FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 9852/03 and 13413/04 
by Alakram HUMMATOV 
against Azerbaijan

The European Court of Human Rights (First Section), sitting on 18 May 2006 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. Nielsen, Section Registrar,

Having regard to the above applications lodged on 13 March 2003 and 31 March 2004,

Having regard to the partial decision of 11 September 2003 in application no. 9852/03,

Having regard to the decision of 5 July 2005 to join the applications,

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 Alakram Alakbar oglu Hummatov (Ələkrəm Ələkbər oğlu Hümmətov), is a stateless person who was born in 1948 in Azerbaijan and lives in The Hague, the Netherlands. He was represented before the Court by Messrs M. Ferschtman and V.L. Koppe, lawyers practising in the Netherlands. The respondent Government were represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Events leading to the conviction

Before 1988 the applicant was the deputy director of a transport warehouse in the city of Lenkoran, Azerbaijan. In 1988 he joined a political party and began his political career. When the Armenian-Azerbaijani conflict in Nagorno-Karabakh broke out, he joined the national army and became one of its commanders. In the summer of 1993, at the time of the outbreak of a civil and political confrontation in the country, he returned from Nagorno-Karabakh to his native Lenkoran. In June 1993 he proposed an idea of an autonomous political formation in the south of Azerbaijan which would, in addition to Lenkoran itself, incorporate several adjacent regions. The central authorities considered this idea unacceptable. On 7 August 1993 the applicant, together with his supporters, proclaimed the creation of the so-called “Talysh-Mugan Autonomous Republic” (“Talış-Muğan Muxtar Respublikası) within the Republic of Azerbaijan. The applicant was elected its “President”. At the same time, he attempted to take charge of the military units located in Lenkoran, as well as to depose and arrest some regional public officials appointed by the central authorities. Following this, certain public disorder evolved, during which several people were killed.

2.  Arrest and conviction

Thereafter, according to the applicant, the Government embarked on a campaign in the mass media in an attempt to mobilise public opinion against him, calling him a traitor and a separatist. In the end of 1993, the applicant was arrested and incarcerated in the detention centre of the Ministry of National Security. The investigation against him led to accusations of, inter alia, high treason and use of armed forces against the constitutional institutions of the State.

In September 1994 the applicant, along with three other detainees, succeeded in absconding from the detention centre. The applicant went into hiding until August 1995 when he was finally caught and arrested for the second time.

According to the applicant, at all times while in detention, he was subjected to various forms of ill-treatment. He was not allowed to see a doctor. Under the threat of his wife’s arrest and criminal prosecution, he was compelled to testify against himself. His close friends and relatives, including his wife and son, were also subjected to persecution and physical ill-treatment by the authorities. Fearing further persecution, his wife and son left the country and sought asylum in the Netherlands.

The applicant’s criminal case was examined by the Military Chamber of the Supreme Court (Ali Məhkəmənin Hərbi Kollegiyası) sitting in first instance. He was tried together with six other accused persons. On 12 February 1996 the applicant was convicted of high treason (12-year imprisonment with confiscation of property), misappropriation of official power (2-year imprisonment), illegal deprivation of liberty (3-year imprisonment), unauthorised possession of weapons (5-year imprisonment), absconding from custody (2-year imprisonment), and creation of illegal armed units (death penalty with confiscation of property). 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.

3.  Commutation of the death penalty to life imprisonment

Following the conviction, in June 1996 the applicant was transferred to the 5th Corpus of the 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 moratorium on the execution of the death penalty since June 1993 until the abolition of the death penalty in 1998.

On 10 February 1998 Parliament adopted 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 amended all the relevant domestic legal provisions, replacing the death penalty with life imprisonment. In accordance with the Law, the penalties of all the convicts sentenced to death, including the applicant, were to be automatically commuted to life imprisonment.

Despite this new penalty, the applicant was kept in the 5th Corpus of the Bayil Prison (the former “death row”) up to January 2001. According to the applicant, the conditions of imprisonment in the Bayil Prison were harsh and inhuman, and beatings frequently occurred. He suffered from various serious diseases and could not get necessary and adequate medical treatment (see sub-section 5. below). In January 2001 he was transferred to the Gobustan High Security Prison (Qobustan Qapalı Həbsxanası; hereinafter the “Gobustan Prison”) for life-term prisoners.

4.  Re-examination of the criminal case

In 2000 a new Code of Criminal Procedure (hereinafter “CCrP”) and new Criminal Code of the Republic of Azerbaijan were adopted. Before the new CCrP’s entry into force on 1 September 2000, on 14 July 2000 Parliament passed a transitory law allowing lodging an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules.

Shortly after this, at the time of Azerbaijan’s admission to the Council of Europe, the applicant was recognised as a “political prisoner” by independent experts of the Secretary General (in the experts’ relevant reports the applicant’s name was spelled as “Alikram Gumbatov”, possibly following the Russian transliteration of his name). Azerbaijan has made a commitment to either release or give a re-trial to all persons identified as “political prisoners” by these experts.

Following the reform of the domestic criminal and criminal procedure law in 2000 and in the light of Azerbaijan’s undertaking before the Council of Europe to review the cases of “political prisoners”, on 20 December 2001 the Prosecutor General filed an appellate protest (apellyasiya protesti) with the Court of Appeal, requesting the court to allow the re-examination of the applicant’s case. On 24 January 2002 the Court of Appeal’s Chamber on Military Courts’ Cases (Apellyasiya Məhkəməsinin Hərbi Məhkəmələrin İşləri Üzrə Məhkəmə Kollegiyası; hereinafter the “Court of Appeal”) upheld this request and allowed an appeal to be lodged against the judgment of the Supreme Court’s Military Chamber of 12 February 1996.

On 29 January 2002 the applicant lodged an application with the Court of Appeal. In his application he asked the court to initiate a new investigation into the case, to hold a public hearing in an ordinary courtroom with the participation of media representatives and officials of foreign organisations, to obtain the attendance and examination of certain witnesses, and to evaluate the political events in the Lenkoran region in 1993.

On 23 April 2002 the Court of Appeal decided to grant the applicant’s request for a new investigation and a public hearing, but dismissed the rest of the application. The hearings on the merits were to be held at the detention centre of the Ministry of Justice. However, on 13 May 2002 the Court of Appeal changed the location of the hearings to the Gobustan Prison since, as explained by the court, repair works were being carried out in the Ministry’s detention centre. The applicant protested against this decision by refusing to attend any court hearings in the Gobustan Prison. On 14 May 2002 the Court of Appeal ordered his compulsory attendance.

