FIRST SECTION

CASE OF KERIMLI v. AZERBAIJAN

( Application no. 3967/09 )

JUDGMENT

STRASBOURG

16 July 2015

FINAL

16/10/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kerimli v. Azerbaijan ,

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

Isabelle Berro, President, Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Erik Møse, Ksenija Turković, Dmitry Dedov, judges, and Søren Nielsen , Section Registrar ,

Having deliberated in private on 23 June 2015 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 3967/09) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Ali Amirhuseyn oglu Kerimli ( Əli Əmirhüseyn oğlu Kərimli – “the applicant”), on 16 January 2009 .

2 . The applicant was represented by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov .

3 . The applicant alleged , in particular, that the refusal to renew his international passport had infringed on his right to freedom of movement .

4 . On 16 January 2013 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1965 and lives in Baku .

6 . The applicant is an opposition politician and, since 2001, the chairman of the reformist wing of the Azerbaijan Popular Front Party.

7 . 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 immediately before the demonstration and he had not had time to remove the manufacturer ’ s stitches sealing the pockets and, therefore, would not have been physically able to put anything inside the pockets.

8 . On the same day, criminal proceedings were instituted against the applicant under Article 220 (illegal possession of weapons) of the 1960 Criminal Code (in force until 1 September 2000, when it was replaced by the new Criminal Code) .

9 . Until 13 September 1994, the applicant was detained as a suspect. On 13 September 1994 he was formally charged under Article 220 § 1 of the 1960 Criminal Code by the investigator of the Baku City Chief Police Department. On the same day, the investigator ordered his detention on remand pending trial.

10 . By a decision of the investigator of 2 3 September 1994 the applicant was released from detention.

11 . By a decision of the investigator of the Nasimi District Prosecutor ’ s Office of 11 December 1995 , the investigation in the framework of the criminal proceedings against the applicant w as suspended on the ground that “the perpetrator of the criminal offence [had] not been identified” . The applicant was not informed about th e decision to suspend the investigation at that time.

12 . In the 1995 and 2000 parliamentary elections, the applicant was elected and re-elected to the National Assembly for two consecutive terms and served as a parliament member until 2005. In the elections of 6 November 2005, according to the official election results published by the Central Electoral Commission, he was again re-elected to the National Assembly, however on 1 December 2005 the Constitutional Court annulled the election results in the applicant ’ s constituency in an arbitrary manner, depriving the applicant of his parliamentary seat (see, for more details, Kerimli and Alibeyli v. Azerbaijan , nos. 18475/06 and 22444/06 , 10 January 2012 ).

13 . The applicant held a diplomatic passport issued in 1998, which expired in 2003. On 15 July 2003 he was issued a new diplomatic passport valid until 31 December 2005.

14 . In addition, the applicant held a regular passport issued in 2001, which expired on an unspecified date in June 2006 (according to the applicant) or on 24 July 2006 (according to the Government).

15 . In June 2006 the applicant applied to the Passport Registration Department of the Ministry of Internal Affairs (“the PRD”) for a new regular passport. However, according to the applicant, his application was rejected in an informal manner . T he 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 prosecuti ng authorities confirming that the criminal proceedings had been discontinued.

16 . 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 1 1 December 1995, but had never been discontinued.

17 . 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.

18 . In September 2006 the applicant lodged a civil action against the PRD and the Nasimi District Prosecutor ’ s Office, asking the court to order the 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, the limitation period for prosecution in respect of the criminal offence under Article 220 of the 1960 Criminal Code was five years from the date of the alleged criminal offence, while under the 2000 Criminal Code it was seven years in respect of the equivalent criminal offence . He therefore argued that the proceedings should have been discontinued years earlier owing to the expiry of the prescription period.

19 . On 2 November 2006 the Nasimi District Court dismissed 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.

20 . 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 against the decision of 1 1 December 1995 to suspend the investigation under the relevant procedure of judicial supervision.

