Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant in the first case, Mr Andris Spūlis, is a Latvian national, who was born in 1969 and lives in Riga. He is represented before the Court by Ms A. Mazapša, a lawyer practising in Babīte.

The applicant in the second case, Mr Vladimirs Vaškevičs, is a Latvian national, who was born in 1960 and lives in Riga. He is represented before the Court by Ms L. Cakare, a lawyer practising in Riga.

The Latvian Government (“the Government”) are represented by their Agent, Ms K. Līce.

The applicant worked from 1 September 2002 until 5 August 2009 at the Ministry of Foreign Affairs and was posted as a diplomat to Latvian embassies in Belarus and Ukraine. On 29 August 2007 he had been issued Category I security clearance.

On 11 July 2008 the director of the SAB invited the applicant to a meeting. The applicant was asked questions about his work in the embassy in Ukraine and about his contacts there. Later on the same day one of the staff members invited the applicant to another meeting. In the course of that second meeting the applicant was accused of having received money or diamonds.

On 15 August 2008 the director of the SAB took a decision revoking the applicant’s security clearance. That decision was based on sections 9(3)(6) and 13(1)(3) of the Law on State Secrets (see paragraphs 20 and 22 below). The decision referred to “facts established during an inquiry which constitute grounds for doubting your reliability and your ability to refrain from disclosing State secrets”. On 20 August 2008 the applicant’s employment with the SAB was suspended on the basis of section 18(2)(6) of the Law on State Security Establishments and section 13(4) of the Law on State Secrets and he was informed that his employment contract would be terminated pursuant to section 101(1)(6) of the Labour Law and section 13(1)(3) and 13(4) of the Law on State Secrets.

In response to the applicant’s complaint about the revocation of his security clearance, on 15 September 2008 the Prosecutor General upheld “the decision of the director of the [SAB] of 25 July 2008 [sic]”. In response to the applicant’s request for a review of the information in the possession of the SAB by an independent law-enforcement agency, the Prosecutor General pointed out that under the Law on State Security Establishments the system of protection of State secrets was subject to the supervision of the Prosecutor General’s Office. Accordingly, that Office was to be considered an independent authority.

The applicant then brought proceedings in the District Administrative Court, complaining about the de facto actions of the Prosecutor General and the director of the SAB. On 16 June 2009 that court refused to uphold the applicant’s complaint, finding that the lex specialis with regard to the procedure for revoking security clearance was contained in the Law on State Secrets which provided that decisions in that respect were not subject to review by the courts. Considering that the Senate of the Supreme Court had come to identical conclusions in a comparable case on 24 March 2009, the applicant did appeal against the said decision.

On 5 August 2009 the applicant applied to the director of the SAB to be discharged from the service on grounds of health, specifying that earlier that year the Medical Board for the Assessment of Fitness for Work had certified that he was suffering from a category-two physical disability.

On 11 August 2009 the applicant lodged a complaint with the Constitutional Court, alleging that sections 9(3)(6) and 11(5) of the Law on State Secrets (see Relevant Domestic Law, below) were unconstitutional. On 9 September 2009 the Constitutional Court refused to initiate proceedings, since it considered that the question of the constitutionality of section 11(5) had been decided in its earlier judgment of 23 April 2003 (see Relevant Domestic Law, below) and that the claim concerning 9(3)(6) lacked the requisite legal substantiation.

The applicant had been working in Customs and subsequently in the State Revenue Service since 1988. In 2008 he held the position of director of the Customs Criminal Investigation Department of the State Revenue Service (Valsts ieņēmumu dienesta Muitas kriminālpārvaldes direktors) and Deputy General Director of the State Revenue Service (Valsts ieņēmumu dienesta ģenerāldirektora vietnieks). In 2002 he had been issued security clearance. In 2007 the SAB reduced the applicant’s security clearance to Category II security clearance. That clearance was reviewed and upheld on average every three months.

On 24 July 2008 the director of the SAB took a decision revoking the applicant’s security clearance. That decision was based on section 13(1)(3) and (4) of the Law on State Secrets (see paragraph 22 below).

As a result the applicant was dismissed from the position of director of the Customs Criminal Investigation Department of the State Revenue Service, whereas he continued to work in the State Revenue Service as Deputy Director General in the areas of personnel, strategic development and internal audit. Following an internal reorganisation the applicant was appointed director of the Administrative Board of the State Revenue Service. In October 2009, in the context of rotation of civil servants, the applicant accepted a proposal of appointment as Deputy Director of the Tax and Customs Administration Policy Department of the Ministry of Finance.

Following the applicant’s complaint about the revocation of his clearance, on 11 September 2008 the Prosecutor General upheld the decision of the director of the SAB. The decision of the Prosecutor General indicated that the applicant’s clearance had been revoked because of facts established during “an inquiry” which constituted grounds for “doubting a person’s reliability and his or her ability to refrain from disclosing State

secrets”. Furthermore, the inquiry had disclosed that in his application to obtain security clearance the applicant had provided false information. The Prosecutor General pointed out that the materials contained in the inquiry case-file were confidential and thus unavailable to the applicant. However, the reply contained a reference to a meeting between the applicant and a staff member of the SAB on 24 July 2008 during which the staff member had heard the applicant’s submissions concerning the facts established during the inquiry. In the course of the inquiry the SAB had also requested information from the Security Police and the Bureau for the Prevention and Combating of Corruption.

