"The goal is to reduce considerably the number of complaints to the European Court from Azerbaijan"

After the European Court of Human Rights (ECHR) rejected in May of this year a complaint about the violation of the rights of human rights defender Ogtay Gulalyev, the concern of members of civil society questioning the decisions of the European Court of Human Rights issued recently against Azerbaijan has increased even more.

Earlier complaints about non-enforcement of decisions of the European Court prevailed in Azerbaijan, recently many of the applicants are dissatisfied with the decisions they have made. Scanty compensation, rejection of complaints and other similar issues cause discontent among those who apply to the European Court. Members of civil society are skeptical about the recent Court decisions on the sidelines and doubt their fairness.

Representatives of civil society have not forgotten how PACE deputies were tamed by Azerbaijan with the help of "caviar diplomacy", and now they do not exclude the possibility of the government somehow influencing the judges of the European Court.

To clarify all these issues, ASTNA appealed to lawyer Yalchyn Imanov.

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Question: The European Court of Human Rights (ECHR) has declared inadmissible the complaint about the violation of the rights of human rights defender Ogtay Gulalyev. What is the reason? Why did the European Court of Justice make such a decision? Is this decision fair?

Answer: To make the topic clearer, before proceeding directly to the answer to the question, I will remind you some points related to the activities of Ogtay  Gulalyev. At the end of October 2019, a well-known human rights activist was hit by a car on one of the central streets of Baku. Immediately after the accident, the driver took Gulalyev to the Clinical Medical Center No. 1. Then, examinations and treatment continued at the City Hospital, the Republican Neurosurgical Hospital, and then at the clinics of the Republic of Turkey in Istanbul. But all this has not brought any results,  and since then the human rights defender has been  in the state of waking coma of the 1st degree.

After a traffic accident, a lawsuit  was filed in the investigation department of the Nasimi District Police Department on charges of violating traffic rules and operating vehicles that caused serious harm to health by negligence (Article 263.1-1 of the Criminal Code of the Republic of Azerbaijan). According to the verdict of the Nasimi District Court of January 25, 2021, the taxi driver who hit the human rights defender was found guilty under the specified Article of the Criminal Code and sentenced to 2 years and 3 months in prison. However, the materials postponed clarifying the negligence of doctors in relation to Oktay Gulalyev in medical institutions during medical examinations and treatment, as well as other procedures, were sent to the Nasimi district Prosecutor's office only on October 16, 2020. It happened after a long struggle of lawyers, close friends, and family members of Gulalyev.

The decision to refuse to initiate a criminal case was taken by the investigators of this prosecutor's office three times. All three decisions were made and justified by one legal basis - the absence of corpus delicti in the act, in accordance with article 39.1.2 of the Criminal Procedure Code of the Republic of Azerbaijan. After numerous appeals from relatives and the human rights defender's lawyer, on January 21, 2021, the first Deputy Prosecutor General of the Republic of Azerbaijan Elchin Mammadov canceled the first decision of December 29, 2020 and instructed the Nasimi district Prosecutor's Office to conduct an additional investigation. The new decision to refuse to initiate criminal proceedings of April 1, 2021 was recognized by the decision of the Nasimi District Court of April 13, 2022 as illegal, canceled, it was decided to continue the investigation of the case. However, on June 3, 2022, the initiation of the criminal case of the same content  was rejected. The complaint against this decision, filed with the Nasimi District Court in the order of judicial supervision, was not satisfied with the decision of this court dated September 29, 2022. By the decision of November 16, 2022,  the Baku Court of Appeal did not satisfy the appeal, and  left unchaged the decision of the Nasimi District Court of September 29, 2022. vAfter that, the human rights defender's complaint covering the violation of a number of articles of the European Convention on Human Rights was sent to the European Court of Human Rights. However, by the decision of this Court, consisting of one judge Mârtiŋŝ Mits dated April 13, 2023, the appeal was declared inadmissible.