In the meantime, on 23 April 2002, the applicant had informed the court of his refusal to be represented by his lawyer, Mr A, due to the inadequacy of the latter’s services, and requested the court to allow him a new lawyer of his own choice. Despite this, the Court of Appeal held two preliminary hearings on 23 April and 13 May 2002 in the absence of the applicant but in the presence of Mr A, and one preliminary hearing on 14 May 2002 in the presence of both the applicant and Mr A, the latter still acting in the capacity of the applicant’s lawyer.

On 16 May 2002 the applicant complained about this matter in a direct letter to the Supreme Court. By a letter of 24 May 2002, the Deputy President of the Supreme Court confirmed the receipt of the applicant’s letter and informed him about the procedure of filing a cassation complaint. He further specified that, in accordance with the Code on Execution of Punishments (Cəzaların İcrası Məcəlləsi), the applicant, as a convict serving his prison sentence, was obliged to send his complaints to the Supreme Court through the prison administration.

The Court of Appeal’s hearings on the merits were held in the Gobustan Prison, which was equipped with a courtroom. The prison itself was located outside of Baku. No regular public transportation from Baku to the prison was available. Because of the prison’s strict access regime, persons wishing to attend the hearings as observers had to ask the presiding judge for the permission to attend the hearing. The presiding judge, in his turn, applied to the prison authorities with a request to grant such persons access to the prison. Observers who were granted access to the hearings were subject to a body search before entering the prison’s courtroom.

The Court of Appeal examined more than 60 witness testimonies, of which testimonies of six persons, given during the first-instance trial, were read out during the hearings.

In the course of the appellate proceedings, the applicant submitted a number of petitions in which he, inter alia, challenged the impartiality of the court, asked the court to permit audio and video recording of the hearings, to hold the hearings in public and away from the high security prison, and to admit testimonies of additional witnesses and other additional evidence. The majority of these petitions were rejected by the Court of Appeal.

In October 2002 the applicant filed a petition with the Court of Appeal, asking for release on the basis of Article 158.5 of CCrP, which provided that a person accused of especially grave crimes, whose case was under consideration by first-instance and appellate courts, could not be held in detention for a combined period exceeding nine months. By an interim decision (qərardad) of 28 October 2002 the Court of Appeal dismissed the applicant’s petition. It held that, despite the continuation of the applicant’s criminal proceedings, Article 158.5 of CCrP did not apply in his case, because he had already been convicted and sentenced by the Supreme Court’s judgment of 12 February 1996 and, therefore, was serving his prison sentence as a convict and was not detained on remand.

On 8 November 2002 the applicant lodged an appeal in cassation with the Supreme Court against this interim decision, asking for release from “pre-trial detention”. In a letter of 19 December 2002, the Supreme Court rejected the appeal on the ground that the case was still under consideration by the Court of Appeal and its final judgment had not yet been delivered.

On 10 July 2003 the Court of Appeal delivered its final judgment concerning the applicant’s criminal case. The Court of Appeal revoked the previous judgment of 12 February 1996 in its part concerning the confiscation of the applicant’s property. The Court of Appeal, however, upheld the applicant’s conviction and sentenced him to life imprisonment, pursuant to the criminal law applicable at the time the crimes were committed, but subject to the amendments introduced by the Law of 10 February 1998.

The applicant lodged an appeal in cassation with the Supreme Court. In his appeal, he complained, inter alia, of the Court of Appeal’s breach of material and procedural rules of domestic law, unfair trial, unlawfulness of his detention during the appellate proceedings, as well as unlawfulness of the life imprisonment sentence. He also complained that the Court of Appeal had breached the procedural rights of his second lawyer, Mr O, under Article 92.9.8 of CCrP. However, he did not specifically complain about the presence of Mr A, his first lawyer whose services he had refused, during the preliminary hearings in the Court of Appeal.

By a decision of 5 February 2004, the Supreme Court’s Chamber on Military Courts’ Cases (Ali Məhkəmənin Hərbi Məhkəmələrin İşləri Üzrə Məhkəmə Kollegiyası; hereinafter the “Supreme Court”) rejected the applicant’s appeal. As for the unlawfulness of the applicant’s detention during the retrial proceedings, the Supreme Court upheld and adopted the reasoning of the Court of Appeal’s decision of 28 October 2002. The court also left intact the penalty of life imprisonment, but partly modified the Court of Appeal’s judgment by re-qualifying the underlying offence under Article 279.3 of the new Criminal Code of 2000, instead of applying the old Criminal Code of 1960 as amended by the Law of 10 February 1998.

5.  Medical treatment during imprisonment

According to the applicant, due to the ill-treatment and harsh conditions of imprisonment, starting from 1996, he suffered from various serious ailments, such as tuberculosis, ischemia, hypertension, haemorrhoids, dental diseases, liver and gastrointestinal diseases and rheumatism.

Following his numerous complaints of the deteriorating state of health, on 23 April 1997 he underwent an X-ray examination by government doctors, which revealed a “focal tuberculosis of the left lungs”. According to the applicant, despite this diagnosis, he was not given sufficient treatment. Specifically, in May 1997 he was given only two intravenous injections of some medication. In November 1997, when his health seriously deteriorated, a prison doctor visited him daily for a period of about 15 days, giving him one injection per day.

According to the Government, from 1997 to 2000 the prison doctors did not observe any serious deterioration of the applicant’s health and, during this period, the applicant was subject to regular medical supervision and out-patient treatment. To the contrary, the applicant alleges that he experienced serious health problems during this period.

In February 2000 the applicant was visited by representatives of the Helsinki Citizens Assembly who expressed their concern about the applicant’s state of health and requested the authorities to take measures. After this, on 16 March 2000, another medical examination by the prison doctors revealed the necessity of the applicant’s in-patient treatment. On 20 March 2000, the applicant was transferred to a specialised hospital for convicts suffering from tuberculosis.

According to the applicant, he started receiving medical treatment in the hospital only on 26 March 2000. The treatment was based on the World Health Organisation’s DOTS program. On 19 May 2000 the applicant was checked out of the hospital and returned to his prison cell. According to the applicant’s calculations, the in-patient treatment that he had received in the hospital lasted for 52 days.

In the prison, the applicant constantly felt that the out-patient treatment provided to him was insufficient. However, because the prison authorities did not allow him to possess any writing accessories until he was transferred to the Gobustan Prison on 5 January 2001, he was unable to file any complaints concerning the lack of appropriate medical treatment.

On an unspecified date in 2001, the applicant made an attempt to file, through a lawyer, a complaint with a first instance court, claiming compensation from the authorities for the damage caused to his health by the allegedly harsh prison conditions and lack of necessary medical treatment. However, according to the applicant, the court refused to accept the complaint without specifying any reason.

During the reopened criminal proceedings, on 14 November 2002 the applicant’s lawyer filed a petition with the Court of Appeal, asking for a new medical examination in view of the applicant’s serious health problems. The new examination was carried out on 6 December 2002 by doctors of the Medical Department of the Chief Directorate for Execution of Court Judgments (“CDECJ”), which at the material time was the subdivision of the Ministry of Justice, and the applicant’s health condition was considered satisfactory.

