MUSAYEV v. AZERBAIJAN (European Court of Human Rights)

Communicated on 26 February 2019

FIFTH SECTION

Application no.54567/13
Nasimi Alisa oglu MUSAYEV
against Azerbaijan
lodged on 12 August 2013

STATEMENT OF FACTS

The applicant, Mr NasimiMusayev, is an Azerbaijani national, who was born in 1993 and lives in Lerik.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 20 April 2011 the Lerik District Conscription Commission (the Commission) decided that, due to having diabetes, the applicant was unfit for military service during peacetime and partially fit for military service during wartime.

The applicant repeatedly asked the Lerik District Mobilization and Conscription Service (the District Service) to issue the military ID certifying his military status in accordance with this decision, but without any success.

On an unspecified date the State Commission for Admission of Students (SCAS) announced that the deadline for application for the university entrance examination of 2011 was 1 June 2011. In order to apply for the examination the applicant had to submit also his military ID.

On 23 May 2011 the Deputy Head of the State Service for Mobilization and Conscription (the State Service) issued instructions that military certificates for submission to the SCAS should be issued to the relevant persons only if the Main Clinical Hospital of the Armed Forces (the Hospital) confirmed the diagnosis after a second medical examination.

On 7 June 2011, i.e. after the deadline for application to the SCAS had passed, the applicant was instructed to go to the Hospital for the second medical examination in order to be provided with the military certificate to be submitted to the SCAS. The applicant refused arguing that under the Law on Basics of the Conscription, the Hospital did not have any authority to verify the decision of the Commission.

The District Service issued the applicant’s military ID on 4 July 2011.

On 3 December 2011 the applicant lodged a claim with the Lerik District Court against the District Service, the State Service and the Ministry of Defence asking for non-pecuniary damage of 100,000 Azerbaijani manats (AZN) for breaches of his rights, in particular the right to education.

On an unspecified date the applicant lodged a complaint about the alleged bias of the judge of the first-instance court in favour of the defendants.

On 16 February 2012 the Shirvan Court of Appeal summonsed the applicant and his representative for the hearing concerning this complaint.

On 21 February 2012 the Shirvan Court of Appeal dismissed the complaint, in the absence of the applicant and his representative, finding that it was not substantiated.

On 22 February 2012 the summonses about the hearing of 21 February 2012 were delivered to the applicant and his representative.

On 17 April 2012 the first-instance court dismissed the applicant’s claim finding that the law did not stipulate a time limit for issuing the military ID and that in this particular case, it had been issued within a reasonable time. The court also found that the applicant had failed to inform the District Service about his intention to sit the examination.

The applicant appealed arguing that issuing the military ID after seventy‑five days had not been reasonable. He also argued that the District Service and the State Service were aware of his intention, otherwise he would not have been sent for the second medical examination required only for those who intended to sit the examination.

On 14 August 2012 the Shirvan Court of Appeal upheld the judgment in the absence of the applicant and his representative. The judgment indicated that the applicant’s representative had been duly summonsed for the hearing, but he had sent a telegram to the court asking for the hearing to be held in his absence.

On 15 August 2012 the Shirvan Court of Appeal sent summonses to the applicant and his representative informing them about the date and time of the hearing of 14 August 2012. The summonses were delivered to them on 17 August 2012.

On 14 February 2013 the Supreme Court upheld the judgment.

COMPLAINTS

1.  The applicant complains under Article 2 of Protocol No. 1 to the Convention that his right to education was breached due to the delay by the Lerik District Mobilization and Conscription Service to issue his military ID, as a result of which he could not sit the university entrance examination.

2.  The applicant complains under Article 6 § 1 of the Convention that his right to a fair trial was breached because he and his representative were not duly informed of the date and time of the hearings before the appellate court which, as a result, were held in his and his representative’s absence.

QUESTIONS TO THE PARTIES

1.  Has the applicant been denied the right to education, guaranteed by Article 2 of Protocol No. 1?

2.  Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant and/or his representative duly notified about the hearings before the appellate court (see PiraliOrujov v. Azerbaijan, no. 8460/07, §§ 40-46, 3 February 2011; Maksimov v. Azerbaijan, no. 38228/05, §§ 36-43, 8 October 2009; and Abbasov v. Azerbaijan, no. 24271/05, §§ 28-34, 17 January 2008)?

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