Information Note on the Court’s case-law No. 123
October 2009
Maksimov v. Azerbaijan - 38228/05
Judgment 8.10.2009 [Section I]
Article 6
Civil proceedings
Article 6-1
Fair hearing
Failure to notify defendant or his counsel of date of criminal-appeal hearing: violation
Facts – The applicant was convicted of serious terrorist offences and sentenced to death (which was later commuted to life imprisonment). Subsequently, while in prison, he prepared an appeal to the Supreme Court without legal assistance, but did not attend the hearing, allegedly because he did not receive the summons. His appeal was dismissed. He then appealed, this time with the assistance of a lawyer, to the Plenum of the Supreme Court. Neither he nor his lawyer attended the hearing, again allegedly for want of notice. The substance of that appeal was also dismissed.
Law – Article 6 § 1: The Court was not satisfied that the applicant had been duly summoned to the Supreme Court’s hearings as, in the absence of a postmark, there was no evidence that the summons had actually been sent to the applicant or otherwise delivered to him. There was no indication that the Supreme Court, while deciding to proceed with the hearing in the applicant’s absence, had checked whether the summons had in fact been served. Given that a public prosecutor was present and made oral submissions at the appeal hearing while the applicant was not legally represented, the Supreme Court should have taken measures to ensure his presence in order to maintain the adversarial character of the proceedings. Although in certain cases the Court had found that the presence in person of the accused at a hearing of an appeal where only points of law were considered was not crucial, the applicant’s case was distinguishable from those in which the accused were represented by lawyers and had the opportunity to present their defence (see, for example, Kremzow v. Austria, no. 12350/86, 21 September 1993, and Kamasinski v. Austria, no. 9783/82, 19 December 1989). The applicant had been in no position to do this because of the lack of prior notice of the hearing. Accordingly, the proceedings before the Supreme Court and the Plenum of the Supreme Court had not complied with the requirement of fairness.
Conclusion: violation (unanimously).
Articles 46 and 41: Respondent State to take all measures to reopen cassation-appeal proceedings (four votes to three). No claim made in respect of damage.
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This summary by the Registry does not bind the Court.
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