Last Updated on February 10, 2021 by LawEuro
FIFTH SECTION
DECISION
Application no. 18068/08
Elmar Alim oglu PASHAYEV and Others
against Azerbaijan
The European Court of Human Rights (Fifth Section), sitting on 14 January 2021 as a Committee composed of:
Lado Chanturia, President,
Latif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above application lodged on 14 March 2008,
Having regard to the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints concerning Article 9 taken in conjunction with Article 14 of the Convention, and Article 2 of Protocol No. 4 to the Convention and to declare inadmissible the remainder of the application,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix. They were represented before the Court by Mr A. Mutallimov, a lawyer based in Azerbaijan.
2. The Government were represented by their Agent, Mr Ç. Əsgərov.
The circumstances of the case
3. According to the applicants, on 9 June 2007 they arrived at a holiday location in the Guba District and moved into their friend’s house, where they were planning to stay for two days. On the same day, while they were relaxing with their families, several police officers approached them and asked them for their identity documents. After checking the documents, the officer in charge told them that they had violated the temporary residence registration rules, and had to leave the district immediately. The applicants explained that they had only come for a weekend break, but the police warned them that they had violated the relevant provisions of the Code of Administrative Offences. As a result, the applicants and their family members brought an end to their visit and left the Guba District.
4. On 2 July 2007 the applicants lodged a complaint with the Guba District Police Office, the Prosecutor General’s Office, the Ministry of Internal Affairs and the Ombudsman. They alleged that the only reason the police had wanted to expel them from the Guba District had been because they had been dressed in traditional Islamic clothes and had had long beards.
5. By a letter of 13 July 2007 the Guba District Police Office informed the applicants that on 9 June 2007 the police inspector responsible for the area where the applicants had been staying had checked their identity documents and told them that they had to register at the district police office if they planned on staying for a long period. However, shortly afterwards they had left their temporary accommodation, even though they had not been treated badly in any way by the officer.
6. On 30 July 2007 the applicants received a letter from the Ombudsman giving the same information.
7. On 31 August and 27 September 2007 they received letters from the Ministry of Internal Affairs with the same content as the letter from the Guba District Police Office.
8. According to the applicants, on 6 July 2007 they had attempted to lodge a complaint with the Guba District Court’s registry. The registry refused to accept their complaint, so they resubmitted it by post on a later date. The applicants relied on the provisions of the Code of Civil Procedure concerning claims in respect of actions of the authorities against an individual’s rights and freedoms, and reiterated the complaints they had previously made to the other authorities. They asked the court to deliver a judgment acknowledging that they had faced restrictions on their movement, and also discrimination, on account of their religious beliefs, and to order the police to pay them 5,000 Azerbaijani manats(AZN) (approximately 5,000 euros (EUR) at the relevant time). The applicants provided the Court with a copy of that complaint, with a postmark indicating the date of dispatch as 9 July 2007, but did not provide any document confirming receipt of the complaint.
9. By letters of 27 August and 24 October 2007 the applicants requested the Guba District Court to provide a response to their claim, which they alleged had been sent by post.
10. By a letter of 29 February 2008 the applicants informed the Sumgayit Court of Appeal and the Supreme Court that the Guba District Court had failed to process their complaint.
11. By a letter of 17 March 2008 the Guba District Court informed the applicants that it had not received any complaint from them. The letter also informed them that their complaint would be examined once they had submitted it to the court.
12. The applicants did not take any further action.
RELEVANT LEGAL FRAMEWORK
13. The relevant provisions of the Code of Civil Procedure, as in force at the material time, provided as follows:
Article 296. Lodging a claim
“1. A person whose rights have been affected may lodge a claim in connection with decisions or actions (or inaction) of the relevant executive authorities, local self‑governing bodies, other organisations and entities, and their officials.
…
3. … A claim for examination by a district court shall be lodged by a natural person with the court at the place of his [or her] residence or with the court at the place where the body, organisation or official whose actions are being complained of is located.”