21 . 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 prosecuti ng authorities ’ actions under the relevant procedure of judicial supervision envisaged by the Code of Criminal Procedure (“the CCrP”).

22 . 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 199 4 owing to the expiry of the prescription period.

23 . On 2 6 May 2008 the Nasimi District Court dismissed this complaint, noting that, while the CCrP provided for a right to complain against a prosecuti ng 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 take 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.

24 . On 22 July 2008 the Baku Court of Appeal upheld the decision of the Nasimi District Court. No further appeal lay against the B aku Court of Appeal ’ s decision.

II. RELEVANT DOMESTIC LAW

A. The 1994 Law on the Entry into and Departure from the Country and on Passports (“the Passports Act”)

25 . In accordance with Article 1 of the Passports Act, as in force at the material time, the right of a person charged with a criminal offence to leave the country could be temporarily restricted until the termination of the criminal proceedings or until the time when the sentence had been served .

26 . In accordance with Article 9 of the Passports Act, as in force at the material time, applications for a passport by persons whose right to leave the country was restricted in accordance with Article 1 of the Passports Act should be rejected in writing, together with an explanation of the reasons for the rejection, and their repeat applications could be examined only after the reasons for the rejection ceased to exist.

B. The 1960 Criminal Code , in force until 1 September 2000

27 . In accordance with Article 44 of the Code, the criminal prescription period for a criminal offence punishable with imprisonment for a period of no longer than five years expire d five years after the day of commission of the criminal offence. The running of the prescription period stop ped if the offender abscond ed and was resumed when he or she was apprehended or appear ed voluntarily before the investigating authority or court. In any event, the prescription period expire d fifteen years after the date of commission of the alleged criminal offence, unless a new criminal offence was committed by the same person during that period.

28 . Article 220 § 1 of the Code provided that the criminal offence of carrying, possessi ng , acqui ring , manufacturing or s elling of weapons, ammunition or explosive substances without a relevant permit was punishable by imprisonment for a period of up to five years.

C . The 2000 Criminal Code , in force from 1 September 2000

29 . In accordance with Article 10.4 of the Code, a provision of criminal law which aggravates the position of a person who has committed an offence has no retroactive effect.

30 . In accordance with Article 75.1.2 of the Code, the criminal prescription period for a “less serious criminal offence” is seven years from the day of commission of the criminal offence. In accordance with Article 15 of the Criminal Code, a “less serious criminal offence” is defined as an offence committed deliberately or negligently, which is punishable with imprisonment for a period of more than two years and up to seven years.

31 . Article 228.1 of the Code provides that the criminal offence of unlawfully acquiring, handing over, selling, possessing, transporting or carrying of firearms, their component parts, ammunition or explosive substances or devices, was punishable by correctional labour for a period of up to two years or imprisonment for a period of up to three years.

D . The 2000 Code of Criminal Procedure (“the CCrP”)

32 . Article 39 of the CCrP provides as follows:

“Article 39. Circumstances precluding criminal prosecution

39.1. Criminal prosecution may not be commenced or shall be discontinued (and a criminal case may not be opened or proceedings in the opened criminal case shall be discontinued) in the following circumstances:

...

39.1.3 if the limitation period for prosecution has expired (excluding cases where the limitation period for prosecution is suspended); ... ”

33 . Article 41 of the CCrP provides as follows:

“Article 41. Discontinuation of criminal prosecution

41.1. The preliminary investigator, investigator or prosecutor shall take a decision on discontin uation of criminal prosecution (including discontinuation of [pending] criminal proceedings) at any pre-trial stage of the proceedings , if they ascertain any circumstance provided for in Article 39 of this Code. ”

34 . Article 53 of the CCrP provides as follows:

“ Article 53. Grounds for suspending criminal prosecution

53.1. C riminal prosecution may be suspended in the following circumstances:

53.1.1. if the person to be charged is unknown;

...