The applicant then submitted a complaint to the District Administrative Court, requesting it to quash the decision of the Prosecutor General and to declare the de facto actions of the director of the SAB and the Prosecutor General unlawful. By a decision of 25 September 2008 that court refused to uphold the applicant’s complaint on similar grounds to those relied on in the first application (see paragraph 8 above).

The proceedings in the administrative courts were terminated by a final decision of the Senate of the Supreme Court on 24 March 2009. The Senate upheld and expanded the reasoning contained in the decisions of the lower courts, relying on the Constitutional Court’s judgment of 23 April 2003 (see paragraph 28 below).

The applicant then submitted an application to the Constitutional Court, alleging, inter alia, that sections 9(3)(6) and 11(5) of the Law on State Secrets and paragraph 2.10.6. of the “List of State secret information” (see Domestic law part below) were incompatible with the Constitution.

On 13 October 2009 the Constitutional Court refused to initiate proceedings, considering that the question of the constitutionality of section 11(5) had already been decided by that court in its judgment of 23 April 2003 and that the remainder of the applicant’s claims lacked the requisite legal substantiation.

The Law on State Secrets came into force on 1 January 1997. At the time of revocation of the applicants’ security clearance it provided, in so far as relevant, as follows.

The criteria for obtaining access to State secrets were contained in section 9. Section 9(3)(6) provided that access could not be granted to any person

“in respect of whom during the course of an inquiry facts have been determined that constitute grounds for doubting his or her reliability and ability to refrain from disclosing State secrets”.

Pursuant to sections 11(5) and 13(3) of the Law, an appeal from a decision to revoke special clearance lay to the director of the SAB. The director’s decision could then be appealed to the Prosecutor General, whose decision was final. The Law did not contain any further details concerning the appeal procedure.

Section 13 provided for the conditions and consequences of revocation of special permits. Under section 13(1)(3), special permits could be revoked if it had become apparent that the person in question fell into one of the categories listed in section 9(3). Section 13(1)(4) provided that special permits were revoked in respect of persons who had knowingly provided false information about themselves. After revocation the person concerned was to be immediately dismissed or transferred to a position not requiring access to State secrets. Such persons could not obtain security clearance in the future.

On 26 October 2004 the Cabinet of Ministers adopted regulations entitled “List of State secret information” (Ministru kabineta 2004. gada 26. oktobra noteikumi Nr. 887 “Valsts noslēpuma objektu saraksts”). Paragraph 2.10.6. of that list designated as “confidential” the “means, methods and inspection measures for special protection ... of State secret information ... (for example, pages of questionnaires)”.

Section 101(1)(6) of the Labour Law gave employers a right to terminate employment contracts in cases where the employees concerned lacked the professional competence to perform their contractual duties.

Lastly, the internal organisation of the SAB and other security agencies was governed by the Law on State Security Establishments. Section 18(2)(6) of the Law provided that the agencies concerned could not employ persons who had been denied access to State secrets. Section 26(1) provided that the Prosecutor General and prosecutors with particular authorisation were to have a supervisory role over the work of State security agencies (including the system of protection of State secrets). In their supervisory role, the Prosecutor General and the authorised prosecutors had a right to access documents and information in the possession of security agencies.

In a judgment of 23 April 2003 in case no. 2002-20-0103 the Constitutional Court declared, by five to two votes, inter alia, section 11(5) of the Law on State Secrets constitutional. The case originated in an application from an individual who had not been issued with security clearance.

The majority of the court observed that the interests of national security required that access to State secrets be granted only to persons whose character references precluded the risk of disclosure of State secrets and that in the NATO member states the threshold of eligibility for security clearance was high. They concluded that such restrictions were necessary in a democratic society and provided a fair balance between the competing interests of the individual and of the community as a whole. The majority conceded, however, that the above restrictions had to be sufficiently substantiated and that the competent authority had to assess the degree of risk in each particular case in order to decide whether to grant clearance or not.

The Constitutional Court emphasised that the right of access to a court did not equate to a right to resolve in a court any question of importance to an individual. It further noted that even if the dispute in question was of a nature that in principle fell to be examined in the courts, the right of access to court could nevertheless be curtailed if curtailment served a legitimate aim and the means employed were reasonably proportionate to that aim. In that regard the Constitutional Court held that even though the Prosecutor General could not be considered to be “a court” for the purposes of the right of access to court, nothing in the Law on State Secrets prevented him from implementing certain procedural guarantees in the process of reviewing a refusal to issue security clearance. Furthermore, the court considered that the Prosecutor General had a duty to interpret the applicable provisions in the light of the Constitution and to implement such guarantees. Accordingly, the Constitutional Court considered that section 11(5) of the Law on State Secrets, which, in its opinion, was capable of being applied in a manner compatible with the Constitution, was not contrary to the Constitution. Two judges dissented, considering that in practice the audiatur et altera pars principle was not applied by the Prosecutor General and that in the absence of any procedural guarantees set down in the Law on State Secrets the Prosecutor General’s decision making was inherently arbitrary.


