of the applicant’s sentence from the death penalty to life
imprisonment.
- On
25 November 2005 the Court of Appeal and on 22 March 2006 the Supreme
Court rejected the applicant’s appeal and upheld the
commutation of the applicant’s sentence under the Law of 10
February 1998.
D. The conditions of the applicant’s detention
1. The applicant’s version of the conditions of
his detention
- Following
his conviction on 12 November 1991 the applicant was transferred to
the 5th wing of Bayil Prison, where he spent approximately seven and
a half years.
- After
the commutation of his sentence to life imprisonment, in late March
1998 the applicant was transferred to Gobustan Prison, located
outside Baku, where he has been detained ever since.
- The
applicant is being held, together with one other inmate, in a cell
measuring 9-10 sq. m. The cell has two beds, a small bedside
cupboard, and one small table and two chairs fixed to the cell floor.
The toilet area is separated from the rest of the cell. The floor and
ceiling are made of stone and concrete respectively. The temperature
inside the cell is very high in summer and very low in winter.
Central heating is available but inadequate.
- The
window, which has metal bars, has no glass in it and in winter is
covered with a transparent polyethylene film. The air inside is stale
and the cell cannot be naturally ventilated. The food served in the
prison is often of poor quality and lacks sufficient meat and
vitamins, and the menu is unvaried and monotonous. The inmates are
allowed only about half an hour’s outdoor exercise a day.
2. The Government’s version of the conditions of
the applicant’s detention
- After
his transfer to Gobustan Prison, the applicant was detained in six
different cells. All of these cells have two prisoners assigned to
them and their area is at least 12 sq. m.
- The
conditions of the applicant’s detention meet all national and
international requirements and standards. The window of the cell can
be opened from the inside. The window is large enough and does not
prevent natural light and fresh air from coming in. The cell is also
equipped with electric lights, a ventilator and a radio set.
- Since
June 2008 the prisoners have had the right to watch TV for four hours
a day and six hours a day at weekends and on holidays. The prison has
a library the prisoners can use. The sanitary conditions are
acceptable and the food served is of good quality. The applicant has
the right to one hour’s outdoor exercise a day.
E. The applicant’s medical treatment during his
imprisonment
1. The applicant’s version of his medical
treatment
- The
applicant was in good health before his arrest. In the summer of
1991, when the applicant was in pre-trial detention in Bayil Prison,
he fell ill and was examined by a prison doctor. An X-ray examination
revealed a shadow on the upper part of his right lung. The doctor
recommended some treatment, of which details have not been given, but
the prison warden did not allow it.
- After
being transferred to the 5th wing of Bayil Prison, the applicant was
placed in a cell in which two of his cellmates were suffering from
tuberculosis. These two inmates later died of the disease, in 1993
and 1994 respectively. At around this time the applicant started
coughing up blood. In the period between 1992 and 1998 the applicant
tried to treat himself in his cell by taking antibiotics purchased
with his own money.
- According
to the applicant, during that period inmates of the 5th wing of Bayil
Prison suffering from tuberculosis were generally not transferred to
any specialised medical facilities, but received treatment in their
cells. There was a high mortality rate among inmates with
tuberculosis.
- Upon
his transfer to Gobustan Prison in 1998, the applicant was examined
by a doctor, but it was not a full examination and was based only on
the applicant’s submissions. In August 1998, the applicant was
again examined by a doctor and was diagnosed with bronchitis.
- On
12 November 1999 the applicant was examined for the first time by a
tuberculosis specialist and was diagnosed with tuberculosis.
- On
20 November 2004 he was transferred for in-patient treatment to the
Specialised Medical Establishment for Prisoners with Tuberculosis
(“the SME”), where he was diagnosed with pulmonary
tuberculosis. However, the doctors ultimately found that his state of
health did not require treatment based on the World Health
Organisation’s DOTS (Directly Observed Treatment, Short Course)
programme. Thereafter, following seven days’ in patient
treatment, he was transferred back to Gobustan Prison.
- On
29 January 2005 the applicant was again transferred to the SME. From
3 February to 29 March 2005 he received, for the first time,
treatment based on the DOTS programme. According to the applicant,
the conditions of treatment were not adequate in the SME and that is
why he refused treatment.
