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PIRALI ORUJOV v. AZERBAIJAN - 8460/07 [2011] ECHR 187 (3 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/187.html
Cite as:
[2011] ECHR 187
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FIRST
SECTION
CASE OF PIRALI ORUJOV v. AZERBAIJAN
(Application
no. 8460/07)
JUDGMENT
STRASBOURG
3 February
2011
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 Pirali Orujov v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 13 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 8460/07) 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 Pirali Maharram oglu Orujov (Pirəli
Məhərrəm oğlu Orucov
– “the applicant”), on 29 January 2007.
The
applicant was represented by Mr I. Ashurov, a lawyer practising in
Baku. The Azerbaijani Government (“the Government”) were
represented by their Agent, Mr Ç. Asgarov.
The
applicant alleged, in particular, that his right to a fair trial had
been breached as a result of the Supreme Court’s failure to
send him a summons to attend the hearing of his cassation appeal. He
further alleged that his right to the presumption of innocence under
Article 6 § 2 of the Convention had not been respected by the
domestic authorities.
On
29 June 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1958 and lives in Baku.
The
applicant was a lawyer and a member of the opposition Musavat Party.
A. The applicant’s arrest and the application of
the preventive measure of remand in custody
On
11 June 2005 the applicant was arrested by agents of the Ministry of
National Security (“the MNS”) on
suspicion of attempted deliberate destruction of property. The
applicant was charged with the criminal offence of attempted
deliberate destruction of property as set out Articles 29 and 186
of the Criminal Code.
On
13 June 2005, a judge of the Nasimi District Court, relying on the
official charges brought against the applicant and the prosecutor’s
request to apply the preventive measure of remand in custody, ordered
the applicant’s detention for a period of two months.
The
applicant appealed against the Nasimi District Court’s decision
of 13 June 2005, complaining of a lack of evidence or
justification to support the application of the preventive measure of
remand in custody. On 22 June 2005 the Court of Appeal dismissed his
appeal noting that the lower court’s decision was justified.
The
applicant’s detention was subsequently extended twice by the
Nasimi District Court, by its decisions of 6 August and 3 October
2005. Both decisions were upheld by the Court of Appeal following the
applicant’s appeals.
B. Joint statement by law-enforcement authorities
concerning the criminal proceedings against the applicant and the
domestic proceedings relating to this joint statement
On
14 June 2005 the official newspaper Azərbaycan
published a joint statement headlined as “Special Information
of the Prosecutor General’s Office and the Ministry of National
Security of the Republic of Azerbaijan”. This joint statement
officially informed the public of the institution of criminal
proceedings against a group of persons, including the applicant, in
connection with the attempted destruction of property.
It was noted in the joint statement that the applicant and other
persons had intended to blow up the private cars of a judge of the
Court of Appeal and the chairman of ATV, a private television
channel.
The
joint statement of 14 June 2005 stated, inter
alia:
“A.N. confirmed that preparations were being made
to carry out an explosion and stated that the people behind this act
were Orujov Pirali Maharram oglu, who was born in 1958 and resides in
Baku, a person close to the Musavat Party who had worked in different
positions in the internal affairs and military prosecutor authorities
of the Republic of Azerbaijan and has been a retired lieutenant
colonel since 1994, and G.R., who was born in 1958 and works in
Moscow as a businessman.
It has been found that Pirali Orujov introduced A.N.,
known in the circle of the people close to the opposition by the
nickname of “Saboteur” because of his radicalism, to R.G.
in order to discuss the details of the plan to carry out this act and
that they thus entered into criminal complicity. They promised A.N. a
large amount of money for carrying out the explosion and decided not
to communicate with each other by telephone and to discuss any
details only in their private meetings.
The persons mentioned above intended first to blow up
the car of the Court of Appeal’s judge B.S. and a few days
later the car of the president of the independent television company
ATV ...”
On
20 June 2005 the applicant wrote to the Prosecutor General and the
Ombudsman complaining, inter alia, of a violation of his right
to the presumption of innocence caused by the joint statement of the
law enforcement authorities of 14 June 2005. On 27 June 2005 the
applicant again wrote to the Prosecutor General reiterating his
complaint.
On
an unspecified date in July 2005 the applicant brought an action
claiming a violation of his right to the presumption of innocence
relying on Article 449 of the Code of Criminal Procedure (“the
CCrP”) concerning appeals against the prosecuting authorities’
actions and decisions.
