In the case of Insanov v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 12 February 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
16133/08) against the Republic of Azerbaijan lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Azerbaijani national, Mr Ali Binnat oglu
Insanov (Əli Binnət oğlu İnsanov - “the applicant”), on 31 March 2008.
The applicant was represented by Mr A. Shahverdi
and Mr T. Babayev, lawyers practising in Azerbaijan. The Azerbaijani
Government (“the Government”) were represented by their Agent,
Mr Ç. Asgarov.
The applicant complained, in particular, about
the conditions of detention, and also alleged unfairness of the civil
proceedings concerning his conditions of detention, lack of adequate medical
treatment in detention, unfairness of the criminal proceedings against him, and
other violations of the Convention.
On 19 November 2009 the application was declared
partly inadmissible and the complaints under Article 3 concerning lack of
adequate medical treatment and conditions of detention, the complaint under
Article 6 concerning the fairness of the civil proceedings, the complaints
under Article 6 concerning the fairness of the criminal proceedings, and the
complaint under Article 1 of Protocol No. 1 to the Convention were communicated
to the Government. It also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1946. He was the
Minister of Health Care from 1993 to 2005.
A. Criminal proceedings against the applicant
1. Pre-trial stage
On 20 October 2005 the applicant was summoned to
the Ministry of National Security (“the MNS”). He arrived at the MNS at around
3 p.m. and was questioned until 7 p.m.
After being questioned he was detained on
suspicion of abuse of official authority, embezzlement of public funds and
complicity in an attempted coup d’état, allegedly planned to take place
after the parliamentary elections of 6 November 2005 and masterminded by former
Parliament Speaker R. Guliyev (who was living abroad at that time) and
several other high-ranking government officials. He was held in the detention
facility of the MNS.
It appears that he was dismissed from his
ministerial office on the same day.
On 22 October 2005 the Prosecutor General’s
Office formally charged the applicant with criminal offences under Articles
28/220.1 (preparation to organise public disorder), 278 (actions aimed at
usurping State power), 179.3.2 (high-level embezzlement), 308.2 (abuse of
official authority entailing grave consequences), 311.3.2 (repeated
bribe-taking) and 311.3.3 (high-level bribe-taking) of the Criminal Code.
The applicant was formally charged in criminal case no. 76586.
On 22 October 2005 the Nasimi District Court
remanded the applicant in custody for a period of three months (until 20
January 2006). On 13 January 2006 the same court extended this period by
another four months (until 20 May 2006). On 19 May 2006 this period was
extended again, by another five months (until 20 October 2006). Lastly, on 16 October
2006 the period was extended again, by another six months (until 20 April
2007). The applicant lodged appeals against each of these decisions. All his
appeals were dismissed by the Court of Appeal. An appeal by the applicant
against the extension decision of 16 October 2006 was dismissed by a
decision of the Court of Appeal on 2 November 2006.
In the course of the pre-trial investigation,
the investigating authorities carried out a search of the applicant’s home and
found, inter alia, large amounts of cash in various currencies, large
quantities of gold items and jewellery, and deeds of a number of residential
properties.
On 19 January 2007 the Prosecutor General’s
Office issued a new indictment charging the applicant with criminal offences
under Articles 28/220.1, 278, 179.3.2, 306.2 (failure by a public official
to execute a final court judgment), 308.1 (abuse of official authority), 308.2,
311.3.1 (bribe-taking), 311.3.2 and 311.3.3 of the Criminal Code.
On 24 January 2007 a new criminal case (no.
76932) was severed from criminal case no. 76586. Under criminal case no. 76932
the applicant was formally charged with the offences under Articles 179.3.2,
306.2, 308.1, 308.2, 311.3.1, 311.3.2, 311.3.3 and 313 (forgery in public
office) of the Criminal Code.
Specifically, the applicant was accused of
having committed the following criminal acts, inter alia:
(i) Between 1997 and 2004 he had created conditions
for unlawful disposal (by way of privatisation) of numerous State-owned
real-property assets (land and non-residential premises) which were on the
books of the Ministry of Health Care and had a total estimated value of
27,221,574 New Azerbaijani manats (AZN) (approximately 23,500,000 euros (EUR)
at that time). Among other things, the applicant was accused of falsifying,
with the assistance of accomplices, certain documents related to the
above-mentioned assets, in order for that property to be designated suitable
for privatisation under the State Privatisation Programme and privatisation
laws, whereas in fact those assets did not qualify as such, and were necessary
for the proper functioning of State health care institutions. Most of these
assets were privatised by dummy companies affiliated to the applicant or his
acquaintances and were subsequently resold to the applicant’s family members
and acquaintances. In connection with the above transactions, the applicant
also received bribes in the total amount of 200,000 United States dollars (USD)
(equivalent to AZN 195,460);
(ii) He had embezzled AZN 115,240 of public funds in
order to pay for the publication of one of his books;
(iii) He had taken a number of bribes in the total
amount of USD 76,900 (equivalent to AZN 75,423) and another bribe in the amount
of AZN 2,800 in exchange for issuing licences to private companies for
operating pharmacies, and had kept 70% of the above amounts for himself while
distributing the remainder among his accomplices;
(iv) He had continually failed to comply with seven
final domestic judgments (the earliest of which had been delivered in 1994),
ordering the reinstatement of former Ministry of Health Care employees who had
been unlawfully dismissed from their positions; and
(v) He had committed a number of other acts of
embezzlement and abuse of official authority.
On 24 January 2007 the investigating authorities
informed the applicant that the pre-trial investigation in criminal case no.
76932 had been completed. Criminal case no. 76932 was sent for trial in the Assize Court. The original criminal case no. 76586, which still carried the charges under
Articles 28/220.1 and 179.3.2 of the Criminal Code, was not sent for trial, but
was not terminated either.
On 29 January 2007 the applicant’s lawyers
lodged a complaint with the Prosecutor General, alleging that the defence had
not been allowed to properly familiarise themselves with the case materials. In
particular, they complained that not all the annexes to the case files had been
presented to the defence and that the defence had not been allowed to take
photocopies of case materials. By a letter of 2 February 2007 the Prosecutor
General rejected this complaint, noting that during the period from 24 to 30
January 2007 the applicant and his lawyers had been allowed access to all forty-three volumes
of the case file, three video-tapes, photographs and other material evidence,
and that on 30 January 2007 they had signed a record of familiarisation with
the case file together with the annexed time sheets. Furthermore, he stated
that, from the content of the other, unrelated complaints lodged with the
prosecution authorities at around the same time, it was clear that the defence
had sufficient knowledge of the entire investigation case file. Lastly, the
Prosecutor General added that, if necessary, the defence would be given an
opportunity to consult and take photocopies of the investigation materials
again during the trial.
On 15 February 2007 the applicant lodged a
complaint with the Assize Court, arguing that the defence had not been given an
opportunity to adequately familiarise themselves with the case file and
requesting the court to suspend the proceedings on this ground and to send the
case back to the investigation stage. By an interim decision of 15 February
2007 the Assize Court refused this request, finding that the defence had been
given adequate access to the case file.
2. Trial
The applicant was tried at the Assize Court with ten others, who were either former officials of the Ministry of Health
Care or had been involved in commercial transactions with the Ministry. Each of
the ten was charged with complicity in some of the criminal offences with which
the applicant had been charged. In connection with the embezzlement charges, a
civil claim was also advanced against the applicant and some of the other
defendants in the criminal case.
In addition there were around twenty civil
defendants in the case, against whom no criminal charges had been brought. The
civil defendants were the current private owners of the formerly public
property which had allegedly been unlawfully embezzled or sold by the
applicant.
(a) Hearings at the Assize Court
A preliminary hearing was held on 15 February
2007 and hearings on the merits were held from 22 February to 20 April 2007.
The hearings were held on working days between around 9.30 a.m. and around
6 p.m., but sometimes lasted until after 7 p.m.
According to the Government, more than 120
witnesses were heard during the trial. The Assize Court’s judgment of 20 April
2007 summarised statements from a large number of witnesses, who testified in
connection with all of the accusations against the applicant and the other
accused persons.
In addition to hearing witnesses, the court also
examined various documentary and other material evidence presented by the
prosecution, including various expert reports on forensic handwriting analyses
of a large number of documents, reports on valuation of unlawfully privatised
properties, and so on. Among this documentary evidence, an important role in
the prosecution’s submissions was given to three audit reports of 27 June, 11
August and 18 December 2006 concerning the “audit of the financial and economic
activities of the Ministries of Health Care and Economic Development”, prepared
by a number of employees (sometimes referred to as “experts” in the relevant
court documents) of the Ministry of Finance, the Chamber of Auditors and other
State agencies, pursuant to a decision of the Nasimi District Court of 29
November 2005. In sum, these reports concluded that, despite the fact that the
State privatisation programme allowed privatisation of State health care
facilities only by a decision of the President of the Republic, the applicant
had exceeded and abused his official powers and, together with “other persons”,
had unlawfully issued instructions and otherwise created conditions for
unlawful privatisation of a large number of State-owned health care facilities,
plots of land, and other assets. Furthermore, the reports also found that there
had been a number of breaches of accounting requirements, instances of
mismanagement of State budgetary resources allocated to the Ministry of Health
Care, undocumented or improperly documented use of large amounts of money, and
so on. It appears that these three reports were among the most decisive pieces
of evidence on which the applicant’s eventual conviction was based. In
particular, the Assize Court stated in its judgment that these reports
confirmed that the applicant had committed acts of abuse of official powers and
embezzlement of public funds.
During the hearings, the applicant complained
that he was not allowed time to confer with his lawyers in a confidential
setting in the course of the hearings, and that whereas the hearings lasted a
full day each time, he was not allowed to meet his lawyers at the detention
facility at weekends and on other non-working days. In particular, by a letter
of 17 March 2007, he complained to the MNS about the MNS Detention
Facility’s refusal to allow his lawyers to enter the facility for meetings with
the applicant at weekends. Furthermore, in his complaints about the Assize
Court judges made in late March and early April 2007, the applicant complained,
among other things, that the judges had ignored his complaints concerning
inadequate time and facilities for meetings with his lawyers and that the court
had repeatedly refused the defence’s requests for short adjournments to the
hearings in order to allow the applicant and his lawyers to hold confidential
discussions concerning their defence strategy. Instead, they had been forced to
confer with each other in the presence of prosecutors and judges.
According to the applicant, the Assize Court essentially ignored the above complaints. According to the Government, the Assize Court examined the applicant’s complaints about meetings with his lawyers and, in
particular, on 30 March 2007 adjourned the hearing for the defence to confer
and prepare a representation. Also, the Assize Court sent a letter to the
acting head of the MNS Detention Facility, reminding the latter of the
applicant’s right to meet with his lawyers and requesting him to allow such
meetings on days when no hearings were scheduled.
(b) Various requests by the applicant concerning
examination of additional witnesses
During both the preliminary and the trial
hearings, the applicant made a number of requests to the Assize Court
concerning various substantive and procedural matters, including examination of
additional witnesses, as summarised below.
(i) In respect of charges relating to privatisation
fraud and abuse of official power
On 15, 22 and 28 February and 6, 7, 12 and 30
March 2007, the applicant requested the court to summon and hear a number of
witnesses in connection with the accusations against him of creating conditions
for unlawful privatisation and sale of State property and other abuses of
official powers.
In these submissions the applicant contested the
findings contained in the three audit reports of 27 June, 11 August and 18
December 2006 (see paragraph 22 above). He argued that those findings were
wrong and mutually contradictory, and claimed that some of the “experts” who
had worked on the relevant audits had either refused to sign those reports or
had signed them with reservations. In his submissions the applicant repeatedly
insisted that the court summon and hear as witnesses a number of those experts
who had worked on the audits and authored the reports, including the head of
the State Financial Control Department of the Ministry of Finance and three
other experts from that ministry, an auditor of the Chamber of Auditors, a
section head of the State Committee for Management of State Property, the Deputy
Minister and two other high-ranking officials of the Ministry of Economic
Development, and so on.
