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ABBASOV v. AZERBAIJAN - 24271/05 [2008] ECHR 53 (17 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/53.html
Cite as:
[2008] ECHR 53
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FIRST
SECTION
CASE OF ABBASOV v. AZERBAIJAN
(Application
no. 24271/05)
JUDGMENT
STRASBOURG
17 January
2008
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 Abbasov v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Loukis Loucaides,
Nina Vajić,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 24271/05) 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 Elchin Nariman oglu Abbasov (Elçin
Nəriman oğlu Abbasov – “the
applicant”), on 30 May 2005.
The
applicant, who had been granted legal aid, was represented by
Mr E. Zeynalov. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr C. Asgarov.
The
applicant alleged, in particular, that his right to a fair hearing
was breached as a result of the Supreme Court's failure to send him a
summons to attend the hearing of his appeal.
On
24 October 2006 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
applicant's absence from the appeal hearing to the Government. Under
the provisions of Article 29 § 3 of the Convention, it decided
to examine the merits of the complaint at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's original conviction and release
The
applicant was born in 1964 in Dashkesan, Azerbaijan, and currently
lives in Russia.
The
applicant was a unit commander in the Azerbaijani Army. On 7 October
1994 he was arrested in Ganja, Azerbaijan, due to his alleged
participation in the coup d'Etat organised by S. Huseynov.
On
31 July 1996 the Supreme Court, sitting as a court of first instance
for especially serious crimes, convicted the applicant for high
treason, use of armed forces against the citizens and constitutional
government authorities, creation of illegal armed units, and illegal
possession of weapons. He was sentenced to thirteen years'
imprisonment and confiscation of property. This judgment was final
and not subject to appeal under the rules of criminal procedure
applicable at that time.
Upon
Azerbaijan's admission to the Council of Europe, the applicant's name
was included in the lists of the “alleged political prisoners
in Azerbaijan” submitted to the experts of the Secretary
General.
Pursuant
to a presidential pardon decree of 18 October 2002, the applicant's
sentence was reduced by half.
Pursuant
to another presidential pardon decree of 28 August 2003, the
applicant was released from serving the remainder of his sentence. As
the applicant was no longer imprisoned, no final opinion was adopted
by the experts of the Secretary General on whether he could be
considered as a political prisoner.
B. Cassation proceedings
In
2000 a new Code of Criminal Procedure (“the CCrP”) and
new Criminal Code of the Republic of Azerbaijan were adopted. Before
the new CCrP's entry into force on 1 September 2000, on 14 July 2000
Parliament passed a transitional law allowing the lodging of an
appeal under the new CCrP against the final judgments delivered in
accordance with the old criminal procedure rules (“the
Transitional Law”).
On
11 August 2004 the applicant, using the opportunity granted to him by
the Transitional Law, filed a cassation appeal against the judgment
of 31 July 1996 with the Supreme Court. On 17 August 2004 the Supreme
Court refused to accept the appeal due to the applicant's failure to
enclose a copy of the challenged judgment.
On
4 October 2004 the applicant again filed the cassation appeal, which
was registered by the Supreme Court on 6 October 2004. In his appeal
he noted that, although he had been pardoned and released from
imprisonment, his conviction for high treason remained intact. He
argued that his trial by the first-instance court had been unfair. He
also argued that, under the new Criminal Code the actions for which
he had been convicted could not be qualified as “high treason”.
He asked the court to quash the judgment of 31 July 1996.
According
to the Government, on 15 October 2004 the Supreme Court “informed
the applicant that the appeal hearings concerning his case would be
held on 7 December 2004”. According to the applicant, he did
not receive any such summons and, in general, did not receive any
information concerning his case for several months.
On
27 January 2005 the applicant wrote a letter to the Supreme Court
inquiring about the status of the proceedings. He also requested to
add an issue concerning the confiscation of property to his appeal.
In reply, by a letter dated 15 February 2005, the Head of the
Registry of the Supreme Court informed the applicant that the court
had not received from him any documents in this respect.
On
5 April 2005 the applicant was sent a copy of the Supreme Court
decision concerning his case, dated 7 December 2004. The applicant
was informed that on 7 December 2004 the Supreme Court had examined
his cassation complaint in the presence of a public prosecutor but in
the absence of the applicant. The judgment was silent as to the
reasons for holding the hearing in the applicant's absence. During
the hearing, the prosecutor asked the court to dismiss the appeal.
