issued by the Registrar of the Court

ECHR 147 (2020)

28.05.2020

Compensation proceedings against former Prime Minister of autonomous

region in Azerbaijan accused of embezzlement breached the Convention

In today’s Chamber judgment¹in the case of Farzaliyev v. Azerbaijan (application no. 29620/07) the

European Court of Human Rights held, unanimously, that there had been:

a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, and

a violation of Article 6 § 2 (presumption of innocence).

The case concerned proceedings brought against the applicant, the former Prime Minister of the

Nakhchivan Autonomous Republic in Azerbaijan (“the NAR”), for allegedly embezzling public funds.

He was never convicted of an offence in criminal proceedings, but was subsequently ordered to pay

compensation in civil proceedings amounting to the sum allegedly embezzled.

The Court found in particular that the applicant’s right to a reasoned judgment had been breached

because the national courts had not responded to his submissions during the compensation

proceedings. He had argued that the civil claim against him should have been dismissed because the

domestic law had been misapplied in his case.

It also found that the wording of the ruling ordering the applicant to pay compensation had

unequivocally reflected the opinion that he had committed a criminal offence, even though he had

never had the opportunity to exercise his rights of defence in a criminal trial and had never actually

been convicted.

Principal facts

The applicant, Bejan Ibrahim oglu Farzaliyev, is an Azerbaijani national who was born in 1946. He has

been living in Turkey since 1993 and currently lives in Ankara.

In 2005 Mr Farzaliyev was the primary suspect in criminal proceedings for embezzlement of public

funds and abuse of office which had allegedly occurred in the early 1990s when he was Prime

Minister of the NAR, an autonomous entity within the Republic of Azerbaijan. It was alleged that

State funds had been allocated for the purchase of several helicopters, which had never actually

been delivered.

Following an investigation, the Nakhchivan prosecuting authorities considered that Mr Farzaliyev

should be formally charged. However, they discontinued the criminal proceedings in January 2006

without formally charging anyone because the offence had become statute-barred.

The prosecuting authorities subsequently brought civil proceedings, asking the Nasimi District court

to order the applicant and two other suspects to compensate the State for the embezzlement they

had allegedly committed. The applicant discovered that there had been a brief criminal investigation

against him during these civil proceedings.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

In May 2006, the district court allowed the claim, finding that 2,327,059 Azerbaijani manats (AZN –

approximately 2,025,000 euros at the relevant time) had been embezzled and that the applicant and

one other suspect should therefore pay, jointly, that sum in damages. The court ruled in particular

that, even though the defendants had been absolved of criminal liability because the criminal

proceedings had been discontinued, the damage caused “as a result of the criminal offence” had not

been compensated.

Mr Farzaliyev appealed to the higher courts, complaining that the civil court had accepted the

prosecution’s statement of facts as proven, found him liable for committing a criminal offence and

ordered him to pay compensation, when there had been no final judgment resulting in his

conviction. He also submitted that the claim against him had been brought under the procedure for

civil claims within the framework of criminal proceedings provided for by the Code of Criminal

Procedure, instead of the relevant provisions of the civil law, arguing that this was unlawful. In

particular, had the claim been examined under the civil law provisions, it would likely have been

dismissed because the statutes of limitations had long since expired.

In December 2006 the Supreme Court endorsed the district court’s judgment, without responding to

the applicant’s arguments in his appeals.

He subsequently unsuccessfully attempted to have the case reopened and reviewed by the Plenum

of the Supreme Court and the Constitutional Court.

Complaints, procedure and composition of the Court

Relying on Article 6 § 1 (right to a fair trial), the applicant complained that the civil proceedings had

been unfair, submitting that the domestic court judgments had not been properly reasoned and in

particular that the higher courts had not taken into account his arguments on appeal.

He also complained about the domestic courts ordering him to pay compensation for damage

caused by a criminal offence for which he had not been convicted, in breach of Article 6 § 2

(presumption of innocence) and Article 1 of Protocol No. 1 (protection of property).