On 25 December 2003, having examined the applicant’s medical records, the Head of the Medical Department of CDECJ issued a medical report (the “CDECJ Report”), in which he expressed his medical opinion on the applicant’s state of health. This report reflected the detailed account of the applicant’s medical record in prison. It mentioned that, in the period from 1997 to 2003, the applicant had been examined by doctors several times. Inter alia, the following diseases were diagnosed as a result of those examinations: focal tuberculosis of the left lungs, chronic bronchopneumonia, radiculitis, ischemia, cardiosclerosis, hypertension, as well as certain skin and gastrointestinal ailments. The CDECJ Report further noted that each disease had been treated with due care and, when necessary, the applicant had been provided with proper medications and other appropriate treatment, including the in-patient treatment of tuberculosis. The report suggested that, as a result of such treatment, the applicant’s state of health had significantly improved. It was finally concluded that, by the time of issuance of the report, the applicant’s state of health was satisfactory and that he needed neither out-patient nor in-patient treatment.

Upon the applicant’s request, on 5 March 2004 the Chairman of the Medical Commission of the Azerbaijani National Committee of the Helsinki Citizens’ Assembly issued an independent medical expert opinion (the “HCA Expert Opinion”) based on the applicant’s medical records. The expert confirmed that the applicant suffered from a number of serious diseases requiring permanent medical supervision. She further noted that, in general, as a result of irregular and inappropriate medical examinations, the applicant had been given chaotic and insufficiently substantiated diagnoses and that the prescribed out-patient and in-patient medical treatment had been totally ineffective. Specifically, the expert held that the belated initial detection of tuberculosis had led to the aggravation of the disease. Moreover, after the tuberculosis had been diagnosed, the applicant’s in-patient treatment in the hospital did not correspond to the DOTS program in that it was unjustifiably too short and the provided medications were under-dosed. The expert also noted that, because of the applicant’s strict imprisonment conditions, he was deprived of the opportunity to receive urgent medical aid during the daily closure of his wing of the Gobustan Prison from 7:00 p.m. to 11:00 a.m. of the next day. Finally, the expert concluded that the applicant had not received a precise and clinically confirmed diagnosis as well as any necessary and appropriate medical treatment corresponding to such diagnosis.

In February 2004 the applicant filed, with the Sabail District Court, a lawsuit against the Ministry of Internal Affairs, demanding monetary compensation for deterioration of his health in the prison. On 3 March 2004 the Sabail District Court refused to admit the lawsuit, because the applicant failed to designate the Ministry of Finance as a co-defendant. The court noted that, under the domestic law, any claim for monetary compensation from the State must be directed against the Ministry of Finance.

The applicant re-submitted the lawsuit specifically noting the Ministry of Finance as a co-defendant. On 29 March 2004 the Sabail District Court refused to admit the lawsuit for lack of territorial jurisdiction. According to the court, lawsuits against the Ministry of Finance were subject to the territorial jurisdiction of the Nasimi District Court. The applicant challenged this decision in the Court of Appeal.

At the same time, he filed a similar lawsuit with the Nasimi District Court. On 13 April 2004 the Nasimi District Court refused to admit the lawsuit on the ground that the applicant had failed to properly formulate and legally substantiate his claim.

On 29 May 2004 the Court of Appeal examined the applicant’s appeal from the Sabail District Court’s decision of 29 March 2004. The Court of Appeal quashed this decision, holding that the Sabail District Court had territorial jurisdiction to examine the case, because one of the co-defendants, the Ministry of Internal Affairs, was located within that court’s jurisdiction. Accordingly, the case was remitted to the Sabail District Court for the examination on merits.

6.  Release and emigration

On 3 September 2004 the President issued a pardon decree releasing the applicant, among 244 other convicted persons, from serving the remainder of his prison sentence. On the same day, the President issued an instructive order granting the applicant’s request to terminate his Azerbaijani citizenship.

According to the applicant, he was released only on 5 September 2004. He was immediately taken to the airport, where he boarded a flight to the Netherlands. He was soon granted asylum by the Dutch authorities and established a new permanent residence in the Netherlands.

B.  Relevant domestic law

1.  Criminal Code of the Republic of Azerbaijan of 8 December 1960, as amended by the Law of 17 January 1992 (in force until 1 September 2000)

Article 70-2 Creation of armed forces or groups unauthorised by law

“1.  Creation of armed forces or groups unauthorised by law, participation in their creation and activities, as well as procurement to them of weapons, military supplies, explosive substances, military technology or ammunition, – is punishable by deprivation of liberty for the term of three to eight years.

2.  Assault of public institutions, enterprises, organisations or individual persons by members of armed forces or groups specified in the first section of this Article, – is punishable by deprivation of liberty for the term of seven to twelve years.

3.  Actions specified in the second section of this Article which result in the death of people or other grave consequences, – are punishable by deprivation of liberty for the term of eight to fifteen years with or without confiscation of property, or by death penalty with our without confiscation of property.”

2.  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” of 10 February 1998 (repealed on 14 July 2000 in connection with the entry into force of the new Criminal Code)

Article II-8

“[I]n Article 70-2 § 3 ... of the Criminal Code the words “death penalty” shall be replaced by the words “penalty in the form of life imprisonment.”

Article IV

“The penalty of persons sentenced to death penalty before the entry into force of this Law shall be commuted into the penalty in the form of life imprisonment.”

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

Article 279 Creation of armed forces or groups unauthorised by law

“279.1.  Creation of armed forces or groups unauthorised by law, participation in their creation and activities, as well as procurement to them of weapons, military supplies, explosive substances, military technology or ammunition, – is punishable by deprivation of liberty for the term of three to eight years.

279.2.  Assault of public institutions, enterprises, organisations or individual persons by members of armed forces or groups specified in Article 279.1 of this Code, – is punishable by deprivation of liberty for the term of seven to twelve years.

279.3.  Actions specified in Article 279.2 of this Code which result in the death of people or other grave consequences, – are punishable by deprivation of liberty for the term of eight to fifteen years, or by life imprisonment with our without confiscation of property.”

4.  Law “On the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan and the Related Legal Regulatory Issues” of 14 July 2000

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 [of Criminal Procedure], 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.”

5.  Code of Criminal Procedure of the Republic of Azerbaijan of 1 September 2000

Article 114  Rejection of a counsel or representative

“114.4.  A counsel or representative shall be dismissed from the proceedings upon a petition by the defendant ... due to the doubts in the competence or integrity of the counsel or representative, or due to other reasons.”

Article 158  Term of detention on remand

“158.5.  The maximum period for detention of an accused person whose criminal case is under examination by the first and appellate instance courts shall not exceed ... nine months with respect to especially grave crimes.”

