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FIRST
SECTION
CASE OF NATIG MIRZAYEV v. AZERBAIJAN
(Application
no. 36122/06)
JUDGMENT
STRASBOURG
22 November 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 Natig Mirzayev v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36122/06)
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 a
stateless person, Mr Natig Farhad oglu Mirzayev (“Natiq
Fərhad oğlu Mirzəyev –
the applicant”), on 18 August 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 the conditions of his
detention had been harsh and that he had been denied adequate medical
assistance in prison. He also argued that the domestic
proceedings against the Bayil Prison authorities concerning the
alleged lack of medical assistance had been held in his absence.
- On
26 November 2009 the Court
declared the application partly inadmissible and
decided to communicate the complaints concerning the conditions of
the applicant’s detention, lack of medical assistance and
unfairness of the civil proceedings to the Government.
It 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 1971 in Baku
and is currently serving a life sentence in Gobustan Prison.
A. The applicant’s criminal conviction
- The
applicant was sought by the law-enforcement authorities for
complicity in a number of criminal offences, including two murders,
committed in 1994.
- On
22 October 1998 the applicant was arrested in Russia and on 11 March
1999 he was extradited to Azerbaijan.
- On
24 January 2000 the Supreme Court, sitting as the court of first
instance, convicted the applicant of complicity in two counts of
murder, several counts of theft, illegal possession and sale of
weapons, and hooliganism. The sentences for these offences were
merged, and the applicant was sentenced to life imprisonment and
confiscation of property.
B. The conditions of the applicant’s detention
1. The applicant’s description of the conditions
of detention
- Following
his conviction, in January 2000 the applicant was transferred to the
5th wing of Bayil Prison, formerly designated for convicts sentenced
to death.
- On
5 January 2001 he was transferred to Gobustan Prison, located outside
Baku, where he is currently detained. The applicant is held, together
with one other inmate, in a cell measuring 2.5 x 3.8 metres and 3.5
metres high. 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 has metal bars and no pane 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 allowed only about
half an hour’s outdoor exercise a day.
2. The Government’s description of the conditions
of detention
- After
his transfer to Gobustan Prison, the applicant was detained
respectively in cell 150 in the 5th unit and in cell 184 in the 6th
unit. Since 6 April 2005 he has been detained in cell 188 in the
6th unit. All these cells are intended for two prisoners and their
size is 10 sq. m.
- The
conditions of the applicant’s detention meet all the 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 the entrance of natural light and fresh air. The cell is
also provided with electric lamps, a ventilator and a radio set.
- Since
June 2008 the prisoners have had the right to watch TV for four hours
a day and six hours at weekends and holidays. The prison has a
library accessible to the prisoners. The sanitary conditions are
normal and the food is of good quality. The applicant has the right
to one hour’s outdoor exercise a day.
C. The applicant’s medical treatment during his
imprisonment
1. The applicant’s description of his medical
treatment
- When
he arrived at Bayil Prison, he was in good health and was not
suffering from any illness. In Bayil Prison, the applicant was
initially placed in a cell which had previously accommodated inmates
who were suffering from contagious conditions, and which had not been
disinfected.
- In
February 2000 the applicant was transferred to another cell, which he
shared with A., an inmate suffering from tuberculosis. According to
the applicant, he contracted tuberculosis from his cellmate. He began
to feel the first symptoms of the disease shortly after his transfer
to that cell. He had been in the same cell as A. from 15-16 February
2000 to 20 March 2000, from 19-20 May 2000 to the middle of June or
July and from the beginning of October to 5 January 2001.
- During
that period inmates of the 5th wing of Bayil Prison who were
suffering from tuberculosis were generally not transferred to any
specialised medical facilities but received treatment while remaining
in their cells. There was a high mortality rate among inmates
suffering from tuberculosis.
- Following
his transfer to Gobustan Prison, in June 2001 the applicant was
diagnosed with pulmonary tuberculosis. By that time, he had lost a
significant amount of weight and was coughing blood. On 9 June 2001
he was transferred for in-patient treatment to the Specialised
Medical Establishment for Prisoners with Tuberculosis. He received
treatment based on the World Health Organisation’s DOTS
(Directly Observed Treatment, Short Course) programme.
- On
16 February 2002 the applicant was transferred back to Gobustan
Prison, where he continued to receive outpatient treatment. From 2 to
9 October 2004, from 1 to 8 October 2005, from 26 November to
3 December 2005 and from 24 December 2005 to 10 February
2006 the applicant was sent to various medical facilities for
examination and in patient treatment.
