FIRST SECTION

DECISION

Application no. 54567/13 Nasimi MUSAYEV against Azerbaijan

The European Court of Human Rights (First Section), sitting on 27 June 2023 as a Committee composed of:

Krzysztof Wojtyczek , President , Lətif Hüseynov, Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar ,

Having regard to:

the application (no. 54567/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 August 2013 by an Azerbaijani national, Mr Nasimi Alisa oglu Musayev ( Nəsimi Əlisa oğlu Musayev – “the applicant”), who was born in 1993, lives in Lerik and was represented by Mr F. Namazli, a lawyer practising in Azerbaijan;

the decision to give notice of the complaints concerning Article 2 of Protocol No. 1 and Article 6 § 1 of the Convention (regarding the failure of the appellate court to duly inform the applicant and his representative of the date and time of the hearing) to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The present case concerns the alleged failure by the State authorities to issue the applicant’s military identity document (ID) in a timely manner – the consequence of which, he claims, was that he could not apply for and sit the university entrance examination – and the subsequent civil proceedings he brought against them.

2. The applicant successfully completed his high school education on 29 June 2010, becoming eligible to participate in the university entrance examinations organised each year by the State Commission for Admission of Students (“the SCAS”). It appears that he did not apply to the SCAS to sit the university entrance examination of that year.

3. On 15 April 2011 the applicant turned 18, thus becoming eligible for compulsory military service.

4. On 20 April 2011, by a decision of the Lerik District Conscription Commission (“the Commission”), in view of the fact that he suffered from diabetes the applicant was declared unfit for military service during peacetime and partially fit for service in times of war.

5. On an unspecified date the SCAS announced that the deadline for applications to sit the university entrance examination for 2011 would expire on 1 June of that same year. In order to apply for the examination, the applicant had to submit his military ID along with other documents.

6. Although the relevant legislation did not specify the time frame for the issuance of military ID cards, according to the applicant he was entitled to receive a military ID from the date on which the Commission adopted its decision regarding his unfitness for military service.

7. It appears that the applicant never informed the District Conscription Service or the SCAS of his intention to sit the university entrance examination.

8. On 23 May 2011 the Deputy Head of the State Service for Mobilisation and Conscription (“the State Conscription Service”) issued an instruction to the effect that the military certificates to be submitted to the SCAS should only be issued to the relevant persons if the Main Clinical Hospital of the Armed Forces (“the Hospital”) had confirmed the initial diagnosis after a second medical examination.

9. Despite having been instructed by the District Conscription Service to attend the Hospital, the applicant refused to do so, arguing that under the Law on the Basic Principles governing Conscription of 10 June 1992 (in force at the material time), the Hospital did not have any authority to confirm the decision of the Commission.

10. In spite of that the District Conscription Service issued the applicant’s military ID on 4 July 2011.

11. On 3 December 2011 the applicant lodged a claim with the Lerik District Court against the District Conscription Service, the State Conscription Service and the Ministry of Defence, seeking compensation in respect of non-pecuniary damage in the amount of 100,000 Azerbaijani manats on account of a breach of his right to education, because he had not been able to apply to sit the examination owing to the allegedly delayed issuing of the military ID.

12. On 17 April 2012 the first-instance court dismissed the applicant’s claim, finding that the law did not provide for a time-limit for issuing the military ID and that, in the applicant’s particular case, it had been issued within a reasonable time, given that the applicant had failed to inform the District Conscription Service about his intention to sit the examination in question.

13. The applicant appealed, arguing that issuing the military ID seventy ‑ five days after he had been declared unfit for military service had not been reasonable. He also argued that the District Conscription Service and the State Conscription Service had been aware of his intention, otherwise he would not have been sent for the second medical examination required only for persons who intended to sit the entrance examination. Nevertheless, he did not submit any documents confirming that the authorities had known of his intention to participate in the entrance examinations.

14. On 14 August 2012, in the absence of the applicant and his representative, the Shirvan Court of Appeal upheld the judgment of the first-instance court. The judgment indicated that the applicant’s representative had been duly summoned for the hearing, but that he had sent a telegram to the court asking for the hearing to be held in his absence.

15. It appears from the case file that the summons was actually sent to the applicant after the hearing had been held. In particular, on 15 August 2012 the Shirvan Court of Appeal sent summons dated 7 August 2012 to the applicant and his representative, informing them of the date and time of the hearing of 14 August 2012. The summons was delivered to them on 17 August 2012.

