DADASHBEYLI v. AZERBAIJAN - 11297/09 (Judgment : Right to a fair trial : Fifth Section Committee) [2020] ECHR 856 (03 December 2020)

JUDGMENT STRASBOURG 3 December 2020 This judgment is final but it may be subject to editorial revision. In the case of Dadashbeyli v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mārtiņš Mits, President, Latif Hüseynov, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 11297/09 ) 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 Said Alakbar oglu Dadashbeyli ( Səid Ələkbər oğlu Dadaşbəyli - “the applicant”), on 15 February 2009; the decision to give notice of the application to the Azerbaijani Government (“the Government”); the parties’ observations; the comments submitted by Res Publica, a non-governmental organisation, which was given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of the Court); Having deliberated in private on 5 November 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the domestic criminal proceedings against him had been unfair on account of the restriction of his right to a public hearing and his right to a defence through legal assistance of his own choosing. THE FACTS 2. The applicant was born in 1975 and lives in Baku. The applicant was represented by Mr U. Sommer, a lawyer practising in Germany. 3. The Government were represented by their Agent, Mr Ç. Əsgərov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant was arrested on 15 January 2007 on suspicion of participation in a criminal group. Following the arrest, he was apprised of his rights, including the right to have a lawyer of his own choosing or provided by the State, to remain silent and to refrain from making self‑incriminatory statements. Immediately afterwards he was provided with a State-funded lawyer and a record to that effect was compiled by the investigator and signed by the latter, the applicant and his lawyer. 6. On 17 January 2007 the Sabail District Court ordered the applicant’s pre-trial detention. 7. According to the applicant, for approximately two weeks he was interrogated extensively, with the State-funded lawyer present. Despite being under considerable pressure from the investigating officers, he consistently denied all accusations against him. On an unspecified date about two weeks after his arrest, his family instructed a lawyer to take over his defence from the State-funded lawyer provided by the investigating authority. Subsequently, on an unspecified date in mid-May 2007, the applicant’s family instructed another lawyer, who replaced the previously instructed lawyer, and who represented him until delivery of the final decision in the domestic proceedings. 8. On 16 August 2007 the applicant was served with the indictment and the case was referred to the Assize Court for trial. The applicant was charged with offences under Articles 218.1 (establishing a criminal organisation), 278 (forceful acquisition or forceful possession of State power), 274 (treason), 28.2, 180.3.1 (intended robbery), 204.3.1, 204.3.2 (preparation, acquisition or sale of counterfeit money or securities), 228.1, 228.4 (illegal acquisition and possession of gas weapons and firearms), and 234.1 (illegal acquisition and possession of narcotics) of the Criminal Code. It was alleged that he had organised and then declared himself emir of a group that planned to spread ideas of Islamic fundamentalism and religious extremism, to forcefully gain power over the State and change the Constitution, along with the State and social systems, and to create a State governed by a religious leader in line with Islamic ideology and law. According to the indictment, members of the group had entered into negotiations with officers of the Guardians of the Iranian Islamic Revolution Corps on the territory of Iran, had accepted several payments in cash from Iranian secret service officers, and had planned attacks in Baku against citizens of the United States, the United Kingdom and Israel, as well as attacks on the Baku-Tbilisi-Ceyhan oil pipeline. With that purpose in mind, members of the group had undergone fitness and military training. Furthermore, in order to finance their operations, members of the group had planned robberies of persons and organisations and had smuggled 100,000 counterfeit United States dollars into the territory of Azerbaijan. The applicant was also allegedly in the illegal possession of weapons and narcotics. The applicant denied being guilty of the crimes he was charged with. 9. In the course of the proceedings before the Assize Court, the applicant claimed his innocence and stated that the organisation which he had established and headed had been created to promote Islamic unity and charity and did not have anti-constitutional aims. He admitted visiting Iran but denied meetings with the representatives of the Iranian secret service. The applicant also conceded that he had collected information concerning the Baku-Tbilisi-Ceyhan oil pipeline and the offices of western companies in Baku but explained this by his personal curiosity and commercial interests. The applicant further confirmed that the members of the organisation had undergone military training but justified that by their plans to establish a national paintball federation. He did not raise any complaint that he had been denied access to a lawyer of his own choosing and stated that he had not been subjected to undue pressure. However, the applicant complained that the narcotics and weapons had been planted in his car and home respectively. 