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

During the period from the end of September 2006 to the end of January 2007 identity checks of Georgian nationals residing in Russia were carried out in the streets, markets and other workplaces and at their homes. Many were subsequently arrested and taken to police stations. After a period of custody in police stations, they were grouped together and taken by bus to a court, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, after sometimes undergoing a medical visit and a blood test, they were taken to detention centres for foreigners where they were detained for varying periods of time, taken by bus to airports in Moscow, and expelled to Georgia by aeroplane. (for further details as to the background of the case see Georgia v. Russia (I) [GC], no. 13255/07, § 45, ECHR 2014).

The applicant was born in 1959 in Senaki (Georgia) and married to Mr Tengiz Togonidze, a Georgian national born in 1958. Together they had lived in St Petersburg since 2004. In April 2006 Mr Togonidze had started suffering from coughing fits, shortness of breath and thickening of the aorta walls.

In May 2006 the applicant returned to Georgia because her visa had expired. Mr Togonidze, whose visa had expired on 9 February 2005 and whose registration was no longer valid either, stayed in St Petersburg.

At about 8.50 p.m. on 3 October 2006 Mr Togonidze was arrested by police officers in St Petersburg and placed in detention.

At about 3.30 p.m. on 4 October 2006 the Nevskiy District Court of St Petersburg ordered Mr Togonidze to be expelled from the Russian Federation and detained at the St Petersburg special detention centre for aliens pending his administrative expulsion on the ground that he had infringed the residence rules governing foreign nationals, namely Article 18.8 of the Code of Administrative Offences. The court also fined the applicant in the amount of RUB 1,500.

Mr Togonidze was subsequently brought to the reception centre for foreigners of the Main Internal Affairs Directorate for St Petersburg and Leningrad Region. Upon his arrival he was examined by a medical officer, who found that Mr Togonidze did not show any health problems preventing him from being placed in the reception centre. Mr Togonidze informed the medical staff that he suffered from asthma attacks and was subsequently placed together with another Georgian detainee who suffered from asthma in a cell measuring between 35 and 40 m2 with 25 to 30 other Georgian nationals.

The sanitary conditions of the cell were very poor, as the toilets were only separated from the rest of the cell by a partition measuring 1.1 m at one side, and there was a lack of fresh air. In addition, while Mr Togonidze was provided with possibilities to take walks, he was not permitted outdoor activities.

On 13 October 2006 Mr Togonidze was suffering from nausea and a headache and asked for medical assistance. Subsequently a medical officer checked his blood pressure and temperature, which was slightly raised. He was given paracetamol. A re-examination the same day showed that his temperature was back to normal.

On 14 October 2006 Mr Pataridze, Consul of Georgia in the Russian Federation at the material time, visited the detention centre. When he saw Mr Togonidze, who was having difficulties breathing and whose face had turned black, he had requested that Mr Togonidze be immediately transferred to a hospital but that request was not complied with.

On 16 October 2006 Mr Togonidze, together with 24 other Georgian nationals, was placed in a bus to Domodedovo Airport in Moscow with a view to his expulsion by aeroplane to Georgia. Prior to entering the bus the detainees and their belongings were searched. In addition the detainees were accompanied by 20 officers of the special police force of the Main Internal Affairs Directorate (OMON) on the bus and two further police cars escorted the bus on the way to the airport.

The conditions of transport in the bus were very difficult, with no air conditioning, and although the journey lasted between eight and nine hours, the officers who had been accompanying the detainees had not allowed them to open the windows. On the way to the airport the bus stopped five times to let people, allegedly for a bribe, use the toilet and purchase food. Exiting the bus was closely monitored by the accompanying police officers.

On 17 October 2006 between 7 and 8 a.m. the bus arrived at the airport and around 8.30 a.m. Mr Togonidze, whose health had deteriorated during the bus ride, was allowed to leave the bus upon the request of Mr Pataridze, who was awaiting the Georgian nationals at the airport.

Mr Pataridze indicated that when Mr Togonidze had got off the bus he had seen that he was very ill and was “suffocating like a fish out of water” and begging to be allowed to breathe fresh air.

On the way to the terminal Mr Togonidze collapsed after walking a few steps and died. A called ambulance was unable to resuscitate him and he was declared dead at 10.20 a.m.

On 18 October 2006 the Bureau of Forensic Medical Examination of the Moscow Health Department conducted an autopsy of Mr Togonidze’s corpse and indicated that his death was caused by tuberculosis. In addition blood and urine samples were taken and sent for forensic chemical examination.

On 19 October 2006 the Moscow Regional Prosecutor’s Office decided not to initiate criminal proceedings, as the competent prosecutor found that Mr Togonidze had died of a natural cause.

During the forensic chemical examination of the taken blood and urine samples methadone was detected in both samples. In regard to the urine sample a high-performance liquid chromatography (HLPC) was applied, which established 0,11 mg% methadone and 0,69 mg% methadone metabolite in Mr Togonidze’s urine. A closer inspection of Mr Togonidze’s blood was not conducted and the exact level of methadone in his blood was not established. Based on these findings the Bureau of Forensic Medical Examination of the Moscow Health Department finally concluded that Mr Togonidze had died of methadone poisoning.

On 8 November 2006 the decision not to initiate criminal proceedings of 19 October 2006 was quashed and the case file was forwarded for additional examination.

