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Azerbaijanâ€™s representative to European Court: â€œThe case of Eynulla Fatullayev will be sent to the Grand Chamber of the European Court of Human Rightsâ€

22 April 2010 13:11 (UTC +04:00)

According to the APA European bureau, the Court noted that it had found it as violation of the applicantâ€™s rights and demanded Azerbaijan to release the applicant immediately and to pay Fatullayev 25,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,822 in respect of costs and expenses. â€œThe Court noted that the applicant was currently serving the sentence for the press offences in respect of which it had found Azerbaijan in violation of the Convention. Having considered unacceptable that the applicant still remained imprisoned and the urgent need to put an end to the violations of Article 10, the Court held, by six votes to one, that Azerbaijan had to release the applicant immediatelyâ€.
The Court said the applicant, Eynulla Fatullayev, the founder and chief editor of the newspapers GÃ¼ndÉ™lik AzÉ™rbaycan and Realny Azerbaijan, was sentenced to a total of eight and a half yearsâ€™ imprisonment for defamation, threat of terrorism and incitement to ethnic hostility. Relying on Article 10 (freedom of expression) and Article 6 Â§ 1 (right to a fair trial), he complains in particular about those convictions and the unfairness of the criminal proceedings brought against him.

Editor-in-chief of Gundalik Azerbayjan and Realny Azerbaydjan newspapers Eynulla Fatullayev was arrested by the decision of Yasamal district court on April 20, 2007. He was accused of insulting Khojaly residents in his series of articles â€œKarabakh diaryâ€ and sentenced to two-and-a-half-year imprisonment. Later, he faced additional charges and sentenced to eight-and-a-half-year imprisonment on October 30, 2007.

0.223 g heroin was found on Eynulla Fatullayev in jail #12 on December 30, 2009. He faced charges under Article 234 (illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances) of the Criminal Code.

As a result of biological-chemical examination, heroin and a psychotropic substance were found in Fatullayevâ€™s blood and urine examples.

The journalistâ€™s case is judged by the Garadagh district court of Azerbaijan.

The Azerbaijani Government Agent at the European Court of Human Rights Chingiz Asgarov issued a statement with regard to the European Courtâ€™s judgement in the Fatullayev case. â€œThe European Court of Human Rights in its judgements has examined complaints concerning different rights and freedoms set forth in the European Convention. To date, violation of human rights and freedoms has been established in the Courtâ€™s 21 final judgements in respect of Azerbaijan. Majority of these are the judgements concerning violation of Article 6 of the European Convention, i.e. of the right to fair trial. However, this does not mean that in all these cases there were violations of individualsâ€™ procedural rights during trialâ€, -said Asgarov in his statement. â€œIt is to be noted that the issue of execution of judgements of the domestic courts is also covered by Article 6 of the Convention. In a number of cases, domestic courts and subsequently the European Court found violations of the applicantsâ€™ property rights by people who became refugees and IDPâ€™s as a result of Armenian aggression against Azerbaijan. Non-execution of judgements in these cases has created certain problems for our country in the light of Article 6 of the Convention. At the same time, huge work has been done in recent years in providing the refugees and IDPâ€™s with new and well-equipped houses, and in the nearest future the problem related to execution of judgements in this field will be completely lifted. I should also say that in its judgements concerning such cases the European Court has recommended the Government of Azerbaijan a number of possible solutions for restoration of individualsâ€™ rights. In general, such instructions given by the European Court to the States are disputable. The European Court in its judgements merely finds violation of a right, and the Committee of Ministers of the Council of Europe â€“ the body supervising the execution of the Courtâ€™s judgements â€“ defines the measures to remove those violationsâ€.

Regarding the European Courtâ€™s judgement in the Fatullayevâ€™s case, Asgarov said: â€œIndeed, the Court has held in this case that the respondent State shall secure the applicantâ€™s immediate release. Putting matter in such way is inadmissible taking account of both the provisions of the European Convention on Human Rights and the Azerbaijani legislation. You are aware that the European Convention is a multilateral agreement concluded by sovereign States and, therefore, the European Court established by the Convention has a subsidiary role, i.e. appears as an additional mechanism for protection of human rights and fundamental freedoms. It means that the European Court cannot take the place of the respondent-Stateâ€™s judicial, administrative or other authorities and consequently appear as the court of fourth instance in respect to domestic courts. According to the Courtâ€™s judgements, even if it finds violation in a certain case, its judgements have primarily declarative nature and the selection of means necessary to restore the rights is in general the Stateâ€™s duty.
At the same time it has to be noted that the Committee of Ministers of the Council of Europe in the Interlaken Declaration adopted in February 2010 invited the Court to avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case-law according to which it is not a fourth instance court; and to apply uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention.

On the other hand, legislation of the Republic of Azerbaijan does not provide for any legal grounds for implementation of the Courtâ€™s this instruction in the Fatullayev case. The European Court did not examine the question of how this instruction can be implemented by the Azerbaijani Government. The Court could establish that, according to the Code of Criminal Procedure of Azerbaijan, where the European Court finds a violation of the Convention provisions the matter can be considered by the Plenum of the Supreme Court and the case be remitted to the court of lower instance. The Azerbaijani legislation does not provide for release of the convicted person based solely on the European Courtâ€™s judgement. In general, the practice adopted in the European States is that the Courtâ€™s judgements and decisions are applied as an interpretation of the Conventional provisions. In short, the situation where the European Court instructs domestic courts of this or another State to take certain decisions is groundless and unacceptable.
By leaving no choice as to measures to restore the violated rights and by giving direct instructions to the courts of the member-State of the Council of Europe, the European Court turned to be the court of fourth instance and overstepped its competences provided for by the Convention.
A judgment of a Chamber of the European Court becomes final three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested.
In these circumstances, we will request that the case be referred to the Grand Chamber of the European Court in order to defend interests of the Republic of Azerbaijan in the European Court of Human Rights and to secure the uniform practice of application of the Conventionâ€, said Asgarov in his statement.