- Since
2006 the applicant has been regularly examined by a doctor, however
as he was not provided with adequate medical assistance from 1998 to
2004 he is suffering from residual symptoms of tuberculosis.
2. The Government’s version of the applicant’s
medical treatment
- The
Government submitted that it was doubtful that the applicant had
contracted tuberculosis in Bayil Prison, and that his version of
events was contradictory. In this regard, the Government accepted
that the applicant had shared a cell with an inmate suffering from
tuberculosis, however, according to the Government, this could not be
the reason for his contracting it, because the other inmate’s
tuberculosis was not contagious.
- The
applicant was provided with adequate medical assistance in Gobustan
Prison and thus recovered.
- On
arrival at Gobustan Prison, on 29 March 1998 the applicant was
examined by the prison doctor. During this examination, the applicant
stated that he had been treated for pulmonary tuberculosis before and
that there had been no worsening of the condition in recent years. No
serious illness was identified by the doctor.
- The
applicant was subsequently examined on 5 April and 21 May 1998, and
had expressed no complaint about his state of health. On 12 August
1998 the applicant was diagnosed with bronchitis and respiratory
problems. He was prescribed medication and recovered.
- On
12 November 1999 the applicant was examined by a tuberculosis
specialist. During this examination, the applicant stated that he had
contracted tuberculosis ten years before, and that having had
treatment he felt well. Examining the applicant, the doctor found no
worsening of the tuberculosis, and prescribed antibiotics.
- Subsequently,
the applicant was examined on 19 November 1999, on 7 February, in May
and on 23 August 2000, and on 17 March 2001, by a doctor and no
worsening of the tuberculosis was identified.
- From
2002 to 2004 the applicant was regularly examined by a doctor and
treated for several conditions.
- In
November 2004 the applicant was sent to the SME to establish whether
the tuberculosis had reactivated. According to the clinic laboratory
and X-ray results, the applicant had focal pulmonary tuberculosis and
there was no reactivation of the tuberculosis. The examination was
carried out in the presence of a representative of the International
Committee of the Red Cross. It was decided that the applicant’s
state of health was satisfactory and there was no need for in-patient
treatment.
- In
January 2005, at the applicant’s request, he was again examined
by doctors: the result was negative. However, in order to prevent the
reactivation of the tuberculosis the applicant was assigned to the
SME. He received in-patient treatment based on the DOTS programme of
the WHO from 3 February to 29 March 2005. This treatment was stopped
because the applicant refused to continue with it.
- In
January 2006 the applicant was assigned to the SME for examination.
The applicant was examined on 11, 12 and 13 January 2006 and all the
results were negative. He had clinical, laboratory and X-ray
examinations in the presence of an ICRC representative. In November
2006 he was again assigned to the SME and had clinical, laboratory
and X-ray examinations. The results of the examinations were negative
and he was prescribed vitamins.
- In
2007 and 2008 the applicant’s state of health was satisfactory
and he was prescribed medication.
- In
November 2009, the applicant was again examined. According to this
examination, the medical treatment he was receiving for his
tuberculosis was adequate and efficacious and the applicant had only
limited residual symptoms of tuberculosis.
- The
Government submitted that the conditions of treatment in the SME met
all the WHO standards. In this respect, they refered to the WHO Green
Light Committee’s reports of 2005 and 2007.
F. The civil proceedings concerning the alleged lack of
adequate medical assistance in Bayil Prison
- On
23 February 2007 the applicant lodged a civil action against the
Bayil Prison authorities, seeking compensation for damage to his
health. He claimed that the prison authorities were directly
responsible for his having contracted tuberculosis, taking into
account the poor conditions of detention and the fact that he had
been held in the same cells as inmates with tuberculosis.
- In
support of his claim, he submitted written statements by other
inmates who had previously been detained in Bayil Prison. He also
asked the court to hear some former inmates detained in Bayil Prison
at the hearings. The applicant further asked the court to ensure his
presence at the hearings.
