CASE OF HAJIBEYLI v. AZERBAIJAN
Violation of Art. 6-1;Violation of P4-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1960 and lives in Baku. The applicant’s surname was “Hajiyev” before he formally changed it to “Hajibeyli” on 29 April 2005. 6. The applicant was a politician and a member of the opposition. On 29 April 2000 the Democratic Congress of Azerbaijan, a political block uniting a number of opposition political parties, held a demonstration in Fuzuli Square in Baku. Earlier, the Baku City Executive Authority (“BCEA”) had refused to grant authorisation to hold the demonstration in Fuzuli Square, suggesting instead that the demonstration be held in another location further from the city centre. However, contrary to the BCEA’s decision, the organisers of the demonstration refused to change their plans and decided to gather their followers in Fuzuli Square. 7. Soon after the start of the demonstration, police units began arriving in the square with the aim of dispersing the crowd. It appears that the police and the crowd engaged in a series of violent clashes. According to the applicant, the police used excessive force. The applicant himself was beaten by the police in the square and taken to a police station. 8. On 30 April 2000 the applicant was charged with the administrative offence of obstructing the police and, on the same day, the Nasimi District Court sentenced him to ten days’ “administrative detention” in accordance with Article 174 of the Code of Administrative Offences. 9. At around the same time, the Nasimi and Yasamal District Prosecutor’s Offices instituted criminal proceedings in respect of the demonstrators’ obstruction of the police. On 2 May 2000 the case was transferred to the Baku City Prosecutor’s Office. 10. On 4 May 2000 the Baku City Prosecutor’s Office charged the applicant, together with ten other persons, with obstructing state officials by the actual or threatened use of force, an offence under Article 189-1 § 2 of the former Criminal Code, which was in force before 1 September 2000. 11. On the same date the investigator issued an order for the applicant’s detention on remand in connection with this criminal charge. Under the former Code of Criminal Procedure such a decision could be taken by an investigator, not a court. 12. On 23 May 2000 the applicant’s detention on remand was substituted by a preventive measure prohibiting him from leaving his place of residence. He was therefore released from detention. 13. Between April and June 2000 the investigators interrogated a number of witnesses in connection with the case. It appears that no major investigative acts were carried out subsequently. 14. On 25 January 2001 the Baku City Prosecutor’s Office decided to suspend the investigation in the applicant’s case because one of the coaccused, S.H., had absconded and he could not be located or his testimony obtained. Moreover, it was noted that at that stage of the investigation a number of other “accomplices to the offence” had not been identified. The prosecutor found that, in the absence of S.H. and other unidentifed accomplices, it was not possible to conclude the investigation and give a legal assessment of the acts of the co-accused, including the applicant. Therefore, the prosecutor decided to suspend the investigation until such time as S.H. and other accomplices were found and brought before the investigating authorities. 15. According to the applicant, he was not informed about the decision to suspend the proceedings and he only found out at a later, unspecified, date. 16. On 7 July 2004 the applicant filed a lawsuit with the Sabayil District Court complaining of the unlawfulness of the prosecutor’s actions and requesting the court to discontinue the proceedings. He complained that the criminal charges against him were unfounded and based solely on the testimony of police officers. He also complained that his case was still at the preliminary investigation stage despite the fact that the proceedings had been instituted four years earlier. No procedural act had been carried out during that period. He pointed out that he remained under an obligation not to leave his place of residence and, as a result, could not obtain an international passport or travel abroad on personal business. 17. On 23 August 2004 the Sabayil District Court dismissed the applicant’s complaint and upheld the prosecutor’s decision. In essence, it reiterated the prosecutor’s reasons for suspending the proceedings and found them lawful. Its decision was silent as to the applicant’s continued inability to leave his place of residence and obtain a passport. On 14 October 2004 the Court of Appeal upheld the Sabayil District Court’s decision. Under the domestic rules of criminal procedure, the Court of Appeal was the highest instance for appeals against procedural decisions of investigative authorities. 18. Following requests by the applicant to the Baku City Prosecutor’s Office to discontinue the proceedings, on 24 August 2005 the criminal investigation was resumed. On 6 September 2005 the prosecutor decided that the offence with which the applicant was charged under Article 189-1 § 2 of the former Criminal Code was to be recharacterised under Article 315.1 of the new Criminal Code, which had entered into force on 1 September 2000. Accordingly, the prosecutor issued a new indictment under Article 315.1 of the new Criminal Code. 19. On 14 September 2005 the prosecutor of the Baku City Prosecutor’s Office discontinued the proceedings in respect of the applicant because, in accordance with Article 44 § 3 of the former Criminal Code, the criminal charge against him had become time-barred five years after the date of the commission of the alleged offence. The prosecutor noted that, although under the relevant provisions of the new Criminal Code the same charges would have become time-barred only after seven years from the date of the offence, these provisions could not be applied retroactively in the present case as they would aggravate the applicant’s position. The prosecutor also lifted the preventive measure prohibiting the applicant from leaving his place of residence. 