The application was lodged with the European Court of Human Rights on 8 May 2007.

Judgment was given by a Chamber of seven judges, composed as follows:

Síofra O’Leary (Ireland), President,

Gabriele Kucsko-Stadlmayer (Austria),

Ganna Yudkivska (Ukraine),

Yonko Grozev (Bulgaria),

Mārtiņš Mits (Latvia),

Lәtif Hüseynov (Azerbaijan),

Lado Chanturia (Georgia),

and also Victor Soloveytchik, Deputy Section Registrar.

Decision of the Court

Article 6 § 1 (fairness of the proceedings)

The Court reiterated that courts and tribunals should adequately state the reasons on which their

rulings were based.

The Court noted that the applicant’s submissions concerning the lack of a lawful basis for the civil

court’s acceptance of the claim against him had been potentially decisive for the outcome of the

case, as they could have led to its dismissal. In point of fact, the claim had been lodged with and

examined by the civil court, despite the fact that it was clear under the Code of Criminal Procedure

that a civil claim within the framework of criminal proceedings, to which civil statutes of limitations

did not apply, could only be lodged within the criminal procedure, before the court examining the

criminal charges.

However, the domestic courts had not provided any response to his submissions in their judgments.

It was thus impossible to ascertain whether the courts had not examined the applicant’s submissions

at all, or whether they had actually assessed them but dismissed them and, if so, what had been

their reasons for doing so.

The Court concluded that the applicant’s right to a reasoned judgment had therefore been

breached. There had accordingly been a violation of Article 6 § 1 of the Convention.

Article 6 § 2 (presumption of innocence)

The Court reiterated that there would be a breach of the presumption of innocence if, without the

accused’s having been convicted in earlier criminal proceedings, a judicial decision concerning him or

her reflected the view that he or she was guilty. For Article 6 § 2 to be applicable, an applicant would

need to have been charged with a criminal offence or to be “substantially affected”.

Although the applicant had never formally been charged with a criminal offence in the discontinued

criminal proceedings and had only become aware of the allegations against him during the civil

proceedings, the authorities’ actions taken as a result of the suspicion against him had “substantially

affected” his situation in the particular circumstances of his case. In particular, the authorities had,

among other things, opened criminal proceedings concerning him as a primary suspect and had

subsequently lodged a civil claim “in the framework of the criminal proceedings”.

Having regard to those actions and the case-specific sequence of closely inter-connected events, the

applicant had therefore to be considered as a person “charged with a criminal offence” within the

meaning of Article 6 § 2.

Moreover, under the relevant legislation and practice as applied by the domestic authorities and

courts in the case, the civil proceedings had been linked to and had been the “direct consequence”

of the criminal investigation. Furthermore, the statements made during the civil proceedings,

imputing criminal liability on the applicant, had also created a link with the criminal proceedings. For

these reasons, the Court found that Article 6 § 2 was applicable in the present case.

As to the merits of the applicant’s complaint, the Court went on to note that the Nasimi District

Court’s judgment of May 2006 ruling on the civil claim had stated that AZN 2,327,059 had been

“embezzled” and that, even though the defendants had been absolved of criminal liability, “the

damage caused as a result of the criminal offence” had not been compensated. The Court

considered that that wording had reflected an unequivocal opinion that a criminal offence had been

committed and that the applicant had been guilty of that offence, even though he had never had the

opportunity to exercise his rights of defence in a criminal trial and had never actually been

convicted.

The Court concluded that the applicant’s right to the presumption of innocence had thus been

breached, in violation of Article 6 § 2 of the Convention.

Article 1 of Protocol No. 1 (protection of property)

Given the above findings, the Court considered that there was no need to give a separate ruling on

the admissibility and merits of the applicant’s complaint under Article 1 of Protocol No. 1.

Article 41 (just satisfaction)

The Court held that Azerbaijan was to pay the applicant 4,700 euros (EUR) in respect of non-

pecuniary damage and EUR 1,500 in respect of costs and expenses.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.