FIRST SECTION
CASE OF
ABDULGADIROV v. AZERBAIJAN
(Application no.
24510/06)
JUDGMENT
STRASBOURG
20 June 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 Abdulgadirov v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 28 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
24510/06) 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 Rizvan Mammad oglu
Abdulgadirov (Rizvan Məmməd oğlu Abdulqədirov
- “the applicant”), on 29 May 2006.
The applicant was represented by Mr E. Osmanov, a
lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr Ç. Asgarov.
The applicant alleged, in particular, that his absence
from hearings before the Court of Appeal and the Supreme Court had breached his
right to a fair trial.
On 8 June 2009 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 1958 and lives in Baku.
The applicant is a practising Muslim and attended
a mosque, where he met A. Subsequently, A. was arrested by officers of the
Ministry of National Security (“the MNS”) on suspicion of having had contact
with Al-Qaeda in the past and being the leader of a group planning to carry out
terrorist acts in Azerbaijan. The authorities considered the group to be
religious fundamentalists (referred to as “adherents of Wahhabism”).
On 7 September 2004 the applicant was also
arrested by the MNS officers, on suspicion of being associated with that group.
A search of his place of residence, carried out
on the same day, did not reveal any incriminating evidence. However, a hand
grenade was found in the flat of the applicant’s wife, which the MNS officers
had also searched.
The applicant was charged with illegal possession
of a weapon under Article 228.1 of the Criminal Code. In addition to the
applicant, the criminal proceedings involved five other accused (including A.),
all of whom were charged with more serious offences than the applicant. Four of
them were charged with complicity in the preparation of terrorist acts.
On 10 September 2004 the applicant was brought
before a judge, who ordered his detention pending trial.
The applicant was tried by the Assize Court, together with the other five accused. The trial was closed to the public.
According to the applicant, before the Assize Court he argued that the hand
grenade did not belong to him and that it had been “planted” in his wife’s flat
by the MNS officers who, having tricked his wife, had gained access to the flat
about 30 minutes before she, the applicant himself, and two passers-by who
had been asked to witness the search, entered the flat.
On 7 February 2005 the Assize Court convicted
the applicant of illegal possession of a weapon and sentenced him to three
years’ imprisonment. The other accused were convicted of more serious criminal
offences (terrorist activities) and received longer prison sentences, ranging from
five to fourteen years’ imprisonment.
On 18 February 2005 the applicant lodged an
appeal against the judgment, requesting the Court of Appeal to quash the
judgment in the part concerning him and to terminate the criminal case against
him. He reiterated his allegations that the hand grenade had not belonged to
him, that the case file did not contain any other evidence against him, and
that he had not committed the criminal offence for which he had been convicted.
He argued that, in circumstances where the discovery of the hand grenade in his
wife’s flat was essentially the only incriminating evidence against him, the
trial court had failed to take into account the unlawful manner in which the
search had been conducted and to properly assess the admissibility and
reliability of the evidence obtained as a result of the search. He also noted that
the first-instance court had applied the most severe sentence provided for in Article
228.1 of the Criminal Code and had not taken into account his personal circumstances
when imposing the sentence, such as, inter alia, the fact that he
had to provide and care for his aged and ailing mother.
Some of the other defendants also lodged
appeals.
At a preliminary hearing on 22 March 2005, held
in the presence of the public prosecutor but in the absence of the defendants
and their lawyers, the Court of Appeal fixed the date of the hearing on the
merits for 29 March 2005 and decided that only the public prosecutor and the
defendants’ lawyers should be invited to that hearing. The Court of Appeal’s
decision was silent as to whether the defendants or their lawyers had been
informed of the time and place of the preliminary hearing (see paragraph 23
below). It was also silent as to whether the hearing on the merits would be
held with or without a “court investigation” (see paragraph 24 below).
