FIRST SECTION

DECISION

Application no. 2059/16 Rashad Zeynalabdin oglu HASANOV against Azerbaijan and 3 other applications (see list appended)

The European Court of Human Rights (First Section), sitting on 12 September 2023 as a Chamber composed of:

Marko Bošnjak , President , Alena Poláčková, Krzysztof Wojtyczek, Lətif Hüseynov, Ivana Jelić, Gilberto Felici, Raffaele Sabato , judges ,

and Renata Degener, Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. A list of the applicants and their representatives is set out in the appended table.

2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.

3. The present applications concern the criminal conviction of the applicants for illegal possession of weapons and mass disorder.

4. At the material time, the applicants were civil society activists and board members of the civic movement NIDA, a non-governmental organisation established by a group of young people in February 2011. The first, third and fourth applicants are also co-founders of NIDA.

5. The applicants and other members of NIDA actively participated in organising and conducting a number of peaceful demonstrations. One demonstration against the death of soldiers in the Azerbaijani army in non ‑ combat situations was scheduled for 10 March 2013.

6. However, on 7 March 2013 three members of NIDA (S.N., B.G. and M.A.) were arrested by agents of the Ministry of National Security. The arrest and detention of S.N. and M.A. were the subject of the Court’s judgment in Azizov and Novruzlu v. Azerbaijan (nos. 65583/13 and 70106/13, 18 February 2021).

7. Later, on various dates in March 2013, the first, second and third applicants and, on 1 April 2013, the fourth applicant were arrested and taken to the Serious Crimes Department of the Prosecutor General’s Office. They were charged with an offence under Article 228.3 (illegal acquisition, transfer, sale, storage, transportation and carrying of arm, its accessories, supplies, explosive substances and devices by an organised group) of the Criminal Code. The applicants were placed in a pre-trial detention, which was later extended one or two times. They remained detained until their transfer to a penal facility following their conviction (see paragraph 8 below). In September 2013 the applicants were additionally charged with a new criminal offence under Articles 28 (preparation of a crime) and 220.1 (mass disorder) of the Criminal Code.

8 . On 6 May 2014 the Baku Court of Serious Crimes found the applicants guilty on all counts and sentenced them to various terms of imprisonment.

9. On 16 December 2014 the Baku Court of Appeal upheld the conviction.

10 . On 2 June 2015 the Supreme Court upheld the appellate court’s judgment in respect of the first and second applicants. On 15 October 2015 the Supreme Court upheld the appellate court’s judgment in respect of the third and fourth applicants.

11. In the meantime, on 30 December 2014 the second and fourth applicants were released from serving the remainder of their sentence after being pardoned by a presidential decree. On 17 March 2016 the first and third applicants were also released after being pardoned by a presidential decree.

12 . The applicants’ arrest and pre-trial detention were the subject of the Court’s judgment in Rashad Hasanov and Others v. Azerbaijan (nos. 48653/13 and 3 others, 7 June 2018) in which violations of Articles 5 and 18 of the Convention were found.

13 . Invoking Articles 6, 10 and 11 of the Convention, the applicants complained that they had been convicted on the basis of fabricated or otherwise unreliable evidence; they had not been given an opportunity to effectively challenge that evidence and to adduce evidence in their favour; during the domestic court proceedings they had not been given adequate facilities for preparation of their defence; the domestic courts had failed to establish the existence of all the elements of the incriminated offences; the applicants’ right to a reasoned judgment had been violated; the purpose of their fabricated conviction had been to punish them for and prevent them from their activism, criticism of the government, and organisation of anti ‑ government demonstrations, in particular the demonstration of 10 March 2013. The first applicant argued in addition that at the pre-trial stage of the criminal proceedings his right to defend himself through legal assistance of his own choosing had been breached. The third and fourth applicants also relied on Article 18 of the Convention in conjunction with Articles 6, 10 and 11 of the Convention.

14. On 5 October 2020, the Court gave notice to the Government of the applicants’ complaints.

15. On 14 July 2021 the Government submitted to the Registry their observations on the admissibility and merits of the applications. These were forwarded to the applicants. On 22 September 2021 the first and second applicants and on 19 September 2021 the third and fourth applicants submitted their observations in reply.

16 . On 14 December 2021 the first and second applicants informed the Court that the criminal case against all the applicants had been reopened and re-examined by the Plenum of the Supreme Court of the Republic of Azerbaijan (“the Plenum”) – an extraordinary remedy provided for by the Code of Criminal Procedure (see paragraph 22 below). The proceedings before the Plenum had been set in motion by the Government in their efforts to enforce the Court’s judgment in the abovementioned case of Rashad Hasanov and Others (see paragraph 12 above).