On
26 July 2005 the Sabayil District Court dismissed the applicant’s
claim. The court held, inter alia, that the joint statement of
the Prosecutor General’s Office and the MNS could not be
considered as a type of procedural act or decision that could be
challenged under Article 449 of the CCrP.
On
12 August 2005 the applicant appealed against this decision
reiterating his complaints. It appears from the documents in the case
file that the applicant’s appeal was received by a court clerk
on the same day. The applicant has not received any reply to his
appeal.
C. The applicant’s trial and conviction
On
3 March 2006 the Yasamal District Court
delivered a judgment finding the applicant guilty under Articles 29
(attempting to commit a crime)
and 186 (deliberate destruction of or
damage to property) of the Criminal Code
and sentenced him to four years’ imprisonment. The court noted
that the applicant’s guilt had been proved by the testimony of
another accused person and the facts of the case. The applicant
appealed against this judgment, claiming his innocence. He argued
that he had been convicted on the basis of the statements of one
person only and that his guilt had not been established by any other
evidence.
On
26 May 2006 the Court of Appeal dismissed the applicant’s
appeal noting that his guilt had been proved by the facts of the case
and that the relevant law had been applied correctly by the
first-instance court.
By
a decision of 19 September 2006 the Supreme Court upheld the Court of
Appeal’s judgment, noting that the
proceedings before the lower courts had been in accordance with the
relevant law. It appears from the Supreme Court’s decision that
both the applicant and his lawyer were absent from the hearing, but
the prosecutor was present and made oral submissions. The
Supreme Court’s decision stated that, despite
the fact that the applicant’s lawyer had been informed of the
date and place of the cassation hearing, he had failed to appear. The
decision was silent as to the absence of the applicant from this
hearing.
According
to the Government, on 28 August 2006 the Supreme Court informed the
applicant that the cassation appeal hearing concerning his case would
be held on 19 September 2006. According to the applicant, he did not
receive any such summons.
The
applicant was released from prison by a presidential pardon in
December 2007.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of domestic law concerning proceedings in the
Supreme Court are described in detail in the Court’s judgments
in Maksimov v. Azerbaijan
(no. 38228/05, §§ 22-24, 8 October 2009)
and Abbasov v. Azerbaijan (no. 24271/05, §§
19-21, 17 January 2008).
Under
Article 21.1 of the Code of Criminal Procedure (“the CCrP”),
any person suspected of having committed an offence shall be
considered innocent if his guilt is not proven in accordance with
this Code and there is no final court judgment to that effect.
Chapter
LII of the CCrP lays down the procedure by which parties to criminal
proceedings could challenge acts or decisions of the prosecuting
authorities before a court. Article 449 provides that the accused (or
the suspected) person or his counsel can challenge acts or decisions
of the prosecuting authorities concerning, inter
alia, his or her arrest or
detention, refusal to institute criminal proceedings or discontinue
criminal proceedings, violation of an arrested person’s rights,
torture or ill-treatment of a detained person, and so on. The judge
examining the lawfulness of the prosecuting authorities’
actions or decisions can quash them if he or she finds them to be
unlawful (Article 451). The decision of the judge on the lawfulness
of the prosecuting authorities’ actions or decisions can be
disputed before an appellate court in accordance with the procedure
established in Articles 452-453 of the CCrP. A chamber of an
appellate court composed of three judges examines this kind of appeal
within three days of its receipt (Article 453).
Under
Article 455 of the CCrP, the finding of a violation of the provisions
of the Convention for the Protection of Human Rights and Fundamental
Freedoms by the European Court of Human Rights is a ground for
reopening the proceedings. Pursuant to Article 456, in this case, the
Plenum of the Supreme Court examines the case exclusively on points
of law. After the examination of the case, the Plenum of the Supreme
Court may decide to quash the lower courts’ rulings and remit
the case to the relevant lower court, or to vary the decision of the
courts of cassation or other courts, or to quash the decision of the
courts of cassation or other courts and deliver a new decision
(Article 459 of the CCrP).
THE LAW
I. THE GOVERNMENT’S REQUEST FOR THE APPLICATION TO
BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
By
a letter dated 19 January 2010 the Government informed the Court of
their unilateral declaration with a view to resolving the issues
raised by the application in question.