53.7. Proceedings in cases where the perpetrators are known, which have been suspended , shall be discontinued on the ground of the expiry of the limitation period for criminal prosecution, except in case where the person to be charged is absconding the investigati on or trial , or in case of commission of a criminal offence punishable by life imprisonment , or in case of crimes against peace and humanity and war crimes. ”

35 . Article 449 of the CCrP provides for a procedure for lodging a judicial complaint against procedural steps or decisions taken by the prosecuting authorit y . It provides, in the relevant part:

“449.2. The following persons shall have the right to lodge a complaint against procedural steps or decisions taken by the prosecuting authority:

449.2.1. the accused (suspected) person and his defence counsel;

449.2.2. the victim and his legal representative;

449.2.3. other persons whose rights and freedoms are violated as a result of the procedural decision or act.

449.3. The persons referred to in Article 449.2 of this Code shall have the right to lodge a complaint with a court concerning the procedural steps or decisions taken by the prosecuting authority in connection with the following matters:

...

449.3.5. the refusal to open a criminal case, or the suspension or discontinuation of criminal proceedings; ... ”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION

36 . T he applicant complained that his right to freedom of movement had been infringed and his private life affected as a result of the authorities ’ refusal to issue him a passport. While the applicant himself expressly referred to Article 8 of the Convention in this regard, t he Court considers that the substance of the complaint more properly falls to be examined under Article 2 of Protocol No. 4 to the Convention (see Stamose v. Bulgaria , no. 29713/05, § 43, ECHR 2012, with further references ) , which reads as follows , in the relevant part :

“ ... 2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public , for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ... ”

A. Admissibility

37 . The Government submitted that the applicant had failed to make use of the existing domestic remedies. In particular, under Article 449.3.5 of the CCrP, the applicant should have challenged the lawfulness of the decision of the Nasimi District Prosecutor ’ s Office of 11 December 1995 to suspend the criminal investigation . Instead, the applicant had requested the Nasimi District Court “to adopt decisions which were outside its competence”. For this reason, the Government requested the Court to reject the application for non-exhaustion of domestic remedies.

38 . The applicant disagreed, noting that he had raised his complaint before the domestic courts both in the civil proceedings and by making use of the criminal procedure whereby he had challenged the prosecution authorities ’ failure to discontinue the criminal proceedings against him.

39 . The Court considers the Government ’ s objection misplaced. In particular, it notes that the present complaint does not concern the lawfulness of any particular procedural step or decision taken within the framework of the criminal proceedings against the applicant. The present complaint concerns the authorities ’ refusal to issue the applicant a passport on the ground that there were criminal proceedings pending against him. The applicant argued that the criminal proceedings should have been discontinued many years before, owing to the criminal charge against him having become time-barred. At the domestic level, he complained about the PRD ’ s failure to issue a passport and the prosecuti ng authorities ’ failure to discontinue the criminal proceedings both in the civil proceedings and in the framework of the pending criminal proceedings under the procedure of judicial supervision. B efore that, he complained directly to the prosecuti ng authorities, including the Nasimi District Prosecutor ’ s Office, the Baku City Prosecutor ’ s Office and the Prosecutor General ’ s Office. Accordingly, the applicant raised the same complaint in substance before the domestic authorities and courts .

40 . Having regard to the above, the Court does not consider that an additional complaint about the lawfulness of suspension of the criminal investigation within the framework of the pending criminal proceedings could have afforded any redress in respect of the present complaint. In the present case, w hether the investigation remained suspended or was resumed had no bearing on the fact that the criminal proceedings themselves were still pending and that the applicant was apparently refused a passport on that ground . In sum, the Government failed to explain how the remedy suggested by them would provide redress in the applicant ’ s situation . Thus, the Court considers that the applicant has done what could have been reasonably expected of him to exhaust domestic remedies in the present case and that the Government have been unable to demonstrate existence of a remedy that could afford appropriate redress .

41 . Accordingly, the Court rejects the Government ’ s objection. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

42 . The Government did not comment on the merits of the complaint.

