FIRST SECTION

DECISION

Application no . 16017/07 Hasan YOLTAGIL against Azerbaijan

The European Court of Human Rights (First Section), sitting on 11 September 2012 as a Chamber composed of:

Nina Vajić , President, Anatoly Kovler , Peer Lorenzen , Elisabeth Steiner , Khanlar Hajiyev , Linos-Alexandre Sicilianos , Erik Møse , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 26 March 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Hasan Yoltagil , is a Turkish national, who was born in 1955 and lives in Malatya , Turkey . He was represented before the Court by Mr N. Sert , a lawyer practising in Turkey .

2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov .

A. The circumstances of the case

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

4. According to the applicant, he came to Azerbaijan in 1992 with the intention of settling permanently in Ganja . He worked in the leather business and established two private companies in 1992 and 1996.

5. The applicant was recognised as a victim in two different sets of criminal proceedings which ended in June 2000 and May 2003, respectively. According to the relevant judgments, the convicted defendants had to pay the applicant 118,434 United States dollars (USD) and USD 25,150 as compensation for damage. The defendants failed to pay and the applicant applied to the domestic authorities asking for the execution of the court judgments and payment of the debts. According to the applicant ’ s submission, he was also owed large amounts of money by two other private individuals.

6. During a standard passport check on 25 April 2006, officers of the Ganja City Police Office discovered that the applicant had been living in Azerbaijan without a valid residence permit or passport.

7. On 26 April 2006 the Ganja City Police Office drew up a record for an administrative offence ( inzibati xəta haqqında protocol ), by which the applicant was found to be in breach of Article 330 of the Code of Administrative Offences (“the CAO”). It decided to fine him in the amount of 110,000 old Azerbaijani manats (equivalent to 22 new Azerbaijani manats ) and to deport him from Azerbaijan .

8. The applicant gave a handwritten explanation, in the section of the report designed for this purpose, that his passport was at the Turkish Embassy at the time. He made no reference to the residence permit. He then confirmed that he had read the report, by signing it in three different places.

9. It appears that at a later date the applicant received his passport back from the Embassy and presented it to the Ganja City Police Office.

10. By a letter dated 26 July 2006 the Ganja City Police Office forwarded the applicant ’ s passport and other documents to the Department of International Cooperation of the Ministry of Foreign Affairs, informing them that it had been decided to deport the applicant and requesting the Department ’ s assistance with the deportation.

11. According to the applicant, he was deported from Azerbaijan on 10 September 2006 without any explanation.

12. According to the Government, the applicant was deported on 13 September 2006 pursuant to the decision of 26 April 2006.

13. According to the applicant, after his deportation, he applied for a visa to the General Consulate of the Republic of Azerbaijan in Istanbul . On 22 September 2006 he was granted a month-long Azerbaijani visa by the consulate. However, he was refused entry to Azerbaijan on 25 September 2006 at the Turkish-Azerbaijani border and again on 4 October 2010 at the Georgian-Azerbaijani border.

14. In October 2006 the applicant applied to the Turkish Ministry of Foreign Affairs, complaining that he had been deported from Azerbaijan because he had asked the domestic authorities to ensure the payment of unpaid debts. On 5 December 2006 the Turkish Ministry of Foreign Affairs informed the applicant that his complaint had been sent to the Azerbaijani authorities in the form of a diplomatic note. By a letter dated 16 February 2007, the Turkish Ministry of Foreign Affairs informed the applicant that, according to the information provided by the Azerbaijani authorities, he had been deported on 13 September 2006 under Article 330 of the CAO for residing on the territory of Azerbaijan without the relevant residence permit.

B. Relevant domestic law

15. The relevant provisions of the Code of Administrative Offences (“the CAO”), in force at the material time, read as follows:

Article 330. Residence without registration or unlawful stay in the Republic of Azerbaijan of foreign nationals or stateless persons

“Foreign nationals or stateless persons who reside on the territory of the Republic of Azerbaijan without registration or ... stay without an official permit or visa shall be fined ... and deported outside the borders of the Republic of Azerbaijan under the administrative procedure.”

Article 430. The right to lodge a complaint or appeal against a decision on administrative offences

“430.1. A person against whom an administrative decision has been taken, ... as well as his or her counsel or representative, may lodge a complaint against the decision.

430.2. A complaint ... against a decision on an administrative offence is lodged according to the following procedure:

...

430.2.3. against a decision taken by the competent authority or official – to the superior authority or official, or to court.”

16. According to Article 12 of the Law on the Entry into and Departure from the Country and on Passports, as in force at the material time, a foreign national could be refused entry into the country if he or she had breached the requirements of Azerbaijani law during his or her previous stays in the country.