On 29 March 2005 the Court of Appeal examined
the appeals lodged by all six defendants, including the applicant. The court
examined the appeals “without a court investigation”, that is, without a full
rehearing of the case (see paragraph 25 below for an explanation of the differences
in appellate proceedings conducted with and without a “court investigation”). According
to the applicant, the Court of Appeal hearing lasted between ten and twenty
minutes. According to the minutes of the hearing, the applicant was absent but the
applicant’s lawyer and the public prosecutor were present. On the same day the
Court of Appeal upheld the Assize Court’s judgment of 7 February 2005. The
Court of Appeal’s judgment was largely a word-for-word copy of the judgment of
7 February 2005.
On 5 August 2005 the applicant lodged a
cassation appeal with the Supreme Court. He claimed, inter alia, that
his absence from the Court of Appeal’s hearing had breached his rights under the
domestic law. The Supreme Court examined the applicant’s cassation appeal
separately and, on 29 November 2005, upheld the lower courts’ judgments. The Supreme
Court’s decision was silent on the applicant’s complaint about his absence from
the hearing before the Court of Appeal. At the Supreme Court hearing the
applicant was represented by his lawyer but was not present personally.
II. RELEVANT DOMESTIC LAW
A. Competence of an appellate court
In accordance with
Article 397 of the Code of Criminal Procedure (“the CCrP”), an appellate court (second
instance) verifies whether the court of first instance correctly established
the facts of the case and correctly applied the provisions of the criminal law
and the CCrP.
In accordance with Article 398 of the CCrP,
following the examination of an appeal, the appellate court may dismiss the
appeal and uphold the judgment of the first-instance court, quash the
first-instance judgment and deliver a new judgment, quash the first-instance judgment
and terminate the criminal proceedings, or amend the first-instance judgment.
B. Presence of the defendant at appellate hearings
In accordance with Article 91.5.25 of the CCrP,
the accused has the right to be present at hearings before the first-instance
and appellate courts, and to examine the case materials.
In accordance with Article 392.2 of the CCrP, if
the issues raised before the appellate court may lead to the worsening of the
situation of the convicted or acquitted person as a result of the appeal
proceedings, or if the appellate court decides that a full judicial review of
the case (“a court investigation”) is necessary, it is imperative that the
convicted or acquitted person, as well as his or her counsel, be summoned to
the appeal hearings. In such cases the participation of the public prosecutor is
also compulsory. According to the same provision, the participation of the
appellant and the consequences of his or her absence are determined with reference
to the criteria set out in Article 311 of the CCrP.
According to Article 311 of the CCrP, the
accused has a right to participate in all trial hearings and enjoys all the defence
rights provided for in the CCrP. Article 311.2 specifies two exceptional circumstances
where the court can examine the case in absence of the accused: (a) the accused
is abroad and intentionally avoiding attending the hearing; or (b) the person
is charged with a minor criminal offence and has waived his or her right to be
present at the court hearings.
According to Article 311.4 of the CCrP, except for the
circumstances specified in Article 311.2 of the CCrP, if the accused is absent
from the hearing, the court’s examination of the case must be postponed.
C. Procedure for the examination of an appeal by an
appellate court
Under Article 391.1 of the CCrP, the appellate
court must hold a preliminary hearing within fifteen days (in some
circumstances, within thirty days) of receiving an appeal. Persons who have the
right to lodge an appeal, and the public prosecutor, have the right to be
present at the preliminary hearing. These parties must be informed in advance
of the time and place of the preliminary hearing; however, their failure to
attend does not prevent the preliminary hearing from taking place. If a
convicted person who is detained lodges a request to participate in the
preliminary hearing, it is for the court to order that he or she be brought to
the hearing.
During the preliminary hearing the appellate
court examines various admissibility issues and decides on a number of
procedural matters, following which, in accordance with Article 391.3.4 of the
CCrP, it can decide to fix a date for a hearing on the merits. According to
Article 392.1 of the CCrP, if the court decides to proceed with the examination
of the merits of the appeal and fixes a date for a hearing on the merits, it
must also decide on the following issues, inter alia: whether a “court
investigation” is necessary and, if so, its scope; whether it is necessary to
procure additional evidence; and which persons should be invited to attend the
hearing on the merits.
