CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 26 novembre 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 36122/06 by Natig MIRZAYEV against Azerbaijan The European Court of Human Rights (First Section), sitting on 26   November 2009 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 18 August 2006, Having deliberated, decides as follows: THE FACTS The applicant, Mr Natig Mirzayev, is an Azerbaijani national who was born in 1971 and is currently serving a life sentence in Gobustan Prison. 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 conviction and attempts to have the conviction reviewed The applicant was sought by the law-enforcement authorities for complicity in a number of criminal offences, including two murders, committed in 1994. On 10 February 1998 Parliament passed the Law on Amendments to the Criminal Code, Code of Criminal Procedure and Correctional Labour Code of the Republic of Azerbaijan in connection with the Abolition of the Death Penalty in the Republic of Azerbaijan (“the Law of 10 February 1998”), which amended all the relevant domestic legal provisions, replacing the death penalty with life imprisonment. In October 1998 the applicant was arrested in Russia and in March 1999 he was extradited to Azerbaijan. On 24 January 2000 the Supreme Court of Azerbaijan, sitting at first instance, convicted the applicant of complicity in two counts of murder, several counts of theft, illegal possession and sale of weapons, and hooliganism. By way of a merger of sentences, the applicant was sentenced to life imprisonment and confiscation of property. Being a decision of the highest tribunal, this judgment was final and was not subject to appeal at the material time. On 1 September 2000 a new Code of Criminal Procedure (“the CCrP”) and new Criminal Code were enacted. 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 final judgments delivered in accordance with the old criminal procedure rules (“the Transitional Law”). In 2004 the applicant attempted to challenge his conviction by filing several complaints with the Court of Appeal and the Supreme Court. In reply, he was informed that his complaints did not comply with formal requirements for an appeal. On 18 October 2004 the applicant lodged, with the Court of Appeal, a petition to restore the missed appeal period under the Transitional Law. On 14 January 2005 the Court of Appeal refused to restore the appeal period, finding that the applicant had no good reasons for lodging his appeal more than four years after the enactment of the Transitional Law. On 28 April 2005 the Supreme Court quashed this decision, noting that the applicant had to appeal directly to the Supreme Court, and not to the Court of Appeal. On 18 October 2005 the applicant lodged a cassation appeal, together with a petition to restore the appeal period under the Transitional Law. On 8   June 2006 the Supreme Court refused to restore the appeal period. It found that an eighteen-month period for lodging cassation appeals had started to run from the date of enactment of the Transitional Law, and that the applicant was unable to show that he had good reasons for lodging a belated appeal. B.     Proceedings concerning the alleged unlawfulness of the criminal sentence On 17 February 2004 the applicant lodged a complaint with the Constitutional Court, claiming that the application of life sentence in his case had been unconstitutional and that he should have been sentenced to fifteen years’ imprisonment. By a letter of 5 August 2005, the Constitutional Court refused to entertain the applicant’s complaint and noted that, according to its earlier decision of 28 July 2005, issues regarding commutation of the death penalty to life sentence in individual cases should be subject to examination by the courts of general jurisdiction on a case ‑ by ‑ case basis. On 19 August 2005 the applicant lodged an action with the Garadagh District Court, complaining that the new sentence of life imprisonment had been applied retroactively to his detriment. He argued that he should have been sentenced to fixed-term imprisonment of up to fifteen years, which had been the only alternative to the abolished death penalty at the time when he had committed the criminal offences carrying those sentences. On 3 April 2006 the Garadagh District Court confirmed the lawfulness of the applicant’s sentence, imposed under the Law of 10 February 1998. The applicant was not present personally and was unrepresented at that hearing, but a public prosecutor was present. Having missed the 20-day appeal period, on 8 May 2006 the applicant lodged an appeal against that judgment via the Garadagh District Court, together with a petition to restore the appeal period. This petition was rejected and the appeal was not admitted. The applicant challenged this decision and on 6 July 2006 the Court of Appeal decided to admit the appeal. The case file contains no further information concerning these proceedings. C.     Conditions of detention and medical treatment during imprisonment 1.     Conditions of detention Following the conviction, in January 2000 the applicant was transferred to the 5th Wing of Bayil Prison, formerly designated for convicts sentenced to death. On 5 January 2001 he was transferred to Gobustan Prison, located outside Baku, where he is currently detained. The applicant’s account of the conditions of his detention in Bayil Prison and Gobustan Prison is similar to that summarised in Pashayev v.   