European Court of Human Rights
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Cite as: [2009] ECHR 1989
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FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
16133/08
by Ali INSANOV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 19 November 2009 as a Chamber composed of:
Christos Rozakis, President,
Nina
Vajić,
Elisabeth Steiner,
Khanlar
Hajiyev,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section Registrar,
Having regard to the above application lodged on 31 March 2008,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ali Insanov, is an Azerbaijani national who was born in 1946 and is currently serving a prison sentence in a penal facility in Baku. He is represented before the Court by Mr A. Shahverdi, a lawyer practising in Baku.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was the Minister of Healthcare from 1993 to 2005. He was also a known expert in medical science and a full member of the Azerbaijan National Academy of Sciences (“the ANAS”).
A. Criminal proceedings against the applicant
1. Pre-trial stage
On 20 October 2005 the applicant was summoned to the Ministry of National Security (“the MNS”). He arrived at the MNS at around 3 p.m. and was questioned until 7 p.m.
After being questioned he was detained on suspicion of abuse of official authority, embezzlement of public funds and complicity in an attempted coup d’état, allegedly planned to take place after the parliamentary elections of 6 November 2005 and organised by former Parliament Speaker R. Guliyev (who was living abroad at that time) and several other high ranking government officials. He was held in the detention facility of the MNS.
It appears that he was dismissed from his ministerial office on the same day.
On 22 October 2005 the Prosecutor General’s Office formally charged the applicant with criminal offences under Articles 28/220.1 (preparation to organise public disorder), 278 (actions aimed at usurping State power), 179.3.2 (embezzlement in large amounts), 308.2 (abuse of official authority entailing grave consequences), 311.3.2 (repeatedly committed bribe-taking) and 311.3.3 (bribe-taking in large amounts) of the Criminal Code. The applicant was formally accused in the framework of criminal case no. 76586.
On 22 October 2005 the Nasimi District Court remanded the applicant in custody for a period of three months (until 20 January 2006). On 13 January 2006 the same court extended this period by another four months (until 20 May 2006). On 19 May 2006 this period was extended again by another five months (until 20 October 2006). Lastly, on 16 October 2006 the period was extended again by another six months (until 20 April 2007). The applicant lodged appeals against each of the above-mentioned extension decisions. All his appeals were dismissed by the Court of Appeal. An appeal by the applicant against the latest extension decision of 16 October 2006 was dismissed by a decision of the Court of Appeal of 2 November 2006.
In the course of the pre-trial investigation, the investigation authorities carried out a search of the applicant’s home and found large amounts of cash in different currencies, as well as large amounts of gold items and jewellery.
On 19 January 2007 the Prosecutor General’s Office issued a new indictment charging the applicant with criminal offences under Articles 28/220.1, 278, 179.3.2, 306.2, 308.1 (abuse of official authority), 308.2, 311.3.1 (bribe-taking), 311.3.2 and 311.3.3 of the Criminal Code.
On 24 January 2007 a new criminal case (no. 76932) was severed from criminal case no. 76586. In the framework of criminal case no. 76932, the applicant was formally charged with the offences under Articles 179.3.2, 306.2, 308.1, 308.2, 311.3.1, 311.3.2, 311.3.3 and 313 (forgery in public office) of the Criminal Code.
