CASE OF KERIMLI v. AZERBAIJAN
Remainder inadmissible;Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1965 and lives in Baku. 6. The applicant is an opposition politician and, since 2001, the chairman of the reformist wing of the Azerbaijan Popular Front Party. 7. On 10 September 1994 the applicant was arrested during a demonstration organised by the Popular Front Party and taken to the Baku City Chief Police Department where a hand grenade was allegedly found in the pocket of his suit’s jacket. According to the applicant, the suit had been acquired immediately before the demonstration and he had not had time to remove the manufacturer’s stitches sealing the pockets and, therefore, would not have been physically able to put anything inside the pockets. 8. On the same day, criminal proceedings were instituted against the applicant under Article 220 (illegal possession of weapons) of the 1960 Criminal Code (in force until 1 September 2000, when it was replaced by the new Criminal Code). 9. Until 13 September 1994, the applicant was detained as a suspect. On 13 September 1994 he was formally charged under Article 220 § 1 of the 1960 Criminal Code by the investigator of the Baku City Chief Police Department. On the same day, the investigator ordered his detention on remand pending trial. 10. By a decision of the investigator of 23 September 1994 the applicant was released from detention. 11. By a decision of the investigator of the Nasimi District Prosecutor’s Office of 11 December 1995, the investigation in the framework of the criminal proceedings against the applicant was suspended on the ground that “the perpetrator of the criminal offence [had] not been identified”. The applicant was not informed about the decision to suspend the investigation at that time. 12. In the 1995 and 2000 parliamentary elections, the applicant was elected and re-elected to the National Assembly for two consecutive terms and served as a parliament member until 2005. In the elections of 6 November 2005, according to the official election results published by the Central Electoral Commission, he was again re-elected to the National Assembly, however on 1 December 2005 the Constitutional Court annulled the election results in the applicant’s constituency in an arbitrary manner, depriving the applicant of his parliamentary seat (see, for more details, Kerimli and Alibeyli v. Azerbaijan, nos. 18475/06 and 22444/06, 10 January 2012). 13. The applicant held a diplomatic passport issued in 1998, which expired in 2003. On 15 July 2003 he was issued a new diplomatic passport valid until 31 December 2005. 14. In addition, the applicant held a regular passport issued in 2001, which expired on an unspecified date in June 2006 (according to the applicant) or on 24 July 2006 (according to the Government). 15. In June 2006 the applicant applied to the Passport Registration Department of the Ministry of Internal Affairs (“the PRD”) for a new regular passport. However, according to the applicant, his application was rejected in an informal manner. The applicant was informed that the PRD had no information of the outcome of the criminal proceedings instituted in 1994. He was told that, as the PRD could not issue passports to persons against whom criminal proceedings were pending, the applicant had to provide a statement from the relevant prosecuting authorities confirming that the criminal proceedings had been discontinued. 16. Following an inquiry with the Baku City Chief Police Department, the applicant discovered that the criminal proceedings instituted in 1994 had been transferred to the Nasimi District Prosecutor’s Office and suspended on 11 December 1995, but had never been discontinued. 17. Subsequently, the applicant complained about the authorities’ failure to discontinue the proceedings and his resulting inability to receive a passport to the Prosecutor General’s Office, the Baku City Prosecutor’s Office, the Nasimi District Prosecutor’s Office and the Ministry of Internal Affairs, but to no avail. 18. In September 2006 the applicant lodged a civil action against the PRD and the Nasimi District Prosecutor’s Office, asking the court to order the PRD to issue him a passport and to order the prosecutor’s office to “remove the restriction on his freedom of movement” by discontinuing the criminal proceedings instituted in 1994. He noted that, the limitation period for prosecution in respect of the criminal offence under Article 220 of the 1960 Criminal Code was five years from the date of the alleged criminal offence, while under the 2000 Criminal Code it was seven years in respect of the equivalent criminal offence. He therefore argued that the proceedings should have been discontinued years earlier owing to the expiry of the prescription period. 19. On 2 November 2006 the Nasimi District Court dismissed the applicant’s claim as unsubstantiated. It noted that the Nasimi District Prosecutor’s Office had responded to the applicant’s requests by advising him to apply to the PRD and that the applicant had been unable to demonstrate that the PRD had breached his rights. 20. On 14 March 2007 the Court of Appeal upheld the Nasimi District Court’s judgment on the same grounds, and also added that the applicant had failed to appeal against the decision of 11 December 1995 to suspend the investigation under the relevant procedure of judicial supervision. 21. On 15 February 2008 the Supreme Court quashed the Court of Appeal’s judgment and terminated the civil proceedings. It noted that the complaints raised by the applicant, and more specifically his complaint concerning the prosecution authorities’ failure to discontinue the criminal proceedings, were subject to examination under the criminal procedure and not in the civil proceedings under the rules of civil procedure. The applicant was advised to lodge a complaint against the prosecuting authorities’ actions under the relevant procedure of judicial supervision envisaged by the Code of Criminal Procedure (“the CCrP”). 22. In May 2008 the applicant lodged such a complaint under the procedure of judicial supervision provided by Article 449 of the CCrP, asking the court to discontinue the criminal proceedings instituted in 1994 owing to the expiry of the prescription period. 23. On 26 May 2008 the Nasimi District Court dismissed this complaint, noting that, while the CCrP provided for a right to complain against a prosecuting authority’s decision to discontinue the proceedings, the same Code did not provide for a right to complain against the prosecuting authority’s failure to take a decision to discontinue the proceedings. Therefore, the court could not order the Nasimi District Prosecutor’s Office to discontinue the proceedings. Furthermore, the court noted that it had no competence under the CCrP to discontinue the proceedings itself. 24. On 22 July 2008 the Baku Court of Appeal upheld the decision of the Nasimi District Court. No further appeal lay against the Baku Court of Appeal’s decision.