According to Article 394.3 of the CCrP (which
contains further references to Articles 339-341 of the CCrP), if the appellate
court examines the appeal “without a court investigation”, the appeal hearing on
the merits proceeds approximately as follows: the court (a) opens the hearing
by, inter alia, explaining the substance of the first-instance judgment,
summarising the points of appeal and asking if the parties have any objections;
(b) notifies the participants of any additional requests lodged at the
appeal hearing; (c) hears the arguments of the parties concerning the points of
appeal; (d) invites the parties to make closing statements and exercise their
right of reply to the other party’s closing statement (in the manner stipulated
in Articles 339-341 of the CCrP); and (e) closes the hearing and retires to the
deliberations room.
In accordance with Articles 394.4 and 394.6 of the CCrP (which
contain further references to Articles 324-341 of the CCrP), if the appellate
court examines the appeal by means of a “court investigation”, the appellate
hearing essentially takes the form of a full rehearing of the case resembling
the first-instance trial (but limited to the issues raised on appeal).
Specifically, the appellate hearing proceeds approximately as follows: the
court (a) opens the hearing by, inter alia, explaining the substance of
the first-instance judgment, summarising the points of appeal and verifying if the
parties have any objections; (b) begins the “court investigation” by reading
out the operative provisions of the public prosecutor’s indictment, explaining
to the accused the substance of the charges against him and his rights as an
accused, and asking the accused whether he wishes to plead guilty or not
guilty; (c) questions the accused concerning all relevant aspects of the case
and gives the other party the opportunity to cross-examine him, and, where
necessary, examines any other statements made by the accused prior to the trial
stage; (d) determines the order in which evidence will be presented, invites
the parties to present their evidence and examines the evidence in an open
hearing, allowing the parties to cross-examine the witnesses: this includes
hearing witnesses, reading out witness statements, hearing victims, examining
expert opinions, questioning experts, examining material and documentary
evidence, and so on; (e) closes the “court investigation” by notifying the
parties that the court is ready to proceed to closing statements and enquiring
if the parties have any additional requests; (f) invites the parties to make their
closing statement and exercise their right of reply to the other party’s
closing statement; (g) provides an opportunity for the defendant to make a
final plea; and (h) closes the hearing and retires to the deliberations room.
D. Competence of the cassation court and presence of
the defendant at cassation hearings
Under Article 419 of the CCrP, when examining
the merits of an appeal the Supreme Court deals only with points of law, verifying
whether the rules of criminal law and criminal procedure have been applied
correctly. Persons having the right to lodge a cassation appeal, and the public
prosecutor, have the right to be present at the Supreme Court hearing (Article
419.2 of the CCrP). The absence of the person who has lodged the appeal, if he or
she has been duly informed of the hearing, does not prevent the Supreme Court
from deciding to proceed with the hearing in his or her absence (Article 419.4
of the CCrP).
E. Criminal Code
Article 228.1 of the Criminal Code (illegal
acquisition, transfer, sale, storage, transportation or carrying of firearms or
their accessories or explosives) provides for a maximum sentence of three years’
imprisonment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF
THE CONVENTION
The applicant complained that his absence from the
hearings before the Court of Appeal and the Supreme Court had breached his
right to a fair trial under Article 6 §§ 1 and 3 (c) of the Convention, which reads 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:
...
(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 ...”
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 had received
a fair trial in the court proceedings before the first-instance court. He and
his lawyer had participated in all the first-instance hearings. As to the
hearings before the Court of Appeal, the Government submitted that in the
present case the Court of Appeal had decided to examine the merits of the
appeal without a “court investigation” and there had been no possibility of the
worsening of the applicant’s situation as a result of his appeal. In such
circumstances, under Article 392.2 of the CCrP, the Court of Appeal “had the
right to hear the case” in the applicant’s absence. Furthermore, the applicant’s
lawyer had been present at the hearing on the merits and had been given the
opportunity to present arguments on the applicant’s behalf. In particular, in
accordance with Article 394.3 of the CCrP, the defence counsel had made
submissions in support of the appeal. The Government concluded that equality of
arms had been fully ensured in the proceedings before the Court of Appeal.
Concerning the applicant’s absence from the
hearing before the Supreme Court, the Government submitted that, under the
domestic legislation, the Supreme Court was competent to examine the case only
on points of law. As the applicant had been represented by a lawyer before the
Supreme Court, the Government concluded that his absence in person had not
infringed the rights of the defence.
The applicant maintained his complaints.