Article 389  Consequences of lodging an appellate complaint or appellate protest

“389.1.  Lodging of an appellate complaint or appellate protest against a judgment or decision of a first-instance court suspends [such judgment’s or decision’s] entry into force.”

Article 416  Grounds for quashing or modifying a court judgment under the cassation procedure

“416.0.  The cassation-instance court may quash or modify a judgment or decision of a first or appellate instance court in the following cases: ...

416.0.17.  if the [first or appellate instance] court has gravely violated the requirements of Articles 107-118 [including Article 114 regulating the defendant’s refusal from the services of his lawyer], ...

416.0.18.  if the [first or appellate instance] court has examined the case ... without the participation of the state prosecutor, private prosecutor, accused person, accused person’s lawyer or interpreter, if participation of these persons is mandatory under the provisions of this Code; ...”

Article 419  Examination of merits of a cassation complaint or cassation protest

“419.10.  [T]he judges of the cassation-instance court ... take one of the following decisions: ...

419.10.2.  quash the [appellate-instance court’s] judgment or decision and order a new examination of the case ... in the appellate-instance court; ...”

6.  Law “On Courts and Judges” of 10 June 1997

Article 62 of this Law provides that the Court of Appeal is comprised of the Presidium, Chamber on Civil Cases, Chamber on Criminal and Administrative Cases, and Chamber on Military Courts’ Cases. In accordance with Article 65, the relevant Chambers of the Court of Appeal, acting in the capacity of appellate courts, have competence to examine appellate complaints and appellate protests against judgments delivered by, inter alia, district (city) courts and first-instance military courts.

Article 78 provides that, for examination of cassation appeals, the Supreme Court forms chambers on civil cases, on economic disputes, on criminal and administrative cases, and on military courts’ cases.

Article 92 provides that, upon examination of cases, all judges of the Republic of Azerbaijan enjoy the same status, rights and obligations.

Article 103 provides that all judges are exempt from the military draft and military service during the entire tenure of judicial service. In accordance with Article 104, the judges may not hold any elected or appointed post or engage in any entrepreneurial, commercial or other paid activities, except scientific, pedagogical or creative activities; may not engage in political activities or be members of political parties; and may not receive any remuneration except their judge salaries and income from scientific, pedagogical and creative activities.

COMPLAINTS

1.  Invoking Article 3 of the Convention, the applicant complained that:

(a)  while in the prison, he had suffered from a range of serious illnesses and, despite his numerous requests, he had been deprived of access to necessary and appropriate medical treatment; and

(b)  there had been no effective means of recourse at the domestic level that was capable of providing him redress in respect of the inadequate medical treatment in prison.

2.  The applicant further complained that:

(a) contrary to Article 5 of the Convention, the authorities had deprived him of his liberty following the Court of Appeal’s decision of 24 January 2002 to allow an appeal against his conviction. In particular, he claimed that he had been unlawfully held in detention after the expiry of the maximum nine-month detention period provided for by the domestic law for persons whose case was under examination by the Court of Appeal; and

(b) contrary to Article 14 of the Convention in conjunction with Article 5 of the Convention, the courts’ refusal to release him after the expiry of the detention period amounted to discrimination on the ground of his political opinion.

3.  Relying on Article 6 §§ 1 and 3 (c) and (d) of the Convention, the applicant complained that:

(a)  the appellate proceedings in his case had been unfair, because they had been held in the distant Gobustan Prison, which was subject to a limited access regime and hardly accessible to the public. Any audio or video recording of the hearings had been forbidden by the court without necessary justification. Despite the applicant’s numerous requests, the court refused, without justification, to allow the attendance and examination of additional witnesses prepared to testify on his behalf. Finally, the presiding judge made several oral remarks showing his bias in favour of prosecution and unjustifiably rejected most of the applicant’s petitions made during the trial;

(b)  the tribunals had not been independent and impartial because the case had been heard by the “military” chambers of the Court of Appeal and the Supreme Court, although the applicant had no longer belonged to military personnel;

(c)  the length of the reopened criminal proceedings had been beyond reasonable, since the appellate proceedings had lasted for more than one and a half years and, on several occasions, the court had made long pauses between the hearings without sufficient justification; and

(d)  he had been denied legal assistance of his own choosing, because the Court of Appeal had failed to take account of his refusal from the services of his former lawyer and had held several hearings in the presence of that lawyer.

4.  The applicant also complained under Article 6 § 2 of the Convention that the presumption of his innocence had been violated. He alleged that, despite his objections, the Court of Appeal had considered him as a convict before the delivery of its final judgment and failed to take any action to prevent the state TV from broadcasting programs depicting him as a criminal and a separatist.

5.  Under Article 13 of the Convention in conjunction with Article 6 of the Convention, the applicant complained that the domestic remedies in his case had been ineffective, because the domestic courts had been heavily biased in favour of the prosecution and, in general, not capable of providing a fair protection of infringed human rights.

6.  The applicant further complained under Article 14 of the Convention in conjunction with Article 6 of the Convention that, at all times starting from his initial arrest and through the entire appellate and cassation proceedings, he had been discriminated against on the basis of his political opinion and ethnic origin.

7.  Finally, under Article 7 of the Convention, the applicant submitted that the substitution of the death penalty by life imprisonment in 1998 had been to his detriment. Firstly, the commutation by way of a parliamentary act, instead of a court decision, was unlawful. Secondly, in 1996, when he was sentenced, there were only two alternative penalties for the crimes for which he was convicted: the death penalty and 15-years’ imprisonment. Accordingly, when abolishing the death penalty, his sentence should have been commuted to 15-years’ imprisonment. However, by introducing a new form of punishment (the life imprisonment) and automatically commuting his death penalty to life imprisonment in 1998, the authorities applied the new law retroactively to his detriment.

THE LAW

1 (a).  The applicant complained that the lack of necessary and appropriate medical treatment in the prison constituted a violation of Article 3 of the Convention. Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submitted that the part of the applicant’s complaint relating to events that occurred prior to 15 April 2002 fell outside the Court’s competence ratione temporis. The applicant did not adduce any specific arguments in reply.

The Court observes that the applicant’s complaint relates to the period starting from his arrest in 1993 up to the date of his release. However, the Court notes that it is only competent to examine complaints of violations of the Convention arising from events that have occurred after the Convention had entered into force with respect to the High Contracting Party concerned (see e.g. Kazimova v. Azerbaijan (dec.), no. 40368/02, 6 March 2003). Accordingly, the Court will only examine the part of the complaint relating to the events that occurred after 15 April 2002, the date of the Convention’s entry into force with respect to Azerbaijan.

As regards the part of the complaint relating to the events that occurred after 15 April 2002, the Government furthermore invited the Court to reject it on the ground that the applicant had failed to exhaust domestic remedies, because his compensation claim was pending before the domestic authorities.

The Court finds 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 under Article 13 of the Convention in conjunction with Article 3 of the Convention (see below) and that, to avoid prejudging the latter, both issues should be examined together. Accordingly, the Court considers that the final determination of the issue concerning the exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

The Government finally submitted that the applicant had been provided with all necessary medical treatment. Specifically, the Government noted that the applicant’s requests for medical examination had been satisfied and that he had been examined by the government doctors on 6 December 2002, 5 March 2003 and 11 June 2003 and provided with necessary out-patient treatment. In addition, the Government also submitted copies of the applicant’s medical records while in prison, purporting to show that the applicant had been under constant medical supervision. The Government considered the above evidence sufficient to prove that the applicant had received all necessary and appropriate medical treatment.

Moreover, the Government maintained that the HCA Expert Opinion, submitted by the applicant in support of his allegations, had been prepared by non-professionals, “presented in an artificially bloated way and [was] completely ill-founded”. Therefore, in the Government’s view, the HCA Expert Opinion could not be trusted as reliable evidence.

The applicant disagreed, arguing that he had been deprived of necessary medical treatment from the moment of his arrest. Harsh prison conditions contributed to the significant aggravation of his diseases. Several medical examinations and sporadically provided treatment were inadequate and insufficient to cure these diseases. In this respect, the applicant largely relied on the findings and conclusions contained in the HCA Expert Opinion, and considered this document to be more reliable than the voluminous medical records provided by the Government. In the applicant’s view, the continuous failure by the authorities to provide him with necessary medical care constituted inhuman and degrading treatment within the meaning of Article 3 of the Convention.

The Court considers, 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.

1 (b).  The applicant also complained that there was no effective domestic remedy capable of providing him redress in respect of the inadequate medical treatment in the prison. The Court considers that, in substance, this complaint falls to be examined under Article 13 of the Convention in conjunction with Article 3 of the Convention. Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government noted that a remedy was available to the applicant. According to the Constitution of the Republic of Azerbaijan, the Convention forms an integral part of the Azerbaijani legal system and, therefore, the applicant could have relied on Article 3 of the Convention in his appeals to the domestic courts and complained of a violation thereof in his case.

Alternatively, the Government submitted that the applicant could have complained to a “relevant authority” about the lack of medical treatment or lodged a separate application with “any domestic court” claiming monetary compensation for the allegedly inappropriate treatment in the prison. In fact, the applicant has lodged such separate application, the examination of which is pending before the Sabail District Court.

In reply, the applicant submitted, with reference to reports of human rights organisations, that the judicial system in Azerbaijan was highly ineffective and incapable of holding fair proceedings. Even if the remedies were available in theory, they were unavailable in practice due to their illusoriness. To this effect, the applicant challenged the Government to produce a single case in which the Azerbaijani courts had considered a claim such as the applicant’s and in which a positive decision had been reached for the complainant. He maintained that the State authorities constantly tolerated various violations of rights of “political prisoners”, including the lack of medical treatment in prisons. Thus, in the applicant’s opinion, there was an administrative practice which rendered any theoretically available remedies illusory, inadequate and ineffective.

In support of his arguments, the applicant submitted that, prior to 5 January 2001, he had been unable to file any complaint with the national courts because he had not been allowed to possess any writing accessories in the prison. On an unspecified date in 2001, after he had been finally given access to some writing accessories, he attempted to file a complaint with the local court through his lawyer, but the court refused to accept it for unspecified reasons. Moreover, on 18 February 2003 and 27 February 2003 the applicant sent two letters to the prison administration complaining of the lack of adequate treatment and asking to be transferred to a prison hospital for the in-patient treatment of tuberculosis, but did not receive any response.

The applicant also pointed out that, although in early 2004 he again attempted to institute civil compensation proceedings in the Sabail District Court and Nasimi District Court, the courts repeatedly refused to admit the lawsuit and study the substance of his complaint relying on various formalistic grounds. The courts’ continuous failure to examine the substance of the complaint essentially undermined the effectiveness of the remedy and denied the applicant a possibility to obtain redress.

The Court considers, 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.

2 (a).  Invoking Article 5 §§ 1 and 3 of the Convention, the applicant further complained that, according to the domestic law, as a person accused of especially grave crimes, he should have been detained on remand for no more than nine months following the decision to allow an appeal against his conviction. However, although the appellate proceedings lasted longer than nine months, he was not released from detention. Article 5 §§ 1 and 3 provides, in the relevant part:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court; ...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government submitted that the applicant’s detention throughout the entire period in question, i.e. during the proceedings in the Court of Appeal, had been lawful under Article 5 § 1 (a) of the Convention. In this respect, the Government noted that the applicant’s detention pending trial ended when the criminal charges against him were first determined by the Supreme Court’s judgment of 12 February 1996. Therefore, the Government maintained that, during the examination of the case in the Court of Appeal, the applicant had not been detained on remand pending trial, but had been serving his prison term following the conviction by the competent court within the meaning of Article 5 § 1 (a) of the Convention. Accordingly, no question could arise as to the length of detention during the appellate proceedings.

The applicant claimed that he had been unlawfully detained on remand contrary to Article 5 §§ 1 (c) and 3 of the Convention. The applicant submitted that on 24 January 2002, when the Court of Appeal granted the Prosecutor General’s request to allow an appeal, the legal force of the Supreme Court’s judgment of 12 February 1996 was “suspended” and the applicant “re-acquired” the status of an accused. To this effect, he relied on Article 389.1 of CCrP, providing that filing of an appeal protest “suspends the entry into force” of the first-instance court’s judgment. Taking the above into consideration, the applicant concluded that, from the moment of institution of the appellate proceedings, he was no longer serving his sentence as a convict and that the period of pre-trial detention started anew.

The applicant further noted that the proceedings in the Court of Appeal had commenced on 24 January 2002 and ended on 10 July 2003. Whereas Article 158.5 of CCrP required that the combined period of detention of an accused person during the first-instance and appellate proceedings should not exceed nine months, the period of his lawful detention on remand should have ended on 24 October 2002 at the latest. Therefore, in the applicant’s view, he was unlawfully detained during the period from 24 October 2002 to 10 July 2003.

The Court recalls that, in determining the length of detention pending trial, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see, among other authorities, Kalashnikov v. Russia, no. 47095/99, § 110, ECHR 2002-VI; Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, § 9; and Muller v. France, judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, § 34). In the present case, the applicant’s detention pending trial ended on 12 February 1996, when he was convicted and sentenced by the Supreme Court sitting in the first instance. Therefore, as from 12 February 1996, the applicant was serving a sentence after his conviction by a competent court, within the meaning of Article 5 § 1 (a) of the Convention.

