I incorrectly predicted that there's no violation of human rights in HACIYEV v. AZERBAIJAN.

Judgment

FIFTH SECTION
CASE OF HAJIYEV v. AZERBAIJAN
(Application no. 29648/07)

JUDGMENT

STRASBOURG
19 November 2020

This judgment is final but it may be subject to editorial revision. In the case of Hajiyev v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lado Chanturia, President,Latif Hüseynov,Mattias Guyomar, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to:
the application 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 Arif Hasanbeyovich Hajiyev (Arif Həsənbəyoviç Hacıyev – “the applicant”), on 24 June 2007;
the decision to give notice of the complaints under Article 6 § 3 (c) of the Convention to the Azerbaijani Government (“the Government”) and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 20 October 2020,
Delivers the following judgment, which was adopted on that date. INTRODUCTION
1. The applicant complained under Article 6 § 3 (c) of the Convention that the domestic criminal proceedings against him had been unfair on account of his absence from the appeal hearings in his case. THE FACTS
2. The applicant was born in 1976 and is currently serving a life sentence in Azerbaijan. He was represented by Mr E. Osmanov, a lawyer based in Azerbaijan. 3. The Government were represented by their Agent, Mr. Ç. Əsgərov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 19 April 2006 the Court of Serious Crimes convicted the applicant of committing a number of serious crimes, including participation in an illegal armed group, murder of a person on duty and attempted murder of other persons, illegal possession and supply of weapons, illegal border crossing and forcible resistance to public officials on duty, all committed in a group, and he was sentenced to life imprisonment. During the trial, which he and a number of his co-accused attended in its entirety, the applicant admitted that he had killed one person but stated that he could not have known that the victim was a police officer and that he had never attempted to kill the other police officer. 6. On 3 May 2006 the applicant lodged an appeal against the judgment, arguing that the first-instance court had erroneously assessed the facts of the case and misapplied the law. In particular, the court had failed to take into account the fact that the person he had killed had been in plain clothes and driving a civilian car, and that therefore he could not have known that the victim was a police officer. Furthermore, his conviction for the premediated attempted murder of a second police officer had not been supported by sufficient evidence, and his conviction for illegal border crossing had not been supported by the facts of the case. Moreover, the decision of the first‐instance court to apply the most severe sentence had not been adequately reasoned. 7. On 16 June 2006 the Court of Appeal held a preliminary hearing and decided to hold the main hearing on 28 June 2006. The court further decided to conduct the proceedings “without a court investigation” (məhkəmə istintaqı aparılmadan), summarily rejecting the applicant’s lawyer’s request to the contrary, but with all the accused present, including the applicant. The applicant’s lawyer participated in the preliminary hearing and did not lodge a cassation appeal against that decision. 8. According to the transcript of the main hearing, which was held on 28 June 2006, the presiding judge informed the parties that the applicant had been transferred from the detention facility to the Gobustan High Security Prison and it had therefore not been possible to bring him to the court. He then asked the participants whether they objected to the hearing being held without the applicant being present and no one, including the applicant’s lawyer, voiced any objections in this regard. No objection concerning the applicant’s absence was raised during the subsequent hearings. 9. According to the transcript of the appeal hearings, the Court of Appeal held three more hearings, on 5, 12 and 20 July 2006, at which the applicant’s and the other accused’s lawyers elaborated on their points of appeal without presenting any new evidence. At none of the hearings did the applicant’s lawyer raise an objection concerning the applicant’s absence. 10. On 21 July 2006 the Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the first-instance court. 11. On 8 September 2006 the applicant’s lawyer appended a note to the transcript of the proceedings (məhkəmə prosessinin məhkəmə protokoluna qeydlər) expressing his disagreement with its content and requesting that it be amended. He alleged that, contrary to what had been stated in the transcript, he and the other accused and their lawyers had raised objections to the hearing being held in the applicant’s absence. He further alleged that similar objections had been repeated several times throughout the proceedings. 12. On 22 September 2006 the Court of Appeal dismissed the applicant’s lawyer’s request, finding that his allegations had not been substantiated by the court’s clerk, who was in charge of keeping records of the hearings. The court further found that the only objection that had been made by the applicant’s lawyer had concerned the applicant’s allegedly unlawful transfer to prison before the first-instance judgment had become enforceable, but the objection had not been registered because it had been made after he had expressly agreed to the proposal to hold the hearing without the applicant being present and it had been made orally at the hearing, outside the scope of the procedural rules. 13. On 1 November 2006 the applicant lodged a cassation appeal against the judgment of the Court of Appeal, arguing that, contrary to the requirements of the relevant domestic legislation, he had been transferred from the detention facility to prison before the judgment concerning him had become enforceable. Furthermore, the proceedings in the Court of Appeal had been conducted in his absence despite his lawyer’s consistent objections and the Court of Appeal had failed to enter those objections in the transcript of the hearings and had unlawfully rejected his lawyer’s request to that effect. 14. On 15 December 2006 the applicant’s lawyer filed a supplement to the cassation appeal whereby he informed the Supreme Court of the applicant’s wish to be personally present at the hearing and asked the court to make the necessary arrangements. 15. On 26 December 2006 the Supreme Court held an oral hearing at which the applicant was not present but in which his lawyer participated and made submissions. It did not examine the question of the applicant’s absence from the hearing held in the Court of Appeal. On the same date the Supreme Court delivered a judgment by which it dismissed the applicant’s appeal as being unsubstantiated and upheld his conviction and sentence in their entirety. RELEVANT LEGAL FRAMEWORK