2. The Court’s assessment
(a) General principles
. The
Court reiterates that the object and purpose
of Article 6 taken as a whole imply that a person “charged with a criminal
offence” is entitled to take part in the hearing. Moreover, sub-paragraphs (c),
(d) and (e) of paragraph 3 guarantee to “everyone charged with a criminal
offence” the right “to defend himself in person”, “to examine or have examined
witnesses” and “to have the free assistance of an interpreter if he cannot
understand or speak the language used in court”, and it is difficult to see how
one can exercise these rights without being present (see Colozza v. Italy,
12 February 1985, § 27, Series A no. 89). The
duty to guarantee the right of a criminal defendant to be present in the
courtroom - either during the original proceedings or in a retrial - ranks as
one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria,
no. 9808/02, § 56, 24 March 2005).
. The personal attendance of the defendant does not
necessarily take on the same crucial significance for an appeal hearing as it
does for the trial (see Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168).
The manner in which Article 6 is applied to proceedings before appellate courts
depends on the special features of the proceedings involved - account must be taken of the entirety of the proceedings in
the domestic legal order and of the role of the appeal court therein (see Ekbatani v. Sweden, 26
May 1988, § 27, Series A no. 134).
. Leave-to-appeal
proceedings and proceedings involving only questions of law, as opposed to
questions of fact, may comply with the requirements of Article 6 even if the
appellant has not been given an opportunity to be heard in person by the appeal
or cassation court, provided that he was heard by the first-instance court
(see, among other authorities, Monnell and Morris v. the United Kingdom,
2 March 1987, § 58, Series A no. 115, as regards the issue of leave to
appeal, and Sutter v. Switzerland, 22 February 1984, § 30,
Series A no. 74, as regards the cassation stage).
. In
appeal proceedings reviewing a case both as to facts and as to law, Article 6
does not always require a right to a public hearing, still less a right to
appear in person (see Fejde v. Sweden, 29 October 1991, § 33, Series
A no. 212-C). In order to decide this
question, regard must be had to, among other
considerations, the specific features of the proceedings in question and the
manner in which the applicant’s interests were actually presented and protected
before the appeal court, particularly in the light of the nature of the issues
to be decided by it and of their importance to the appellant (see, among many
other authorities, Kremzow v. Austria, 21 September 1993, § 59,
Series A no. 268-B; Belziuk v. Poland, 25 March 1998, § 37, Reports
of Judgments and Decisions 1998-II; and Hermi v. Italy [GC], no. 18114/02, § 62, ECHR 2006-XII). For instance, where an appeal
court has to make a full assessment of the issue of guilt or innocence, it
cannot determine the issue without a direct assessment of the evidence given in
person by the accused for the purpose of proving that he did not commit the act
allegedly constituting a criminal offence (see Dondarini v. San Marino,
no. 50545/99, § 27, 6 July 2004).
. The
Court further reiterates that the principle of equality of arms is one of the features
of the wider concept of a fair trial, which also includes the fundamental right
that criminal proceedings should be adversarial. The
principle of equality of arms requires each party to be given a reasonable
opportunity to present his or her case under conditions that do not place him
or her at a substantial disadvantage vis-à-vis his opponent (see Nideröst-Huber
v. Switzerland, 18 February 1997, § 23, Reports 1997-I). The right to an adversarial trial means, in a criminal
case, that both the prosecution and the defence must be given the opportunity
to have knowledge of and comment on the observations made and the evidence
adduced by the other party (see Brandstetter
v. Austria, 28 August 1991, §§ 66-67,
Series A no. 211).
(b) Application of the above principles in the present
case
At the outset, the Court notes that it is not
convinced by the Government’s argument that Article 392.2 of the CCrP clearly affords
the Court of Appeal the “right” to hold a hearing in the absence of the accused
whenever an appeal is examined without a “court investigation” and the
examination of the appeal cannot result in the worsening of the defendant’s
situation. The Court notes that, in general, the CCrP expressly provides for
the accused’s right to be present at appellate hearings at second instance, and
the Court refers, in particular, to Article 91.5.25 of the CCrP in this regard (see
paragraph 20 above). Article 392.2 of the CCrP appears, at first sight, to further
reinforce the importance of this right by outlining circumstances where the presence
of the accused at the hearing is “imperative” (see paragraph 21 above). Moreover,
the Government have not elaborated as to how the accused’s right to be present,
unequivocally declared by Article 91.5.25 of the CCrP, could be ignored in a
situation where the circumstances outlined in Article 392.2 did not obtain. Nor
do they refer to any domestic case-law containing an interpretation of these
legal provisions that would support the Government’s argument. Furthermore, the
CCrP expressly provides for only two exceptions to the accused’s right to be present
at second-instance appeal hearings (see paragraph 22 above), neither of which
applied in the present case.
