FIRST SECTION
CASE OF
ZEYNALOV v. AZERBAIJAN
(Application no.
31848/07)
JUDGMENT
STRASBOURG
30
May 2013
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Zeynalov 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,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 7 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
31848/07) 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 Ahmadshah Mammadshah
oglu Zeynalov (Əhmədşah Məmmədşah
oğlu Zeynalov - “the applicant”), on 9 April 2007.
The applicant was represented by Mr A. Nağıyev,
a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were
represented by their Agent, Mr Ç. Asgarov.
The applicant alleged, in particular, that the examination
by the Supreme Court of a criminal case against him had not complied with the
guarantees of Article 6 of the Convention.
On 10 November 2010 the application was
communicated to the Government. It was 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 1935 and lives in Siyazan.
He is a farmer.
Following a dispute over ownership rights to a
plot of land between the applicant and the Sadan Municipality in the district
formerly known as Davachi (“the Municipality”), criminal proceedings were
instituted against the applicant.
On 29 December 2004 the Davachi District Court convicted
the applicant under Article 188 of the Criminal Code (violation of a lawful
owner’s right to a plot of land, by means of unauthorised occupation,
alteration or cultivation thereof) and sentenced him to a fine in the amount of
one hundred conventional financial units (550,000 old Azerbaijani manats, equivalent
to 110 new Azerbaijani manats (AZN), which according to the official exchange
rates published by the Central Bank of the Republic of Azerbaijan amounted to approximately
84 euros (EUR) at the relevant time). The court found that the applicant had unlawfully
occupied and cultivated a plot of land of 0.8 hectares owned by the
Municipality. The Court based its findings on witness statements and
information provided by the State Committee of Land and Cartography (“the
SCLC”).
On an unspecified date, the applicant appealed
against the judgment of 29 December 2004, arguing that the plot of land in
question was part of a larger parcel of land measuring 50 hectares belonging to
his family farming business. On 18 March 2005 the Court of Appeal upheld
the first-instance court’s judgment.
The applicant lodged an appeal on points of law, alleging
that the lower courts had erred in their assessment of the facts. On 9 August
2005 the Supreme Court, composed of a panel of three judges including judge
N.H., quashed the judgment of the Court of Appeal of 18 March 2005 and
remitted the case for a new examination to the Court of Appeal. The Supreme
Court noted, in particular, that the conviction was based on insufficient evidence.
Taking into consideration the findings of the
Supreme Court, the Court of Appeal sent a new request to the SCLC and the
Municipality requesting detailed information about the exact location,
measurements and ownership of the plot of land. The Municipality submitted that,
according to the official records, the plot in question belonged to the Municipality
and not the applicant. The SCLC conducted an on-site inspection of the plot of
land and submitted to the court that the plot in question was part of the
Municipality’s estate. On 12 July 2006 the Court of Appeal delivered a new
judgment upholding the Davachi District Court’s judgment of 29 November
2004 convicting the applicant. The court held that the disputed plot of land
which the applicant cultivated belonged to the Municipality and that the
relevant law had been applied correctly.
The applicant appealed. On 10 October 2006
the Supreme Court, composed of a panel of three judges including judge N.H., examined
the applicant’s appeal. It found that the Court of Appeal had examined all the
relevant and available evidence and had committed no breaches of substantive or
procedural law. Accordingly, the Supreme Court dismissed the applicant’s appeal
and upheld the Court of Appeal’s judgment of 12 July 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant provisions of the Code of Criminal
Procedure of 2000 (“the CCrP”) concerning the disqualification of judges provided
as follows:
Article
109. Objection to a judge
“109.1. An objection
to a judge (or judicial formation) must state reasons ... An objection to a
judge may be considered justified and be granted unconditionally if there
exists at least one of the following grounds precluding a person’s
participation in a criminal proceedings as a judge:
...
109.1.6. if the judge had participated as a judge in
the examination of the same criminal case or another prosecution matter in a
court of first instance or appeal or before the Supreme Court, or on the basis
of newly discovered facts (the judge’s examination of the file at the pre-trial
stage by way of judicial supervision, or the initial hearing of the case, shall
not preclude his subsequently examining the case as a member of the court of
first instance or appeal or the Supreme Court);
...
109.2. In any of the cases covered by Article 109.1
of this Code, the judge shall disqualify himself or herself.”
The following are the relevant provisions of the
CCrP 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.”
