FIRST SECTION
Application no. 3967/09
Ali KERIMLI
against Azerbaijan
lodged on 16 January 2009
STATEMENT OF FACTS
The applicant, Mr Ali Amirhuseyn oglu Kerimli, is an Azerbaijani national who lives in Baku. He is represented before the Court by Mr I. Aliyev, a lawyer practising in Baku.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is an opposition politician.
On 10 September 1994 the applicant was arrested during a demonstration organised by the Popular Front Party and taken to the Baku City Chief Police Department where a hand grenade was allegedly found in the pocket of his suit’s jacket. According to the applicant, the suit had been acquired before the demonstration and he had not had time to remove the manufacturer’s stitches sealing the pockets and, therefore, would not have been able to physically place anything inside the pockets.
On the same day, criminal proceedings were instituted against the applicant under Article 220 (illegal possession of weapons) of the old Criminal Code. On 24 September 1994 he was released from detention.
On 21 December 1995 the criminal proceedings, which were still at the investigation stage, were suspended. The applicant was not informed about this decision at that time.
At the 1995 and 2000 parliamentary elections, the applicant was elected to the National Assembly for two consecutive terms and served as a parliament member until 2005.
In June 2006 the applicant’s regular passport, which had been issued in 2001, expired. Prior to that, the applicant had been issued a regular passport in 1996, as well as diplomatic passports in 1998 and 2003 (the applicant did not specify the dates of expiry of the diplomatic passports).
In June 2006 the applicant applied to the Passport Registration Department of the Ministry of Internal Affairs (“the PRD”) for a new passport. However, according to the applicant, his application was rejected in an “informal” manner and the applicant was informed that the PRD had no information of the outcome of the criminal proceedings instituted in 1994. He was told that, as the PRD could not issue passports to persons against whom criminal proceedings were pending, the applicant had to provide a statement from the relevant prosecution authorities confirming that the criminal proceedings had been discontinued.
Following an inquiry with the Baku City Chief Police Department, the applicant discovered that the criminal proceedings instituted in 1994 had been transferred to the Nasimi District Prosecutor’s Office and suspended on 21 December 1995, but were never discontinued.
Subsequently, the applicant complained about the authorities’ failure to discontinue the proceedings and his resulting inability to receive a passport to the Prosecutor General’s Office, the Baku City Prosecutor’s Office, the Nasimi District Prosecutor’s Office and the Ministry of Internal Affairs, but to no avail.
In September 2006 the applicant lodged a civil action against the PRD and the Nasimi District Prosecutor’s Office, asking the court to order PRD to issue him a passport and to order the prosecutor’s office to “remove the restriction on his freedom of movement” by discontinuing the criminal proceedings instituted in 1994. He noted that, under the old Criminal Code, the prescription period for the criminal offence under Article 220 of the old Criminal Code was five years from the date of alleged commission of the criminal offence, while under the new Criminal Code of 2000 the prescription period for the same offence was seven years. He therefore argued that the proceedings should have been discontinued many years ago owing to the expiry of the prescription period.
On 2 November 2006 the Nasimi District Court rejected the applicant’s claim as unsubstantiated. It noted that the Nasimi District Prosecutor’s Office had responded to the applicant’s requests by advising him to apply to the PRD and that the applicant had been unable to demonstrate that the PRD had breached his rights.
On 14 March 2007 the Court of Appeal upheld the Nasimi District Court’s judgment on the same grounds, and also added that the applicant had failed to appeal the decision of 21 December 1995 on suspension of the criminal proceedings under the relevant procedure of judicial supervision.
On 15 February 2008 the Supreme Court quashed the Court of Appeal’s judgment and terminated the civil proceedings. It noted that the complaints raised by the applicant, and more specifically his complaint concerning the prosecution authorities’ failure to discontinue the criminal proceedings, were subject to examination under the criminal procedure and not in the civil proceedings under the rules of civil procedure. The applicant was advised to lodge a complaint against the prosecution authorities’ actions under the relevant provisions of the Code of Criminal Procedure (“the CCrP”) on judicial supervision.
In May 2008 the applicant lodged such a complaint under the procedure of judicial supervision provided by Article 449 of the CCrP, asking the court to discontinue the criminal proceedings instituted in 1995 owing to the expiry of the prescription period.
On 28 May 2008 the Nasimi District Court rejected this complaint, noting that, while the CCrP provided for a right to complain against a prosecution authority’s decision to discontinue the proceedings, the same Code did not provide for a right to complain against the prosecuting authority’s failure to deliver a decision to discontinue the proceedings. Therefore, the court could not order the Nasimi District Prosecutor’s Office to discontinue the proceedings. Furthermore, the court noted that it had no competence under the CCrP to discontinue the proceedings itself.
On 22 July 2008 the Baku Court of Appeal upheld the decision of the Nasimi District Court. No further appeal lay against the Baku Court of Appeal’s decision.
COMPLAINTS
1. In connection with the civil proceedings that ended on 15 February 2008 and the judicial supervision proceedings that ended on 22 July 2008, the applicant complains under Article 6 of the Convention that, owing to various alleged shortcomings committed by the domestic courts, his right of access to court and right to a reasoned decision were breached. He also complains that these two sets of proceedings did not comply with the “reasonable time” requirement under Article 6.
2. The applicant complains under Article 8 of the Convention that the refusal to issue him a passport restricted his freedom of movement and was in breach of his right to respect for private life.
QUESTIONS TO THE PARTIES
1. Was any restriction placed on the applicant’s freedom to leave the territory of the respondent State, as guaranteed by Article 2 § 2 of Protocol No. 4? If so, was that restriction in accordance with the law and necessary in terms of Article 2 § 3 of Protocol No. 4? Was the applicant’s application for a renewal of his passport rejected and, if so, on what grounds?
2. Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, on the account of his inability to obtain a new passport? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
3. Given that the new Criminal Code came into effect on 1 September 2000, what criminal law applied to the criminal proceedings instituted against the applicant in 1994? What were the relevant provisions of that criminal law concerning the suspension and discontinuation of proceedings (grounds, time-limits, and so on), as well as concerning the applicable prescription period (statute of limitations) for bringing a person to criminal responsibility? The parties are requested to substantiate their answers by submitting copies of the full authentic texts of the applicable criminal law provisions and/or relevant domestic jurisprudence.
4. The Government are requested to submit copies of: (a) documents concerning all the procedural steps taken in the criminal proceedings instituted against the applicant in 1994, including in particular the decision on suspension of the proceedings taken in 1995; and (b) any and all official documents (decisions, letters, and so on) by which the Passport Registration Department of the Ministry of Internal Affairs responded to the applicant’s application for a new passport. They are also requested to provide information about the regular and diplomatic passports issued to the applicant between 1994 and 2006 (dates of issuance, expiry, and so on).
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