17. By a judgment adopted on 19 November 2021 the Plenum quashed the applicants’ criminal conviction (by quashing the judgments and decisions summarised in paragraphs 8-10 above), discontinued the criminal prosecution against them on the “grounds of acquittal” (see paragraph 23 below) and awarded them compensation for non-pecuniary damage. The first and third applicants were awarded 66,700 Azerbaijani manats (AZN) each (approximately 34,550 euros (EUR)), the second and fourth applicants were awarded AZN 28,300 each (approximately EUR 14,650).

18 . The reasoning of the judgment of 19 November 2021 mainly stated the following:

“... The reasoning provided by the European Court [of Human Rights] in its judgment [in the case of Rashad Hasanov and Others ] makes it impossible to conclude that [the applicants’] guilt was proven.

Under Article 39.2 of the Code of Criminal Procedure of the Republic of Azerbaijan, failure to prove a person’s guilt constitutes a ground precluding criminal prosecution against [that] person.

... Consequently, ... [the judgments and decisions adopted by the first-instance, appellate and cassation-instance courts against the applicants] have to be quashed; [and] the criminal prosecution against [the applicants] ... has to be discontinued on the ground that [the applicants’] guilt was not proven, that is on the ground provided under [abovementioned] Article 39.2 of the Code of Criminal Procedure of the Republic of Azerbaijan.

... The Plenum of the Supreme Court accepts that [the applicants] have suffered non ‑ pecuniary damage due to their groundless [detention and] conviction which was a result of a mistake by the criminal prosecution authorities.

... As to pecuniary damage and [the applicants’] request that the period spent by them in detention and under [imprisonment] be included in their respective uninterrupted employment records, ... these [issues] shall not be examined by the Plenum of the Supreme Court and the right to apply [and raise those issues] in the framework of judicial civil proceedings shall be explained to [the applicants].”

19 . The judgment became final in the absence of any right to appeal against it.

20 . On an unspecified date the third applicant brought a civil action against the Ministry of Finances asking the Nasimi District Court to order the Ministry to pay him AZN 15,000 as pecuniary damage for loss of salary due to the unlawful conviction. By a judgment of 21 July 2022, the first-instance court granted the action. The appellate and cassation-instance courts upheld that judgment on 13 October 2022 and 9 January 2023 respectively.

21. It is not clear whether the other three applicants brought any similar civil actions.

22 . Chapter LIII of the Code of Criminal Procedure of 2000 (the “CCrP”) (as amended in 2004) provides for, inter alia , the procedure for reopening of the domestic criminal proceedings following adoption of a judgment by the European Court of Human Rights finding a violation of the Convention – one of the forms of reviews “in view of newly discovered circumstances”. Pursuant to Article 456.2, under this procedure, the Plenum of the Supreme Court examines the case only on points of law. After the examination of the case, the Plenum of the Supreme Court may decide, inter alia , to quash the lower courts’ rulings or decisions and remit the case to the relevant lower court, or to vary the decision of the cassation-instance court, or to quash the decision of the cassation-instance court and to adopt a new decision (Article 459 of the CCrP). Pursuant to Article 456.2 of the CCrP, the Plenum of the Supreme Court shall examine the case within three months after the relevant judgment of the European Court of Human Rights is submitted to the Supreme Court.

23 . The relevant part of Article 39 of the CCrP provided as follows:

Article 39. Circumstances precluding criminal prosecution

“39.2. Criminal prosecution [already] set in motion against a person shall be discontinued also if he or she has no connection with commission of the crime or if his or her guilt is not proven.

39.3. In cases provided under Articles 39.1.1, 39.1.2 and 39.2 of the present Code, the criminal prosecution shall be considered as discontinued on grounds of acquittal.”

THE LAW

24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

25. The Government submitted that the applicants could no longer be regarded as a “victim” within the meaning of Article 34 of the Convention, that “the matter had been resolved” within the meaning of Article 37 § 1 (b) of the Convention and that the applications should be struck out of the Court’s list of cases. They argued that the Plenum’s judgment of 19 November 2021 had acknowledged the violations of the applicants’ Convention rights, acquitted the applicants and awarded them compensation for non-pecuniary damage. Furthermore, the compensation had taken into account the applicants’ respective arrest and imprisonment terms, been adequate, and in line with the Court’s relevant case law.

