Eldar Zeynalov, Director,
Human Rights Centre of Azerbaijan
The release or retrial of
political prisoners according to universally recognised standards was
an obligation undertaken by the Government of Azerbaijan upon
accession to the Council of Europe
(CoE) in January 2001. In
the autumn of the same year, however, it became clear that there
would be no political amnesty for convicted opponents of the
Government. After retrials in 2003-2005 it became apparent that
justice had still not been achieved, and was unlikely in the future.
In 2005 a new initiative was started, refl ected in several
resolutions of the Parliamentary Assembly of the Council of Europe
(PACE) – the referral of the problem to the ECtHR.
Since then, four out of
13 ECtHR judgments against the Republic of Azerbaijan have concerned
former political prisoners and/or opposition leaders. Of the 32
admissibility decisions, seven relate to complaints by political
prisoners and two applications have been lodged by political emigres.
In particular, the applicant in Abbasov v. Azerbaijan (No. 24271/05)
17/1/08 featured in the list of alleged political prisoners submitted
to the Secretary General of the CoE upon Azerbaijan’s accession to the CoE and
the applicant in Hummatov v. Azerbaijan (Nos. 9852/03 and 13413/04)
29/11/07 has been recognised as a political prisoner by independent
CoE experts.[1]
The majority of these
applications alleged violations of the right to impartial
investigation and fair criminal proceedings. Thus, in Hummatov v.
Azerbaijan, the ECtHR found violations of Arts. 3, 6 and 13 of the
ECHR as the applicant did not (i) receive adequate medical treatment
in prison; (ii) have an eff ective domestic remedy against this lack
of adequate medical treatment; and (iii) have a fair trial. In
Mammadov (Jalaloglu) v. Azerbaijan (No. 34445/05) 11/1/07, the ECtHR
established breaches of Arts. 3 and 13 as the applicant, who was an
opposition leader, was subjected to ill-treatment in police custody
and there was no eff ective investigation into his allegations of
ill-treatment. In Hajiyev v. Azerbaijan (No. 5548/03) 16/11/06, the
applicant’s name appeared in the list of alleged political
prisoners and the ECtHR found a violation of the applicant’s right
to a fair trial due to the failure of the Court of Appeal of the
Republic of Azerbaijan to deal appropriately with his appeal.
In Abbasov v. Azerbaijan
the ECtHR not only found a violation of Art. 6 because the Court
hearing on the applicant’s appeal took place without the
participation of the defendant, but also made recommendations to the
domestic authorities under Art. 46. Although the case concerned
appeal proceedings, the ECtHR noted that it “cannot ignore the fact
that the applicant was included in the list of ‘alleged political
prisoners’ submitted to the experts of the Secretary General upon
Azerbaijan’s accession to the Council of Europe, indicating that
there were certain doubts as to the fairness of the
applicant’s conviction in 1996.”[2]
Therefore, “the Court considers that a retrial or the reopening of
the case, if requested, represents in principle an appropriate way of
redressing the violation in the present
case.”[3]
The delays in
registration of nongovernmental organisations (NGOs) has also given
rise to several applications against the Republic of Azerbaijan.
Thus, in Ramazanov and Others v. Azerbaijan (No. 44363/02) 1/2/07,
Ismayilov v. Azerbaijan (No. 4439/04) 17/1/08 and Nasibova v.
Azerbaijan (No. 4307/04) 18/10/07 the significant delays in the
registration of NGOs were found to violate Art. 11 of the ECHR.
As to admissibility
decisions concerning ‘non-political’ cases, these have created
important precedents for future cases from and against Azerbaijan.
The following cases were declared inadmissible on
procedural grounds:
- applications pre-dating
the entry into force of the ECHR with respect to the Republic of
Azerbaijan and therefore declared to be inadmissible or partly
inadmissible ratione temporis: Perchenok v. Azerbaijan (No. 34465/02)
dec. 30/1/03; Kazimova v. Azerbaijan (No. 40368/02); dec. 6/3/03;
Humbetov v. Azerbaijan (No. 9852/03) dec. 11/09/03; Guliyev and
Ramazanov v. Azerbaijan
(No. 34553/02) dec.
9/9/04; Abbasov v. Azerbaijan (No. 24271/05) dec. 24/10/06; Gaziyev
v. Azerbaijan (No. 2758/05) dec. 8/2/07; and Fatullayev v. Azerbaijan
(No. 33875/02) dec. 28/9/06.
- applications declared
inadmissible or partly inadmissible due to the non-exhaustion of
domestic remedies: Hamidov v. Azerbaijan (No. 283/03) dec. 8/1/04;
Hajiyeva v. Azerbaijan (No. 20700/03) dec. 22/9/05; Kunqurova (No.
5117/03) dec. 23/6/05; Guliyev v. Azerbaijan (No. 35584/02) dec.
