I incorrectly predicted that there was a violation of human rights in FAIG MAMMADOV v. AZERBAIJAN.

Judgment

FIFTH SECTION

CASE OF FAIG MAMMADOV v. AZERBAIJAN

(Application no. 60802/09)

JUDGMENT

STRASBOURG

26 January 2017

FINAL

26/04/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Faig Mammadov v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,Erik Møse,Khanlar Hajiyev,André Potocki,Yonko Grozev,Carlo Ranzoni,Mārtiņš Mits, judges,and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 3 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 60802/09) 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 Faig Mammadov (“the applicant”), on 9 November 2009. 2. The applicant was represented by Ms S. Salimova, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. The applicant alleged, in particular, that the authorities had failed to take measures to ensure his or his lawyer’s attendance at the proceedings following his appeal on points of law. 4. On 30 April 2013 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1962 and is detained in Baku. 6. On 9 June 2008 the Assize Court (Ağır Cinayətlər Məhkəməsi – hereinafter “the Assize Court”), sitting as a court of first instance for serious offences, convicted the applicant and his wife of fraud. The applicant was sentenced to nine years’ imprisonment with confiscation of property, and his wife to seven years’ imprisonment, suspended for five years on probation. 7. On 23 January 2009 the Baku Court of Appeal (Bakı Apellyasiya Məhkəməsi – hereinafter “the Court of Appeal”) overturned the judgment of 9 June 2008, reducing the applicant’s term of imprisonment to seven years and lifting the confiscation of property sanction. 8. The applicant lodged a cassation appeal with the Supreme Court (Ali Məhkəmə – hereinafter “the Supreme Court”). The prosecutor lodged a cassation protest in respect of the judgment of 23 January 2009 with the Supreme Court, requesting that it be set aside and the case remitted to the Court of Appeal. 9. The Supreme Court scheduled the first hearing for 10 June 2009 but adjourned the proceedings until 24 June 2009 at the request of the applicant’s lawyer who pleaded that he had not enough time to familiarise himself with the case-file and collect further evidence. 10. At the hearing of 24 June 2009 the applicant’s lawyer requested another adjournment referring to health problems and lack of time for familiarisation with the case-file. The Supreme Court scheduled the next hearing for 1 July 2009. According to the minutes of the hearing of 24 June 2009 provided by the Government, the applicant’s lawyer was present when the court declared that his request had been granted and that the proceedings were adjourned until 1 July 2009. 11. On 1 July 2009, having examined the case in the absence of the applicant and his lawyer but in the presence of the prosecutor, the Supreme Court dismissed the applicant’s appeal and accepted the prosecutor’s application for supervisory review in part. The prosecutor made oral submissions during the hearing, seeking the dismissal of the applicant’s appeal. 12. The Supreme Court upheld the Court of Appeal’s judgment as regards the applicant’s conviction, but quashed his wife’s conviction, remitting that part of the case to the Court of Appeal for fresh examination. The Supreme Court found that proof of the applicant’s guilt had been duly established during the trial in the first-instance court and the Court of Appeal and that his actions had been properly classified under criminal law. Citing Article 419.4 of the Code of Criminal Procedure, the Supreme Court’s decision stated that the examination of the case was possible in the absence of the applicant and his lawyer given that the lawyer had failed to appear despite having been duly notified and the applicant, who was serving his prison sentence, had made no request to attend. II. RELEVANT DOMESTIC LAW
13. The relevant provisions of the Code of Criminal Procedure (Azərbaycan Respublikasının Cinayət Prosessual Məcəlləsi – hereinafter the “CCrP”), adopted on 20 July 2000 and published in the Official Gazette (Azərbaycan Respublikasının qanunvericilik toplusu), 2000, No 8 (Book II), Article 585, provided as follows:
Article 91. An Accused. “5.25. An accused has the right to participate in hearings before the first-instance and appellate courts and in the examination of the case materials ...”
Article 226Rules governing calling [persons] for questioning
“1. Witnesses, victims, suspects, accused and other persons shall be called [for questioning] to the investigator in person or, in the event that they are not present, by means of a summons addressed to their adult family members, neighbours, or a representative from their housing organisation, work or place of study. They may also be called by telegram, telephone or facsimile message.”
Article 301Arranging a court hearing
“5. After a court hearing has been scheduled the person presiding at the court hearing shall order the court office to arrange for measures which are necessary in order for the court hearing to be held. Persons whose presence at the court hearing is required shall be called in accordance with the rules stipulated by Article 226.”
Article 409Persons who have right to lodge a cassation appeal or a cassation protest
“1. The following persons have the right to lodge a cassation appeal:
1.1. An accused, an acquitted person, or his [or her] counsel or legal representative.”
Article 418Preliminary examination of a cassation appeal or a cassation protest