- On
29 May 2007 the Sabail District Court dismissed the applicant’s
claim, finding that the applicant had failed to prove that he had
been deliberately placed in a cell with inmates who were ill and had
contracted tuberculosis as a result. The court further held that, in
such circumstances, the Bayil Prison authorities could not be
considered to have ill-treated the applicant in any way. The
applicant was not personally present at the hearing, but was
represented. The judgment was silent as to the applicant’s
request on his attendance at the hearing.
- The
applicant lodged an appeal reiterating his complaints and his request
to attend the hearing personally.
- On
30 November 2007, having examined the case in the absence of the
applicant but in the presence of his representative, the Baku Court
of Appeal dismissed the applicant’s appeal, finding that his
arguments were unsubstantiated. The appellate court judgment was
however silent as to the applicant’s specific request to attend
the hearings.
- On
18 March 2008 the applicant lodged a cassation appeal, reiterating
his previous complaints.
- On
20 June 2008 the Supreme Court dismissed the applicant’s appeal
and upheld the Baku Court of Appeal judgment. The Supreme Court noted
that there was no violation of material or procedural law which could
be a reason to quash the impugned judgment. The proceedings before
the Supreme Court had been held in the applicant’s absence, but
in the presence of his lawyer. The Supreme Court’s decision was
silent as to the applicant’s request for leave to appear.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Law of 14 July 2000 on the Enactment and Entry into
Force of the Code of Criminal Procedure of the Republic of Azerbaijan
and Related Legal Regulatory Issues (“the Transitional Law”)
and the Code of Criminal Procedure (CCrP)
- Article
7 of the Transitional Law reads as follows:
“Judgments and other final decisions delivered by
first-instance courts under the [old] Code of Criminal Procedure ...
before the entry into force of this [new] Code, may be reconsidered
by an appellate court or the Supreme Court of the Republic of
Azerbaijan in accordance with Articles 383-407, 409-427 or 461-467 of
the [new] Code of Criminal Procedure.”
- Articles
383-407 of the CCrP provide for general rules for lodging an appeal
against the first-instance courts’ judgments with the appellate
courts. In this respect, Article 384 of the CCrP provides that an
appeal is lodged by a person who is entitled to lodge an appeal
within 20 days following the delivery of the first-instance court’s
judgment. As to Articles 409-427 and 461-467, they establish the
procedure for lodging a cassation appeal and the reopening of the
domestic proceedings on the basis of newly discovered facts. Article
410 of the CCrP establishes different time-limits for lodging a
cassation appeal depending on the gravity of the crime for which the
accused person was convicted and the content of the claim of the
accused person. Article 410.1.4 provides that when a cassation appeal
is against a conviction on the grounds of the
innocence of the convicted person or the need to apply the law on a
less serious offence, it should be lodged within 18 (eighteen) months
following the delivery of the court judgment.
- The
appellate courts have a competence to examine criminal cases and
other matters related to criminal prosecution based on appellate
complaints or protests against judgments and other decisions of
first instance courts (Article 72 of the CCrP). The Supreme
Court is a court of cassation instance concerning criminal cases and
other matters related to criminal prosecution (Article 73 of the
CCrP).
- Upon
the receipt of an appeal lodged with the Supreme Court, a judge of
the Supreme Court examines the appeal in question within three
months. If the cassation appeal was lodged in accordance with the
procedural requirements, the Supreme Court examines the appeal on
merits and delivers a decision in which it should provide full
reasons for upholding or quashing of the lower court’s judgment
or decision (Article 419 of the CCrP). However if the procedural
requirements for lodging a cassation appeal are not complied with
(e.g. the applicant is not entitled to lodge a cassation appeal, the
applicant did not attach to his application a copy of the judgment or
decision against he appeal etc.), the Supreme Court can leave the
cassation appeal without examination (Article 415 of the CCrP). In
this case, the judge of the Supreme Court delivers either a decision
on “leaving without examination” the cassation appeal or
gives an additional period of from 10 to 20 days to the applicant to
comply with the procedural requirements (Article 418 of the CCrP).
B. The applicant’s participation in civil
proceedings
- Parties
to civil proceedings may appear before a court in person or act
through their representative (Articles 47, 49 and 69 of the Code of
Civil Procedure (“the CCP”)).
