FIRST SECTION
Application no. 60802/09
Faig MAMMADOV
against Azerbaijan
lodged on 9 November 2009
STATEMENT OF FACTS
The applicant, Mr Faig Mammadov, is an Azerbaijani national, who was born in 1962 and lives in Baku.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 June 2008 the Assize Court, sitting as a court of first instance for serious offences, convicted the applicant and his wife of fraud. The applicant was sentenced to nine years’ imprisonment with confiscation of property, and his wife to seven years’ imprisonment suspended, with a five-year probation period.
On 23 January 2009 the Baku Court of Appeal quashed the judgment of 9 June 2008, reducing the applicant’s term of imprisonment to seven years and lifting the confiscation of property sanction. The applicant lodged a cassation appeal with the Supreme Court. The prosecutor lodged a cassation protest against the judgment of 23 January 2009 with the Supreme Court, requesting that it be set aside and the case remitted to the Court of Appeal.
On 1 July 2009, having examined the case in the absence of the applicant and his lawyer but in the presence of the prosecutor, the Supreme Court dismissed the applicant’s appeal and allowed the prosecutor’s protest in part. The prosecutor made oral submissions during the hearing, seeking a dismissal of the applicant’s appeal.
The Supreme Court upheld the Court of Appeal’s judgment as regards the applicant’s conviction, but quashed his wife’s conviction, remitting that part of the case to the Baku Court of Appeal for a fresh examination. The court found that proof of the applicant’s guilt had been duly established during the trial in the first-instance court and Court of Appeal and that his actions had been properly classified under criminal law.
The Supreme Court’s decision cited Article 419.4 of the Code of Criminal Procedure, stating that the examination of the case was possible in the absence of the applicant and his lawyer because the lawyer had failed to appear despite having been notified, and the applicant, who was serving his prison sentence, had made no request to attend.
B. Relevant domestic law
The Code of Criminal Procedure provides that the absence of the person who has lodged the appeal, if he or she has been duly informed of the hearing, does not prevent the Supreme Court from deciding to proceed with the hearing in his or her absence (Article 419.4).
COMPLAINTS
The applicant complains under Article 6 of the Convention that the Supreme Court failed to take measures to ensure his or his lawyer’s attendance at the final hearing concerning his conviction.
The applicant complains, without relying on any particular Article of the Convention, that requests made by him concerning the examination of witnesses were not granted.
He also relies on Article 7 of the Convention without adducing any relevant arguments.
QUESTIONS
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the hearing before the Supreme Court?
2. Were the applicant and his lawyer duly notified about the hearing of the Supreme Court? Since the applicant was in prison, did he have a right and/or opportunity to be present at the appeal hearing before the Supreme Court? What is the procedure for the convicted persons to participate in the Supreme Court hearing?
Full & Egal Universal Law Academy