“1. A cassation appeal lodged with the Supreme Court is allocated to one of the judges of the relevant chamber of the Supreme Court for preliminary examination. 2. The judge carrying out the preliminary examination ... shall ... no later than 3 (three) months after receiving the appeal on points of law or application for supervisory review:
2.7 ... inform the public prosecutor, the accused (or acquitted) person, the victim and other interested parties about the time and place of the examination of the merits of the appeal on points of law or application for supervisory review.”
Article 419Examination of the merits of a cassation appeal or application for supervisory review
“1. When examining the merits of a cassation appeal or a cassation protest, the Supreme Court deals only with the points of law and verifies whether the rules of criminal law and this Code were applied correctly. 2. The examination of the merits of a cassation appeal or a cassation protest is carried out by a chamber composed of three judges. Persons who lodged the appeal in question and the public prosecutor representing the prosecution before the Supreme Court have the right to be present at the court hearing. ...
4. The Supreme Court hearing is opened by the president of the chamber, who announces which court decision is to be examined and on what grounds, the composition of the chamber examining the case, and which of the parties to the criminal proceedings are to be present at the hearing. The absence of the person who has lodged the appeal, if he [she] 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
14. The applicant complained that the Supreme Court failed to take measures to ensure his or his lawyer’s attendance at the hearing examining his cassation appeal. He relied on Article 6 §§ 1 and 3 (c), the relevant part of which reads as follows:
“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 right:
...
(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
15. 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
16. The applicant submitted, in particular, that neither he nor his lawyer had participated in the proceedings before the Supreme Court as the latter, in violation of the domestic procedural rules, had failed to properly inform them of the hearings to be held before it. 17. Relying on the Monnell and Morris v. the United Kingdom, (2 March 1987, Series A no. 115) and Sutter v. Switzerland (11 February 1984, Series A no. 74) judgments, the Government contested the applicant’s allegations, arguing that the applicant and his lawyer had participated in the proceedings before the court of first instance and the Court of Appeal; therefore, the proceedings before the Supreme Court would have been fairly conducted even without their presence as the latter deals only with points of law and does not examine the facts of a case. Moreover, the Government argued that the applicant’s lawyer had been duly informed about the date of each hearing but had failed to participate in the hearing held on 1 July 2009 without giving any reason. Neither the applicant nor his lawyer had expressed any will to request for the applicant’s personal participation in the proceedings. The Government produced copies of the requests, dated 10 and 24 June 2009, submitted by the applicant’s lawyer to the Supreme Court for the adjournment of the respective hearings, together with the minutes of the hearings, which recorded the participation of the applicant’s lawyer. The Government further produced copies of the summons, addressed to all parties to the proceedings including the applicant and dated 26 May 2009, 10 June 2009 and 24 June 2009. 18. The applicant did not comment on this issue. 2. The Court’s assessment
(a) As regards the principle of equality of arms
19. The Court reiterates that in accordance with the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (see, among other authorities, Bulut v. Austria, 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 359, § 47; Öcalan v. Turkey [GC], no. 46221/99, § 140, ECHR 2005‐IV; and Moiseyev v. Russia, no. 62936/00, § 203, 9 October 2008). 20. The Court further reiterates that Article 6 § 1 does not compel the States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before them the fundamental guarantees contained in Article 6 (see, among other authorities, Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11 17 January 1970, and Kudła v. Poland [GC], no. 30210/96, § 122, ECHR 2000‐XI). 21. In the present case the Court notes that the applicant alleged that neither he nor his lawyer had been duly notified in good time of the summons to appear at the hearing of 1 July 2009 before the Supreme Court. 22. It is undisputed that the domestic law – more specifically, Article 419.2 of the Code of Criminal Procedure – guaranteed the applicant the right to take part in the public hearing before the Supreme Court (see paragraph 13 above). 23. The Court notes that there is no disagreement between the parties that the Supreme Court held two hearings, on 10 and 24 June 2009 respectively, and that the applicant’s lawyer was present at those hearings. The hearing of 1 July 2009 was scheduled by the Supreme Court at the hearing held on 24 June 2009 in the presence of the applicant’s defence lawyer; the date and time of the hearing scheduled for 1 July 2009 was entered in the written record of the hearing of 24 June 2009, a copy of which was served on the applicant’s defence lawyer. Such notice is to be considered to constitute a proper summons to the defence to attend the hearing scheduled for 1 July 2009. However, even though he had been properly summoned to the hearings held on 10 and 24 June 2009 respectively, the applicant’s defence lawyer did not appear at the hearing of 1 July 2009, nor did he give any explanation for his absence. 