Azerbaijan ((dec.), no. 36084/06, 24 September 2009). 2.     The applicant’s state of health and medical treatment In Bayil Prison, the applicant was initially placed in a cell which had previously accommodated contagiously ill inmates and which had not been disinfected. In February 2000 the applicant was transferred to another cell, which he shared with A. Hummatov, an inmate suffering from tuberculosis. According to the applicant, he contracted tuberculosis from his cellmate. He began to feel the first symptoms of the disease shortly after his transfer to that cell. During that period inmates of the 5th Wing of Bayil Prison suffering from tuberculosis were generally not transferred to any specialised medical facilities but received treatment while remaining in their cells. There was a high mortality rate among inmates suffering from tuberculosis. Following his transfer to Gobustan Prison, in June 2001 the applicant was diagnosed with pulmonary tuberculosis. By that time, he had lost a significant amount of weight and had been coughing blood. On 9 June 2001 he was transferred for inpatient treatment to Specialised Medical Establishment No. 3 for Prisoners Suffering from Tuberculosis. It appears that he received treatment based on the World Health Organisation’s DOTS (Directly Observed Treatment, Short-course) programme. On 16 February 2002 the applicant was transferred back to Gobustan Prison, where he continued to receive unspecified outpatient treatment. During the periods from 2 to 9 October 2004, from 1 to 8 October 2005, from 26 November to 3 December 2005 and from 24 December 2005 to 10   February 2006 the applicant was sent to various medical facilities for examination and inpatient treatment. According to a statement issued on 16 February 2006 by the Medical Facility of the Ministry of Justice following the applicant’s latest examination and inpatient treatment, the applicant was diagnosed with, inter alia , focal tuberculosis of the upper lobes of both lungs in the consolidation phase and residual symptoms of tuberculosis. In March and August 2006 the applicant declared hunger-strikes, demanding adequate medical treatment. D.     Civil action concerning the alleged lack of adequate medical treatment On 10 October 2005, relying on Articles 1096 (tort) and 1097 (civil liability for tort) of the Civil Code, the applicant lodged a civil action against the administration of Bayil Prison, seeking compensation for harm caused to his health, in the amount of 20,000 New Azerbaijani manats (AZN). He claimed that the prison administration was directly responsible for his contracting tuberculosis, taking into account the poor conditions of detention and the fact that he had been held in the same cells as inmates suffering from tuberculosis. In support of his claim, he submitted written statements by other inmates who had previously been detained in Bayil Prison. He also submitted reports of various international organisations and non-governmental organisations concerning the conditions of detention in Bayil Prison. He relied extensively on the case-law of the Court. The applicant was not personally present at the hearings of the first ‑ instance court, but was represented by counsel. According to the applicant, his request to participate in the hearings was rejected by the court. On 24 January 2006 the Sabail District Court dismissed the applicant’s claim, finding that the applicant had failed to prove that he had been deliberately placed in a cell with ill inmates and had contracted tuberculosis as a result of that. The court further held that, in such circumstances, the administration of Bayil Prison could not be considered responsible for any type of ill-treatment in respect of the applicant. The applicant lodged an appeal reiterating his complaints. He also requested that the administration of Gobustan Prison be joined as a co ‑ defendant in the case, but this request was ignored. On 14 July 2006, having examined the merits of the appeal in the absence of the applicant and his counsel, the Court of Appeal rejected the appeal, finding that the applicant’s arguments were unsubstantiated. A copy of the Court of Appeal’s judgment was sent to the applicant on 22 January 2007. He received that copy on 7   February 2007. In the meantime, according to the applicant, in October 2006 he was strip-searched and some of his possessions were confiscated by the prison authorities. According to him, this was done in retaliation for complaining against the administration of Bayil Prison. He complained about this to the Penal Service of the Ministry of Justice, but his complaint was rejected as unsubstantiated as no evidence of ill-treatment had been presented. In March 2007 the applicant lodged a cassation appeal against the Court of Appeal’s judgment of 14 July 2006, complaining of a number of procedural breaches. On 8 May 2007, having examined the cassation appeal in the absence of the applicant and his counsel, the Supreme Court quashed the Court of Appeal’s judgment and remitted the case. It found that the Court of Appeal had neither examined the question of the applicant’s participation in the appeal hearing nor informed his counsel about the time and place of the hearing. On 11 June 2007 the applicant requested the Baku Court of Appeal to ensure his presence at the appeal hearing. It appears that this request was ignored. On 26 September 2007, having examined the case in the absence of the applicant but in the presence of his counsel, the Baku Court of Appeal dismissed the applicant’s appeal and upheld the Sabail District Court’s judgment of 24 January 2006. On 26 February 2008 the Supreme Court dismissed a cassation appeal lodged by the applicant and upheld the Baku Court of Appeal’s judgment. The applicant was represented by his counsel at the cassation hearing. COMPLAINTS 1.     The applicant complained under Article 3 of the Convention of the conditions of detention and lack of adequate medical treatment in Bayil Prison and Gobustan Prison. He also complained of the strip search and the confiscation of his possessions by the prison administration in October 2006. 2.     The applicant complained under Article 6 of the Convention that, in the civil proceedings concerning his conditions of detention in Bayil Prison, the hearings were held in his absence and the courts had not examined the witnesses prepared to testify on his behalf. 3.     The applicant complained under Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention that, in the proceedings concerning his appeal lodged under the Transitional Law against his criminal conviction, he did not receive a fair trial and that the court had violated his right of appeal in criminal matters. 4.     The applicant complained under Article 6 of the Convention that, in the proceedings concerning his complaint about the lawfulness of the commutation of the death penalty to life imprisonment, the hearings were held in his absence and in the absence of his lawyer. 5.     The applicant complained, again under Article 6 of the Convention, that the domestic courts in all the proceedings referred to above had not been independent and impartial, that the proceedings had not complied with the “reasonable time” requirement, and that they had generally been unfair. He also complained that the Constitutional Court had delayed its response to, and not examined the merits of, his individual constitutional complaint. 6.     The applicant complained under Article 7 of the Convention that the sentence to life imprisonment had been applied retroactively to his detriment because he had committed the criminal offences prior to the introduction of this new sentence, which replaced the death penalty. Since at that time the only alternative to the death penalty had been a sentence of up to fifteen years’ imprisonment, he should have been sentenced to a fixed ‑ term imprisonment. THE LAW 1.     The applicant complained under Article 3 of the Convention of the conditions of detention and lack of adequate medical treatment in Bayil Prison, where he had been detained previously, and in Gobustan Prison, where he is currently detained. He also complained that the strip search and confiscation of his possessions by the prison administration in October 2006 had amounted to inhuman and degrading treatment. As for the applicant’s allegations concerning the incident of October 2006, when he was allegedly strip-searched and deprived of some of his possessions in the prison, the Court finds, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. As for the remainder of the complaint, the Court notes that it partially relates to events that occurred prior to 15 April 2002, the date of the Convention’s entry into force with respect to Azerbaijan. Accordingly, the part of the complaint concerning the conditions of detention and the alleged lack of adequate medical treatment during the applicant’s entire period of detention in Bayil Prison, as well as his detention in Gobustan Prison prior to 15 April 2002, 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. As for the events that occurred after 15 April 2002, 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. 2.     Relying on Article 6 of the Convention, the applicant complained that, in the civil proceedings concerning his conditions of detention in Bayil Prison, the hearings had been held in his absence and the courts had failed to examine the eyewitness testimonies. 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. 3.     The applicant complained under Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention about the lack of fairness and breach of his right to appeal in the proceedings concerning his appeal lodged under the Transitional Law against his criminal conviction (see complaint no. 3 above). Relying on Article 6 of the Convention, the applicant complained that, in the proceedings concerning his complaint about the lawfulness of the commutation of the death penalty to life imprisonment, the hearings were held in his absence and in the absence of his lawyer (see complaint no. 4 above). The applicant further complained under Article 6 of the Convention that a number of guarantees of fair trial had been breached in all of the judicial proceedings in which he had been involved, including the proceedings he had attempted to initiate by lodging a constitutional complaint (see complaint no. 5 above). Lastly, the applicant complained under Article 7 of the Convention that the sentence to life imprisonment had been applied retroactively to his detriment (see complaint no. 6 above). In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints under Article 3 of the Convention (conditions of detention and the alleged lack of adequate medical treatment during the period after 15 April 2002), and Article 6 of the Convention (the applicant’s right to a fair trial in the civil proceedings concerning the conditions of detention); Declares the remainder of the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President