Furthermore, the applicant noted that, whereas
he was accused of having created conditions for unlawful privatisation and sale
of State property which belonged to the Ministry of Health Care, under domestic
law the agencies responsible for privatisation of State property were the State
Committee for Management of State Property (formerly the Department of
Management and Privatisation of State Property) and the Ministry of Economic
Development. Only these agencies had the authority to dispose of State
property. As such, these State agencies had ultimately carried out and approved
the sale and privatisation of the assets in question, and officials of these
agencies had signed the relevant final acts. The applicant further argued that
his role (as Minister of Health Care and Chairman of the State Commission on
Reforms in the Health Care System) in the privatisation procedure was limited
to merely submitting proposals to the President and the Cabinet of Ministers for
items to be included in lists of various assets suggested for privatisation, as
well as giving his confirmation to the Ministry of Economic Development on a
case-by-case basis that he did not object to the privatisation of specific
State-owned facilities which were on the books of the Ministry of Health Care. Therefore,
even if the relevant assets had been privatised unlawfully, he could not be
held responsible for it, and the officials of the State Committee for
Management of State Property and the Ministry of Economic Development were
responsible for the entire privatisation process and for any failure to detect
abuse or unlawfulness. For these reasons, the applicant repeatedly insisted in
his submissions that the court summon and examine as witnesses the Chairman of
the State Committee for Management of State Property and the former Minister of
Economic Development (the former Minister of Economic Development, Mr Farhad
Aliyev, was tried and convicted in separate criminal proceedings at around the
same time in connection with, inter alia, charges of alleged corruption
and a number of abuses of official power).
At the preliminary hearing of 15 February 2007 the
Assize Court examined the above request and heard the parties’ submissions in
connection with it. The prosecution submitted that, at this stage, this request
was premature because the question whether it was necessary to examine any
additional evidence should be decided after the judicial examination of the
prosecution material submitted to the court. Having heard the parties’
submissions, the Assize Court refused the applicant’s request without providing
any reasoning.
On 22 February 2007 the Assize Court examined
the applicant’s repeated request and refused it on the ground that it had been
raised prematurely at the preliminary hearing stage and that it would be
examined at the trial hearing stage.
As regards the applicant’s repeated requests to
the same end made on 28 February and 6, 7 and 12 March 2007, the Assize Court refused them during various trial hearings, noting that it would determine
whether it was necessary to hear additional witnesses at a later stage.
During the trial hearing of 30 March 2007 the
applicant submitted the same request again. The Assize Court refused the
request. It noted that during previous trial hearings which had been held in
the meantime it had already heard representatives of the State Committee for
Management of State Property and examined all relevant privatisation-related
and other documents signed by officials of this agency: therefore the part of
the applicant’s request seeking that the appropriate officials of this agency
be heard was no longer relevant and should be rejected. As regards the request
to call the experts who had conducted the audits and authored the reports of 27
June, 11 August and 18 December 2006, the Assize Court refused this part of the
applicant’s request too, noting that if the court considered, once the relevant
reports had been read out at the subsequent hearings, that there were indeed
some contradictions in those reports and that it was necessary to seek clarification,
the court could decide to grant the request at one of the future hearings and
to call those experts to testify.
It appears that at the subsequent hearings the Assize Court did not take up this matter again.
The court’s judgment of 20 April 2007 (see
below) was silent in respect of the applicant’s procedural requests for
additional witnesses to be heard.
(ii) In respect of other charges
A large number of individuals had been
questioned by the investigation authorities during the pre-trial investigation,
with the purpose of establishing and proving the allegations of corruption by
Ministry of Health Care officials, including the applicant, in connection with
applications for pharmaceutical licences. Not all those questioned by the
investigation authorities were ultimately included in the list of prosecution
witnesses to testify against the applicant during the trial. In particular, a
number of individuals who stated during pre-trial questioning that they had not
been asked for, and had not given, a bribe when they made their licence
application were not called to testify during the trial. On 30 March and
2 April 2007 the applicant asked for eleven specifically named individuals
who had stated at the pre-trial stage that they had not given any bribes in
exchange for approval of their applications for a licence to be called as
witnesses. It appears that he intended to use these witnesses’ statements to
“disprove” the prosecution’s accusations concerning corruption. These requests
were refused.
Furthermore, in connection with various other
charges, the applicant repeatedly requested that the authors of the expert
reports on valuation of privatised and other properties, the new Minister of
Health Care and some other employees of that ministry, the chairman of the
State committee for admission of students to higher education institutions, the
deputy chairman of the Yeni Azerbaijan Party, various officials of the
President’s office, several investigators who had conducted various stages of
the pre-trial investigation, and others, be called as witnesses. These requests
were also refused.
(c) The verdict and sentence
By a judgment of 20 April 2007 the Assize Court found the applicant guilty as charged on all counts under criminal case no.
76932, and sentenced him to eleven years’ imprisonment with confiscation of
property and three years’ prohibition on holding official positions in public
service. The court found that the applicant had caused in excess of AZN
15,000,000 in financial damage by his criminal actions, and that he was
responsible for compensating for this damage, as described below.
Initially, the court allowed the civil claim in
part, ordering the in-kind transfer of part of the unlawfully privatised
real-property assets back to the Ministry of Health Care. This covered part of
the financial damage caused. On the other hand, the court found that some of
the unlawfully privatised assets were now owned by bona fide purchasers, and
therefore dismissed the civil claim in the part relating to those assets.
As regards the pecuniary damage remaining to be
compensated for after the partial upholding of the civil claim, the court found
that the applicant remained responsible for damage in the amount of AZN 527,087
personally, and in the total amount of AZN 7,937,822 jointly and severally with
three other criminal defendants. In compensation the court ordered, applying
the confiscation sanction under Article 179.3.2 of the Criminal Code, that the
following private property of the applicant be confiscated: (a) various precious
metals and jewellery items valued at AZN 1,040,486, which had been found in his
home; (b) USD 1,309,295 in cash found in his home; (c) EUR 884,475 in cash
found in his home; (d) AZN 8,984 in cash found in his home; (e) eleven houses
and apartments, some of them with auxiliary premises such as garages,
collectively valued at AZN 3,655,179.90; and (f) a car valued at AZN
54,000.
3. Appeals
The applicant appealed, claiming innocence and
arguing, among other things, that his convictions on all counts had been based
on inadmissible, irrelevant or insufficient evidence, that he had not been
given adequate time and facilities to prepare his defence and to meet with his
lawyers in confidential circumstances, and that despite his repeated requests
the investigating authorities and the trial court had not sought to hear
certain witnesses whose statements could have been crucial for the outcome of
the case. The other criminal and civil defendants also appealed, on various
grounds.
On 21 September 2007 the Baku Court of Appeal
dismissed the applicant’s appeal and upheld the part of the Assize Court’s
judgment which related to the applicant. The applicant and his lawyers
participated in the appeal hearings.
The applicant lodged an appeal on points of law
reiterating his complaints. Hearings in this appeal were held in the presence
of the applicant’s lawyer, but in the applicant’s absence. On 16 January 2008
the Supreme Court dismissed the applicant’s appeal and upheld the parts of the
lower courts’ judgments which related to the applicant.
B. The applicant’s health and medical treatment
received
1. Summary of the relevant facts
Many years before the events concerning the
present case, the applicant, then at an early age, had suffered from pulmonary
tuberculosis. It appears that he had been treated successfully and his
tuberculosis had been in remission since then.
Prior to the applicant’s arrest, in February 2005
he underwent a magnetic nuclear resonance tomography (“MNRT”) in Munich, Germany, and was diagnosed with “herniation of L3-L4 intervertebral disc”. It was
recommended that therapeutic treatment be continued and that ultimately surgery
would be necessary if the symptoms persisted.
After his arrest, from 20 October 2005 to 20
April 2007 the applicant was detained in the temporary detention facility of
the MNS. From 20 April 2007 to 28 September 2007 he was kept in Detention Facility
no. 1. He was then transferred to Penal Facility no. 13, where he is currently
serving his prison sentence and where he is kept in a large dormitory designed
for more than 100 prisoners. According to the applicant, the conditions of
detention in all of these facilities were bad (see paragraphs 71-79 below).
While in detention, the applicant complained of
health problems on a regular basis. The following is a summary of the accounts
of the applicant’s medical treatment in detention submitted by the applicant
and the Government.
On 2 February 2006 the applicant was examined by
MNS medical experts and was diagnosed with the following conditions: spinal
disc herniation; osteochondrosis; progressing hypertension, stage I; unicameral
cyst on the left kidney not entailing a loss of the kidney’s function; a post-cholecystectomy
condition; chronic persisting hepatitis in the remission phase; and mild
neurotic reactions. The experts considered that his condition was not critical
and that outpatient treatment was sufficient.
On 16 January 2006 the applicant was examined by
the head physician of a neurosurgery hospital and was prescribed conservative
treatment and a new MNRT. According to the relevant medical report, the
applicant refused this treatment. However, according to the applicant, he did
not refuse to undergo a new MNRT as the report of 16 January 2006 had
indicated.
On 16 May 2006 the applicant was examined by the
Chief Phthisiologist of the Ministry of Health Care and on 20 May 2006 by the
Head of the Neurology Centre; neither examination revealed any need for
surgery.
From 25 February to 8 March 2006 and from 30 May
to 8 June 2006 the applicant had medical examinations on an inpatient basis in
the Neurological Unit of the Ministry of Justice’s Medical Facility. The
applicant was diagnosed with spinal disc herniation and was offered a new MNRT
before a decision was made on whether there was a need for surgery. According
to the relevant records, the applicant declined this proposal and received only
conservative treatment.
However, according to the applicant, he did not
refuse an MNRT or surgery. He claimed that the medical records concerning his
alleged refusal did not “reflect reality”, as they did not bear his signature.
He noted that the Ministry of Justice’s neurological unit lacked a neurosurgery
department and specialists to carry out surgery, so he requested surgery in one
of the neurosurgery clinics in Baku, but his request was not answered.
According to him, his treatment in the Ministry of Justice’s medical facility
was terminated abruptly and he was returned to his cell.
According to the relevant medical records, when
the applicant was transferred to Detention Facility no. 1 on 20 April 2007 he
had no serious complaints about his health. On 1 and 9 June 2007 he was
examined by experts of the neurology and therapy units of the Ministry of
Justice’s Medical Facility and no need for either inpatient or outpatient
treatment was identified at this time. According to the relevant records, on 2
and 4 June 2007 the applicant refused to undergo blood and urine tests. On 6
June the applicant, in the presence of his lawyers, refused to undergo an
ultrasound examination. In September 2007 it was proposed that the applicant
undergo an MNRT in a private medical clinic (the Tusi Clinic) in order to
determine whether surgery was needed. The examination was scheduled for
25 September, but did not take place. According to the Government, the
applicant refused to go to the Tusi Clinic at the last moment. According to the
applicant, he did not refuse to undergo any tests and the relevant records were
falsified.
According to the Government, in January and
February 2008 it was suggested three times that the applicant be transferred to
the Ministry of Justice Medical Facility in connection with his complaints
about pains in his back, but he refused those offers. According to the
applicant, in the winter of 2008 he was indeed offered transport to the Medical
Facility, but in an “iron-covered unheated lorry”, which was not suitable for
his health. As the applicant could not stand or sit comfortably because of
pains in his back and legs, and as transportation in such a lorry would be very
hard for him to endure, he requested in writing to be transported in an
ambulance, lying down, offering to pay any transportation costs himself. This
request was refused.
According to the applicant, he continued to
suffer from severe pain in his back and lower extremities due to the herniation
of the intervertebral disc. His detention in a cold unventilated cell in Penal
Facility no. 13 aggravated his health problems.
2. The Court proceedings and subsequent medical
treatment
On 14 August 2008 the applicant, without
providing detailed information about the nature of his illnesses, requested the
Court to indicate to the Government under Rule 39 of the Rules of Court that he
should be provided with adequate treatment and with conditions
of detention which were appropriate for his illness. In reply, the applicant
was requested to provide more detailed information about the nature of his
ailments and complaints. The applicant complied with this request. He
submitted, inter alia, that urgent surgery was necessary to treat his
herniated disc.
On 16 September 2008 the Government was
requested, under Rule 49 § 3 of the Rules of Court, to provide information
concerning any medical treatment provided to the applicant during the entire
period of his detention. In reply, the Government submitted the information
summarised above, supported by a number of medical records. The applicant was
given an opportunity to comment on the Government’s submissions; these
comments, where relevant, are also included in the above summary.