- The
Code on Execution of Punishments (“the CEP”) provides
that a convicted person may be transferred from a prison to an
investigative unit if his participation is required as a witness,
suspect or accused in connection with certain investigative measures
(Article 69-1). The CEP is silent as to the possibility for a
convicted person to take part in civil proceedings, whether as a
plaintiff or a defendant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE APPLICANT’S ABSENCE IN THE CIVIL
PROCEEDINGS
- The
applicant complained under Article 6 of the Convention that the
domestic courts had not ensured his attendance at the hearings in the
proceedings concerning his complaint of lack of adequate medical
assistance in Bayil Prison. He maintained that his presence would
have been particularly important having regard to the fact that the
domestic courts had ignored the written statements of former inmates
and had not heard some former inmates detained in Bayil Prison at
those hearings. The relevant part of Article 6 § 1 of the
Convention reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’
submissions
- The
Government submitted that the applicant had been represented at the
hearings before the domestic courts by his representative and that
the adversarial principle of the proceedings had been respected. The
Government further noted that the written statements on behalf of the
applicant made by other prisoners had not been duly notarised and
therefore, these statements could not be considered as evidence.
- The
applicant maintained his complaints noting that despite his request
his attendance at the hearings before the domestic courts had not
been ensured. He also submitted that the courts’ failure to
examine the written witness statements and to hear witnesses on his
behalf proved the necessity of his presence.
2. The Court’s assessment
- The
Court reiterates that the principle of adversarial proceedings and
equality of arms, which is one of the elements of the broader concept
of a fair hearing, requires that each party be given a reasonable
opportunity to have knowledge of and comment on the observations made
or evidence adduced by the other party and to present his case under
conditions that do not place him or her at a substantial disadvantage
vis-à-vis his or her opponent (see Krčmář
and Others v. the Czech Republic, no. 35376/97, § 39,
3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 33, Series A no. 274). The Court also
reiterates that Article 6 of the Convention does not guarantee the
right to attend a civil court in person, but rather a more general
right to present one’s case effectively before a court and to
enjoy equality of arms with the opposing side. Article 6 § 1
leaves to the State a choice of the means to be used in guaranteeing
litigants these rights (see Steel and Morris v. the United
Kingdom, no. 68416/01, §§ 59-60, ECHR 2005-II).
- The
Court notes that it has previously found a violation of Article
6 in a case where a court refused leave to appear to an imprisoned
applicant who had wished to make oral submissions on his claim in the
civil proceedings. In that case, despite the fact that the applicant
was represented, the Court considered it relevant that his claim
concerning ill-treatment had largely been based on his personal
experience and that his submissions would therefore have been “an
important part of the plaintiff’s presentation of the case and
virtually the only way to ensure adversarial proceedings” (see
Kovalev v. Russia, no. 78145/01, § 37, 10 May
2007). The Court has adopted the same approach in other cases
underlining the importance of the applicant’s personal
experience for his attendance at hearings when the proceedings
concern the conditions of detention in prison, ill-treatment or
unlawful detention of the applicants (see, inter alia,
Shilbergs v. Russia, no. 20075/03, § 111, 17
December 2009).
- Turning
to the circumstances of this case, the Court observes that the
Azerbaijani CCP provides for the plaintiff’s right to appear in
person before a civil court hearing his claim. However, neither the
CCP nor the CEP makes special provision for the exercise of that
right by individuals who are in custody, whether they are in
pre-trial detention or are serving a sentence.
- In
the present case the applicant’s requests for leave to appear
were ignored by the domestic courts without any explanation. In this
connection, the Court cannot lose sight of the fact that the domestic
courts had also ignored the request of attendance of former inmates
at the hearings and the written statements made by other inmates who
had first-hand knowledge and shared to some extent the applicant’s
personal experience. In these circumstances, the Court considers it
necessary to reiterate that the effect of Article 6 § 1 is,
inter alia, to place a “tribunal” under a duty to
conduct a proper examination of the submissions, arguments and
evidence, without prejudice to its assessment or to whether they are
relevant for its decision, given that the Court is not called upon to
examine whether arguments are adequately met (see Buzescu v.
