FIRST SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 2758/05
by Rahim GAZIYEV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 7 July 2009 as a Chamber composed of:
	Nina Vajić, President,
	Anatoly Kovler,
	Elisabeth Steiner,
	Khanlar Hajiyev,
	Dean Spielmann,
	Sverre Erik Jebens,
	Giorgio Malinverni, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 28 December 2004,
Having regard to the partial decision of 8 February 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Rahim Gaziyev, is an Azerbaijani national who was born in 1943 and lives in Baku. He was represented before the Court by Mr E. Guliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a former defence minister. On 12 May 1995 the Supreme Court, sitting as a court of first instance for especially serious crimes, convicted the applicant of abuse of power during wartime, embezzlement of state funds and illegal possession of firearms. Pursuant to the Criminal Code of 1960 which was in force at that time, he was sentenced to the death penalty with confiscation of property. Being a decision of the highest tribunal, this judgment was final and was not subject to appeal at that time.
On 10 February 1998 Milli Majlis (Parliament) adopted the Law on Amendments to the Criminal Code, Code of Criminal Procedure and Correctional-Labour Code of the Republic of Azerbaijan in Connection with the Abolition of the Death Penalty in the Republic of Azerbaijan. This Law amended all the relevant domestic legal provisions, replacing the death penalty with life imprisonment. The penalties of all convicts sentenced to death, including the applicant, were automatically commuted to life imprisonment.
In 2000 a new Code of Criminal Procedure (“CCrP”) and new Criminal Code of the Republic of Azerbaijan were adopted. Before the new CCrP’s entry into force on 1 September 2000, on 14 July 2000 Milli Majlis passed a transitional law allowing appeals to be lodged under the new CCrP against the final first-instance judgments delivered in accordance with the old rules of criminal procedure (“the Transitional Law”).
Shortly after this, at the time of Azerbaijan’s admission to the Council of Europe, the applicant was recognised as a “political prisoner” by independent experts of the Secretary General. Azerbaijan has made a commitment either to release or give a re-trial to all persons identified as “political prisoners” by these experts.
In accordance with the Transitional Law, the applicant’s case was heard on appeal. The Court of Appeal held its hearings in Gobustan Prison where the applicant was serving his life sentence. No regular public transport to Gobustan Prison was available at that time.
On 26 December 2003 the Court of Appeal upheld the applicant’s original conviction but reduced his sentence to 15 years’ imprisonment in accordance with the new Criminal Code of 2000.
On 4 August 2004 the applicant lodged a cassation appeal against this judgment, in which he disputed the factual findings of the Court of Appeal and claimed his innocence.
On 26 October 2004 the Supreme Court upheld the Court of Appeal’s judgment of 26 December 2003.
In March 2005 the applicant was released from serving the remainder of his sentence pursuant to a presidential pardon.
B.  Relevant domestic law
1.  Constitution of 1995
Article 127 § V of the Constitution of the Republic of Azerbaijan of 1995 provides that, subject to a number of specific exceptions, court hearings shall be public.
Article 148 § II of the Constitution provides that international agreements to which the Republic of Azerbaijan is a party form an integral part of the legal system of the Republic of Azerbaijan.
2.  Legal requirements concerning the public character of hearings
Article 12 of the Law on Courts and Judges of 1997 provides that, subject to a number of specific exceptions, court hearings shall be public. According to Article 27 of the Code of Criminal Procedure of 2000 (“the CCrP”), criminal proceedings in all courts shall be open to the general public, except where it is necessary to protect state, professional or commercial secrets, as well as personal or family secrets of individuals. Article 392.1.6 of the CCrP provides that, during a preliminary hearing, the appellate court decides whether the merits of the appellate complaint will be examined in a public or closed hearing. The CCrP specifies a number of situations where the public can be excluded from the hearing, such as in cases involving evidence disclosing personal or family secrets (Article 199.4), or a state secret (Article 200.4), or a professional or commercial secret (Article 201.6).
3.  Law on the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan, of 14 July 2000 (“the Transitional Law”)
Article 7 of the Transitional Law provides as follows:
“Judgments and other final decisions delivered by first-instance courts under the [old] Code of Criminal Procedure ... before the entry into force of this [new] Code, may be reconsidered by an appellate court or the Supreme Court of the Republic of Azerbaijan in accordance with Articles 383-407, 409-427 or 461-467 of the [new] Code of Criminal Procedure.”
4.  Competence of the Supreme Court
According to Article 77 of the Law on Courts and Judges of 1997, the Supreme Court is a court of cassation instance and is the highest judicial authority with regard to civil, criminal, administrative and other disputes falling within the jurisdiction of the general and specialised courts.
According to the CCrP, cassation appeals to the Supreme Court may be lodged, inter alia, against judgments or decisions of criminal appeal courts (Article 408.1). A cassation appeal may be lodged, inter alia, by a person convicted by a lower court’s judgment (Article 409.1). The cassation appeal shall contain the reasons due to which the appellant considers the lower court’s judgment to be unlawful, unsubstantiated or unfair (Article 413.1.4). The court of cassation instance examines cassation appeals exclusively on the points of law and verifies the correct application by lower courts of the substantive criminal law and the provisions of the CCrP on criminal procedure (Article 419.1).
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention that the appeal hearings had not been public because they had been held in Gobustan Prison. This prison was subject to a limited access regime, located outside Baku and hardly accessible to the public.
THE LAW
The applicant complained under Article 6 § 1 that the Court of Appeal hearings were not public, because they were held on the premises of the high-security Gobustan Prison. Article 6 § 1 of the Convention provides, in the relevant part:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”
A.  The parties’ submissions
The Government argued that the applicant had failed to exhaust domestic remedies. He had not raised the issue of the alleged violation of his right to a public hearing in his cassation appeal lodged with the Supreme Court, in which he could rely not only on the requirements of the domestic law, but also on the Convention, which was directly applicable as an integral part of the domestic legislation. Moreover, the Government argued that the applicant had not lodged a private constitutional complaint with the Constitutional Court, where he could also challenge the alleged lack of publicity at the appeal hearings.
As to the merits of the complaint, the Government argued that the mere fact that the appellate proceedings had taken place in the prison did not necessarily lead to the conclusion that the trial was not public. The authorities had taken a number of compensatory measures in order to ensure the publicity of the hearings.
Specifically, the Government maintained that the public and the media had been duly informed about the time and place of the hearings and had been granted effective access to the trial. The Ministry of Justice had organised a shuttle bus service from Baku to Gobustan Prison in order to facilitate public access to the hearings. The hearings had taken place in a room with about 80 seats for observers. Any person wishing to attend a hearing could apply to the presiding judge who, in turn, applied to the prison administration to grant this person access to the prison. This was a mere formality, as anyone who wished to attend the trial had been granted permission to enter the prison.
In support of the above submissions, the Government provided copies of numerous records concerning more than twenty hearings held by the Court of Appeal throughout the period from 21 June 2002 to 26 December 2002, which stated that each of the hearings had been attended by a varying number of observers, including the applicant’s relatives, journalists, representatives of foreign embassies, international organisations and local non-governmental organisations.
The applicant argued that he had exhausted all effective domestic remedies by lodging a cassation appeal with the Supreme Court and that he was not required to apply to the Constitutional Court, as this was not an effective remedy within the meaning of Article 35 § 1 of the Convention. The applicant did not, however, comment on the Government’s objection that he had failed to complain, in substance, about the alleged lack of publicity of the Court of Appeal hearings in his cassation appeal lodged with the Supreme Court.
As to the merits of the complaint, the applicant maintained that the aim of holding the trial in a distant location had been to decrease, as far as possible, the publicity of the proceedings and that, instead of taking compensatory measures, the authorities had created even more “artificial barriers to make it more difficult” for members of the public to attend hearings. The applicant argued that the Government’s submissions about the shuttle bus to the Gobustan Prison were false. He submitted that the authorities had not organised any transport for the spectators and had never informed the mass media and the public about the time and place of the hearings. Those wishing to attend the hearings had to bear the expense of organising their own transport to the prison, which was located at a considerable distance (according to the applicant, 75 km) from Baku. The applicant also contested the Government’s submissions concerning the size of the hearing room which, according to the applicant, could accommodate only 10 to 15 members of the public at any given time. The conditions in the prison yard were not suited to the spectators, who often had to wait outside in bad weather for extended periods of time before a hearing began.
B.  The Court’s assessment
The Court reiterates that the rule of exhaustion of domestic remedies does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Cardot v. France, 19 March 1991, § 34, Series A no. 200).
Even if the domestic courts were able, or even obliged, to examine the case of their own motion under the Convention, this cannot have dispensed an applicant from relying on the Convention in those courts or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem the applicant intended to submit subsequently, if need be, to the institutions responsible for European supervision (see Ahmet Sadık v. Greece, 15 November 1996, § 33, Reports of Judgments and Decisions1996‑V).
The only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available both in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions1996‑IV).
Having examined the copy of the applicant’s cassation appeal available in the case file, the Court observes that the applicant did not put forward before the Supreme Court, either expressly or implicitly, his complaint concerning the alleged lack of publicity of the Court of Appeal hearings.
The Court has accepted that, as a general rule, the Supreme Court can be considered an ordinarily available remedy in domestic criminal proceedings which is capable of providing redress in respect of procedural breaches committed by the lower courts (see, for example, Guliyev and Ramazanov v. Azerbaijan (dec.), no. 34553/02, 14 February 2006). The Court also accepts the Government’s argument that the applicant could have relied directly on the Convention in his cassation appeal.
In his observations, the applicant did not comment on, and thus did not dispute, the Government’s objection that he had failed to raise the present complaint in his cassation appeal. He did not provide any explanation about the existence of any circumstances which might have prevented him from doing so and did not argue that this remedy was somehow inadequate or ineffective.
Nevertheless, the Court points out that the complaint raised in the present application is similar to a complaint previously examined by the Court in a case where the applicant had likewise had his conviction reviewed on appeal pursuant to the Transitional Law and where the appeal hearings were also held in Gobustan Prison (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, 29 November 2007, where the Court found a violation of Article 6 § 1 due to insufficiency of compensatory measures taken to ensure the public character of hearings held in the prison). In that case, Mr Hummatov did complain about the lack of a public hearing in his cassation appeal before the Supreme Court, although unsuccessfully (ibid., §§ 26-27). However, where there might have been different compensatory measures taken by the authorities to ensure the public character of the hearings in the present case and the Hummatov case, the Court is not in a position to speculate on the outcome of the domestic proceedings in the present case, had the applicant raised the present complaint in his cassation appeal. The Court accordingly considers that the mere fact that, on one known occasion, a similar complaint raised before the Supreme Court was unsuccessful is not sufficient to lead the Court to a conclusion that this remedy, as such, did not offer the applicant a reasonable prospect of success in respect of his complaint concerning the lack of a public hearing.
The Court finds therefore that the applicant has not shown any special circumstances absolving him from the requirement to raise his complaint before the Supreme Court in order to afford the latter the opportunity to provide redress for the problem before it was submitted to Strasbourg.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court by a majority
 the remainder of the application inadmissible.
	Søren Nielsen	Nina Vajić
	Registrar	President