(Application no. 38228/05)
8 October 2009
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 Maksimov v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's original conviction and commutation of death penalty to life imprisonment
B. Cassation proceedings in the Supreme Court
C. Additional cassation proceedings in the Plenum of the Supreme Court
II. RELEVANT DOMESTIC LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. The parties' submissions
2. The Court's assessment
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 8 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judges Kovler, Steiner and Hajiyev is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGES KOVLER, STEINER AND HAJIYEV
We share the conclusions of the Chamber concerning the admissibility of the application and a violation of Article 6 § 1 of the Convention. However we do not agree with point 3 of the operative provisions for the following reasons.
On many occasions the Court, when declaring a violation of Article 6 § 1, has mentioned in its reasoning for the application of Article 41 of the Convention the possibilities afforded by national law of reopening criminal proceedings, leaving it to the discretion of the respondent State, but also of the applicant, to decide how to arrange this issue. Take, for example, two recent judgments delivered by the Chamber. In the Abbasov case the Court stated: “As it was found above, the proceedings before the Supreme Court did not comply with the 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)” (Abbasov v. Azerbaijan, no. 24271/05, § 41-42, 17 January 2008).
In the Shulepov case similar conclusions were reached: “The Court further 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, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004 IV). The Court notes, in this connection, that Article 413 of the Code of Criminal Procedure of the Russian Federation provides that criminal proceedings may be reopened if the Court finds a violation of the Convention” (Shulepov v. Russia, no. 15435/03, § 46, 26 June 2008).
We are satisfied that the Chamber followed this tradition in the present case (see the conclusions in paragraph 46).
The present case is not a “pilot judgment”, unlike Broniowski, Hutten-Czapska, Burdov-2 and some others where the Court dealt with so-called “structural problems” and indicated specific measures to the respondent States to remedy those problems (see, for example, Broniowski v. Poland, no. 31443/96 [G.C.], § 4 of the operative provisions, 22 June 2004, ECHR 2004-V). In another category of cases, concerning detention, the Court called for the immediate release of the applicants (see, for example, Assanidze v. Georgia, no. 71503/01 [G.C.], § 14 of the operative provisions, 8 April 2004, ECHR 2004-II). Lastly, in the operative provisions of judgments in so-called non-enforcement cases the Court has required the respondent States “to secure by appropriate means the enforcement of the award made by the domestic court” (see, for example, Poznakhizina v. Russia, no. 25964/02, 24 February 2005). The Maksimov case does not fall into any of the above-mentioned categories.
In the present case the Chamber overstepped existing practice concerning only a restricted number of cases, broadening it to a wide category of “fair trial” cases, a step which only a Grand Chamber judgment should endorse. For these reasons we are not ready “to run before the train”.