Romania, no. 61302/00, § 63, 24 May 2005, and Grădinar
v. Moldova, no. 7170/02, § 107, 8 April 2008).
- Moreover,
the Court is not convinced by the Government’s argument that
the appearance of the applicant’s representative before the
domestic courts had secured the effective, proper and satisfactory
presentation of the applicant’s case. In this respect, the
Court observes that the applicant’s claim for compensation
resulting from the alleged lack of medical assistance during his
detention in prison was, to a large extent, based on his personal
experience. The Court considers that his testimony describing the
conditions relating to his medical treatment of which the applicant
himself had first hand knowledge, would have constituted an
indispensable part of the plaintiff’s presentation of the case.
Only the applicant could, by testifying in person, substantiate his
claim for compensation and answer the judges’ questions, if any
(see, mutatis mutandis, Kovalev, cited above, § 37).
- Finally,
as to the fact that the applicant was serving a prison sentence, the
Court is mindful of other possibilities which were open to the
domestic courts as a way of securing the applicant’s
participation in the proceedings. They could for example have secured
a hearing in the establishment where the applicant was serving his
sentence (see, mutatis mutandis, Shilbergs, cited
above, § 109). However, the domestic courts did not consider
these options.
- There
has accordingly been a violation of Article 6 § 1
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE DOMESTIC COURTS’ FAILURE TO
EXAMINE THE APPLICANT’S APPEAL AGAINST HIS CRIMINAL CONVICTION
- Relying
on Article 6 of the Convention and Article 2 of Protocol No. 7
to the Convention, the applicant complained that the domestic courts’
failure to examine his appeal against his criminal conviction, lodged
under the Transitional Law, had violated his right of access to court
and right of appeal in criminal matters. The Court has examined the
applicant’s complaint under Article 6 of the Convention, which
in the relevant parts reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Government alleged that the applicant’s complaint concerning
the domestic courts’ refusal to examine his appeal against his
conviction had been submitted out of time. In this regard, the
Government submitted that the Supreme Court’s letter of 1
September 2005 was an official refusal by the domestic courts to
examine the applicant’s appeal. Therefore, the applicant had
not complied with the six-month rule, because he lodged his
application with the Court only in August 2006.
- The
applicant contested the Government’s objections and reiterated
his complaints. In particular, he argued that he had not considered
the Supreme Court’s letter of 1 September 2005, signed by a
court clerk, to be a court decision, and he had waited for a formal
decision of the Supreme Court.
- The
Court observes that the Government’s objection relating to the
compliance of the applicant’s complaint with the six-month rule
is inextricably linked to the merits of the complaint under Article 6
§ 1 of the Convention and that it could not be detached from it.
Accordingly, the Court will examine the Government’s objection
in the context of the applicant’s complaint under Article 6 §
1 and will address that complaint first.
- The
Court further notes that this complaint is not otherwise manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the applicant lodged his appeal with the
domestic courts without respecting the time limits defined by the
CCrP. The applicant lodged his appeal for the first time in January
2005, however the Transitional Law and the CCrP were adopted in 2000.
In this respect, the Government argued that an appeal lodged in
accordance with the Transitional Law should be filed immediately
after the entry into force of the CCrP which was on 1 Sepetmeber
2000. Therefore, the time limits established in the CCrP for lodging
an appeal should be calculated from 1 September 2000.
- As
to the examination of the cases of certain other convicted persons
who were in a position similar to the applicant’s, notably
those of Mr I. Gamidov, Mr A. Hummatov and
Mr R. Gaziyev, the Government submitted that their cases
were re-examined in 2002.
- The
applicant rejected the Government’s interpretation of the
Transitional Law. In particular, he argued that the law was not clear
on this issue and relied on different cases of certain other
convicted persons who were in a position similar to the applicant’s,
noting that the cases of some of them (R. Gaziyev and A. Hummatov)
were re-examined in 2002, other’s (E. Amiraslanov and S.
Poladov) in 2004 and another’s (R. Maksimov) in 2005.
2. The Court’s assessment
- The
Court reiterates that the right to court, of which the right of
access constitutes one aspect, is an element which is inherent in the
right stated by Article 6 § 1 of the Convention (see Golder
v. the United Kingdom, judgment of 21 February 1975, Series A no.
18, p. 18, § 36). This right is not absolute but may be
subject to limitations permitted by implication, particularly
regarding the conditions of admissibility of an appeal (see
Ashingdane v. the United Kingdom, judgment of 28 May 1985,
Series A no. 93, pp. 24-25, § 57). Nevertheless, the
limitations applied must not restrict the access left to the
individual in such a way or to such an extent that the very essence
of the right is impaired. They must pursue a legitimate aim and there
must be a reasonable relationship of proportionality between the
means employed and the aim sought to be achieved (see, among other
authorities, Khalfaoui v. France, no. 34791/97, § 35,
ECHR 1999 IX; Fayed v. the United Kingdom, judgment of 21
September 1994, Series A no. 294-B, pp. 49-50, § 65; and
Bellet v. France, judgment of 4 December 1995, Series A
no. 333-B, p. 41, § 31).
- The
Court observes that in the present case it is not disputed by the
parties that the applicant had the right to lodge an appeal in
accordance with the Transitional Law against his previous conviction
and he lodged an appeal in this respect in 2005. However, the parties
are in dispute as to the question whether the applicant’s
appeal was considered by the Supreme Court and the latter’s
letter of 1 September 2005 could be considered as a final decision.
The other question disputed by the parties is whether the applicant
respected the time limits applicable for lodging an appeal under the
Transitional law, when he had lodged his appeal.
- As
to the first question which constitutes at the same time the
Government’s preliminary objection, the Court observes that the
act complained of by the applicant, namely the domestic courts’
refusal to examine his appeal against his criminal conviction, took
place for the first time on 15 March 2005 when the Court of Appeal
refused, by a letter, to hear the applicant’s appeal, noting
that he should apply to the Supreme Court. The applicant complained
to the Supreme Court about this letter. By a letter of 19 May 2005,
the Supreme Court ignored the applicant’s appeal against his
conviction, noting that the Court of Appeal had misinterpreted the
relevant law. Following a further complaint by the applicant, by a
letter of 1 September 2005 the Supreme Court noted that the applicant
should apply to a first-instance court regarding the commutation of
the death penalty. However, the letter was silent as to his appeal
against his criminal conviction in 1991.
- In
these circumstances, the Court cannot accept the Government’s
argument according to which the Supreme Court’s letter of 1
September 2005 was an official refusal by the domestic courts to
examine the applicant’s appeal and that therefore, the
applicant had not complied with the six-month rule. In this
connection, the Court notes that there was no formal judicial
decision on the applicant’s appeal against his conviction. In
particular, the Court has already found that under the domestic law a
letter signed by a court clerk does not constitute a formal and
binding judicial decision of a court (see Hajiyev v. Azerbaijan,
no. 5548/03, § 36, 16 November 2006). Under the Azerbaijani
law, a cassation appeal lodged with the Supreme Court can be rejected
or adopted by a reasoned decision of the Supreme Court and not by a
letter signed by a clerk (see paragraph 57 above). Moreover, the
Supreme Court’s letter of 1 September 2005 was silent as to the
applicant’s appeal against his conviction.
- In
consequence, the Court considers that the Supreme Court’s
letter of 1 September 2005 cannot be considered as a final decision
of the Supreme Court in the present case and the applicant had had
reasonable grounds to wait for an official decision of the Supreme
Court on his complaint.
- As
to the question that the applicant’s appeal against his
conviction was not lodged within the time-limits for lodging of an
appeal under the Transitional Law, the Court reiterates that it is
primarily for the national authorities, notably the courts, to
resolve problems of interpretation of domestic legislation. This
applies in particular to the interpretation by courts of rules of a
procedural nature such as the prescribed manner and prescribed time
for lodging appeals. The Court’s role is confined to
ascertaining whether the effects of such an interpretation are
compatible with the Convention (see Platakou v. Greece, no.
38460/97, § 37, ECHR 2001 I).
