FIRST SECTION

Application no. 29620/07 Bejan FARZALIYEV against Azerbaijan lodged on 8 May 2007

STATEMENT OF FACTS

The applicant, Mr Bejan Farzaliyev , is an Azerbaijani national who was born in 1946 and lives in Ankara , Turkey . He was represented before the Court by Mr I. Aliyev , a lawyer practising in Baku .

A. The circumstances of the case

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

In the early 1990s the applicant served as a Prime Minister of the Nakhchivan Autonomous Republic . By the time of the events giving rise to the present application, he has not been holding any public positions for years and has been living in Turkey since 1993.

1. Criminal proceedings

Based on an application by the Cabinet of Ministers of the Nakhchivan Autonomous Republic , on 9 November 2005 the Nakhchivan Prosecutor ’ s Office instituted criminal proceedings in respect of an incident involving alleged embezzlement of public funds from the budget of the Nakhchivan Autonomous Republic that had taken place in November and December 1991.

Based on collected evidence, the investigation considered that the primary suspects were the applicant, F.J. and A.M.

On 21 January 2006 the Nakhchivan Prosecutor ’ s Office discontinued the criminal proceedings pursuant to Article 75.1.3 of the Criminal Code without having formally charged the applicant or the other two suspects with a criminal offence, owing to the expiry of the twelve-year criminal prescription period applicable to the type of criminal offence under investigation.

The applicant was not aware of the decisions on institution and subsequent discontinuation of the criminal investigation at the time those decisions were taken.

In 2006 and 2007, the applicant challenged, unsuccessfully, the decision to discontinue the criminal proceedings before the prosecution authorities and courts, arguing that it had been taken in breach of various requirements of the domestic law.

2. Civil claim against the applicant

On 16 February 2006 the Nakhchivan Prosecutor ’ s Office, relying on Article 179.4 of the Code of Criminal Procedure (“the CCrP ”), applied to the Nasimi District Court with a civil claim against the applicant, F.J. and A.M., under the procedure provided by the CCrP for “lodging a civil claim in the framework of criminal proceedings”, asking the court to order these persons to compensate the State for embezzlement they had allegedly committed in 1991. In its claim the Nakhchivan Prosecutor ’ s Office noted that “it had been proved” by the evidence collected by the investigation that the defendants had committed embezzlement of State funds in large quantities, but they had been “absolved” from criminal liability owing to the expiry of the prescription period. They further noted that, although the criminal proceedings had to be discontinued for this reason, the defendants still had an obligation to compensate the State for “the crime”. In support of the claim, the prosecutor ’ s office submitted the documentary material and witness depositions contained in the criminal file.

By a judgment of 8 May 2006, the Nasimi District Court upheld the claim of the Nakhchivan Prosecutor ’ s Office in respect of the applicant and A.M., and rejected the claim in the part relating to F.J., finding that the latter was not responsible for the embezzlement. The court ordered the applicant and A.M. to pay, jointly, an amount of 2,327,059 Azerbaijani manats (AZN) (approximately 2,025,000 euros at the material time). It also ordered them to pay the court fees in the amount of AZN 19.80. In its judgment, the court stated, inter alia , the following:

“Even though [the defendants] were absolved from criminal liability by way of discontinuation of the criminal proceedings ... owing to the expiry of the prescription period, the damage caused as a result of the criminal offence has not been compensated. Therefore, the court considers that [the applicant and A.M.] should jointly pay 2,327,059 [Azerbaijani] manats to the budget of the Nakhchivan Autonomous Republic ”.

Following the applicant ’ s appeals, on 21 July 2006 the Court of Appeal and on 13 December 2006 the Supreme Court upheld the Nasimi District Court ’ s judgment.

In his appeals to the higher courts, the applicant disputed the factual findings of the court and argued that those findings were based on inadmissible evidence, claiming that the evidence collected in discontinued criminal proceedings could not be relied on by the court. He also complained that, in the absence of a final judgment resulting in criminal conviction, the civil court erred in finding him liable for committing a criminal offence and ordering him to pay compensation. Lastly, he argued that, even though there were no longer any criminal proceedings against him owing to the discontinuation decision, the Nakhchivan Prosecutor ’ s Office had unlawfully brought a civil claim under Article 179.4 of the CCrP . According to the applicant, even though it was clear that the prescription period under criminal law had expired, the criminal proceedings had been knowingly instituted in a belated manner with the sole purpose of unlawfully “reviving the claim period” under the criminal procedure law. The applicant argued that, in the absence of the active criminal proceedings, the civil claim should have been examined under the relevant provisions of civil law, under which all the statutes of limitations had long expired for any types of civil claims.

B. Relevant domestic law

According to Article 179.4 of the CCrP , any periods for lodging a civil claim provided for by the civil law and other fields of law do not apply to civil claims lodged within the framework of criminal proceedings.

According to Article 75.1.3 of the Criminal Code, the criminal prescription period in respect of “grave crimes” is twelve years from the date of the criminal offence. No person can be held liable in respect of that offence after the expiry of this period.

According to Article 373 of the Civil Code, the general period for lodging a civil claim is maximum ten years, and can be shorter depending on the type of the claim and the civil-law relations giving rise to it.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about unfair trial in the proceedings concerning the claim of the Nakhchivan Prosecutor ’ s Office.

2. The applicant complains under Article 6 § 2 of the Convention that the domestic courts breached his right to presumption of innocence.

3. Relying on Article 6 of the Convention, the applicant complains about the unlawfulness of the decision to discontinue the criminal investigation and about the unfairness of the proceedings whereby he challenged its lawfulness.

4. The applicant complains that the domestic courts ’ unlawful decision ordering him to pay compensation was in breach of his rights under Article 1 of Protocol No. 1 to the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant ’ s right to a reasoned decision respected in connection with his objections as to the inadmissibility of the civil claim lodged under the procedures provided by the Code of Criminal Procedure (“the CCrP ”)? Given that there were no criminal proceedings pending against the applicant owing to the expiry of the criminal prescription period, was the admission and examination of the c ivil claim lodged under Article 179.4 of the CCrP lawful under the domestic law? Could Article 179 et seq. of the CCrP be applied to any civil claims lodged in the absence of any active criminal proceedings or after discontinuation of the criminal proceedings? Was the admission of the civil claim for examination by the domestic courts in the present case in breach of the principle of legal certainty? The parties are requested to support their answers with references to the relevant provisions of the domestic law and, more importantly, any jurisprudence of the Supreme and Constitutional Courts (or other courts) interpreting those provisions.

2. Having regard to the findings of the domestic civil courts and the texts of the relevant judgments, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?

3. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference in accordance with the conditions set out in the second sentence of the first paragraph and in the second paragraph of Article 1 of Protocol No. 1?