Having regard to the parties’ submissions, on 25
November 2008 the President of the Chamber decided to indicate to the
respondent Government, under Rule 39 of the Rules of Court, the following
interim measures, applied until further notice:
“- the applicant be immediately
transferred to the prison medical facility of the Ministry of Justice;
- at the earliest possible time and
without any undue delays on both sides, a medical panel be set up on a parity
basis, the Government and the applicant each appointing three members from
among the qualified medical experts in Azerbaijan, to diagnose the applicant’s
specific problems (in particular, the herniated disc problem) and to conclude
whether any long-term or immediate treatment, including surgery, is required to
treat the problem(s);
- on the basis of the findings of the
above medical panel, the Government design and submit to the Court [by 20
January 2009] an appropriate and detailed plan of the applicant’s treatment.”
On 19 January 2009 the Government informed the
Court about the measures taken.
In particular, according to the documents
submitted by the Government, on 12 December 2008 the applicant was transferred
to the Medical Facility of the Ministry of Justice. A joint medical panel was
composed on a parity basis. The panel consisted of two neurosurgeons, two
phthisiologists, and two uro-nephrologists. During the period from 22 to 24 December
2008 a number of medical tests were carried out on the applicant, including an
MNRT, urine test, blood test, biochemical tests, ultrasound and others. The
medical panel examined the applicant several times. Additionally,
cardiologists, gastroenterologists and dentists were invited to carry out necessary
tests and examinations.
On 10 January 2009 the medical panel issued its
final opinion, in the presence of the applicant and his lawyers. The panel found
that the applicant was suffering from the following primary and secondary
conditions: a herniation of the L3-L4 spinal disc; osteochondrosis; mild
hypertension, stage II; residual signs of inactive (cured) tuberculosis of the
right lungs; unicameral cyst on the left kidney; chronic colitis; and signs of
first-degree dysbacteriosis. However, the panel unanimously concluded that his
condition was not critical and that no surgery was required. His overall health
was considered satisfactory. It was noted that he was fully autonomous and
could walk using a cane. The diagnosed pathologies were chronic and slow to
develop, requiring “conservative” treatment, which could be carried out either
on an inpatient or an outpatient basis.
The panel designed a detailed long-term plan for
treatment for the applicant’s health problems, noting that for the first month
the applicant would receive inpatient treatment in the Medical Facility of the
Ministry of Justice, while thereafter such inpatient treatment could be replaced
with outpatient treatment in the prison. The relevant treatment, including a detailed
list of medications and recommendations, was prescribed. The panel’s opinion
indicated that the applicant agreed with the diagnosis and the treatment plan.
On 2 February 2009 the applicant submitted his
comments on the Government’s submissions. While he appeared to argue against
the Government’s allegedly wrong “interpretation” of some of the joint medical
panel’s findings, he did not expressly contest the panel’s conclusions or the
prescribed treatment plan.
On 12 February 2009 the President of the Chamber
decided to lift the interim measures previously indicated under Rule 39 of the
Rules of Court.
The treatment prescribed by the joint medical
panel was carried out on an inpatient basis in the Medical Facility of the
Ministry of Justice up to 16 March 2009.
On 7 March 2009 the applicant was examined by a
neurosurgeon who was not a member of the joint medical panel. He noted that
there had been positive progress of the applicant’s condition and found no
necessity for further treatment of the herniated disc, but recommended a spinal
corset.
On 14 March 2009 the applicant was examined by
the two neurosurgeons who were members of the joint medical panel. The
examination did not reveal any pathology in the applicant’s peripheral nervous
system. Taking into account the applicant’s complaints of pain, they
recommended applying two different types of medicinal ointment, to the backbone
and left thigh areas.
On 16 March 2009 the applicant was transferred
back to Penal Facility no. 13. According to the Government, his medical
treatment was continued on an outpatient basis, as prescribed by the joint
medical panel. According to the applicant, the treatment did not comply with
the panel’s prescriptions.
Following the applicant’s repeated complaints of
pain, on 10 April 2009 he was examined by a neurosurgeon and was prescribed
treatment with Reton, a therapeutic ultrasonic device. According to the
Government, within a short period of time the Medical Sanitary Unit of Penal
Facility no. 13 had acquired this device and the treatment was followed
through. According to the applicant, he did not receive this treatment.
With regard to preventative treatment against
the recurrence of tuberculosis, the joint medical commission had prescribed
anti-tuberculosis medication including Rifampicin and Izoniazid. The treatment
was scheduled to start in March 2009. However, the applicant refused to take
Rifampicin and asked for Pirazinamid instead. The applicant later agreed to
take Rifampicin and the treatment began on 8 April 2009.
From April 2009 the applicant was treated on an
outpatient basis by means of daily administration of two drugs for the
regulation of blood pressure, two for the prevention of the recurrence of
tuberculosis and two ointments for alleviation of pain resulting from the
herniated spinal disc. He was able to spend a “considerable part” of the day in
the open air outside his cell. However, according to the applicant, this
treatment was ineffective, as it did not cure his illnesses or alleviate his
condition.
C. Conditions of detention
1. The applicant’s version
From 20 October 2005 to 20 April 2007 the
applicant was held in a single-person cell in the detention facility of the
MNS, which was poorly lit during the daytime. The light was not switched off at
night.
From 20 to 30 April 2007 the applicant was held
in cell no. 119, designed for four inmates, in Detention Facility no. 1. The
surface area of the cell was 9.6 sq. m, or 2.4 sq. m per occupant.
From 30 April 2007 to 28 September 2007 the
applicant was held in another cell in Detention Facility no. 1, cell no. 123,
which was designed for eight inmates. The area of the cell was 15.84 sq. m, or
1.98 sq. m per occupant. The cell was unventilated. The air inside was humid,
and the cell was smelly and stuffy. It was too hot inside. There was no wall or
other form of separation between the toilet area and the table and beds. The
applicant had to eat his meals at the table in close proximity to the toilet.
In both the MNS Detention Facility and Detention
Facility no. 1 the applicant was allowed only half an hour’s “outdoor exercise”
per day, which was confined to small areas specially designated for this
purpose. There was no radio or television or other form of in-cell
entertainment in those establishments. The applicant was allowed to read only
official State newspapers.
Since 28 September 2007 the applicant has been
serving his sentence in Penal Facility no. 13. He is held in a 225 sq. m
dormitory, which was designed to hold 128 inmates. According to the applicant,
most of the time the dormitory was occupied at full capacity (128 inmates),
however occasionally there were fewer inmates when some were released after the
expiry of their prison terms.
The air inside the dormitory is stale and humid
and filled with cigarette smoke. The inmates hung their laundry to dry inside
the dormitory (presumably due to the absence of proper laundry facilities).
The dormitory has no heating or permanent water
supply, and no natural gas supply. In winter the temperature inside dropped
below freezing. In this connection, in response to a request from the applicant’s lawyer, the head of the Azerbaijani Committee against Torture (a
non-governmental organisation) informed the former by a letter of 30 December
2007 that he had personally visited the applicant in Penal Facility no. 13 on
25 December 2007 and witnessed that: (a) there was no heating system in the
dormitory where the applicant was held; (b) the floor in the dormitory was made
of stone; and (c) there were no natural gas pipes in the dormitory.
There are only seven showers and fourteen
toilets available to a total of about 700 to 950 prisoners held in Penal
Facility no. 13. The toilets are in bad sanitary condition and have no running
water for days, so that the inmates were forced to bring bottles of water with
them and stand in a queue to use the toilet.
In all the places he was detained the applicant
had to use bedding and clothing brought by his family, as he was not provided
with those items. The applicant was not provided with the special-diet meals
that he felt he needed because of his health, so he ate only the food brought
to him by his family in packages twice a month.
2. The Government’s version
Referring to the fact that Detention Facility
no. 1 was demolished in 2009 (without specifying the exact date), the
Government claimed to have been unable to conduct an examination of the
facility or to provide a detailed account of its conditions. Instead, in
connection with the conditions of detention both in Detention Facility no. 1
and Penal Facility no. 13, the Government referred to the findings contained in
the judgment of 2 November 2007 of the Nasimi District Court concerning
the applicant’s claim of bad conditions of detention (see paragraphs 92-96
below).
In addition, in respect of the conditions of
detention in Penal Facility no. 13, referring to the various domestic rules and
regulations for penal institutions, the Government provided the following
information.
The dormitory in which the applicant was held
was designed for 116 inmates. However, after the applicant’s arrival, only
70 to 90 inmates occupied the dormitory at any given time. Until January
2009, “the dormitory was heated by electric heaters”. In January 2009 a central
heating system was installed in the dormitory. In support of this submission
the Government supplied photographs of the new heating system.
Every prisoner is allowed to have a shower at
least once a week. His or her underclothes and bedding are changed at regular
intervals. The applicant has access to the running water in the dormitory. Each
prisoner has a right to a bed, a cupboard and a chair. Each prisoner also has a
right to be provided with individual bedding and other amenities, including two
types of blankets, a mattress, a pillow, two bed sheets, two pillow cases, and
two towels.
Under the relevant rules, prisoners are provided
with meals three times a day at State expense. The daily food norm is 3,265
calories and includes bread, various cereals, pasta, meat, fish, fat,
margarine, vegetable oil, granulated sugar, dry tea, salt, potatoes, vegetables,
bay leaf, tomato paste, unsalted fresh butter, and eggs. A specific menu is
planned on a weekly basis. Smokers are provided with 100 cigarettes every ten
days. Prisoners are also allowed to purchase, at their own expense, both food
and a certain amount of other necessary products. Prison cells are provided
with various board games, and the dormitory is equipped with radio and
television sets.
The relevant domestic rules also provide for a
right to receive clothing at State expense. Male prisoners have a right to the
following clothing items: two types of headwear, a warm waistcoat, two “work”
suits, two cotton shirts, two sets of both thin and warm underclothes, two
sleeveless vests, two pairs of underpants, three pairs of cotton socks, two
pairs of wool-mix socks, two pairs of shoes, a pair of slippers, a cotton belt
and a pair of cotton gloves. Each item of clothing is issued to be used for a
period of one to three years, depending on the specific item. Prisoners have a
right to purchase, at their own expense, additional shoes, clothing and
sportswear of the types allowed to be worn in prisons.
D. The applicant’s attempts to obtain redress for the
alleged lack of medical treatment and allegedly bad conditions of detention
On 14 May 2007 the applicant lodged a civil
action with the Sabail District Court against the Prison Service of the
Ministry of Justice (Ədliyyə Nazirliyi Penitensiar Xidməti),
complaining about his conditions of detention and lack of adequate medical
treatment.
On 28 May 2007 the Sabail District Court refused
to hear his action, noting that claims against the Prison Service of the
Ministry of Justice should be lodged with the Nasimi District Court.
In June 2007 the applicant, through his lawyer,
lodged a civil action with the Nasimi District Court, indicating as defendants
the Minister of Justice and the Prison Service of the Ministry of Justice. He
complained that he had not been provided with the necessary inpatient
treatment, that the conditions of his pre-trial and post-trial detention had
been bad and inadequate for his health, that he had been prohibited from
receiving newspapers in pre-trial detention, and that his transfer to Penal
Facility no. 13 had been unlawful, because this prison was located too far
from his home.
On 19 June 2007 the Nasimi District Court
refused to hear the case, owing to non-compliance with the formal requirements
concerning the number of copies of the submissions and notarisation of the
power of attorney for the applicant’s lawyer. It appears that subsequently the
applicant complied with these requirements and the Nasimi District Court
admitted the case for examination.
Prior to the examination of the merits of the
case, in August 2007 the applicant’s lawyer requested the court, inter alia,
to ensure the applicant’s personal attendance at the hearings. This request
was refused, on the grounds that the applicant could effectively argue his case
through his legal representative and that ensuring his attendance at the
hearings in the civil proceedings could interfere with the criminal proceedings
against him, which were taking place at the same time.
During the examination of the merits of the
applicant’s claims, the Nasimi District Court had regard to his medical
records, including the opinion of the MNS’s medical experts issued on 2
February 2006 (see paragraph 47 above). The hearings were held in the applicant’s
absence but with the participation of his lawyer.
