PASHAYEV v. AZERBAIJAN

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36084/06
by Chingiz PASHAYEV
against Azerbaijan

The European Court of Human Rights (First Section), sitting on 24 September 2009 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 4 August 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Chingiz Pashayev, is an Azerbaijani national who was born in 1957 and is currently serving a life sentence in Gobustan Prison. He is represented before the Court by Mr E. Zeynalov.

A. The circumstances of the case

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

1. Conviction and commutation of sentence

The applicant was a member of an organised group, consisting of five persons, which committed a series of robberies and murders in the Azerbaijan SSR, Russian SFSR and Georgian SSR during the period 1987 to 1989.

On 12 November 1991 the Supreme Court of Azerbaijan, sitting at first instance, convicted the applicant of banditism and premeditated murder under the Criminal Code of the Georgian SSR (carrying the death penalty and confiscation of property), banditism and premeditated murder under the Criminal Code of the Russian SFSR (carrying the death penalty and confiscation of property), and possession of illegal drugs under the Criminal Code of the Azerbaijan SSR (carrying a sentence of 2 years’ imprisonment). By way of a merger of sentences, the applicant was sentenced to death 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.

Following the conviction, the applicant was transferred to the 5th Wing of Bayil Prison designated for convicts sentenced to death. Despite the existence of the death penalty as a form of punishment under the criminal law applicable at that time, the Azerbaijani authorities had pursued a de facto policy of moratorium on the execution of the death penalty since June 1993 until the abolition of the death penalty in 1998.

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. The penalties of all convicts sentenced to death, including the applicant, were to be automatically commuted to life imprisonment.

2. The applicant’s attempts to have the conviction reviewed

In 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”).

On 24 January 2005 the applicant lodged an appeal, together with a petition to restore the missed appeal period, with the Court of Appeal under the Transitional Law (no copy of this appeal is available in the case file). By letters of 15 March and 26 May 2005 a court clerk of the Court of Appeal replied that the appeal should have been lodged with the Supreme Court.

It appears that the applicant complained about the letter of 15 March 2005 to the Supreme Court. By a letter of 19 May 2005, a deputy president of the Supreme Court replied that, since the applicant’s appeal concerned solely the issue of the alleged unlawfulness of commuting the death penalty to life imprisonment (instead of 15 years’ imprisonment, as claimed by the applicant), the issue was outside the jurisdiction of the courts, as the applicant’s conviction had been final and the commutation of the sentence had been effected by a legislative act.

On 27 January 2004 the applicant lodged a complaint with the Constitutional Court, claiming that commutation of the death penalty to life imprisonment had been unconstitutional and that it should have been commuted 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.

According to the applicant, in August 2005 he lodged a new appeal with the Court of Appeal, challenging his conviction in 1991. On 18 August 2005 this appeal was forwarded to the Supreme Court. In a letter in reply of 1 September 2005, a law clerk of the Supreme Court noted that the applicant “requested to change his sentence by way of lodging complaints under various procedures”. He further noted that the applicant should apply to a first-instance court under a procedure for complaints regarding execution of sentences.

3. Proceedings concerning the alleged unlawfulness of the commutation of the sentence

On 9 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 his sentence should have been commuted to fifteen years’ imprisonment, which had been the only alternative to the abolished death penalty at the time when he had committed the criminal offences. He also asked the court to lift the criminal sentences imposed under the Criminal Codes of the Georgian SSR and Russian SFSR because, according to him, they did not apply in Azerbaijan.

On 12 October 2005 the Garadagh District Court confirmed the commutation of the applicant’s sentence from the death penalty to life imprisonment under Article 4 of the Law of 10 February 1998. The applicant was not present personally and was unrepresented at that hearing, but a public prosecutor was present.

On 25 November 2005 the Court of Appeal rejected an appeal lodged by the applicant against that decision and upheld the commutation of the applicant’s sentence under the Law of 10 February 1998.

On 22 March 2006 the Supreme Court upheld the lower courts’ decisions. The applicant was not present during the examination of his appeals.

4. Conditions of detention and medical treatment during imprisonment

(a) Bayil Prison

Following his conviction on 12 November 1991 the applicant was transferred to the 5th Wing of Bayil Prison (the former “death row”), where he spent the next approximately seven and a half years.