The decision simply noted that the issues under appeal did not reveal any manifestations of violation of the rights and freedoms enshrined in the Convention or its Protocols. The decision noted that, in accordance with paragraph 3 (a) of  the Article 35 of the Convention, the complaint was manifestly unfounded. This Article of the Convention provides that a complaint is inadmissible in 3 cases. When the complaint does not comply with the provisions of the Convention or its Protocols (1), is manifestly unfounded (2) or is an abuse of the right of personal treatment (3). But in the decision of Mârtiŋŝ Mits it is impossible to see which of the specific cases Gulalyev's complaint relates to and which arguments confirm and justify the criterion of this unacceptability. However, the admissibility of this complaint was not in doubt, and violations of the Convention were clearly reflected and substantiated in the complaint. Even if we assume that the representations contained in the complaint related to a substantive (substantive) violation of the right to life could cause doubt in an overly critical mind, the existence of a procedural violation of the right to life was indisputable. Because the prosecutor's office did not conduct an effective and adequate investigation of the circumstances of the medical actions, as a result of which Ogtay fell into a coma. First of all, I would like to state once again that the beginning of the investigation against the human rights defender in connection with checking the presence of medical negligence in medical institutions during medical examinations and treatment, as well as other procedures, by the prosecutor's office was not voluntary, but occurred after numerous attempts by the legal representative and lawyer of the victim. As already mentioned, according to this material, the investigators of the Nasimi district prosecutor's office, the decision to refuse to initiate a criminal case was taken three times. In many cases, the decisions on the merits, repeating each other verbatim, referred to the testimony of persons questioned during the investigation of a criminal case initiated upon a car hitting a human rights defender. The expert opinions obtained during the investigation were of a template nature in terms of the content of the questions posed to the expert, and the materials submitted for the conclusion were limited to documents reflecting the domestic expertise and operation. Explanations of decision-makers in medical institutions during the investigation were not received at all. As an example of this, we can imagine the absence of explanations of the responsible persons of the Clinical Medical Center, in particular, City Hospital. During the first investigation, no explanations were taken from any of the hospital staff. During the second investigation, an explanation was received from only one hospital employee – intensive care specialist Togrul Adygezalov and that in connection with the explanation of Ogtay Gulalyev's wife, Firuza Gulalyeva. Togrul Adygezalov, on the other hand, was not included in the medical staff of the hospital that made decisions, his explanation did not bring any clarity to the abandonment of the human rights defender in the hospital without medical supervision, and the main essence of the questions and answers asked to him served only to refute what Firuza Gulalyeva said. The absence  of timely surgical operation led to an increase in the size of Ogtay's intracerebral hematoma from 3 mm to 80 mm. However, the investigation conducted by the Nasimi district Prosecutor's Office did not reveal the reasons why the operation was not carried out in a timely manner. The main reason for the delay of a possible surgical operation after the examination at the Clinical Medical Center was the desire of the relatives of the human rights defender to transfer him to another hospital, and the reason for the delay of the operation in the hospital was the lack of consent for the operation from his relatives. However, despite the fact that in the first case there was a reference to Firuza Gulalyeva's "explanatory", in which the refusal was expressed and the presence of evidence in the second case confirming this was not investigated. Prior to the refusal of examination and treatment in a Clinical Medical Center and transfer to another hospital, the human rights defender was not provided with any quality supervision and medical measures. Firuza Gulalyeva did not refuse to be examined and treated at City Hospital, on the contrary, several times she paid for expensive services to the medical staff of the hospital, demanded and insisted on conducting computed tomography (CT), connecting to an artificial respiration apparatus, etc. Also, no explanation was given for the reasons why the operation was carried out in the City Hospital by a surgeon of the Republican Neurosurgical Hospital, who arrived at the hospital only after the intervention of some official bodies, the need for a second CT scan after eight hours, a thorough investigation was not carried out in connection with the explanatory notes of the human rights defender's wife,- or a legal assessment of what she said, including other important medical evidence was not collected, no explanation was given for the important contradictions in the testimony of the representatives of the medical staff who conducted the examination and operation.

During the investigation, data on the examination and treatment of the human rights defender from November 6, 2019 to November 8, 2020 in the clinics of the Republic of Turkey "Avrasiya" and "Amerikan" were not provided for a long time. It was only during the last investigation that Gulalyev's medical documents were finally received from the Amerikan Hospital in Istanbul, where he underwent examination and treatment from November 20, 2019 to November 7, 2020, but an analysis of what the content of these documents was, what role the examination and surgery performed in Azerbaijan played in the current serious condition of the patient, was not carried out. The data obtained from the American Hospital were not presented to the expert for giving a conclusion, only the materials of the examination and treatment of the human rights defender in Azerbaijan were submitted for examination. It was impossible to conduct an objective, comprehensive and complete examination based on these materials.