27/5/04; and Ivanov v. Azerbaijan (No. 34070/03) dec. 15/2/07.
In addition, the
complaints of political emigres in Mutalibov v. Azerbaijan (No.
31799/03) dec. 19/2/04 and Guliyev v. Azerbaijan, who had sought the
right to participate in national elections, were declared
inadmissible ratione materiae. It was noted that the examination of
disputes concerning presidential elections related to political
rights, and not civil rights or criminal aff airs, and therefore did
not fall within the remit of Art. 6 or Art. 3 of Prot. 1 to the ECHR,
as the institution of ‘president’ was not a ‘legislative power’
for the purposes of the ECHR.
In Bayramov v. Azerbaijan
(No. 23055/03) dec. 14/2/06 the issue of admissibility ratione
personae was broached. In view of the fact that the applicant was a
member of an association which founded the private corporation, and
its executive director, he was not accorded victim status in the
context of Art. 34 of the ECHR as he was not a shareholder.
It should be noted that
in 2006 the Azerbaijani authorities introduced several measures aimed
at ensuring the application of ECHR caselaw in the practice of
national courts. Thus, on 19 January 2006, the President of the
Republic of Azerbaijan issued an edict according to which higher
instance
courts were instructed to
study and use ECHR caselaw. The Plenum of the Supreme Court took a
similar decision on 30 March 2006. Furthermore, an amendment was
introduced into the Criminal Procedure Code, in accordance with which
an ECtHR judgment against the Republic of Azerbaijan on a specific
case requires its review by the Plenum of the Supreme Court. Using
these statutory provisions, the former political prisoner, Sardar
Mammadov (Jalaloglu), having won his case at the ECtHR, is currently
demanding a review of his case and the punishment of those
responsible for his
ill-treatment. In
September 2007, the Plenum of the Supreme Court quashed the court
decisions of 2004 and returned the case to a trial court to
investigate the allegations of torture.
It is reassuring that, in
some instances the Azerbaijani authorities are seeking ‘friendly
settlements’ with applicants in order not to take complaints to
trial, including registering organisations and releasing people from
detention early. For these reasons, the applicants in Shirinov v.
Azerbaijan (No. 35608/02) dec. 19/1/06, Mustafayev v. Azerbaijan (No.
14712/05) dec. 9/11/06 and Asadov and Others v. Azerbaijan (No.
138/03) 26/10/06 withdrew their complaints.
However, the authorities
are undertaking other measures to withdraw certain complaints from
trial. For example, after communication of some complaints to the
Azeri authorities, the Plenum of the Supreme Court quickly reversed
the last decision in the case and referred the case back to a lower
authority. Following this a statement was made that the applicant had
not exhausted domestic remedies. It stands to reason that such steps
are not conducive to eliminating human rights violations. This
happened in the case of Guliyev and Ramazanov v. Azerbaijan - the
case was returned to the Court of Appeal by the Plenum, and the
attempts at negotiating a friendly settlement ended unsuccessfully
due to missed deadlines. During the proceedings in Fatullayev, the
Plenum twice returned the case to the Court of Appeal and then
delayed procedures (by up to 15 months) in the local courts until the
ECtHR found the application inadmissible due to the nonexhaustion of
domestic remedies.
The applicant in the case
of Ismayilov (No. 6285/03) dec. 7/6/07 died four years after the case
was lodged with ECtHR and while it was still pending an admissibility
decision. The case was struck out of the list.
To date only 3% of
admissibility decisions in cases against Azerbaijan have been
positive.[4] On
31 December 2007, 979 cases against Azerbaijan were pending before a
decision body of the ECtHR.[5]
Hopes for the speeding up of appeals to the ECtHR were raised by the
ratifi cation by the Azerbaijani Parliament of Protocol 14 to the
ECHR on 4 April 2006. However, its entry into force is still
postponed because of Russia’s position. Th erefore, the ECtHR has
not yet taken the critical quantity of decisions regarding Azerbaijan
that might substantially infl uence judicial practice and the
situation concerning the observance of human rights in the country.
-------
1 Council of Europe,
2001. Document SG/Inf(2001)34 / 24 October 2001, Cases of alleged
political prisoners in Armenia and Azerbaijan, [Online]. Available
at:
http://www.coe.int/t/e/SG/Secretary-General/Information/Documents/Numerical/2001/SGInf(2001)34E.asp#TopOfPage
[accessed 13 March 2008].
2 Para. 40.
3 Para. 41.
4 Registry of the
European Court of Human Rights, 2008. Survey of Activities 2007,
[Online]. Available at:
http://www.echr.coe.int/NR/rdonlyres/D0122525-0D26-4E21-B9D4-43AEA0E7A1F5/0/SurveyofActivities2007.pdf
[accessed 7 February 2008].
5 Ibid.
EHRAC Bulletin,
Issue9, Summer 2008, pp.5-6.