Throughout this period he was held in five different cells that were all identical, measuring approximately six square metres and with only two beds. The number of inmates held in the cell fluctuated between five and eight, and they had to take it in turns to sleep.

The window was closed with metal shutters which did not let the daylight in. The weak artificial light inside the cell was never turned off and, while its brightness was insufficient to illuminate the cell adequately, it had a disturbing effect when inmates tried to sleep. The cell was poorly ventilated.

The cell was never disinfected or disinfested. The bed sheets were not changed, even those previously used by inmates who had died of infectious diseases. The cell was infested with lice, fleas and cockroaches. Sometimes rats entered the cell through sewer pipes.

From early 1994 to mid-1996 all inmates were deprived of showers. Throughout that entire period they were allowed to shower only once. Until March 1998 the inmates were not allowed out of the cell for walks. Sick inmates were held in the same cell as healthy ones and were not transferred to a medical unit.

In October 1994 ten inmates escaped from the prison. In retaliation, the prison authorities beat a number of other inmates, including the applicant. During the following months, the food rations of all inmates were reduced by half and their warm clothes and blankets were taken away. The applicant claims that around thirty-five to forty inmates died during this period.

Each month the inmates were allowed to be visited once by their relatives and to receive one food parcel from outside the prison. However, after the events of October 1994, and for an unspecified period of time, the inmates were no longer allowed to receive visitors or parcels from outside. Subsequently, visits or parcels from outside were again allowed, but on an irregular basis.

(b) Gobustan Prison

After the commutation of his sentence to life imprisonment, in late March 1998 the applicant was transferred to Gobustan Prison, located outside Baku.

He was held, together with one other inmate, in a cell measuring approximately 9-10 sq. m. The cell had two beds, a small bedside cupboard, and one small table and two chairs fixed to the cell floor. The toilet area was separated from the rest of the cell by a one-metre-high stone wall. The floor and ceiling were made of stone and concrete respectively. The temperature inside the cell was very high in summer and very low in winter. Central heating was available, but insufficient.

The window with metal bars had no windowpane in it and, in winter, was closed with a transparent polyethylene film. The air inside was stale and the cell could not be naturally ventilated. Until 2001, the inmates were not allowed to possess or use ventilators. Likewise, until 2001, the inmates were not allowed to possess a radio. Subsequently, small radios and ventilators were allowed. Tape recorders and television sets were not allowed.

The food served in the prison was often of poor quality and lacked sufficient meat and vitamins, and the menu was unvaried and monotonous. The inmates were allowed only fifteen to twenty-five minutes of outdoor exercise per day. There were no other recreational or educational activities.

Since 1 September 2000, the inmates have been entitled, on a yearly basis, to one long and three short personal visits and four food parcels (of up to 31.5 kg each) from relatives, and six telephone calls (of up to ten minutes each). They have been able to spend up to 3.3 New Azerbaijani manats (AZN) per month on staple items.

Since 24 June 2008 the number of yearly visits by relatives has been increased to two long and six short visits, the number of food parcels to eight, and the number of telephone calls to twenty-four. The monthly spending amount has been increased to AZN 25.

(c) The applicant’s state of health and medical treatment

In the summer of 1991, when the applicant was in pre-trial detention in a different wing of Bayil Prison, he fell ill and was seen by a prison doctor. An X-ray examination revealed a blackening in the upper part of his right lung. The doctor recommended some unspecified treatment, but the prison warden did not allow it.

After being transferred to the 5th Wing of Bayil Prison, the applicant was placed in a cell in which two of his cellmates were suffering from tuberculosis. These two inmates later died of the disease in 1993 and 1994 respectively. At around this time the applicant started coughing up blood. In the period between 1992 and 1998 the applicant tried to cure himself in his cell by taking antibiotics purchased with his own money.

According to the applicant, 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.

Upon his transfer to Gobustan Prison in 1998, the applicant was diagnosed with chronic bronchitis and pulmonary tuberculosis. On 25 December 1999 and 13 January and 1 July 2000 he was examined by a phthisiatrician. It appears that he received some medical treatment in the form of various medicines bought by his relatives, but the disease nevertheless went into the remission phase.