- According
to a statement issued on 16 February 2006 by the Medical Facility of
the Ministry of Justice following the applicant’s latest
examination and in-patient treatment, the applicant was diagnosed
with, inter alia, focal tuberculosis of the upper lobes of
both lungs in the consolidation phase and residual symptoms of
tuberculosis.
2. The Government’s description of the
applicant’s medical treatment
- The
Government submitted that it was doubtful that the applicant had
contracted tuberculosis in Bayil Prison. When he was sharing a cell
with A. in May 2000 the latter had recovered and his disease was not
contagious. In this regard, the Government noted that the applicant
had been diagnosed with tuberculosis in June 2001, when he was in
Gobustan Prison.
- The
applicant was sent to the Specialised Medical Establishment for
Prisoners with Tuberculosis, where he received in-patient treatment
on the basis of the DOTS programme of the WHO. The applicant’s
treatment lasted until 16 February 2002 and after his recovery he was
transferred back to Gobustan Prison.
- On
26 March 2002 the applicant received outpatient treatment with
vitamins. On 7 April 2002 this treatment was completed and the
applicant’s health was considered satisfactory. On 12 June and
8 October 2002 and on 12 March 2003 the applicant was examined by a
doctor and no deterioration of his health was observed.
- The
applicant was subsequently examined, on 24 February 2002, on 1 May
2003, on 3 June 2004 and on 24 October 2005, by a group of doctors in
Gobustan Prison. According to each examination, the applicant was
diagnosed with clinically recovered pulmonary tuberculosis and
prescribed dispensary supervision.
- From
2 to 9 October 2004 the applicant was examined in the prison medical
unit and, according to the clinic laboratory and X-ray examination
results, there was no need for in-patient treatment.
- In
October 2005 the applicant was again instructed to go to the medical
unit, however he refused to go there because of his religious fast.
- Following
examinations on 26 November 2005 and 24 December 2005 the applicant’s
health was pronounced fully improved and it was stated that there was
no need for any special treatment under the DOTS programme.
D. The civil proceedings concerning the alleged lack of
adequate medical assistance
1. Proceedings against the Bayil Prison authorities
- On
10 October 2005 the applicant lodged a civil action against the Bayil
Prison authorities, seeking compensation for damage caused to his
health. He claimed that the prison authorities were directly
responsible for his having contracted tuberculosis, taking into
account the poor conditions of detention and the fact that he had
been held in the same cells as inmates with tuberculosis. In support
of his claims he submitted written statements by other inmates who
had previously been detained in Bayil Prison. The applicant further
asked the court to ensure his presence at the hearings.
- On
24 January 2006 the Sabail District Court dismissed the applicant’s
claim, finding that the applicant had failed to prove that he had
been deliberately placed in a cell with inmates who were ill and had
contracted tuberculosis as a result. The court further held that, in
such circumstances, the Bayil Prison authorities could not be
considered to have ill-treated the applicant in any way. Concerning
the written statements of other inmates detained at that time in
Bayil Prison, the court held that these statements were not reliable,
because as former inmates of Bayil Prison the authors of these
statements could be biased against the administration of Bayil
Prison.
- The
applicant was not personally present at the hearings of the
first instance court, but was represented. The judgment of the
first-instance court was silent as to the applicant’s request
on his attendance at the hearing.
- The
applicant lodged an appeal, reiterating his previous complaints and
his request for leave to appear at the hearings. On 14 July 2006,
having examined the applicant’s appeal in the absence of the
applicant and his representative, the Court of Appeal rejected the
appeal, finding that the applicant’s arguments were
unsubstantiated. Following the applicant’s cassation appeal, on
8 May 2007 the Supreme Court quashed the judgment of 14 July 2006 and
remitted the case to the Court of Appeal for a new examination. The
Supreme Court found that the Court of Appeal had neither examined the
question of the applicant’s participation in the appeal hearing
nor informed his representative about the time and place of the
hearing. The relevant part of the Supreme Court’s decision read
as follows:
“As a court of full
jurisdiction under Article 372.1 of the Code of Civil Procedure, the
appellate court which examines the case on its merits on the basis of
the evidence in the file or additionally submitted evidence,
did not discuss the question of N. Mirzayev’s
impossibility to exercise his right to attend the hearings because of
his imprisonment, thus independent of his will, and did not take any
measure or decision in order to ensure his presence at the hearings.
N. Mirzayev’s representative was not informed of the place and
date of the hearing. Therefore, N. Mirzayev was deprived of the
possibility to attend the hearing on his case and to benefit from the
procedural rights provided for by Article 47.2 of the Code of Civil
Procedure”.
- On
26 September 2007, having examined the case in the absence of the
applicant but in the presence of his representative, the Baku Court
of Appeal dismissed the applicant’s appeal and upheld the
Sabail District Court’s judgment of 24 January 2006. The
appellate court’s judgment was silent as to the applicant’s
request for leave to appear.
- On
26 February 2008 the Supreme Court dismissed the applicant’s
cassation appeal and upheld the Baku Court of Appeal judgment. The
proceedings before the Supreme Court were held in the applicant’s
absence, but in the presence of his lawyer. The Supreme Court noted
that the absence of the applicant was not a ground for quashing the
appellate court’s judgment, because the applicant had been
represented in those proceedings. The Supreme Court also noted that
the applicant’s personal presence was not mandatory and his
presence should be secured only if the court considered it necessary.
The relevant part of the Supreme Court’s decision read as
follows:
“It appears from the legislation that the right to
call a person who is represented before the court by a
representative, to attend the hearing in person belong to the court
which examines the case, only if this court considers it necessary,
and the application of this provision is not mandatory ...
...
taking into consideration the fact that N. Mirzayev’s presence
at the hearing was not necessary, because he was represented by his
representative when the appellate court examined the case, the panel
of court considers unfounded to quash the judgment for the lack of N.
Mirzayev’s presence at the hearing.”
2. Proceedings against the Gobustan Prison authorities
- In
June 2008, the applicant lodged a civil action against the Gobustan
Prison authorities, seeking compensation for damage caused to his
health. He complained in particular that adequate medical assistance
was not available in Gobustan Prison. The application was drafted in
Russian.
- On
4 July 2008 the Garadagh District Court refused to admit the
applicant’s complaint. The court held that the application had
been drafted in Russian, not in Azerbaijani, which is the official
language of the country, and that no justification had been given for
drafting the application in Russian.
- Following
an appeal by the applicant against this decision, the Garadagh
District Court agreed to hear the applicant’s complaint and on
4 September 2008 held a preliminary hearing. At the request of
the applicant’s representative, the court commissioned an
expert report on the applicant’s illness and adjourned the
proceedings.
- The
proceedings were then adjourned because of the expiration of the
power of attorney of the applicant’s representative. On 17
March 2009 the court decided to leave the applicant’s complaint
unexamined due to the failure of both the claimant and the defendant
to attend the hearing.
- The
proceedings were subsequently continued and on 15 February 2010 the
Garadagh District Court delivered a judgment on the merits. The court
dismissed the applicant’s complaint, noting that the applicant
had been provided with adequate medical assistance after he was
diagnosed with tuberculosis. The court also held that the applicant’s
allegations had not been confirmed by the expert opinion, according
to which it was impossible to establish that the applicant had
contracted tuberculosis in prison.
- On
25 March 2010 the applicant appealed against the first-instance
court’s judgment and reiterated his previous complaints.
- The
proceedings before the appellate court are still pending.
II. RELEVANT DOMESTIC LAW
- Parties
to civil proceedings may appear before a court in person or act
through their representative (Articles 47, 49 and 69 of the Code of
Civil Procedure (“the CCP”)).
- The
Code on Execution of Punishments (“the CEP”) provides
that a convicted person may be transferred from a prison to an
investigative unit if his participation is required as a witness,
suspect or accused in connection with certain investigative measures
(Article 69-1). The CEP is silent as to the possibility for a
convicted person to take part in civil proceedings, whether as a
plaintiff or a defendant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 of the Convention that the
domestic courts had not ensured his attendance at the hearings in the
proceedings against the Bayil Prison authorities concerning his
complaint of lack of adequate medical assistance. He maintained that
his presence would have been particularly important having regard to
the fact that the domestic courts had ignored the written statements
of former inmates. The relevant part of Article 6 § 1 of the
Convention reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- 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 submitted that the applicant had been represented at the
hearings before the domestic courts and that his personal presence at
these hearings had not been necessary. The Government further noted
that the written statements on behalf of the applicant had been made
by other prisoners sentenced to life imprisonment, who could be
biased against the prison authorities.
- The
applicant maintained his complaints, noting that despite his request
his attendance at the hearings before the domestic courts had not
been ensured. He also submitted that the courts’ refusal to
examine the written witness statements on his behalf proved the
necessity of his presence.
