Virtual Parallels

The Role of the European Court for the Citizens of Armenia and Azerbaijan

The Role of the European Court for the Citizens of Armenia and Azerbaijan


What is the European Court of Human Rights (ECtHR) for the citizens of Armenia and Azerbaijan? How effective are the mechanisms for submitting complaints, how effective for the citizens are the decisions made? Is the European Court the last instance of justice for the Armenian and Azerbaijani people? These and other issues are touched upon in the interviews with lawyers from Armenia and Azerbaijan presented below.

The European Court of Human Rights – the Last Hope for Justice? 

- After joining the European Convention on Human Rights and Fundamental Freedoms, the citizens of Armenia received the right to initiate legal actions with the European Court of Human Rights (ECtHR) in Strasbourg. Approximately, how many complaints from Armenia have been sent to the Strasbourg Court since then? How many decisions has the European Court of Human Rights passed on the complaints received from Armenia?
- According to statistics, 106 complaints were submitted from Armenia in 2008, 125 in 2009, 197 in 2010, and 173 in 2011. The increase in the number of complaints is conditioned by the fact that in Armenia and other countries the Convention has become better known and more available. Such an increase in the number of submitted complaints adds to the workload of the Court, and the Council of Europe takes measures in order to have issues on rights violations settled inside the country. Thus, on the eve of elections in 2005 administrative arrests were practiced widely and largely in relation to political activists. I had 20 cases on administrative arrests sent to ECtHR. Judgments were made on 10 of those. The legislation was changed because of the demands of the civil society, and administrative arrest stopped to be practiced. The decisions on these cases were passed by the European Court after the introduction of the relevant amendments in our legislation. Armenia has come to the conclusion that in order to prevent a legal action initiated at the European Court on such rights violations, it is needed to amend the law as quickly as possible. Another example. For decades it was believed that a bail could not be applied for people accused of a serious offence. This contradicts the provisions of the Convention. This year the European Court has passed another delayed decision since in 2008 the Court of Appeal of Armenia considered this issue and introduced the appropriate amendments, after which no such violation has taken place in Armenia since then. I think that these reforms are due to the activity of the European Court, since our legislative body amends the law beforehand, in order to exclude the possibility of judgments to be passed in the future and in order not to have compensations paid from state treasury.  
- What cases do the complaints sent to the ECtHR most often have to do with: criminal, civil or administrative?
- These are mostly civil cases followed by criminal, and only after by administrative ones. There are very many disputes related to the right to property, complaints on fair trial, disputes on deprivation of liberty, statements related to prohibited treatment of human beings.
In the period of 10 years 45 judgments have been made on Armenia, which is only a small figure if we take into account that 1/3 are repetitive cases. In fact, the Appeal and Constitutional Courts of Armenia currently apply the European Court precedents more promptly and more effectively, than the European Court itself. If in the European Court the process of passing a final resolution takes 4 – 5 years, in national courts it takes only a few months. I should mention, however, that justice in Armenia takes place only when politics does not interfere with the activities of the court, and there is no corruption. Otherwise, justice becomes quite selective with us.
- What problems do the cases encounter when sent to and within the ECtHR? How has the complaints consideration mechanism in ECtHR changed?
Initiating legal actions with the European Court is a simplified procedure. It is so simplified that any citizen may turn to it on his/her own. Today there is a lot of varied literature. Ten years ago there was no literature in Armenia, but today there are specialists and theoreticians. I sometimes give a citizen the literature or the list of sources where they can find the application form, can submit it on their own and be a success. We have even had cases which were won by the citizens without a lawyer’s involvement. The only hindrance for the citizens may be the financial aspect of the matter: a consultant’s advice costs from 800 to several thousand dollars. Very often states (and not only Armenia, but especially Turkey or Russia) prefer to refrain from the introduction of systemic changes inside the country; they simply pay the compensation from state budget. Armenia and other states do not overtly refuse from complying with judgments, requiring systemic changes, they rather simply maneuver in order to bypass these decisions. The reason is that these states are conservative. If the countries, in the long run, do choose to introduce legislative amendments, in most cases it is for the mere purpose of escaping from the payment of compensations.  
- How are the decisions of the ECtHR complied with in Armenia? And what does the compliance and incompliance with the European Court judgments mean for Armenia in practice?  
The decision of the European Court is complied with in two directions: control, aiming to restore the right of the individual, and reformation of legislation in order not to allow for recurrent violations in relation to other persons. 
I would not say that Armenia refuses to comply with the decision of the court. The compensations are paid as minimal requirement, legislative reforms also take place. Compensations are paid from the state budget, and this is right. The judge should not pay from his/her own pocket and should not be held responsible if they are not the ones to have committed the offense. If we start to fine judges, engage in witch-hunt and look for the guilty post factum, this will freeze the judicial system. The position of a judge is a state position, and if he/she breaks the law, the state should either hold the person responsible or dismiss that official, since the state treasury suffers because of the person’s bad work. 
The only aspect where we still have much to be desired is the review of old cases. This was exactly what happened to the A1+ case. The European Court passed a resolution to come back to the old case which, however, was not done. In reality incompliance with the resolution does not have any implications or impact. If the state refuses to reconsider the case, most often this refusal is not fraught with any consequences. The A1+ case is an exception, and we have turned to the European Court, aiming to ensure a reconsideration of the old case.

