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FIRST
SECTION
CASE OF MAMMAD MAMMADOV v. AZERBAIJAN
(Application
no. 38073/06)
JUDGMENT
STRASBOURG
11 October
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 Mammad Mammadov v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38073/06)
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 Mammad Ali Oglu Mammadov (“Məmməd
Əli oğlu Məmmədov –
the applicant”), on 6 September 2006.
2. The
applicant was represented by Mr E. Zeynalov, a lawyer practising in
Baku. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç.
Asgarov.
3. 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. The applicant also complained about his absence from the
hearing before the Court of Appeal. He further complained that the
conditions of his detention in Gobustant Prison had amounted to
ill-treatment.
- On
17 November 2009 the President of
the First Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1983 and lives in Baku.
- He
is currently serving a life sentence in Gobustan Prison.
A. The applicant’s criminal conviction
- In
the period from March to December 2001 the applicant, as a member of
a small group of “volunteers” from Azerbaijan, underwent
military training organised by Chechen militants based in Georgia’s
Pankissi Gorge. The aim of this training was subsequent participation
in insurgent operations against the Russian Federal forces in
Chechnya.
- The
applicant returned to Baku in December 2001. On 27 December 2001 he
was arrested. On 17 May 2002 the Assize Court convicted him of
forming an illegal armed group under Article 279.1 of the Criminal
Code and gave him a suspended sentence of four years’
imprisonment.
- On
12 August 2003 the applicant was arrested again. On 12 April 2004 he
was indicted in the Assize Court on charges of premeditated
aggravated murder, firearms smuggling, illegal possession of
firearms, creation of an illegal armed group, and illegal border
crossing under Articles 29, 120, 206, 228, 279 and 318 of the
Criminal Code.
- On
17 June 2004 the Assize Court found the applicant guilty as charged
and sentenced him to life imprisonment.
- On
6 July 2004 the applicant appealed against this judgment. He
complained, in particular, that the facts of the case had not been
assessed correctly, that he had not intended to kill law-enforcement
officers and that the Assize Court had erred in applying and
interpreting the criminal law.
- On
20 August 2004 the Court of Appeal dismissed his appeal and upheld
the first-instance judgment. The appeal hearing was held in the
applicant’s absence. His lawyer was present.
- On
24 December 2005 the applicant lodged a cassation appeal. He
reiterated his previous complaints claiming the misapplication of the
relevant criminal law. He did not complain about his absence from the
hearing before the Court of Appeal.
- On
14 March 2006 the Supreme Court held a hearing in the presence of the
public prosecutor. The applicant and his lawyer had not been summoned
to that hearing. The Supreme Court upheld the lower courts’
judgments.
B. The conditions of the applicant’s detention in
Gobustan Prison
1. The applicant’s version of the conditions of
his detention
- The
applicant is held, together with one other inmate, in a cell
measuring 5.25 x 2.80 metres. The cell has two beds, a
small bedside cupboard, and one small table and two chairs fixed to
the cell floor. The toilet area is separated from the rest of the
cell. The floor and ceiling are made of stone and concrete
respectively. The temperature inside the cell is very high in summer
and very low in winter. Central heating is available, but
insufficient.
- The
window with metal bars has no windowpane in it and, in winter, is
closed with a transparent polyethylene film. The air inside is stale
and the cell cannot be naturally ventilated. The food served in the
prison is often of poor quality and lacks sufficient meat and
vitamins, and the menu is unvaried and monotonous. The inmates are
only allowed thirty to forty minutes of outdoor exercise per day.
2. The Government’s version of the conditions of
the applicant’s detention
- The
applicant’s cell is assigned to two inmates and measures
5.25 x 2.80 metres. The conditions of the applicant’s
detention meet all national and international requirements and
standards. The window of the cell can be opened from the inside. The
window is large enough and does not prevent natural light and fresh
air from coming in. The cell is also equipped with electric lamps, a
ventilator and a radio set.
- Since
June 2008 the prisoners have had the right to watch TV for four hours
per day and for six hours per day at weekends and on holidays. The
prison has a library accessible to the prisoners. Sanitary conditions
are normal and the food served is of good quality. The applicant has
the right to one hour of outdoor exercise per day.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of domestic law concerning proceedings before 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).
