CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 mai 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s75AF5381 { font-family:Arial; font-size:8pt; display:none } .sE256019B { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } FIRST SECTION DECISION Application no. 13648/06 by Soin SEYDIYEV against Azerbaijan The European Court of Human Rights (First Section), sitting on 20 May 2010 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 16 March 2006, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Soin Seydiyev, is a Georgian national who was born in 1962 and lives in Baku. He is represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) are represented by their Agent, Mr Ç. Asgarov. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 April 2004 the applicant, while driving in Baku with two passengers in his car, was stopped by the traffic police for an alleged driving offence. It appears that, while the police were drafting a police report on his infringement of traffic regulations, a dispute occurred between the applicant and three policemen. The dispute escalated into a physical altercation. Following this incident, the applicant was taken to the Narimanov District police station where he made a statement about the incident. On 7 April 2004 the Narimanov District Prosecutor instituted criminal proceedings against the applicant under Article 315.1 of the Criminal Code (Use of violence against state officials). The applicant was accused of using force against the policemen, damaging their uniforms and tearing the police report on the infringement of traffic regulations. On 31 May 2004 the bill of indictment was sent to the first-instance court. In the proceedings before the first-instance court the applicant was provided with free legal assistance. On 4 October 2004 the Nizami District Court delivered a judgment finding the applicant guilty. The court gave him a suspended sentence of one and half years' imprisonment with a probation period of one year. The court noted in its judgment that the applicant's guilt had been established by the testimonies of the injured parties and of a witness (two policemen testified as injured parties with the third as a witness) and by expert opinions on the damage caused to the policemen by the applicant. The applicant appealed against this judgment, complaining of the court's failure to examine the defence witnesses, the length of the proceedings and the inadequate legal assistance. He noted in his appeal that the witnesses for the defence (the two passengers in his car) had never been heard, that he had been represented by a State-appointed lawyer whose participation in the proceedings was just a formality and that, because of the injured parties' absence from some hearings, the proceedings had been postponed several times. On 14 December 2004 the Court of Appeal delivered a judgment rejecting the applicant's appeal, finding no reason for changing the lower court's judgment and considering that the applicant's allegations were unsubstantiated. The applicant lodged a cassation appeal against this judgment reiterating his previous complaints. He also noted in his cassation appeal that the lawyer appointed by the State for his defence had been absent from the Court of Appeal's hearing. By a decision of 13 September 2005 the Supreme Court upheld the Court of Appeal's judgment, noting that the proceedings before the lower courts had been conducted in accordance with the law. It appears from the records of the Supreme Court's decision that both the applicant and his lawyer were absent from this hearing, but the prosecutor was present and made oral submissions. The applicant received the Supreme Court's decision on 31   October 2005. COMPLAINTS 1.     The applicant complained under Article 6 § 1 of the Convention that he had not been informed of the date and venue of the hearing before the Supreme Court. 2.     He also complained under Article 6 § 3 (c) of the Convention of the ineffectiveness of the free legal assistance he had received, claiming that the participation of the lawyer appointed by the State in the proceedings before the first-instance court had been just a formality and that this lawyer was absent from all subsequent appeal hearings. 3.     Relying on Article 6 § 3 (d) of the Convention, the applicant complained that the domestic courts had not examined witnesses on his behalf under the same conditions as witnesses against him. 4.     The applicant further complained under Article 6 that the criminal case against him had been fabricated, that the length of the proceedings before the first-instance court had been excessive, that the experts had not been impartial and that the evidence had not been assessed correctly. THE LAW I.     COMPLAINTS UNDER ARTICLE 6 § 1, 6 § 3 (c) and 6 § 3 (d) OF THE CONVENTION By a letter dated 6 January 2010 the Government informed the Court of their unilateral declaration with a view to resolving the issues raised by these complaints. The declaration provided as follows: “The Government wish to express – by way of a unilateral declaration – its acknowledgement that, in the present case, proceedings before the Supreme Court did not comply with the requirement of fairness and that the right of the applicant to examine witnesses against him and to obtain the attendance of witnesses on his behalf was not fully observed. Having regard to the Court's position with respect to affording just satisfaction to the injured party in similar cases (for example, Abbasov v. Azerbaijan , no. 24271/05, 17 January 2008), the Government is prepared to pay to the applicant a total sum of AZN 1,000 (one thousand manats) in compensation for non-pecuniary damage, plus any tax that may be chargeable on this amount. In the meantime, the Government will take all measures to reopen the cassation appeal proceedings in order to guarantee the examination of the applicant's cassation appeal in accordance with the requirements of Article 6 of the Convention. In the light of above, the Government would suggest that the circumstances of the present case allow the Court to reach the conclusion that there exist “any other reason”, as referred to in Article 37 § 1 (c) of the Convention, justifying to discontinue the examination of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine , which would require the further examination of the case by virtue of that provision. Accordingly, the Government invite the Court to strike the application out of its list of cases.” In the same letter, the Government also filed the following submissions: “3.     