10. According to the transcript of the hearing, a video-recording of the applicant’s interrogation was played during the trial, without any comments made on the part of the applicant. 11. On 10 December 2007 the Assize Court found the applicant and fourteen others guilty of all charges. The applicant was sentenced to fourteen years’ imprisonment. 12. The court based its judgment on the testimony of the applicant and his co-accused obtained during the trial. The court also relied on the following: the testimony of a number of witnesses; extensive records of intercepted SMS communications (where the applicant and a member of the group had discussed visits to Iran and their meetings with several Iranians); various planned criminal activities aimed at raising funds; covert video‑recordings; and the conclusions of several forensic, ballistic, linguistic and other expert examinations. 13. According to the judgment of the Assize Court, proceedings before it were held in camera. 14. On 30 December 2007 the applicant lodged an appeal against the decision of the first-instance court. He complained that during his pre-trial detention he had been deprived of the right to be defended by a lawyer of his own choosing and that, despite his repeated objections, the proceedings had been held in camera. 15. On 25 February 2008 the Baku Court of Appeal dismissed the appeal and upheld the first-instance court’s judgment. The appellate court found the applicant’s complaints to be lacking any justification, as the State‑funded lawyer who had been provided immediately upon his arrest had been replaced by a lawyer of the applicant’s own choosing who had been instructed by his family as soon as the relevant request had been made. The appellate court also found that the first-instance court had correctly held the proceedings in camera, in accordance with the requirements of Article 6 of the Convention concerning issues of national security, in order to preserve information that constituted a State secret. 16. According to the judgment of the Baku Court of Appeal, proceedings before it were held in camera. 17. On 27 May 2008 the applicant lodged a cassation appeal, reiterating his previous complaints. 18. On 16 January 2009, at a hearing which was open to the public, the Supreme Court dismissed the cassation appeal, reiterating the Baku Court of Appeal’s reasoning. RELEVANT LEGAL FRAMEWORK 19. The relevant provisions of the Code of Criminal Procedure are described in detail in the Court’s judgment in Bibin and Others v. Azerbaijan ([Committee], nos. 81518/12 and 2 others, §§ 35-37, 30 January 2020). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant complained under Article 6 § 1 of the Convention that the court hearings were held in camera without any reason. Article 6 § 1 of the Convention reads in its relevant parts as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... [T]he ... public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society ... or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice ...” A. Admissibility 21. 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. B. Merits 1. The parties’ submissions 22. The applicant submitted that the domestic courts had failed to substantiate particular reasons to hold the proceedings in camera and that the Government’s arguments in this regard were vague and superficial. 23. The Government argued that the criminal proceedings against the applicant had been fair as the present case concerned attempted terrorist attacks aimed at disturbing public order in the respondent State and involved several foreign intelligence services; therefore, the domestic courts’ decisions to close the trial to the public had been justified. 2. The Court’s assessment 24. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1. This public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. The administration of justice, including trials, derives its legitimacy from being conducted in public. By rendering the administration of justice transparent, publicity contributes to fulfilling the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see Boshkoski v. North Macedonia , no. 71034/13 , § 39, 4 June 2020, with further references). There is a high expectation of publicity in ordinary criminal proceedings, which may well concern dangerous individuals, notwithstanding the attendant security problems (see Chaushev and Others v. Russia , nos. 37037/03 and 2 others, § 22, 25 October 2016, with further references). 25. It is apparent from the text of Article 6 § 1 that the requirement to hold a public hearing is subject to exceptions. Thus, it may on occasion be necessary to limit the open and public nature of proceedings, in order, for example, to protect the safety or privacy of witnesses, or to promote the free exchange of information and opinion in the pursuit of justice (see B. and P. v. the United Kingdom , nos. 36337/97 and 35974/97, § 37, ECHR 2001-III; Martinie v. France [GC], no. 58675/00 , § 40, ECHR 2006‑VI; and Artemov v. Russia , no. 14945/03 , § 103, 3 April 2014). 26. Turning to the circumstances of the present case, the Court notes that the Government did not provide a copy of the trial court’s order for the hearings to be held in camera and that the Baku Court of Appeal’s decision endorsing the trial court’s respective order referred solely to the preservation of secret information. 