ABBASOV proti Ázerbajdžánu

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24271/05
by Elchin ABBASOV
against Azerbaijan

The European Court of Human Rights (First Section), sitting on 24 October 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 30 May 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Elchin Abbasov, is an Azerbaijani national who was born in 1964 and lives in Dashkesan. He is represented before the Court by Mr E. Zeynalov.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The applicant’s original conviction and release

The applicant was a unit commander in the Azerbaijani Army. According to the applicant, on 7 October 1994 he was arrested due to his alleged participation in the coup d’état organised by S. Huseynov. According to official records, the applicant was arrested on 2 November and the order on his detention pending trial was issued on 4 November 1994.

On 8 November 1994 the applicant escaped from detention and went into illegal hiding in Moscow. On 22 February 1996 he was arrested by the Russian authorities. His arrest was officially sanctioned on 25 February 1996. In March 1996 he was extradited to Azerbaijan.

According to the applicant, he was forced to give self-incriminating evidence during the pre-trial investigation and was not given full access to the case file during the trial.

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 13 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.

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.

Pursuant to a presidential pardon decree of 18 October 2002, the applicant’s sentence was reduced by half.

Pursuant to another presidential pardon decree of 28 August 2003, the applicant was released from serving the remainder of his sentence.

B. Cassation proceedings

In 2000 a new Code of Criminal Procedure (hereinafter “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 lodging an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules (hereinafter the “Transitional Law”).

On an unspecified date in autumn 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. 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.

Having not received any answer to his appeal for several months, the applicant wrote a letter to the Supreme Court inquiring about the status of the proceedings. 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 any complaints or documents from the applicant.

However, on 5 April 2005 the applicant was sent a copy of the Supreme Court decision concerning his case. The applicant was informed that on 7 December 2004 the Supreme Court had actually examined his cassation complaint in the presence of a public prosecutor but in the absence of the applicant. 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. The court dismissed the applicant’s appeal as unsubstantiated.

COMPLAINTS

1. The applicant complained under Article 5 of the Convention that he had been unlawfully detained during the period from 7 October to 2 November 1994 in Azerbaijan and from 22 February to 25 February 1996 in Russia. Although he was actually detained during these periods, the official records failed to show the correct dates of his detention on both occasions.

2. The applicant further complained under Article 6 of the Convention that the trial by the first-instance court resulting in his conviction on 31 July 1996 had been unfair. The applicant also complained under Article 14 of the Convention, in conjunction with Article 6 of the Convention, that he had been unfairly convicted due to political motivations.

3. The applicant complained, again under Article 6 of the Convention, that the Supreme Court had not informed him about the date and place of the hearing and examined his cassation appeal in his absence but in the presence of a public prosecutor. As a result, the applicant was deprived of the opportunity to properly present his arguments and effectively participate in the proceedings.

4. Finally, the applicant complained that the punishment in the form of confiscation of property imposed on him by the judgment of 31 July 1996 was contrary to the requirements of Article 1 of Protocol No. 1 of the Convention.

THE LAW

1. The applicant complained under Article 5 of the Convention that he had been actually detained for periods longer than sanctioned by the official documents.

(a) As to the applicant’s allegation that he had been unlawfully detained by the Azerbaijani authorities through the period from 7 October to 2 November 1994, the Court notes that this part of the complaint concerns the events that occurred prior to 15 April 2002, the date of the Convention’s entry into force with respect to Azerbaijan. No proceedings concerning the lawfulness of the applicant’s allegedly unlawful detention were instituted after that date. It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

(b) As to the applicant’s allegation that he had been unlawfully detained by the Russian authorities through the period of 22-25 February 1996, the Court notes that it does not transpire from the application that the applicant wished to file a separate complaint against the Russian Federation. The Court finds that, in his application form, the applicant has clearly stated his intention to direct his application only against the Republic of Azerbaijan. As such, the alleged violation of the applicant’s right to liberty in Russia cannot be attributable to the respondent State. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicant complained under Article 6 of the Convention about the unfairness of the first-instance proceedings resulting in his conviction on 31 July 1996. In addition, he maintained that his conviction was motivated by political considerations, contrary to Article 14 of the Convention.

The Court notes that these proceedings took place prior to Azerbaijan’s ratification of the Convention. However, although the first-instance judgment of the Supreme Court of 31 July 1996 was final and not subject to appeal at the relevant time, the applicant thereafter acquired a right to file an appeal against this judgment following the reforms in the domestic criminal procedure law in 2000. The applicant took advantage of this new remedy and the cassation proceedings took place after Azerbaijan’s ratification of the Convention.

In this regard, the Court recalls that, where the facts consist of a series of legal proceedings, the date of entry into force of the Convention in respect of the Contracting State in question has the effect of dividing the period into two, the earlier part falling outside the Court’s jurisdiction ratione temporis (see e.g. Klimentyev v. Russia (dec.), no. 46503/99, 17 September 2002; Jacq v. Finland, no. 22470/93, Commission decision of 18 October 1995, unreported; and Mitap and Müftüoğlu v. Turkey, judgment of 25 March 1996, Reports of Judgments and Decisions 1996‑II, § 26-27). An appeal lodged after the Convention’s entry into force does not bring the earlier proceedings that gave rise to it within the Court’s temporal jurisdiction (compare with Stamoulakatos v. Greece (no. 1), judgment of 26 October 1993, Series A no. 271, p. 14, § 33; and Blečić v. Croatia [GC], no. 59532/00, §§ 77-81, ECHR 2006‑...). Therefore, although the applicant lodged a cassation appeal against the first-instance judgment after the Convention’s entry into force with respect to Azerbaijan, the Court has no competence to examine the alleged unfairness of the first-instance proceedings that gave rise to this cassation appeal.

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. The applicant complained under Article 6 of the Convention that he was not summoned to the hearing concerning the examination of his cassation appeal by the Supreme Court. Therefore, he could not participate in the hearing and was not given a chance to properly argue his case before the court.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the punishment in the form of confiscation of property, imposed on him by the judgment of 31 July 1996 pursuant to the old Criminal Code in force before 1 September 2000, violated his right to the peaceful enjoyment of his possessions.

Assuming that the complaint falls within the ambit of Article 1 of Protocol No. 1 of the Convention, the Court notes that the applicant’s property was confiscated prior to 15 April 2002. According to the Court’s case-law, a deprivation of ownership or other rights in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (see Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII, with further references). It follows that this complaint is also incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning his absence from the appeal hearing;

Declares the remainder of the application inadmissible.

Santiago Quesada Christos Rozakis
Deputy Registrar President