26. All of the applicants opposed the striking-out of the applications. The third and fourth applicants also submitted that they could still claim to be “victims” of the alleged violations. They argued that while the Plenum had acquitted them, it had not recognised – either explicitly or in substance – the breaches of their rights under the Convention, which had formed the basis of their present applications. As regards the compensation, the applicants argued that the amounts awarded had been insufficient, in particular because those amounts had been considerably lower than those awarded by the Plenum to two other individuals (Mr I.M. and Mr R.J.) who had been acquitted following the Court’s judgments. The first and second applicants also complained that no compensation for pecuniary damage had been awarded to them by the Plenum.

27. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive that person of his or her status as a “victim”, within the meaning of Article 34 of the Convention, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, among many other authorities, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V, with further references, and Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 218, 22 December 2020). That exercise involves an examination of the nature of the right in issue, the reasons advanced by the national authorities in their decision and the persistence of adverse consequences for the applicant after the decision (see Freimanis and Līdums v. Latvia , nos. 73443/01 and 74860/01, § 68, 9 February 2006). Only when the two above-mentioned conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude an examination of an application (see Arat v. Turkey , no. 10309/03, § 46, 10 November 2009, and Döner and Others v. Turkey , no. 29994/02, § 89, 7 March 2017).

28. An applicant would remain a victim if the authorities have failed to acknowledge either expressly or in substance that there has been a violation of his or her rights even though the latter received some compensation (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 88, ECHR 2012).

29. Moreover, the redress afforded must be appropriate and sufficient in order to remedy a breach of a Convention right at national level. This will depend on all the circumstances of the case, with particular regard to the nature of the Convention violation in issue (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010, and Bivolaru v. Romania (no. 2) , no. 66580/12, § 170, 2 October 2018).

30. In the context of the criminal-limb guarantees of Article 6, full acquittal or discontinuation of the proceedings against an applicant may constitute appropriate redress (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 70, 2 November 2010, with further references), provided that an applicant is no longer affected and has been relieved of any effects to his or her disadvantage (see Güneş v. Turkey (dec.), no. 53916/00, 13 May 2004, and Kerman v. Turkey , no. 35132/05, §§ 97 ‑ 107, 22 November 2016). Thus, an applicant can maintain his or her victim status if he or she has already served all or part of his or her sentence (see Tapkan and Others v. Turkey , no. 66400/01, § 49, 20 September 2007, and Halil Kaya v. Turkey , no. 22922/03, § 16, 22 September 2009) and no compensation has been offered or is available in respect of the alleged violation (see Hooper v. the United Kingdom (dec.), no. 42317/98, 21 October 2003; Menesheva v. Russia (dec.), no. 59261/00, § 3, 15 January 2004; Zementova v. Russia , no. 942/02, § 63, 27 September 2007; Birdal v. Turkey , no. 53047/99, § 24, 2 October 2007; and Arat , cited above, § 47).

31. However, the Court’s case-law also shows that it will examine events that have occurred subsequent to the lodging of an application with a view to determining whether the case should be struck out of its list on one or more of the grounds set out in Article 37 of the Convention, notwithstanding the fact that the applicant can still claim “victim” status (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 39, 24 October 2002), or even irrespective of the question whether the applicant can still claim such status (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 96, ECHR 2007-I; Association SOS Attentats and De Boëry v. France (dec.) [GC], no. 76642/01, § 41, ECHR 2006-XIV; and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 29, 20 December 2007).

32. In order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b), the Court must examine, firstly, whether the circumstances complained of directly by an applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano , cited above, § 42; Sisojeva and Others , cited above, § 97; and El Majjaoui and Stichting Touba Moskee , cited above, § 30).

(a) The applicants’ victim status

33. The Court will first examine whether in view of the new developments summarised in paragraphs 16-20 above – in particular quashing of the applicants’ conviction, their acquittal and awarding them non-pecuniary compensation – the present applications should be rejected as being incompatible ratione personae with the provisions of the Convention on the ground that, as a result of the acquittal with final effect, the applicants can no longer claim to be the “victim”, within the meaning of Article 34, of a violation of the Convention.

34. The Court notes in that regard that the first and third applicants each served approximately three years and the second and fourth applicants each served approximately one year and nine months of imprisonment before being pardoned. Moreover, it then took until 19 November 2021 for the Plenum of the Supreme Court to quash the convictions and acquit the applicants, that is another five year and eight months (second and fourth applicants) and roughly seven years (first and third applicants) during which time they were still considered guilty in the eyes of society.

