FIFTH SECTION

DECISION

Application no. 9510/21 Tania Christine KING and Others against Azerbaijan

The European Court of Human Rights (Fifth Section), sitting on 4 November 2021 as a Committee composed of:

Ganna Yudkivska, President,

Stéphanie Mourou-Vikström,

Lado Chanturia, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged on 9 February 2021,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. They were represented before the Court by Ms V. Bokareva, a lawyer practising in Strasbourg.

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

3. The applicants are archeologists who carried out research and excavations in the cave Azykh (referred to by the applicants as “Azokh”), in Azerbaijan, at different times from 1999 to 2017. At several occasions during this period some institutions as well as the applicants’ publisher received communications from different Azerbaijani ambassadors which were essentially complaints on the basis of the view that the applicants’ work entailed illegal visits by foreign nationals to an occupied area. A book with the applicants’ research results was still published in 2016.

4. In February 2017 the Azerbaijani authorities opened a criminal case against the first and third applicants and made decisions on their arrest and detention.

5. On 1 March 2017 the National Central Bureau of Interpol Azerbaijan issued an international notice of wanted persons through Interpol on the charges against the first and third applicants, as well as against one other person, under Article 116.0.8-3 (violation of international humanitarian law during the conflict); Article 165.2.2 (violation of copyright and allied right). Articles 183.2.1 and 183.2.2 (robbery (pillage) of goods of special significance); Article 281.2 (public appeals against the state) and Article 318.2 (illegally crossing border of Azerbaijan) of the Criminal Code of Azerbaijan for carrying out archaeological excavations from 2002 and 2016 in the cave Azykh (referred to by the applicants as “Azokh”). No notice was issued in respect of the second applicant.

6. On 1 March 2017 the General Secretariat of Interpol suspended the circulation of the notice on the grounds that it contradicted Article 3 of the Constitution of Interpol and the arrest could not be executed in the framework of international notice. Some time in 2017 the applicants were included on a list issued by the Azerbaijani Ministry of Foreign Affairs, of persona non grata owing to having illegally travelled to occupied areas.

7. On 29 August 2017 the applicants lodged an application with the Court ( King and Others v. Azerbaijan , no. 63764/17) which was declared inadmissible by the Court, sitting in a single judge-formation, on 12 October 2017.

8. According to the applicants, in order to take measures to exhaust domestic remedies subsequent to the Court’s admissibility decision, they tried to find an independent lawyer to represent their interests in Azerbaijan, but did not succeed. The Court has not received any materials to show concrete attempts to find such representatives.

9. Following the Court’s inadmissibility decision, the applicants and their representative also wrote different letters to the Office of the Prosecutor General of the Republic of Azerbaijan asking for information:

On 13 August 2018 their representative requested the Office of the Prosecutor General of the Republic of Azerbaijan to provide complete information regarding the alleged criminal charges against the first applicant. On 10 October 2018 the Prosecutor General replied, informing her that according to Article 92 of the Criminal Procedure Code only lawyers who were members of the Azerbaijani Bar Association had the right to represent clients and appear before the Azerbaijani courts. It was also noted that the first applicant was charged under Articles 116.0.8-3, 165.2.2, 183.2.1, 183.2.2, 281.2 and 318.2 of the Criminal Code of Azerbaijan.

On 20 March 2019 the first and second applicants sent a letter to the Prosecutor General asking to provide complete information on the opened criminal cases against them. On 23 May 2019 the Prosecutor General replied, noting that criminal charges were initiated under a number of provisions of the Azerbaijani Criminal Code against the first applicant. In addition, it was stated that the first applicant was a wanted person. No information was provided about charges against the second applicant.

On 10 March 2020 the first and second applicants asked for information about any criminal charges against the second applicant and for all documents regarding the criminal charges against the first applicant. In a letter dated 24 December 2020, received by the first and second applicants on 25 May 2021, the Prosecutor General responded, referring – with regard to both the first and the second applicants – to the provisions cited in the above letter of 10 October 2018 and stating that a preliminary investigation was under way.

In the meantime, on 3 July 2020 the applicants had sent another letter to the Prosecutor General with a request similar to that of 10 March 2020.

Furthermore, on 26 April 2021 the first applicant had sent yet another letter to the Prosecutor General requesting information about the criminal case under consideration and posing a number of questions in respect of the charges brought against her.

COMPLAINTS

10. The applicants complained under Articles 8 and 13 of the Convention and Article 2 of Protocol No. 4 to the Convention about them having been placed on the list of persona non grata , about the criminal case opened against them and about lack of domestic remedies.

THE LAW

11. The applicants submitted that there had been a violation of their rights pursuant to Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Furthermore, they maintained that there had been a violation of rights granted to them by virtue of Article 2 of Protocol No. 4 to the Convention, which reads as follow:

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

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.

4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

In addition, the applicants argued that there had been a violation of Article 13 of the Convention, which reads:

“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.”

12. The applicants argued that Azerbaijan had violated their right to respect for private life by putting their names on a “black list”, fabricating a criminal case against them, and issuing an arrest warrant via Interpol. They also argued that a travel ban had thereby effectively been imposed on them and that there were no available remedies. According to the applicants, the charges against them and the other measures in connection with them had had considerable repercussions on their private and professional life, such as with regard to fear, stress and restrictions on travel.

13. The Court reiterates that according to Article 35 § 1 of the Convention it may only deal with the matter “after all domestic remedies have been exhausted”. The general principles concerning that admissibility requirement have been set out in, inter alia , Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). For the purpose of the present analysis, the Court emphasises that Article 35 § 1 requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (ibid., § 72).

14. In the instant case, the Court observes that the applicants, while having asked the domestic authorities for information about the ongoing investigations of the criminal charges against them, have not provided any materials to it to show that they have attempted to bring their Convention complaints to the attention of any domestic authorities in any manner, either with or without the assistance of lawyers. Furthermore, as concerns the allegation that it has not been possible to find lawyers who could act before the domestic courts on behalf of the applicants, the Court observes that the applicants have not adduced any materials to show concrete attempts to find such representatives (see paragraph 8 above). It follows already from the foregoing observations that the application is inadmissible because it has not been shown that all domestic remedies have been exhausted as required by Article 35 § 1 and that it must in any event be rejected in accordance with Article 35 §§ 1 and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 25 November 2021.

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Martina Keller Ganna Yudkivska Deputy Registrar President

Appendix

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.Tania Christine KING

1970British

Dorset, UK

2.Peter John ANDREWS

1940British

LONDON

3.Yolanda FERNANDEZ-JALVO

1961Spanish

MADRID