- In
the present case, however, as stated above, there was no formal
judicial decision in the applicant’s case that would interpret
the relevant provision of the Transitional Law. Furthermore, the
Government have not submitted any other publicly available domestic
judicial interpretation of the relevant provision of the Transitional
Law concerning the time-limits for lodging an appeal under the
Transitional Law, which would make the applicant aware of the fact
that he had possibly made a procedural error in filing his appeal.
The Court further does not lose sight of the fact that the cases of
certain other convicted persons who were in a position similar to the
applicant were re-examined by the Supreme Court under the
Transitional Law in different years without any consideration in
respect of the ordinary time-limits for lodging of an appeal (see
paragraphs 77-78 above).
- In
any event, the Court notes that under Azerbaijani law if an appeal
lodged with the Supreme Court fails to comply with the procedural
rules concerning lodging of an appeal, the Supreme Court must issue a
decision on refusal to admit the appeal in question. However, in
the present case the domestic courts failed to either deal with the
applicant’s appeal and institute appellate proceedings or
formally reject the appeal due to non-compliance with the procedural
requirements for lodging of an appeal. As noted above, the letter of
1 September 2005 signed by a clerk working in the Supreme Court does
not constitute, under the domestic law, a formal judicial decision of
that court.
- The
Court reiterates that the Convention is intended to guarantee not
rights that are theoretical or illusory but rights that are practical
and effective. This is particularly so of the right of access to the
courts in view of the prominent place held in a democratic society by
the right to a fair trial (see Airey v. Ireland, judgment of 9
October 1979, Series A no. 32, pp. 12 13, § 24).
- In
the light of the foregoing considerations, the Court concludes that
the applicant was denied access to a court in order to have his
conviction reviewed in accordance with the provisions of the
Transitional Law. Accordingly, the Court dismisses the Government’s
preliminary objection and holds on the merits that there has been a
violation of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. Complaint concerning the applicant’s
conditions of detention in Gobustan Prison
- The
applicant complained that the conditions of his
detention in Gobustan Prison were harsh and amounted to
ill-treatment. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government submitted that the applicant had failed to exhaust
domestic remedies in respect of his complaint concerning the
conditions of detention in prison. In particular, he had the
possibility to complain against an act or omission of the
penitentiary authorities under the procedure established by the Law
On Complaints against Acts and Omissions Infringing Individual Rights
and Freedoms, the Civil Code or the Code on Enforcement of
Punishments. The Government also rejected the applicant’s
allegation, noting that the conditions of detention in Gobustan
Prison met the standards established by the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment.
- The
Court recalls at the outset that the part of this complaint which
relates to events that occurred prior to 15 April 2002, the date of
the Convention’s entry into force with respect to Azerbaijan,
has already been declared inadmissible by the Court by its partial
decision of 24 September 2009.
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 of the Convention obliges those seeking to
bring their case against the State before the Court to first use the
remedies provided by the national legal system, thus dispensing
States from answering before an international body for their actions
before they have had an opportunity to put matters right through
their own legal systems. In order to comply with this rule, normal
recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged (see Aksoy v. Turkey, 18 December 1996, §§ 51-52,
Reports of Judgments and Decisions 1996-VI, and Akdivar and
Others v. Turkey, 16 September 1996, §§ 65-66, Reports
1996 IV).
- The
Court observes that the applicant has never raised the complaint
concerning the conditions of his detention in Gobustan Prison before
any domestic authority. Moreover, the applicant did not make a
submission as to whether there were special circumstances in the
present case which would dispense him from the obligation to complain
about the conditions of his detention before the domestic authorities
or courts. In this respect, the Court notes that, in similar cases
against Azerbaijan, it has already found that the Law On Complaints
against Acts and Omissions Infringing Individual Rights and Freedoms
provides for a judicial avenue for challenging any act or omission by
a public authority infringing an individual’s rights or
freedoms. Both Article 46 of the Constitution of the Republic of
Azerbaijan and Article 3 of the Convention, which is directly
applicable in the domestic legal system, prohibit inhuman and
degrading treatment. Therefore, relying on these provisions, the
applicant could complain about the conditions of his detention.
