CASE OF NATIG MIRZAYEV v. AZERBAIJAN
Violation of Art. 6-1
Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The applicant was born in 1971 in Baku and is currently serving a life sentence in Gobustan Prison. 6. The applicant was sought by the law-enforcement authorities for complicity in a number of criminal offences, including two murders, committed in 1994. 7. On 22 October 1998 the applicant was arrested in Russia and on 11 March 1999 he was extradited to Azerbaijan. 8. On 24 January 2000 the Supreme Court, sitting as the court of first instance, convicted the applicant of complicity in two counts of murder, several counts of theft, illegal possession and sale of weapons, and hooliganism. The sentences for these offences were merged, and the applicant was sentenced to life imprisonment and confiscation of property. 9. Following his conviction, in January 2000 the applicant was transferred to the 5th wing of Bayil Prison, formerly designated for convicts sentenced to death. 10. On 5 January 2001 he was transferred to Gobustan Prison, located outside Baku, where he is currently detained. The applicant is held, together with one other inmate, in a cell measuring 2.5 x 3.8 metres and 3.5 metres high. The cell has two beds, a small bedside cupboard, and one small table and two chairs fixed to the cell floor. The toilet area is separated from the rest of the cell. The floor and ceiling are made of stone and concrete respectively. The temperature inside the cell is very high in summer and very low in winter. Central heating is available, but insufficient. 11. The window has metal bars and no pane and, in winter, is closed with a transparent polyethylene film. The air inside is stale and the cell cannot be naturally ventilated. The food served in the prison is often of poor quality and lacks sufficient meat and vitamins, and the menu is unvaried and monotonous. The inmates are allowed only about half an hour’s outdoor exercise a day. 12. After his transfer to Gobustan Prison, the applicant was detained respectively in cell 150 in the 5th unit and in cell 184 in the 6th unit. Since 6 April 2005 he has been detained in cell 188 in the 6th unit. All these cells are intended for two prisoners and their size is 10 sq. m. 13. The conditions of the applicant’s detention meet all the national and international requirements and standards. The window of the cell can be opened from the inside. The window is large enough and does not prevent the entrance of natural light and fresh air. The cell is also provided with electric lamps, a ventilator and a radio set. 14. Since June 2008 the prisoners have had the right to watch TV for four hours a day and six hours at weekends and holidays. The prison has a library accessible to the prisoners. The sanitary conditions are normal and the food is of good quality. The applicant has the right to one hour’s outdoor exercise a day. 15. When he arrived at Bayil Prison, he was in good health and was not suffering from any illness. In Bayil Prison, the applicant was initially placed in a cell which had previously accommodated inmates who were suffering from contagious conditions, and which had not been disinfected. 16. In February 2000 the applicant was transferred to another cell, which he shared with A., an inmate suffering from tuberculosis. According to the applicant, he contracted tuberculosis from his cellmate. He began to feel the first symptoms of the disease shortly after his transfer to that cell. He had been in the same cell as A. from 15-16 February 2000 to 20 March 2000, from 19-20 May 2000 to the middle of June or July and from the beginning of October to 5 January 2001. 17. During that period inmates of the 5th wing of Bayil Prison who were suffering from tuberculosis were generally not transferred to any specialised medical facilities but received treatment while remaining in their cells. There was a high mortality rate among inmates suffering from tuberculosis. 18. Following his transfer to Gobustan Prison, in June 2001 the applicant was diagnosed with pulmonary tuberculosis. By that time, he had lost a significant amount of weight and was coughing blood. On 9 June 2001 he was transferred for in-patient treatment to the Specialised Medical Establishment for Prisoners with Tuberculosis. He received treatment based on the World Health Organisation’s DOTS (Directly Observed Treatment, Short Course) programme. 19. On 16 February 2002 the applicant was transferred back to Gobustan Prison, where he continued to receive outpatient treatment. From 2 to 9 October 2004, from 1 to 8 October 2005, from 26 November to 3 December 2005 and from 24 December 2005 to 10 February 2006 the applicant was sent to various medical facilities for examination and inpatient treatment. 20. According to a statement issued on 16 February 2006 by the Medical Facility of the Ministry of Justice following the applicant’s latest examination and in-patient treatment, the applicant was diagnosed with, inter alia, focal tuberculosis of the upper lobes of both lungs in the consolidation phase and residual symptoms of tuberculosis. 21. The Government submitted that it was doubtful that the applicant had contracted tuberculosis in Bayil Prison. When he was sharing a cell with A. in May 2000 the latter had recovered and his disease was not contagious. In this regard, the Government noted that the applicant had been diagnosed with tuberculosis in June 2001, when he was in Gobustan Prison. 22. The applicant was sent to the Specialised Medical Establishment for Prisoners with Tuberculosis, where he received in-patient treatment on the basis of the DOTS programme of the WHO. The applicant’s treatment lasted until 16 February 2002 and after his recovery he was transferred back to Gobustan Prison. 23. On 26 March 2002 the applicant received outpatient treatment with vitamins. On 7 April 2002 this treatment was completed and the applicant’s health was considered satisfactory. On 12 June and 8 October 2002 and on 12 March 2003 the applicant was examined by a doctor and no deterioration of his health was observed. 24. The applicant was subsequently examined, on 24 February 2002, on 1 May 2003, on 3 June 2004 and on 24 October 2005, by a group of doctors in Gobustan Prison. According to each examination, the applicant was diagnosed with clinically recovered pulmonary tuberculosis and prescribed dispensary supervision. 25. From 2 to 9 October 2004 the applicant was examined in the prison medical unit and, according to the clinic laboratory and X-ray examination results, there was no need for in-patient treatment. 26. In October 2005 the applicant was again instructed to go to the medical unit, however he refused to go there because of his religious fast. 27. Following examinations on 26 November 2005 and 24 December 2005 the applicant’s health was pronounced fully improved and it was stated that there was no need for any special treatment under the DOTS programme. 