FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5548/03 
by Fehmin HAJIYEV 
against Azerbaijan

The European Court of Human Rights (First Section), sitting on 16 June 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 21 January 2003,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Fehmin Ahmedpasha oglu Hajiyev (Fəhmin Əhmədpaşa oğlu Hacıyev), is an Azerbaijani national who was born in 1959 and lives in Baku. He was represented before the Court by Mrs G. Iskenderova, a lawyer practising in Baku. 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.

1.  The applicant's convictions

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, sitting in first instance, convicted the applicant for attempted murder (ten years of 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 of 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 Azerbaijani town of Khojaly and prevent the subsequent mass killing of the civilians fleeing the town. The court sentenced the applicant to fifteen years of 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. At the material 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 on the lists of “alleged political prisoners” in Azerbaijan submitted to the experts of the Secretary General. Azerbaijan has made a commitment to either release or give a re-trial to all persons identified as “political prisoners” by these experts.

2.  Appeal against the applicant's convictions under the new Code of Criminal Procedure

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 a law allowing lodging an appeal under the new CCrP against the 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 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, in a letter of 31 March 2004 signed by a court clerk, the Court of Appeal informed the applicant 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 ... For reconsideration 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.”

The applicant, however, did not apply to the Supreme Court.

3.  Application for reduction of the sentence in accordance with the new Criminal Code

In 2000 a new Criminal Code was also adopted along with the new CCrP. Article 341.3 of the new Criminal Code, effective as from 1 September 2000, provided a lighter penalty for failure to use authority during wartime, the crime for which the applicant had been convicted and sentenced to fifteen years of imprisonment on 26 June 1996. In accordance with the new Criminal Code, the maximum sentence for this crime was ten years of imprisonment. In connection with this, the applicant filed a separate lawsuit asking for the reduction of his sentence.

On 18 April 2003 the Garadagh District Court dismissed the applicant's request, relying on Article 6.3 of the Law of 30 December 1999 On the Adoption and Entry into Force of the Criminal Code of the Republic of Azerbaijan, which did not allow a reconsideration of judgments in respect of persons convicted for crimes as those on the basis of which the applicant had been convicted.

The applicant filed an appeal, claiming that the restriction contained in Article 6.3 of the Law of 30 December 1999 was unlawful because it breached the retroactivity of new criminal provisions mitigating the status of convicts. Moreover, he claimed that, in any event, this provision applied only to reconsideration of judgments, but not to reduction of sentences in accordance with the new criminal law, and therefore was inapplicable in his case. On 18 June 2003 the Court of Appeal dismissed the applicant's appeal. On 24 November 2003 the Supreme Court dismissed the applicant's subsequent appeal in cassation.

The applicant then filed an “additional cassation” appeal, asking for the reopening of the proceedings in the Plenum of the Supreme Court. The appeal was granted and the proceedings reopened. Meanwhile, while the case was being considered by the Plenum, on 10 May 2004 the applicant was released from prison by a presidential pardon decree.

On 21 May 2004 the Plenum quashed the Supreme Court's final decision of 24 November 2003. The Plenum held that Article 6.3 of the Law of 30 December 1999 was inapplicable to applications concerning the reduction of sentence in accordance with the new criminal law. Instead, the Plenum applied Article 6.2 of the same Law and reduced the applicant's sentence to ten years of imprisonment in accordance with Article 341.3 of the new Criminal Code. This ten-year prison term, calculated from 24 May 1994, would expire on 24 May 2004, i.e. fourteen days after the applicant's release and three days after the decision of the Plenum of the Supreme Court on the reduction of his sentence.

B.  Relevant domestic law

1.  The Constitution of the Republic of Azerbaijan of 1995

Article 149 § 7

“Normative legal acts improving legal situation of physical and legal persons, eliminating or mitigating their legal responsibility shall have retroactive force. Other normative legal acts shall have no retroactive force.”

2.  Law of 14 July 2000 on the adoption and entry into force of the Code of Criminal Procedure of the Republic of Azerbaijan

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.”

3.  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 materials 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 materials 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 materials 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 materials 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 restore or refuse to restore the missed 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.

4.  Law of 30 December 1999 on the adoption and entry into force of the Criminal Code of the Republic of Azerbaijan

Article 6.2 provides that, in case the sentence of a person, convicted under the old Criminal Code of 1960 and still serving his prison term, exceeds the maximum limit provided for by new Criminal Code, such sentence must be reduced up to the maximum limit provided by the new Criminal Code.

