CASE OF JAFARZADE v. AZERBAIJAN

FIFTH SECTION

CASE OF JAFARZADE v. AZERBAIJAN

(Application no. 2515/11)

JUDGMENT
 

STRASBOURG

20 February 2020

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

In the case of Jafarzade 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 Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 28 January 2020,

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

PROCEDURE

1.  The case originated in an application (no. 2515/11) 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 Agil Zaur oglu Jafarzade (Aqil Zaur oğlu Cəfərzadə – “the applicant”), on 7 January 2011.

2.  The applicant was represented by Mr A. Alizade, a lawyer based in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.

3.  On 23 September 2013 notice of the application was given to the Government.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1989 and lives in Baku.

5.  According to the applicant, on 16 September 2010 his friend committed suicide and he was questioned as a witness at the Yasamal district police station in that connection on the same day. On 17 September 2010 the applicant was taken by the police to the Yasamal district prosecutor’s office where he was again questioned about the suicide of his friend. Then, at around 4.00 p.m., the applicant was taken back to the Yasamal district police station where he was subjected to ill-treatment. Police officers beat him with truncheons, kept him without food or drink and did not allow him to use the toilet until the next morning, in order to elicit a confession that he had incited his friend to commit suicide.

6.  According to the Government, following the suicide of a certain T.H. on 16 September 2010, investigators had established that the deceased had had contact with the applicant on the day before the suicide. On 17 September 2010, at around 7.00 p.m. the applicant was approached by a police officer who invited him to produce his identification documents, which he failed to do. The applicant was then invited to proceed to the police station to establish his identity. When the applicant refused to do so, he was taken by force to the Yasamal district police station. After the applicant’s identity had been established through the relevant database and a record had been drawn up for the administrative offence of deliberate non‑compliance with a lawful order of a police officer under Article 310.1 of the Code of Administrative Offences (“the CAO”), the applicant was released at around 8.30 p.m. on the same day.

7.  On 18 September 2010 the applicant was brought before the Yasamal District Court.

8.  By a decision of 18 September 2010 the Yasamal District Court sentenced the applicant to five days’ “administrative” detention. The decision was based on a self-incriminating statement given by the applicant in the courtroom to the effect that he had refused to go to the police station when a police officer had demanded his identity documents. According to the applicant, he had visible injuries on his face and arms and was walking with a limp when he was brought before a judge of the Yasamal District Court, but the judge did not ask any questions about his injuries.

9.  On an unspecified date the applicant lodged an appeal against the decision of the Yasamal District Court of 18 September 2010, complaining that before being brought before the first-instance court he had been ill‑treated while at the police station and that he had been forced by the police to give false self-incriminating statements at the court hearing. He further argued that his conviction had been based on unlawfully obtained evidence and that the first-instance court had failed to properly assess the admissibility and reliability of the evidence against him.

10.  On 14 October 2010 the Baku Court of Appeal rejected the applicant’s appeal without assessing his allegations of ill-treatment and forced self-incrimination. According to the transcript of the hearing the applicant was informed of the date and the venue thereof both by letter and by telephone but failed to appear. The appellate court’s decision was not amenable to a further appeal.

11.  Following a complaint by the applicant of ill-treatment at the police station, lodged with the Prosecutor General’s Office on an unspecified date, an investigator at the Yasamal district prosecutor’s office ordered a forensic examination of the applicant. According to an expert examination report dated 27 September 2010, the applicant had scratches on his left arm and the back of the neck which, as the applicant himself explained, had been obtained on 11 September 2010 when he had been climbing a tree, and on 13 September 2010 during sexual intercourse with his girlfriend, respectively.

12.  On 15 November 2010 the deputy prosecutor of the Yasamal district prosecutor’s office issued a decision not to institute criminal proceedings into the alleged ill-treatment. The prosecutor concluded that the available evidence did not disclose any appearance of a criminal act and his decision was based on the conclusions contained in the forensic examination report and on three witness statements.

13.  The applicant did not lodge any complaint against this decision.RELEVANT DOMESTIC LAW

14.  A summary of the relevant provisions concerning administrative proceedings is provided in the case of Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 32-38, 15 October 2015).

15.  The relevant provisions of domestic law concerning proceedings by which parties to criminal proceedings could challenge acts or decisions of the prosecuting authorities are described in detail in the cases of Pirali Orujov v. Azerbaijan (no. 8460/07, § 24, 3 February 2011), and Abbas Ahmadov v. Azerbaijan ((dec.), no. 55650/07, § 31, 12 November 2013).

THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

16.  The applicant complained under Article 6 of the Convention that the administrative proceedings did not comply with the requirements of a fair trial in that his participation at the appeal hearing had not been ensured. The relevant part of Article 6 of the Convention reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Admissibility

17.  Although the applicability of Article 6 to the administrative proceedings in question is not in dispute, the Court considers it necessary to address this issue of its own motion. The Court notes that the applicant was convicted to five days’ administrative detention and was locked up in the detention facility for the term of his sentence, the purpose of the sanction being purely punitive. Referring to its findings in Asadbeyli and Others v. Azerbaijan (nos. 3653/05 and 5 others, 11 December 2012), the Court considers that the proceedings in the present case should be classified as determining a criminal charge against the applicant, even though they are characterised as “administrative” under Azerbaijani legislation (see Gafgaz Mammadov v. Azerbaijan (no. 60259/11, § 70, 15 October 2015; Ziliberberg v. Moldova, no. 61821/00, §§ 30-35, 1 February 2005, and Menesheva v. Russia, no. 59261/00, §§ 95‑98, ECHR 2006‑III).

18.  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.MeritsThe parties’ submissions

19.  The applicant maintained his complaint, disagreeing with the appellate court’s transcript of the hearing that he had been duly informed of it. He further argued that, even assuming that he had prior knowledge of the date and venue of the hearing but had not been present for some reason, it had still been open to the court to adjourn the hearing and inform him accordingly.

20.  The Government submitted that the applicant had been informed, by official letter and by telephone, of the place and date of the hearing before the appellate court, but had failed to appear before the court. Moreover, the Baku Court of Appeal had examined the case on the basis of the findings of the court of first instance, including the applicant’s confession. Therefore, the appellate court had been aware of the applicant’s arguments and the principle of equality of arms had been respected in the case before it.The Court’s assessment

21.  The Court reiterates, at the outset, that the requirement of equality of arms, in the sense of a “fair balance” between the parties, applies to both criminal and civil cases (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, §§ 32-33, Series A no. 274). The requirement of equality of arms would, however, be devoid of substance if a party to the case were not notified of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise a right to appear established in domestic law (see Zagorodnikov v. Russia, no. 66941/01, § 30, 7 June 2007, and Fyodorov and Fyodorova v. Ukraine, no. 39229/03, § 99, 7 July 2011).

22.  The national courts must identify any defect of notification prior to embarking on a consideration of the merits of the case. The analysis that the Court expects to find in domestic decisions must go beyond a reference to the dispatch of judicial summonses, and must make the most of the available evidence in order to ascertain whether the absent litigant was in fact informed of the upcoming hearing sufficiently in advance (see Gankin and Others v. Russia, nos. 2430/06 and 3 others, § 38, 31 May 2016). The answer to this question enables the courts to determine whether the hearing must be adjourned pending due notification (see Zemlyachenko v. Russia [Committee], no. 23866/06, § 22, 22 January 2013, and Kokurkhayev v. Russia, no. 46356/09, § 31, 13 December 2011). The courts cannot conclude that the absent litigant had waived the right to personal attendance without ascertaining whether he or she had been made aware of the very existence of that right and, therefore, of the hearing in question (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 87, 4 March 2014). Lastly, the Court reiterates that whenever the domestic courts examine the issue of timely notification of an absent litigant, they are expected to attach special importance and give full effect to the right to present his or her case effectively before the court without a substantial disadvantage vis-à-vis his or her opponent (see Gankin and Others, cited above, § 38).

23.  Turning to the circumstances of the present case, the Court notes that the applicant alleged that he had not received any of the summonses and was unaware of the date and place of the appellate hearing in his case. The Government, in turn, submitted that (i) the applicant had been informed of the appeal hearing and (ii) the appellate court did not require the applicant’s presence for it to be able to adjudicate his appeal, in a comprehensive and fair manner, on the basis of the case file alone.

24.  On the first point, the Court notes that the case file does not contain any proof that the applicant was notified of the appeal hearing. There is equally no indication that the appellate court examined the question of whether the applicant had been properly notified or whether it decided to dispense with notifying him for any particular reason (compare Chernega and Others v. Ukraine, no. 74768/10, § 182, 18 June 2019).

25.  Lacking any evidence of proper notification, the Court accepts the applicant’s submission that he was not aware of the date and venue of the appeal hearing.

26.  As to the Government’s second argument, the Court notes that in his grounds of appeal (see paragraph 9 above), the applicant contested his conviction on both factual and legal grounds. He submitted, in particular, that his guilt had not been proved by lawfully-obtained evidence and that the first-instance court had failed to properly assess the admissibility and reliability of the evidence against him. The Court considers that these arguments indicate that the applicant wished to obtain a review by the Court of Appeal of the factual circumstances in which he was arrested and a new assessment as to the admissibility and reliability of the evidence obtained (compare Abdulgadirov v. Azerbaijan, no. 24510/06, § 42, 20 June 2013, and Chernega and Others, cited above, § 179), therefore, hearing him directly was necessary.

27.  The Court also notes that no appeal to a higher court as such lay against decisions of appellate courts delivered in that type of complaint (see paragraph 10 above) and that the applicant therefore had no chance for a re-examination of the in absentia decision delivered in his case.