35. The Court also notes that the judgment of 19 November 2021 was reasoned in a brief manner and did not expressly acknowledge any breaches of the Convention that formed the basis of the applicants’ complaints raised in the present applications. The Plenum did not quash the applicants’ conviction owing to violations of fair trial guarantees stricto sensu , but for “failure to prove their guilt” (compare Kerimoğlu v. Türkiye , no. 58829/10, §§ 48 and 50, 6 December 2022, where the applicant was acquitted because the evidence on which the conviction had been based was not sufficient and conclusive of his guilt). Similarly, the Plenum did not examine whether the criminal case against applicants had been fabricated in order to punish them for, and prevent their activism, criticism of the government, and organisation of anti-government demonstrations.

36. A brief reference in the judgment of 19 November 2021 to “the reasoning provided by the European Court [of Human Rights] in its judgment [in the case of Rashad Hasanov ]” (see paragraph 18 above) cannot be considered as an acknowledgment in substance of the breaches of the Convention alleged by the applicants in their present applications.

37. Accordingly, the Court cannot conclude that the Plenum’s judgment to quash the conviction and acquit the applicants was tantamount to a recognition that their conviction had been in breach of their rights under Articles 6, 10 and 11 of the Convention or in breach of the State’s obligation under Article 18 of the Convention (compare Constantinescu v. Romania , no. 28871/95, § 42, ECHR 2000 ‑ VIII; Pisano , cited above, § 37; Kaymaz v. Turkey , no. 6247/03, § 18, 26 June 2007; and Kerimoğlu , cited above, § 50).

38 . In the absence of such an acknowledgment by the national authorities, the Court considers that it cannot declare the applications inadmissible ratione personae on the ground that the applicants can no longer claim to be the “victim” of the alleged violations, even though the applicants were awarded some compensation.

(b) Application of Article 37 of the Convention

39. In view of the conclusion reached in paragraph 38 above, the Court will next examine the Government’s submission that the matter has been resolved within the meaning of Article 37 § 1(b) of the Convention and should be struck out on this basis. The relevant parts of that Article of the Convention provides as follows:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

...

(b) the matter has been resolved; or

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

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

40. Considering first whether the matter can be regarded as “resolved” within the meaning of Article 37 § 1 (b) of the Convention, the Court notes that the applicants’ convictions no longer have any legal force. Even if the Court were to consider the merits of the present applications and to find in the applicants’ favour, the Committee of Ministers’ supervision of the execution of the judgment could no longer pursue the aim of having the proceedings reopened in the applicants’ case (compare Pisano , cited above, § 45, and, mutatis mutandis , Grüne Alternative Wien v. Austria (striking out), no. 13281/02, § 28, 29 November 2011).

41. Furthermore, the applicants were awarded compensation for non ‑ pecuniary damage sustained as a result of their wrongful conviction. In that regard the Court emphasises that this compensation is indissociable from any compensation the applicants might claim in the event of a finding of violations in connection with their complaints as summarised in paragraph 13 above.

42. Having regard to the individual circumstances of the applications and the Convention practice in similar cases against Azerbaijan, the Court considers that the sums awarded to the applicants for non-pecuniary damage on the national level cannot be deemed unreasonable (for a similar approach see Ohlen v. Denmark (striking out), no. 63214/00, § 31, 24 February 2005; compare also Ilgar Mammadov v. Azerbaijan , no. 15172/13, § 151, 22 May 2014; Ilgar Mammadov v. Azerbaijan (no. 2) , no. 919/15, § 269, 16 November 2017; Yunusova and Yunusov v. Azerbaijan (no. 2) , no. 68817/14, § 206, 16 July 2020; Mirgadirov v. Azerbaijan and Turkey , no. 62775/14, § 160, 17 September 2020; Avaz Zeynalov v. Azerbaijan , nos. 37816/12 and 25260/14, § 134, 22 April 2021; and Rustamzade v. Azerbaijan (no. 2) , no. 22323/16, § 66, 23 February 2023).

43. As to the first and second applicants’ objection that they had not received any compensation for pecuniary damage, the Court notes that when refusing to deal with that issue the Plenum specifically referred to the applicants’ right to request such compensation by lodging a separate civil action (see paragraph 18 above). The third applicant used that right and was awarded compensation for pecuniary damage. The first and second applicants, however, failed to make any submissions before the Court as to whether they had attempted to use that right. Consequently, since an effective domestic redress existed, it was the first and second applicants’ responsibility to substantiate that they had made use of it. By failing to do so, they cannot make a valid objection that they did not receive pecuniary damage before the Court.