43 . The applicant submitted that, as a well-known Azerbaijani politician, he had often been invited by various international organisations and foreign institutions to attend a number of events abroad but had been unable to leave the country owing to the authorities ’ refusal to renew his passport. He argued that the interference with his freedom of movement had been unlawful, because the criminal prescription period for the alleged criminal offence had expired by the time his passport had been up for renewal and the criminal proceedings should have been discontinued on that ground.

44 . The authorities ’ refusal to issue him a new passport in 2006 was groundless, considering that he had been already issued passports on several occasions after the institution of the criminal proceedings and that, during the period from 1996 to 2003, he had travelled to around ten foreign countries and had always returned to Azerbaijan.

2. The Court ’ s assessment

46 . There is no written decision on refusal to renew the applicant ’ s passport in the case file. According to the applicant, his application for a new passport was refused by the PRD in an “informal manner” and he was informed that the reason for the refusal was the fact that criminal proceedings were pending against him. As the Government remained silent on this point and did not contest the applicant ’ s submission, the Court accepts that the applicant ’ s application for a new passport was refused without a formal decision.

48 . N one of the domestic authorities ’ and courts ’ decisions and judgments available in the case file mention the legal basis for rejecting the applicant ’ s passport application. Neither did the Government elaborate on this point. Nevertheless, it appears that this measure was imposed in accordance with Article 9 of the Passports Act. However, contrary to that provision, the PRD did not issue a formal decision in writing, containing an explanation of the reasons for the rejection (see paragraph 26 above). Furthermore, taking into account the applicant ’ s argument that the criminal proceedings against him should have been discontinued several years earlier owing to the expiry of the criminal limitation period, a question arises whether it was at all lawful to apply Article 9 of the Passports Act in the applicant ’ s case.

50 . However, the Court does not find it necessary to determine whether the measure against the applicant was “in accordance with law” and pursued a legitimate aim, as, for the reasons which follow, it considers that it was incompatible with Article 2 of Protocol No. 4 in other respects .

51 . As for whether the measure was “necessary in a democratic society”, the Court notes the following. Firstly, t he Court considers that the applicant repeatedly raised a serious argument that the criminal charge against him had become time-barred in 1999. Under the 1960 Criminal Code the limitation period for prosecution in respect of the criminal offence with which the applicant was charged was five years from the time of commission of the alleged offence (see paragraphs 27-28 above). Since t he applicant had n ever absconded the investigation, the running of the limitation period was never stopped under the 1960 Criminal Code. Neither the domestic authorities or courts, nor the Government have alleged that there were any other circumstances stopping the running of the limitation period in the applicant ’ s case or precluding the discontinuation of the criminal proceedings on that ground. Therefore, it appears that the criminal charge in question became time-barred on 10 September 1999 and it was up to the relevant prosecuting authorities to discontinue the proceedings on that date. As for t he 2000 Criminal Code , it came into force after that date and was not applicable at the material time . In any event, since the 2000 Criminal Code provided for a longer limitation period for the same offence (seven years; see paragraphs 30-31 above) , it appears that, although the criminal proceedings remained pending after its entry into force, it could not be applied retroactively to the applicant ’ s situation (see paragraph 29 above) .

52 . Despite th e above argument being raised repeatedly by the applicant, the domestic prosecuting authorities and courts did not address it. Moreover, the Court finds regrettable the Nasimi District Court ’ s decision of 2 6 May 2008, subsequently upheld by the Baku Court of Appeal, finding that the domestic courts had no competence under the CCrP to examine complaints against the prosecuting authorities ’ failure to decide on discontinuation of the proceedings (see paragraphs 23-24 above) . In essence, this meant that in situations where the prosecuting authorities arbitrarily and unlawfully refused to discontinue proceedings in cases where the alleged criminal offence had become time-barred, a person ’ s right to freedom of movement could remain restricted indefinitely, without an adequate remedy available to him to challenge the restriction.