On 20 November 2004 he was transferred for in-patient treatment to Specialised Medical Establishment No. 3 for Prisoners Suffering from Tuberculosis (“TB Prison No. 3”), where he was diagnosed with pulmonary tuberculosis. However, the doctors ultimately found that his condition did not require the treatment based on the World Health Organisation’s DOTS (Directly Observed Treatment, Short-course) programme. Therefore, on an unspecified date he was transferred back to Gobustan Prison.

On 29 January 2005 the applicant was again transferred to TB Prison No. 3. From 3 February to 29 March 2005 he received, for the first time, treatment based on the DOTS programme.

As a result of a subsequent medical examination of the applicant on 16 May 2005, doctors again recommended some treatment. This treatment was carried out in the medical unit of Gobustan Prison, but was inadequate.

From 3 to 17 September 2005 the applicant received in-patient treatment for “the remission of chronic bronchitis” and “chronic gastritis” in an unspecified penitentiary medical facility.

In November 2006 the applicant was transferred to TB Prison No. 3, but was very soon taken back to Gobustan Prison. According to the applicant, this was done to “hide” him from the delegation from the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) visiting Gobustan Prison at that time.

5. Civil action concerning the alleged lack of adequate medical treatment

On 23 February 2007, 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 AZN 20,000. 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.

In the domestic proceedings the applicant was represented by counsel.

On 29 May 2007 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. In his appeal he requested to participate personally in the hearing, and requested the court to examine witnesses and his medical records. On 30 November 2007 the Baku Court of Appeal rejected the applicant’s requests and appeal, finding that his arguments were unsubstantiated.

On 20 June 2008 the Supreme Court rejected a cassation appeal lodged by the applicant and upheld the lower courts’ judgments.

B. Relevant domestic law

1. 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, of 10 February 1998 (“the Law of 10 February 1998”)

Article II-8

“[I]n Article 70-2 § 3 ... of the Criminal Code the words ‘death penalty’ shall be replaced by the words ‘penalty in the form of life imprisonment’.”

Article IV

“The penalty of persons sentenced to the death penalty before the entry into force of this Law shall be commuted to a penalty in the form of life imprisonment.”

2. Law of 14 July 2000 on the Enactment and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan and Related Legal Regulatory Issues (“the Transitional Law”)

Article 7

“Judgments and other final decisions delivered by first-instance courts under the [old] Code of Criminal Procedure ... before the entry into force of this [new] Code, may be reconsidered by an appellate court or the Supreme Court of the Republic of Azerbaijan in accordance with Articles 383-407, 409-427 or 461-467 of the [new] Code of Criminal Procedure.”

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.

2. The applicant complained under Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention that the domestic courts’ failure to examine his appeal against his criminal conviction, lodged under the Transitional Law, had violated his right of access to court and right of appeal in criminal matters.

3. 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.

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 (ending with the Supreme Court’s decision of 22 March 2006), 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 both 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 he had been convicted under the criminal law of foreign States (Georgia and Russia) which no longer applied in Azerbaijan after the dissolution of the USSR. He also complained that the sentence to life imprisonment had been applied retroactively to his detriment because, prior to the introduction of this new sentence, the only alternative to the death penalty had been a sentence of fifteen years’ 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.

The Court notes that the present complaint 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 to 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 and Article 2 of Protocol No. 7 to the Convention, the applicant complained about the domestic courts’ failure to examine his appeal against his criminal conviction, lodged under the Transitional Law.

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. 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.

4. The applicant complained under Article 6 §§ 1 and 3 (c) 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.

The Court notes that Article 6 of the Convention, under its criminal head, applies to proceedings involving “determination ... of any criminal charge”. In the present case, the criminal charge against the applicant, and the criminal sentence to be imposed on him (death penalty and confiscation of property), were determined by a final judgment of the Supreme Court of 12 November 1991. Subsequently, that penalty was commuted to life imprisonment pursuant to the Law of 10 February 1998. All of these events happened prior to 15 April 2002, the date of the Convention’s entry into force in respect of Azerbaijan.

The Court has found in a similar case that the issue of lawfulness of the original commutation to life imprisonment of the sentences of convicts sentenced to the death penalty, pursuant to the operative provisions of the Law of 10 February 1998, was outside its competence ratione temporis under the Convention (see Hummatov v. Azerbaijan (dec.), nos. 9852/03 and 13413/04, 18 May 2006). At the time of the Convention’s entry into force, the applicant was already detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a) of the Convention (ibid.).

The proceedings impugned in the present complaint, which were instituted by the applicant in August 2005 and ended with the Supreme Court’s decision of 22 March 2006, concerned solely the applicant’s objection to the commutation of his sentence and to the imposition of the penalty of life imprisonment in his case. The Court notes that these proceedings involved neither a determination of any criminal charge in respect of the applicant, nor any appeal against that criminal charge. Nor did they result in the application of any new criminal law or imposition of any new sentence in respect of the applicant which had not already been applied or imposed prior to the Convention’s entry into force in respect of Azerbaijan on 15 April 2002. Furthermore, the subject matter of these proceedings should also be distinguished from the subject matter of the applicant’s appeal which he attempted to lodge under the Transitional Law against the merits of his conviction (see complaint no. 2 above; compare also Hajiyev v. Azerbaijan, no. 5548/03, § 32, 16 November 2006, and Abbasov v. Azerbaijan, no. 24271/05, § 24, 17 January 2008). The present proceedings involved solely the confirmation of the lawfulness of the continued applicability of the sentence of life imprisonment which had been applied in respect of the applicant in 1998. The Court concludes that, in such circumstances, the proceedings in question did not involve “determination ... of any criminal charge” and that the requirements of Article 6 of the Convention concerning the presence of the accused at criminal hearings did not therefore apply to these proceedings.

It follows that, in so far as the applicant relied on Article 6 of the Convention, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

5. The applicant complained under Article 6 of the Convention that the domestic courts in both proceedings 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.

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.

6. The applicant complained under Article 7 of the Convention that he had been convicted under the criminal laws of the Georgian SSR and Russian SFSR, which could not be applied in Azerbaijan after the dissolution of the USSR. He also complained that the sentence of life imprisonment had been applied retroactively to his detriment because, prior to the introduction of this new sentence, the only alternative to the death penalty had been the sentence of fifteen years’ imprisonment.

Even assuming that this complaint falls within the Court’s competence ratione temporis, it is inadmissible for the following reasons. The Court observes that the applicant was convicted of, inter alia, murders committed on the territories of Georgia and Russia in 1987-1989, prior to the dissolution of the USSR, and those acts clearly constituted “criminal offence[s] under national ... law at the time when [they were] committed”, and not only under the laws of the Georgian SSR and Russian SFSR, but also under the Azerbaijani law applicable at the material time. Accordingly, the Court cannot conclude that the applicant has been held guilty on account of an act which did not constitute a criminal offence at the time when it was committed.

It is furthermore clear that the penalty imposed on the applicant at the time of conviction (death penalty) was applicable under the relevant law at the time the criminal offence was committed. In 1998 this penalty was commuted to life imprisonment. In this connection, the Court reiterates that, for the purposes of Article 7 of the Convention as applied to similar complaints previously examined by the Court, it is only concerned with the question whether the new retroactively applied penalty is heavier than the penalty which was applicable at the time the criminal offence was committed and actually imposed as a punishment for that criminal offence at the time of the applicant’s conviction, and not compared to any other alternative penalties which also existed at the time of conviction but were never actually imposed on the applicant by the court which convicted him (see Maksimov v. Azerbaijan (dec.), no. 38228/05, 1 February 2007). As the Court has found previously, the new sentence of life imprisonment is not a heavier sentence than the death penalty, which was actually imposed on the applicant at the time of his conviction (ibid., see also Hummatov, cited above). Therefore, the Court cannot conclude that a heavier penalty was imposed on the applicant than the one that was applicable at the time the criminal offence was committed.

It follows that this complaint 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), Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention (the alleged violation of the applicant’s right of access to court and right of appeal in criminal matters), 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.

              André WampachChristos Rozakis
              Deputy RegistrarPresident

 

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