Decisions of the European Court of Human Rights are also ignored in Azerbaijan
Analysis of violation of law during Ali Kerimli’s judicial proceedings
Baku Administrative Court
20 February 2020
Presiding judge: Elvin Aliyev
Plaintiff: Ali Kerimli
The plaintiff’s representative and attorney: Fakhraddin Mehdiyev
Defendants: the Ministry of Internal Affairs of the Azerbaijan Republic, the Department of Passport Registration and Migration of the Ministry of Internal Affairs of the Azerbaijan Republic
The representative of both parties- defendants and their lawyer: Alirza Habilov
Third party: Chingiz Askarov, Plenipotentiary of the Azerbaijan Republic to the European Court of Human Rights
On 5 September 2006, the leader of the Popular Front of Azerbaijan (PFA), Ali Kerimli, applied to the Baku Nasimi District Court with a lawsuit against the Passport Registration and Migration Department of the Ministry of Internal Affairs of Azerbaijan with a request to oblige the Department to issue him a civil passport (passport for traveling abroad). On 2 November 2006, the Baku Nasimi District Court rendered a decision refusing to satisfy the claims of Ali Kerimli. Having disagreed with that decision, A. Kerimli filed an appeal. The appeal was reviewed by the Baku Court of Appeal. On 14 March 2007, the Baku Court of Appeal issued a decision to deny the appeal and leave the decision of the first instance court from 2 November 2006, unchanged. The decision of the Court of Appeal was also appealed by the complainant to the Supreme Court of Azerbaijan by submitting a cassation appeal. On 15 February 2008, the Supreme Court of Azerbaijan ruled that the case should not be considered by the court and ordered to end up the proceedings.
Having exhausted all domestic legal procedures, on 16 January 2009, Ali Kerimli, the leader of the PFA, filed a complaint with the European Court of Human Rights (ECHR). In the complaint it was stated that the Azerbaijani authorities had violated the Article 2, Paragraph 2 of Protocol No. 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On 16 July 2015, the ECHR ruled that with regard to A. Kerimli there had been a violation of the Article 2, Paragraph 2 of Protocol № 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Nearly 5 years had passed since the above ruling of the ECHR, but the decision was never implemented by the Azerbaijan Republic.
In 2020, A. Kerimli appealed to the Baku Administrative Court on the basis of the European Court of Human Rights decision and in order to fulfill it, demanding to put the implementation of the ECHR decision on the defendants. On 20 February 2020, the Baku Administrative Court rendered a decision declaring the claims to be inadmissible.
Commentary by expert lawyer:
A court decision is illegal and unjustified. According to the Article 148 (II) of the Constitution of Azerbaijan Republic, international agreements wherein the Azerbaijan Republic is one of the parties constitute an integral part of legislative system of the Azerbaijan Republic.
It should be noted that Azerbaijan has been a member of the Council of Europe since January 2001, and therefore the Azerbaijan Republic has signed the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols.
The plaintiff, Ali Kerimli, justified the claim by invoking the Article 2, paragraph 2, of Protocol No. 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This article states: “Everyone shall be free to leave any country, including his own”.
The judgment issued by the ECHR in the case of Ali Kerimli v. Azerbaijan on 16 July 2015 stated the following: “Article 2 of Protocol No. 4 to the Convention guarantees to any person a right to liberty of movement, including the right to leave any country for such other country of the person’s choice to which he or she may be admitted. Any measure restricting that right must be lawful, pursue one of the legitimate aims referred to in the third paragraph of the above‑mentioned Convention provision and strike a fair balance between the public interest and the individual’s rights” (Paragraph 45, case Ali Kerimli vs. Azerbaijan) –
Also, according to the Paragraph 47 of this ECHR decision, it was said that the refusal of the state structures to extend the term of the passport (issuance of a new passport) resulted in the restriction of the applicant’s right to leave the country. The refusal to issue the passport to A. Kerimli failed to pursue any legitimate objective.
In addition to the Protocol 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the right to leave the country freely is also guaranteed by the Article 13 of the Universal Declaration of Human Rights. Paragraph 2 of the Article 13 states: “Everyone has the right to leave any country, including his own, and to return to his country”.
The Law of the Azerbaijan Republic “Law of the Azerbaijan Republic about Exit from the Country, Entry into the Country, and about Passports” was adopted on 14 June 1994. The passport of a citizen of the Azerbaijan Republic is a single document confirming the identity of a citizen outside the territory of the Azerbaijan Republic, which is issued to a citizen to exercise the right to leave and enter the country.
Passports are issued to all citizens of the Azerbaijan Republic who have reached the age of 18, and in special cases, to citizens who have not reached the age of 18 who leave the country for education purposes, participation in the international events, treatment or permanent residence, and are valid for entry and exit to all countries.
According to the Article 1 of the “Law of the Azerbaijan Republic about Exit from the Country, Entry into the Country, and about Passports”, each citizen of the Azerbaijan Republic (further — citizen) has a right as specified by the Law to free exit from the country and entry into the country through the check-points specially provided for such purposes. The citizen cannot be denied the right of exit from the country and of entry into the country. This right might be temporarily restricted in the following cases and simultaneously postponed in cases stipulated by the clause 4:
- if the citizen has an obligation in force on information containing the state or military secret — until such obligation is invalidated by a procedure determined by the legislation of the Azerbaijan Republic;
- if criminal proceedings are initiated against the citizen or he/she has been convicted — accordingly until the cessation of the proceedings or expiration of the penalty period, or acquittal;
- when the citizen has been called up for military service until the completion of the military service or excusing from it in accordance with the law;
- till carrying out of prophylactic vaccinations when entering the countries, where preventive inoculations should be done according to the international medical sanitary regulations or intergovernmental treaties, supported by the Azerbaijan Republic and for exit from these countries.
In the Article 2 of this law states: “The citizen’s right to exit from the country and entry into the country in accordance with the procedure determined by the present Law is realized only on a basis of the passport of the citizen of the Azerbaijan Republic and permission to enter a foreign country – visa, issued in accordance with the international agreements”.
The Article 4 of the mentioned Law regulates the procedure of issuing passports for all citizens. Thus, the civil passport is issued by a body of internal affairs at the place of residence not later than one month after the citizen applied to it on a basis of his/her application, identity card, photo, state duty receipt, and if necessary, documents confirming the Azerbaijan Republic’s citizenship.
According to the Article 9 of the “Law of the Azerbaijan Republic about Exit from the Country, Entry into the Country, and about Passports”, it is said about the cases when the passport can be refused. Thus, it might be refused to issue a citizen passport if submission of a document containing false information about a citizen or a document that has been no longer valid. In this case, the issue of new passport may be considered only after the submission of valid documents. Refusal to issue a passport in connection with state or military confidentiality is carried out only in cases stipulated by the legislation of the Azerbaijan Republic.
As indicated in the norms of national legislation, the State authorities, in particular the defendants in that case, had no legal basis for refusing issuance of a passport to Ali Kerimli, a citizen of Azerbaijan. The State structures responsible for the issuance of passports, as well as the State, acting as a member of the Council of Europe that has signed the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, have grossly violated the right of Azerbaijani citizens to obtain a civil passport and the right to leave the country guaranteed by the norms of international agreements. In addition, the State, represented by the Baku Administrative Court, has repeatedly violated the Article 2, Paragraph 2 of the Protocol 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The State also failed to comply with the European Court of Human Rights decision in the case of Ali Kerimli v. Azerbaijan dated on 16 July 2015.