The
declaration read as follows:
“The Government wishes to express – by way
of a unilateral declaration – its acknowledgement that, in the
present case, proceedings before the Supreme Court did not comply
with the requirement of fairness.
Consequently, the Government is prepared to pay the
applicant in compensation a total sum of AZN 1,000 (one thousand
manats). In the Government’s view, the aforementioned total sum
would constitute adequate redress and sufficient compensation for the
impugned proceedings, and thus constitute an acceptable sum as to
quantum in the present case.
The total sum will be payable within three months from
the date of notification of the decision pursuant to Article 37 §
1 (c) of the Convention. In the event of a failure to pay this sum
within the said three-month period, the Government undertake to pay
simple interest on it, from the expiry of that period until
settlement, at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage
points.
In the light of above, the Government would suggest that
the circumstances of the present case allow the Court to reach the
conclusion that there exists “any other reason”, as
referred to in Article 37 § 1 (c) of the Convention, justifying
to discontinue the examination of the application, and that,
moreover, there are no reasons of a general character, as defined in
Article 37 § 1 in fine, which would require the further
examination of the case by virtue of that provision. Accordingly, the
Government invites the Court to strike the application out of its
list of cases.”
In
a letter of 4 March 2010 the applicant disagreed with the
Government’s unilateral declaration noting that the Government
had not acknowledged the violation of Article 6 § 2 of the
Convention. He also argued that the amount of compensation provided
in the Government’s unilateral declaration was too low.
The
Court reiterates that in certain circumstances, it may strike out an
application under Article 37 § 1 (c) on the basis of a
unilateral declaration by a respondent Government even if the
applicant wishes the examination of the case to be continued. To this
end, the Court will examine carefully the declaration in the light of
the principles emerging from its case-law, in particular the Tahsin
Acar judgment (see Tahsin Acar v. Turkey (preliminary
issue) [GC], no. 26307/95, §§ 74-77, ECHR 2003 VI;
Swedish Transport Workers Union v. Sweden (striking out), no.
53507/99, §§ 24-27, 18 July 2006; and Van Houten v. the
Netherlands (striking out), no. 25149/03, §§
34-37, ECHR 2005 IX).
The
Court notes that the Government acknowledged in their unilateral
declaration that the proceedings in the Supreme Court had not
complied with the requirement of fairness and proposed to award the
applicant 1,000 new Azerbaijani manats (AZN). However, the Court
observes that the Government did not undertake to reopen the domestic
proceedings and ensure that the reopened proceedings met all the
requirements of fairness set out in Article 6 of the Convention
(contrast, Seydiyev v. Azerbaijan (dec.), no. 13648/06, 20 May
2010). In this regard, the Court notes that the
nature of the alleged violation in the present case is such that it
would not be possible to eliminate the effects of the infringement of
the applicant’s right to a fair trial without reopening the
domestic proceedings. Moreover, the Court observes that the domestic
law allows the reopening of criminal proceedings in the event of a
finding of a violation of the Convention by the Court. However, it
appears that there is no provision allowing the reopening of domestic
proceedings on account of a decision by the Court to strike a case
out of the list (see paragraph 25 above).
Having
regard to the content of the Government’s unilateral
declaration, the Court finds that the Government have failed to
establish a sufficient basis for finding that respect for human
rights as defined in the Convention and its Protocols does not
require the Court to continue its examination of the case (compare
Hakimi v. Belgium, no. 665/08,
§ 29, 29 June 2010, and Kessler v. Switzerland,
no. 10577/04, § 24, 26 July 2007).
Therefore,
the Court refuses the Government’s request to strike the
application out of its list of cases under Article 37 of the
Convention and will accordingly pursue its examination of the
admissibility and merits of the case.
II. 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 of the hearing of his cassation appeal on
19 September 2006 before the Supreme Court and that he had
therefore not been able to be present at that hearing. The relevant
part of Article 6 § 1 of the Convention reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
The Government argued that the
applicant had failed to exhaust domestic remedies. In particular, the
Government alleged that the applicant could have challenged the
Supreme Court’s decision of 19 September 2006 before the Plenum
of the Supreme Court.
The
applicant disagreed with the Government and maintained his complaint.
The
Court reiterates that it has previously found that the additional
cassation procedure in the Plenum of the Supreme Court did not
constitute a remedy which applicants were normally required to use
within the meaning of Article 35 § 1 of the Convention (see
Babayev v. Azerbaijan (dec.), no. 36454/03, 27 May 2004).