Is the European Court the Last Hope for Justice for the Citizens of Azerbaijan?

- After joining the European Convention on Human Rights and Fundamental Freedoms, the citizens of Azerbaijan received the right to initiate a legal action at the European Court of Human Rights (ECtHR) in Strasbourg. Approximately, how many complaints from Azerbaijan have been sent to the Strasbourg Court since then? How many decisions has the European Court of Human Rights passed on the complaints received from Azerbaijan?
- According to the data of the European Court of Human Rights, as of January 1, 2011, 1230 complaints against the Azerbaijani Government were already acknowledged inadmissible, and 1254 more cases were pending a decision. Thus, only after Azerbaijan joined the European Convention for the Protection of Human Rights and Fundamental Freedoms, 2484 complaints from Azerbaijan were filed. According to the data as of June 30, 2011, only 1543 complaints were pending a decision, that is to say in six months their number grew by 313, excluding the previously redressed complaints. If we take into consideration that on average 50 complaints are monthly sent to the ECtHR from our country, we can safely assume that over 3000 complaints have been submitted to ECtHR from Azerbaijan. As of today, the Court has already passed 63 Resolutions (that is to say judgments, in which the Court determines whether the concrete rights or freedoms have been violated or not. 59 out of the 63 Resolutions were passed by the Chamber and 4 – by the Committee*. (*[1] According to Article 26 (1) of the Convention, for consideration of cases submitted to the Court that sits as a sole judge, to the Committees of three judges, to the Chamber of seven judges and to the Grand Chamber of seventeen judges. The Chambers of the Court act as ad hoc committees. )  At the Chamber level, 68 decisions were made on the admissibility of the complaints. Admissibility means it may be admitted for review by the Court. The fact of the submission of the complaint and the receipt of a letter for the ECtHR Secretariat on the assignment of a registration number does not yet mean that the complaint is already admitted for consideration. The majority of the complaints do not pass the admissibility determination stage. This number falls between 90 – 95% of the total number of complaints. The fact that the complaint is compiled by a good lawyer, is not yet a guarantee that it will be acknowledged admissible: even quite experienced lawyers do not quite precisely understand how to write a complaint. That is why many complaints do not arrive at the final phase of consideration.    
- What cases do the complaints sent to the ECtHR most often have to do with: criminal, civil or administrative?  
- 20% of the cases considered in the ECtHR had to do with the right to property (Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms), 19% related to the right to fair trial (Article 6 of the Convention), 13% referred to the non-fulfillment of court decisions (Article 6 of the Convention), 12% were connected with freedom and personal safety (Article 5 of the Convention),  36% of the cases  had to do with other rights and freedoms. It should be mentioned that if complaints related to criminal cases prevailed in the first years of Azerbaijan’s affiliation with the Convention and the enforcement of its Protocols, recently we can see an increase in the number of complaints referring to civil and administrative actions, especially those which deal with the violation of the right to property. This can be easily accounted for by the increase in the number of violations of the right to property in Azerbaijan, which in the last years has grown threatening. In this regard, Azerbaijan is, in the worst sense of the word, a leading country not only among the Council of Europe member states, but perhaps, worldwide. 
- What problems do the cases encounter when sent to and within the ECtHR? How has the complaints consideration mechanism in ECtHR changed?
- Lawyers do not have major problems when sending complaints to ECtHR. However, there have already been cases when the Court Secretariat employees denied the receipt of documents sent from Azerbaijan for which Fax confirmations had been appropriately received.  For example, a petition was submitted on the relegation of S. Mammadov’s case against Azerbaijan to the Grand Chamber, after the promulgation of the Chamber’s resolution on this case. In spite of this petition being sent onto the Court’s Fax within the three-month period and the receipt of due confirmation, as well as its postage to ECtHR by regular post, the Secretariat informed the petitioner that the latter had failed to meet the three-month deadline, and they had not found the faxed copy of the petition.  
The enforcement of Protocol 14 of the Convention did not speed up the consideration of complaints, against all expectations. Some of the innovations are applied so that the practices cause serious objections from the petitioners and their lawyers. One of these innovations is Article 27 of the Convention, which authorizes the sole judge to acknowledge a complaint inadmissible, if such a decision is possible to make without additional examination of the complaint. This judgment is final. It seems that everything is clear here. Coming from the letter and spirit of this Article and the Convention, as a whole, we would assume that such complaints fail to comply with such criteria for admissibility as the six-month deadline and the exhaustion of national legal measures: the complaints should demonstrably fail to comply with both criteria to exclude any further need to consider the complaint. However, practice shows that the judge and the Secretariat lawyer’s duo may factually preclude the passage of most serious complaints. A judge from Greece, Sicilianos by name, is appointed the sole judge for Azerbaijan for a period of one year. In this capacity of his, he has made dozens (and maybe even hundreds) of decisions on the inadmissibility of complaints against Azerbaijan. And afterwards, the petitioners are only notified that their complaints have been acknowledged inadmissible, and they do not uncover the grounds for such a decision. Due to a weird concurrence of circumstances, most complaints that deal with major or even grand physical trespass are qualified as inadmissible. Very experienced Azerbaijani lawyers, very skilled at compiling complaints for the ECtHR, wonder at the reasons for such judgments on a number of cases. As it is well known, the decisions on inadmissibility cannot be appealed. And the sole judge does not make a separate decision on every individual case. Usually he simply inserts the resolution into a report, prepared by the reporter who is not the judge himself (on cases from Azerbaijan, this person is most probably an Azerbaijani lawyer). Thus, at the sole judge level the passage of most promising complaints may be disrupted. And the corresponding folders are subject to destruction in a year’s time! It is not accidental that a number of NGOs and political parties in Azerbaijan have sent a statement to Strasbourg, which hints at the probable corruption of some figures at ECtHR.  
- How are the decisions of the ECtHR complied with in Azerbaijan? 
- Compliance with the decisions of the Court in Azerbaijan leaves a lot to be desired. State bodies, as a rule, pay the money (compensations for moral and material damage, expenses incurred), awarded by the European Court in a timely manner. Some general measures are complied with: the resolutions are translated and disseminated among judges, prosecutors and so on. However, a number of individual measures have not been fulfilled until now. Thus, on S. Mammedov against Azerbaijan case, even a criminal case has not yet been filed on the fact of torture, regardless of the fact of the January 2007ECtHR’s resolution, which stipulated a violation of Article 3 (prohibition of torture). Obviously, the Prosecutor’s Office is waiting for the lapse of time. I deliberately mentioned this case with torture: the ECtHR acknowledged the fact of torture, the lack of effective investigation, however, no one has yet been held criminally liable. Whereas practicing torture continues in Azerbaijan. 
On many cases, in particular, on Panah Huseyn et al. against Azerbaijan (here I mean the case of complaints initiated by the former Prime Minister Panah Huseyn, the Chairman of the Democratic Party of Azerbaijan S. Mammedov and others), the cases are not being examined, even though the ECtHR resolutions have stipulated apparent violations of the right to fair trial and establish a necessity to review the case. 



30 January, 2014
Right after the New Year, the citizens of Armenia were shocked by the gas and electricity bills for December.

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