28. On 10 October 2005 the applicant lodged a civil action against the Bayil Prison authorities, seeking compensation for damage caused to his health. He claimed that the prison authorities were directly responsible for his having contracted tuberculosis, taking into account the poor conditions of detention and the fact that he had been held in the same cells as inmates with tuberculosis. In support of his claims he submitted written statements by other inmates who had previously been detained in Bayil Prison. The applicant further asked the court to ensure his presence at the hearings. 29. On 24 January 2006 the Sabail District Court dismissed the applicant’s claim, finding that the applicant had failed to prove that he had been deliberately placed in a cell with inmates who were ill and had contracted tuberculosis as a result. The court further held that, in such circumstances, the Bayil Prison authorities could not be considered to have ill-treated the applicant in any way. Concerning the written statements of other inmates detained at that time in Bayil Prison, the court held that these statements were not reliable, because as former inmates of Bayil Prison the authors of these statements could be biased against the administration of Bayil Prison. 30. The applicant was not personally present at the hearings of the firstinstance court, but was represented. The judgment of the first-instance court was silent as to the applicant’s request on his attendance at the hearing. 31. The applicant lodged an appeal, reiterating his previous complaints and his request for leave to appear at the hearings. On 14 July 2006, having examined the applicant’s appeal in the absence of the applicant and his representative, the Court of Appeal rejected the appeal, finding that the applicant’s arguments were unsubstantiated. Following the applicant’s cassation appeal, on 8 May 2007 the Supreme Court quashed the judgment of 14 July 2006 and remitted the case to the Court of Appeal for a new examination. The Supreme Court found that the Court of Appeal had neither examined the question of the applicant’s participation in the appeal hearing nor informed his representative about the time and place of the hearing. The relevant part of the Supreme Court’s decision read as follows: “As a court of full jurisdiction under Article 372.1 of the Code of Civil Procedure, the appellate court which examines the case on its merits on the basis of the evidence in the file or additionally submitted evidence, did not discuss the question of N. Mirzayev’s impossibility to exercise his right to attend the hearings because of his imprisonment, thus independent of his will, and did not take any measure or decision in order to ensure his presence at the hearings. N. Mirzayev’s representative was not informed of the place and date of the hearing. Therefore, N. Mirzayev was deprived of the possibility to attend the hearing on his case and to benefit from the procedural rights provided for by Article 47.2 of the Code of Civil Procedure”. 32. On 26 September 2007, having examined the case in the absence of the applicant but in the presence of his representative, the Baku Court of Appeal dismissed the applicant’s appeal and upheld the Sabail District Court’s judgment of 24 January 2006. The appellate court’s judgment was silent as to the applicant’s request for leave to appear. 33. On 26 February 2008 the Supreme Court dismissed the applicant’s cassation appeal and upheld the Baku Court of Appeal judgment. The proceedings before the Supreme Court were held in the applicant’s absence, but in the presence of his lawyer. The Supreme Court noted that the absence of the applicant was not a ground for quashing the appellate court’s judgment, because the applicant had been represented in those proceedings. The Supreme Court also noted that the applicant’s personal presence was not mandatory and his presence should be secured only if the court considered it necessary. The relevant part of the Supreme Court’s decision read as follows: “It appears from the legislation that the right to call a person who is represented before the court by a representative, to attend the hearing in person belong to the court which examines the case, only if this court considers it necessary, and the application of this provision is not mandatory ... ... taking into consideration the fact that N. Mirzayev’s presence at the hearing was not necessary, because he was represented by his representative when the appellate court examined the case, the panel of court considers unfounded to quash the judgment for the lack of N. Mirzayev’s presence at the hearing.” 34. In June 2008, the applicant lodged a civil action against the Gobustan Prison authorities, seeking compensation for damage caused to his health. He complained in particular that adequate medical assistance was not available in Gobustan Prison. The application was drafted in Russian. 35. On 4 July 2008 the Garadagh District Court refused to admit the applicant’s complaint. The court held that the application had been drafted in Russian, not in Azerbaijani, which is the official language of the country, and that no justification had been given for drafting the application in Russian. 36. Following an appeal by the applicant against this decision, the Garadagh District Court agreed to hear the applicant’s complaint and on 4 September 2008 held a preliminary hearing. At the request of the applicant’s representative, the court commissioned an expert report on the applicant’s illness and adjourned the proceedings. 37. The proceedings were then adjourned because of the expiration of the power of attorney of the applicant’s representative. On 17 March 2009 the court decided to leave the applicant’s complaint unexamined due to the failure of both the claimant and the defendant to attend the hearing. 38. The proceedings were subsequently continued and on 15 February 2010 the Garadagh District Court delivered a judgment on the merits. The court dismissed the applicant’s complaint, noting that the applicant had been provided with adequate medical assistance after he was diagnosed with tuberculosis. The court also held that the applicant’s allegations had not been confirmed by the expert opinion, according to which it was impossible to establish that the applicant had contracted tuberculosis in prison. 39. On 25 March 2010 the applicant appealed against the first-instance court’s judgment and reiterated his previous complaints. 40. The proceedings before the appellate court are still pending. 41. Parties to civil proceedings may appear before a court in person or act through their representative (Articles 47, 49 and 69 of the Code of Civil Procedure (“the CCP”)). 42. The Code on Execution of Punishments (“the CEP”) provides that a convicted person may be transferred from a prison to an investigative unit if his participation is required as a witness, suspect or accused in connection with certain investigative measures (Article 69-1). The CEP is silent as to the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant.