FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2758/05
by Rahim GAZIYEV
against Azerbaijan

The European Court of Human Rights (First Section), sitting on 8 February 2007 as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar

Having regard to the above application lodged on 28 December 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Rahim Gaziyev, is an Azerbaijani national who was born in 1943 and lives in Baku. He is represented before the Court by Mr E. Guliyev, a lawyer practising in Baku.

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

The applicant is a former Defence Minister. On 12 May 1995 the Supreme Court, sitting as a court of first instance for specially serious crimes, convicted the applicant of abuse of power during wartime, embezzlement of state funds and illegal possession of firearms. Pursuant to the Criminal Code of 1960 which was in force at that time, he was sentenced to the death penalty with 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 10 February 1998 Parliament adopted 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”). The Law of 10 February 1998 amended all the relevant domestic legal provisions, replacing the death penalty with life imprisonment. The penalties of all the convicts sentenced to death, including the applicant, were automatically commuted to life imprisonment.

In 2000 a new Code of Criminal Procedure (“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 first-instance judgments delivered in accordance with the old criminal procedure rules (the “Transitional Law”).

Shortly after this, at the time of Azerbaijan’s admission to the Council of Europe, the applicant was recognised as a “political prisoner” by independent experts of the Secretary General. Azerbaijan has made a commitment to either release or give a re-trial to all persons identified as “political prisoners” by these experts.

Pursuant to the Transitional Law, the applicant’s case was heard on appeal. The appellate hearings were held at Gobustan Prison where the applicant was serving his life sentence.

On 26 December 2003 the Court of Appeal upheld the applicant’s original conviction but reduced his sentence to 15 years’ imprisonment in accordance with the new Criminal Code of 2000.

On 26 October 2004 the Supreme Court upheld this judgment.

In March 2005 the applicant was released from serving the remainder of his sentence pursuant to a presidential pardon decree.

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that he had spent three years on “death row” before the abolition of the death penalty in 1998.

2. The applicant complained under Article 5 of the Convention that the authorities had unlawfully deprived him of his liberty following institution of appellate proceedings. In particular, he claimed that he had been unlawfully held in “pre-trial detention” after the expiry of the maximum seven-month detention period provided for by the domestic law for persons whose case was under examination by the Court of Appeal.

3. The applicant complained under Article 6 of the Convention about the unfairness of the proceedings in the first instance court.

4. The applicant complained under Article 6 of the Convention that the appellate proceedings had been held in Gobustan Prison. This prison was subject to a limited access regime, located outside of Baku and hardly accessible to the public.

5. The applicant complained under Article 7 of the Convention that the substitution of the death penalty with life imprisonment in 1998 as well as further reduction of his sentence to 15 years’ imprisonment after the appellate and cassation proceedings constituted a retroactive application of new criminal law to his detriment.

6. The applicant complained under Article 10 of the Convention that he was convicted because he had criticised the President in his Parliament speech in 1993.

THE LAW

1. The applicant complained under Article 3 of the Convention that, until the abolition of death penalty in 1998, he had awaited his execution in prison for a period of three years. This situation allegedly caused him moral suffering and amounted to ill-treatment.

The Court notes that this complaint relates to the events that occurred prior to 15 April 2002, the date of the Convention’s entry into force with respect to Azerbaijan. It follows that it is incompatible ratione temporis with the prov