As to the applicant’s allegation that, upon the institution of appellate proceedings on 24 January 2002, he “re-acquired” the status of an accused person subject to the detention pending trial, the Court considers that it is unsubstantiated for the following reasons. Articles 158.5 and 389.1 of the new CCrP, on which the applicant relies, appear to apply normally in an ordinary procedure where an appeal is filed from a first-instance court’s judgment that has not yet entered into legal force. However, the Court notes that, at the time of the applicant’s conviction on 12 February 1996, no right of appeal was available to him under the old CCrP and the judgment entered into legal force at the time of its delivery. Thus, the judgment in the applicant’s case was res judicata, and it was only by virtue of the introduction of the new transitional remedy in 2000 that he was able to file an appeal against this judgment under the new CCrP (see mutatis mutandis Prystavska v. Ukraine (dec.), no. 21287/02, ECHR 2002-X). However, the mere fact that such appellate proceedings were instituted in accordance with this transitional remedy did not change the applicant’s status from a convict to an accused, because the judgment of 12 February 1996 remained in force and there had been no judicial decision invalidating that judgment or otherwise acquitting the applicant before the case was examined by the Court of Appeal.

In such circumstances, the Court considers that, during the period of examination of the case by the Court of Appeal, the applicant was already serving a sentence after his conviction by a competent court, within the meaning of Article 5 § 1 (a) of the Convention, and was not detained on remand within the meaning of Article 5 § 1 (c) of the Convention.

It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

2 (b).  The applicant also complained under Article 14 of the Convention in conjunction with Article 5 of the Convention that the domestic authorities’ refusal to change his status from a convict to an accused and to release him from “pre-trial detention” during the appellate proceedings amounted to discrimination on the ground of his political opinion.

However, having regard to its above conclusion concerning the complaint under Article 5 of the Convention, the Court finds that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.  The applicant made a number of complaints under Article 6 §§ 1 and 3 of the Convention which provides, in the part relevant for the applicant’s complaints examined separately below, as follows:

“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.  Everyone charged with a criminal offence has the following minimum rights: ...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

(a).  The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that his right to a fair and public hearing during the appellate proceedings had been restricted, that he had been unable to obtain examination of witnesses prepared to testify on his behalf, and that the court had been biased in favour of the prosecution and had rejected the majority of his petitions without justification.

The Government submitted that the mere fact that the appellate proceedings had taken place in the prison did not necessarily lead to the conclusion that the trial lacked publicity. The public was duly informed about the time and place of the hearings. The prison was equipped with a large courtroom providing a sufficient number of seats for public observers. Any person wishing to attend the trial could apply to the presiding judge who, in turn, applied to the prison authorities to grant this person access to the prison. According to the Government, the Gobustan Prison was located in the distance of 45 kilometres from Baku. To make the public access to the trial easier, the Ministry of Justice organised a regular shuttle bus service from Baku to the Gobustan Prison.

The Government further submitted that the Court of Appeal had heard testimonies of all witnesses necessary to ascertaining the truth. In total, 62 persons were questioned during the trial, including ten persons questioned at the request of the defence. In addition, written testimonies of six witnesses, given during the previous trial, were read out in the Court of Appeal at the request of the defence.

The applicant acknowledged that, at a number of hearings, his family members as well as representatives of mass media, non-governmental and other organisations had been present. However, contrary to the Government, the applicant submitted that there had been no shuttle bus service organised by the Ministry of Justice. His family, using its own financial resources, had to rent a bus from Baku to Gobustan for all those who wished to attend the trial. This was not always possible due to financial constraints. According to the applicant, the Gobustan Prison was located 75 kilometres away from Baku, and not 45 kilometres as maintained by the Government.

Moreover, the applicant contended that on certain occasions the presiding judge had refused access into the prison to certain persons wishing to attend the trial. Most of the seats in the courtroom were occupied by law-enforcement officers and, as a result, only a limited number of outside observers were allowed inside. Those who were allowed to enter were subjected to a rigorous body search in a deliberately intimidating manner, with the aim to discourage people from attending the trial. Despite the numerous requests by the defence counsel, all audio or video recording of the trial was prohibited, allegedly with the aim to leave any procedural violations unrecorded. As a result, the trial transcripts were usually incorrect and intentionally omitted facts and testimonies favouring the applicant.

The applicant further submitted that most of the witnesses heard by the court had been prosecution witnesses. The defence was not given any opportunity to challenge the reliability and veracity of witnesses whose written testimonies were read out in the courtroom. Moreover, vital witnesses for the defence were not heard, despite the defence’s repeated and reasoned requests to call them for interrogation. Likewise, most of the defence counsel’s petitions questioning the impartiality of the court, asking for admission of new evidence, etc., were rejected with little or no justification.

The Court considers, 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.

(b).  The applicant complained under Article 6 § 1 of the Convention that, because his case had been heard by the “Chambers on Military Courts’ Cases” of the Court of Appeal and the Supreme Court, his right to a fair trial by an “independent and impartial tribunal” was violated.

The Government submitted that neither the Court of Appeal nor the Supreme Court could be considered as a military tribunal and that all the judges serving in these courts’ chambers were civilian.

In reply, the applicant did not specifically address the Government’s submission. However, as an additional argument concerning this complaint, the applicant quoted reports of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe and the US Department of State, which contained a brief account of critical views concerning the existing procedure for appointment of judges that might have an adverse impact on the independence of Azerbaijani judicial system in general. Moreover, in the applicant’s opinion, the court’s partiality was also shown by the fact that the petitions and other procedural motions of the defence counsel were routinely rejected by the presiding appellate judge.

At the outset, having regard to its partial decision on admissibility of 11 September 2003 in application no. 9852/03, the Court notes that the question of independence and impartiality of the first-instance court, which delivered its judgment on 12 February 1996, is outside the scope of the present complaint.

As for the allegation that the appellate and cassation courts were military tribunals, the Court recalls that a civilian tried by a court composed, even if only in part, of members of the armed forces could have a legitimate reason to believe that such court may lack independence or impartiality and may allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, §§ 71-72). The Court observes that the appellate and cassation proceedings in the applicant’s case were carried out by the Court of Appeal’s and Supreme Court’s “Chambers on Military Courts’ Cases”. However, even assuming that this name can be considered somewhat misleading as to the composition of a judicial chamber, the mere presence of a word “military” in the name of the chamber cannot lead to a conclusion that the case was heard by a military court. It simply denotes a fact that these judicial chambers were competent to hear appeals from the judgments of first-instance military courts. In accordance with the Azerbaijani law, both the Court of Appeal and the Supreme Court are non-military courts that consist solely of civilian judges. Specifically, pursuant to Articles 92, 103 and 104 of the Law On Courts and Judges of 10 June 1997, no active member of armed forces is allowed to serve as a judge in any of the courts comprising the Azerbaijani court system. Therefore, the applicant’s allegation that he was tried by military tribunals is unsubstantiated.

