Chamber judgments concerning Azerbaijan

Hajiyev v. Azerbaijan (application no 5548/03) Violation of Article 6 § 1 (fairness)

The applicant, Fehmin Ahmedpasha oglu Hajiyev, is an Azerbaijani national who was born in 1959 and lives in Baku (Azerbaijan).

The applicant was an activist in the National Front, an organisation which played a key role in the country’s struggle for independence from the Soviet Union. In 1992, when the National Front came into power, he was appointed to a number of high-ranking military posts and in 1993 he became the Commander of the Special Police Force.

After the National Front lost political power in 1993, he was arrested and detained on remand. In August 1995 the Military Chamber of the Supreme Court sentenced him to ten years' imprisonment for attempted murder, among other things. In June 1996 the same court convicted him for failing to resist the Armenian occupation of the town of Khojaly and sentenced him to 15 year's imprisonment, to run concurrently. Under the old criminal procedure law applicable at that time, both Supreme Court judgments were final and not subject to appeal.

In 2000 a new Code of Criminal Procedure was adopted. Before its entry into force Parliament passed a transitional law which allowed appeals to be lodged against final judgments delivered under the old criminal procedure. Two years after lodging an appeal, the Court of Appeal informed him in a letter dated 31 March 2004 that, due to the new Code of Criminal Procedure which had come into force, the court could not deal with his case and advised him to appeal to the Supreme Court. He was subsequently pardoned and released from prison.

The applicant complained, in particular, that he was denied a fair and public hearing because the Court of Appeal failed to examine his appeal. Furthermore, he complained that he had suffered discrimination because the court had examined the appeals of three other people who had been in a situation similar to his. He relied on Articles 6 § 1 (access to court) and 14 (prohibition of discrimination) of the European Convention on Human Rights.

The Court noted that the transitional law provided for a right to have a case re-examined by "the appellate court or the Supreme Court." Given that wording, the applicant could not reasonably be expected to understand that his appeal fell within the competence of the Supreme Court and not the Court of Appeal. Furthermore, the applicant was not informed of that fact for more than two years after lodging his appeal. On the contrary, in response to his enquiries, he was led to believe that his case was actually pending examination in the Court of Appeal.

The Court concluded that, given the ambiguity of the transitional law and the absence of a clear domestic judicial interpretation of its relevant provisions, as well as the existence of at least three domestic precedents, it was reasonable for the applicant to believe that it was for the Court of Appeal to examine his appellate complaint.

The Court considered that it was for the Court of Appeal to take steps to ensure that the applicant enjoyed the right to which he was entitled under the Transitional Law and that the applicant should not have been required to apply to the Supreme Court.

Concluding that the applicant's right of access to a court had been restricted the Court held unanimously that there had been a violation of Article 6 § 1.

The Court considered that no separate examination was necessary of the applicant's complaint under Article 14. The Court awarded the applicant 3,000 euros EUR in respect of non-pecuniary damage and EUR 2,500 for costs and expenses (less EUR 850 granted by way of legal aid from the Council of Europe).

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