In any event, the existing requirements of the
domestic law concerning a defendant’s presence in person are not crucial for
the examination of the present complaint, as the Court’s task in the present
case is to determine whether the applicant’s absence from the Court of Appeal
hearings was in compliance with the requirements of Article 6 of the Convention,
which are autonomous in relation to those of national legislation.
. The
Court considers that, in the present case, the issue of the applicant’s absence
from the Court of Appeal hearing on the merits should be assessed in
conjunction with the issue of his and his lawyer’s absence from the same court’s
preliminary hearing.
. The
Court observes that, under the Azerbaijani legal system, the Court of Appeal has
competence to examine points of both fact and law and to conduct a full review
of the assessment of an accused’s guilt or innocence. If necessary, the Court
of Appeal has competence to retry the case and directly examine the evidence,
question witnesses, and so on.
. In his grounds
of appeal, the applicant contested his conviction, and the sentence imposed, on
both factual and legal grounds. He submitted, in particular, that his guilt had
not been proved by lawfully-obtained evidence and that the first-instance court
had failed to properly assess the admissibility and reliability of the only
piece of evidence against him, that is, the discovery of a hand grenade during
a search that was allegedly procedurally flawed. The Court considers that these
arguments indicate that the applicant wished to obtain a review by the Court of
Appeal of the factual circumstances in which the search was conducted and a new
assessment as to the admissibility and reliability of the evidence obtained.
Furthermore, the applicant also complained that the court had applied the most
severe punishment provided for in the relevant provision of the Criminal Code,
without giving due consideration to his personal circumstances. It therefore appears
that in his appeal the applicant called on the Court of Appeal to conduct a
full review of the factual and legal grounds for his conviction and sentencing.
. According
to the Government, the Court of Appeal, at its preliminary hearing of 22 March
2005, decided to dispense with a full rehearing of the case (that is, decided
to hold a hearing “without a court investigation”). However, the Court notes
that, contrary to the Government’s assertion, and despite the requirement of
Article 392.1 of the CCrP (see paragraph 24 above), the Court of Appeal’s
decision of 22 March 2005 did not contain any order in respect of the “court
investigation”, and was in fact silent on that matter (see paragraph 15 above).
Although the Court of Appeal eventually conducted the proceedings “without a court
investigation”, the Court notes that neither in the decision adopted at the
preliminary hearing nor in its judgment on the merits did the Court of Appeal
provide any reasons for its informal decision to proceed in this manner,
or any explanation as to why the applicant’s appeal did not merit an
examination with a “court investigation”.
. Furthermore,
the Court notes, firstly, that at the preliminary hearing of 22 March 2005 the
Court of Appeal heard submissions by the public prosecutor, whereas neither the
applicant nor his lawyer was present. Accordingly, the defence was placed at a
disadvantage vis-à-vis the prosecution, as it was unable to argue in favour of
holding a hearing on the merits “with a court investigation” in order to obtain
a full rehearing of the issues raised in the appeal and, moreover, was not given an opportunity to have knowledge of or comment on the oral submissions of the public prosecutor.
. Secondly,
the merits of the appeal were examined by the Court of Appeal at a single
hearing, attended by the applicant’s lawyer, which lasted between ten and twenty
minutes, where the court reviewed the findings of the court of first instance on
the basis of the material in the case file and heard oral submissions by the
applicant’s lawyer in support of the appeal, as well as the counter-arguments
of the prosecution. The Court notes that, as stated above, the issues
raised by the defence before the appellate court concerned, among other things,
the applicant’s personal circumstances, and therefore,
hearing him directly was necessary.
Having regard to the above, the Court considers
that by holding the preliminary hearing in the absence of the defence, by
dispensing with a full rehearing of the case without a formal decision and
without giving the defence an opportunity to argue otherwise, and by subsequently
examining the merits of the appeal in the applicant’s absence, the Court of
Appeal deprived the applicant of the opportunity to effectively argue his
points of appeal in a manner complying with the principles of equality of arms
and adversarial proceedings, and denied him the right to be heard in person in
connection with points of appeal that, at least prima facie, required
him to be heard directly. The fact that the applicant’s
lawyer was present at the hearing on the merits and was allowed to make very
brief submissions in favour of the appeal did not remedy the situation.
. Furthermore,
having regard to the material in the case file, the Court notes that it cannot
be established that the applicant waived, in any manner, his right to take part
in the appeal hearings (see, for example, Samokhvalov v. Russia, no. 3891/03, §§ 55 et seq., 12 February 2009).
. Accordingly,
there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
. In
view of the above finding, the Court does not consider it necessary to examine separately the applicant’s complaint concerning his absence from the
hearing of the Supreme Court.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Articles 3, 5, 6, 7, 13 and 14 that the conditions
of his detention in prison had been poor; that his arrest and pre-trial
detention had not complied with a number of the requirements of the Convention;
that the Supreme Court had not been impartial because its President (who did
not hear the applicant’s case personally) and the prosecutor who had signed the
applicant’s indictment were the same person; that he should not have been tried
by the Assize Court, which was a court for especially serious crimes; that there
had been no effective domestic remedies in his case; and that he had been
discriminated against on the ground of his alleged association with Wahhabism.
. 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 considers that this part of
the application does not disclose any appearance of the violations alleged by
the applicant. It follows that it is inadmissible under Article 35 § 3 (a) as
manifestly ill-founded and must be rejected pursuant to Article 35 § 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 13,200 euros (EUR) in
respect of pecuniary damage, to cover loss of salary during the period of his
arrest and imprisonment.
The Government submitted that the claim was
unsubstantiated and that the applicant had failed to submit any evidence in
support of it.
The Court considers
that there is no causal link between the alleged pecuniary loss and the
violation found. It therefore rejects the applicant’s
claim under this head.
2. Non-pecuniary damage
The applicant claimed EUR 150,000 in respect of
non-pecuniary damage.
The Government deemed the sum claimed excessive.
They added that if the Court found a violation of the Convention provisions in
his case, the applicant would have the right to a re-examination of his case by
the domestic courts. Therefore a finding of a violation would constitute
sufficient reparation in respect of any non-pecuniary damage suffered by the
applicant.
The Court considers that
the applicant must have endured mental suffering which cannot be compensated
solely by the finding of a violation. Nevertheless, the particular
amount claimed is excessive. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the applicant EUR 2,400
in respect of non-pecuniary damage, plus any tax that may be chargeable to the
applicant.
The Court reiterates that
when an applicant has been convicted despite a potential infringement of his
rights 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 appellate proceedings in the present case did not comply with the
requirements of fairness. In such circumstances, the most appropriate form of
redress would, in principle, be the reopening of the appellate 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 Insanov
v. Azerbaijan, no. 16133/0, § 102, 14 March 2013, for the relevant texts of Articles 455, 456 and 459 of the Code of Criminal Procedure of the
Republic of Azerbaijan).
B. Costs and expenses
The applicant also claimed EUR 4,000 for costs
and expenses incurred before the Court.
The Government submitted that the applicant had failed
to present any supporting documents in respect of this part of the claim.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses in so far as it has been
shown that these have been actually and necessarily incurred and are reasonable
as to quantum. In the present case, having regard to the available documents,
the Court awards the applicant EUR 1,000 for costs and expenses, plus any tax
that may be chargeable to the applicant.
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 UNANIMOUSLY
1. Declares the complaint concerning the fairness
of the appeal proceedings admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 6 §§ 1 and 3 (c) of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 2,400
(two thousand four hundred euros) in respect of non-pecuniary damage and EUR
1,000 (one thousand euros) in respect of costs and expenses, plus any tax that
may be chargeable to the applicant on these amounts, 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
