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FIRST
SECTION
CASE OF HAJIYEV v. AZERBAIJAN
(Application
no. 5548/03)
JUDGMENT
STRASBOURG
16
November 2006
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 Hajiyev v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Quesada, Deputy Section Registrar,
Having
deliberated in private on 24 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5548/03) 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 Fehmin Ahmedpasha oglu Hajiyev (Fəhmin
Əhmədpaşa oğlu Hacıyev; “the
applicant”), on 21 January 2003.
- The
applicant was represented by Mrs G. Iskenderova, a lawyer
practising in Baku. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr C. Asgarov.
- The
applicant alleged, in particular, that he had been deprived of the
right of access to court and to have a fair and public hearing of his
criminal case under Article 6 § 1 of the Convention.
Furthermore, he complained that he had suffered discrimination
contrary to Article 14 of the Convention, because the Court of Appeal
had examined the appeals of three other persons who had been in a
situation similar to his.
- The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
- By
a decision of 16 June 2005 the Court declared the application partly
admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Baku.
- The
applicant was an activist of the National Front, an organisation
which played one of the key roles in the country's struggle for
independence from the Soviet Union. In 1992, when the National Front
came into power in the country, he was appointed to a number of high
military posts and in 1993 he became the Commander of the Special
Police Force.
- After
the National Front lost political power in 1993, on 24 May 1994 the
applicant was arrested and detained on remand. Upon arrest,
allegedly, he was not informed of the charges against him and was
refused access to a lawyer. On 7 August 1995 the Military Chamber of
the Supreme Court, acting as a court of first instance, convicted the
applicant for attempted murder (ten years' imprisonment), abuse of
authority at wartime (eight years), intentional abuse of authority
(four years), misuse of weapons (two years), negligent approach to
military service (two years) and humiliation of a subordinate person
(one year and six months), and sentenced him to a total of ten years'
imprisonment by merging the sentences.
- On
26 June 1996 the same court, again sitting in first instance,
convicted the applicant for “failure to use authority to resist
the Armenian occupation of the town of Khojaly and prevent the
subsequent mass killing of the civilians fleeing the town”. The
court sentenced the applicant to fifteen years' imprisonment,
merging his previous ten-year sentence into this new sentence.
The imprisonment period was to be calculated from the first
day of the applicant's arrest on 24 May 1994.
Pursuant to the old criminal procedure law applicable at that
time, both Supreme Court judgments were final and not subject to
appeal.
- At
the time of Azerbaijan's admission to the Council of Europe, the
applicant's name appeared in the lists of “alleged political
prisoners” in Azerbaijan submitted to the experts of the
Secretary General. Azerbaijan had made a commitment to either release
or give a re-trial to all persons identified as “political
prisoners” by these experts. However, ultimately, the applicant
was not regarded as a political prisoner by the experts of the
Secretary General (see Cases of alleged political prisoners in
Armenia and Azerbaijan, SG/Inf (2001) 34, Addendum I, 24 October
2001, Chapter 2 (III), Case No. 10 (the applicant's name is
transliterated as “Fahmin Hadjiyev” in this document)).
- In
2000 a new Code of Criminal Procedure (hereinafter “CCrP”)
was adopted. Before its entry into force on 1 September 2000, on 14
July 2000 Parliament passed the Law On the Adoption and Entry into
Force of the Code of Criminal Procedure of the Republic of Azerbaijan
(hereinafter the “Transitional Law”), which allowed
lodging an appeal under the new CCrP against final judgments
delivered in accordance with the old criminal procedure.
- On
29 January 2002 the applicant lodged an appeal with the Court of
Appeal against the Supreme Court's judgments of 7 August 1995 and
26 June 1996. By a letter of 13 February 2002, the Court of
Appeal informed the applicant that, in addition to the appellate
complaint, he also had to file a petition in order to restore the
appeal period.
- According
to the applicant, he filed such a petition on 7 March 2002. Having
not received an answer, he appealed again on 7 June 2002 and yet
again on 7 October 2002. In reply to these applications, in its
identical letters of 24 October 2002 and 27 November 2002 signed by a
court clerk (the Head of the Correspondence Department of the Court
of Appeal), the Court of Appeal informed the applicant that his case
would be examined shortly by the Court of Appeal's Chamber on
Military Courts' Cases and that he would be informed of any further
developments in due course.
- However,
during the following period of over a year, despite the applicant's
continuous inquiries, no examination of the case took place and no
information in this regard was given to the applicant.
- Finally,
more than two years after lodging his appeal, by a letter of 31 March
2004 signed by the same court clerk, the applicant was informed that:
“... in accordance with Article 72.2 of the Code
of Criminal Procedure currently in force, the Court of Appeal may
only examine criminal cases ... based on appeals or protests against
first-instance courts' judgments and other decisions which have not
entered into force [i.e. have not become final]... For
re-consideration of the first instance judgments of the Supreme
Court's Military Chamber of 7 August 1995 and 26 June 1996 you are
advised to apply to the Supreme Court.”
- Although,
during the same period, the applicant was actively engaged in
correspondence with the Supreme Court with regard to unrelated
proceedings concerning the reduction of his sentence, the applicant
did not file a formal appeal with the Supreme Court concerning the
present case.
- On
10 May 2004 the applicant was pardoned and released from prison
pursuant to a presidential pardon decree.
II. RELEVANT DOMESTIC LAW
- Law
of 14 July 2000 on the adoption and entry into force of the Code of
Criminal Procedure of the Republic of Azerbaijan (the “Transitional
Law”)
Article 7: “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.”
- Code
of Criminal Procedure of the Republic of Azerbaijan of
1 September 2000
Article 72.1 provides that the Court of Appeal of
the Republic of Azerbaijan is a court of appellate instance
concerning criminal cases and other matters related to criminal
prosecution.
Article 72.2 provides that the Court of Appeal of
the Republic of Azerbaijan has 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 that have not entered into legal force.
Article 73.1 provides that the Supreme Court of
the Republic of Azerbaijan is a court of cassation instance
concerning criminal cases and other matters related to criminal
prosecution.
Article 73.2 provides that the relevant chambers
of the Supreme Court of the Republic of Azerbaijan have a competence
to examine criminal cases and other matters related to criminal
prosecution based on cassation complaints or protests against
judgments and other decisions of the appellate courts or jury courts.
Article 391.1 provides that the appellate court
must hold a preliminary hearing of the case within 15 days after the
receipt of an appellate complaint. The parties to the case and the
state prosecutor have a right to attend this hearing. These persons
must be informed in advance of the time and place of the hearing.
Article 391.2 provides that, during the initial
hearing, the appellate court must determine, inter alia, whether it
has competence to examine the appellate complaint and whether the
appellate complaint was submitted in accordance with the relevant
procedural requirements.
Article 391.3 provides that, upon the initial
hearing, the appellate court may decide, inter alia, to leave the
appellate complaint without examination, to forward the appellate
complaint to a court having appropriate competence, to reinstate or
refuse to reinstate the expired period for filing the appellate
complaint, to appoint a judicial hearing for examination of the
merits of the appellate complaint, or to refuse to admit the
appellate complaint for examination.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
- The
Government, by way of preliminary objection, argued that the
application should be rejected for failure to exhaust domestic
remedies, because the applicant failed to apply to the Supreme Court
and, instead, only applied to the Court of Appeal which had no
competence to deal with his appeal.
- In
its admissibility decision of 16 June 2005, the Court noted that this
question was inextricably linked to the merits of the complaint under
Article 6 § 1 of the Convention and that it could not be
detached from it. Specifically, the Court finds that the question
whether the applicant had a right to re-examination of his case and,
if so, whether such re-examination should have been carried out by
the Court of Appeal or by the Supreme Court is the same in substance
as the complaint submitted to the Court. Accordingly, the Court will
examine the Government's preliminary objection in the context of the
applicant's complaint under Article 6 § 1 and will address that
complaint first.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant submitted that he had been deprived of his right of access
to court because the Court of Appeal had failed to examine his
appellate complaint. Article 6 § 1 of the Convention provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. Arguments of the parties
- The
Government submitted that the Court of Appeal had no competence to
reconsider the final judgments of 7 August 1995 and 26 June 1996 in
accordance with the new rules of criminal procedure. Instead, the
applicant should have filed his appeal with the Supreme Court. In
this regard, the Government appeared to endorse the position
expressed in the letter of the Court of Appeal's court clerk of 31
March 2004 (see paragraph 16 above).
- As
to the applicant's counter-argument that the Court of Appeal had
actually examined 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 (alternatively spelled as
“Gumbatov”) and Mr R. Gaziyev, the Government
maintained that the applicant's case was distinguishable from the
cases of these convicted persons. Specifically, the Government
stressed that all of the latter had been recognised as “political
prisoners” by the experts of the Secretary General of the
Council of Europe and therefore had been granted a “new trial”
following Azerbaijan's commitments undertaken upon its admission to
the Council of Europe. On the other hand, the applicant was not
ultimately recognised as a “political prisoner” and
therefore the Azerbaijani authorities were not under a commitment to
give him the same type of “new trial” as the
above mentioned three persons. Furthermore, the Government also
noted that the Court of Appeal had examined the cases of Mr Gamidov,
Mr Hummatov and Mr Gaziyev based on a protest by the
Prosecutor General of the Republic of Azerbaijan, whereas in the
applicant's case no such protest had been filed.
- The
applicant noted, at the outset, that the letter of the Court of
Appeal's clerk, on which the Government relied, was issued only on
31 March 2004, i.e. after the respondent Government had been
informed about the present application on 10 February 2004. The
applicant stressed that he had not received any replies rejecting his
appeal before that date and that this letter of 31 March 2004 was
sent to him in an attempt to “disguise” the Court of
Appeal's failure to deal with his appeal.
- The
applicant disagreed with the Government's assertion that he had to
apply to the Supreme Court for re-consideration of his case and
claimed that this assertion was based on a deliberate
misinterpretation of the domestic law. He argued that Article 72.2 of
the CCrP, referred to in the letter of the Court of Appeal's clerk
dated 31 March 2004, applied only to appeals from first-instance
judgments delivered after the CCrP's entry into force on
1 September 2000. Therefore, this provision could not serve
as a basis to deny him access to the Court of Appeal for examination
of his appeal.
- The
applicant further maintained that Article 7 of the Transitional Law
expressly provided for the right to a re-examination “by an
appellate court or the Supreme Court” of the final
first-instance judgments delivered before the entry into force of the
new CCrP on 1 September 2000. The same Law further prescribed that
such a re-examination must be carried out in accordance with the
provisions of the new CCrP concerning appellate and cassation
proceedings. In accordance with the new CCrP, any appeals against
first-instance judgments must be filed with the appellate court (in
this case, the Court of Appeal) and must be examined on the points of
fact and law. The Supreme Court, being a court of cassation, may only
examine cassation appeals on points of law against the judgments of
appellate courts.
- Accordingly,
the applicant contended that, in accordance with the domestic
procedural rules, the examination of his appeal was within the
competence of the Court of Appeal. The Supreme Court, in its turn,
only had the competence to deal with a further cassation complaint
(if such a complaint were to be filed) against the Court of Appeal's
judgment delivered after the appellate proceedings.
- The
applicant also submitted that, according to Article 391 of the CCrP,
the Court of Appeal was required to institute the appellate
proceedings and hold an initial hearing of his criminal case within
15 days from the receipt of his complete appellate complaint.
However, despite this requirement and despite his repeated requests,
no formal proceedings have been instituted.
- Finally,
in support of his position, the applicant maintained that the Court
of Appeal had actually examined the appeals of Mr I. Gamidov,
Mr A. Hummatov and Mr R. Gaziyev, all of whom were in
a situation identical to the applicant's. Specifically, they had been
similarly convicted by the Supreme Court sitting in first instance
before the entry into force of the new CCrP. Their cases, however,
had been admitted and examined by the Court of Appeal on points of
fact and law based on the right of appeal granted by the Transitional
Law, after the entry into force of the new CCrP.
B. The Court's assessment
- The
Court notes that the present case involves a very specific situation
stemming from the recent reforms in the Azerbaijani criminal
procedure law. In particular, the Court observes that the applicant's
original trial was outside the Court's temporal jurisdiction (see the
admissibility decision of 16 June 2005) and that, at the time of his
conviction, there was no appeal available to him under the old rules
of criminal procedure. However, the new CCrP, adopted after the
applicant's conviction, introduced a new court system which is
currently in effect and which comprises the courts of first,
appellate and cassation instance. At the same time, the Transitional
Law afforded the applicant the possibility to file an appeal under
this new system. The Court considers that the applicant's right to
have his case re-examined on appeal under these new rules of criminal
procedure was protected by the fundamental guarantees contained in
Article 6 of the Convention (see, mutatis mutandis,
Delcourt v. Belgium, judgment of 17 January 1970, Series A no.
11, p. 14, § 25; and Monnell and Morris v. the United
Kingdom, judgment of 2 March 1987, Series A no. 115, p. 21,
§ 54).
- The
Court recalls 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, p.
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 the main question disputed by the parties is at
which level of jurisdiction the applicant's appeal should have been
examined. Specifically, the Transitional Law stated that such an
appeal may be examined “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”.
Arguably, this wording of the Transitional Law is open to different
interpretations and does not seem to specify exactly which court –
the Court of Appeal or the Supreme Court – had the competence
to examine the applicant's appeal.
- In
this connection, 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, there was no formal judicial decision in
the applicant's case that would interpret the relevant provision of
the Transitional Law. The letter of 31 March 2004 signed by a clerk
working in the Court of Appeal does not constitute a formal and
binding judicial decision of that court. Under the Azerbaijani law,
it was not for the court clerk to assess the appeal's prospects of
success; it was for the Court of Appeal itself to determine the issue
of the appeal's admissibility (see Article 391.2 of the CCrP).
In any event, the letter of 31 March 2004 does not even contain any
references to the Transitional Law and, therefore, cannot be
considered as a source of its interpretation. The Court also cannot
but notice that the legal reasoning contained in the letter of 31
March 2004 manifestly contradicts the Transitional Law which
specifically granted the right of appeal from first-instance
judgments which had already become final before the entry into force
of the new CCrP.
- Furthermore,
the Government have not submitted any other publicly available
domestic judicial interpretation of the relevant provision of the
Transitional Law concerning the domestic courts' competence to hear
the applicant's appeal, which would make the applicant aware of the
fact that he had possibly made a procedural error in filing his
appeal with the wrong judicial organ. It therefore follows that the
Government have failed to support their claim that the applicant's
appeal was within the competence of the Supreme Court with any
legally binding domestic judicial interpretation of the criminal
procedure law.
- In
the absence of a ruling by the domestic courts on this subject, the
Court will not attempt to substitute its own interpretation of the
domestic law for that of the domestic courts. Instead, the Court will
proceed by determining whether, at the time of lodging his appellate
complaint, the applicant was afforded sufficient safeguards to
prevent a misunderstanding as to the procedures for making use of the
available remedy under the Transitional Law (see, mutatis
mutandis, F.E. v. France, judgment of 30 October
1998, Reports of Judgments and Decisions 1998 VIII, p.
3350, § 47; and Bellet, cited above, p. 42, § 37).
- The
Court considers that the applicant's understanding of the system must
be assessed at the time when he tried to make use of the remedy in
question. As mentioned above, the Transitional Law provided for a
right to have his case re-examined by “the appellate court or
the Supreme Court”. This wording of the Transitional Law, in
itself, could not reasonably give the applicant a clear understanding
that his appeal was within the competence of the Supreme Court as a
cassation instance, thus bypassing the appellate instance which was
ordinarily available to other convicted persons under the new
criminal procedure introduced by the new CCrP.
- The
applicant lodged his full appellate complaint on 7 March 2002.
Despite the fact that he re-submitted his appeal several times
thereafter, it has neither been examined on the merits nor rejected
by a formal court decision due to lack of the Court of Appeal's
competence to hear the appeal. Moreover, following the applicant's
continuous inquiries, he was twice re-assured by letters from the
Court of Appeal's clerk of 24 October and 27 November 2002 that
his case would be examined shortly. Until 31 March 2004, more than
two years after the time of lodging his appeal, the applicant had not
been specifically informed by the Court of Appeal of the fact that
the appeal was within the competence of the Supreme Court, and not
the Court of Appeal. On the contrary, he was led to believe that his
case was actually pending examination in the Court of Appeal, albeit
with a significant delay.