In its decision no. 3 of 24 November 2005
concerning the courts’ practice on implementation of the rules concerning
objections to a judge or the bench, the Plenum of the Supreme Court held that
when relevant legal grounds for disqualification exist, a judge must withdraw
from the examination of the case of his or her own accord, even when the parties
to the proceedings have not raised an objection. This requirement to withdraw
is defined by the Plenum as the judge’s “legal duty” (paragraph 3.2). A judge
who has already heard a criminal case in a court of first instance, appeal or cassation,
cannot take part in the re-examination of the same criminal case (paragraph 13).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that judge N.H. had
been a member of both Supreme Court panels that had examined his two successive
appeals on points of law. He noted that the participation of the judge in the
examination of the same case for the second time had been in breach of the
requirements of the domestic procedural law and therefore that the Supreme
Court panel composed in this manner could not have been impartial. Article 6 of
the Convention provides as follows, in the relevant part:
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by an independent and impartial
tribunal established by law.”
A. Admissibility
The Government requested the Court to elaborate
whether in the present case the applicant had suffered a “significant
disadvantage”.
The applicant did not comment on the issue.
The Court considers that in such circumstances
it has to determine whether the applicant’s complaint is admissible under
Article 35 of the Convention, as amended by Protocol No. 14 to the
Convention, which entered into force on 1 June 2010. Protocol No. 14 added a
new admissibility requirement to Article 35 which, in so far as relevant,
provides as follows:
“3. The Court shall declare inadmissible any
individual application submitted under Article 34 if it considers that:
...
(b) the applicant has not suffered a significant
disadvantage, unless respect for human rights as defined in the Convention and
the Protocols thereto requires an examination of the application on the merits
and provided that no case may be rejected on this ground which has not been
duly considered by a domestic tribunal.”
The Court reiterates that the new provision
applies from the date of its entry into force to all applications pending
before the Court, except those which have already been declared admissible (see
Gaftoniuc
v. Romania (dec.), no. 30934/05, § 29, 22 February 2011).
. The
Court notes that the main element of the criterion set by
Article 35 § 3 (b) of the Convention is whether the
applicant has suffered any significant disadvantage (see Ionescu
v. Romania (dec.), no. 36659/04, § 32, 1 June 2010,
and Korolev v. Russia (dec.), no. 25551/05,
1 July 2010).
Inspired by the general principle of de
minimis non curat praetor, this admissibility criterion hinges on the idea
that a violation of a right, however real from a purely legal point of view,
should attain a minimum level of severity to warrant consideration by an
international court. The assessment of this minimum level is, in the
nature of things, relative, and depends on all the circumstances of the case.
The severity of a violation should be assessed taking into account both the
applicant’s subjective perceptions and what is objectively at stake in a
particular case (see Korolev, cited above). The absence of any
significant disadvantage can be based on criteria such as the financial impact
of the matter in dispute or the importance of the case for the applicant (see Ionescu,
cited above, § 34).
In the present case, the Court considers that
account must be taken of the fact that the domestic proceedings which are the
subject of the complaint resulted in the applicant’s criminal conviction. According
to the material in the case file, the applicant committed a relatively minor infraction
which apparently caused no material damage to the Municipality, as the latter
never sought any monetary compensation from the applicant for having cultivated
its land without authorisation. Although it appears that alternative and
arguably more appropriate mechanisms for resolving this property dispute were
available (such as, for example, civil injunction proceedings), the strictest
recourse was chosen: the applicant was convicted and punished under criminal
law. In such circumstances, the right to have the criminal charge against him
determined by an independent and impartial tribunal established by law was a
question of principle for the applicant (see, mutadis mutandis, Diacenco
v. Romania, no. 124/04,
§ 46, 7 February 2012). In the particular circumstances of the present
case, the Court considers that the matter at hand was objectively important for
the applicant and that he cannot be considered not to have suffered a
significant disadvantage.
Moreover, the Court notes that the Supreme Court
upheld, by a final decision, the judgments of the lower courts by which the
applicant was convicted and sentenced to a criminal fine amounting to
approximately EUR 84.
The Court observes that neither of the parties
submitted clear information concerning the applicant’s financial situation.
Nevertheless, it observes that the applicant was a farmer operating a
relatively small farming business together with his relatives.
The Court accordingly dismisses the Government’s
objection. Furthermore, the complaint is not inadmissible on any other grounds;
it must therefore be declared admissible.
