CASE OF ABBASOV v. AZERBAIJAN
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
5. The applicant was born in 1964 in Dashkesan, Azerbaijan, and currently lives in Russia. 6. The applicant was a unit commander in the Azerbaijani Army. On 7 October 1994 he was arrested in Ganja, Azerbaijan, due to his alleged participation in the coup d'Etat organised by S. Huseynov. 7. On 31 July 1996 the Supreme Court, sitting as a court of first instance for especially serious crimes, convicted the applicant for high treason, use of armed forces against the citizens and constitutional government authorities, creation of illegal armed units, and illegal possession of weapons. He was sentenced to thirteen years' imprisonment and confiscation of property. This judgment was final and not subject to appeal under the rules of criminal procedure applicable at that time. 8. Upon Azerbaijan's admission to the Council of Europe, the applicant's name was included in the lists of the “alleged political prisoners in Azerbaijan” submitted to the experts of the Secretary General. 9. Pursuant to a presidential pardon decree of 18 October 2002, the applicant's sentence was reduced by half. 10. Pursuant to another presidential pardon decree of 28 August 2003, the applicant was released from serving the remainder of his sentence. As the applicant was no longer imprisoned, no final opinion was adopted by the experts of the Secretary General on whether he could be considered as a political prisoner. 11. In 2000 a new Code of Criminal Procedure (“the 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 transitional law allowing the lodging of an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules (“the Transitional Law”). 12. On 11 August 2004 the applicant, using the opportunity granted to him by the Transitional Law, filed a cassation appeal against the judgment of 31 July 1996 with the Supreme Court. On 17 August 2004 the Supreme Court refused to accept the appeal due to the applicant's failure to enclose a copy of the challenged judgment. 13. On 4 October 2004 the applicant again filed the cassation appeal, which was registered by the Supreme Court on 6 October 2004. In his appeal he noted that, although he had been pardoned and released from imprisonment, his conviction for high treason remained intact. He argued that his trial by the first-instance court had been unfair. He also argued that, under the new Criminal Code the actions for which he had been convicted could not be qualified as “high treason”. He asked the court to quash the judgment of 31 July 1996. 14. According to the Government, on 15 October 2004 the Supreme Court “informed the applicant that the appeal hearings concerning his case would be held on 7 December 2004”. According to the applicant, he did not receive any such summons and, in general, did not receive any information concerning his case for several months. 15. On 27 January 2005 the applicant wrote a letter to the Supreme Court inquiring about the status of the proceedings. He also requested to add an issue concerning the confiscation of property to his appeal. In reply, by a letter dated 15 February 2005, the Head of the Registry of the Supreme Court informed the applicant that the court had not received from him any documents in this respect. 16. On 5 April 2005 the applicant was sent a copy of the Supreme Court decision concerning his case, dated 7 December 2004. The applicant was informed that on 7 December 2004 the Supreme Court had examined his cassation complaint in the presence of a public prosecutor but in the absence of the applicant. The judgment was silent as to the reasons for holding the hearing in the applicant's absence. During the hearing, the prosecutor asked the court to dismiss the appeal. The court found that the applicant's guilt had been duly established during the trial in the first-instance court and that his actions had been properly qualified under the criminal law. Accordingly, the court dismissed the applicant's appeal as being unsubstantiated. 17. In accordance with the Law of 14 July 2000 on the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan (“the Transitional Law”), judgments and other final decisions delivered by first instance courts under the old CCrP before the entry into force of the new CCrP, may be reconsidered by an appellate court or the Supreme Court in accordance with the relevant provisions of the new CCrP. 18. In accordance with Article 415.0.3 of the new CCrP, the Supreme Court may leave the cassation appeal unexamined if the person lodging the appeal fails to attach to his appeal a copy of the disputed judgment or decision. 19. A cassation appeal lodged with the Supreme Court is transmitted to one of the judges of the relevant chamber of the Supreme Court for preliminary examination (Article 418.1 of the CCrP). Within three days of receiving the appeal, the judge carrying out the preliminary examination of the appeal must, inter alia, inform the public prosecutor, the convicted (or acquitted) person and other parties to the case or interested parties about the time and place of examination of the merits of the appeal (Articles 418.2 and 418.2.7 of the CCrP). 20. When examining the merits of the appeal, the Supreme Court deals only with the points of law and verifies whether rules of criminal law and criminal procedure had been applied correctly (Article 419.1 of the CCrP). The examination on the merits is carried out by a chamber composed of three judges. The persons having a right to lodge an appeal and the public prosecutor representing the prosecution before the Supreme Court have the right to be present at the court hearing (Article 419.2 of the CCrP). 21. The Supreme Court hearing is opened by the president of the chamber who announces which court decision will be examined and on what grounds, the composition of the chamber examining the case, and which of the parties to the criminal proceedings are present at the hearing. The absence of the person who has lodged the appeal, if he has been duly informed about the hearing, does not prevent the Supreme Court from deciding to proceed with the hearing in his or her absence (Article 419.4 of the CCrP).