- The
Court further notes that, during the same period, the cases of three
other persons, who appeared to be in a comparable position from a
procedural standpoint, were actually examined under the appellate
procedure by the Court of Appeal pursuant to the same provision of
the Transitional Law. This fact is undisputed by the Government.
- The
Court is not convinced by the Government's argument that these three
cases were distinguishable from the applicant's case to any
significant degree. Although, unlike the applicant, Messrs Gamidov,
Hummatov and Gaziyev had been recognised as “political
prisoners” to whom the Azerbaijani authorities were under the
commitment to grant a “new trial”, such new trial was
carried out in the form of ordinary appellate proceedings in
accordance with the procedure prescribed by the Transitional Law and
Articles 383-407 of the new CCrP. The domestic law, including the
relevant provisions of the Transitional Law and the new CCrP,
provides for the same procedure for all appeals and does not
differentiate between cases of persons recognised as “political
prisoners” and persons who have not been recognised as such.
Moreover,
the Government's argument that in those cases the appellate
proceedings were instituted based on an initial protest by the
Chief Prosecutor, and not an appellate complaint by the defendant, is
irrelevant and cannot lead the Court to a different conclusion.
Article 72.2 of the CCrP specifies that the appellate proceedings may
be instituted based either on an appellate complaint (by the
defendant) or a protest (by the relevant official on behalf of
the prosecution). Accordingly, the competence of the Court of Appeal
to hear a specific case on appeal does not depend on whose motion the
appellate proceedings are instituted, as long as such motion is of
the type allowed by law (in the present case, either an appellate
complaint or protest).
- In
such circumstances, the Court concludes that, given the ambiguity of
the Transitional Law and the absence of a clear domestic judicial
interpretation of its relevant provisions, as well as the existence
of at least three domestic precedents where the re-consideration of
cases based on the Transitional Law had been carried out by the Court
of Appeal, it was reasonable for the applicant to believe that it was
for the Court of Appeal to examine his appellate complaint.
- Moreover,
the Court notes that, according to Articles 391.1 and 391.2 of the
CCrP, even if the appeal does not fall under the Court of Appeal's
competence or is inadmissible for any other reason (e.g. the expiry
of an appeal period), the Court of Appeal must hold a preliminary
hearing within 15 days after the receipt of an appellate complaint
and determine whether it has competence under the domestic law to
examine the appeal. Furthermore, in accordance with Article 391.3 of
the CCrP, if the Court of Appeal finds that it has no such
competence, it must issue a decision on refusal to admit the appeal
for examination and/or refer it to a competent court. Accordingly,
even if the Court of Appeal were to find that it had no competence to
hear the applicant's appeal on the merits, it was still obliged under
the domestic law to hold a preliminary hearing and adopt a decision
on the inadmissibility of the appeal within 15 days of receipt of the
applicant's appellate complaint.
- However,
for more than two years, the Court of Appeal failed to either deal
with the applicant's appeal and institute appellate proceedings or
formally reject the appeal due to lack of competence. As noted above,
the letter of 31 March 2004 signed by a clerk working in the Court of
Appeal 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, p. 12 13, § 24).
At the time of lodging his appeal and during the following period of
at least two years, the applicant was not afforded sufficient
safeguards to prevent a misunderstanding of the procedure made
available to him under the Transitional Law and was led to believe
that his case would be examined by the Court of Appeal. In view of
the peculiarities of this case, the Court finds that it was for the
Court of Appeal to take steps to ensure that the applicant enjoyed
effectively the right to which he was entitled under the Transitional
Law. However, the Court of Appeal has failed to do so. The Court also
finds that, in such circumstances, the applicant could not be
required to apply to the Supreme Court.
- In
the light of the foregoing considerations, the Court concludes that
the applicant suffered a restriction in his right of access to a
court and, therefore, in his right to a fair trial.
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 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 6 § 1
- The
applicant complained that, because the Court of Appeal had actually
heard the cases of other persons in a similar situation, he had been
discriminated against in the exercise of his right of access to a
court guaranteed by Article 6 § 1 of the Convention,
in breach of Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The Court finds that the present complaint raises
issues which are essentially the same as those already examined above
in relation to Article 6 § 1 of the Convention.
Having regard to its findings in respect of that Article, the Court
considers it unnecessary to examine the complaint that the applicant
had suffered discrimination contrary to Article 14 of the Convention
(see, mutatis mutandis, Hentrich v. France, judgment of
22 September 1994, Series A no. 296 A, p. 24, § 66;
and Platakou, cited above, § 51).
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
- The
applicant claimed 17,000,000 euros (EUR) in respect of non pecuniary
damage, on the ground that he had been unfairly convicted and was not
given an opportunity to have the first-instance judgments
reconsidered on appeal. He alleged that, after he had been convicted,
he was widely perceived in Azerbaijani society as one of the parties
responsible for the Khojaly events. Thus, he and his family suffered
significant moral damage. Moreover, the fact that his appeal remained
unexamined by the Court of Appeal aggravated the moral suffering
inflicted upon him.
- The
Government pointed out that the damage claimed by the applicant did
not arise directly from the alleged violations which constituted the
subject of examination by the Court in the present case. Therefore,
the Government noted that the applicant could not claim any
compensation for the damage allegedly inflicted by the Supreme Court
judgments of 7 August 1995 and 26 June 1996.
- The
Court notes that the applicant's complaint relating to his allegedly
unfair conviction by the Supreme Court judgments of 7 August 1995 and
26 June 1996 was declared inadmissible by the Court in its decision
of 16 June 2005 due to its incompatibility ratione temporis
with the provisions of the Convention. Therefore, there is no ground
for awarding compensation for any moral damage suffered by the
applicant as a result of these judgments.
- In
respect of the violation found in the present judgment, given the
fact that the applicant suffered a restriction in his right of access
to court, the Court considers that the applicant must have suffered
feelings of frustration, uncertainty and anxiety which cannot be
compensated solely by the finding of a violation. Nevertheless, the
amount claimed is excessive. Making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court awards
the applicant the sum of EUR 3,000 in respect of moral damage, plus
any tax that may be chargeable on this amount.
B. Costs and expenses
- The
applicant claimed EUR 6,400 for costs and expenses, including legal
fees, transport costs incurred by the lawyer while visiting the
applicant in the Gobustan prison (which is located outside of Baku),
translation costs and postal expenses. In support of his claims, the
applicant submitted a number of receipts for payments made to his
lawyer through the period from 28 January 2003 to 13 February 2004,
receipts for postal expenses relating to his correspondence with the
Court, and a receipt from a translation company for the translation
of the correspondence and documents submitted to the Court. The
applicant claimed that he was not able to obtain documentary evidence
of all of his costs and expenses, such as transportation and other
expenses.
- The
Government argued that the amount claimed was excessive and not fully
supported by documentary evidence.
- According
to the Court's established case-law, costs and expenses would not be
awarded under Article 41 unless it is established that they were
actually and necessarily incurred and were also reasonable as to
quantum (see Sunday Times v. the United Kingdom (no. 1)
(Article 50), judgment of 6 November 1980, Series A no. 38,, p. 13,
§ 23). The Court notes that the documentary evidence produced by
the applicant only partially covers the total amount claimed.
Specifically, the applicant has submitted the proof of payment of
legal fees in the amount of 1,650,000 Azerbaijani manats (AZM)
(approximately EUR 290), postal expenses in the amount of AZM 617,155
and 211,37 United States dollars (USD) (approximately EUR 271), and
translation costs in the amount of AZM 10,050,000 (approximately EUR
1,175). Thus, a total amount of approximately EUR 2,276 in costs
and expenses is supported by the relevant evidence. However, having
regard to the applicant's claim that it was not possible to obtain
documentary evidence for certain expenses, and ruling on an equitable
basis as required by Article 41 of the Convention, the Court awards
the sum of EUR 2,500 plus any tax that may be chargeable, less the
sum of EUR 850 received in legal aid from the Council of Europe.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Dismisses the Government's preliminary objection
concerning Article 6 § 1 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that no separate examination is necessary
of the applicant's complaint under Article 14 of the Convention,
taken together with Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
sums to be converted into New Azerbaijani manats at the rate
applicable at the date of settlement:
i. EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable; and
ii. EUR
2,500 (two thousand five hundred euros) in respect of the costs and
expenses, less EUR 850 (eight hundred and fifty euros) granted by way
of legal aid, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 16 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Christos Rozakis
Deputy Registrar President