B. Merits
The Government admitted that the fact that the
same judge had sat twice as a judge of the Supreme Court in the same criminal case
was contrary to the domestic law. However they submitted that, having regard to
the specific facts of the case at hand, the rights of the applicant guaranteed
under Article 6 of the Convention were not disrespected. The Government
referred to the fact that the Supreme Court had delivered different decisions
in two hearings. In the Supreme Court’s decision of 9 August 2005, the panel of
three judges, including N.H., upheld the applicant’s appeal on points of law,
quashed the original appellate judgment of 18 March 2005 and remitted the case
to the Court of Appeal for a new examination. The Supreme Court noted that the
evidence in the case should be re-examined. In its subsequent decision of
10 October 2006, the panel of three judges of the Supreme Court, including
N. H., upheld the Court of Appeal’s new judgment of 12 July 2006,
declaring the applicant’s appeal on points of law unsubstantiated. It was the
Government’s view that the applicant’s case had been examined by the national
courts in accordance with the guarantees of Article 6 of the Convention.
The applicant reiterated his complaint.
The Court notes that the primary question raised
by this complaint is whether the Supreme Court panel examining the case for the
second time could be considered to be a “tribunal established by law”. In this
case this issue takes precedence over any doubts as to the objective
impartiality of judge N.H. In this regard, the applicant noted, and the Government
accepted in their submissions, that the Supreme Court panel had been composed
in breach of the requirements of the domestic law concerning the disqualification
of judges.
The Court reiterates that
Article 6 of the Convention does not compel the Contracting States to set up
courts of appeal or of cassation. However, where such courts do exist, the
guarantees of Article 6 must be complied with (see Brualla Gómez de
la Torre v. Spain, 19 December 1997, § 37, Reports of Judgments and
Decisions 1997-VIII).
. The
phrase “established by law” covers not only the legal basis for the very existence of a
“tribunal” but also compliance by the tribunal with the particular rules that
govern it and the composition of the bench in each case (see, among other
authorities, Buscarini v. San Marino (dec.),
no. 31657/96, 4 May 2000; Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002; and Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006). The
“law”, within the meaning of Article 6 § 1 of the Convention, comprises
not only legislation providing for the establishment and competence of judicial
organs, but also any other provision of domestic law which, if breached, would
render the participation of one or more judges in the examination of a case
irregular (see, among other authorities, Lavents, cited above, § 114; Gorguiladzé
v. Georgia, no. 4313/04, § 68, 20 October 2009; and Pandjikidzé and
Others v. Georgia, no. 30323/02, § 104, 27 October 2009).
. In
the present case, the Court notes that, as admitted by the Government, Article 109
of the CCrP provided that a judge should be disqualified from hearing any case
which he or she had already heard previously in any of the three levels of ordinary
jurisdiction (see paragraph 12 above). The relevant domestic case-law also
provided a clear interpretation of this rule, which provided that a judge in
such a position should automatically disqualify himself or herself even in the
absence of an objection from the parties (see paragraph 14 above). As judge N.H.
was in the exact same position in the present case, the Court concludes - and,
as noted above, the Government accepted - that the composition of the Supreme
Court’s panel examining the applicant’s second appeal on points of law concerning
the same criminal case was in breach of the relevant domestic rules. Therefore,
it was not a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention.
There has accordingly been a violation of
Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 6 of
the Convention that he had not been provided free legal assistance in the
criminal proceedings against him.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows 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.
III. 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 100,000 euros (EUR) in
respect of pecuniary damage, which covered the income lost owing to the fact
that he and eighteen members of his family had been unable to “engage in any
agricultural activity” for a number of years.
The Government submitted that there was no
causal link between the alleged violation and the claim, and that the applicant
had failed to present any evidence supporting his claim under this head.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim.
2. Non-pecuniary damage
The applicant claimed EUR 50,000 in respect of non-pecuniary
damage.
The Government considered the amount claimed to
be excessive. They submitted that finding a violation in this case would constitute
sufficient compensation in respect of any non-pecuniary damage suffered by the
applicant.
The Court reiterates that
when an applicant has been convicted despite an infringement of the guarantees
of 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, and that, in principle, the most appropriate form of redress
in such a situation would be to ensure that the applicant is granted in due
course a rehearing of the case in compliance with the relevant guarantees (see,
mutatis mutandis, Gurov v. Moldova, no. 36455/02, § 43, 11
July 2006). In the present case, the Court
notes that the possibility exists under Azerbaijani law (see paragraph 13
above) for the applicant, if he so requests, to obtain a rehearing of his
appeal on points of law in the light of the Court’s finding that it was not examined
by a “tribunal established by law”.
. Having
regard to the above and the facts of the present case, the Court considers that
finding of the violation in this case constitutes sufficient
compensation in respect of any non-pecuniary damage suffered by the applicant.