Specifically, the applicant was accused of having committed the following criminal acts, inter alia:
(i) Between 1997 and 2004 he had created conditions for unlawfully disposing (by way of privatisation) of numerous public real-property assets (land and non-residential premises) which were on the balance of the Ministry of Healthcare and had a total estimated value of 27,221,574 New Azerbaijani manats (AZN) (approximately 23,500,000 euros (EUR)). In particular, the applicant was accused of falsifying, with the assistance of his accomplices, certain documents related to the above-mentioned assets in order for that property to be qualified as suitable for privatisation under the State Privatisation Program and privatisation laws, whereas actually these assets did not qualify as such and were necessary for the proper functioning of the State’s health care institutions. Most of these assets were privatised by dummy companies affiliated to the applicant or his acquaintances and were subsequently resold to the applicant’s family members and acquaintances. In connection with the above transactions, the applicant also received bribes in the total amount of 200,000 United States dollars (USD) (equivalent to AZN 195,460);
(ii) He had embezzled AZN 115,240 of public funds in order to pay for the publication of one of his books;
(iii) He had taken several bribes in the total amount of USD 76,900 (equivalent to AZN 75,423) and another bribe in the amount of AZN 2,800 in exchange for issuing licences to private companies for operating pharmacies, and had kept 70% of the above amounts to himself while distributing the remainder among his accomplices;
(iv) He had continually failed to comply with seven final domestic judgments (the earliest of which had been delivered in 1994) ordering the reinstatement of former Ministry of Healthcare employees who had been unlawfully dismissed from their positions; and
(v) He had committed a number of other acts of embezzlement and abuse of official authority.
On 24 January 2007 the investigation authorities informed the applicant that the pre-trial investigation in criminal case no. 76932 had been completed. Criminal case no. 76932 was taken to trial in the Assize Court. The original criminal case no. 76586, which still carried the charges under Articles 28/220.1 and 179.3.2, was not taken to trial, but was not terminated either.
On 15 February 2007 the applicant lodged an application with the Assize Court, requesting that the preventive measure of remand in custody be substituted by house arrest or any type of non-custodial preventive measure. On the same day, 15 February 2007, the Assize Court rejected this request.
2. Criminal trial and appeals
The applicant was tried at the Assize Court together with ten other persons who were either former officials of the Ministry of Healthcare or had been involved in commercial transactions with the Ministry. Each of these ten was charged with complicity in some of the criminal offences with which the applicant was charged. In connection with the embezzlement charges, a civil claim was also advanced against the applicant and some of the other criminal defendants. Apart from them, there were also around twenty civil defendants in the case against whom no criminal charges had been brought. The civil defendants were current private owners of the formerly public property which had been allegedly unlawfully embezzled and sold by the applicant (see below).
During the preliminary hearings, the applicant submitted a number of petitions asking the court, inter alia, to summon and hear statements from a number of witnesses, including several officials of the state bodies responsible for privatisation of State property. These petitions were rejected.
By a judgment of 20 April 2007, the Assize Court found the applicant guilty as charged on all counts under criminal case no. 76932, and sentenced him to eleven years’ imprisonment with confiscation of property and three years’ prohibition to hold official positions in public service. The court found that the applicant was responsible for compensating for the damage inflicted by his criminal actions, as described below.
Initially, the court partially satisfied the civil claim, ordering the in-kind transfer of part of the unlawfully privatised real-property assets back to the balance of the Ministry of Healthcare. This partially covered the inflicted damages. On the other hand, the court found that some of the unlawfully privatised assets were now owned by bona fide purchasers and therefore dismissed the civil claim in the part relating to those assets.
As for the damages remaining after the partial upholding of the civil claim, the court found that the applicant remained responsible for the damages in the amount of AZN 527,087 personally, and in the total amount of AZN 7,937,821 jointly and severally with three other criminal defendants. To compensate for the above damages, the court ordered that the following private property of the applicant be confiscated: (a) various precious metals and jewellery items valued at AZN 1,040,486, which had been found in his home; (b) USD 1,309,295 in cash found in his home; (c) EUR 884,475 in cash found in his home; (d) AZN 8,984 in cash found in his home; (e) nine houses and apartments collectively valued at AZN 3,655,179.90; and (f) an automobile valued at AZN 54,000.
The applicant appealed, claiming his innocence and arguing that his convictions on all counts had been based on inadmissible, irrelevant or insufficient evidence, and that the investigation authorities and the trial court had not sought to hear certain witnesses whose testimonies could have been crucial for the outcome of the case. The other criminal and civil defendants also appealed under various grounds.
On 21 September 2007 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the Assize Court’s judgment in the part relating to the applicant.
The applicant lodged a cassation appeal reiterating his complaints. The cassation hearings were held in the presence of the applicant’s lawyer, but in the applicant’s absence. On 16 January 2008 the Supreme Court dismissed the applicant’s appeal and upheld the lower courts’ judgments in the part relating to the applicant.
B. The applicant’s civil claim against television channels
Following his arrest, on 3 November 2005 the applicant lodged a civil lawsuit with the Sabail District Court against Azerbaijan Television and Radio Broadcasting Company (“AzTV”), a State-owned broadcasting company, and Lider Media Holding LLC (“Lider”), a private television channel. He claimed that on 1 November 2005 both of these television channels had broadcast programmes about the alleged criminal acts committed by him, referring to him as a “criminal” and “bribe-taker” and using other slanderous expressions to describe him. He argued that while at that time he had not been found guilty of any criminal offence by a competent court, the broadcast of these programmes had damaged his reputation and tarnished his dignity.
On 5 December 2005 the applicant asked the court to order AzTV and Lider to submit the impugned video materials for examination by the court.
In their counter-arguments, AzTV and Lider maintained that the impugned programmes did not contain any defamatory or slanderous language and were based on official information about the criminal investigation against the applicant provided by the Prosecutor General’s Office, the MNS and the Ministry of Internal Affairs.
On 20 December 2005 the Sabail District Court dismissed the applicant’s claim, finding that it was unsubstantiated. The court noted that AzTV and Lider had merely disseminated an official statement of the relevant law enforcement authorities concerning the criminal investigation against the applicant, and that there was no proof that any defamatory or slanderous language had been used in respect of the applicant. Following an appeal by the applicant, on 18 April 2006 the Court of Appeal upheld the first-instance court’s judgment. The applicant lodged a cassation appeal.
On 30 March 2007 the Supreme Court quashed the Court of Appeal judgment of 18 April 2006 and remitted the case, finding that the lower courts had committed a breach of procedural law by ignoring the applicant’s request that the courts demand the relevant evidence (the impugned video material) from the defendants due to the applicant’s inability to obtain it independently.
On 11 October 2007 the Baku Court of Appeal delivered a new judgment, dismissing the applicant’s claim. The court reiterated its finding that AzTV and Lider had merely disseminated the official press release concerning the applicant’s case and had indicated the relevant law enforcement authorities as a source. As to the applicant’s request for the video material, the court noted that AzTV and Lider had been ordered to submit this evidence. However, both television channels had replied that, pursuant to their internal rules, they archived for long periods only films and internally produced television shows, and only archived video material broadcast in daily news programmes for one month. Therefore, at the time the applicant lodged his request for this video material the defendants were no longer in possession of it and could not submit it to the court. The court concluded by reiterating that the applicant had failed to substantiate his defamation claim with any evidence.
On 1 May 2008 the Supreme Court upheld the Baku Court of Appeal judgment of 11 October 2007.
C. Termination of the applicant’s ANAS membership
Following the applicant’s conviction by the Assize Court, on 4 May 2007 the general meeting of ANAS decided, by a majority of fifty-six votes to one, to expel the applicant from ANAS membership. The reason for the expulsion was the fact that he had been convicted of serious criminal offences.
On 1 June 2007 the applicant lodged a lawsuit with the Sabail District Court, claiming that his expulsion had been unlawful and had interfered with his scientific activity. He argued, inter alia, that, according to the ANAS Charter, full members of the Academy were elected “for life” and that, therefore, he could not be expelled from full membership of ANAS. In its submissions to the court, ANAS argued that election “for life” as stipulated by the Charter meant simply an election for an indefinite term and that this provision did not rule out the possibility of a subsequent termination of membership and did not preclude ANAS from expelling, by a qualified majority of full members’ votes, any members for misconduct.
