HAMIDOV v. AZERBAIJAN
Inadmissible
Christos Rozakis
The applicant, Mr Iskender Hamidov, is an Azerbaijani national, who was born in 1948 and lives in Baku. He is represented before the Court by Mr Vidadi Mahmudov, a lawyer practising in Baku. The applicant is a former Minister of Internal Affairs. He was arrested in 1995 on charges of embezzlement of public funds, abuse of power and assault on a journalist. On 15 September 1995 the Supreme Court sentenced him to 14 years’ imprisonment. The judgment was final and was not subject to appeal according to the criminal law in force at the material time. Following the relevant changes in domestic law and in the light of Azerbaijan’s undertaking to the Council of Europe to review the cases of political prisoners, on 26 December 2001 the Prosecutor General lodged an application, requesting the court to allow the applicant’s case to be considered by an appellate court. On 6 February 2002 the Appeal Court granted the prosecutor’s request and allowed an appeal to be lodged against the judgment of the Supreme Court of 15 September 1995. On 29 May 2002 the criminal proceedings were re-opened. The new trial ended on 1 July 2003 with the judgment of the Appeal Court, partially amending the Supreme Court’s judgment of 15 September 1995 in favour of the applicant. The applicant’s guilt was maintained but the term of imprisonment was reduced to 11 years. The applicant did not appeal against this judgment to the Supreme Court. In September 2002, in the course of the new trial proceedings before the Appeal Court, the applicant brought an action against the prison authorities with a local court in Baku. He claimed that, according to the Criminal Procedure Code of the Republic of Azerbaijan, an accused, whose case is under consideration on appeal, should not be detained for more than seven months. He asked the court to order the prison authorities to release him. On 28 October 2002 the Garadagh District Court dismissed the applicant’s request. The court observed that the applicant had been sentenced by the Supreme Court’s judgment of 15 September 1995 to 14 years’ imprisonment. That judgment was final and was not subject to appeal at that time. Therefore, the applicant’s current imprisonment should be considered as an execution of the judgment in force and he is kept in prison as a convict not an accused. According to the domestic criminal procedure, the reopening of the case did not change the status of the applicant. The applicant appealed against this decision to the Appeal Court. He asked the court to quash the decision of the lower court and to recognise his detention as unlawful. On 6 December 2002 the Appeal Court dismissed the applicant’s appeal and upheld the decision of the Garadagh District Court. The applicant did not appeal against this decision to the Supreme Court. 1. The Constitution of the Republic of Azerbaijan of 1995 Article 65 reads as follows: “Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction reviewed by a higher tribunal or to seek pardon or lightening of his penalty.” 2. Code of Criminal Procedure of the Republic of Azerbaijan of 2000 Article 158 § 5 reads as follows: "The period for detention of the accused person whose case is under consideration before the first and appeal instances courts shall not exceed: seven months with respect to grave crimes..." 3. The Law on the Application of the new Criminal Procedure Code of the Republic of Azerbaijan of 2000 Article 7 § 5 reads as follows: “The judgments and other final court decisions which were taken under the old Criminal Procedure Code of the Republic of Azerbaijan before 1 September 2000 may be appealed before the appellate instance court or the Supreme Court of the Republic of Azerbaijan.” Article 10 reads as follows: “The new Criminal Procedure Code of the Republic of Azerbaijan enters into force as from 1 September 2000.”