It therefore makes no award under this head.
B. Costs and expenses
The applicant claimed EUR 2,000 for legal fees
in the proceedings before the Court. In connection with this claim, he
submitted a copy of an “agreement” signed by him and his lawyer, according to
which the fee would be paid in the event that the Court delivers a judgment
finding a violation. The applicant also claimed EUR 6,600 for travel expenses allegedly
incurred by him and his eighteen family members to attend domestic court
hearings and meetings with other authorities in connection with the criminal
proceedings, and EUR 15,048 for postal expenses allegedly incurred in
connection with the domestic proceedings.
The Government noted that the “agreement” signed
by the applicant and his lawyer did not qualify as a proper contract for legal
services under domestic law, as it did not stipulate rights and duties of the
parties and terms and conditions of the contract and was not notarised.
Therefore, the Government argued that the “agreement” was not binding, that the
applicant had no legal commitment to pay the lawyer and that, therefore, his
claim for legal fees should be dismissed.
Further, the Government noted that the claim in
respect of travel expenses was unsupported by appropriate evidence and these
expenses were not necessarily incurred. As to the postal expenses, the
Government noted that the applicant had supported this claim by submitting
receipts for a total amount of only approximately 1 Azerbaijani manat (AZN).
Therefore, the Government accepted this claim for an amount of AZN 1.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
As to the claim in respect of the legal fees, when
deciding on just satisfaction claims in the proceedings before it, the Court is
not necessarily bound by the requirements of domestic law concerning the form
of a contract for legal services. Having regard to the submitted written
“agreement” signed by the applicant and his lawyer, the Court considers that it
constitutes evidence of legal fees incurred by the applicant in the proceedings
before the Court. However, having regard to the amount of work necessary and
reasonable in the present case, the Court considers that the sum claimed is
excessive and that EUR 1,000 should be awarded to the applicant under this head,
plus any tax that may be chargeable to the applicant on this amount.
As to the alleged postal expenses, the Court
notes that, contrary to what the Government alleged, the receipts submitted by
the applicant, even though not properly itemised and often not fully legible, appear
to be for a total amount exceeding AZN 1, but nevertheless this total amount is
not EUR 15,048 as claimed by the applicant. In any event, in respect of both the
alleged postal expenses and the alleged travel costs incurred in the domestic
proceedings, the Court considers that these claims are exaggerated, unsupported
by appropriate evidence and irrelevant in the context of the violation found in
the present case. For these reasons, these claims shall be rejected.
C. Default interest
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
1. Declares unanimously the complaint
concerning the composition of the bench of the Supreme Court admissible and the
remainder of the application inadmissible;
2. Holds by six votes to one that there has
been a violation of Article 6 § 1 of the Convention;
3. Holds unanimously that the finding of a
violation constitutes sufficient just satisfaction for any non-pecuniary damage
the applicant may have suffered;
4. Holds unanimously
(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 1,000 (one thousand euros),
plus any tax that may be chargeable to the applicant, in respect of costs and
expenses, 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
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle
Berro-Lefèvre
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is
annexed to this judgment.
I.B.L.
A.M.W.
DISSENTING OPINION OF JUDGE DEDOV
I am not satisfied with the analysis of the impartiality issue
made by the Court in this case. In paragraph 28 the Court notes that “whether
the Supreme Court panel examining the case for the second time could be
considered to be a ‘tribunal established by law’ takes precedence over any
doubts as to the objective impartiality of the judge”, and then goes on to
examine whether the composition of judges of the national Supreme Court was
established in compliance with the requirements of the domestic law.
However, the national Supreme Court quashed the decision of
the lower court for lack of a factual basis to make a decision on the merits.
In these circumstances the objective impartiality of a judge would be
undermined only if the same judge had participated in the examination of the
case in a lower (or a higher) court. So security measures to protect the
objective impartiality of judges should be created in such a manner as to
ensure that the same judge cannot supervise, or be supervised by, himself, and thus
to avoid a conflict of interest. As it appears from the case file, the judge concerned
acted twice in the same capacity.
The Court was reluctant to interpret the domestic law as being
intended to avoid such conflicts of interest, although there was nothing to
prevent it from doing so, as Article 109.1.6 of the Code of Criminal Procedure
(see paragraph 12 of the judgment) is worded in very broad terms. Such a
formalistic approach could adversely affect the functioning of the national
judicial systems of the Contracting States and raise difficulties without any
reasonable and proportional basis.