The Government submit that, according to the applicant's contracts with his lawyer and translator, a payment for the legal and translation fees respectively is subject to the Court's judgment, in which the Court would afford just satisfaction to the applicant. In this context, if the Court decides to strike out the application under Article 37 § 1 (c) of the Convention the applicant is not bound to pay legal and translation fees pursuant to a contractual obligation. 4.     With these in mind the Government do not include the compensation for the applicant's claims for costs and expenses in their unilateral declaration.” In a letter of 11 February 2010 the applicant contended that the amount of compensation provided in the Government's unilateral declaration was low. In this regard, the applicant claimed EUR 10,000 in respect of non ‑ pecuniary damage and EUR 2,430 for costs and expenses (including EUR 1,700 for legal fees, EUR 530 for translation expenses and EUR 200 for postal expenses). The applicant also submitted that there was no guarantee that the reopened proceedings before the Supreme Court would comply with the requirements of Article 6 of the Convention and that striking the case out of the list would deprive him of the benefit of the procedure for monitoring the execution of the Court's judgments. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article   37 §   1   (c) enables the Court in particular to strike a case out of its list if: “for any other reason established by the Court, it is no longer justified to continue the examination of the application”. Article 37 § 1 in fine includes the following proviso: “However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” The Court also reiterates that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v.   Turkey (preliminary issue) [GC], no. 26307/95, §§ 74-77, ECHR 2003 ‑ VI; Swedish Transport Workers Union v. Sweden (striking out), no.   53507/99, §§ 24-27, 18 July 2006; and Van Houten v. the Netherlands (striking out), no. 25149/03, §§ 34-37, ECHR 2005 ‑ IX). Turning to the present application, the Court notes that the declaration contains a clear acknowledgment that in the circumstances of the case the proceedings before the Supreme Court did not comply with the requirements of fairness and the applicant's right to secure the attendance and examination of the witnesses on his behalf had been violated. Moreover, the Government have given an undertaking to reopen the proceedings in the Supreme Court and ensure that the reopened proceedings meet all the requirements of fairness set out in Article 6 of the Convention. Having regard to the nature of the admissions contained in the Government's unilateral declaration, as well as the scope and extent of the various undertakings given therein, together with the amount of compensation proposed which the Court considers to be reasonable, the Court considers that it is no longer justified to continue the examination of this part of the application pursuant to Article 37 § 1 (c) (see, for the relevant principles, Tahsin Acar cited above and also Haran   v. Turkey (striking out), no.   25754/94, 26   March   2002). Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike this part of the application out of the list. II.     REMAINDER OF THE APPLICATION The applicant further complained under Article 6 that the criminal case against him had been fabricated, that the length of the proceedings before the first-instance court had been excessive, that the experts had not been impartial and that the evidence had not been assessed correctly. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. III.     APPLICATION OF RULE 43 § 4 OF THE RULES OF COURT Rule 43 § 4 of the Rules of Court provides: “When an application has been struck out, the costs shall be at the discretion of the Court...” The Court points out that, unlike Article 41 of the Convention, which comes into play only if the Court has previously found “that there has been a violation of the Convention or the Protocols thereto”, Rule 43 § 4 allows it to make an award solely for costs and expenses in the event of an application being struck out of the list of cases (see Sisojeva and Others v.   Latvia [GC], no. 60654/00, § 132, ECHR 2007 ‑ II). The Court reiterates that the general principles governing the reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see, El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 39, 20 December 2007). In other words, in order to be reimbursed, the costs must relate to the alleged violation or violations, have been actually and necessarily incurred and be reasonable as to quantum. Furthermore, under Rule 60 § 2, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. In the present case, taking into account the contracts submitted by the applicant and the amount of work carried out by the applicant's lawyer and translator, the Court decides to award EUR 2,000 in respect of costs and expenses under all heads. For these reasons, the Court by a majority Takes note of the terms of the respondent Government's declaration in respect of the complaints under Article 6 § 1, 6 § 3 (c) and 6 § 3 (d) and of the modalities for ensuring compliance with the undertakings referred to therein; Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention; Declares the remainder of the application inadmissible; Holds (a)     that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into New Azerbaijani manats at the rate applicable at the date of settlement; Note (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.   Søren Nielsen   Christos Rozakis   Registrar   President