16. On 14 February 2013 the Supreme Court upheld the appellate court’s judgment.

17. The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial had been breached because he and his representative had not been duly informed of the date and time of the hearing before the appellate court which, as a result, had been held in his and his representative’s absence. He also complained that his right to education under Article 2 of Protocol No. 1 had been violated on account of the alleged failure by the State authorities to issue his military ID in time, preventing him from applying to sit the university entrance examination.

THE COURT’S ASSESSMENT

18. On 26 July 2019 the Government submitted a unilateral declaration with a view to resolving the issues raised by the complaint under Article 6 § 1 of the Convention.

19. The Government acknowledged the violation of the applicant’s rights under Article 6 § 1 of the Convention. They offered to pay the applicant 1,000 euros (EUR) in respect of non-pecuniary damage and in respect of the costs and expenses incurred before the Court and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay this amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.

20. The applicant rejected the terms of the unilateral declaration, requesting the Court to continue examining his application. He contested, in particular, the Government’s omission to acknowledge the violation of his right to education under Article 2 of Protocol No. 1 to the Convention and to accordingly also pay him compensation for non-pecuniary damage in that respect.

21. The Court reiterates that Article 37 § 1 (c) enables it to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

22. Thus, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government, even if the applicant wishes the examination of the case to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003-VI).

23. The Court has established clear and extensive case-law concerning complaints relating to the failure of appellate courts to duly inform applicants and their representatives of the date and time of hearings (see, among many others, Pirali Orujov v. Azerbaijan , no. 8460/07, §§ 40-46, 3 February 2011; Maksimov v. Azerbaijan , no. 38228/05, §§ 36-43, 8 October 2009; and Abbasov v. Azerbaijan , no. 24271/05, §§ 28-34, 17 January 2008).

24. Noting the admission contained in the Government’s declaration and the amount of compensation proposed – which is consistent with the amounts awarded in recent similar cases (see, for example, Kotlyar v. Ukraine [Committee], no. 36124/13, 10 November 2022; Kharlamov and Shcherbatenko v. Russia [Committee], nos. 40959/19 and 19258/20, 23 June 2022; and Religious Community of Jehovah’s Witnesses and Hansen v. Azerbaijan [Committee], no. 52682/07, § 42, 30 January 2020) – the Court considers that it is no longer justified to continue its examination of this part of the application (Article 37 § 1 (c) of the Convention). Moreover, it is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue examining this part of the case (Article 37 § 1 in fine ).

25. Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

26. In view of the above, it is appropriate to strike this part of the application out of the list.

27. The general principles in respect of Article 2 of Protocol No. 1 to the Convention have been summarised in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 136-40, ECHR 2012).

28. Moreover, the Court has found that institutions of higher education and the right of access to them come within the scope of the first sentence of Article 2 of Protocol No. 1 to the Convention (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 141, ECHR 2005-XI).

29. In the instant case, the crux of the applicant’s complaint is that, in the absence of a time-limit for issuing military IDs, the authorities issued his military ID in a belated manner, after the deadline for applying to the SCAS in order to sit the university entrance examination.

30. Taking into account the fact that military IDs are issued to all male citizens – that is, not just to those wishing to participate in the university entrance examination – the Court notes at the outset that the absence of a time-limit for issuing an official document, in itself, does not necessarily constitute a restriction within the meaning of Article 2 of Protocol No. 1 to the Convention. Moreover, the fact that it took seventy-five days (according to the applicant’s assertion) to issue an official document cannot, by itself, be considered an unreasonable length of time in the present case.

31. The Court observes that the applicant was declared unfit for military service during peacetime and partially fit for service in times of war on 20 April 2011, more than a month before the deadline set by SCAS for the university entrance examination (see paragraphs 4-5 above). However, it appears that the applicant never informed the District Conscription Service and the SCAS of his intention to sit the examination and never attempted to request speedy issuance of the ID during that period. Moreover, it appears that at least part of the alleged delay in the issuing of the military ID may have been attributable to the applicant’s own conduct (see paragraphs 8-9 above).

32. Lastly, the fact that the applicant did not sit the university entrance examination in 2011 did not preclude him from applying to sit it in subsequent years.

33. Having regard to all of the above, the Court considers that, in the particular circumstances of the present case, it has not been shown that any unjustified or unforeseeable limitation was imposed on the applicant’s right to education, curtailing it to such an extent as to impair its very essence and deprive it of its effectiveness. Moreover, the applicant has not demonstrated in his submissions that there was any systemic problem in the country in this regard.

34. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 31 August 2023.

Liv Tigerstedt Krzysztof Wojtyczek Deputy Registrar President