By a judgment of 2 November 2007 the Nasimi
District Court dismissed the applicant’s complaints. As regards the complaint
concerning the failure to provide inpatient treatment, the court found that the
applicant himself had repeatedly refused to undergo the medical tests and
treatment he was offered. In any event, the medical examinations did not reveal
any need for inpatient treatment.
As regards the allegations of poor conditions of
pre-trial detention in Detention Facility no. 1, the court found that these
allegations were unsubstantiated. In particular, among other things, the court
noted that the applicant had been kept in a cell with a total area of 15.84
sq. m, which had eight beds, two windows, two electric lamps and a
permanent water supply. Although the cell was designed for eight inmates, “most
of the time” only six inmates were kept there; therefore, there was 2.64
sq. m of space per inmate, which was compatible with the domestic minimum
standard of 2.5 sq. m for pre-trial detention.
As regards the alleged prohibition on receiving
newspapers, the court found that this allegation was unsubstantiated and that
the applicant was in fact allowed to obtain four official newspapers from the
detention facility authorities or to have any other newspapers brought to him
by his lawyer or relatives.
Lastly, with regard to the lawfulness of the
applicant’s transfer to Penal Facility no. 13, the court found that it was
lawful and that the conditions of his detention in that prison were adequate.
It found that the dormitory in which the applicant was held had a total area of
240 sq. m, had ten large windows, and was properly lit and ventilated. It
had separate toilet and other sanitary areas and a permanent electricity and
water supply. While the dormitory was equipped with fifty-four bunk beds (two-bunk
units), it housed a total of seventy inmates at the relevant time.
The court concluded that the applicant received
adequate medical assistance and that his conditions of detention did not amount
to inhuman or degrading treatment. It accordingly dismissed his claims.
The applicant lodged an appeal against the
Nasimi District Court’s judgment of 2 November 2007. He requested to be present
at the appellate hearings and asked the court to conduct a physical inspection
of his conditions of detention. His requests were not granted. On 6 February
2008 the Baku Court of Appeal upheld the Nasimi District Court’s judgment.
On 3 June 2008 the Supreme Court upheld the
lower courts’ judgments.
II. RELEVANT DOMESTIC LAW AND DOCUMENTS OF
INTERNATIONAL ORGANISATIONS
Article 51 of the Criminal Code, as in force at
the material time, provided as follows:
Article 51. Confiscation of property
“51.1. Confiscation of property is a forcible
alienation in favour of the State, without compensation, of instruments of
crime used by a convicted person to commit a criminal offence, of objects
acquired by criminal means, and of proceeds of crime acquired by the convicted
person.
51.2. Confiscation of property is ordered only in
circumstances provided for in the Special Part of this Code.
51.3. In the event that the proceeds of crime or
objects acquired by criminal means have been used, disposed of or are
unavailable for alienation in favour of the State for other reasons, money or
other property belonging to the convicted person in the value corresponding to
the value [of the proceeds or objects acquired] shall be confiscated.”
Article 179 of the Criminal Code, as in force
at the material time, provided as follows:
Article 179. Embezzlement and squandering
“179.1. Embezzlement or squandering, that is
misappropriation of others’ property entrusted to the perpetrator, -
is punishable by a fine in the amount of one to five hundred
conventional financial units, or 180 to 240 hours of community service, or
deprivation of liberty for a term of up to two years.
179.2. Commission of the same acts:
179.2.1. by a group of persons conspiring in advance;
179.2.2. repeatedly;
179.2.3. by means of abusing official authority;
179.2.4. inflicting significant damage -
is punishable by a fine in the amount of two to three thousand
conventional financial units, or deprivation of liberty for a term of three to
seven years with or without confiscation of property;
179.3. Commission of the acts provided for in
Articles 179.1 and 179.2 of this Code:
179.3.1. by an organised group;
179.3.2. in particularly large amounts;
179.3.3. by a person with two or more previous
convictions for [similar offences] -
is punishable by deprivation of liberty for a term of seven to
twelve years, with or without confiscation of property.”
. Article
113.1 of the Code on Execution of Punishments provides as follows:
“Prisoners in general-regime penitentiary establishments can
move around the establishment’s territory in accordance with the internal
regulations of penitentiary establishments.”
The following are the relevant provisions of
the Code of Criminal Procedure concerning the review of the relevant decisions
delivered in domestic proceedings and reopening of the domestic proceedings
following a finding by the Court of a violation of the Convention:
Article 455. Grounds for review of judicial decisions in
connection with the violation of rights and freedoms
“455.0. The following are grounds for review of
judicial decisions in connection with the violation of rights and freedoms:
...
455.0.2. finding by the European Court of Human
Rights of a violation of the provisions of the Convention for the Protection of
Human Rights and Fundamental Freedoms in the criminal proceedings, simplified
pre-trial proceedings or proceedings involving a complaint under the private
prosecution procedure, conducted by courts of the Republic of Azerbaijan; ...”
Article 456. Procedure for review of judicial
decisions in connection with the violation of rights and freedoms
“456.1. The Plenum of the Supreme Court of the Republic of Azerbaijan is vested with the competence to review judicial decisions in
connection with the violation of rights and freedoms.
456.2. Where grounds exist under Articles 455.0.1
and 455.0.2 of this Code, the Plenum of the Supreme Court examines the cases only
on points of law, in connection with the execution of judgments of the
Constitutional Court of the Republic of Azerbaijan and the European Court of
Human Rights. After a judgment of the Constitutional Court or the European
Court of Human Rights is received by the Supreme Court, the President of the
Supreme Court assigns the case to one of the [Supreme Court] judges for
preparation and presentation of the case at the Plenum [of the Supreme Court].
The case shall be reviewed at a hearing of the Plenum of the Supreme Court no
later than three months after the judgment of the Constitutional Court or the
European Court of Human Rights is received by the Supreme Court. ...”
Article 459. Decision taken after review in connection with
the finding by the European Court of Human Rights of a violation of the
provisions of the Convention for the Protection of Human Rights and Fundamental
Freedoms in the criminal proceedings conducted by courts of the Republic of
Azerbaijan
“459.0. Having conducted a review in cases stipulated
by Article 455.0.2 of this Code, the Plenum of the Supreme Court has competence
to deliver one of the following decisions:
459.0.1. to quash, fully or partially, judicial
decisions of the first-instance, appellate and cassation courts, as well as
judicial decisions delivered under the procedure of additional cassation ...,
and to remit the criminal case, the case materials of simplified pre-trial
proceedings, or the case materials of proceedings involving a complaint under
the private prosecution procedure, for re-examination by the relevant
first-instance or appellate court;
459.0.2. to amend a decision of the court of cassation
and/or additional cassation in situations stipulated in Articles 421.1.2 and
421.1.3 of this Code;
459.0.3. to quash a decision of the court of
cassation and/or additional cassation and to deliver a new decision.”
The following are the
relevant extracts from the report on the visit to Azerbaijan carried out by the
European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) from 24 November to 6 December 2002 (CPT/Inf
(2004) 36) (“the 2002 CPT Report”):
“i. Investigative isolator
No. 1, Bayil settlement, Baku
77. Investigative isolator No. 1 in Baku was constructed for the most part in the 1880s. It is the largest pre-trial facility
in Azerbaijan and receives prisoners from all parts of the country, except for
those near Ganja. [It has] an official capacity of 1,250 ...
78. The inmate population was housed in several
blocks of different ages and configuration. Most of the adult remand prisoners
were accommodated in Blocks 1 and 2, large two-storey buildings which formed
part of the original prison structure. Separate accommodation was provided for
women, on the second floor of Block 2 (Unit 4). Sentenced prisoners awaiting
transfer were held apart, in Unit 3. Juveniles and sentenced working prisoners
were also accommodated apart from other groups of prisoners (Block 6). Finally,
a building referred to as Block 5, constructed in the 1920s for the purpose of
holding prisoners sentenced to death, had been set aside for prisoners accused
of committing serious offences (including life-sentenced prisoners awaiting
transfer to other establishments), following the abolition of the death penalty
in 1998.
79. Despite the buildings’ advanced age, the
majority of the prisoner accommodation was in a reasonable state of repair, and
the delegation saw signs of ongoing refurbishment in different parts of the
establishment. Another positive feature observed was the absence of shutters on
cell windows: these had been removed a couple of years previously, and, as a
result, the vast majority of the prisoner accommodation benefited from adequate
access to natural light and ventilation. However, the delegation saw several
cells (e.g. cells 6 and 7 in Block 1; cells 90 and 91 in unit 3) which,
due to the configuration of the building, had no windows and were thus deprived
of access to natural light and ventilation.
80. Although the establishment was operating below
its official capacity, conditions of detention in the cells were cramped: in Blocks
1 and 2, cells measuring some 19 m² held ten to twelve male prisoners,
and those measuring 35 m², eighteen prisoners. On the positive side, each
inmate had his own sleeping place. The cells were filled with double bunk beds,
leaving little space for other furniture. In addition, there were partitioned
sanitary annexes, containing a floor-level toilet and a washbasin with cold
water. The state of repair and cleanliness of the facilities varied from one
cell to another, but were in general acceptable. However, many of the cells
were cold, as the heating had not yet been turned on. ...
81. The poorest conditions of detention were found
in Block 5. At the time of the visit, it was holding 28 prisoners
accused of committing serious offences, including five life-sentenced prisoners
in the process of appeal. The overcrowding observed in this block was worse
than elsewhere in the establishment. Several of the cells were very small (4
m²), each holding two prisoners. Further, four prisoners shared a cell
measuring 7 m², and up to eight prisoners could be placed in a cell of 10
m². The whole unit was in a very bad state of repair: walls damaged from
damp, dilapidated furniture, broken windowpanes in some of the cells. Further,
the heating was not functioning and the cells were cold; a narrow pipe running
along the wall was the only source of heating inside the cells ...
85. Male prisoners could take a shower
once a week; no particular complaints were received in this respect ...
The establishment provided only soap and chlorine for cleaning
the cells; all other personal hygiene and cleaning products had to be
purchased by the prisoners or supplied by their families. There was no laundry,
and prisoners had to rely on improvised arrangements to wash their clothes and
bed linen in the cells.
86. Prisoners were provided with three meals
a day; however, many of them stated that they avoided eating the prison food,
which was apparently monotonous and of poor quality, and relied to a great
extent on food parcels from their families. Reference should also be made to
the establishment’s kitchen, which was small and contained rudimentary
equipment. On the positive side, the establishment had its own bakery, which
guaranteed a sufficient supply of bread.
87. After the visit, the Azerbaijani authorities
informed the CPT of certain measures taken in respect of Investigative isolator
No. 1. In particular, the heating system in Block 5 had been repaired, and
female prisoners transferred to cells equipped with sanitary facilities. As
regards the overcrowding observed at the establishment, the authorities stated
that the only solution would be to reduce the number of inmates to 650 - 750,
which may be possible if the planned construction of a new remand facility in Baku becomes a reality.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION IN RESPECT OF THE CONDITIONS OF DETENTION
The applicant complained under Article 3 of the
Convention about the conditions of detention in Detention Facility no. 1
from 20 April to 28 September 2007 and Penal Facility no. 13 as from
28 September 2007. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government submitted that there was an
inevitable element of suffering inflicted on the applicant inherent to the
imprisonment and that he had not been subjected to any premeditated form of ill-treatment
that fell foul of the standards required by Article 3 of the Convention. The
conditions of the applicant’s detention were the same as those of other
prisoners, were compatible with respect for his human dignity, and did not
subject him to distress and hardship of an intensity exceeding the unavoidable
level of suffering in detention.
The applicant reiterated his complaint and
maintained that his conditions of detention in Detention Facility no. 1
and Penal Facility no. 13 amounted to inhuman and degrading treatment.
2. The Court’s assessment
(a) General principles
Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The assessment of this
minimum level is, in the nature of things, relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its physical
and mental effects and, in some cases, the sex, age and state of health of the
victim (see, among other authorities, Kudła
v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; Peers
v. Greece, no. 28524/95, § 67, ECHR 2001-III; and Kalashnikov
v. Russia, no. 47095/99, § 95, ECHR 2002-VI). The Court has considered treatment to be “inhuman” because, inter alia, it was
premeditated, was applied for hours at a stretch, and caused either actual
bodily injury or intense physical and mental suffering. It has deemed treatment
to be “degrading” because it was such as to arouse in the victims feelings of
fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, §
92).