As for the applicant’s other arguments, the Court considers that the applicant has failed to specifically show in what way the general critical views about certain problems in the Azerbaijani judicial system could be related to the independence and impartiality of the courts in his particular case. Likewise, the mere fact that the presiding judge rejected the majority of his petitions during the appellate hearings is not in itself sufficient to establish that the court lacked independence and impartiality.

The Court, therefore, finds that this complaint is unsubstantiated and must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

(c).  The applicant further complained that the “reasonable time” requirement of Article 6 § 1 of the Convention had not been respected in his case. Specifically, the length of the appellate proceedings had been beyond what may be considered reasonable since they lasted for more than one and a half years, including several long periods of unjustified inactivity.

The Government submitted that the length of the proceedings was justified because of the complexity of the case. A total of 62 persons were questioned by the appellate court during the proceedings. Almost six months were allocated for the defence counsels’ familiarisation with the case file and both parties’ preparation of the final statements.

The applicant contended that there had been unnecessary and unjustifiable delays during the proceedings which were attributable to the State. The first delay related to the period between 24 January 2002, when the appellate proceedings were instituted, and 14 May 2002, when the first preliminary hearing was held. The second delay from 14 May 2002 to 8 July 2002 could have been avoided by promptly admitting the new lawyer of the applicant’s choosing to act as his representative. The third delay occurred between 9 December 2002 and 15 April 2003. Although this period had been allocated for the preparation of the final statements, the applicant considered that the time attributed to this had been excessive. Finally, after the delivery of the defence’s final statement on 15 May 2003, it took almost two months until the delivery of the judgment on 10 July 2003.

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case and having regard in particular to the following criteria: the complexity of the case, the conduct of the applicant and that of the competent authorities (see e.g. Kemmache v. France (no. 1 and no. 2), judgment of 27 November 1991, Series A no. 218, § 60).

Having regard to the circumstances of this case, the Court considers that the period to be taken into consideration started on 24 January 2002, when the petition to allow an appeal was granted by the Court of Appeal, and ended on 5 February 2004, when the final decision was delivered by the Supreme Court.

The period prior to 15 April 2002, the date of the Convention’s entry into force with respect to Azerbaijan, falls outside the Court’s competence ratione temporis. Furthermore, the Court notes that, in total, the proceedings lasted for slightly more than two years in the course of which the merits of the applicant’s case were examined in two instances. In such circumstances, the Court cannot find that the total duration of these proceedings exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention (cf. Piare v. the Netherlands (dec.), no 37342/97, 29 February 2000).

In addition, even assuming that the minor delays mentioned by the applicant could be attributed to the State, the Court finds, on balance and having regard in particular to the total duration of the proceedings, that any such delay in itself is insufficient for concluding that the proceedings exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention (cf. Gibbs v. the Netherlands (dec.), no. 38089/97, 31 August 1999).

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.

(d).  The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he had been denied legal assistance of his own choosing, because the Court of Appeal had failed to take into account his refusal of the services of his former lawyer and held several hearings in the presence of that lawyer.

The Government submitted that the applicant had not exhausted the domestic remedies, because he had not specifically raised this complaint in his cassation appeal to the Supreme Court.

The applicant maintained that, in his cassation appeal, he had explicitly mentioned the relevant provision of CCrP which regulated activities of the defence counsel. In any event, he noted that complaining to the Supreme Court only after the delivery of the Court of Appeal’s final judgment would be “no longer able to redress” procedural violations that had occurred during the preliminary hearings in the Court of Appeal.

The Court recalls that Article 35 of the Convention normally requires that the complaints intended to be made subsequently in Strasbourg should have been made to the domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in the domestic law (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, § 34). The Court notes that the applicant has indeed made reference in his cassation appeal to Article 92.9.8 of CCrP, which regulates activities of the defence counsel. This reference, however, was made in connection with other alleged violations of the procedural rights of the applicant’s second lawyer. However, the applicant has not specifically put forward in substance the complaint relating to the presence of the first unwanted lawyer during the impugned preliminary hearings. Nor has he made a formal reference to a violation of Article 114 of CCrP specifying the procedure for dismissal of a counsel whose services were refused by the defendant.

As to the applicant’s allegation that the Supreme Court would be incapable of providing redress, the Court observes that, in accordance with Articles 416 and 419 of CCrP, the Supreme Court had competence to quash the Court of Appeal’s judgment and remit the case for re-examination, if it found that the Court of Appeal had violated procedural rules concerning the presence of a lawyer at the hearing. Accordingly, the remedy in question was capable of providing redress in respect of the alleged violation.

It follows from the above findings that this complaint must be rejected under to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of the domestic remedies.

4.  The applicant also complained under Article 6 § 2 of the Convention that the presumption of his innocence during the appellate proceedings had been violated, because the Court of Appeal considered him as a convict before the delivery of its final judgment and failed to take any action to prevent the state TV from broadcasting programs depicting him as a criminal and a separatist.

The Government submitted that the applicant had failed to exhaust the domestic remedies, because he had not raised the same complaint before the Supreme Court.

The applicant maintained that he had exhausted the domestic remedies, because he had filed relevant petitions with the Court of Appeal.

The Court notes that, under the domestic law, the Supreme Court had competence to deal with alleged procedural violations committed by the Court of Appeal. However, the complaint concerning the alleged violation of the presumption of innocence, as presented before this Court, had not been raised in substance by the applicant in his cassation appeal to the Supreme Court and, in essence, was first raised in his present application. The Court, therefore, finds that the applicant has failed to make use of the remedy available to him under the domestic law.

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

5.  The applicant complained under Article 13 of the Convention in conjunction with Article 6 of the Convention that the domestic remedies in his case had been ineffective because the domestic courts had been heavily biased in favour of the prosecution and not capable of providing a fair protection of his infringed human rights. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that this complaint is unsubstantiated. The applicant was given a possibility to have his case examined by the domestic courts and, in fact, he has done so. The mere fact that the outcome of the proceedings was unfavourable to him cannot lead to a conclusion that the remedy in itself was ineffective. As to the alleged irregularities during the domestic judicial proceedings, they have already been covered in sufficient detail in the applicant’s complaint under Article 6 of the Convention and do not warrant a separate examination under Article 13 of the Convention.

It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

6.  The applicant also complained under Article 14 of the Convention in conjunction with Article 6 of the Convention that he had been discriminated against by the domestic authorities on the basis of his political opinion and ethnic origin. 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 sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government argued that the applicant has never raised this complaint before the domestic authorities and, therefore, failed to exhaust the domestic remedies. Moreover, the Government stressed that the applicant had been convicted for crimes of general nature, such as misappropriation of official power, creation of illegal armed units, high treason and others. His ethnic origin or political opinion were irrelevant to the outcome of the trial.