The court found that the applicant's guilt had been duly established
during the trial in the first-instance court and that his actions had
been properly qualified under the criminal law. Accordingly, the
court dismissed the applicant's appeal as being unsubstantiated.
II. RELEVANT DOMESTIC LAW
In
accordance with the Law of 14 July 2000 on the Adoption and Entry
into Force of the Code of Criminal Procedure of the Republic of
Azerbaijan (“the Transitional Law”), judgments and other
final decisions delivered by first instance courts under the old CCrP
before the entry into force of the new CCrP, may be reconsidered by
an appellate court or the Supreme Court in accordance with the
relevant provisions of the new CCrP.
In
accordance with Article 415.0.3 of the new CCrP, the Supreme Court
may leave the cassation appeal unexamined if the person lodging the
appeal fails to attach to his appeal a copy of the disputed judgment
or decision.
A
cassation appeal lodged with the Supreme Court is transmitted to one
of the judges of the relevant chamber of the Supreme Court for
preliminary examination (Article 418.1 of the CCrP). Within three
days of receiving the appeal, the judge carrying out the preliminary
examination of the appeal must, inter alia, inform the public
prosecutor, the convicted (or acquitted) person and other parties to
the case or interested parties about the time and place of
examination of the merits of the appeal (Articles 418.2 and 418.2.7
of the CCrP).
When
examining the merits of the appeal, the Supreme Court deals only with
the points of law and verifies whether rules of criminal law and
criminal procedure had been applied correctly (Article 419.1 of the
CCrP). The examination on the merits is carried out by a chamber
composed of three judges. The persons having a right to lodge an
appeal and the public prosecutor representing the prosecution before
the Supreme Court have the right to be present at the court hearing
(Article 419.2 of the CCrP).
The
Supreme Court hearing is opened by the president of the chamber who
announces which court decision will be examined and on what grounds,
the composition of the chamber examining the case, and which of the
parties to the criminal proceedings are present at the hearing. The
absence of the person who has lodged the appeal, if he has been duly
informed about 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained under Article 6 § 1 of the Convention that
he had not been informed about the hearing of his cassation appeal on
7 December 2004 before the Supreme Court and that, therefore, he
could not be present at the hearing. He also complained under Article
6 § 3 (b) and (c) of the Convention that, in such
circumstances, he had been unable to organise a proper defence, to
defend himself in person or to seek to be represented by a
State-appointed lawyer during the hearing.
The
Court reiterates that the guarantees contained in Article 6 § 3
are constituent elements, among others, of the general notion of a
fair trial (see Colozza v. Italy, judgment of 12 February
1985, Series A no. 89, p. 14, § 26). In the circumstances
of the present case, the Court considers that, while also having
regard to those guarantees, it should examine the complaint under
Article 6 § 1, which provides as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. Admissibility
The
Court observes that the applicant's original trial was outside the
Court's temporal jurisdiction (see the partial decision on
admissibility of 24 October 2006) and that, at the time of his
conviction, there was no appeal available to him under the old rules
of criminal procedure. The new CCrP and the Transitional Law, adopted
after the applicant's conviction, afforded the applicant the
possibility to file an appeal under the new rules of criminal
procedure against the final judgment delivered under the old rules of
criminal procedure. In this connection, the Court recalls its finding
that Article 6 of the Convention is applicable to appeals in criminal
cases lodged in accordance with the Transitional Law (see Hajiyev
v. Azerbaijan, no. 5548/03, § 32, 16 November 2006).
The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It is
not inadmissible on any other grounds and must therefore be declared
admissible.
B. Merits
1. The parties' submissions
The
Government submitted that, in accordance with Article 419.4 of the
CCrP, if the applicant had been duly informed about the hearing, his
failure to attend the hearing could not prevent it from taking place
in his absence. The Government argued that the applicant had been
duly informed about the date of the hearing. They produced a copy of
the summons signed by the Deputy President of the Supreme Court,
addressed to the applicant and dated 15 October 2004. The summons
stated that the hearing would be held at 10 a.m. on 7 December 2004.
The
applicant maintained that he had not received the summons. He argued
that, as a result of this, he had been deprived of the right to
adversarial proceedings.
2. The Court's assessment
The
Court notes that it was undisputed by the parties that on 7 December
2004 the Supreme Court heard the applicant's cassation appeal in his
absence. The parties, however, were in dispute whether the applicant
had been duly informed about this hearing in advance.
Although
the Government produced a copy of the summons issued on 15 October
2004, the Court notes that this summons was not post marked and
the Government put forward no other evidence that it had actually
been sent to the applicant or otherwise delivered to him. In these
circumstances, the Court is not persuaded by the evidence submitted
by the Government in support of their contention that the applicant
had been duly summoned to the hearing (compare with Metelitsa v.
Russia, no. 33132/02, § 33, 22 June 2006).
The
Court reiterates that the concept of a fair trial includes the
principle of equality of arms and the fundamental right that criminal
proceedings should be adversarial. This means that both prosecution
and defence must be given the opportunity to have knowledge of and
comment on the observations filed and the evidence presented by the
other party (see Brandstetter v. Austria, judgment of 28
August 1991, Series A no. 211, p. 27, §§ 66-67).
Moreover,
Article 6 of the Convention, taken as a whole, guarantees that a
person charged with a criminal offence should, as a general
principle, be entitled to be present and participate effectively in
the hearing concerning the determination of criminal charges against
him. This right is implicit in the very notion of an adversarial
procedure and can also be derived from the guarantees contained in
sub-paragraphs (c), (d) and (e) of paragraph 3 of Article 6 (see
Colozza, cited above, p. 14, § 27, and Stanford v. the
United Kingdom, judgment of 23 February 1994, Series A no. 282 A,
pp. 10-11, § 26). It is difficult to see in the present
case how the applicant could have exercised these rights without
having prior notice of the hearing.
Furthermore,
the Court notes that a public prosecutor was present at the appeal
hearing and made oral submissions to the court. These submissions
were directed at having the applicant's appeal dismissed and his
conviction upheld. In such circumstances and having regard to the
fact that the applicant was not legally represented, it was incumbent
on the Supreme Court to take measures aimed at ensuring the
applicant's presence in order to maintain the adversarial character
of the proceedings. However, there is no indication that the
Supreme Court, while deciding to proceed with the hearing in the
applicant's absence, verified whether the summons had indeed been
served on the applicant. The Supreme Court's decision was silent on
the issue of the applicant's absence from the hearing.
The
Court further recalls that, in certain cases, it found that the
presence in person of the accused at a hearing of an appeal where
only points of law were considered was not crucial (see, for example,
Kremzow v. Austria, judgment of 21 September 1993, Series A
no. 268-B, and Kamasinski v. Austria, judgment of 19 December
1989, Series A no. 168). The Court considers, however, that the
present case is distinguishable from the Kremzow and
Kamasinski cases, where the accused persons were represented
by lawyers and in principle each had the possibility to organise his
defence. In the present case, more fundamentally, the applicant was
unable to do this because he had no prior notice of the hearing
(compare with Ziliberberg v. Moldova, no. 61821/00, § 41,
1 February 2005).
It
follows that the proceedings before the Supreme Court did not comply
with the requirement of fairness. There has accordingly been a
violation of Article 6 § 1 of the Convention.
II. ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
Article
46 of the Convention provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
The
Court reiterates that its judgments are essentially declaratory in
nature and that, in general, it is primarily for the State concerned
to choose, subject to supervision by the Committee of Ministers, the
means to be used in its domestic legal order in order to discharge
its obligation under Article 46 of the Convention (see, among
other authorities, Öcalan v. Turkey [GC], no.
46221/99, § 210, ECHR 2005 IV, and Scozzari and Giunta
v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR
2000 VIII).
However,
exceptionally, with a view to helping the respondent State to fulfil
its obligations under Article 46, the Court will seek to indicate the
type of measure that might be taken in order to put an end to a
systemic situation it has found to exist. In such circumstances, it
may propose various options and leave the choice of measure and its
implementation to the discretion of the State concerned (see, for
example, Broniowski v. Poland [GC], no. 31443/96, § 194,
ECHR 2004-V). In other exceptional cases, the nature of the violation
found may be such as to leave no real choice as to the measures
required to remedy it and the Court may decide to indicate only one
such measure (see, for example, Assanidze v. Georgia [GC],
no. 71503/01, § 202, ECHR 2004-II).
Furthermore,
in a number of cases concerning an infringement of the right to take
part in the trial, the Court has held that the most appropriate form
of redress for a breach of the fairness requirements of Article 6
would be for the applicant to be given a retrial (see, among other
authorities, Somogyi v. Italy, no. 67972/01, § 86, ECHR
2004 IV, and Sejdovic v. Italy [GC], no. 56581/00, §
126, ECHR 2006 ...). A similar position was adopted in cases
concerning an infringement of the right to examine prosecution
witnesses (see Bracci v. Italy, no. 36822/02, § 75, 13
October 2005) and cases where the applicants had been convicted by
courts that did not meet the Convention requirements of independence
and impartiality (see, among other authorities, Gençel v.
Turkey, no. 53431/99, § 27, 23 October 2003; Tahir Duran
v. Turkey, no. 40997/98, § 23, 29 January 2004; and Öcalan,
cited above, § 210).
The
Court observes that in the present case, unlike the cases cited in
the above paragraph, the breach of Article 6 was found to take place
at the appeal stage of the proceedings and not at the trial stage
when the applicant was originally convicted. However, in the
particular circumstances of the present case, the Court finds, for
the following reasons, that this distinguishing element is not of
major importance.
The
Court reiterates that the issue of the fairness of the applicant's
trial by the first instance court was found to fall outside the
Court's competence ratione temporis. However, despite being
precluded from deciding on that issue, the Court cannot ignore the
fact that the applicant was included in the list of “alleged
political prisoners” submitted to the experts of the Secretary
General upon Azerbaijan's accession to the Council of Europe,
indicating that there were certain doubts as to the fairness of the
applicant's conviction in 1996. The subsequent amendments to the
Azerbaijani law on criminal procedure granted the applicant a right
of appeal and it became the only procedural option available to the
applicant at the domestic level to have his conviction reviewed and
to advance his arguments concerning its alleged unfairness. As the
applicant lodged such an appeal after the Convention's entry into
force, the domestic authorities, and in particular the Supreme Court,
must have been especially diligent in ensuring that all the fairness
guarantees of Article 6 be observed during the examination of his
appeal.
As
it was found above, the proceedings before the Supreme Court did not
comply with requirement of fairness as the applicant was deprived of
the opportunity to exercise any of his rights under Article 6 of the
Convention. In such circumstances, the Court considers that a retrial
or the reopening of the case, if requested, represents in principle
an appropriate way of redressing the violation in the present case.
It
is not for the Court to indicate how any new trial (or re examination
of the applicant's appeal) is to proceed and what form it is to take.
The respondent State remains free, subject to monitoring by the
Committee of Ministers, to choose the means by which it will
discharge its obligation to put the applicant, as far as possible, in
the position he would have been in had the requirements of the
Convention not been disregarded (see Piersack v. Belgium
(Article 50), judgment of 26 October 1984, Series A no. 85, p.
16, § 12), provided that such means are compatible with the
conclusions set out in the Court's judgment (see Assanidze,
cited above, § 202, with further references).
B. 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.”
1. Damage
The
applicant claimed 2,500 euros (EUR) in respect of pecuniary damage.
He assessed this to be the value of the property confiscated from him
pursuant to the judgment of 31 July 1996. He argued that a fair
examination of his appeal by the Supreme Court would have resulted in
a “re-characterisation” of his conviction under the
relevant provisions of the new Criminal Code of 2000 which, unlike
the old Code, did not prescribe confiscation of property as a
criminal punishment. The applicant also claimed EUR 3,000 in respect
of non-pecuniary damage.
The
Government did not comment.
As
to the claim in respect of pecuniary damage, the Court cannot
speculate as to what the outcome of the proceedings at issue might
have been if the violation of the Convention had not occurred. It
therefore rejects this claim.
With
regard to non-pecuniary damage, the Court considers that the
violation of the applicant's right to a fair trial must have been
frustrating for him. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable on this amount.
2. Costs and expenses
Being
satisfied with the amount of the legal aid received from the Council
of Europe, the applicant did not make a claim in respect of costs and
expenses. Accordingly, there is no call to award him any amount under
this head.
3. Default interest
The
Court considers it appropriate that the default interest 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
Declares the remainder of the application
admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
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 1,000 (one thousand euros)
in respect of non-pecuniary damage, to be converted into the national
currency at the rate applicable at the date of settlement, plus any
tax that may be chargeable on this amount;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 17 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