Therefore, the Government’s objection should be dismissed.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 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 been duly informed of the
date and place of the Supreme Court’s hearing of 19 September
2006. They produced a copy of the summons for the hearing before the
Supreme Court signed by a judge of the Supreme Court, addressed to
the applicant and his lawyer and dated 28 August 2006. The summons
stated that the hearing would be held at 10 a.m. on 19 September
2006.
The
applicant maintained that he and his lawyer had not received the
summons.
2. The Court’s assessment
The
Court notes that it was undisputed by the parties that on
19 September 2006 the Supreme Court heard the applicant’s
cassation appeal in his absence. The parties, however, were in
dispute about whether the applicant had been duly informed of that
hearing in advance.
Although
the Government produced a copy of the summons issued on 28 August
2006, the Court notes that this summons was not postmarked and that
the Government put forward no other evidence that it had actually
been sent to the applicant or his lawyer or otherwise delivered to
them. 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 or that the
summons had otherwise been delivered to him (compare with Maksimov,
cited above, § 37; Abbasov, cited above, §
29; and 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, 28 August 1991, §§
66-67, Series A no. 211).
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 the 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 v. Italy, 12 February 1985, § 27,
Series A no. 89, and Stanford v. the United Kingdom, 23
February 1994, § 26, Series A no. 282 A). 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 cassation
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, checked whether the summons had indeed
been served on the applicant. The decision of the Supreme Court was
silent on the issue of the applicant’s absence from the
hearing.
The
Court further observes that in certain cases it has 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, 21 September 1993, Series A no. 268 B,
and Kamasinski v. Austria, 19 December 1989, Series A no.
168). The Court considers, however, that the present case is
distinguishable from the cases of Kremzow and Kamasinski,
where the accused persons were represented by lawyers and in
principle each had the opportunity to present his defence. In the
present case, more fundamentally, the applicant was unable to do this
because he had had no prior notice of the hearing (compare with
Ziliberberg v. Moldova, no. 61821/00, § 41, 1 February
2005; Maksimov, cited above, § 41;
and Abbasov, cited above, § 33).
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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 5 of the Convention
The
applicant complained that he had not been brought promptly before a
judge within forty-eight hours of his arrest as required by the
relevant domestic law, that he had not been informed promptly of the
reasons for his arrest and that there had been no sufficient grounds
for his pre-trial detention.
The
Court reiterates that the date of the “final decision”
for the purpose of Article 35 § 1 of the Convention in
connection with a period of pre-trial detention is the date on which
the charge is determined by a court at first instance, not the date
on which a conviction becomes effective (see, among many other
authorities, Maltabar and Maltabar v. Russia (dec.),
no. 6954/02, 28 June 2007). In this
case, the applicant was convicted at first instance on 3 March 2006
and, consequently, the six-month time-limit concerning this complaint
started running on that date. Taking into
consideration that the application was lodged with the Court on 29
January 2007, the Court notes that this
complaint was lodged out of time and does not comply with the
six-month rule.
Accordingly,
this complaint must be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
B. Article 6 § 2 of the Convention
The
applicant complained that the joint statement made by the Prosecutor
General’s Office and the MNS to the press dated 14 June 2005
amounted to an infringement of his right to the presumption of
innocence.
The
Government submitted that the applicant had not exhausted all
available and effective domestic remedies in respect of the impugned
joint statement of the law-enforcement authorities and, in any event,
had not complied with the six-month rule. In this regard, the
Government submitted that the applicant could have made use of the
procedure concerning appeals against the actions or decisions of
prosecution authorities set out in Articles 449-451 of the CCrP or
lodge a criminal action for defamation. As to the domestic
proceedings instituted by the applicant under Articles 449-451 of the
CCrP, the Government argued that the applicant had failed to appeal
to the Court of Appeal in the context of these proceedings and, even
if there was an appeal and subsequently a relevant decision of the
Court of Appeal in that respect, it would take place in 2005, well
before the applicant lodged his application with the Court. For this
reason, the complaint was incompatible with the six-month rule. The
Government further submitted that the applicant could have complained
of a violation of his presumption of innocence by bringing a separate
court action for defamation under Article 147 of the Criminal Code.