On 9 November 2006 the Moscow Regional Prosecutor’s Office decided again not to initiate criminal proceedings. This time finding that, owing to detecting methadone in the urine and blood of Mr Togonidze (see paragraph 26 above) and finding three injection marks on his corpse, there was evidence for repeated use of narcotics for a long period of time. Therefore the prosecutor concluded that Mr Togonidze took the methadone voluntarily and that his death was caused by negligent poisoning with methadone.

On 14 December 2006 the General Prosecutor’s Office of the Russian Federation proposed that the decision of 9 November 2006 would be quashed and further investigations would be conducted. It held that thus far the deterioration of Mr Togonidze’s health during the bus ride had not sufficiently been examined and that relevant officials had not been interviewed.

On 15 December 2006 the Federal Migration Service challenged the allegation that Mr Togonidze had died of methadone poisoning, saying that he had died of tuberculosis.

On 20 December 2006 a criminal investigation was initiated against an unknown person for selling methadone to Mr Togonidze at an unknown date and unknown location.

On 30 July 2007 the decision to dismiss criminal proceedings was quashed and the case was forwarded for additional examination. In particular it was held that the dismissal was premature and that it should be established whether any narcotics were found on Mr Togonidze, the amount of methadone taken by him, whether such a dose could be lethal, why Mr Togonidze’s health deteriorated during the bus ride and whether he received adequate health care during his detention and transfer to the airport.

On 8 August 2007 the criminal proceedings were dismissed and on 9 August 2007 the dismissal was quashed again, as the instructions of 30 July 2007 had not been fulfilled.

On 14 August 2007 the criminal proceedings were dismissed again and the dismissal was quashed on 11 December 2007.

On 20 December 2007 criminal proceedings were finally dismissed. A subsequent request to quash the dismissal was denied on 14 February 2008 and confirmed on 1 September 2010.

Based on the documents provided by the Government, and in particular on the autopsy report and the report of the forensic chemical examination, the applicant submitted her own medical report regarding her husband’s death. The report was compiled by a forensic pathologist, Dr John Clark – a former lecturer at different universities in the United Kingdom and chief pathologist for the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) – supported by a forensic toxicologist, Dr Hilary Hamnett.

The experts pointed out that the Russian authorities gave the cause of death as methadone intoxication based on the fact that methadone was detected in the blood and urine of Mr Togonidze and that he had three injection marks on his body. They also emphasised that the authorities concluded from these facts that Mr Togonidze had repeatedly used narcotics for a long period of time. As regards the needle punctures they pointed out that the injection mark at the bend of the left elbow stemmed most probably from the resuscitation attempts at the airport, in which intravenous drugs were given, and that the other two marks, on the lower third of the left shoulder, appear as a very unusual site for self-injection of drugs. They further indicated that methadone is usually taken in liquid form and only very uncommonly by injection. In addition, according to their opinion, the last few hours of Mr Togonidze’s life did not coincide with the ‘normal’ death of a person dying from methadone intoxication. Being a sedative, people dying from methadone intoxication typically do so after a period of unconsciousness. Mr Togonidze, however, did not show any signs of drowsiness and was able to talk to the Georgian consul and walk a few steps before suddenly collapsing. Lastly they pointed out that the conclusion of repeated drug use was not confirmed by an analysis of a hair sample or finding any supporting evidence, such as needles, ampoules or syringes, on Mr Togonidze’s corpse or in his cell.

As regards the forensic chemical examination the experts indicated that the applied analyses appear not to have been carried out according to international recommendations and that the level of methadone was only measured in the urine and not in the blood. In their opinion it is unacceptable to conclude intoxication on urine levels alone, as drugs accumulate in the bladder over time and only blood levels can give an indication of a likely intoxication or incapacitation.

In sum the forensic pathologist concluded that there was no scientific justification for giving methadone intoxication as the cause of death. He himself would have given the cause of death as suppurative bronchopneumonia due to chronic obstructive airways disease. He further indicated that, given Mr Togonidze’s chronic lung disease, he was more likely to develop a chest infection and to progress his pneumonia in a crowded, airless space. The deterioration of his health, however, would have been noticeable, as he would have been unwell and showed signs such as wheezing and coughing. A timely hospitalisation and antibiotic treatment would have been the correct course of action.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in 1954 and lives in St Petersburg.

She had a garage and a small storage building (‘the construction’) in Yerevan measuring 21 sq. m. in total, that she had apparently built without authorisation.

On 22 July 2005 the Mayor of Yerevan adopted a decision which, inter alia, recognised the applicant’s ownership of the construction and allocated the underlying plot of land to her with the right of lease.

On 26 August 2005 a lease agreement, valid until 22 July 2010, was concluded between the Mayor of Yerevan and the applicant.

On 5 September 2005, based on the Mayor’s decision of 22 July 2005, the applicant received an ownership certificate in respect of the construction.

It appears that on 19 June 2006 the Mayor of Yerevan adopted another decision, which annulled the decision of 22 July 2005 in its part concerning the recognition of the applicant’s ownership in respect of the construction.

On 20 July 2006 the Mayor of Yerevan lodged a claim against the applicant with the Kentron and Nork-Marash District Court of Yerevan seeking to invalidate her ownership certificate in respect of the construction and the lease, on the basis of the decision of 19 June 2006.