44. Having regard to the above, it follows that the circumstances complained of directly by the applicants no longer remain and the effects of any possible violations of the Convention on account of those circumstances have been sufficiently redressed. The Court finds therefore that both conditions for the application of Article 37 § 1 (b) of the Convention are met (compare Pisano , cited above, §§ 42-47, and El Majjaoui and Stichting Touba Moskee , cited above, §§ 30-34; contrast Kerimoğlu , cited above, §§ 58-59). Consequently, the matter giving rise to the applicants’ complaints can therefore be considered to have been “resolved” within the meaning of Article 37 § 1 (b).

45. Furthermore, no particular reason relating to respect for human rights as defined in the Convention requires it to continue the examination of the applications in accordance with Article 37 § 1 in fine of the Convention. In particular the Court notes that it has already dealt with almost identical issues in a number of cases in respect of Azerbaijan. Consequently, any general measures, subject to supervision by the Committee of Ministers, could be adopted, if necessary, on the basis of already existing country-specific case law.

46. In view of the above, it is appropriate to strike the cases out of the list.

47. Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out in accordance with Article 37 of the Convention, the costs shall be at the discretion of the Court. If an award of costs is made in a decision striking out an application which has not been declared admissible, the President of the Chamber shall forward the decision to the Committee of Ministers...”

48. The applicants claimed 10,500 euros (EUR), EUR 8,500, EUR 3,000 and EUR 3,000 respectively for legal services incurred before the domestic courts and before the Court. Furthermore, together with another individual whose case is pending before the Court (namely application no. 22334/16) the third and fourth applicants claimed jointly EUR 1,680 for costs and expenses incurred by their representative for translation and postal services. In support of their claims, the first and second applicants each submitted an addendum ( akt ) signed by them and their representative, Mr R. Mustafazade. In support of their claims, the third and fourth applicants each submitted a contract and an addendum signed by them and their representative, Mr Kh. Bagirov, a contract signed by Mr Kh. Bagirov and a translator, Ms N. Abilova, and four postal payment receipts. All the applicants also requested that the awards be paid directly into the bank accounts of their respective representatives.

49. The Government contested the costs claimed as being unsubstantiated and excessive. They asked the Court to dismiss those claims.

50. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present applications, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award each applicant the sum of EUR 1,000 in respect of the legal services rendered by Mr R. Mustafazade and Mr Kh. Bagirov, plus any tax that may be chargeable to the applicants. The Court also considers it reasonable to award the sum of EUR 1,000 to the third and fourth applicants jointly in respect of translation and postal services, plus any tax that may be chargeable to those applicants. All the awards in respect of costs and expenses are to be paid directly into the bank accounts of the representatives, Mr R. Mustafazade and Mr Kh. Bagirov.

For these reasons, the Court, unanimously,

Decides to join the applications;

Decides to strike the applications out of its list of cases;

Holds

(a) that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,000 (one thousand euros) to each applicant, plus any tax that may be chargeable to them, in respect of the legal services rendered by their representatives, Mr R. Mustafazade and Mr Kh. Bagirov, to be paid directly into the bank accounts of the representatives;

(ii) EUR 1,000 (one thousand euros) jointly to the third and fourth applicants, plus any tax that may be chargeable to them, in respect of the translation and postal services incurred by Mr Kh. Bagirov, to be paid directly into the bank account of that representative;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicants’ claims for costs and expenses.

Done in English and notified in writing on 5 October 2023.

Renata Degener Marko Bošnjak Registar President

Appendix

No.

Application no.

Lodged on

Case name

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

2059/16

12/12/2015

Hasanov v. Azerbaijan

Rashad Zeynalabdin oglu HASANOV 1982 Baku Azerbaijani

Ruslan MUSTAFAZADE

and

Asabali MUSTAFAYEV

2.

2069/16

14/12/2015

Mammadli v. Azerbaijan

Uzeyir Mahammad oglu MAMMADLI 1987 Sumgayit Azerbaijani

Ruslan MUSTAFAZADE

and

Asabali MUSTAFAYEV

3.

22318/16

15/04/2016

Akhundov v. Azerbaijan

Rashadat Fikrat oglu AKHUNDOV 1984 Baku Azerbaijani

Khalid BAGIROV

4.

23171/16

15/04/2016

Gurbanli v. Azerbaijan

Zaur Araz oglu GURBANLI 1987 Shaki Azerbaijani

Khalid BAGIROV