The applicant reiterated his complaint without providing any detailed substantive response to the Government’s observations.

Even assuming that the applicant has exhausted the relevant domestic remedies, the Court finds that there is no sufficient evidence of discrimination in the case file. The Court notes that the criminal proceedings against the applicant were not formally based on political or ethnic grounds. Even though the applicant had cited political and ethnic reasons during his attempts to create the “Talysh-Mugan Autonomous Republic”, he was not formally convicted for his nationalistic ideas, but was convicted only for crimes of general nature. Under the domestic law, the crimes for which the applicant was convicted were equally prosecutable and punishable not depending on the offender’s political opinions or ethnic origin. Despite the applicant’s allegations that the courts were somehow informally influenced by ethnic or political considerations, the Court has not been provided with sufficient evidence proving this. Specifically, there is no evidence indicating that the applicant would be subject to more favourable treatment if he belonged to any other ethnic group.

It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

7.  The applicant complained under Article 7 of the Convention that the manner in which the commutation of the death penalty to life imprisonment was performed in 1998, i.e., by way of a parliamentary act instead of a judicial decision, was unlawful. Article 7 of the Convention 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.”

Even assuming that this part of the complaint falls within the ambit of Article 7 of the Convention, the Court considers that it is in any event inadmissible for the following reasons. The impugned event, i.e., the commutation of the death penalty by the operative provision of the parliamentary act, took place on 10 February 1998. The Court finds that this was an instantaneous act, insofar as it had an effect of immediate change in the status of the convicts concerned, including the applicant. This act occurred prior to 15 April 2002, the date of the Convention’s entry into force with respect to Azerbaijan. Accordingly, the Court finds that this part of the complaint is outside its competence ratione temporis and must be rejected in accordance with Article 35 § 4 of the Convention.

Secondly, under the same provision, the applicant complained that the domestic courts of appellate and cassation instances applied the Law of 10 February 1998 and the new Criminal Code retroactively to his detriment, since the life imprisonment was a heavier penalty compared to the 15-years’ imprisonment, which had been the only alternative to the abolished death penalty at the time of his conviction.

The Government stressed that the Law of 10 February 1998 that amended the provisions of the old Criminal Code, including Article 70-2 § 3, did not seek to impose any penalty or punishment for a criminal offence, but was essentially a general commutation of the death penalty to life imprisonment. The Government further noted that, pursuant to the domestic law, any new legal provision ameliorating the position of criminally liable persons was to be applied retrospectively. They also argued that, in comparison with the death penalty which was an irreparable and irreversible form of criminal punishment, the life imprisonment was a lighter and more humanistic penalty, since it ensured a person’s right to life as protected by the Convention and all other principal international human rights instruments. As such, the Government considered that the applicant’s complaint was manifestly ill-founded, because no heavier penalty had been imposed on the applicant than the one that was applicable at the time the criminal offences were committed.

The applicant contended that, in order to assess whether the application of the Law of 10 February 1998 was to his detriment, it was not proper to simply compare the severity of the death penalty in relation to that of the life imprisonment as suggested by the Government. Rather, the applicant argued that if, instead of being replaced by the life imprisonment, the death penalty had been simply abolished, his penalty would have been commuted to 15-years’ imprisonment, the only alternative penalty existing under the law applicable at the time the crimes were committed. However, by introducing the new form of penalty, the life imprisonment, in the Law of 10 February 1998, and automatically substituting it for the death penalty, the authorities factually deprived him of the opportunity to have his sentence reduced to 15-years’ imprisonment. Therefore, because the life imprisonment did not exist as a form of punishment before 1998, it could not be applied to the applicant retrospectively, taking into account the existence of the lighter alternative in the law applicable at the material time.

At the outset, the Court notes that the issue of applicability of the new sentence of life imprisonment in the applicant’s case was specifically considered by the domestic courts during the appellate and cassation proceedings that ended on 5 February 2004. In other words, the final decision confirming the commutation of the applicant’s sentence was delivered after the Convention’s entry into force with respect to Azerbaijan. It follows that this part of the complaint falls within the Court’s competence ratione temporis.

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 (nullum crimen, nulla poena sine lege) and prohibits in particular the retrospective application of the criminal law where it is to an accused person’s detriment (see e.g. Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, § 30, ECHR 2001-II). The Court considers that the principle of nulla poena sine lege is the only relevant consideration in this case since the applicant maintains that a heavier penalty was imposed on him than the one that was applicable at the time the offence was committed.

The Court also observes that the retrospective imposition of a new penalty is not in dispute in this case. The only question to be determined, therefore, is whether the severity of the new penalty of life imprisonment should be compared to the death penalty originally imposed on the applicant or to the alternative penalty, 15-years’ imprisonment, which was also applicable at the time the criminal offence was committed.

The Court notes that on 12 February 1996, in accordance with Article 70-2 § 3 of the old Criminal Code, taking into account the gravity of the crime committed, the applicant was sentenced to death. It is clear that this penalty was prescribed by law and applicable at the material time. In the Court’s view, the applicant’s argument that there existed a lighter alternative sentence at the material time is hypothetical and irrelevant for the purposes of Article 7, because this alternative sentence of 15-years’ imprisonment has never been imposed on the applicant by the domestic courts. During the applicant’s original trial, the sentencing domestic court had the competence to choose, depending on the gravity of the crime, between the two alternative penalties provided for by the law, and it chose the death penalty. For the purposes of this complaint, the Court is not concerned with the question whether this sentence was appropriate at the material time, because it is not its task to determine the applicant’s criminal responsibility and the gravity of the crime or assess the appropriate penalty (see mutatis mutandis Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V; and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 51, ECHR 2001-II).

Further, at the end of the subsequent appellate and cassation proceedings on 5 February 2004, the applicant’s crime was re-qualified under Article 279.3 of the new Criminal Code of 2000 and he was sentenced to the life imprisonment in accordance with this legal provision. It is undisputed by the parties that the life imprisonment is not a heavier sentence as compared to the death penalty. Accordingly, the Court cannot conclude that a heavier penalty was imposed on the applicant than the one that was applicable at the time the criminal offence was committed.

Moreover, in any event, the applicant was released from imprisonment on 5 September 2004, having spent in prison a total of no more than 11 years, less than the 15-year term he was asking for.

It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with 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 in respect of the complaint concerning the lack of adequate medical treatment in prison;

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the lack of adequate medical treatment in prison (complaint no. 1(a)), the absence of an effective domestic remedy against such lack of adequate medical treatment (complaint no. 1(b)), and the right to a fair trial (complaint no. 3(a));

Declares the remainder of the applications inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

HUMMATOV v. AZERBAIJAN DECISION


HUMMATOV v. AZERBAIJAN DECISION