European Court of Human Rights

 

 

FIFTH SECTION

CASE OF SAVALANLI v. AZERBAIJAN

(Application no. 30608/14)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

14 January 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Savalanli 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 Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 30608/14) 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 Jabbar Novruz oglu Savalanli (Cabbar Novruz oğlu Savalanlı - “the applicant”), on 2 April 2014;

the decision to give notice of the complaints under Article 6 §§ 1 and 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 3 December 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the domestic proceedings concerning his administrative arrest had been unfair.

THE FACTS

2.  The applicant was born in 1991 and lives in Sumgayit. He was represented by Mr R. Mustafazade, 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.  At approximately 3 p.m. on 1 March 2014 the applicant was arrested by three plain-clothed police officers and taken to the Sumgayit City Police Department, where a report was drawn up indicating that he had committed an administrative offence under Article 310.1 (deliberate failure to comply with lawful orders of the police) of the Code of Administrative Offences. According to the report, the applicant had been arrested for deliberately disobeying the orders of the police officers and swearing out loud in the street. The applicant refused to submit a written explanation or to sign the report.

6.  At 5 p.m. on the same day the applicant was brought before the Sumgayit City Court.

7.  According to the applicant, he refused State-funded legal assistance at the hearing and insisted on choosing his own lawyer, but the judge disregarded his request.

8.  However, according to the transcript of the hearing, the judge adjourned the hearing until the arrival of the State-funded lawyer at 5.30 p.m. and the applicant expressed his wish to be represented by that lawyer.

9.  The applicant informed the court that, contrary to what had been stated in the report on the administrative offence, he had neither been swearing in the street nor disobeying the police officers, and that he was not guilty of the offence in question.

10.  The State-funded lawyer stated that he had no requests to make before the court on behalf of his client and asked it to consider the possibility that the applicant was innocent and to deliver a fair decision.

11.  The only witnesses questioned during the court hearing were the three police officers who had arrested the applicant. They stated that they had approached the applicant while he was talking on a mobile telephone and swearing out loud in the street, and had asked him to calm down and show his identification documents. As the applicant had disregarded their request and tried to run away, they had taken him to the police department.

12.  Following the hearing, the Sumgayit City Court found the applicant guilty under Article 310.1 of the Code of Administrative Offences and sentenced him to twenty days’ administrative detention.

13.  The applicant, by then represented by a lawyer of his own choosing, lodged an appeal before the Sumgayit Court of Appeal, arguing that he had been deprived of access to a lawyer of his own choosing both at the police department and in the court. He requested that the police officers who had arrested him be called to give evidence and that call detail records be obtained from the mobile network operator to establish whether he had been using his telephone at the material time.

14.  On 13 March 2014 the Sumgayit Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court but reduced the length of the administrative detention to fifteen days. The appellate court made no mention of the applicant’s particular complaints. The appellate court’s decision was not amenable to a further appeal.

RELEVANT LEGAL FRAMEWORK

15.  The relevant provisions of the Code of Administrative Offences are described in detail in the Court’s judgment in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 32‑38, 15 October 2015).

THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

16.  The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that his right to a fair trial had been violated because the domestic proceedings had in general been unfair, and that he had been denied the right to be represented by a lawyer of his own choosing. 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;

...”

A.    Admissibility

17.  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

18.  The applicant submitted that he had not been offered the assistance of a State-funded lawyer at the police department or been allowed to call his own lawyer, and consequently had refused to sign the report on the administrative offence. Similarly, the first-instance court had disregarded his request for a lawyer of his own choosing and had instead appointed a State-funded lawyer whose defence had been rather formalistic. The applicant further argued that he had indicated a number of shortcomings in the previous proceedings, including a failure by the police and the first‑instance court to provide him with a lawyer of his own choosing, and had asked the appellate court to examine important issues related to the facts of the case. However, the appellate court had failed to respond to his complaints and requests, effectively depriving him of the guarantees of a fair trial.