It cannot be said that detention in itself
raises an issue under Article 3 of the Convention, nor can that Article be
interpreted as laying down a general obligation to release a detainee on health
grounds. It nevertheless imposes an obligation on States to ensure that a
person is detained in conditions which are compatible with respect for his
human dignity, that the manner and method of the execution of the measure do
not subject him to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention, and that, given the
practical demands of imprisonment, his health and well-being are adequately secured
by, among other things, providing him with the requisite medical assistance
(see Kudła,
cited above, § 94, and Paladi
v. Moldova [GC], no. 39806/05, § 71, 10 March 2009). When
assessing conditions of detention, account has to be taken of the cumulative effects
of those conditions, as well as the specific allegations made by the applicant
(see Dougoz v. Greece,
no. 40907/98, § 46, ECHR 2001-II).
(b) Conditions of detention in Detention Facility no.
1 from 20 April to 28 September 2007
Severe lack of space in a prison cell weighs
heavily as an aspect to be taken into account for the purpose of establishing
whether the impugned detention conditions amounted to ill-treatment under
Article 3 (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 143, 10 January 2012, and Karalevičius
v. Lithuania, no. 53254/99, § 36, 7 April 2005).
The Court notes that the General Reports
published by the Committee for the Prevention of Torture do not appear to
contain an explicit indication as to what amount of living space per inmate
should be considered the minimum standard for a multi-occupancy prison cell. It
appears, however, from the individual country reports on the CPT’s visits and
the recommendations following from those reports, that the desirable standard
for the domestic authorities, and the objective they should attain, should be
the provision of four square metres of living space per person in pre-trial
detention facilities (see Ananyev and Others, cited above, § 144, with
further references to a number of relevant CPT reports).
Whereas the provision of four square metres
remains the desirable standard of multi-occupancy accommodation, the Court has
found that where the applicants have at their disposal less than three square
metres of floor surface, the overcrowding must be considered to be so severe as
to justify of itself a finding of a violation of Article 3. Where the cell
accommodated not so many detainees but was rather small in overall size, the
Court noted that, deduction being made of the room occupied by bunk beds, a
table, and a cubicle in which a lavatory pan was placed, the remaining floor
space was hardly sufficient even to pace out the cell (ibid., §§ 145 and 147,
with further references to a number of the Court’s relevant earlier judgments).
Furthermore, the Court has frequently observed that if the duration of the
outdoor exercise period is short, for instance limited to one hour a day, this
would be a factor further exacerbating the situation of applicants who were
confined to overcrowded cells for the rest of the time without any kind of
freedom of movement (ibid., § 151, with further references).
The applicant submitted, and the Government did
not dispute, that from 20 to 30 April 2007 the applicant was held in cell
no. 119 measuring 9.6 sq. m, designed for four inmates, and thus
affording 2.4 sq. m per inmate.
According to the applicant, from 30 April to 28
September 2007 he was held in another cell, no. 123, measuring 15.84 sq. m,
which held eight inmates in total, affording 1.98 sq. m of personal space
per inmate. The Government did not make any specific submissions concerning this
cell, instead referring to the findings of the Nasimi District Court in the
judgment of 2 November 2007. The latter found that the applicant was indeed
detained in a cell measuring 15.84 sq. m. It further found that, although
the cell was designed for eight inmates, “most of the time” it accommodated
only six inmates including the applicant, and therefore afforded 2.64
sq. m of personal space per inmate (see paragraph 93 above). The Court
notes that the Nasimi District Court did not specify for how long exactly there
were six inmates in the cell and how many inmates were held there at other
times. It can therefore be inferred that, at times, this cell, which was
designed for eight inmates, might have been filled to capacity, thus reducing
the amount of personal space for each inmate.
The Court does not find it necessary to resolve
the disagreement between the parties concerning the amount of space per inmate
in the second cell where the applicant was held. The figures submitted suggest
that in the first cell, where the applicant was held for ten days, he had
2.4 sq. m of personal space, and that in the second cell, where he
was held for more than five months, at any given time there was between 1.98
and 2.64 sq. m of space per inmate. The Court also notes that the
latter cell was designed for eight inmates and therefore was equipped with the
corresponding amount of beds and other furniture. Accordingly, even if during
certain periods only six inmates were being held in the cell, the extra
furniture must have contributed to the cramped conditions, thus in practice
reducing the benefit of the small amount of extra space gained by each inmate.
Accordingly, in the Court’s view, the cells where the applicant was held were
overcrowded and the applicant was afforded insufficient personal space
throughout his detention in Detention Facility no. 1.
Furthermore, the applicant was confined to the
cell day and night, apart from about half an hour of outdoor exercise per day. Moreover, the cells were poorly
ventilated and the toilet areas were not screened or otherwise separated from
the common areas. Such close proximity and exposure was not only objectionable
from a hygiene perspective but also deprived the inmates using the toilet of
any privacy (compare, among other authorities, Aleksandr Makarov v. Russia, no. 15217/07, § 97, 12 March 2009; Grishin
v. Russia, no. 30983/02, § 94, 15 November 2007; and Kalashnikov v.
Russia, cited above, § 99).
Having regard to the cumulative effect of the
factors described above, the Court considers that the conditions of the
applicant’s detention in Detention Facility no. 1 from 20 April to 28 September
2007 amounted to inhuman and degrading treatment and that therefore there has
been a violation of Article 3 of the Convention in that respect.
(c) Conditions of detention in Penal Facility no. 13
as from 28 September 2007
As regards the conditions of detention in Penal
Facility no. 13, the applicant complained of overcrowding, lack of a heating
system and poor sanitary conditions.
The parties disagreed in their submissions as
to the personal space afforded to each inmate in the applicant’s dormitory. In
particular, the applicant noted that the dormitory had an area of 225
sq. m, was designed for 128 inmates, and was occupied at full capacity
most of the time. However, according to the Government, who relied in part on
the findings in the Nasimi District Court judgment of 2 November 2007, the
dormitory had an area of 240 sq. m, was designed for 116 inmates, but held
only seventy to ninety inmates at any given time. It follows that,
according to the applicant’s submissions, most of the time each inmate had
about 1.8 sq. m of personal space, while according to the Government’s
submissions each inmate has about 2.6 to 3.4 sq. m of personal space
inside the dormitory. The Court further notes that the allegation of
overcrowding was examined by the Nasimi District Court in its judgment of 2
November 2007, and its factual findings appear to support the Government’s
submissions on this matter.
. The
Court notes that, as opposed to pre-trial detention facilities and
high-security prisons where inmates are confined to their cell for most of the
day, when assessing the issue of overcrowding in post-trial detention
facilities such as correctional colonies, it considered that the personal space in
the dormitory should be viewed in the context of the applicable regime, providing for a wider freedom of movement enjoyed by detainees in correctional colonies during the daytime, which ensures that they have unobstructed access to natural light and air (see Valašinas
v. Lithuania, no. 44558/98, § 107, ECHR 2001-VIII; Nurmagomedov v.
Russia (dec.), no. 30138/02, 16 September 2004; Solovyev v. Russia (dec.), no. 76114/01, 27 September 2007; and Shkurenko v. Russia (dec.), no. 15010/04, 10 September 2009). While the parties made no submissions concerning the
applicable regime in Penal Facility no. 13, according to the information
available to the Court, this is a “general regime” prison where prisoners are free
to move around the establishment’s living zone during the daytime (see
paragraph 101 above). Having regard to the parties’ submissions concerning
personal space in the dormitory and the fact that the inmates in Penal Facility
no. 13 have freedom of movement during the day, which compensate for the
restricted space in the sleeping facilities inside the dormitory, the Court considers that it cannot be established that the level of alleged overcrowding in
the applicant’s dormitory, in itself, constitute ill-treatment reaching
the minimum level of severity under Article 3. However, this aspect of the
applicant’s conditions of detention should be assessed together with the other
aspects, examined below, in order to take account of their cumulative effects.
As regards the complaint that there was no
heating system in the applicant’s dormitory, the Court reiterates at the outset
that allegations of treatment contrary to Article 3 must be supported by
appropriate evidence. In assessing evidence, the Court has generally applied
the standard of proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no. 25). However,
Convention proceedings do not in all cases lend themselves to a rigorous
application of the principle affirmanti incumbit probatio (he who
alleges something must prove that allegation) because in certain instances the
respondent Government alone have access to information capable of corroborating
or refuting these allegations. A failure on a Government’s part to submit such
information without a satisfactory explanation may give rise to the drawing of
inferences as to the well-foundedness of the applicant’s allegations (see,
among other authorities, Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004, and Kokoshkina v. Russia, no. 2052/08, § 59, 28 May 2009). However, even in such
cases applicants may well be expected to submit at least a detailed account of
the matters complained of and provide, as far as is possible, some evidence in
support of their complaints. In similar situations the Court has considered,
for example, written statements by fellow inmates provided by applicants in
support of their allegations (see Khudobin v. Russia, no. 59696/00, § 87,
ECHR 2006-XII (extracts); Seleznev v. Russia, no. 15591/03, §§ 14
and 42, 26 June 2008; and Polufakin and Chernyshev v. Russia, no. 30997/02, § 152, 25 September 2008).
Turning to the present case, the Court notes
that the applicant claimed that the dormitory in which he is held lacked any
form of heating and, as a result, the temperatures inside the dormitory were
very low in winter, sometimes dropping to below freezing. The Court notes that,
despite the applicant’s consistent complaints about a lack of heating in his
domestic appeals, the domestic courts remained silent on this matter, despite
having examined in detail some other aspects of the applicant’s conditions of
detention.
The Government submitted that the dormitory was
equipped with central heating in January 2009. Thus, as far as the period prior
to January 2009 is concerned, the Government did not dispute the applicant’s
contention that the dormitory lacked a heating system. While they maintained
that the dormitory had been heated with electric heaters, no proof of this was
submitted to the Court. On the other hand, the applicant submitted, in support
of his claim, a letter by the head of the Azerbaijani Committee against Torture
who had personally visited the prison in December 2007 and confirmed that the
applicant’s dormitory had no heating system (see paragraph 77 above). Having
assessed the available material, the Court concludes that until January 2009
the applicant’s dormitory was not heated during the winter months.
The Court has previously found it unacceptable
that anyone should be detained in conditions involving a lack of adequate
protection against extreme temperatures (see Mathew
v. the Netherlands, no. 24919/03, § 214, ECHR 2005-IX, and Zakharkin
v. Russia, no. 1555/04, § 125, 10 June
2010). The Court observes that, according to publicly available sources,
the average low temperature during winter months in Baku and surrounding areas
is usually around 2º C, and it is not uncommon for the temperature to drop
below freezing. Although it appears that the windows in the applicant’s
dormitory were properly glazed, the Court considers plausible the applicant’s
claim that, owing to a lack of heating, the temperature inside could
nonetheless have dropped almost as low as that outside. According to the
applicant, on some occasions the temperature inside was below freezing, and the
Government submitted no information countering this allegation.
On the other hand, the applicant did not submit
detailed information as to specific time periods when the temperature inside
had dropped to freezing levels, and for how long such conditions persisted
during the winter months from 2007 to 2009 (from the beginning of the applicant’s
detention in Penal Facility no. 13 until the installation of the heating system
in January 2009). In such circumstances, the Court finds it difficult in the
present case to determine precisely the severity of the situation. However, the
Court stresses again that regard must be had to cumulative effects of various
aspects of conditions of detention.
Lastly, the applicant complained about poor
sanitary conditions. In this connection, the Court notes that it has frequently
found a violation of Article 3 of the Convention on account of unsatisfactory
sanitary conditions coupled with a number of other inadequate conditions such
as, among others, the lack of personal space afforded to detainees (see, among
many others, Kalashnikov, cited above, §§ 97 et seq.; Testa v.