Article 6.3

“If the new Criminal Code otherwise mitigates the status of convicts still serving their sentence or convicts who have served their sentence (except persons convicted for failure to perform public authority empowered on them to prevent the Armenian occupation of Azerbaijani territory or to defeat a military offensive of enemy forces)1, the preceding judgments or [other] decisions shall be reconsidered by a court.”

5.  Criminal Code of the Republic of Azerbaijan of 8 December 1960 (in force before 1 September 2000)

Article 255 (v) provides that abuse of authority, excess of power or failure to use authority at war time or during a battle is punishable by five to fifteen years of imprisonment or by life imprisonment.

6.  Criminal Code of the Republic of Azerbaijan of 1 September 2000

Article 76.1 provides that the court may decide to grant a conditional release to a person serving a certain fixed term of imprisonment, if the court considers that it is not necessary for such person to serve the full term.

Article 76.3.2 provides that the conditional release may be granted if the convict has served at least two thirds of the sentence given for a serious crime.

Article 341.3 provides that abuse of authority, excess of power or failure to use authority at war time or during a battle is punishable by five to ten years of imprisonment.

COMPLAINTS

1.  The applicant complained under Article 6 of the Convention that he had not had a fair trial in the criminal proceedings before the Supreme Court in 1995 and 1996. He alleged that the court had not been independent and impartial and that it had committed a number of procedural mistakes.

2.  The applicant also complained that, although the new legislation guaranteed him a right of appeal from the Supreme Court's final first-instance judgments of 7 August 1995 and 26 June 1996, no appeal proceedings had been instituted. Thus, he was deprived of the right of access to court and to have a fair and public hearing of his criminal case under Article 6 of the Convention. Furthermore, he was subject to discrimination contrary to Article 14 of the Convention, because the appeals of three other alleged “political prisoners” had been heard by the Court of Appeal.

3.  Relying on Article 7 of the Convention, the applicant further complained that the authorities had not applied with retroactive effect the provisions of the new Criminal Code that provided for a lighter penalty for the criminal offence he had been convicted for. Although the new Criminal Code entered into force on 1 September 2000, the applicant's prison term was not reduced until the decision of the Plenum of the Supreme Court of 21 May 2004, resulting in an adverse effect to his status as a convict.

THE LAW

1.  Relying on Article 6 of the Convention, the applicant complained about unfair trial in the two sets of criminal proceedings that resulted in the Supreme Court's judgments of 7 August 1995 and 26 June 1996.

The Court recalls that, according to the generally recognised principles of international law, the Convention is binding on the Contracting States only in respect of facts occurring after its entry into force. The events giving rise to the applicant's complaint relate to a period prior to 15 April 2002, the date of the Convention's entry into force with respect to Azerbaijan.

It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The applicant complained that the Court of Appeal's failure to hear his appeal violated his right of access to court and to have a fair and public hearing of his case in accordance with Article 6 of the Convention as well as his freedom from discrimination on the ground of political opinion under Article 14 of the Convention.

Article 6 of the Convention provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 14 of the Convention provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... political or other opinion, ... or other status.”

The Government submitted that the applicant failed to exhaust domestic remedies with regard to this complaint. Specifically, the Government noted that the applicant had only applied to the Court of Appeal, which 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 endorsed the position expressed in the letter of the Court of Appeal's court clerk of 31 March 2004.

The applicant disagreed with the Government's objection concerning non-exhaustion. He submitted that Article 72.2 of CCrP, referred to in the Court of Appeal's letter of 31 March 2004, applied only to appeals from first-instance judgments delivered after CCrP's entry into force on 1 September 2000. Therefore, contrary to the Government's submission, this provision could not serve as a basis to deny him access to the Court of Appeal.

The applicant maintained that Article 7 of the Law of 14 July 2000 On the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan, expressly provided for the right to an 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 prescribed that such an examination must be carried out in accordance with the provisions of the new CCrP concerning appellate proceedings. 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 cassation appeals from the Court of Appeal's judgment delivered after the appeal had been decided upon. The applicant concluded, therefore, that the Government's objection on non-exhaustion was unsubstantiated.

The applicant further submitted that, according to Article 391 of 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 the applicant's repeated requests, no formal proceedings were instituted.

The Court considers that the question of whether the requirement of the exhaustion of domestic remedies has been satisfied in the present case raises issues which are closely related to the merits of the complaint and that, to avoid prejudging the latter, both issues should be examined together.