24. Therefore, the present case differs from previous cases against Azerbaijan where the Court found a violation under Article 6 § 1 of the Convention owing to the absence of applicants from proceedings before the Supreme Court (see, among others Abbasov v. Azerbaijan, no. 24271/05, § 33, 17 January 2008, and Mammad Mammadov v. Azerbaijan, no. 38073/06, § 33, 11 October 2011, where the accused were not represented by lawyers and did not have the opportunity to present their defence). 25. The Court considers that in the circumstances of the present case it cannot be said that the defence was not given an opportunity to be present at the hearing held on 1 July 2009 before the Supreme Court. Therefore, even though that hearing was held in the presence of the prosecution and in the absence of the defence, the principle of equality of arms cannot be said to have been infringed. (b) As regards the applicant’s right to be present in person at the hearing held before the Supreme Court
26. The Court notes that 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 in person and to participate effectively in a 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 v. Italy, 12 February 1985, § 27, Series A no. 89; Stanford v. the United Kingdom, 23 February 1994, § 26, Series A no. 282 A; and Sobko v. Ukraine, no. 15102/10, § 69, 17 December 2015). 27. However, 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 Sibgatullin v. Russia, no. 32165/02, § 34, 23 April 2009). The manner in which Article 6 applies to proceedings before courts of appeal 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, and Sobko v. Ukraine, cited above, § 71). In assessing whether any personal attendance was needed, regard must be had to, inter alia, the special features of the proceedings involved and the manner in which the defence’s interests are presented and protected before the court of appeal, particularly in the light of the issues to be decided and their importance for the applicant (see Belziuk v. Poland, 25 March 1998, § 37, Reports of Judgments and Decisions 1998‐II, and Sibgatullin, cited above, § 36). The above‐mentioned considerations are also applicable in respect of proceedings which concern an appeal on points of law (see Sobko v. Ukraine, cited above, §§ 69-83). 28. Furthermore, the compliance with the requirements of fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of the isolated consideration of one particular aspect or one particular incident (see, among other authorities, Moiseyev v. Russia, cited above, § 201). 29. The Court notes that the applicant attended the hearings before the trial and appellate courts and was fully able to present his case personally and with the assistance of his lawyer. 30. Under the Azerbaijani legal system, the Supreme Court, acting as a court of cassation, had jurisdiction to deal with questions of law but not with questions of fact pertaining either to criminal liability or to sentencing. It was not empowered to examine evidence and assess the facts of the case (see paragraph 13 above). 31. The Court notes in this respect that the scope of examination of the case by the Supreme Court was limited. It did not examine any new evidence but only reviewed the findings of the trial court on the basis of the material contained in the case file. Therefore, the applicant’s personal absence did not, in the Court’s view, lead to a disadvantage which was likely to affect the position of the defence (see, by contrast, Zahirović v. Croatia, no. 58590/11, §§ 58 and 63, 25 April 2013). Accordingly, in view of the nature of the proceedings in question, the Court considers that the Supreme Court could have properly determined the issues before it without making a direct assessment of the evidence given by the applicant in person. 32. The Court also notes that the applicant did not contest the Government’s submission that he could have requested his personal attendance at the hearing either himself or through his lawyer who had participated in the previous hearings (see paragraphs 17 and 18 above). In the present case the applicant’s lawyer, even though duly summoned, did not attend the hearing at issue, did not provide any justification for his absence, did not ask for its adjournment, and did not inform the Supreme Court of the applicant’s wish to attend the hearing in person (see paragraph 23 above). At this juncture the Court reiterates that a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes or chosen by the accused. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal-aid scheme or be privately financed (see Cuscani v. the United Kingdom, no. 32771/96, § 39, 24 September 2002, and Siyrak v. Russia, no. 38094/05, § 28, 19 December 2013). (c) Conclusion
33. In the light of the above considerations, the Court concludes that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34. The applicant also complained under Article 6 of the Convention that requests made by him concerning the examination of witnesses before the trial court had not been granted. He also invoked Article 7 of the Convention without adducing any relevant arguments. 35. In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions relied on by the applicant. 36. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 6 §§ 1 and 3 (c) of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention. Done in English, and notified in writing on 26 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident