THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40368/02 by Gulnare KAZIMOVA against Azerbaijan

The European Court of Human Rights ( Third Section) , sitting on 6 March 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 28 October 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Gulnare Kazimova, is an Azerbaijani national, who was born in 1956 and currently lives in Baku. She is represented before the Court by Mr Bagirov, a lawyer practising in Baku. A t the time she lodged the application, she was serving her term of imprisonment.

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

On 3 May 2001 she was arrested by the police on suspicion of fraud. At the police station, she was searched and interrogated. She was allegedly forced to make false accusations against herself, as dictated by the police officers. Furthermore, she was asked to sign a document regarding her arrest. She refused to sign the document as, being a Russian speaker, she was unable to read and understand the text of the document properly. One of the police officers signed the document on her behalf.

On 11 May 2001 the local court issued an order for her detention on remand. Throughout the period of detention, the applicant was not provided with a lawyer of her choice and received communications solely in Azeri , a language of which she allegedly understands only 10%. She was also refused the assistance of an interpreter.

On 17 September 2001 the Assize Court sentenced the applicant to three years’ imprisonment. She was convicted of fraud under Articles 178.1 and 178.2 of the Criminal Code.

The applicant appealed against this decision to the Appeal Court. She claimed that the Assize Court’s decision failed to reflect the factual elements of the case; nor did it take into account the mitigating circumstances.  Claiming that the decision was unfair, she asked the Appeal Court to reconsider the judgment.

On 15 November 2001 the Appeal Court upheld the Assize Court’s decision as regards the finding of a guilt, but reduced the applicant’s term of imprisonment to one year. The applicant did not agree with this outcome and lodged a cassation appeal before the Supreme Court. Claiming total innocence, she asked for acquittal.

On 30 April 2002 the Supreme Court dismissed the applicant’s request and upheld the Appeal Court’s decision. It held that the Appeal Court’s conclusions were in accordance with the law and that the decision was fair and justified. The Supreme Court found no legal grounds for changing the Appeal Court’s decision.

The applicant lodged an additional appeal asking reconsideration of her case by the Supreme Court’s Plenary. She insisted that she had not committed any crime and that she should be acquitted.

On 26 September 2002 the Chairman of the Supreme Court rejected the applicant’s request and refused to bring the case to the Plenary’s consideration. The Chairman stated that all decisions of the appeal and cassation courts were based on and taken in accordance with the law. There was no legal ground either to quash or confirm and, furthermore, no point in bringing the case before the Plenary.

THE COMPLAINTS

The applicant complains that at the stage of pre-trial proceedings and, to some extent during the trial before the Assize Court, she was not informed, in a language she sufficiently understands (her mother tongue is Russian), of the reasons for her arrest and of the nature and cause of the accusation against her. In the same period, she was not granted adequate time and facilities for the preparation of her defence, could not defend herself with the help of legal assistance of her own choosing and did not have the free assistance of an interpreter. She states that the sentencing Assize Court failed to establish and assess all these facts and the relevant evidence before it and that there had been errors of investigation. She invokes Article 6 of the Convention on these issues.

She also alleges a violation of  Article 13 of the Convention, claiming that she did not have an effective remedy to challenge the violations committed by the investigating officers during the pre-trial investigation.

THE LAW

The applicant complains that she was not informed in her mother tongue of the reasons for her arrest and the accusation against her either at the stage of pre-trial proceedings or during the trial before the Assize Court; nor could she benefit from the services of a lawyer of her choice. She also complains that she did not have adequate time and facilities properly to defend herself before the Assize Court. She claims that she did not have an effective remedy to challenge the violations committed by the investigating officers. In this regard, she relies on Articles 6 and 13 of the Convention.

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 for violations of the Convention by virtue of acts, facts or decisions that have occurred after the date of ratification.  The stage of pre-trial proceedings and the trial before Assizes Court, the regularity and fairness of which formed the subject of the applicant’s main complaints, ended with the Assizes court judgement of 17 September 2001, that is, well before 15 April 2002. In that respect, since the date of the delivery of a judgment is an essential element of the latter, the decisive factor is the date on which the Assize Court pronounced its judgement, namely 17 September 2001 (see Mitap and Müftüoğlu v. Turkey, 15530/89, 15531/89 , § 26, Reports 1996-II).

Therefore, the Court finds that this part of the application, as well as the part regarding the proceedings before the Appeal Court which dismissed the applicant’s appeal on 15 November 2001,  are outside its competence ratione temporis and incompatible with the provisions of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

As to the proceedings before the Supreme Court, which on 30 April 2002 dismissed the applicant’s cassation appeal, the Court observes that the applicant failed to substantiate her complaints. She does not dispute that she had the benefit of adversarial proceedings and that she was able to submit the arguments she considered relevant to her case. In so far as the applicant’s complaint may be understood to concern the result of the proceedings before the Supreme Court, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention  (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28 ECHR 1999-I).

It follows that this part of the application is manifestly ill founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President