On 20 October 2006 the applicant issued a power of attorney whereby she authorised advocate G. to represent her in court. This power of attorney was then signed and sealed by G.

The first hearing before the District Court took place on 24 October 2006. The record of this hearing states, inter alia, the following:

“... [the applicant] has not appeared; advocate G. has appeared on her behalf stating that he represents the defendant and asked to be given time to study the case file and produced a power of attorney signed by the applicant but not certified by a notary.

The court decides to adjourn the examination of the case until 12 a.m. on 1 November 2006 in order for [the applicant] to submit a written reply and a proper power of attorney in compliance with the procedure established by the law.

On 1 November 2006 G. lodged a counter-claim on behalf of the applicant seeking to invalidate the Mayor’s decision of 19 June 2006 as taken in violation of the domestic law.

On the same day the Kentron and Nork-Marash District Court of Yerevan decided not to admit the counter-claim and to return it. The relevant parts of the District Court’s decision reads as follows:

“Having examined ... the presented power of attorney, the court finds that the counter-claim ... must be returned, taking into account that the power of attorney has been issued in violation of Article 41 § 1, 2 and 4 of the [the Code of Civil Procedure]. Pursuant to that Article, a representative’s powers must be stipulated in a power of attorney issued and drawn up in accordance with the law, the power of attorney issued by a citizen shall be certified by a competent official, while the powers of an advocate shall be certified in accordance with the law. In the present case, the power of attorney as submitted by advocate [G.] has been issued in violation of the legal requirements.

In accordance with ... Article 92 § 1 (2) of the Code of Civil Procedure ... the court decides to return the counter-claim lodged by [G.].

The decision to return the counter-claim can be appealed in cassation proceedings within three days from its receipt by the claimant.”

On the same day the District Court also examined the Mayor’s claim and decided to grant it. The relevant parts of its judgment read as follows:

“...The defendant [the applicant] was duly notified about the date and the place of the court hearing but has failed to appear before the court while the court has not accepted the power of the advocate who has appeared on her behalf as her representative, on the ground that the power of attorney was not duly certified.

Taking into account that the ground [the Mayor’s decision of 22 July 2005], based on which the lease agreement was concluded and the title registered, no longer exists, the court finds that ... the agreement on lease of land concluded between [the applicant] and the Yerevan Municipality should be terminated and her certificate of ownership/use [and] the right of lease of immovable property be annulled.”

On 8 November 2006 the District Court sent a copy of its judgment to the applicant by post. It appears from the postal envelope that the copy of the judgment was delivered to the applicant’s local post office on 18 November 2006 and was received by the applicant on 20 November 2006.

On 15 November 2006 advocate G. lodged an appeal on points of law with the Court of Cassation against the District Court’s decision not to admit the counter-claim. He claimed that the provisions of the civil legislation did not require that a power of attorney issued to an advocate be certified by a notary. He also added that the imposition of such a requirement restricted the right of access to court since the notary, as a public official, interfered with the relationship between advocate and client and made the possibility to institute court proceedings conditional on his prior approval.

On 28 November 2006 G. lodged an appeal with the Civil Court of Appeal against the District Court’s judgment of 1 November 2006 on behalf of the applicant, together with a request to restore the missed time-limit for appeal, alleging that a copy of the judgment had been served upon the applicant outside the time-limit for lodging an appeal against it.

On 1 December 2006 the Court of Cassation declared G.’s appeal against the decision refusing the admission of the counter-claim inadmissible for lack of merit. The relevant parts of this decision state the following:

“The Civil Chamber of the Court of Cassation ... having examined the appeal on points of law against the decision of 1 November 2006 ...lodged by [the applicant’s] representative [G.] ... found that it should be returned for the following reasons:

According to Article 230 § 1 (4.1) of the Code of Civil Procedure of the Republic of Armenia, an appeal on points of law should contain one of the grounds stated in Article 231.2 § 1 of the Code of Civil Procedure.

... the present appeal on points of law only mentions the elements of points 1 and 3 of Article 231.2 § 1; however the appellant has not submitted proper and sufficient arguments in relation to them; therefore the requirements of Article 230 § 1 (4.1) of the ... Code of Civil Procedure have not been met.

In such circumstances, the violations of the above-mentioned requirements serve as a basis for returning the appeal on points of law.

In view of the above reasoning ... the Court of Cassation decides to return the appeal on points of law against the decision of ... of 1 November 2006 lodged by [the applicant’s] representative [G.]...”

On 19 January 2007 the Court of Appeal rejected the request to restore the missed time-limits for lodging an appeal and left the appeal against the judgment of 1 November 2006 unexamined stating the following:

“Having examined the appeal lodged by [G.], the representative of the defendant in the present case, and the request seeking to restore the missed time-limit, [the Court of Appeal] found out that on 28 November 2006 an appeal was lodged against the judgment ... of 1 November 2006 by ... [the applicant’s] representative G., who had failed to respect the fifteen-day time-limit prescribed by the law.

The appellant has requested ... to restore the missed time-limit for lodging an appeal in view of the fact that the District Court served the copy of the given judgment on the defendant belatedly.

The court finds that the request should be rejected and the appeal dismissed since the appellant has failed to submit any documentary proof which would substantiate this allegation; moreover, ... the case file contains a postal receipt ... according to which a copy of the above judgment was sent to [the applicant] on 8 November 2006 with registered mail in accordance with the procedure and within the time-limits prescribed by ... the Code of Civil Procedure.