27. However, the Court has previously held that the mere presence of classified information in a case file does not automatically imply a need to close a trial to the public, without balancing openness with national security concerns. It may be important for a State to preserve its secrets, but it is of infinitely greater importance to surround justice with all the requisite safeguards, of which one of the most indispensable is publicity. Before excluding the public from criminal proceedings, courts must make specific findings that closure is necessary to protect a compelling governmental interest and limit secrecy to the extent necessary to preserve such an interest (see Pichugin v. Russia , no. 38623/03 , § 187, 23 October 2012). 28. There is no evidence to suggest that any of the conditions indicated in the paragraph above were satisfied in the present case. The Government have failed to produce any document showing that the trial court elaborated on the reasons for holding the trial in camera or that it indicated what documents in the case file, if any, were considered to contain State secrets or how they related to the nature and character of the charges against the applicant. The Court further observes that the domestic courts did not take any measures to counterbalance the detrimental effect that the decision to hold the trial in camera must have had on public confidence in the proper administration of justice for the sake of protecting the State’s interest in keeping its secrets. The Government did not argue - and there is no indication to the contrary in the documents submitted by the parties - that it was not open to the trial court to hold the trial publicly subject to clearing the courtroom for a single or, if need be, a number of non-public sessions to deal with classified documents or information. The Court therefore finds it remarkable that in such a situation the trial court preferred to close the entire trial to the public (see Belashev v. Russia , no. 28617/03 , § 84, 4 December 2008). 29. The Court also notes that the subsequent hearing of the applicant’s cassation appeal by the Supreme Court, even if held in public, was not sufficient to remedy the lack of publicity at the trial and appellate hearings, as the Supreme Court was limited in its competence only to questions of law and had no jurisdiction to hold a full rehearing of the case (see , mutatis mutandis, Malhous v. the Czech Republic [GC], no. 33071/96 , § 62, 12 July 2001, and Hummatov v. Azerbaijan , nos. 9852/03 and 13413/04, § 151, 29 November 2007). 30. Having regard to these considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention owing to the lack of a public hearing in the applicant’s case. II. ALLEGED VIOLATION OF ARTICLE 6 § 3 ( c ) OF THE CONVENTION 31. The applicant complained under Article 6 § 3 (c) of the Convention that he had not been provided with a lawyer of his own choosing at the initial stage of the criminal proceedings. Article 6 § 3 (c) of the Convention reads in its relevant parts as follows: “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;” Admissibility 1. The parties’ submissions 32. The Government submitted that the applicant had been provided with a State-funded lawyer immediately upon his arrest and that the applicant had not entered any objection into the relevant record which had been compiled by the investigating officer and signed by the applicant and his defence lawyer. The applicant had also not alleged or submitted any evidence capable of establishing to the required standard that he or his relatives had in any way been prevented from appointing a lawyer of their own choosing. Nor was there any indication whatsoever that his wish as to the choice of legal representation had been overridden or obstructed by the investigation. Therefore, the applicant’s consent to the appointed lawyer should be considered to amount to a waiver of his right to be represented by a lawyer of his own choosing. The Government also argued that the statements which the applicant had made during the time when he had been assisted by a State-funded lawyer had not impacted on the overall fairness of the proceedings. 33. The applicant submitted that the investigating authorities had rejected his request for a lawyer of his own choosing and had informed him that only the State-funded lawyer who had been provided for him could act during the investigation conducted by the secret service. In the circumstances he had had no other choice than to use the service of that particular lawyer. However, his not insisting on a lawyer of his own choosing could not be deemed to amount to a waiver of the right in question as it did not meet the standards of a voluntary decision. The applicant also argued that the main issue in his case concerned the ineffectiveness of the lawyer that had been appointed by the investigating authorities and its impact on the overall fairness of the proceedings. 34. The applicant further questioned the efficiency of his lawyers by submitting that his second lawyer had not attended interrogations during the investigation and had not helped him to exercise his rights. Nor had his third lawyer been sufficiently active during the trial and provided an effective defence. 2. The third-party intervener 35. In its third-party intervention, Res Publica, a non-governmental human rights and law organisation, submitted that denial of the right to represent oneself with a lawyer of one’s own choosing had inimical consequences in cases where there were valid concerns regarding the quality of the legal representation afforded by, and the lack of independence of, State-appointed lawyers, as it could well be argued that the exclusion of the private lawyer served the purpose of ensuring that the accused’s legal representation was entrusted to a passive and more pliable State-appointed one. Even if an accused had ultimately been provided with a legal-aid lawyer, such denial led to an unjustified denial of access to a privately funded lawyer with whom a relationship of confidence and trust might have already existed. 3. The Court’s assessment 36. The applicable general principles under Article 6 §§ 1 and 3 (c) of the Convention have been stated in Beuze v. Belgium ([GC], no. 71409/10 , §§ 120-150, 9 November 2018 ). 37. Turning to the present case, the Court notes that following his arrest on 15 January 2007 the applicant was provided with a State-funded lawyer, who assisted him for an unspecified number of days during the initial stage of the investigation, when he was questioned as an accused in the latter’s presence, concerning charges against him and accusations which he denied. The State-funded lawyer was later replaced by the lawyer instructed by the applicant’s family and on an unknown date in mid-May 2007 the second lawyer was substituted by another lawyer of the family’s choosing, who defended the applicant throughout the investigation and court proceedings. 38. In so far as the applicant’s complaint concerns the restriction of his right of access to a lawyer of his own choosing following his arrest and until his family had instructed the second lawyer, there is no evidence that he or his own chosen lawyers had lodged any relevant complaints at the material time until the issue was first raised before the Baku Court of Appeal, which found that the complaint lacked any reasoning (see paragraph 14 above). Moreover, the applicant did not indicate or allege in any way either in the domestic proceedings or in his application before the Court that in the absence of a lawyer of his own choosing he had made any self-incriminating statements that he would later retract or change. On the contrary, he consistently denied all the charges against him and advanced his own version of events, which he also maintained in the subsequent proceedings (compare Trymbach v. Ukraine , no. 44385/02 , § 64, 12 January 2012, and Zinchenko v. Ukraine , no. 63763/11 , § 89, 13 March 2014). 39. Furthermore, the Court sees no evidence that the statements given by the applicant during the investigation stage played a role in the domestic courts’ assessment of the relevant facts and the finding of guilt. It notes that the domestic courts substantiated the applicant’s conviction for the crimes of which he was accused by referring to the testimony he had given during the trial, and that of his co-accused and of a number of witnesses, and also to the documentary evidence and the conclusions of several forensic examinations (see paragraph 12 above). There is no basis to conclude that the applicant, who took part in the trial personally and was also represented by a lawyer of his own choosing, was in any way restricted in adopting a defence strategy or in his rights to state his case, question witnesses or challenge the evidence concerning any part of the case during the trial. 40. As regards the applicant’s complaints concerning the poor performance of his lawyers, including those of his own choosing, the Court reiterates that a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes or chosen by the accused. It follows that, in accordance with the independence of the legal profession from the State, the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal-aid scheme or privately financed (see Sejdovic v. Italy [GC], no. 56581/00 , § 95, ECHR 2006‑II ). 41. Having regard to all the evidence in its possession, the Court does not find any appearance of a violation of the right guaranteed under Article 6 § 3 (c) of the Convention. It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. 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.” A. Damage 43. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage. 44. The Government contested the amount claimed as excessive, submitting that, in any event, a finding of a violation would constitute sufficient just satisfaction. 45. 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 therefore 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 3,600 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 46. The applicant claimed EUR 12,000 for legal costs incurred in the proceedings before the domestic courts and the Court. 47. The Government submitted that the applicant had not produced any evidence to show that he had actually paid or was legally bound to pay any fees for his representative’s work. 48. In the present case, the Court observes that the applicant did not submit documents showing that he had paid or was under a legal obligation to pay the fees charged by his representatives. It therefore finds no basis on which to accept that the applicant has actually incurred the costs claimed (see Merabishvili v. Georgia [GC], no. 72508/13 , § 372, 28 November 2017). It follows that this part of the claim must be rejected. C. Default interest 49. 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, 1. Declares the complaint under Article 6 § 1 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 3,600 (three thousand six hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage; (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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Mārtiņš Mits Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII