CASE OF HAJIYEV v. AZERBAIJAN
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 14+6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
Christos Rozakis
7. The applicant was born in 1959 and lives in Baku. 8. The applicant was an activist of the National Front, an organisation which played one of the key roles in the country's struggle for independence from the Soviet Union. In 1992, when the National Front came into power in the country, he was appointed to a number of high military posts and in 1993 he became the Commander of the Special Police Force. 9. After the National Front lost political power in 1993, on 24 May 1994 the applicant was arrested and detained on remand. Upon arrest, allegedly, he was not informed of the charges against him and was refused access to a lawyer. On 7 August 1995 the Military Chamber of the Supreme Court, acting as a court of first instance, convicted the applicant for attempted murder (ten years' imprisonment), abuse of authority at wartime (eight years), intentional abuse of authority (four years), misuse of weapons (two years), negligent approach to military service (two years) and humiliation of a subordinate person (one year and six months), and sentenced him to a total of ten years' imprisonment by merging the sentences. 10. On 26 June 1996 the same court, again sitting in first instance, convicted the applicant for “failure to use authority to resist the Armenian occupation of the town of Khojaly and prevent the subsequent mass killing of the civilians fleeing the town”. The court sentenced the applicant to fifteen years' imprisonment, merging his previous ten-year sentence into this new sentence. The imprisonment period was to be calculated from the first day of the applicant's arrest on 24 May 1994. Pursuant to the old criminal procedure law applicable at that time, both Supreme Court judgments were final and not subject to appeal. 11. At the time of Azerbaijan's admission to the Council of Europe, the applicant's name appeared in the lists of “alleged political prisoners” in Azerbaijan submitted to the experts of the Secretary General. Azerbaijan had made a commitment to either release or give a re-trial to all persons identified as “political prisoners” by these experts. However, ultimately, the applicant was not regarded as a political prisoner by the experts of the Secretary General (see Cases of alleged political prisoners in Armenia and Azerbaijan, SG/Inf (2001) 34, Addendum I, 24 October 2001, Chapter 2 (III), Case No. 10 (the applicant's name is transliterated as “Fahmin Hadjiyev” in this document)). 12. In 2000 a new Code of Criminal Procedure (hereinafter “CCrP”) was adopted. Before its entry into force on 1 September 2000, on 14 July 2000 Parliament passed the Law On the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan (hereinafter the “Transitional Law”), which allowed lodging an appeal under the new CCrP against final judgments delivered in accordance with the old criminal procedure. 13. On 29 January 2002 the applicant lodged an appeal with the Court of Appeal against the Supreme Court's judgments of 7 August 1995 and 26 June 1996. By a letter of 13 February 2002, the Court of Appeal informed the applicant that, in addition to the appellate complaint, he also had to file a petition in order to restore the appeal period. 14. According to the applicant, he filed such a petition on 7 March 2002. Having not received an answer, he appealed again on 7 June 2002 and yet again on 7 October 2002. In reply to these applications, in its identical letters of 24 October 2002 and 27 November 2002 signed by a court clerk (the Head of the Correspondence Department of the Court of Appeal), the Court of Appeal informed the applicant that his case would be examined shortly by the Court of Appeal's Chamber on Military Courts' Cases and that he would be informed of any further developments in due course. 15. However, during the following period of over a year, despite the applicant's continuous inquiries, no examination of the case took place and no information in this regard was given to the applicant. 16. Finally, more than two years after lodging his appeal, by a letter of 31 March 2004 signed by the same court clerk, the applicant was informed that: “... in accordance with Article 72.2 of the Code of Criminal Procedure currently in force, the Court of Appeal may only examine criminal cases ... based on appeals or protests against first-instance courts' judgments and other decisions which have not entered into force [i.e. have not become final]... For re-consideration of the firstinstance judgments of the Supreme Court's Military Chamber of 7 August 1995 and 26 June 1996 you are advised to apply to the Supreme Court.” 17. Although, during the same period, the applicant was actively engaged in correspondence with the Supreme Court with regard to unrelated proceedings concerning the reduction of his sentence, the applicant did not file a formal appeal with the Supreme Court concerning the present case. 18. On 10 May 2004 the applicant was pardoned and released from prison pursuant to a presidential pardon decree. 19. 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”) Article 7: “Judgments and other final decisions delivered by first-instance courts under the [old] Code of Criminal Procedure ... before the entry into force of this [new] Code, may be reconsidered by an appellate court or the Supreme Court of the Republic of Azerbaijan in accordance with Articles 383-407, 409-427 or 461-467 of the [new] Code of Criminal Procedure.” 20. Code of Criminal Procedure of the Republic of Azerbaijan of 1 September 2000 Article 72.1 provides that the Court of Appeal of the Republic of Azerbaijan is a court of appellate instance concerning criminal cases and other matters related to criminal prosecution. Article 72.2 provides that the Court of Appeal of the Republic of Azerbaijan has a competence to examine criminal cases and other matters related to criminal prosecution based on appellate complaints or protests against judgments and other decisions of first-instance courts that have not entered into legal force. Article 73.1 provides that the Supreme Court of the Republic of Azerbaijan is a court of cassation instance concerning criminal cases and other matters related to criminal prosecution. Article 73.2 provides that the relevant chambers of the Supreme Court of the Republic of Azerbaijan have a competence to examine criminal cases and other matters related to criminal prosecution based on cassation complaints or protests against judgments and other decisions of the appellate courts or jury courts. Article 391.1 provides that the appellate court must hold a preliminary hearing of the case within 15 days after the receipt of an appellate complaint. The parties to the case and the state prosecutor have a right to attend this hearing. These persons must be informed in advance of the time and place of the hearing. Article 391.2 provides that, during the initial hearing, the appellate court must determine, inter alia, whether it has competence to examine the appellate complaint and whether the appellate complaint was submitted in accordance with the relevant procedural requirements. Article 391.3 provides that, upon the initial hearing, the appellate court may decide, inter alia, to leave the appellate complaint without examination, to forward the appellate complaint to a court having appropriate competence, to reinstate or refuse to reinstate the expired period for filing the appellate complaint, to appoint a judicial hearing for examination of the merits of the appellate complaint, or to refuse to admit the appellate complaint for examination.