The
applicant contested the Government’s objections and reiterated
his complaints. In particular, he argued that he had exhausted
domestic remedies by submitting his appeal to the Court of Appeal
within the framework of proceedings instituted under Articles 449-451
of the CCrP; however, he had received no reply to his appeal.
53. The Court holds that it is not necessary to decide whether
the applicant can be considered to have exhausted domestic remedies
or whether there existed such special circumstances in the present
case which would dispense the applicant from the obligation to pursue
further remedies in domestic law. Even if there had been no effective
remedies, this does not relieve him of the obligation to comply with
the six-month rule (see, mutatis mutandis, Aydın v.
Turkey (dec.), no. 71998/01, § 39, 4 March 2008).
The
Court reiterates that the aim of the six-month time-limit under
Article 35 § 1 is to promote legal certainty, by ensuring
that cases raising issues under the Convention are dealt with within
a reasonable time and that past decisions are not continuously open
to challenge. It marks out the temporal limits of supervision carried
out by the organs of the Convention and signals to both individuals
and State authorities the period beyond which such supervision is no
longer possible (see, amongst other authorities, Walker v. the
United Kingdom (dec.), no. 34979/97, ECHR 2000 I).
As
a rule, the six-month period runs from the date of the final decision
in the process of exhaustion of domestic remedies. However, where it
is clear from the outset that no effective remedy is available to the
applicant, the period runs from the date of the acts or measures
complained of, or from the date of knowledge of that act or its
effect on or prejudice to the applicant (see Dennis and Others v.
the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor
can Article 35 § 1 be interpreted in a manner which would
require an applicant to seize the Court of his complaint before his
position in connection with the matter has been finally settled at
the domestic level. Therefore, where an applicant avails himself of
an apparently existing remedy and only subsequently becomes aware of
circumstances which render the remedy ineffective, it may be
appropriate for the purposes of Article 35 § 1 to take the start
of the six-month period from the date when the applicant first became
or ought to have become aware of those circumstances (see Paul and
Aubrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June
2001).
In
the present case the Court observes that the event complained of by
the applicant, namely the publication of the joint statement, took
place on 14 June 2005 and the applicant petitioned the Prosecutor
General on 20 and 27 June 2005. He further lodged an action that was
dismissed by the Sabayil District Court on 26 July 2005. As to the
applicant’s appeal of 12 August 2005 against this decision, he
has not received any reply.
Taking
into account the fact that the remedy the applicant attempted to
pursue was apparently ineffective, the Court is of the opinion that
the applicant must have become aware of the remedy’s
ineffectiveness at some point in time. If, as the applicant alleged,
he tried to avail himself of an apparently existing remedy and only
subsequently became aware of circumstances which rendered the remedy
ineffective, it may be appropriate for the purposes of Article 35 §
1 to take the start of the six-month period as the date when the
applicant first became or ought to have become aware of those
circumstances. In the instant case, the applicant lodged his appeal
against the first-instance court’s decision on 12 August 2005.
However, he did not receive any reply to his appeal. Moreover, it
appears that he did not make any further enquires with the Court of
Appeal about the status of his appeal and whether or not it had been
examined. In other words, it has not been shown that, following the
lodging of the appeal, the applicant was diligent in pursuing his
complaints before the appellate court. Taking into consideration the
fact that the Court of Appeal should have
examined this type of appeal within three days of its receipt (see
paragraph 24 above), the Court considers that the applicant
must be considered to have become aware of the lack of any effective
examination of his appeal in the few months directly following the
lodging of his appeal, in other words by the end of 2005 at the
latest. However, he did not lodge the application with the Court
until 29 January 2007, despite the
fact that he had not received any reply to his appeal since 12 August
2005 (compare Bayram and Yıldırım v.
Turkey (dec.), no. 38587/97, 29 January 2002, and Bercaru v.
Romania, no. 8870/02, §§ 33-34, 16 September
2008).
Therefore, the Court considers that the applicant ought
to have become aware of this situation long before lodging this
application with the Court on 29 January 2007. Furthermore, the
applicant has failed to substantiate the existence of specific
circumstances which might have prevented him from observing the
time limit laid down in Article 35 § 1 of the Convention.
It
follows that this complaint must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
C. Articles 3, 6, 13 and 14 of the Convention
The
applicant complained that his conditions of detention at the MNS
detention facility during his pre-trial detention amounted to
ill treatment. He complained that the domestic courts were not
independent or impartial because they were dependent on the executive
authority and that the criminal case against
him had been fabricated. He also complained that the domestic
remedies concerning his criminal conviction had been ineffective and
that he had been discriminated against owing to his political
opinions.