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 of the hearing of his cassation appeal on
14 March 2006 before the Supreme Court. He also complained
that the hearing before the Court of Appeal on 20 August 2004 had
been held in his absence. 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 respect of his
complaint concerning his absence from the hearing before the Court of
Appeal. In particular, the Government alleged that the applicant had
not raised this complaint in his cassation appeal to the Supreme
Court. The Government did not comment on the applicant’s and
his lawyer’s absence from the hearing before the Supreme Court.
- The
applicant disagreed with the Government and maintained his
complaints.
- As
to the applicant’s complaint concerning his absence from the
hearing before the Court of Appeal, the Court reiterates that
the rule of exhaustion of domestic remedies referred to in Article 35
of the Convention obliges those seeking to bring their case against
the State before the Court to first use the remedies provided by the
national legal system, thus dispensing the States from answering
before an international body for their actions before they have had
an opportunity to put matters right through their own legal systems.
In order to comply with this rule, normal recourse should be had by
an applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged (see Aksoy v. Turkey,
18 December 1996, §§ 51-52, Reports of Judgments
and Decisions 1996 VI, and Akdivar and Others v. Turkey,
16 September 1996, §§ 65-66, Reports 1996 IV).
- In
the present case, the Court observes that the applicant’s
lawyer did not raise a complaint in this regard at the hearing before
the Court of Appeal. The applicant also failed to raise such a
complaint in his cassation appeal to the Supreme Court, which upheld
the Court of Appeal’s judgment on 14 March 2006. Moreover, he
has never properly raised this complaint before any other domestic
authority at any other time.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
- As
to the applicant’s complaint concerning the Supreme Court’s
failure to inform him of the hearing of his cassation appeal, 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
- The
Government did not comment on the applicant’s complaint.
- The
applicant maintained that he and his lawyer had not been informed of
the date and place of the hearing before the Supreme Court.
2. The Court’s assessment
- The
Court notes that it was undisputed by the parties that on 14 March
2006 the Supreme Court heard the applicant’s cassation appeal
in his and his lawyer’s absence.
- 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 hearing
before the Supreme Court and made oral submissions to that 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’s lawyer was not
present, 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
applicant and his lawyer had been informed of the hearing. 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
personal presence 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 where, 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 3 of the Convention
- The
applicant complained that the conditions of his
detention had been harsh and had amounted to ill-treatment.
- The
Government submitted that the applicant had failed to exhaust the
domestic remedies in respect of his complaint concerning the
conditions of his detention in prison. The Government also rejected
the applicant’s allegations concerning the conditions of his
detention in Gobustan Prison as unsubstantiated.
- The
Court reiterates its view as set out in § 23 above. The Court
observes that the applicant has never raised the complaint concerning
the conditions of his detention before any domestic authority.
Moreover, the applicant did not submit whether there were special
circumstances in the present case which would dispense him from the
obligation to complain about the conditions of his detention before
the domestic authorities or courts. In similar cases concerning the
conditions of an applicant’s detention, the Court has already
found that mere doubts about the effectiveness of a remedy are not
sufficient to dispense with the requirement to make normal use of the
available avenues for redress (see Mammadov v. Azerbaijan,
no. 34445/04, § 52, 11 January 2007, and Kunqurova
v. Azerbaijan (dec.), no. 5117/03, 3 June 2005).
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
B. Articles 3, 5, 6, 13 and 14 of the Convention
- The
applicant complained that he had been ill-treated following his
arrest by law-enforcement officers and that he had been arrested in
an unlawful manner. The applicant also complained that the domestic
courts had been biased and that the hearings in his case had not been
public. He further complained that domestic
remedies had been ineffective and that he had been discriminated
against.
40. However, in 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 (a) as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
III. 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
- The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government did not comment on the applicant’s claim.
- The
Court considers that the applicant has suffered non-pecuniary damage
which cannot be compensated solely by the finding of a violation and
that compensation should thus be awarded. Making its assessment on an
equitable basis, as required by Article 41 of the Convention, the
Court awards the applicant the sum of 4,800 EUR under this head, plus
any tax that may be chargeable on this amount.
- However,
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
was 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 also claimed EUR 2,000 for costs and
expenses incurred before the Court. This claim was not itemised or
supported by any documents.
- The
Government did not comment on the applicant’s claim.
- 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, having regard
to the fact that the applicant failed to produce any supporting
documents, the Court dismisses the claim for costs and expenses.
C. Default interest
- 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
- Declares the complaint under Article 6 § 1
concerning the applicant’s absence from the hearing before 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 4,800 (four thousand and eight hundred
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable to the applicant on that amount, which is 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 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 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