On 31 January 2008 the Sabail District Court dismissed the applicant’s claim. It found that, as a self-administered organisation having the status of a State body, ANAS had the power to regulate its membership rules. Although the ANAS Charter did not expressly state that full members could be expelled from ANAS, it did not preclude a general meeting of full members from taking decisions to expel members for misconduct by a qualified majority of votes. The power to expel members, while not stated explicitly, was implicit in the Charter’s provisions. The court also found that such interpretation of ANAS powers with regard to regulating its membership was not contrary to the Constitution or the relevant domestic laws.
The Baku Court of Appeal and the Supreme Court dismissed the applicant’s appeals against the above judgment on 15 May and 16 September 2008 respectively.
D. State of the applicant’s health and medical treatment received
1. Summary of the relevant facts
Many years before the events concerning the present case, the applicant, then at a young age, had suffered from pulmonary tuberculosis. It appears that he had been successfully cured and his tuberculosis had been in remission since then.
Prior to the applicant’s arrest, in February 2005 he underwent a magnetic nuclear resonance tomography (“MNRT”) in Munich, Germany, and was diagnosed with “herniation of L3-L4 intervertebral disc”. It was recommended that therapeutic treatment be continued and that ultimately surgery would be necessary if the symptoms persisted.
After his arrest, from 20 October 2005 to 20 April 2007 the applicant was detained in the temporary detention facility of the MNS. From 20 April 2007 to 28 September 2007 he was kept in Detention Facility no. 1. He was then transferred to Penal Facility no. 13, where he is currently serving his prison sentence and where he is kept in a large barrack-type cell designed for 128 prisoners. According to the applicant, the conditions of detention in all of these facilities were bad.
While in detention, the applicant continuously complained of health problems. The following is a summary of the accounts of the applicant’s medical treatment in detention submitted by the applicant and the Government.
On 2 February 2006 the applicant was examined by medical experts of the MNS and was diagnosed with the following illnesses: spinal disc herniation; osteochondrosis; progressing hypertension, stage I; unicameral cyst of the left kidney not entailing a loss of the kidney’s function; post cholecystectomy condition; chronic persisting hepatitis in the remission phase; and mild neurotic reactions. The experts considered that his condition was not critical and that outpatient treatment was sufficient.
On 16 January 2006 the applicant was examined by the Head Physician of the Neurosurgery Hospital and was prescribed conservative treatment and a new MNRT. According to the relevant medical report, the applicant refused this treatment. However, according to the applicant, he did not refuse to undergo a new MNRT as the report of 16 January 2006 indicated.
On 16 May 2006 the applicant was examined by the Chief Phthisiologist of the Ministry of Health and on 20 May 2006 by the Head of the Neurology Centre; neither examination revealed any necessity for surgical measures. According to the applicant, the reports of these medical experts failed to reflect the alleged seriousness of his condition.
From 25 February to 8 March 2006 and from 30 May to 8 June 2006 the applicant twice underwent inpatient medical examinations in the Neurological Unit of the Ministry of Justice’s Medical Facility. The applicant was diagnosed with spinal disc herniation and proposed to undergo a new MNRT before determining whether there was a need for surgery. According to the relevant records, the applicant declined this proposal and received only conservative treatment.
However, according to the applicant, he did not refuse an MNRT or surgery. He claimed that the medical records concerning his alleged refusal did not “reflect reality”, as they did not bear his signature. He noted that the Ministry of Justice’s Neurological Unit lacked a neurosurgery department and relevant specialists to carry out surgery, so he requested surgery in one of the neurosurgery clinics in Baku, but his request was not answered. According to him, his treatment in the Ministry of Justice’s medical facility was abruptly terminated and he was returned to his cell.
According to the relevant medical records, when the applicant was transferred to Detention Facility no. 1 on 20 April 2007 he had no serious complaints about his health. On 1 and 9 June 2007 he was examined by experts of the Neurology and Therapy Units of the Ministry of Justice’s Medical Facility and no need for either inpatient or outpatient treatment was identified at this time. According to the relevant records, on 2 and 4 June 2007 the applicant refused to undergo blood and urine tests. On 6 June the applicant, in the presence of his lawyers, refused to undergo an ultrasound examination. In September 2007 it was proposed that the applicant undergo an MNRT in a private medical clinic (the Tusi Clinic) in order to determine whether surgery was needed. The examination was scheduled for 25 September, but did not take place. According to the Government, the applicant refused to go to the Tusi Clinic at the last moment. According to the applicant, he did not refuse to undergo any tests and the relevant records were falsified.
According to the Government, in January and February 2008 it was suggested three times that the applicant be transferred to the Ministry of Justice’s Medical Facility in connection with his complaints about pains in his back, but he refused those offers. According to the applicant, in the winter of 2008, he was indeed offered transport to the Medical Facility, but in an “iron-covered unheated lorry”, which was not suitable for his health condition. As the applicant could not comfortably stand or sit due to pains in his back and legs and as transportation in such a lorry would be very hard for him to endure, he requested in writing to be transported in an ambulance, lying down, offering to pay any transportation costs himself. This request was refused.
According to the applicant, he continued to suffer from severe pain in his back and lower extremities due to the herniation of the intervertebral disc. His detention in a cold unventilated cell in Penal Facility no. 13 aggravated his health problems.
2. The Court proceedings and subsequent medical treatment
On 14 August 2008 the applicant, without providing detailed information about the nature of his illnesses, requested the Court to indicate to the Government under Rule 39 of the Rules of Court that he should be provided with adequate treatment and conditions of detention appropriate for his illness. In reply, the applicant was requested to provide more detailed information about the nature of his ailments and complaints. The applicant complied with this request. He submitted, inter alia, that urgent surgery was necessary to cure his herniated disc.
On 16 September 2008 the Government was requested, under Rule 49 § 3 of the Rules of Court, to provide information concerning any medical treatment provided to the applicant during the entire period of his detention. In reply, the Government submitted the information summarised above, supported by a number of medical records. The applicant was given an opportunity to comment on the Government’s submissions; these comments, where relevant, are also included in the above summary.
Having regard to the parties’ submissions, on 25 November 2008 the President of the Chamber decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, the following interim measures, applied until further notice:
“- the applicant be immediately transferred to the penitentiary medical facility of the Ministry of Justice;
- at the earliest possible time and without any undue delays on both sides, a medical commission be composed on a parity basis, the Government and the applicant each appointing 3 members from among qualified medical experts in Azerbaijan, to diagnose the applicant’s specific problems (in particular, the herniated disc problem) and to conclude whether any long-term or immediate treatment, including a surgery, is required to treat the problem(s);
- on the basis of the findings of the above medical commission, the Government design and submit to the Court [by 20 January 2009] an appropriate and detailed plan of the applicant’s treatment.”
On 19 January 2009 the Government informed the Court about the measures taken.
In particular, according to the documents submitted by the Government, on 12 December 2008 the applicant was transferred to the Medical Facility of the Ministry of Justice. A joint medical commission was composed on a parity basis. The commission consisted of two neurosurgeons, two phthisiologists, and two uro-nephrologists. During the period from 22 to 24 December 2008 a number of medical tests were carried out on the applicant, including an MNRT, urine test, blood test, biochemical tests, ultrasound and others. The medical commission examined the applicant several times. Additionally, cardiologists, gastroenterologists and dentists were invited to carry out necessary tests and examinations.
On 10 January 2009 the medical commission issued its final opinion, in the presence of the applicant and his lawyers. The commission found that the applicant was suffering from the following primary and secondary conditions: a herniation of the L3-L4 spinal disc; osteochondrosis; mild hypertension, stage II; residual signs of inactive (cured) tuberculosis of the right lungs; unicameral cyst of the left kidney; chronic colitis; and signs of first-degree dysbacteriosis. However, the commission unanimously concluded that his condition was not critical and that no surgery was required. His overall health condition was considered satisfactory. It was noted that he was fully autonomous and could walk using a cane. The diagnosed pathologies were chronic and smouldering, requiring “conservative” treatment, which could be carried out either on an inpatient or an outpatient basis.