However, the applicant has not attempted to do so. In this
connection, the Court reiterates that mere doubts about the
effectiveness of a remedy are not sufficient to dispense with the
requirement to make normal use of the available avenues for redress
(see Mammadov v. Azerbaijan, no. 34445/04, § 52, 11
January 2007, and Kunqurova v. Azerbaijan (dec.), no. 5117/03,
3 June 2005).
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
B. Complaint concerning the lack of medical assistance
in Gobustan Prison
- The
applicant complained that he had contracted
tuberculosis in detention and had not been provided with adequate
medical assistance in Gobustan Prison. Article 3
of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government submitted that the applicant had failed to exhaust
domestic remedies in respect of his complaint concerning the alleged
lack of medical assistance in Gobustan Prison, in which he has been
detained since 1998. The Government also noted that the applicant’s
complaint was unsubstantiated, because he had in fact been provided
with adequate medical treatment during his detention in prison.
- The
Court recalls that the part of the complaint concerning the alleged
lack of medical assistance in Gobustan Prison prior to 15 April 2002,
was declared incompatible ratione temporis with the provisions
of the Convention within the meaning of Article 35 § 3 and
rejected in accordance with Article 35 § 4 by the
Court’s partial decision of 24 September 2009.
- As
to the events concerning the provision of adequate medical assistance
to the applicant occurred after 15 April 2002, the
Court reiterates its view as set out in § 92 above. The
Court notes that the applicant has never raised a complaint of lack
of medical assistance in Gobustan Prison before any domestic
authority. The Court further observes that the applicant did not
state whether there were special circumstances in the present case
which would dispense him from the obligation to complain about the
alleged lack of medical assistance in Gobustan Prison to the domestic
authorities or courts. The Court reiterates again that mere doubts
about the effectiveness of a remedy are not sufficient to dispense
with the requirement to make normal use of the available avenues for
redress (see Mammadov, cited above, § 52, and
Kunqurova v. Azerbaijan (dec.), no. 5117/03, 3 June 2005).
- It
follows that this part of the complaint must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
- The
applicant claimed a total of 21,600 euros (EUR) in respect of
pecuniary damage. He submitted in this regard that he had spent money
on tuberculosis medicine and food products for his medical treatment
in prison.
- The
applicant also claimed an annual EUR 1,200 pecuniary damage for his
future provision with special food and appropriate treatment.
- The
Government contested the claim, noting that the applicant had failed
to substantiate his claims.
- The
Court does not discern any causal link between the violation found
and the damage alleged by the applicant. Therefore, the Court rejects
the applicant’s claim in respect of pecuniary damage.
2. Non-pecuniary damage
- The
applicant claimed EUR 20,000 in respect of non pecuniary damage.
- The
Government submitted that the applicant’s claim was
unsubstantiated and excessive.
- The
Court considers that the applicant has suffered non-pecuniary damage
which cannot be compensated solely by the finding of violations, and
that compensation should thus be awarded. Making its assessment on an
equitable basis, as required by Article 41 of the Convention, the
Court awards the applicant the sum of EUR 4,800 under this head, plus
any tax that may be chargeable on this amount.
B. Costs and expenses
- The
applicant also claimed EUR 2,000 for costs and
expenses incurred before the Court. This claim was not itemised or
supported by any documents.
- The
Government submitted that the applicant’s claim was
unsubstantiated and lacked the documentary evidence.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, having regard
to the fact that the applicant failed to produce any supporting
documents, the Court dismisses the claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6 § 1
concerning the applicant’s absence from the domestic
proceedings concerning the alleged lack of medical assistance in
Bayil Prison and under Article 6 § 1 concerning the domestic
courts’ failure to examine the applicant’s appeal against
his criminal conviction admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the applicant’s
absence from the domestic proceedings concerning the alleged lack of
medical assistance in Bayil Prison;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the domestic courts’
failure to examine the applicant’s appeal against his criminal
conviction;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 4,800 (four thousand and eight hundred
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable to the applicant on that amount, which is to be converted
into new Azerbaijani manats at the rate applicable on the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