20. The applicant filed a complaint with the Sabail District Court against the prosecutor’s decision of 14 September 2005. He disagreed with the formal ground that had been given for discontinuing the proceedings, claiming that the proceedings should have been discontinued because of the lack of a criminal element in his actions. 21. On 24 October 2005 the Sabail District Court dismissed the applicant’s complaint. The applicant appealed. On 13 December 2005 the Court of Appeal upheld the Sabail District Court’s decision. 22. In accordance with the former Criminal Code of 1960, which was in force before 1 September 2000, the offence of obstructing state officials by the actual or threatened use of force was punishable by imprisonment for a term of up to five years (Article 189-1 § 2 of the former Criminal Code). Charges in respect of offences punishable by imprisonment for a term of up to five years became time-barred five years after the date of their commission (Article 44 § 3 of the former Criminal Code). 23. In accordance with the new Criminal Code of 1 September 2000, a provision of criminal law which aggravates the position of a person who has committed an offence shall have no retroactive effect (Article 10.4). 24. Offences are classified according to four levels of gravity: offences which do not pose a major public threat, less serious crimes, serious crimes, and especially serious crimes (Article 15 of the new Criminal Code). Offences punishable by a prison sentence of more than two years and up to five years are considered as “less serious crimes” (Articles 15.2 and 15.3 of the new Criminal Code). Charges in respect of “less serious crimes” become time-barred seven years after the date of their commission (Article 75.1.2 of the new Criminal Code). 25. The use of violence against, or the violent obstruction of, a state official acting in the course of his or her official duties, or the actual or threatened use of violence against the relatives of a state official is punishable by imprisonment for a term of up to three years, and accordingly constitutes a “less serious crime” (Article 315.1 of the new Criminal Code). 26. In accordance with the Code of Criminal Procedure (“CCrP”) of 1 September 2000, the investigator may suspend criminal proceedings if, inter alia, an accused has not been identified or has absconded (Articles 51.1.1, 51.1.3 and 277.1). If the criminal proceedings involve two or more accused persons and if the ground for the suspension of the proceedings does not apply to all of them, the investigator may either sever the relevant part of the proceedings and suspend it or suspend the whole proceedings (Article 53.4). 27. While the proceedings are suspended, the prosecution must carry out all procedural acts which can be carried out in the absence of the accused and take all necessary measures for finding him or her (Articles 53.5 and 277.5). The proceedings remain suspended until such time as the ground for the suspension ceases to exist (Article 53.6). The suspended proceedings must be discontinued when the criminal charges become time-barred, unless the accused is evading prosecution, or is charged with crimes punishable by life imprisonment or other grave crimes, such as crimes against humanity and war crimes (Article 53.7). 28. Article 154 of CCrP provides for ten types of preventive measures, including inter alia an obligation not to leave one’s place of residence (Article 154.2.4.). Preventive measures may be imposed by the preliminary investigator, an investigator, a supervising prosecutor or a court (Article 155.1). 29. The obligation not to leave the place of residence is a preventive measure under which the suspect or accused is required to give a written undertaking to remain at the disposal of the prosecuting authority, not to leave his or her place of residence (city, town, village or other type of settlement) without the prosecuting authority’s permission, not to abscond, not to engage in criminal activity, not to impede the investigation or judicial examination of the case, to comply with any summons issued by the prosecuting authorities and courts, and to inform them of any change of address (Article 165.1). The obligation not to leave the place of residence is imposed by the prosecuting authority (Article 165.2). 30. The maximum permitted length of an active pre-trial investigation in respect of a person charged with a “less serious crime” is nine months, including all possible extensions of the initial three-month investigation period (Articles 218.2.2, 218.6.2, 218.7.2, 218.8.2 and 218.10.2). 31. Complaints against the procedural acts and decisions of a prosecuting authority are subject to judicial review by a single judge of the relevant court of first instance (Articles 442.2.2, 442.3 and 449). A further appeal against a decision of the court of first instance may be lodged with an appellate court (Article 442.4). The decision of the appellate court is final and not subject to further appeal (Articles 453.10 and 454). 32. In accordance with section 1 of the Law on the Entry into and Departure from the Country and on Passports of 14 June 1994, the right of a person charged with a criminal offence to leave the country may be temporarily suspended until the end of the criminal proceedings.