53 . In this connection, the Court also points out that, although in the present case the applicant did not raise a complaint about the length of the criminal proceedings under Article 6 of the Convention, the fact that the criminal proceedings have been pending for around twenty years without any procedural activity had a significant impact on the proportionality of the restriction of his right to freedom of movement under Article 2 of Protocol No. 4 to the Convention imposed in connection with those criminal proceedings (compare, mutatis mutandis , Hajibeyli v. Azerbaijan , no. 16528/05, § § 64-66, 10 July 2008 ).

54 . Secondly , the Court notes that, prior to the refusal to renew the applicant ’ s passport in 2006, the applicant had been issued both regular and diplomatic passports on several occasions after the criminal proceedings had already been instituted and that he had travelled abroad on a number of occasions using those valid passports. E ach time he had returned to Azerbaijan, where he had an active professional political career and had served as a member of parliament for more than one term. There were no indications that he had ever had an intention to remain abroad and escape prosecution. In such circumstances, the Court sees no compelling justification for the authorities ’ refusal to renew the passport in 2006 .

55 . The Court also notes that, in accordance with Article 9 of the Passports Act, following the initial refusal to issue a passport, a repeat application for a passport could be examined only after the criminal proceedings were discontinued (see paragraph 26 above) . Accordingly, it appears that no further decision can be taken while the criminal proceedings are still pending, resulting in a situation where the restriction on the applicant ’ s travel abroad has remained unchanged for around nine years since June 2006.

56 . The Court reiterates that the authorities are not entitled to maintain over lengthy periods a restriction on the individual ’ s freedom of movement without a regular re-examination of its justification (see Földes and Földesné Hajlik v. Hungary , no. 41463/02, § 36, ECHR 2006 ‑ XII ). Even in cases where the restriction was initially warranted, maintaining it automatically over a lengthy period of time may result in disproportionality of the measure (see Riener , cited above, § 121, with further references ). In the present case, as noted above, there was no examination of the justification for the restriction when the applicant was initially refused a new passport in 2006 and it appears that the domestic legal system does not provide any possibilit ies for a regular re-examination . Accordingly, t he de facto travel ban imposed on the applicant by way of refusing him a new passport constituted, in reality, an automatic, blanket measure of indefinite duration. This r uns counter to the authorities ’ duty under Article 2 of Protocol No. 4 to take appropriate care to ensure that any interference with the right to leave one ’ s country remains justified and proportionate throughout its duration in the individual circumstances of each case.

57 . It follows that there has been a violation of the applicant ’ s right to leave his country, as guaranteed by Article 2 § 2 of Protocol No. 4.

II . ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

58 . Relying on Article 6 of the Convention, t he applicant complained that the civil proceedings ending with the Sup reme Court ’ s decision of 15 February 2008 and the judicial supervision proceedings ending with the Baku Court of Appeal ’ s decision of 22 July 2008 had been unfair.

59 . However, 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 (a) and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

60 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

61 . The applicant claimed 100,000 euros (EUR) in respect of non ‑ pecuniary damage caused by his inability to travel abroad for personal and professional reasons .

62 . The Government argued that the claim was unsubstantiated and requested the Court to reject it.

63 . The Court , ruling on an equitable basis, awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

64 . The applicant also claimed EUR 4,700 for the costs and expenses incurred before the Court , including EUR 4,000 for legal fees, EUR 600 for translation costs and EUR 100 for postal expenses .

65 . The Government argued that the claim in respect of legal fees was excessive and that the remainder of the claims was not supported by adequate documentary evidence.

66 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria , the Court considers it reasonable to award the sum of EUR 3 ,600 covering costs under all heads.

C. Default interest

67 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the complaint under Article 2 of Protocol No. 4 admissible and the remainder of the application in admissible;

2 . Holds that there has been a violation of Article 2 § 2 of Protocol No. 4 to the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 ( five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3 ,600 ( three thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 16 July 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro Registrar President