2. The Court’s assessment
- The
Court reiterates that the principle of adversarial proceedings and
equality of arms, which is one of the elements of the broader concept
of a fair hearing, requires that each party be given a reasonable
opportunity to have knowledge of and comment on the observations made
or evidence adduced by the other party and to present his case under
conditions that do not place him or her at a substantial disadvantage
vis-à-vis his or her opponent (see Krčmář
and Others v. the Czech Republic, no. 35376/97, § 39,
3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 33, Series A no. 274). The Court also
reiterates that Article 6 of the Convention does not guarantee the
right to personal attendance at a civil court, but rather a more
general right to present one’s case effectively before the
court and to enjoy equality of arms with the opposing side. Article 6
§ 1 leaves to the State a free choice of the means to be used in
guaranteeing litigants these rights (see Steel and Morris v. the
United Kingdom, no. 68416/01, §§ 59-60, ECHR
2005-II).
48.
The Court notes that it has already found a violation of Article
6 in a case where a court refused leave to appear to an imprisoned
applicant who had wished to make oral submissions on his claim in the
civil proceedings. In that case, despite the fact that the applicant
was represented, the Court considered it relevant that his claim
concerning ill-treatment had been largely based on his personal
experience and that his submissions would therefore have been “an
important part of the plaintiff’s presentation of the case and
virtually the only way to ensure adversarial proceedings” (see
Kovalev v. Russia, no. 78145/01, § 37, 10 May
2007). The Court adopted the same approach in other cases,
underlining the importance of the applicant’s personal
experience for his attendance at the hearings when the proceedings
concern the conditions of detention in prison, ill-treatment or
unlawful detention of the applicants (see, inter alia,
Shilbergs v. Russia, no. 20075/03, § 111, 17
December 2009).
- Turning
to the circumstances of this case, the Court observes that the
Azerbaijani CCP provides for the plaintiff’s right to appear in
person before a civil court hearing his claim. However, neither the
CCP nor the CEP makes special provision for the exercise of that
right by individuals who are in custody, whether they are in
pre-trial detention or are serving a sentence.
- In
the present case the applicant’s request for leave to appear
was not satisfied by the domestic courts on the ground that his
presence at the hearings was not required and because he was
represented by counsel.
- Given
the obvious difficulties involved in transporting convicts from one
location to another, the Court can in principle accept that in cases
where a claim is not based on the plaintiff’s personal
experience, representation of the detainee by an advocate would not
be in breach of the principle of equality of arms (see Kozlov v.
Russia, no. 30782/03, §§ 45-46, 17 September
2009). However, given the nature of the applicant’s claim in
relation to the alleged lack of medical assistance in Bayil Prison,
the Court is not convinced that the representative’s appearance
before the court could have secured the effective, proper and
satisfactory presentation of the applicant’s case. In this
respect, the Court observes that the applicant’s claim for
compensation resulting from the alleged lack of medical assistance
during his detention in prison was, to a large extent, based on his
personal experience. The Court considers that his testimony
describing the conditions of his detention and his medical treatment,
of which only the applicant himself had first-hand knowledge, would
have constituted an indispensable part of the plaintiff’s
presentation of the case. Only the applicant could, by testifying in
person, substantiate his claim for compensation and answer the
judges’ questions, if any (see, mutatis mutandis,
Kovalev, cited above, § 37).
- Finally,
as to the fact that the applicant was serving a prison sentence, the
Court is mindful of other possibility which was open to the domestic
courts as a way of securing the applicant’s participation in
the proceedings. They could have secured a hearing in the
establishment where the applicant was serving his sentence (see,
mutatis mutandis, Shilbergs, cited above, § 109).
However, the domestic courts did not consider this option.
- There
has accordingly been a violation of Article 6 § 1
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. Complaint concerning the applicant’s
conditions of detention in Gobustan Prison
- The
applicant complained that his conditions of
detention in Gobustan Prison were harsh and amounted to
ill-treatment. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government submitted that the applicant had failed to exhaust
domestic remedies in respect of his complaint concerning the
conditions of detention in prison. In particular, he had the
possibility to complaint against an act or omission of the
penitentiary authorities under the procedure established by the Law
On Complaints against Acts and Omissions Infringing Individual Rights
and Freedoms, the Civil Code or the Code on Enforcement of
Punishments. The Government also rejected the applicant’s
allegation, noting that the conditions of detention in Gobustan
Prison met the standards established by the CPT.
- The
Court recalls at the outset that the part of this complaint which
relates to events that occurred prior to 15 April 2002, the date of
the Convention’s entry into force with respect to Azerbaijan,
has already been declared inadmissible by the Court by its partial
decision of 26 November 2009.
- As
to the period after 15 April 2002, the Court reiterates that the rule
of exhaustion of domestic remedies referred to in Article 35 of the
Convention obliges those seeking to bring a case against a State
before the Court to use first the remedies provided by the national
legal system, thus dispensing 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).
- The
Court observes that in the present case the applicant has never
raised the complaint concerning his conditions of detention before
any domestic authority. Moreover, the applicant did not make a
submission as to whether there were special circumstances in the
present case which would dispense him from the obligation to complain
about conditions of his detention before the domestic authorities or
courts. In this respect, the Court notes that, in similar cases
against Azerbaijan, it has already found that the Law on Complaints
against Acts and Omissions Infringing Individual Rights and Freedoms
provides for a judicial avenue for challenging any act or omission by
a public authority infringing an individual’s rights or
freedoms. Both Article 46 of the Constitution of the Republic of
Azerbaijan and Article 3 of the Convention, which is directly
applicable in the domestic legal system, prohibit inhuman and
degrading treatment. Therefore, relying on these provisions, the
applicant could complain about the conditions of his detention.
However, the applicant has not attempted to do so. In this connexion,
the Court reiterates 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. Complaint of lack of medical assistance in Gobustan
Prison
- The
applicant complained that he had contracted
tuberculosis in detention and had not been provided with adequate
medical assistance in prison. Article 3 of the
Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government submitted that the applicant had failed to exhaust
domestic remedies in respect of his complaint concerning the alleged
lack of medical assistance. In particular, the Government submitted
that the civil proceedings against Gobustan Prison for failure to
provide medical assistance are still pending before the domestic
courts. The Government also stated that the applicant’s
complaint was unsubstantiated, because he had in fact obtained
adequate medical treatment during his detention in prison.
- The
Court recalls that the part of the complaint concerning the alleged
lack of medical assistance in Gobustan Prison prior to 15 April 2002,
was declared incompatible ratione temporis with the provisions
of the Convention within the meaning of Article 35 § 3 and
rejected in accordance with Article 35 § 4 by the
Court’s partial decision of 26 November 2009.
- As
to the events concerning the provision of adequate medical assistance
to the applicant occurred after 15 April 2002, the Court notes that
the domestic proceedings concerning the applicant’s complaint
against Gobustan Prison for alleged lack of medical assistance are
still pending before the domestic courts. It follows that this part
of the complaint is premature and must be rejected under Article 35
§§ 1 and 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 compensation for
non pecuniary damage.
- The
Government submitted that the applicant’s claim was
unsubstantiated and excessive.
- The
Court considers that the applicant has suffered non-pecuniary damage
which cannot be compensated solely by the finding of violations, 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 EUR 1,500 under this head, plus
any tax that may be chargeable on this amount.
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 submitted that the applicant’s claim was
unsubstantiated and lacked the documentary evidence.
- 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
- Declares by a majority the
complaint under Article 6 § 1 of the Convention concerning the
fairness of the civil proceedings against the Bayil Prison
authorities admissible and the remainder of the application
inadmissible;
- Holds by six votes to one that
there has been a violation of Article 6 § 1 of the Convention in
that the proceedings were conducted in his absence;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 1,500 (one thousand five 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 (AZN) 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 unanimously the
remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André
Wampach Nina Vajić Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Vajić
is annexed to this judgment.
N.A.V.
A.M.W.
DISSENTING OPINION OF JUDGE Vajić
- I
cannot agree with the majority’s finding that there was a
violation of Article 6 of the Convention because the civil
proceedings in which the applicant complained of inadequate health
care in prison were conducted in his absence.
- In
the proceedings before the first-instance court, the applicant was
not personally present at the hearing, but he was represented. The
judgment was silent as to the applicant’s request for leave to
appear.
The
Court of Appeal examined the applicant’s appeal in the absence
of both the applicant and his representative.
Because
of this procedural flaw, following the applicant’s cassation
appeal the Supreme Court quashed the Court of Appeal’s judgment
and remitted the case to it for fresh examination (paragraph 31 of
the judgment).
Subsequently,
the Court of Appeal examined the case in the absence of the applicant
but in the presence of his representative.
- In
acting thus the domestic courts have, in my opinion, sufficiently
remedied the irregularities of the civil proceedings against the
applicant. It was not demonstrated that the circumstances were such
as to indicate that the documentary evidence of his disease and
medical treatment was not complete, i.e. that the applicant’s
medical records did not suffice for the Court to hear the case. Nor
is there any mention in the judgment of a reason why the applicant’s
personal attendance at the hearing was necessary.
- In
such circumstances, I am of the opinion that the applicant’s
presence was not essential for the effective presentation of his
claim and that there was no violation of Article 6, paragraph 1, in
the present case.