16. The relevant provisions of the Code of Criminal Procedure are described in detail in the Court’s judgment in Abdulgadirov v. Azerbaijan (no. 24510/06, §§ 18-25, 20 June 2013). Furthermore, Article 391.12 of the Code provides that decisions taken by a court of appeal following a preliminary hearing on the complaint or appeal may be appealed against to the cassation court. THE LAW
17. The applicant complained under Article 6 § 3 (c) of the Convention that the Court of Appeal had failed to ensure his personal participation in the hearing concerning the examination of his appeal against the judgment of the first-instance court. As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention, the Court will examine the complaint from the point of view of these two provisions taken together (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 90, 18 December 2018). The relevant parts of Article 6 provide 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;
...”
18. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 19. The applicant submitted, in particular, that he had consistently asked the Court of Appeal to ensure his participation in the proceedings before it. First his lawyer had requested the Court of Appeal at the preliminary hearing to conduct a full-scale examination of his case both on the facts and on the law and to ensure the applicant’s presence at the hearings. His lawyer had then requested the Court of Appeal to redraft the transcript of the hearings to include the consistent objections which he and his client had raised against the proceedings being conducted without the applicant being present. Moreover, the applicant had complained in the cassation appeal that his allegedly unlawful early transfer to prison had been used by the Court of Appeal as a reason for the decision not to transfer him to the courtroom to participate in the proceedings before it. 20. The Government submitted that both the applicant and his lawyer had been duly notified of the time and place of each of the hearings throughout the entire proceedings at all levels of jurisdiction and that they had been given every opportunity to present their objections, comments and statements. They further argued that the applicant had effectively waived his right to be present at the hearings before the Court of Appeal: first, by not lodging a cassation appeal against the Court of Appeal’s decision of 16 June 2006 following the preliminary hearing to limit the examination of the case to questions of law and, second, by not objecting to the hearings being held in his absence. As to the applicant’s argument concerning his lawyer’s objection to the content of the transcript of the hearing, the Government submitted that it had been examined by the Court of Appeal and found to be ungrounded. Even assuming that the applicant’s lawyer’s submissions concerning the applicant’s allegedly unlawful transfer to prison had been inserted into the transcript of the hearing, it still could not be deemed to constitute a proper objection in respect of the applicant’s absence from the hearings. Following his waiver, the applicant had been represented before both the Court of Appeal and the Supreme Court by his lawyer, who had carried out his defence without any hindrance. 21. The applicable general principles under Article 6 §§ 1 and 3 (c) have been stated, inter alia, in Abdulgadirov v. Azerbaijan (no. 24510/06, §§ 33‐37, 20 June 2013). 22. In Abdulgadirov (§ 38), having examined the relevant provisions of the Code of Criminal Procedure, the Court found that the domestic law expressly provided for an accused to be present at appellate hearings at second instance and rejected the Government’s arguments that the domestic law clearly afforded appellate courts the “right” to hold a hearing in the absence of the accused whenever an appeal was examined without a “court investigation” and that the examination of the appeal could not result in the worsening of the defendant’s situation. The Court considers that the analysis and finding it made in Abdulgadirov also apply to the present case. 23. The Court also emphasises that 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’s hearings was in compliance with the requirements of Article 6 of the Convention, which are autonomous in relation to those of national legislation (ibid., § 39). 24. The Court observes that in accordance with Azerbaijani criminal procedure, as in force at the material time, the appellate court had jurisdiction to deal with questions of law and fact pertaining both to criminal liability and to sentencing. If necessary, the appellate court had competence to retry the case and directly examine the evidence and additional materials submitted by the parties. Alternatively, the appellate court could decide to hold a hearing “without a court investigation”, that is to say, without a full rehearing of the case. 25. The applicant formulated his appeal against his conviction and the sentence imposed in a way that indicated that he wished to obtain a review of both the facts and the law. He submitted, in particular, that he had not committed some of the crimes of which he had been accused and that his conviction had been based on insufficient evidence (see paragraph 6 above). The Court considers that these arguments indicate that the applicant wished to secure a review by the Court of Appeal of the factual circumstances in which the crimes had been committed and a new assessment as to the admissibility and reliability of the evidence obtained. Furthermore, in his grounds of appeal the applicant also complained that the first-instance court had not adequately reasoned its decision to apply the most severe sentence provided for in the Criminal Code. Consequently, the issues to be determined by the Court of Appeal in deciding the applicant’s liability were both factual and legal and it was called on to make a full assessment of the factual and legal grounds for his conviction and sentence. 26. The Court also observes that the applicant had already been sentenced to life imprisonment by the first-instance court and that the appeal proceedings could not have resulted in an increased sentence. However, the Court cannot lose sight of the fact that a possible reduction of the applicant’s sentence was at stake for him. 27. Having regard to the criminal proceedings against the applicant in their entirety and taking into account the gravity of what was at stake for him, namely a possible reduction of his sentence, the Court considers that the Court of Appeal could not properly determine the issues before it without a direct assessment of the evidence given by the applicant in person. It follows that in the circumstances of the present case, it was essential to the fairness of the proceedings that the applicant be present at the appeal hearings, unless he had validly waived that right (see Chernega and Others v. Ukraine, no. 74768/10, § 180, 18 June 2019). The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, 12 May 2017, with further references). 28. The Court notes that in the Government’s view the applicant’s failure, first, to lodge a cassation appeal against the Court of Appeal’s decision following the preliminary hearing and, second, to object to the main hearing being held in his absence could be considered to be a waiver of his right to be present at the hearings before the Court of Appeal. 29. However, it is to be observed that at its preliminary hearing on 16 June 2006 the Court of Appeal, as well as finding that a full rehearing of the case was not necessary (in other words, deciding to hold a hearing “without a court investigation”), also decided that the proceedings before it had to be conducted in the presence of all the parties to the case, including the applicant (see paragraph 7 above). Nevertheless, contrary to that decision, at the main hearing held on 28 June 2006 the Court of Appeal decided to continue the hearing in the absence of the applicant and explained its decision by citing the impossibility of transferring him to the courtroom as he had been placed in a high-security prison (see paragraph 8 above). In the circumstances, the Court does not see how the applicant’s failure to lodge a cassation appeal against the Court of Appeal’s decision of 16 June 2006 could be considered to amount to a waiver of his right to be present at the hearings before the Court of Appeal since the decision in question stated that the appellate hearing was to be held in the presence of all the parties to the case, including the applicant. 30. As to the Government’s second argument, the Court notes that the parties are in disagreement as to whether the applicant’s lawyer actually objected to the Court of Appeal’s decision to refrain from transferring the applicant to the court for the main hearing and to conduct the proceedings in his absence. 31. In this connection the Court reiterates that it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them, establish facts and interpret domestic law. The Court will not, in principle, intervene, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable and provided that the proceedings as a whole were fair, as required by Article 6 § 1. In view of the principle that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, the right to a fair trial cannot be seen as effective unless the requests and observations of the parties are truly “heard”, that is to say, properly examined by the tribunal (see Ilgar Mammadov v. Azerbaijan (no. 2), no. 919/15, §§ 205-06, 16 November 2017, with further references). 32. The Court observes that once the transcript of the hearing was made available to the applicant’s lawyer, he immediately asked for its rectification. However, his request was rejected by the same judge who had presided over the hearings before the Court of Appeal (compare Novruz Ismayilov v. Azerbaijan, no. 16794/05, § 85, 20 February 2014). 33. The Court further observes that in his cassation appeal the applicant complained that the proceedings before the Court of Appeal had been conducted in his absence despite his lawyer’s consistent objections. Moreover, he alleged that the Court of Appeal had produced an inaccurate transcript of the hearings by failing to enter those objections in the text and had unlawfully rejected his lawyer’s request in that regard. Furthermore, the applicant expressly requested the Supreme Court to ensure his presence at the hearing before it (see paragraphs 13-14 above). However, there is nothing in the Supreme Court’s decision to indicate that it addressed separately the applicant’s complaints concerning the procedural shortcomings identified in the proceedings before the Court of Appeal. Whilst the Court cannot speculate as to the outcome of the hearing before the Supreme Court, it also takes into account the fact that the latter remained silent as regards the applicant’s request to participate in the cassation proceedings, which would have rectified the above-mentioned shortcomings (see paragraph 15 above). It is therefore clear that the applicant’s complaints before the Supreme Court linked to the Government’s second argument above remained unexamined. Against this background, the Court considers that in the circumstances of the case it cannot be said that the applicant unequivocally, knowingly and intelligently waived his rights under Article 6. 34. Having regard to its findings in paragraphs 27 and 33 above, the Court considers that the criminal proceedings against the applicant in the present case did not comply with the requirements of fairness. There has therefore been a breach of Article 6 §§ 1 and 3 (c) of the Convention. 35. 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.”
36. The applicant claimed 100,000 euros (EUR) in respect of non‐pecuniary damage. 37. The Government submitted that the amount claimed by the applicant was unsubstantiated and excessive and that, in any event, a finding of a violation would constitute sufficient just satisfaction. 38. The Court considers that the applicant has suffered non-pecuniary damage as a result of the violation found. Ruling on an equitable basis, the Court awards him the sum of EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. 39. The applicant did not make any claim for costs and expenses. 40. 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,
(a) that the respondent State is to pay the applicant, within three months, EUR 1,500 (one thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‐pecuniary damage;
(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;
Done in English, and notified in writing on 19 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginLado ChanturiaActing Deputy RegistrarPresident