FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9852/03 by Alikram HUMBETOV against Azerbaijan

The European Court of Human Rights (First Section), sitting on 11 September 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mrs F. Tulkens, Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr K. Hajiyev, judges , and Mr Søren Nielsen , Deputy Registrar ,

Having regard to the above application introduced on 13 March 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Alikram Humbetov, is an Azerbaijani national of Talysh origin, who was born in 1948 and lives in Baku. He is represented before the Court by Mr Elman Osmanov, a lawyer practising in Baku. At the time he lodged the application, he was serving a prison sentence.

A. The circumstances of the case

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

a) Historical background

Before 1988 the applicant was the deputy director of a transport warehouse in the city of Lenkoran. In 1988 he joined a political party and began his political career. When the military conflict over the Nagorno-Karabakh enclave broke out, he joined the national army and became one of its commanders. In summer 1993, at the time of the outbreak of a civil and political confrontation in the country, he returned from the war in Nagorno-Karabakh to his native Lenkoran and directed the major political events there. In June 1993 he sponsored and proposed the idea of a so-called Talysh-Mugan Republic which would, in addition to Lenkoran itself, incorporate several adjacent regions. On 7 August 1993 an Assembly of Local Representatives proclaimed the creation of the Talysh-Mugan Autonomous Republic (Talış-Muğan Avtonom Respublikası ) within the Republic of Azerbaijan, and elected the applicant the Republic’s first President. The Assembly then adopted and communicated a special petition to the Parliament of Azerbaijan seeking official recognition for the new entity. The Parliament rejected the petition in a strongly worded reply.

b) The applicant’s arrest and conviction

Since then, the confrontation between the applicant and the central authorities intensified. The Government embarked on a campaign in the mass media in an attempt to mobilise public opinion against the applicant, calling him a traitor and a separatist. At the end of August 1993, the applicant was arrested and incarcerated in the detention centre of the Ministry of National Security. The investigation against him led to accusations of high treason, use of armed forces against the constitutional institutions of the State and aiding and abetting a murder.

In September 1994 the applicant, along with three other detainees, succeeded in absconding from the detention centre of the Ministry of National Security. Their flight was allegedly instigated and organised by the authorities with the aim of shooting the fugitives, but failed as the latter changed their escape route at the last moment. The applicant went into hiding until August 1995 when he was finally caught and arrested for the second time.

At all times while under arrest and in detention, the applicant was subjected to inhuman treatment and torture. He was severely and constantly beaten, hung on a beam, his moustache was plucked and his teeth pulled out. He was not allowed to see a doctor. Under threat of his wife’s arrest and criminal prosecution, he was compelled to testify against himself. His close relatives and friends were also subjected to persecution by the authorities. The applicant’s wife, fearing unlawful arrest and ill-treatment because of her husband’s situation, had to hide for a period of time in the woods. Her son, a 14 year-old boy, was taken to the police headquarters and questioned about his mother’s whereabouts; a policeman put out a cigarette in her son’s palm. Finally, the mother and her son escaped and sought asylum in the Netherlands.

On 12 February 1996 the applicant was brought before the Military Chamber of the Supreme Court. Other accused persons were tried together with the applicant. The applicant was convicted of high treason, creation of illegal armed units, aggravated murder, absconding from custody, misappropriation of private property and abuse of power. He was sentenced to the death penalty. Being a decision of the highest tribunal, this judgment was final and was not subject to appeal.

On 10 February 1998, following the abolition of the death penalty in Azerbaijan, the applicant’s death penalty was commuted to life imprisonment. Despite this new penalty, he was kept on death row from June 1996 up to January 2001. The conditions of imprisonment were harsh and inhuman, and beatings frequently occurred. He suffered from various ailments, such as tuberculosis, ischemia, high blood pressure, liver and gastrointestinal diseases and rheumatism. By 2000 his health had worsened and in March 2000 he was placed in the prison hospital. In the hospital, he was ill-treated by the doctors and did not receive proper medical treatment.

Following the relevant changes in domestic law and in the light of Azerbaijan’s undertaking to the Council of Europe to review the cases of political prisoners, the Prosecutor General filed an application on 20 December 2001 requesting the court to allow the applicant’s case to be considered by an appeal court. On 24 January 2002 the Appeal Court granted the prosecutor’s request and allowed an appeal to be lodged against the decision of the Supreme Court’s Military Chamber of 12 February 1996.

On 29 January 2002 the applicant lodged an application with the Appeal Court. In his application he asked the court to initiate a new investigation into the case, to hold a public hearing in an ordinary courtroom with the participation of media representatives and officials of foreign organisations, to obtain the attendance and examination of new witnesses, including the President of Azerbaijan, and to evaluate the political events in the Lenkoran region in 1993.

On 23 April 2002 the Appeal Court’s Military Chamber decided to allow the applicant’s request for a new investigation and a public hearing, but dismissed the rest of the application. The hearings on the merits were to be held at the detention centre of the Ministry of Justice. However, on 13 May 2002 the Appeal Court’s Military Chamber changed the location of the hearings to the Gobustan high security prison since work was being carried out on the detention centre.

In the course of the criminal proceedings before the Appeal Court’s Military Chamber, the applicant submitted many requests in which he challenged the independence and impartiality of the military tribunal, asked the court to hold the hearings in public and away from the high security prison and to allow him a lawyer of his choice. These requests were refused.

In October 2002 the applicant asked the court to release him on the basis of the legal provision which provided that a person whose case is under consideration on appeal should not be detained for more than nine months. On 28 October 2002 the Appeal Court’s Military Chamber dismissed the applicant’s request without giving any reasons.

On 8 November 2002 the applicant lodged an appeal in cassation with the Supreme Court. He asked the court to quash all previous decisions of the Appeal Court’s Military Chamber and to order his release. In a letter of 19 December 2002, the Supreme Court rejected the appeal on the ground that the case was still under consideration by the Appeal Court’s Military Chamber and its final decision had not yet been taken.

B. Relevant domestic law

Code of Criminal Procedure of the Republic of Azerbaijan

Article 158 § 5 reads as follows:

"The period for detention of persons whose cases are under consideration before the first and appeal instance courts shall not exceed:

nine months with respect to especially grave crimes..."

COMPLAINTS

1. The applicant complains, under Articles 3 and 14 of the Convention, that he was subjected to inhuman and degrading treatment while under arrest, while in detention and while imprisoned following his conviction in February 1996.

2. He complains, furthermore, that as a result of such treatment he is currently suffering from serious illnesses, including a heart condition, and that he is refused access to the necessary medical care. He invokes Article 3 of the Convention  in this respect.

3. The applicant complains further that the authorities have deprived him of his liberty in violation of Article 5 § 1 of the Convention following the decision of January 2002 to re-open his case. He claims that he is unlawfully held in prison due to the expiry of the maximum nine-month period provided for by law in order to examine any case brought before the Appeal Court.

4. In respect of the criminal proceedings which led to his conviction in 1996, the applicant complains that they were unfair and not concluded within a reasonable time, that he was not presumed innocent due to the virulent press campaign against him and that he was persecuted due to his ethnic origin and political opinions. He invokes in this respect Articles 6 and 14 of the Convention.

5. Under Article 13, the applicant complains that he could not appeal against the Supreme Court’s judgment of 1996.

6. In respect of the pending proceedings against him the applicant complains, under Article 6 of the Convention, that he has not received a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The applicant states that since he had retired from military service in 1993, he should not be tried by a military court. Moreover, the said trial takes place in private and before prejudiced and partial judges in a high security prison. In addition, the assessment of evidence is biased, the burden of proof is placed on the applicant and the balance of probabilities is not observed on evidentiary matters. On many occasions, the judges have breached the court rules and addressed offensive remarks to the applicant and his lawyer.

7. Under Article 6 § 3 the applicant further complains that he does not receive legal assistance of his own choosing.

8. The applicant invokes Article 7 of the Convention. He maintains that his conviction was unlawful and that the penalty imposed on him was disproportionate to the offence. He submits furthermore that the substitution of life imprisonment for the death penalty in 1998 in his case was to his detriment as one extreme penalty was replaced by another. In fact, in 1996 the offence for which he was convicted was sanctioned by the death penalty or alternatively by 15 years of imprisonment. Thus the authorities applied the retroactive effect of the new law to his detriment by sentencing him to a life imprisonment.

9. Invoking Article 13, the applicant complains that the new criminal proceedings initiated by the authorities under pressure of the international community in 2001 are ineffective and only serve propaganda purposes.

10. The applicant finally complains of a violation of Article 1 of Protocol No. 1 to the Convention in that the authorities deprived him and his family of their possessions by confiscating his personal savings as well as movable and immovable property.

THE LAW

1. The applicant has made a number of complaints related to his arrest, detention and conviction in 1996 (cf. complaints nos. 1, 4, 5 and 10 above).

The Court points out that the Convention entered into force in respect of Azerbaijan on 15 April 2002. The Court is only competent to examine complaints about violations of the Convention by virtue of acts, facts or decisions that have occurred after the date of ratification. The Court finds that the above complaints are outside its competence ratione temporis and thus incompatible with the provisions of the Convention.

This part of the application must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains further that he is currently suffering from serious illnesses including a heart condition and that he is refused access to necessary medical care. As a consequence, his health is deteriorating. He relies on Article 3 of the Convention (cf. complaint no. 2 above)

The applicant complains also that he is unlawfully held in prison despite the expiry of the maximum nine-month period provided for the consideration of any case brought before a court of appeal. He claims that his imprisonment should be replaced by a lighter form of penalty, such as house arrest or restriction on movement. He invokes Article 5 § 1 of the Convention (cf. complaint no. 3 above).

Under Article 7 of the Convention, he complains of the unlawfulness of the substitution of life imprisonment for the death penalty (cf. complaint no. 8 above).

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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. As regards the applicant’s complaints under Article 6 §§ 1 and 3 and Article 13 of the Convention concerning the length and the fairness of the re-opened proceedings before the Appeal Court’s Military Chamber, the lack of necessary legal assistance and the alleged insufficiency of the remedy (cf. complaints nos. 6, 7 and 9 above), the Court observes that the proceedings were, exceptionally, re-opened in 2002 following the petition of the public prosecutor. The criminal proceedings before the Appeal Court’s Military Chamber began on 23 April 2002. These proceedings are still pending. According to the Court’s established case-law, it is necessary to take into consideration the entirety of the criminal proceedings in order to decide whether they conform to the fairness requirements of Article 6 of the Convention (see Murray v. the United Kingdom , judgement of 8 February 1996, Reports 1996-I, § 63). The Court notes that, as the applicant has not yet been retried, he still has at his disposal the possibility of submitting his complaints to the domestic court. The applicant’s complaints under Article 6 about the unfairness of the appeal proceedings are therefore premature. The Court would point out that, after the final ruling is given in the case, it is open to the applicant to re-submit his complaints to the Court if he still considers himself a victim of the alleged violations. As to the length complaint, the Court finds that there is at this stage of the proceeding no appearance of a breach of the reasonable time requirement contained in Article 6 of the Convention.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning

a) the lack of medical treatment in prison (cf. complaint no. 2),

b) the lawfulness of his present detention (cf. complaint no. 3),

c) the imposition of the sentence of life imprisonment (cf. complaint no. 8);

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President