The Court further finds, in the light of the parties' submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3.  The applicant complained that the authorities had not applied with retroactive effect the provisions of the new Criminal Code that provided for a lighter penalty for the criminal offence he had been convicted for. The delay in reduction of his sentence for more than three years after the entry into force of the new Criminal Code aggravated his legal status. He relied on Article 7 of the Convention, which provides as follows:

“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.  This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Government argued that the applicant was no longer a victim of the alleged violation because on 21 May 2004 the Plenum of the Supreme Court quashed the previous judicial decisions and reduced the applicant's sentence in compliance with the new Criminal Code.

The applicant maintained that, despite the reduction of his sentence on 21 May 2004, he was still a victim of the alleged violation. The Plenum's decision of 21 May 2004 did not remedy the situation because he had not been awarded any compensation for the belated reduction of his sentence. Moreover, he submitted that, if his sentence had been reduced earlier, under Article 76 of the Criminal Code he would be eligible to apply for an early conditional release in January 2001, i.e. after having served two thirds of the ten-year prison term as prescribed by the new Criminal Code.

At the outset, the Court observes that the original sentence of fifteen years of imprisonment was imposed on the applicant on 26 June 1996, i.e. during the period falling outside the Court's competence ratione temporis. On the other hand, the new Criminal Code, which granted the applicant a right under the domestic law to have his sentence reduced, entered into force on 1 September 2000 and is currently in effect.

According to the Court's case-law, Article 7 of the Convention embodies generally the principle that only the law can define a crime and prescribe a penalty and prohibits in particular the retrospective application of the criminal law where it is to an accused's disadvantage (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 22, § 52). On the other hand, the Commission has stated that, where there has been an amendment of the criminal law subsequent to the commission of an offence, Article 7 of the Convention does not guarantee the right to have the most favourable criminal law applied (cf. X. v. Federal Republic of Germany, no. 7900/77, Commission decision of 6 March 1978, Decisions and Reports 13, p. 77).

However, in connection with the present case, the Court considers that it is not necessary to determine whether the Court has competence ratione temporis or whether Article 7 of the Convention is applicable to the present complaint because, even assuming this to be the case, the complaint is in any event inadmissible for the following reasons.

The Court observes that, by the Supreme Court's decision of 24 November 2003, the applicant's request for reduction of his sentence was refused. However, subsequently, the domestic proceedings were reopened and his request was granted by the Plenum of the Supreme Court. The Court notes that the Plenum's decision was delivered on 21 May 2004, three days before the expiry of the ten-year prison term as calculated from 24 May 1994. Moreover, the applicant was in fact released from prison by the presidential pardon decree of 10 May 2004, i.e. two weeks prior to the expiry of the ten-year prison term. Accordingly, the Court considers that, since the applicant did not suffer any punishment heavier than that prescribed by the provisions of the new Criminal Code, the Plenum's decision in itself remedied the violation alleged by the applicant.

As for the applicant's argument concerning his hypothetical eligibility for conditional release since January 2001, the Court recalls that the Convention does not confer, as such, the right to release on licence or require that parole decisions be taken by a court. A penalty involving deprivation of liberty which the offender must undergo for a period specified in the court decision is justified at the outset by the original conviction and appeal proceedings (see Jankauskas v. Lithuania (dec.), no. 59304/00, 16 December 2003). The Court considers that the right to apply for conditional release, as a general right given under the Azerbaijani domestic law to convicts serving a fixed prison term, does not have any direct relevance for the applicant's specific complaint concerning the retrospective application of the new criminal law providing for a lighter sentence.

In any event, although the applicant applied for the reduction of his sentence in 2003, he has never made any formal application for conditional release. Moreover, Article 76 of the Criminal Code provides only for a possibility of applying for such release, but does not guarantee such release to each applicant, leaving the issue at the complete discretion of the relevant domestic court. Even assuming that the applicant had applied for conditional release in January 2001 or on a later date, the Court cannot speculate whether such release would be granted.

In these circumstances, the Court finds that the applicant can no longer be considered a victim, within the meaning of Article 34 of the Convention, of the alleged violation of Article 7 of the Convention. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to join to the merits the question whether the applicant has exhausted domestic remedies;

Declares admissible, without prejudging the merits, the applicant's complaints concerning the right of access to court and freedom from discrimination;

Declares the remainder of the application inadmissible.

Santiago Quesada Christos Rozakis 
 Deputy Registrar President

1.  The amendment in brackets was made on 26 December 2000, after the entry into force of the new Criminal Code on 1 September 2000.


HAJIYEV v. AZERBAIJAN DECISION


HAJIYEV v. AZERBAIJAN DECISION