FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34553/02 
by Latif GULIYEV and Cerulla RAMAZANOV 
against Azerbaijan

The European Court of Human Rights (First Section), sitting on 14 February 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs S. Botoucharova
 Mr A. Kovler
 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 6 September 2002,

Having regard to the partial decision of 9 September 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Latif Guliyev and Cerulla Ramazanov, are Azerbaijani nationals who, respectively, were born in 1947 and 1951 and live in Baku and Sumgayit. They were represented before the Court by Ms L. Claridge and Messrs M. Muller, T. Otty and K. Yildiz of the Kurdish Human Rights Project, lawyers practising in London. The respondent Government was 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.

The applicants were members of the Adalet (“Ədalət”) political party, which was in opposition to the ruling party. As it appears from the case file, at the time of the events in question, the applicants’ party was not registered with the Ministry of Justice and, therefore, its activity was deemed illegal by the authorities.

The party had a regional office in Sumgayit. According to the applicants, on 30 August 2001 some people related to the authorities removed from the office’s entrance door the signboard featuring the party’s name. On 10 September 2001 several police officers allegedly arrived in the office, destroyed some of the assets in the premises, forcefully expelled the party members from the premises and sealed up the office door.

On 19 September 2001 the police again unexpectedly arrived in the party’s office in Sumgayit and interfered with the meeting which was held there at that time. The police explained that they had been called by persons in the neighbourhood complaining of the disturbance and noise coming from the office. The meeting participants objected to such interference. Following a dispute between the policemen and the meeting participants, the police took ten men to the police station for search and interrogation. After a few hours of being held at the police station, all arrested were released except for the applicants and one other person.

On 22 September 2001 the investigation department of the Sumgayit City Police Station instituted criminal proceedings against the applicants and issued a bill of indictment, accusing the applicants of resistance to the police and violation of public order. On 23 September 2001 the Sumgayit City Court ordered the applicants’ detention on remand for one month pending trial. On 28 September 2001 the Court of Appeal upheld the detention order.

On 24 December 2001 the Sumgayit City Court convicted the applicants for hooliganism, including the breaking of the public order, assault and resistance to the police authorities. According to the applicants, although a number of witnesses had testified in their favour, the court relied only on testimonies of seven police officers, all of whom testified against the applicants. The court sentenced each applicant to a one year and six months’ term of imprisonment.

The applicants appealed against this judgment, complaining that the case had been fabricated, that the first-instance court had violated a number of procedural rules, and that it had failed to give legal assessment to the testimonies of the defence witnesses. On 13 February 2002 the Court of Appeal dismissed the applicants’ request and upheld the district court’s judgment. The Court of Appeal found that the applicants’ guilt was sufficiently proven by the witness testimonies admitted by the first-instance court. Nevertheless, taking into account the mitigating circumstances of the case, the Court of Appeal commuted the applicants’ imprisonment sentence to a conditional sentence. The applicants were therefore released.

The applicants lodged a cassation appeal with the Supreme Court, seeking acquittal. On 9 July 2002 the Supreme Court dismissed their appeal and upheld the lower courts’ judgments.

Thereafter, based on a request by the President of the Supreme Court, the proceedings were reopened and the case was referred to the Plenum of the Supreme Court. On 27 January 2005 the Plenum quashed the Supreme Court’s decision of 9 July 2002 and the related judgment of the Court of Appeal of 13 February 2002. The Plenum found that the courts had not properly verified the factual circumstances of the case and had not paid due attention to certain inconsistencies in witness testimonies. The Plenum remitted the case for re-examination by the Court of Appeal.

On 17 March 2005, the Court of Appeal re-examined the case. It re-assessed the evidence and found that there had not been any significant inconsistencies in witness testimonies admitted by the first-instance court. As to the testimonies of witnesses in the applicants’ favour, the Court of Appeal noted that these witnesses were members of the applicants’ political party and that, therefore, their testimonies were not trustworthy and were in any event refuted by the totality of evidence. The Court of Appeal confirmed the applicants’ conviction and their conditional sentence of one year and six months. It also noted in its judgment that it was open to the applicants to file a cassation appeal with the Supreme Court in accordance with the domestic criminal procedure law. The applicants did not, however, make use of this possibility.

B.  Relevant domestic law

Code of Criminal Procedure of 1 September 2000

According to Article 408.1.1, a cassation appeal or cassation protest may be filed against judgments of appellate-instance courts. Article 409.1 provides that, inter alia, convicted persons shall have a right to file a cassation appeal themselves or through their legal representative.

According to Article 410, depending on the substance of the complaints made before the cassation-instance court, the time-limit for lodging of the cassation appeal may constitute up to 18 months from the date of delivery of the appellate-instance court’s judgment.

Article 412 provides that the cassation appeal must be submitted, in writing, directly to the cassation-instance court.

In accordance with Article 416, the cassation-instance court may quash or amend the appellate-instance court’s judgment, if, inter alia, the latter has refused without justification to examine important evidence presented by a party to the case, breached the procedural rules for assessment of the evidence, delivered a verdict based on inadmissible evidence, and made a mistake in qualification of the crime.

COMPLAINTS

The applicants complained that the domestic proceedings had been unfair because the courts had relied only on testimonies of prosecution witnesses, all of whom were the police officers involved in the incident of 19 September 2001. Moreover, despite the fact that several defence witnesses were available to testify in the applicants’ favour, their testimonies were not examined. The applicants further complained that their criminal conviction had been politically motivated due to their affiliation with a political party that was in opposition to the government. They invoked Articles 6, 10, 11 and 14 of the Convention.

THE LAW

Invoking Articles 6, 10, 11 and 14 of the Convention, the applicant’s complained about unfair trial, the alleged violation of their freedoms of expression and assembly, and the alleged discrimination on the ground of their political opinion.

A.  The parties’ submissions

The Government submitted that the applicants’ complaints relate partially to the period before 15 April 2002, which is outside the Court’s competence ratione temporis. Accordingly, the Court could only examine the part of the complaints relating to the cassation proceedings ending with the Supreme Court’s decision of 9 July 2002, as well as the subsequent reopened proceedings in the Supreme Court’s Plenum and the Court of Appeal.

The applicants did not submit any specific counter-arguments concerning the Court’s competence ratione temporis.

Furthermore, the Government contended that the applicants had not exhausted all the available domestic remedies. Specifically, the Government noted that it was open to the applicants to file a cassation appeal from the Court of Appeal’s judgment of 17 March 2005. However, the applicants failed to do so. Moreover, as concerns the complaints under Articles 10, 11 and 14 of the Convention, the Government submitted that the applicants had never raised these complaints in substance before the domestic courts and that their domestic appeals concerned only their right to a fair trial.

The applicants argued that, at the time of lodging the present application with the Court, they had exhausted all the available domestic remedies by 9 July 2002, when a final decision was delivered by the Supreme Court. Only after the present application had been lodged with the Court, the proceedings were reopened and the case re-examined by the Court of Appeal. Therefore, the applicants contended that, because they had exhausted the domestic remedies available by the time of lodging the application, they had fulfilled the requirement of exhaustion of domestic remedies. Moreover, the applicants claimed that the domestic courts were not independent and that further attempt to seek redress through these courts would in any event be ineffective.

B.  The Court’s assessment

The Court observes that the applicants’ complaints partially relate to facts that occurred prior to 15 April 2002, the date of the Convention’s entry into force with respect to Azerbaijan. Specifically, the first-instance and appellate judgments in the original criminal proceedings had been delivered prior to that date. However, the Court considers that it is not necessary to determine whether the complaints fall, either fully or partially, within the Court’s competence ratione temporis because, even assuming that to be the case, the application is inadmissible for the following reasons.

The Court recalls 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 an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing the States from answering before an international body for their acts 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, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52).

The Court observes in this case that the impugned criminal proceedings ended with the Supreme Court’s final decision of 9 July 2002. However, after the lodging of the present application with the Court, these proceedings were reopened and the case was remitted for re-trial by the Court of Appeal, which delivered a new judgment on 17 March 2005. Under the domestic criminal procedure law, it was open to the applicants to file an ordinary cassation appeal against this judgment of the Court of Appeal. Insofar as, if the cassation appeal was successful, it could lead to the quashing of the applicants’ conviction by the Supreme Court, the Court considers that it was an effective and adequate remedy. Thus, another remedy was available to the applicants on the domestic level after the introduction of their application and, making use of this remedy, the applicants could raise the same complaints as those submitted to this Court.

However, the applicants have not filed a cassation appeal from the Court of Appeal’s judgment of 27 March 2005. Moreover, they have not provided any plausible explanation as to the circumstances that may have prevented them from doing so. To this effect, the Court reiterates that the applicants’ mere doubts as to the prospect of success and the effectiveness of the available domestic remedies, unsupported by any convincing evidence, is not a plausible reason for failure to make use of these remedies (see e.g. Kunqurova v. Azerbaijan (dec.), no. 5117/03, 23 June 2005).

Moreover, even assuming that the applicants have not yet missed the period for filing a cassation appeal and may still avail themselves of this remedy, the Court is not in a position to make an overall examination of the proceedings against the applicants and cannot speculate on what the outcome of the cassation proceedings might be (see, mutatis mutandis, Dikme v. Turkey, no. 20869/92, § 111, ECHR 2000-VIII).

It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

GULIYEV AND RAMAZANOV v. AZERBAIJAN DECISION


GULIYEV AND RAMAZANOV v. AZERBAIJAN DECISION