FIFTH SECTION
CASE OF ALIYEV v. AZERBAIJAN
(Application no. 76236/11)
JUDGMENT
STRASBOURG
11 June 2020
This judgment is final but it may be subject to editorial revision.
In the case of Aliyev v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Lәtif Hüseynov,
Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar,
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 Nurlan Nazim oglu Aliyev (Nurlan Nazim oğlu Əliyev ‑ “the applicant”), on 4 November 2011;
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 15 April 2020,
Delivers the following judgment, which was adopted on that date:
introduction
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
1. The applicant was born in 1987 and lives in Munster, Germany. He was represented by Mr A. Gasimli, a lawyer based in Azerbaijan.
2. The Government were represented by their Agent, Mr. Ç. Əsgərov.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 29 April 2011 the applicant was arrested for insulting police officers who had informed him that the house where he was living with his family had been built unlawfully without a permit. He was taken to the police station, where a report was drawn up indicating that he had committed the administrative offence of minor hooliganism under Article 296 of the Code of Administrative Offences (“the CAO”). He refused to submit a written explanation and sign the report.
5. On the same date the applicant was brought before the Sumgayit City Court, which found him guilty and sentenced him to seven days’ administrative detention. The court’s judgment referred only to the testimony of two police officers, who stated that they had discovered an unlawfully constructed house while patrolling the area. They had approached the house to make enquiries with the owner. At that point the applicant had come out of the house and started yelling and insulting them. As their efforts to calm him down had been unsuccessful, they had taken him to the police station. The applicant told the court that he had not insulted anyone or caused a public disturbance. He therefore had not committed the offence in question and was not guilty.
6. 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. By the time his own lawyer arrived, the hearing had already been concluded with the participation of the State-funded lawyer. According to the Government, the applicant expressed his wish to be represented by a lawyer of his own choosing but failed to give a specific name. The first-instance court therefore appointed a State-funded lawyer as his counsel and continued the hearing.
7. On 3 May 2011 the applicant, who by this time was represented by a lawyer of his own choosing, lodged an appeal with the Sumgayit Court of Appeal, arguing that he had not committed any act which could be classified as an offence under the CAO and that his conviction had not been based on sufficient evidence. He further argued that the real reason for his arrest had been to supress the political activities which he and his father, who headed the local branch of the Musavat opposition party, had been carrying out. The applicant requested that his parents be called as defence witnesses and that the police officers who had testified against him in court be reheard, as his lawyer had not had an opportunity to question them. The applicant also argued that he had been deprived of access to his own lawyer because the first-instance court had not waited for the latter to arrive and had concluded the hearing with the participation of the previously appointed State-funded lawyer.
8. On 4 May 2011 the Sumgayit Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court. It appears from the transcript of the hearing that the appellate court heard the police officers, who repeated the testimony they had given during the hearing before the first-instance court. The appellate court also heard the applicant’s mother, who testified that on 29 April 2011 she had answered the door to some police officers who had asked her whether her husband was at home. When she had said no, they had asked for her son, who at that point had also come to the door. The police officers had talked to her son, who had not been insulting anyone. A few minutes later they had all left together. Ten minutes later she had called her husband and informed him that their son had been taken away by the police.
9. Without giving reasoning in that regard, the appellate court dismissed the testimony of the applicant and his mother as not corresponding to the facts of the case and based its judgment on that of the police officers. Referring to Article 376.2 of the CAO, it also found that since the applicant had refused State-funded legal assistance and failed to name his own lawyer, the first-instance court had acted in accordance with the law by overriding his wishes and continuing the hearing with the participation of the State‑funded lawyer.
RELEVANT LEGAL FRAMEWORK
10. The relevant provisions of the CAO are described in detail in the Court’s judgment in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 32‑38, 15 October 2015).
THE LAW
11. The applicant complained under Article 6 of the Convention that he had not had a fair hearing in the administrative proceedings against him. In particular, he complained that the domestic courts’ decisions had not been reasoned and that he had not been allowed to choose his own lawyer in the administrative proceedings before the first-instance court. The relevant parts of Article 6 of the Convention read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...
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; ...”
12. 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.
13. The applicant maintained his complaints.
14. The Government submitted that the applicant’s rights under Article 6 of the Convention had been duly respected. The domestic courts’ decisions had been reasoned, fair and based on lawful, impartial and comprehensively assessed evidence. 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. The appellate court had granted the applicant’s request and heard a defence witness, reheard the police officers and found the allegations regarding the reasons for his arrest to be unsubstantiated.
15. The Court notes at the outset that there is a significant degree of similarity between the legal issues 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 CAO (see, among many other cases, 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).
16. In particular, as in the latter cases, the first-instance court in the present case examined the applicant’s case in an oral hearing where he was given an opportunity to make submissions. However, it referred only to the witness testimony of the two police officers given during the hearing, without giving any further reasons for its decision. While in the present case the Sumgayit Court of Appeal indeed called a witness who was not connected to the police, the applicant’s mother, whose testimony supported her son’s version of events, the domestic courts nevertheless failed to provide adequate reasons why they considered the witness testimony of the police officers more objective and reliable than that of the applicant and the defence witness.
17. Furthermore, the applicant’s arguments before the domestic courts concerned both the factual circumstances and legal issues of 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 insulted the police officers or acted in any other way that would cause a public disturbance. Nevertheless, the domestic courts, in particular the Sumgayit Court of Appeal, had ignored them altogether. They also did not question in their decisions how the police officers could establish that the house in which the applicant was living had been unlawfully built in the absence of any indication from the relevant domestic authority in that connection.
18. 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 fall short of their obligations under Article 6 § 1 of the Convention (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011). Considering 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.
19. There has accordingly been a violation of Article 6 § 1 of the Convention.
20. Furthermore, having regard to the above finding of a violation of Article 6 § 1 of the Convention, the Court finds it unnecessary to rule on the issue of whether the applicant’s right to defend himself through legal assistance of his own choosing in the proceedings before the first-instance court was violated (see Hajili and others v. Azerbaijan [Committee], nos. 44699/13 and 2 others, § 61, 29 June 2017, and Mirzayev and others v. Azerbaijan [Committee], nos. 12854/13 and 2 others, § 30, 20 July 2017).
21. 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.”
22. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
23. The Government submitted that his claim was unsubstantiated.
24. 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.
25. The applicant claimed EUR 1,000 for the costs and expenses incurred in the proceedings before the Court.
26. The Government contested this claim.
27. 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 500 covering costs under all heads.
28. 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, 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 500 (five hundred euros), plus any tax that may be chargeable to him, in respect of costs and expenses;
(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 11 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Victor Soloveytchik André Potocki
Deputy Registrar President