28.  In the light of the foregoing considerations, the Court concludes that the applicant’s right to participate effectively in the proceedings and the right to equality of arms were restricted to an extent incompatible with the principles of a fair hearing established by Article 6 of the Convention. There has accordingly been a violation of Article 6 § 1 the Convention.ALLEGED VIOLATION OF ARTICLEs 3 AND 13 OF THE CONVENTION

29.  Relying on Articles 3 and 13 of the Convention, the applicant complained that he had been subjected to ill-treatment and that there had been no effective investigation into the alleged ill-treatment. The Court considers that the applicant’s complaints should be examined solely under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

30.  The Government submitted that the applicant had not exhausted the domestic remedies. In particular they submitted that the applicant could have made use of the procedure concerning appeals against the actions or decisions of prosecution authorities set out in Article 449.3.5 of the Code of Criminal Procedure.

31.  The applicant contested the Government’s objections and reiterated his complaint. He argued that he did not consider the available domestic remedies effective after his relevant complaint had not been addressed by the Court of Appeal within the framework of the administrative proceedings and he had chosen to lodge his complaint directly with the Court.

32.  The Court observes at the outset that the applicant failed to lodge a complaint with a supervising court against the investigator’s decision of 15 November 2010 not to open criminal cases into his allegations of ill‑treatment (compare Abbas Ahmadov v. Azerbaijan (dec.), no. 55650/07, §§ 16 and 42, 12 November 2013,; Abbas and Others v. Azerbaijan [Committee], nos. 69397/11 and 3 others, §§ 25‑27 and 69, 13 July 2017; and Aslanov v. Azerbaijan [Committee], no. 35402/07, § 46, 15 November 2018; and contrast with Mammadov v. Azerbaijan, no. 34445/04, §§ 23-27, 11 January 2007, and Rizvanov v. Azerbaijan, no. 31805/06, §§ 16-20, 17 April 2012). The Court reiterates that although such a supervising court has no competence to institute or to reopen criminal proceedings, its supervising power over the decisions of the prosecuting authorities is a substantial safeguard against the arbitrary exercise of powers by the investigating authorities (see Abbas Ahmadov, § 42, and Abbas and Others, § 69, both cited above).

33.  Moreover there were not any special circumstances in the present case which would relieve the applicant from the obligation to challenge the investigator’s decision in issue. 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 Kunqurova v. Azerbaijan (dec.), no. 5117/03, 23 June 2005, and Aslanov, cited above, § 47). It follows that the applicant failed to exhaust a domestic remedy which was relevant and available (compare Abbas Ahmadov, cited above, § 41-43; Abbas and Others, cited above, § 70; and Aslanov, cited above, §§ 46-48).

34.  As to the applicant’s argument that he had raised his ill-treatment complaints during his trial, notably in his appeals against the first-instance court’s decisions, lodged before the Baku Court of Appeal (see paragraph 9 above), the Court observes that the appellate court did not examine his complaint on the merits (see paragraph 10 above). The Court reiterates that where an applicant fails to exhaust relevant and available domestic remedies in respect of a complaint of ill-treatment, but instead raises such a complaint before a trial court which does not take cognisance of the merits of the applicant’s complaint, the applicant cannot be considered to have exhausted domestic remedies (see Abbas Ahmadov, cited above, §§ 44-46, Akif Mammadov v. Azerbaijan (dec.), no. 46903/07, § 32, 13 May 2014, and Abbas and Others, cited above, § 71).

35.  In these circumstances the Court finds that the complaints under Article 3 of the Convention (of ill-treatment and a lack of an effective investigation) must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.APPLICATION OF ARTICLE 41 OF THE CONVENTION

36.  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.”DamagePecuniary damage

37.  The applicant claimed 2,900 Azerbaijani manats (AZN) in respect of pecuniary damage, to cover loss of income and medical costs.

38.  The Government asked the Court to reject the claim.

39.  As regards the part of the claim concerning the medical costs, the Court does not find any causal link between the damage claimed and the violation found. As regards the applicant’s claim for loss of earnings, the Court observes that the applicant did not submit any relevant documentary evidence supporting his claim. It therefore rejects the applicant’s claim under this head.Non-pecuniary damage

40.  The applicant claimed AZN 20,000 in respect of non-pecuniary damage.

41.  The Government asked the Court to reject the claim.

42.  The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of 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 EUR 2,400 under this head, plus any tax that may be chargeable on this amount.Costs and expenses

43.  The applicant also claimed AZN 1,600 for legal fees incurred before the Court and AZN 450 for translation costs. The applicant submitted a contract with his representative and a contract with a translator in support of his claims.

44.  The Government asked the Court to reject the claims.

45.  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, regard being had to the documents in its possession and the above criteria, as well as the amount of work done by the representative and the translator, the Court considers it reasonable to award the sum of EUR 800 to cover costs and expenses under all heads.Default interest

46.  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 of the Convention 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, EUR 2,400 (two thousand four hundred euros) in respect of non‑pecuniary damage and EUR 800 (eight hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant on these amounts, to be converted into the currency of the respondent State at the rate applicable at 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 amounts 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 20 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško André Potocki
Deputy RegistrarPresident

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