Article 297. Decisions and actions (or inaction) of the relevant executive
authorities, self-governing bodies, other organisations and entities
and their officials for examination by a court
“1. The decisions and actions (or inaction) of the relevant executive authorities, self‑governing bodies, other organisations and entities, and their officials to be examined by a court include collective and individual decisions and actions (or inaction) which have resulted in:
1.1. a violation of the rights and freedoms of an individual;
1.2. obstruction of the exercise of an individual’s rights and freedoms;
…”
COMPLAINTS
14. The applicants complained under Article 2 of Protocol No. 4 to the Convention that the domestic authorities had unlawfully restricted their right to freedom of movement within the State.
15. They further complained under Article 9 of the Convention taken in conjunction with Article 14 that their right to freedom of movement had been restricted because they had been dressed in traditional Islamic clothes and had had long beards. They alleged that this had amounted to a violation of their right to manifest their religion, and to discrimination on the grounds of religion.
THE LAW
16. The Government submitted that the complaints were inadmissible on account of non-exhaustion of domestic remedies as the applicants had failed to bring their grievances before the domestic courts in order to obtain redress for the alleged violation of their rights. There was no evidence that they had properly lodged their complaints with the Guba District Court, the first‑instance court which had primary jurisdiction. Nor had they made use of the alternative possibility of applying to the district court in Baku as their place of residence, as provided for by the legislation in force at the material time. In support of their argument, the Government submitted copies of the relevant pages from the Guba District Court judges’ registration books for incoming cases for the period from 1 to 28 July 2007.
17. The applicants confined themselves to disputing the Government’s objection as regards the exhaustion of domestic remedies, without submitting any observations.
18. The Court reiterates that it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009). However, the rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014).
19. Furthermore, Article 35 § 1 of the Convention provides for a distribution of the burden of proof. Where the Government claim non‑exhaustion of domestic remedies, they must satisfy the Court that the remedy referred to was effective and available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009, and Nada v. Switzerland [GC], no. 10593/08, § 141, ECHR 2012). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact pursued, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances exempting him or her from this requirement (see Vučković and Others, cited above, § 77, and the cases cited therein).
20. The Court observes that at the material time the domestic law provided a judicial remedy for the acts of officials which impeded the exercise of an individual’s rights and freedoms, and that complaints against such acts could be lodged with the first-instance courts both at the place where the alleged violation had taken place and at the individual’s place of residence (see paragraph 13 above). Furthermore, the applicants did not allege that the existing remedies were inadequate or ineffective.
21. As regards the applicants’ allegation that the Guba District Court had refused to examine their complaint, the Court notes that it cannot accept that allegation in the absence of any evidence. In that connection, the Court observes that the applicants were only able to produce as evidence a postmark confirming that their complaint had been sent to the Guba District Court on 9 July 2007. They failed to produce any documentary evidence confirming that their complaint had reached the Guba District Court.
22. The Court further notes that, having received the response of the Guba District Court inviting them to submit their complaints for examination on the merits, the applicants did not act accordingly (see paragraphs 11 and 12 above). The applicants did not provide any explanation for their failure to do so. Nor did they avail themselves of the opportunity to lodge their complaint with the first-instance court at the place where they resided, in accordance with the procedural framework in force at the material time. Moreover, the applicants have failed to substantiate the existence of any specific circumstances which might have prevented them from resubmitting their complaints for examination by the domestic courts once they had received the replies from the other authorities with which they had lodged complaints.
23. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 February 2021.
Martina Keller Lado Chanturia
Deputy Registrar President
__________
Appendix
| No. | Applicant’s Name | Birth year | Nationality | Place of residence |
| 1. | Elmar Alim oglu PASHAYEV | 1974 | Azerbaijani | Baku |
| 2. | Kamil Khayyam oglu ALMAMMADOV | 1973 | Azerbaijani | Baku |
| 3. | Vugar Suleyman oglu MAMMADOV | 1975 | Azerbaijani | Baku |
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