However,
Iin 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
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
IV. 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 11,700 euros (EUR) in respect of pecuniary damage,
of which EUR 7,500 was for expenses borne by his family in order to
provide him with food packages while he was in prison and EUR 4,200
for loss of earnings.
The
Government contested the claim noting that the applicant had failed
to substantiate his allegations. In particular, the Government argued
that the applicant had been provided with food in prison by the State
and that the applicant had failed to submit any documents in support
of his claims.
The
Court points out that under Rule 60 of the Rules of the Court, any
claim for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, failing
which the Court may reject the claim in whole or in part.
In
the present case, as to the applicant’s claim for loss of
earnings, even assuming that there is a causal link between the
damage claimed and the violations found, the Court observes that the
applicant did not submit any documentary evidence supporting this
claim. In particular, he has not submitted any employment contract or
other documents certifying his income.
As
to the applicant’s claim concerning expenses for food packages,
the Court does not discern any causal link between the violations
found and the pecuniary damage alleged.
For
the above reasons, the Court rejects the applicant’s claims in
respect of pecuniary damage.
2. Non-pecuniary damage
The
applicant claimed EUR 10,000 in respect of non pecuniary damage.
The
Government contested the amount claimed as unsubstantiated and
excessive. They considered that, in any event, a finding of a
violation would constitute sufficient just satisfaction.
The
Court considers that the applicant has suffered non-pecuniary damage
which cannot be compensated for solely by the finding of violations
and that compensation should thus be awarded. However, the amount
claimed is excessive. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicant the sum of EUR 3,000 under this head, plus any tax that may
be chargeable on this amount.
The
Court reiterates that when an applicant has been convicted despite a
potential infringement of his rights as guaranteed by Article 6 of
the Convention, he should, as far as possible, be put in the position
in which he would have been had the requirements of that provision
not been disregarded (see Piersack v. Belgium (Article 50),
26 October 1984, § 12, Series A no. 85). As has been found
above, the proceedings before the Supreme Court did not comply with
the requirements of fairness, as the applicant was deprived of the
opportunity to exercise any of his rights under Article 6. In such
circumstances, the most appropriate form of redress would, in
principle, be the reopening of the cassation appeal proceedings in
order to guarantee the examination of his appeal 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, cited above, §
46; and Abbasov. cited above, §§ 41-42). The Court
notes in this connection that Articles 455 and 456 of the Code of
Criminal Procedure of the Republic of Azerbaijan provide that
criminal proceedings may be reopened by the Plenum of the Supreme
Court if the Court finds a violation of the Convention.
B. Costs and expenses
The
applicant claimed EUR 440 for the costs and expenses incurred before
the domestic courts and EUR 550 for those incurred before the Court.
In support of his claim, he submitted a
contract for legal services rendered in the proceedings before the
Court. According to this contract, the amounts due were to be paid in
the event that the Court found a violation of the applicant’s
rights.
The
Government considered that the claim was unsubstantiated and
excessive. In particular, the Government submitted that the applicant
had failed to produce documents concerning legal fees incurred in the
domestic proceedings and that the costs and
expenses related to the legal services before the Court had not
actually been incurred, because the amount claimed had not been paid
by the applicant.
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. In the present case, the
Court notes that the applicant submitted supporting documents only in
respect of the claim for the costs and expenses incurred before the
Court. The Court notes that, although the applicant has not yet
actually paid the legal fees, he is bound to pay them pursuant to a
contractual obligation. Accordingly, in so far as the lawyer is
entitled to seek payment of his fees under the contract, those fees
were “actually incurred” (see Namat
Aliyev v. Azerbaijan, no. 18705/06, §
109, 8 April 2010).
Regard
being had to the above, the Court considers it reasonable to award
the sum of EUR 550, plus any tax that may be chargeable to the
applicant on that sum.
C. 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 complaint under Article 6 § 1
concerning the applicant’s absence from the hearing in the
Supreme Court admissible and the remainder of the application
inadmissible;
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 3,000 (three thousand
euros) in respect of non-pecuniary damage and
EUR 550 (five hundred and fifty euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant on
those amounts, which are to be converted into new Azerbaijani manats
at the rate applicable on 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