COMPLAINTS

17. The applicant complained that he had been deported from Azerbaijan despite having a residence permit which was valid until 2011 and that his deportation had not been accompanied by the safeguards provided for by Article 1 of Protocol No. 7 to the Convention and Article 13 of the Convention.

THE LAW

18. The applicant complained about his deportation from Azerbaijan , relying on Article 1 of Protocol No. 7 to the Convention, which provides as follows:

“1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a) to submit reasons against his expulsion,

(b) to have his case reviewed, and

(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.

2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”

He also relied on Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties ’ submissions

19. The Government submitted copies of the Ganja City Police Office ’ s administrative offence report dated 26 April 2006 and the letter dated 26 July 2006 and maintained that the applicant had not been lawfully resident in Azerbaijan at the time of his deportation. The Government submitted that the applicant had been aware of the deportation order. The Government further submitted that, in any event, the applicant had not exhausted all domestic remedies. In particular, they noted that the applicant had not taken advantage of the remedies envisaged by Article 430 of the CAO in that he had failed to lodge any complaints in the domestic courts against the deportation order of 26 April 2006.

20. The applicant submitted that, after the standard passport check of 25 April 2006 and the drawing up of the report of 26 April 2006, he had received his passport back from the Turkish Embassy and shown it to officials of the Ganja City Police Office, who told him that he could continue to stay in Azerbaijan without any problems. The applicant claimed that he had not been notified of “the document relating to deportation” and had been unaware of it until the day he was deported. He had not been informed of the reasons for his deportation so therefore, he had been unable to lodge any appeals before the date of the deportation and he could not use any domestic remedies thereafter because he was refused entry back into Azerbaijan .

B. The Court ’ s assessment

21. The Court notes that, by the Ganja City Police Office ’ s administrative offence report of 26 April 2006, the applicant was fined for not having a valid residence permit and his deportation from the country was ordered pursuant to Article 330 of the CAO. This constituted the actual administrative decision on the applicant ’ s deportation. Despite the applicant ’ s claims in his submissions to the Court that he had never been informed of the deportation order, it is clear from the copy of that report available in the case file that the applicant wrote his explanation in that same report by hand and confirmed, by having signed the report, that he had been informed of its content, of the decision taken, and of his rights under the CAO. Moreover, under Article 430 of the CAO, the applicant had the right to challenge this decision before the domestic courts. However, he had not done so in the several months preceding his actual deportation and neither did he attempt to lodge such a complaint through a legal representative after he had been deported or provide any explanation as to what might have prevented him from doing so. However, the Court considers that, in the circumstances of the present case, it is not necessary to examine the Government ’ s objection as to non-exhaustion, as it is moot in view of the fact that the application is inadmissible for the following reasons.

22. The guarantees of Article 1 of Protocol No. 7 apply only to aliens “lawfully resident” on the territory of a State that has ratified this Protocol (see Sejdovic and Sulejmanovic v. Italy ( dec .), no. 57575/00, 14 March 2002; Sulejmanovic and Sultanovic v. Italy ( dec .), no. 57574/00, 14 March 2002; and Lupsa v. Romania , no. 10337/04, § 52, ECHR 2006 ‑ VII).

23. As stated above, the domestic authorities found that, on 26 April 2006, the applicant did not have a valid residence permit. Despite claiming in his application to the Court that he did have a residence permit which was valid until 2011, the applicant did not submit any documentary evidence to this effect with his application form or provide any explanation for the absence of such a document in his submissions. Furthermore, although upon communication of the application to the respondent Government the Court specifically asked the parties whether the applicant had been lawfully resident at the time of his deportation, the applicant failed to answer the question and again failed to submit copies of any documents proving that he had had a residence permit which was valid at the time of the deportation, or a work permit, or was officially registered with the local authorities. He also failed to provide any background information on his residence status and registration history from the date of his first arrival in Azerbaijan , which was allegedly in 1992. Moreover, from the material available in the case file, it appears that, during the period between the deportation order of 26 April 2006 and the date of deportation, the applicant never attempted to demonstrate to the relevant authorities that he actually possessed a valid residence permit as he had claimed or, alternatively, to regularise his stay in the country by applying for the relevant permit. Lastly, he never produced any evidence of his claims of lawful residence in Azerbaijan in the subsequent complaint letters he sent to the Turkish Ministry of Foreign Affairs.

24. For the reasons stated above, it follows that the applicant, being a foreign national, was not “lawfully resident” in Azerbaijan at the time of his deportation. Accordingly, Article 1 of Protocol No. 7 to the Convention does not apply in the present case. Article 13 of the Convention is therefore also inapplicable, as it requires the provision of effective remedies for breaches of rights guaranteed by the Convention.

25. It follows that this application should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Nina Vajić Registrar President