On 26 January 2007 G. lodged an appeal on points of law against this decision with the Court of Cassation, on behalf of the applicant. He argued, in particular, that there was no evidence in the case file, such as an acknowledgement of receipt, which would substantiate that the defendant had received the copy of the judgment in a timely manner. In such circumstances, where it was the courts’ duty to serve their decisions in due time, the Court of Appeal should not have placed the responsibility of producing proof of belated receipt of the judgment on the party to the proceedings.

On 15 February 2007 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. In doing so, it stated, in particular, that:

“The Civil Chamber of the Court of Cassation ... having examined the appeal on points of law lodged by [G.] against the decision of the Civil Court of Appeal of 19 January 2007 to return [the applicant’s] appeal, found that it should be returned for the following reasons...

The Court of Cassation finds that the admissibility criteria set out in Article 231.2 § 1 of the Code of Civil Procedure are absent in the appeal on points of law lodged in the present case. Besides, the person who has lodged the appeal has failed to submit a power of attorney drafted in compliance with the civil legislation ...

At the same time, the Court of Cassation does not find it appropriate to provide a time-limit to rectify the errors and resubmit the appeal on points of law.

... the Court of Cassation decides to return the appeal on points of law lodged by [G.] against the decision of the Civil Court of Appeal of 19 January 2007 to return [the applicant’s] appeal...”


CASE OF HAJIBEYLI AND ALIYEV v. AZERBAIJAN

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicants were born in 1955 and 1962, respectively, and live in Baku and Absheron, respectively.

The applicants are well-known civil society activists and lawyers specialising in the field of the protection of human rights. The second applicant has represented applicants in more than one hundred cases before the Court.

At the time of the events in question the applicants were practising as lawyers on the basis of a special permit (licence) – issued by the Ministry of Justice (see paragraph 33 below) – to provide paid legal services. They regularly made various statements and published articles in the media, criticising the state of the legal profession in the country.

On 28 December 1999 a new Law on Advocates and Advocacy Activity (“the Law”) was adopted within the framework of a reform of the legal profession in the country. Under the Law, activity of legal counsel is to be provided by persons admitted to the ABA, and the defence of suspected and accused persons in criminal proceedings falls under the exclusive domain of the legal profession (see paragraph 34 below). Article I of its transitional provisions, as in force at the material time, also provided that persons who on the date of the entry into force of the transitional provisions of the Law were members of the already existing Bar Association or who had a special permit to provide paid legal services had the right to be founding members of the ABA, without having to pass a qualification examination, subject to their complying with the requirements in respect of candidates for admission to practice as legal counsel (see paragraph 35 below).

In November 2004 the constituent assembly of the ABA was held on the basis of the provisions of the Law, with the participation of members of the former Bar Association and lawyers holding a special permit. These participants were registered as founders of the ABA and they became its members. However, some lawyers practising on the basis of a special permit, including the applicants, were not invited to participate in the constituent assembly and their right to be founders of the ABA was not recognised. The applicants signed a petition alleging that holding the ABA’s constituent assembly under these conditions had been illegal and instituted court proceedings in this respect.

In the meantime, on 14 June 2005 new amendments to the transitional provisions of the Law were adopted providing for admission to the ABA of all lawyers holding a special permit, including those whose right to be founding members of the ABA had not been recognised, without passing a qualification examination, subject to their complying with the requirements in respect of candidates for admission to practice as legal counsel (see paragraph 36 below).

On an unspecified date in 2005 the first applicant applied for admission to the ABA on the basis of the amendments of 14 June 2005 to the transitional provisions of the Law.

On 27 January 2006 the Presidium of the ABA (Azərbaycan Respublikası Vəkillər Kollegiyası Rəyasət Heyəti – hereinafter “the Presidium”) held a meeting at which it examined and then dismissed his application. It appears from a document entitled “Extract from the record of meeting no. 2 dated 27 January 2006 of the Presidium” and annex no. 1 to that document – signed by the head of the administration of the ABA, Z.A. – that the President of the ABA (A.T.) declared the meeting open and then the members of the Presidium questioned the first applicant about his stance on the functioning of the ABA, before dismissing his application. The transcript of the meeting, which was one page long, reads as follows:

“After giving the information about Annagi Hajibeyli [the first applicant] to the members of the Presidium, A.T. gives the floor to them for questions.

I.S.: Mr Hajibeyli, you are one of the lawyers who brought an action in court asking for the invalidation of the constituent assembly of the ABA. What could you say about that?

[The first applicant]: I suppose that the members of the Presidium are familiar with my opinion. I still maintain that the constituent assembly of the ABA was held in blatant breach of the requirements of the law. Moreover, numerous persons, who were entitled to be co-founders of the ABA, were unlawfully not allowed to attend the constituent assembly.

A.T.: Mr Hajibeyli, your opinion is clear. Please wait outside. We want to discuss the question.

Member of the Presidium [...]: One minute. I have a question.

[The first applicant]: Please.

Member of the Presidium: It follows that you consider this organ illegal. But why do you want to become a member of it?

[The first applicant]: Irrespective of my stance on the constituent assembly of the ABA, the latter’s creation and functioning is a fact. Unfortunately, Azerbaijani law allows for the creation of only one bar association. I want to practise as a legal counsel. That is why I applied for admission to this bar association.

A.T.: Everything is clear. Please wait for the issuance of the decision.

One minute later the decision of the Presidium of the ABA rejecting Annagi Hajibeyli’s application for admission to that organ was declared.”

On an unspecified date in 2005 the second applicant applied for admission to the ABA, relying on the amendments to the Law of 14 June 2005.

On 19 November 2005 the Presidium held a meeting at which it examined his application but decided to dismiss it. It appears from the document entitled “Extract from the record of meeting no. 27 dated 19 November 2005 of the Presidium” (as well as annex no. 1 thereto) – signed by the head of the administration of the ABA, Z.A. – that A.T. declared the meeting open and then the members of the Presidium questioned the second applicant about his stance on the functioning of the ABA, before dismissing his application. The relevant parts of the transcript of the meeting, which is three pages long, read as follows:

“After giving the information about Intigam Aliyev [the second applicant] to the members of the Presidium, A.T. gives the floor to them for questions.

I.S.: Mr Aliyev, you brought an action in court against the ABA. Are you going to withdraw your action after your admission to the ABA?

[The second applicant]: I don’t know other people’s opinion, but personally I have no intention of withdrawing my actions against the ABA and the Ministry of Justice. Unfortunately, these actions remain unexamined by the courts because of pressure brought by the previously-mentioned organs. ...

I.K.: You state in your writing in the media that one of the main reasons for the current catastrophic situation of the courts in Azerbaijan is the [poor state of] legal profession. We would like to know your opinion in this respect.

[The second applicant]: I am still of the same opinion. I consider that one of the main reasons for the current catastrophic situation of the law and human rights in Azerbaijan is the absence of independent judicial power and legal profession in the country. ...

A.A.: I have a great respect for Mr Aliyev as a person and lawyer. However, he published articles insulting the members of the ABA in the media and in Law Newspaper.

[The second applicant]: Whom have I insulted?

A.A.: You have insulted the ABA in your writings. You write that advocates are acting as intermediaries (vasitəçiliklə məşğuldurlar).

A.T.: The fact that you have stated that you will maintain your court actions against the ABA indicates that you don’t recognise the lawfulness of the ABA.

[The second applicant]: Firstly, my colleagues and I did not question before the courts the lawfulness of the ABA, but rather sought the invalidation of its constituent assembly, which was held in blatant breach of the requirements of the law. ...

A.T.: You want to become a member of the ABA, but you bring an action against it?

[The second applicant]: What does that mean? Is it forbidden to bring an action against the ABA? In your law, the right of legal counsels to bring an action against the ABA is provided for.

A.T.: You are not yet a legal counsel.

[The second applicant]: I have practised as a legal counsel for fifteen years and the State gave me a permit. In any event, what difference does being a legal counsel make? You are a legal counsel; how can you speak like that? Everybody has the right to bring an action against any organ, including the ABA.

A.T.: I consider that the Presidium should give its opinion by vote.

I.K.: It is not allowed to admit Intigam Aliyev to the ABA because of the stance that he has held about the current ABA.

[The second applicant]: I will not be surprised if you refuse my admission to the ABA on account of my critical views about the functioning of the ABA and its directorate, although such a decision will be shameful. ...

A.T.: Please, those who are in favour of the issuance of a decision refusing Intigam Aliyev’s admission to the ABA should vote.

By a unanimous decision of the members of the Presidium of the ABA the admission of Intigam Aliyev to the ABA is refused.”

On 21 February 2006 the first applicant brought an action in the Nasimi District Court alleging that the Presidium’s decision of 27 January 2006 had been unlawful. In particular, he argued that the Presidium had failed to substantiate its decision and had breached the transitional provisions of the Law. He further alleged the violation of his rights, as protected under Articles 10, 11 and 14 of the Convention, as a result of the refusal to admit him to the ABA.

Following a series of procedural decisions concerning the admissibility of the action, at the beginning of 2007 the Nasimi District Court commenced examining the case on the merits. It appears from the transcript of the Nasimi District Court’s hearing held on 7 February 2007, which was submitted to the Court by the first applicant, that the representative of the ABA at the hearing, I.K., stated, in reply to the first applicant’s question concerning the grounds for the Presidium’s decision of 27 January 2006, that the first applicant’s replies to the questions and his previous statements had justified the decision of the Presidium’s members.

On 9 February 2007 the Nasimi District Court delivered its judgment on the merits. The court held that the first applicant’s complaint should be dismissed because admission to the ABA was a matter which fell within the exclusive competence of the members of the Presidium and there had been no breach of law in the examination of the first applicant’s request by the Presidium. The relevant part of the judgment reads as follows:

“It was established in the course of the court investigation that, while he disputed the decision of the Presidium, A. Hajibeyli [the first applicant] did not challenge the legality of that decision, but rather its motives. It follows that the issue argued by A. Hajibeyli in his application falls within the exclusive competence of the members of the Presidium and is related to their personal consideration and will.

Article 1 (III) of the Law on Advocates and Advocacy Activity of the Republic of Azerbaijan provides that the prohibition of any interference with or pressure on the professional activity of legal counsels and their [professional] association by the prosecutor’s office, court, other State bodies, public associations, [or] any company, entity, organisation or official constitutes the basis of the legal profession.

Therefore, given that the issue addressed by A. Hajibeyli in his application falls within the exclusive competence of the members of the Presidium and is subject to their consideration and will, any interference with that issue is not allowed by law.”

On 16 March 2007 the first applicant appealed against that judgment, alleging a violation of his rights, as protected under Articles 6, 10, 11 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. In particular, he alleged that he had not been admitted to the ABA because of his statements about the functioning of the ABA and the poor state of the legal profession in the country. In support of his claim, the first applicant relied on the “Extract from the record of meeting no. 2 dated 27 January 2006 of the Presidium” (see paragraph 12 above) and the annex to that document. He also referred to the statements made by the representative of the ABA at the court hearings held before the Nasimi District Court, quoting the transcript of the above-mentioned court hearings. The first applicant further argued that the Presidium’s decision of 27 January 2006 had been unlawful, as it had been contrary to the transitional provisions of the Law. In that regard, he pointed out that his candidacy for admission to practice as a legal counsel had met all the requirements for candidates for admission, as provided for by Article 8 of the Law.

On 6 June 2007 the Court of Appeal dismissed the appeal and upheld the first-instance court’s judgment. The appellate court was silent as to the first applicant’s particular complaints relating to the breach of his right to freedom of expression. It further appears from the transcript of the Court of Appeal’s hearing held on 6 June 2007, which was submitted to the Court by the first applicant, that the representative of the ABA, I.K., again stated at the hearing that the members of the Presidium had considered that the first applicant should not be admitted to the ABA because of his stance on the functioning of the ABA. His statement reads as follows:

“I.K.: You [the first applicant] have the transcript (stenoqram). After the examination of your documents, you were questioned by the Presidium, which then unanimously decided that A. Hajibeyli [the first applicant] should not be admitted [to practice as a legal counsel] because of his stance [on the functioning of the ABA]. I consider that the vote should be against [your admittance].”

On 14 August 2007 the first applicant lodged a cassation appeal, reiterating his previous complaints. In support of his claims, he again referred to the extract from the record of meeting no. 2 dated 27 January 2006 of the Presidium and the annex thereto, as well as the transcripts of the court hearings held before the Nasimi District Court and the Court of Appeal.

On 13 November 2007 the Supreme Court dismissed the cassation appeal and upheld the Court of Appeal’s judgment of 6 June 2007. The Supreme Court’s decision made no mention of the first applicant’s particular complaints.

On 2 December 2005 the second applicant brought an action in the Nasimi District Court, alleging that the Presidium’s decision dated 19 November 2005 had been unlawful. In particular, he alleged a violation of his rights, as protected under Articles 6, 10, 11 and 14 of the Convention.

Following a series of procedural decisions concerning the admissibility of the action, at the beginning of 2007 the Nasimi District Court commenced its examination of the action on the merits. It appears from the documents in the case file that in the course of the proceedings before the first-instance court the second applicant and the ABA lodged various requests and applications, which were dismissed by the court. The ABA also lodged a counterclaim against the second applicant for defamation.

On 11 August 2009 the Nasimi District Court delivered its judgment on the merits, dismissing both the claims of the second applicant and those of the ABA. As to the reasoning of the judgment concerning the second applicant’s action regarding his admission to the ABA, it was similar to that of the Nasimi District Court dated 9 February 2007 (see paragraph 17 above).

On 10 September 2009 the second applicant appealed against that judgment, alleging a violation of his rights, as protected under Articles 6, 10, 11, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. In particular, he pointed out that he had not been admitted to the ABA because of his statements and articles about the poor state of the legal profession in the country. In support of his appeal, the second applicant relied on the document entitled “Extract from the record of meeting no. 27 dated 19 November 2005 of the Presidium” (see paragraph 14 above) and the annex thereto. He further argued that the Presidium’s decision of 19 November 2005 had been contrary to the transitional provisions of the Law.

On 2 November 2009 the Baku Court of Appeal dismissed the appeal, finding that the judgment of the first-instance court had been lawful. The appellate court was silent as to the second applicant’s particular complaints concerning the violation of his right to freedom of expression.

On an unspecified date the second applicant lodged a cassation appeal, reiterating his previous complaints.

On 18 June 2010 the Supreme Court upheld the Baku Court of Appeal’s judgment of 2 November 2009.

On 8 August 2014 criminal proceedings were instituted against the second applicant, Mr I. Aliyev, under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code, which are the subject of a separate application brought by him before the Court (application no. 68762/14). At that time the second applicant was representing not only the applicants in the present case, but also a number of applicants in other cases before the Court.

On 8 and 9 August 2014 the investigating authorities seized a large number of documents from the second applicant’s office, including all the case files relating to the proceedings pending before the Court, which were in his possession and which concerned over 100 applications in total. The files relating to the present two applications were also seized in their entirety. The facts relating to the seizure and the relevant proceedings are described in more detail in a judgment relating to an application lodged by the first applicant (see Annagi Hajibeyli v. Azerbaijan, no. 2204/11, §§ 2128, 22 October 2015).

On 25 October 2014 the investigating authorities returned a number of the case files concerning the applications lodged before the Court, including the files relating to the present applications, to the second applicant’s lawyer.