Croatia, no. 20877/04, § 60, 12 July 2007; and Generalov v. Russia, no. 24325/03, §§ 12-14 and 112, 9 July 2009). In the present case, according
to the material available in the case file, at any given time Penal Facility
no. 13 accommodated between 700 and 950 inmates, while there were a total of
seven showers and fourteen toilets in the facility. The insufficient number of
toilets is of special concern, as each toilet had to be shared by more than
fifty inmates. There were also regular problems with running water in the shower
and toilet areas, resulting in a dirty environment. The small number of showers
and toilets which did not always have running water caused the inmates
difficulty in taking showers and often forced them to stand in long queues to
use a toilet. In the Court’s view, this situation could arouse in the applicant
feelings of anguish and inferiority capable of humiliating and debasing him.
As noted above, whereas such aspects of the
applicant’s conditions of detention as the alleged overcrowding and the lack of
heating, on their own, might not be severe enough to amount to ill-treatment if
assessed separately, a global assessment of the cumulative effects of all the
aspects, having regard in particular to the poor sanitary conditions, leads the Court to conclude that the applicant’s conditions of detention in Penal Facility
no. 13, as a whole, amount to degrading treatment. There has accordingly
been a violation of Article 3 of the Convention on this account.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION IN RESPECT OF THE ADEQUACY OF MEDICAL TREATMENT
The applicant complained under Article 3 of the
Convention about a lack of adequate medical treatment in detention.
A. The parties’ submissions
The Government submitted that the applicant had
been suffering from a number of illnesses before he was arrested. They argued
that these diseases were not incompatible with detention and that, according to
the medical records, his state of health did not deteriorate significantly
during his detention. He was provided with adequate medical assistance and
treatment. On the other hand, his behaviour (refusal to undergo tests and to
receive treatment) demonstrated that he showed little or no concern for his
state of health and, therefore, the authorities could hardly be held
responsible even if there was any aggravation of his condition during the
detention.
The applicant submitted that he had been
deliberately subjected to ill-treatment. He maintained that the medical
treatment he received had been inadequate throughout the years of his
detention. He argued that he had never refused to undergo any examinations or
to accept any medical treatment offered, and that the documents submitted by
the Government in this respect had been fabricated.
B. The Court’s assessment
The Court refers to the general principles
regarding conditions of detention and medical care of detainees (see paragraphs
108-109 above). The Court reiterates that, although Article 3 of the Convention
cannot be construed as laying down a general obligation to release detainees on
health grounds, it nonetheless imposes an obligation on the State to protect
the physical well-being of persons deprived of their liberty, for example by
providing them with the requisite medical assistance (see Sarban v. Moldova,
no. 3456/05, § 77, 4 October 2005).
An assessment of the adequacy of medical
treatment provided in detention becomes necessary if it is established that the
applicant’s medical condition was serious (see, mutatis
mutandis, Paladi,
cited above, § 72, and Farhad Aliyev v. Azerbaijan, no. 37138/06, § 121, 9 November 2010). The
Court notes that, following the applicant’s repeated complaints and requests
for urgent interim measures, on 25 November 2008 the President of the Chamber
decided, under Rule 39 of the Rules of Court, to request the respondent
Government, inter alia, to transfer the applicant to a specialised
medical facility and have him examined by a medical panel composed on a parity
basis, with a view to establishing the gravity of his medical condition and
prescribing necessary treatment (see paragraph 57 above). The respondent
Government complied with the interim measures indicated. The applicant’s
complaints about various shortcomings in the medical assistance received and
his assertion that he urgently needed surgery were not confirmed by the unanimous
findings of the medical panel established on a parity basis, which included
three doctors appointed by the applicant himself (see paragraph 60 above).
In particular, the medical panel concluded that
the applicant was suffering from spinal disc herniation and a number of other,
less serious conditions. The applicant’s overall state of health was considered
satisfactory and did not require surgery. The diagnosed pathologies were
chronic and slow to develop, requiring “conservative” treatment, which could be
carried out on either an inpatient or an outpatient basis. Following this
examination, the applicant was treated for a period of one month on an
inpatient basis in the medical facility of the Ministry of Justice and, as it
appears from the documents in the case file, the treatment was continued on an
outpatient basis afterwards. It further appears that the applicant was examined
by doctors at fairly regular intervals both before and after his request for an
interim measure, and that the treatment prescribed was generally followed
through.
Even assuming that, as the applicant alleged,
there were certain shortcomings in the manner in which he was provided with
medical assistance, the Court considers that the medical assistance provided,
as a whole, was not inadequate to such a degree as to amount to
“ill-treatment”. Having regard to the relevant circumstances as a whole, the
Court considers that the applicant received an acceptable level of attention
from a number of qualified experts, was prescribed and provided with the
necessary treatment, was hospitalised several times, and was examined at
reasonably regular intervals when not in hospital.
In view of the above, the Court cannot conclude
that the applicant was suffering from a
health problem which was incompatible with his detention, or that the medical
care available to him was inadequate to such a degree as to cause him suffering
reaching the minimum level of severity required by Article 3 of the Convention.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION IN RESPECT OF THE CIVIL PROCEEDINGS
The applicant complained that he had been
refused the opportunity to participate in the hearings in the civil proceedings
concerning the adequacy of medical assistance and conditions of detention. The
Court will examine this complaint under Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government noted that the principle of
adversarial trial had been ensured during the proceedings before the national
courts which heard the applicant’s civil case. During the court hearings at all
the levels of jurisdiction the applicant was represented by a lawyer who was
acting on the basis of a power of attorney issued by the applicant and was able
to present the applicant’s case effectively.
The applicant reiterated his complaint, arguing
that the subject matter of the proceedings, which concerned the state of his
health and the conditions of his detention, required the courts to hear him in
person.
2. The Court’s assessment
The Court reiterates that the principle of
adversarial proceedings and equality of arms, which is one of the elements of
the broader concept of a fair hearing, requires that each party be given a
reasonable opportunity to have knowledge of and comment on the observations
made or evidence adduced by the other party, and to present his case under
conditions that do not place him or her at a substantial disadvantage vis-à-vis his or
her opponent (see Krčmář and Others v. the Czech Republic, no. 35376/97, § 39, 3 March 2000, and Dombo Beheer B.V. v. the
Netherlands, 27 October 1993, § 33, Series A no. 274).
Article 6 of the Convention does not expressly
provide for a right to be heard in person; rather it is implicit in the more
general notion of a fair trial that a criminal trial should take place in the
presence of the accused (see Colozza
v. Italy, 12 February 1985, § 27, Series A no. 89). At the same time
the Court reiterates that Article 6 of the Convention does not guarantee the
right to personal presence before a civil court, but rather a more general
right to present one’s case effectively before the court and to enjoy equality
of arms with the opposing side. Article 6 § 1 leaves to the State a free choice
of the means to be used in guaranteeing litigants these rights. However, the
presence of the litigant may be required under Article 6 in certain categories
of non-criminal cases, such as those where the personal character and manner of
life of the person concerned is directly relevant to the subject matter of the
case, or where the decision involves the person’s conduct (see Vladimir
Vasilyev v. Russia, no. 28370/05, § 76, 10 January 2012).
The Court has previously found violations of
Article 6 in a number of cases where courts refused leave to appear to
imprisoned applicants who had wished to make oral submissions on their claims
concerning such matters as, inter alia, ill-treatment by police
or bad conditions of detention, finding that those claims had largely been
based on an imprisoned applicant’s personal experience
and that his or her submissions would therefore have been “an important part of
the plaintiff’s presentation of the case and virtually the only way to ensure
adversarial proceedings” (see Kovalev v. Russia, no. 78145/01, § 37, 10
May 2007; Sokur v. Russia, no. 23243/03, § 35, 15 October 2009; Shilbergs v. Russia, no.
20075/03, § 111, 17 December 2009; Skorobogatykh
v. Russia, no. 4871/03, § 64, 22 December
2009; Artyomov v. Russia, no. 14146/02, § 205, 27 May 2010; and Roman Karasev v. Russia, no. 30251/03, § 67, 25 November 2010).
In the present case, the domestic courts’
refusal to ensure the applicant’s personal attendance was not based on any
domestic legal provision for the exercise of the right of personal attendance
by individuals who are in custody, or on a lack of such a provision. The
domestic courts considered that the applicant’s attendance was unnecessary
because he was represented by a lawyer and because attending might have
interfered with his appearance at the criminal proceedings against him.
However, in the light of its case-law cited above, the Court cannot accept this
reasoning as valid, for the following reasons.
The Court notes, and the Government did not
argue otherwise, that the applicant insisted that he wished to be present at
both the first-instance and the appellate hearings, but the domestic courts
refused to guarantee his attendance in person. The Court observes that the
applicant’s claims in the impugned civil proceedings were entirely based on his
personal experience. In such circumstances,
the Court is not convinced that the mere fact that the applicant’s legal
representative attended the hearings could have secured the effective, proper
and satisfactory presentation of the applicant’s case. The Court finds that the
applicant’s testimony describing the conditions of his detention and his state
of health, of which the applicant had first-hand knowledge, would have
constituted an indispensable part of the plaintiff’s presentation of the case.
The applicant was in a position to describe the conditions most accurately and
to answer the judges’ questions, if any.
The Court also notes that, even assuming that
transporting the applicant to the courtroom was not feasible, for security or
any other valid reasons, the domestic courts could have considered other ways
of ensuring the applicant’s participation in the proceedings, such as holding a
hearing in the penal establishment where the applicant was serving his sentence
(see, among other authorities, Sokur, cited above, § 36).
In conclusion, the Court finds that by refusing
to guarantee the applicant’s attendance at the hearings concerning the
conditions of his detention and alleged lack of adequate medical assistance,
the domestic courts deprived him of the opportunity to present his case
effectively.
There has accordingly been a violation of
Article 6 § 1 of the Convention on this account.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION IN RESPECT OF THE CRIMINAL PROCEEDINGS
The applicant complained that in the criminal
proceedings against him he had not been afforded adequate time and facilities
to prepare his defence and have confidential meetings and discussions with his
lawyers throughout his trial, that the domestic courts had failed to ensure
that he could exercise his right to examine witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the same
conditions as applied to witnesses against him, and that the appeal hearings in
the Supreme Court had been held in his absence. He relied on Article 6 §§ 1 and
3 (b), (c) and (d) of the Convention, which provides as follows:
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal
...
3. Everyone charged with a criminal offence has the
following minimum rights: ...
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him; ...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government submitted that the applicant and
his lawyers had been given adequate access to all prosecution materials and
sufficient time and facilities to prepare for the trial. The defence’s
objections in this regard had been examined by the Assize Court, which had
found that they were ill-founded. Furthermore, the Government argued that
during the trial the court had allowed the defence enough time to prepare their
submissions. The trial court also took relevant measures in order to ensure the
applicant’s right to have confidential meetings with his defence counsel. In
particular, the Government noted that the Assize Court had sent a letter to the
head of the MNS Detention Facility requesting the latter to provide the
applicant with the opportunity to meet his lawyer outwith the court hearings.
The Government further maintained that the
applicant and his lawyers had been able to question both the prosecution
witnesses and witnesses on the applicant’s behalf, as well as “to put questions
to the public prosecutors where evidence was heard from witnesses who were not
present at the hearing”. The Government noted that more than 120 witnesses were
questioned in the course of the trial.
As regards the eleven witnesses that the
applicant requested to be called in connection with the bribe-taking charges,
the Government noted that, although those witnesses had given statements to the
investigation authorities, their statements had not been read out at the trial
and that it was within the domestic court’s discretion to refuse to invite them
to the hearing if the applicant had failed to demonstrate that hearing those
witnesses was necessary for the truth to be ascertained.
As regards the experts who had authored the
reports of 27 June, 11 August and 18 December 2006, and other witnesses,
the Government submitted that the court had duly examined the applicant’s
requests to have those witnesses questioned in connection with the
privatisation-related charges, and had provided sufficient reasoning for a
refusal of those requests. The Government maintained that the applicant had
failed to demonstrate that hearing those witnesses was necessary for the truth
to be ascertained, or that failure to hear them prejudiced the rights of the
defence.
Lastly, the Government argued that the
applicant’s absence from the appeal hearings before the Supreme Court had not
been in breach of the Convention requirements, because the applicant was represented
by his lawyers and because the Supreme Court, as a court of appeal on points of
law, had jurisdiction to examine only questions of law.
The applicant maintained his complaints. He
noted that the defence had not been given an adequate opportunity to
familiarise itself with the case file prior to the commencement of the trial.
Although the defence raised this matter at the preliminary court hearing, they
were again deprived of the opportunity to fully familiarise themselves with the
case materials, even at the trial stage. The applicant further submitted that
throughout the trial he had never been afforded an opportunity to meet with his
lawyers in a confidential setting for a reasonably lengthy period of time. He
noted that the trial hearings took place on weekdays without breaks and lasted
a full day each time, as a result of which there was no time or opportunity for
him to meet with his defence lawyers in a confidential setting, despite a
number of requests in this regard. In such circumstances, the applicant and his
lawyers were forced to discuss various matters concerning the case at the court
hearings themselves, speaking through the bars of the metal cage in which the
applicant was held inside the courtroom, and in the presence of the judge, the
prosecution, the audience and other trial participants. Furthermore, contrary
to the Government’s submissions, the applicant insisted that, during weekends
and public holidays (the only days when no hearings were scheduled), his
lawyers were not allowed access to the MNS Detention Facility in order to meet
with him. Moreover, the applicant claimed that the court routinely refused the
defence’s requests for short (up to half a day) recesses in hearings for the
purpose of preparing requests and submissions.
The applicant further maintained that the Assize Court refused, without giving reasons, all his requests for additional witnesses to
be called, and thus breached his defence rights. In particular, he noted that
he had never been given an opportunity to question the authors of the audit
reports of 27 June, 11 August and 18 December 2006, who as prosecution
witnesses had made statements in those reports which had served as the basis
for his conviction on charges related to unlawful privatisation and abuse of
powers. He further maintained that, although he had provided justification for
his requests for a number of other witnesses to be called, the domestic courts
had refused his requests without giving any plausible reasoning.
Lastly, the applicant argued that the failure
to ensure his presence at the Supreme Court hearing had amounted to an
infringement of his rights under Article 6 of the Convention.
2. The Court’s assessment
As the requirements of paragraph 3 of Article 6
are to be seen as particular aspects of the right to a fair trial guaranteed by
paragraph 1, the Court will examine the complaint under both provisions taken
together (see, among many other authorities, F.C.B.
v. Italy, 28 August 1991, § 29, Series A no. 208-B; Poitrimol
v. France, 23 November 1993, § 29, Series A no. 277-A; Lala
v. the Netherlands, 22 September 1994, § 26, Series A
no. 297-A; and Krombach
v. France, no. 29731/96, § 82, ECHR 2001-II). In doing so, the Court
will examine, in turn, the various grounds giving rise to the present
complaint, in order to determine whether the proceedings, considered as a
whole, were fair (compare Barberà,
Messegué and Jabardo v. Spain, 6 December 1988, §§ 68 et seq.,
Series A no. 146).
(a) Refusal to hear witnesses called by the applicant
in connection with the charges relating to embezzlement and abuse of official
authority
All the evidence must normally be produced in
the presence of the accused at a public hearing with a view to adversarial
argument (see Van Mechelen and Others v. the Netherlands, 23 April
1997, § 51, Reports of Judgments and Decisions 1997-III). Exceptions to this principle are possible, but must not
infringe the rights of the defence, which, as a rule, require that the accused
should be given an adequate and proper opportunity to challenge and question a
witness against him, either when that witness makes his statement or at a later
stage of proceedings (see, among many authorities, Isgrò v. Italy,
19 February 1991, § 34, Series A no. 194-A; Lüdi v. Switzerland,
15 June 1992, § 47, Series A no. 238; Lucà v. Italy, no. 33354/96,
§ 39, ECHR 2001-II; and Al-Khawaja and
Tahery v. the United Kingdom [GC], nos. 26766/05 and
22228/06, § 118, ECHR 2011). There are two requirements
which follow from the above general principle. The first, and preliminary,
requirement is that there must be a good reason for the non-attendance of a
witness (see Al-Khawaja and Tahery, cited above, §§ 119-20, with
further references). The second requirement is that, when
a conviction is based solely or to a decisive degree on depositions that have
been made by a person whom the accused has had no opportunity to examine or to
have examined, whether during the pre-trial stage or at the trial, the rights
of the defence are restricted to an extent that is incompatible with the
guarantees provided by Article 6 (ibid. §§ 119 and 143 et seq., with
further references). Where a conviction is based solely
or decisively on the evidence of absent witnesses, the Court must subject the
proceedings to the most searching scrutiny. The question in each case is
whether there are sufficient counterbalancing factors in place, including
measures that permit a fair and proper assessment of the reliability of that
evidence to take place. This would permit a conviction to be based on such
evidence only if it is sufficiently reliable given its importance in the case (ibid., §
147).
The Court draws
particular attention to the fact that when finding the applicant guilty, the
national courts relied extensively on the audit reports of 27 June, 11
August and 18 December 2006. The courts did not treat
these simply as items of information, but to a large extent accepted the
factual findings in those reports as true, and relied on those findings as
established facts. The Court concludes that in the instant case the conclusions
given by the employees of the Ministry of Finance, the Chamber of
Auditors and other State agencies who had participated in
the preparation of the reports of 27 June, 11 August and 18 December
2006 had a key role in the proceedings against the
applicant in connection with the charges related to embezzlement by way of
unlawful privatisation and abuse of official authority. Accordingly, whereas
the applicant’s conviction on those charges was based to a decisive degree on the
conclusions of the authors of those reports, he should have had an adequate
opportunity to challenge them as witnesses who had made statements against him. It is therefore necessary to determine whether the applicant
expressed a wish to have them examined in open court and, if so, whether he had
such an opportunity (compare, mutatis mutandis, Balsytė-Lideikienė
v. Lithuania, no. 72596/01, §§ 62-66, 4 November 2008).
. The
Court notes that the applicant had not been given an opportunity to question
those witnesses at the pre-trial stage. At the trial stage he requested the Assize Court, on at least seven separate occasions, to have them invited to and questioned
at the trial hearings. On each occasion the Assize Court either refused those
requests without reasoning, or deferred its decision on this matter until a
later stage, explaining that the issue of necessity of inviting those witnesses
for questioning could be decided only after the court had completed its
examination of the evidence produced by the prosecution. In its response to the
applicant’s most recent request, of 30 March 2007, the Assize Court again
postponed making a decision on this issue for an indefinite period of time,
noting that it would decide whether it was necessary to have those witnesses
examined at the court hearings only after the audit reports in question had
been fully read out in the course of the subsequent hearings. However, the Assize Court never returned to this matter again, and thus did not provide any final and
definitive reasoning for not having ultimately called them for questioning.
Despite that, the trial court proceeded to rely on those audit reports in its
judgment convicting the applicant. Accordingly, despite having repeatedly
raised before the trial court the issue of attendance of those witnesses, the
applicant was never given an opportunity to question them or provided with a
reasoned definitive answer to his requests.
. Having
regard to the above, the Court considers that no good reasons were given for
the failure to have the authors of the audit reports of 27 June, 11
August and 18 December 2006 examined at the trial court hearings. Moreover, whereas the conclusions in those reports served to a decisive
degree as the basis for the applicant’s conviction, it has not been shown that
there were sufficient counterbalancing factors put in place for the witnesses’
credibility to be subjected to scrutiny or cast any doubt on their conclusions.
In these circumstances, the Court concludes that the defence rights were
restricted to an extent that is incompatible with the guarantees provided by
Article 6.
. Taking
into consideration the above conclusion, the Court finds it unnecessary to
examine further the refusal by the Assize Court to grant the applicant’s requests
to invite other witnesses.
(b) Issues concerning effective legal assistance and
preparation of the defence
. An
accused’s right to communicate with his legal representative out of the hearing
of third parties is part of the basic requirements of a fair trial in a
democratic society, and follows from Article 6 § 3 (c) of the Convention. If a
lawyer were unable to confer with his client and receive confidential
instructions from him without such surveillance, his assistance would lose much
of its usefulness, whereas the Convention is intended to guarantee rights that
are practical and effective (see S. v. Switzerland, 28 November
1991, § 48, Series A no. 220, and Öcalan v. Turkey [GC], no. 46221/99,
§ 133, ECHR 2005-IV). The importance to the rights
of the defence of ensuring confidentiality in meetings between an accused and
his lawyers has been affirmed in various international instruments, including
European instruments (see Brennan v. the United Kingdom, no.
39846/98, §§ 38-40, ECHR 2001-X). However, restrictions may be imposed on an accused’s access
to his lawyer if good cause exists. The relevant issue is whether, in the light
of the proceedings taken as a whole, the restriction has deprived the accused
of a fair hearing (see Öcalan, cited above, § 133).
. The
Court observes that in the instant case, the charges against the applicant included
numerous and various acts of embezzlement of public property, abuse of official
authority, corruption, and forgery in public office, with various aggravating
circumstances. It further notes that the presentation of those highly complex,
lengthy and detailed charges generated an exceptionally voluminous case file
(see paragraph 16 above) and required examination and assessment of an immense
amount of documentary evidence, witness statements and other material. The
Court considers that in order to prepare his defence to those charges the
applicant required effective and skilled legal assistance equal to the complex
nature of the case.
. The
applicant maintained that he had been unable to confer with his lawyers in a
confidential setting on weekdays when trial hearings were held, and that at
weekends and on other non-working days when no trial hearings were scheduled
his lawyers had not been given access to the MNS Detention Facility where he
was detained. Although the Government maintained that the trial court had
allowed the applicant enough time to consult with his lawyers during trial
hearings, they referred to only one occasion when the Assize Court ordered a
short adjournment of the hearing to allow the defence lawyer to draw up a
submission. It is not possible to determine the total length of that break from
the relevant extract from the transcript of the hearing. Furthermore, while the
Government noted that the Assize Court had sent a letter to the head of
the MNS Detention Facility requesting the latter to provide the applicant with
the opportunity to meet his lawyers outwith the court hearings, they have not
produced any evidence that the applicant’s lawyers were actually allowed
contact with the applicant in the detention facility. In particular, the
Government could have submitted copies of the relevant
extracts of the record book of the MNS entrance-exit checkpoint containing any
entries documenting any visits by the applicant’s lawyers and thus showing that
they had been allowed to meet with the applicant (see, mutatis mutandis,
Farhad Aliyev, cited above, § 159).
. Having
regard to the material in its possession, the Court accepts, in the absence of
any convincing rebuttal from the Government, that the applicant and his lawyers
were not given sufficient opportunities to consult in a confidential setting
throughout the trial. During the trial hearings, which were held every working
weekday and lasted all day, the applicant and his lawyers were not allowed a
sufficient number of adjournments for consultation, and therefore had to speak
to each other during the hearings inside the courtroom, through the metal bars
of the cage in which the applicant was seated, in the presence and within
earshot of all trial participants. At weekends and on other non-working days,
the lawyers’ access to the MNS Detention Facility for meetings with the
applicant was restricted. The Court considers that such restrictions inevitably
prevented the applicant from conversing openly with his lawyers and asking them
questions that were important to the preparation of his defence (compare Öcalan,
cited above, § 133). The rights of the defence, and
in particular the applicant’s right to effective legal assistance, were thus
significantly affected throughout the trial.
. Having
reached the above conclusion, the Court finds it unnecessary to examine the
applicant’s further argument that the defence had not been given sufficient
time and facilities to consult the case file.
(c) Conclusion
In view of the above
findings, the Court concludes that the proceedings in question did not meet the
requirements concerning the defence rights to have witnesses examined and to
effective legal assistance. In the light of this conclusion, the Court
considers it unnecessary to examine further the applicant’s other submissions
in connection with the present complaint, such as the question of his absence
from the hearing before the Supreme Court.
. Accordingly,
there has been a violation of Article 6 § 1 taken together with Article 6 § 3
(c) and (d) of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL
No. 1 TO THE CONVENTION
The applicant complained under Article 1 of
Protocol No. 1 to the Convention about the confiscation of various property
belonging to him and to his relatives. Article 1 of Protocol No. 1 provides as
follows:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
A. The parties’ submissions
The applicant argued that of the confiscated
property the domestic court had unlawfully ordered the confiscation of: (a) a
house, a flat and a garage belonging to his son; (b) a house, three flats and a
garage belonging to his daughter; (c) a house belonging to another relative of
his; and (d) various items of jewellery belonging to his wife, daughter and
daughter-in-law. Furthermore, he noted that the remaining
confiscated property was in his and his wife’s common ownership, and therefore
its confiscation was in breach of his wife’s property rights.