The commission designed a detailed long-term plan for treatment for the applicant’s health problems, noting that for the first month the applicant would receive inpatient treatment in the Medical Facility of the Ministry of Justice, while thereafter such inpatient treatment could be substituted with outpatient treatment in the prison. The relevant treatment, including a detailed list of medications and recommendations, was prescribed. The commission’s opinion indicated that the applicant agreed with the diagnosis and the treatment plan.
On 2 February 2009 the applicant submitted his comments to the Government’s submissions. While he appeared to argue with the Government’s “interpretation” of some of the joint medical commission’s findings, he did not expressly contest the commission’s conclusions and the prescribed treatment plan.
On 12 February 2009 the President of the Chamber decided to lift the interim measures previously indicated under Rule 39 of the Rules of Court.
The treatment prescribed by the joint medical commission was carried out on an inpatient basis in the Medical Facility of the Ministry of Justice until 16 March 2009.
On 7 March 2009 the applicant was examined by a neurosurgeon who was not a member of the joint medical commission. He noted positive progress of the applicant’s condition and found no necessity for further treatment of the herniated disc, but recommended a spinal corset.
On 14 March 2009 the applicant was examined by the two neurosurgeons who were members of the joint medical commission. The examination did not reveal any pathology in the applicant’s peripheral nervous system. Taking into account the applicant’s complaints of pain, they recommended applying two different types of medicinal ointment, to the backbone and left thigh areas.
On 16 March 2009 the applicant was transferred back to Penal Facility no. 13, where he was placed in the same large cell accommodating 128 prisoners. According to the Government, his medical treatment was continued on an outpatient basis, as prescribed by the joint medical commission. According to the applicant, the treatment did not comply with the commission’s prescriptions.
Following the applicant’s repeated complaints of pain, on 10 April 2009 he was examined by a neurosurgeon and was prescribed treatment with Reton, a therapeutic ultrasonic device. According to the Government, within a short period of time the Medical Sanitary Unit of Penal Facility no. 13 was equipped with this device and the treatment was followed through. According to the applicant, he did not receive this treatment.
With regard to preventive treatment against the recurrence of tuberculosis, the joint medical commission had prescribed anti-tuberculosis medication including Rifampicin and Izoniazid. The treatment was scheduled to start in March 2009. However, the applicant refused to take Rifampicin and asked for Pirazinamid instead. The applicant later agreed to take Rifampicin and the treatment began on 8 April 2009.
From April 2009 the applicant was treated on an outpatient basis by means of daily administration of two drugs for the regulation of blood pressure, two for the prevention of the recurrence of tuberculosis and two ointments for alleviation of pain resulting from the herniated spinal disc. He was able to spend a “considerable part” of the day in the open air outside his cell. However, according to the applicant, this treatment was ineffective, as it did not cure his illnesses or alleviate his condition.
E. The applicant’s attempts to obtain redress for the alleged lack of medical treatment
On 14 May 2007 the applicant lodged a civil lawsuit with the Sabail District Court against the Prison Service of the Ministry of Justice (Ədliyyə Nazirliyi Penitensiar Xidməti), complaining about his conditions of detention and lack of adequate medical treatment.
On 28 May 2007 the Sabail District Court refused to hear his lawsuit, noting that claims against the Prison Service of the Ministry of Justice should be lodged with the Nasimi District Court.
In June 2007 the applicant, through his lawyer, lodged a civil lawsuit with the Nasimi District Court, indicating as defendants the Minister of Justice and the Prison Service of the Ministry of Justice. He complained that he had not been provided with the necessary inpatient treatment, that the conditions of his pre-trial and post-trial detention had been bad and inadequate for his health, that he had been prohibited from receiving newspapers in pre-trial detention, and that his transfer to Penal Facility no. 13 had been unlawful because this prison was located too far from his home.
On 19 June 2007 the Nasimi District Court refused to hear the lawsuit owing to non-compliance with the formal requirements concerning the number of copies of the lawsuit and notarisation of the power of attorney for the applicant’s lawyer. It appears that subsequently the applicant complied with these requirements and the Nasimi District Court admitted the lawsuit for examination.
Prior to the examination of the merits of the case, the applicant’s lawyer lodged a number of requests, inter alia that the court ensure the applicant’s personal attendance at the hearings and that it order his inpatient treatment. These requests were refused.
During the examination of the merits of the applicant’s claims, the Nasimi District Court had regard to his medical records, including the opinion of the MNS’s medical experts issued on 2 February 2006 (see above). The hearings were held in the applicant’s absence but with the participation of his lawyer.
On 2 November 2007 the Nasimi District Court dismissed the applicant’s claims. As for the complaint concerning the failure to provide inpatient treatment, the court found that the applicant himself had repeatedly refused to undergo the medical tests and treatment he was offered. In any event, the medical examinations did not reveal any need for inpatient treatment. As for the allegations concerning bad conditions of pre-trial detention in Detention Facility no. 1, the court found that these allegations were unsubstantiated. In particular, among other things, the court noted that the applicant had been kept in a six-person cell with a total area of 15.84 sq. m., which allowed 2.64 sq. m. per person and which was compatible with the domestic minimum standard of 2.5 sq. m. for pre-trial detention. As for the alleged prohibition on receiving newspapers, the court found that this allegation was unsubstantiated and that the applicant was in fact allowed to obtain four official newspapers from the detention facility’s management or to have any other newspapers brought to him by his lawyer or relatives. Lastly, with regard to the lawfulness of the applicant’s transfer to Penal Facility no. 13, the court found that it was lawful and that the conditions of his detention in that prison were adequate.
On 6 February 2008 the Baku Court of Appeal upheld the Nasimi District Court’s judgment. On 3 June 2008 the Supreme Court upheld the lower courts’ judgments.
COMPLAINTS
(a) under Article 6 §§ 1 and 3 (b), (c) and (d) and Article 7 of the Convention, that he had not been afforded adequate time and facilities for confidential meetings and discussions with his lawyers during the trial, that the domestic courts had failed to ensure the attendance and examination of witnesses on his behalf under the same conditions as for witnesses against him, and that the cassation hearings before the Supreme Court had been held in his absence;
(b) under Articles 6 of the Convention, that the criminal charges against him had been fabricated and unsubstantiated, that the proceedings had not complied with the “reasonable time” requirement, that the domestic courts had not been independent and impartial, that the domestic courts had routinely refused his petitions, and that the minutes of the court hearings at first instance had been inaccurate; and
THE LAW
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
The Court reiterates that the six-month time-limit provided for by Article 35 § 1 of the Convention starts to run, in connection with a period of pre trial detention, from the date on which the charge is determined by a court at first instance, not the date on which a conviction becomes effective (see Daktaras v. Lithuania (dec.), no. 42095/98, 11 January 2000). Where the applicant had challenged the lawfulness of his pre-trial detention in separate proceedings, in which a final decision was delivered after his conviction at first instance, the six-month time-limit runs from the date of that decision (see Popov v. Russia, no. 26853/04, § 153, 13 July 2006).
The Court notes that the applicant was convicted at first instance on 20 April 2007. The final decision concerning his latest appeal against the extension of his pre-trial detention was delivered prior to that date (on 2 November 2006). The Assize Court’s decision refusing the applicant’s request to substitute his remand in custody with house arrest was also delivered prior to that date (on 15 February 2007), and the applicant lodged no appeals against that decision. Accordingly, the six-month time-limit in the present case started to run from 20 April 2007.
However, the present application was not lodged until 31 March 2008, which is more than six months later. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Articles 3 and 6 of the Convention concerning his conditions of detention, lack of adequate medical treatment, and the fairness of the civil proceedings concerning his allegations of ill-treatment, as well as the complaints under Article 6 §§ 1 and 3 (b), (c) and (d) and Article 7 of the Convention concerning the alleged unfairness of the criminal proceedings against the applicant and his complaints under Article 1 of Protocol No. 1 concerning the confiscation of his property;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
Registrar President