19.  The Government submitted that the applicant’s rights under Article 6 of the Convention had been duly respected. In particular, he had been arrested on lawful grounds in order to prevent a public disturbance. The applicant had been assisted by a State-funded lawyer in the proceedings before the first-instance court and had expressly agreed to being represented in this manner. They further submitted that, in any event, during the hearing before the Sumgayit Court of Appeal the applicant had been represented by a lawyer of his own choosing. His arguments had been examined by the appellate court and his sentence had been reduced.

2.    The Court’s assessment

20.  The Court observes at the outset that the parties are in dispute as to whether the applicant’s right to defend himself through legal assistance of his own choosing was violated at the police department and in the proceedings before the first-instance court. However, the Court considers that in the particular circumstances of the present case it is unnecessary to rule on this issue, for the reasons set out below (see Hajili and Others v. Azerbaijan [Committee], nos. 44699/13 and 2 others, § 61, 29 June 2017; Mirzayev and Others v. Azerbaijan [Committee], nos. 12854/13 and 2 others, § 30, 20 July 2017; and Agayev v. Azerbaijan [Committee], no. 66917/11, § 25, 14 May 2020).

21.  The Court notes that there is a significant degree of similarity between the legal issue raised by the applicant under Article 6 of the Convention in the present case and previous cases against Azerbaijan concerning the administrative conviction of applicants under the Code of Administrative Offences (see, among many other authorities, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 83-87, 15 October 2015; Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, § 102-06, 11 February 2016; and Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 119-24, 11 February 2016).

22.  In particular, as in the above-mentioned cases, the applicant in the present case was taken before a court shortly after his arrest (within approximately two hours) and convicted. The first-instance court referred only to the administrative-offence report and the witness testimony of the police officers given during the hearing, without giving any further reasons for its decision. The appellate court disregarded the applicant’s requests for the police officers who had arrested him to be called to give evidence and for examination of further evidence, and endorsed the findings of the first‑instance court without considering any other explanations.

23.  Furthermore, the applicant’s arguments before the domestic courts concerned both the factual circumstances and the legal issues in his case. In particular, he consistently argued that the factual and legal grounds for his arrest and subsequent conviction had been arbitrary since he had never caused a public disturbance or disobeyed the police officers. Nevertheless, the domestic courts had ignored those arguments altogether.

24.  The Court has previously held, in examining the fairness of criminal proceedings, that by ignoring a specific, pertinent and important point made by the accused, the domestic courts fell short of their obligations under Article 6 § 1 of the Convention (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011, and Aliyev v. Azerbaijan [Committee], no. 76236/11, § 18, 11 June 2020). Taking the view that in the present case the domestic courts’ decisions lacked adequate reasoning, the Court concludes that the administrative proceedings against the applicant, considered as a whole, were not in conformity with the guarantees of a fair hearing.

25.  There has accordingly been a violation of Article 6 § 1 of the Convention.

II.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  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

27.  The applicant claimed 21,000 euros (EUR) in respect of non‑pecuniary damage.

28.  The Government submitted that his claim was unsubstantiated.

29.  The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for 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 him the sum of EUR 3,600 under this head, plus any tax that may be chargeable on this amount.

B.     Costs and expenses

30.  The applicant claimed EUR 3,300 for the legal fees incurred before the domestic courts and before the Court. In support of his claim, he submitted a contract, dated 19 March 2014, for legal and translation services. The applicant also requested that any compensation awarded under that head be paid directly into his representative’s bank account.

31.  The Government argued that the claims were excessive and could not be regarded as being reasonable as to quantum. In particular, the contract submitted by the applicant did not prove that he had made any payment.

32.  The Government also submitted that, taking into account the above considerations, the applicant’s claim for legal fees should be dismissed. In any event, an award of EUR 750 would constitute sufficient just satisfaction for any costs and expenses incurred by the applicant.

33.  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 were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the amount of legal work necessary in the present case, the Court considers it reasonable to award the total sum of EUR 750 covering costs under all heads, to be paid directly into his representative’s bank account.

C.    Default interest

34.  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,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 § 1;

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into his representative’s bank account;

(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;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Martina Keller                                                                    Lado Chanturia
Deputy Registrar                                                                       President