Also, during the investigation, the receipt and analysis of medical documents on the human rights defender from the Eurasia clinic, where he was first hospitalized after delivery to Istanbul, examination and treatment on November 6-20, 2019, were not provided. As a result, the answers to all relevant questions on the assessment of the role and responsibility of medical personnel were not found, and the necessary factual data were not established to determine whether they were obliged to protect the life of Oktay.

The investigation conducted by the Nasimi district Prosecutor's office completely deprived the human rights defender of the opportunity to defend his legitimate interests, and also prevented the public from paying sufficient attention to the investigation of the case of a person known to society. The lawyers of O.Gulalyev's family were unable to get acquainted with and receive copies of the investigation materials, the decisions taken and the conclusions of the examinations conducted at different times, etc. As a result, they were unable to appeal these decisions in a timely manner, and also lost the opportunity to present other evidence to the prosecutor's office. And the appeal of the human rights defender's lawyer dated 16.01.2023, sent to the Nasimi district prosecutor's office in connection with familiarization with the investigation materials and copying of some documents, was not satisfied by the response letter of the Nasimi district prosecutor Hasan Ganifayev dated January 18, 2023. The refusal was justified as follows: "... the lawyer's familiarization with the material under study, the production of copies of documents contained in this material is not provided for by the criminal procedure legislation of the Republic of Azerbaijan." Interestingly, in a number of decisions of the European Court against Azerbaijan (Huseynova v. Azerbaijan (Application №10653/10, 13/07/2017); Tagieva v. Azerbaijan (Application № 72611/14, 07/10/2022), Shuriya Zeynalov v. Azerbaijan (Application № 69460/12, 10/12/2020), it was noted that the lack of access to the investigation materials by the victims, violation by the applicant of their legitimate it deprives him of the possibility of protection and prevents any verification of the investigation by the public. In these Court decisions, this case was recognized as a violation.

In one of the latest Court decisions of June 6, 2023 in connection with the case of poisoning of Russian oppositionist Alexei Navalny with an unknown substance (Statement No. 36418/20), a similar position is repeated, it is noted that the investigation conducted by local authorities was not open, the victim's right to participate in investigations was not taken into account and the violation was confirmed. It was in the legal context of such a precedent that Gulalyev's complaint was declared inadmissible by the decision of Mârtiŋŝ Mits of April 13, 2023.

Finally, at the end of such a lengthy answer, I want to state unequivocally that this decision does not meet any critical arguments and, of course, does not meet the criteria of fairness at all.

Question: Earlier complaints about non-enforcement of the decisions of the European Court prevailed in Azerbaijan, recently many of the applicants are dissatisfied with the decisions they have made. Scanty compensation, rejection of complaints and other similar issues cause dissatisfaction of those who apply to the European Court. What is the reason for this?

Answer: In recent years, it is impossible not to see the intensification of the curtsies of the European Court to the government of Azerbaijan. This is indicated both by decisions on the inadmissibility of complaints of obvious violations, sometimes in full and sometimes in part, and on the basis of the terms of friendly proposals for resolution submitted to the parties at the stage of peaceful settlement, the content of the decisions taken, etc. By the way, it is in no way possible to understand and accept the mass announcement of unacceptable, many years after registration, complaints about recently sent information requests from Azerbaijan.

In addition, there are many problems caused by a friendly agreement, which the Court gives great preference to at the stage of peaceful settlement of the dispute. Firstly, the settlement agreement does not include an obligation to recognize or effectively investigate the violation of the applicants' rights, which, as experience shows, allows the Government to avoid responsibility for violations of the fundamental rights contained in the Convention. The Government of Azerbaijan does not show any interest in the execution of court decisions on the recognition of violations of many fundamental rights, change, eradication of bad administrative and judicial practices existing in this area. On the other hand, the terms of the proposals for a settlement agreement do not give the impression of fair treatment of applicants. The government's failure to comply with a significant number of decisions taken in similar cases, which are often and massively repeated, pushed the court to sharply reduce the amount of compensation for moral damage in these cases. For example, with recent declarations of administrative arrests, applicants are offered a total of 1,000 euros for moral damages and 250 euros for legal assistance. And although the applicants do not accept this proposal, the court, on the basis of unilateral statements of the government, decides to exclude cases from the list, etc.

That is, in some cases, the process of non-conflict resolution takes on the character of determining the outcome of the case from the very beginning and acquires a formal character, rather than the search for peaceful solutions. In addition, the Government allows excessive abuse of unilateral statements or turns a blind eye to them. As for compensation, can the amounts in the above example be considered "fair compensation"?

For the sake of statistics, I would like to note that in 2022 the Court considered 320 applications against Azerbaijan, of which a significant part - 269 - were declared inadmissible or excluded from the list. However, someone may say that the number of such decisions regarding the countries neighboring us or sharing the former Soviet space is small. However, the scale of offenses directly stemming from the existence of an ugly political system in Azerbaijan is not comparable with neighboring or former Soviet countries. In this sense, the dissatisfaction or disappointment of the applicants and their lawyers is understandable.

Question: We have seen the practice of taming PACE deputies through "caviar diplomacy". Can the Azerbaijani government influence the European Court in any form? Or in what form, to secretly bribe judges?

Answer: The Azerbaijani authorities have very long hands, besides, they are very adept at building dubious friendly relations or extensive "mutually beneficial business relations". I do not presume to assert that in contacts with the European Court of Justice, the government repeats the infamous "PACE example". At least, I have no convincing evidence of this. But what I know for sure is that something is happening in Strasbourg with regard to Azerbaijan or countries that are very similar or less similar, which are out of sight, and even if there are no hidden reasons for this, it contradicts the supreme mission of the Court and has formed a high reputation for a long time.

Now I can only say for sure that I no longer have any financial or moral incentives to file complaints to Strasbourg, the lawyer's expenses have fallen to an amount that causes antipathy, and the amount of compensation assigned to applicants, as I have already said, too. It became illusory to send complaints to the European Court and hope to get at least some kind of fee from it. As they say, it's not worth the effort. The old days of sending complaints to Strasbourg with confidence and enthusiasm, as I see it, are behind us.

As if this is one of the main hidden intentions: to drastically reduce the number of complaints sent to the Court from Azerbaijan in this way. If this is the case, then we can say that it has been achieved.

Question: What can be done to dispel these doubts or, if these doubts are justified, to prove it? Who should start identifying this? Or how should the highest body of the European Court investigate these suspicions?

Answer: I don't have a prescription. Civil society in Azerbaijan was destroyed many years ago. And their absence, the absence of public campaigns periodically conducted by them, is more acutely felt in the emergence of such important and serious problems. Lawyers working with the European Court of Justice can be counted on the fingers. It was the same before, but now the situation has become even more critical. The thinking part of society is rapidly being marginalized, and there are many deep, real reasons for this. The goals of collective and group petitions look unattainable and imperfectly rational.

It seems that until more serious results of the problems appear, most of her current ones in favor will not really bother the majority.

Question: What do you suggest? What steps should be taken to restore confidence in the European Court of Justice?

Answer: It seems to me that now is the time of loss, not restoration of trust. In other words, the European Court is rapidly losing its address of the last island of hope, and this process is likely to continue. Another factor that makes this situation even uglier is that the state of the local judicial system is also steadily deteriorating. If earlier the name of the European Court was associated with the fact that the complaint sent to it will be considered and the decision will be made only after many years, now there are additional and more pressing problems that make you think deeper. It is very difficult to say what is happening, what it comes from. Apparently, it is necessary to conduct a long in-depth analysis based on accurate statistical data, to study what scale and geography this process covers. There is no doubt about only one thing - those who claim to be exceptional (this is not just a property of individuals) should demonstrate and confirm this practically and consistently in everyday life. That is, social responsibility and the weight of the one who claims an alternative value are more significant from this point of view. Simply put, they hold a grudge against the one they pin their hope on. The fact that there is hope suggests that the one they hold a grudge against has not completely lost its value yet. The real trouble will come when this is also lost. The "restoration of trust", as you say, in the European Court or not to let faith die, depends primarily on this very Court, that is, how much it bothers them from the point of view of discourse.