The applicant maintained that the confiscation
order was unfair and unjustified, because it had been imposed as the result of
an unfair trial. He argued that he had acquired most of his property using the
royalty payments he had legally received from the sale of a medicine invented
by him, amounting to USD 10,000,000 million in total, from which he had duly
paid “hundreds of thousands” of United States dollars in taxes. He further
argued that the total amount of the property to be confiscated was incorrectly
determined by the trial court.
The Government submitted that the applicant
could not claim to be a victim in respect of the confiscation of the property
that he alleged belonged to his relatives. They also noted that he had failed
to produce any evidence of his relatives’ ownership right to this property.
The Government further maintained that all the
property in question had been confiscated by judicial decisions concerning the
applicant’s criminal conviction and sentencing. The interference was lawful,
served the general interests of the community and did not impose any excessive
burden on the applicant.
As for the applicant’s claim that he had
acquired the confiscated property using money (USD 10,000,000) he had lawfully
“earned” from the sales of a medicine invented by him, the Government noted
that the applicant had never raised this argument before the domestic courts.
The Government further noted that in any event the applicant had failed to
provide any meaningful evidence of legal income in that amount. They noted that
the only evidence presented was an old newspaper article from 1999 mentioning
that in 1997 and 1998 the applicant had paid around USD 100,000 in taxes.
The Government noted that this was not proper proof of tax payments and that,
in any event, from a total legal income of USD 10,000,000, the amount of
due tax applicable at that time would be around USD 3,500,000 to 4,000,000
which the applicant had never declared or paid.
B. The Court’s assessment
The Court notes that members of the applicant’s
family have lodged separate applications with the Court, in their own names,
concerning the alleged violations of their respective property rights at the
outcome of the criminal proceedings against the applicant. In the present case,
in so far as the applicant claimed that part of the confiscated property was in
the ownership of his family members and relatives, the Court notes that in
essence he was complaining about the alleged violation of other persons’
property rights. In such circumstances, the applicant cannot claim victim
status in respect of the alleged violations and, therefore, the Court finds
that the part of the complaint relating to the part of the property allegedly
owned by the applicant’s family members is incompatible ratione personae
with the provisions of the Convention within the meaning of Article 35 § 3 (a)
and must be rejected in accordance with Article 35 § 4.
As for the remainder of the complaint, the
Court observes that, while the applicant argued that some
of the confiscated property (of unspecified total value) did not belong to him,
at least part of that property constituted his “possessions” forming the object
of his complaint and comprising various sums of cash in different currencies,
various precious metals and items of jewellery, a number of residential
properties, and a car. The Court considers that confiscation of that property
amounts to an interference with the applicant’s right to peaceful enjoyment of
his possessions and that Article 1 of Protocol No. 1 is therefore applicable.
. These
possessions were confiscated by means of imposition of a criminal sanction
provided for in Articles 51 and 179.3 of the Criminal Code, as in force at the
material time (see paragraphs 99 and 100 above). The Court considers that this
confiscation order constituted a “penalty” within the meaning of the Convention
(see Phillips v. the United Kingdom, no. 41087/98, § 51, ECHR
2001-VII). It therefore falls within the scope of
the second paragraph of Article 1 of Protocol No. 1, which, inter alia, allows the
Contracting States to control the use of property to secure the payment of
penalties. However, this provision must be construed in the light of the
general principle set out in the first sentence of the first paragraph and
there must, therefore, exist a reasonable relationship of proportionality
between the means employed and the aim sought to be realised (see, among other
authorities, Allan Jacobsson v. Sweden (no. 1), 25 October 1989,
§ 55, Series A no. 163, and Immobiliare Saffi
v. Italy [GC], no. 22774/93, § 44, ECHR 1999-V).
The Court recognises that the Contracting States enjoy a wide margin of
appreciation under the second paragraph of Article 1 of Protocol No. 1 (see AGOSI
v. the United Kingdom, 24 October 1986, § 52, Series A no. 108).
. As
regards the aim pursued by the penalty of confiscation of property, the Court
notes that it deprived those engaging in embezzlement of public funds of the
proceeds of their crime, and held them liable for the pecuniary damage inflicted
by their criminal actions. The Court accepts that the imposition of this
penalty pursued a legitimate aim in the general interest, namely it served as a
measure preventing and deterring unlawful acquisition of property and
enrichment through criminal activities to the detriment of the community (see, mutatis
mutandis, Silickienė v. Lithuania, no. 20496/02, § 65, 10 April 2012; Phillips, cited above, § 52; and Raimondo v. Italy, 22
February 1994, § 30, Series A no. 281-A).
. The
Court notes that the total value of the property found in the applicant’s
possession and confiscated, while considerable, did not exceed the total amount
of the financial damage the applicant had been found responsible for through
having committed the criminal offences of embezzlement and abuse of official
powers. The confiscation order was imposed in the sentencing procedure that was
an integral part of the criminal trial conducted by a competent court.
. The
Court has previously found that a confiscation order made in the sentencing
procedure conducted in compliance with Article 6 § 1 did not constitute a
disproportionate interference with the right to peaceful enjoyment of
possessions (see Phillips, cited above, §§ 48-53, and Grayson
and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, § 52,
23 September 2008). In both of the above-mentioned cases the confiscation
orders were imposed in separate sentencing proceedings instituted after the
proceedings resulting in the applicants’ criminal conviction, unlike in the
present case, where both the conviction and sentencing were decided by the
trial court in the same proceedings. The Court notes that in the present case the applicant’s complaint under Article 1 of Protocol No.1 is
essentially premised on the argument that the confiscation order had been
wrongful because it had been imposed following a conviction in the criminal
proceedings conducted in breach of Article 6.
. While
it is true that, as has been found above, the criminal proceedings against the
applicant did not comply with certain guarantees of Article 6, the Court nevertheless
cannot accept the applicant’s argument. The Court considers that the applicant’s
assertion could be true if the criminal proceedings against him amounted to a
flagrant denial of justice, that is, were manifestly contrary to the provisions
of Article 6 or the principles embodied therein (see, mutatis mutandis, Stoichkov
v. Bulgaria, no. 9808/02, § 51, 24 March 2005, and Tsonyo
Tsonev v. Bulgaria (no. 3), no. 21124/04, § 59, 16 October
2012, both cases assessing the compatibility with
Article 5 § 1 (a) of the prison sentence imposed at the outcome of the
proceedings conducted in breach of Article 6). This is a stringent test: a
flagrant denial of justice goes beyond mere irregularities or lack of
safeguards in trial procedures that result in a breach of Article 6 of the
Convention. What is required is a breach of the principles of fair trial that
is so fundamental as to amount to a nullification, or destruction of the very
essence, of the right guaranteed by that Article (see Othman (Abu
Qatada) v. the United Kingdom, no. 8139/09, § 260, 17 January 2012). Until now, the Court has found that a flagrant denial of
justice has occurred or would occur only in certain very exceptional
circumstances (see Othman (Abu Qatada), cited above, § 259, and Tsonyo
Tsonev (no. 3), cited above, § 59, for references to specific cases, with
relevant summaries, where the Court found such exceptional circumstances). This
is not the case here. Although the proceedings against the applicant were not
in conformity with the requirements of Article 6 of the Convention, the flaws
that the Court found in them are not of such a nature as to render the entire
trial so fundamentally unfair as to amount to a flagrant denial of justice. In
these circumstances, the Court considers that it would be speculative to assume
that, had the criminal proceedings complied with the relevant fair trial
requirements, the applicant would not have been convicted of the criminal
offences with which he had been charged.
. Specifically
as regards the sentencing part of the domestic decision, the Court notes that
the applicant had an opportunity, of which he appears to have made use, to
advance his arguments against the confiscation in the domestic proceedings
(compare, mutatis mutandis, Saccoccia v. Austria, no. 69917/01,
§ 90, 18 December 2008). Bearing in mind the above, and
having regard to the wide margin of appreciation enjoyed by States in pursuit
of a policy on crime designed to combat the most serious crimes, the Court
considers that the imposition of a confiscation order in the present case, in
itself, was not disproportionate to the legitimate aim pursued.
.
Furthermore, in so far as the applicant could be understood as complaining that
the breach of guarantees of Article 6 of the Convention during the criminal
trial resulted in an incorrect calculation by the domestic court of the amount
of damage inflicted, or in an incorrect assessment of the value of property to
be confiscated, the Court notes that, following the finding of a violation of
Article 6 above, the respondent State is required to review the case (see
paragraph 195 below) wherein the domestic courts will be called upon to
re-examine all the matters relating to the applicant’s conviction and
sentencing, including various assessments relating to pecuniary matters, in compliance with the requirements of Article 6 of the Convention.
. Having
regard to the above considerations, the Court finds that this part of
the application is manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
1. Pecuniary damage
The applicant claimed that his and his
relatives’ confiscated possessions should be returned to him and his relatives.
He further claimed loss of earnings in the amount of AZN 60,000 as the Minister
of Health Care (calculated from the date of his dismissal) and AZN 36,000 as a
member of the Academy of Sciences, from which role he had also been dismissed.
The Government noted that the applicant could
not claim back the confiscated property, as it had been confiscated pursuant to
a lawful court judgment. They further submitted that the applicant could not
claim any salary for the Government post from which he had been dismissed.
Lastly, they noted that his complaint concerning the dismissal from the Academy of Sciences had been declared inadmissible (see Insanov v. Azerbaijan (dec.), no. 16133/08, 19 November 2009) and that therefore he could not claim any
pecuniary damages in connection with that complaint.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects the applicant’s claims.
2. Non-pecuniary damage
The applicant claimed EUR 30,000,000 in respect
of non-pecuniary damage.
The Government submitted that the amount
claimed was excessive and considered that the finding of violations would
constitute in itself sufficient compensation for any non-pecuniary damage
suffered.
The Court considers that the applicant has
suffered non-pecuniary damage which cannot be compensated for solely by the
finding of violations, and that compensation has thus to be awarded. Making its
assessment on an equitable basis, as required by Article 41 of the Convention,
the Court awards the applicant the sum of EUR 10,000 under this head, plus any
tax that may be chargeable on this amount.
The Court reiterates that
when an applicant has been convicted despite a potential infringement of his
rights as guaranteed by Article 6 of the Convention, he should, as far as
possible, be put in the position in which he would have been had the
requirements of that provision not been disregarded (see Piersack v.
Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). As has been found above, the criminal proceedings in the
present case did not comply with the requirements of fairness. In these
circumstances, the most appropriate form of redress would, in principle, be the
reopening of the proceedings in order to guarantee the conduct of the trial in
accordance with the requirements of Article 6 of the Convention (see, mutatis mutandis, Somogyi v. Italy, no. 67972/01,
§ 86, ECHR 2004-IV; Shulepov v. Russia, no. 15435/03, § 46, 26 June 2008; Maksimov v. Azerbaijan, no.
38228/05, § 46, 8 October 2009; and Abbasov v. Azerbaijan, no. 24271/05, §§ 41-42, 17 January 2008). The Court notes in
this connection that the Code of Criminal Procedure of the Republic of Azerbaijan provides for a review of domestic criminal proceedings by the Plenum of
the Supreme Court and remittal of the case for re-examination, if the Court
finds a violation of the Convention (see paragraph 102 above).
B. Costs and expenses
The applicant made no claim in respect of costs
and expenses. Accordingly, the Court makes no award under this head.
C. Default interest rate
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints under Article 3
(concerning the conditions of detention), Article 6 (concerning the civil
proceedings) and Article 6 (concerning the criminal proceedings) admissible and
the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention in respect of the conditions of detention in
Detention Facility no. 1;
3. Holds that there has been a violation of
Article 3 of the Convention in respect of the conditions of detention in Penal
Facility no. 13;
4. Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of the civil proceedings;
5. Holds that there has been a violation of
Article 6 § 1 taken together with Article 6 § 3 (c) and
(d) of the Convention in respect of the criminal proceedings;
6. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR
10,000 (ten thousand euros) in respect of non-pecuniary damage, plus any tax
that may be chargeable, to be converted into Azerbaijani manats at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 March 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
