CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 26 juin 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sF1F18ABB { width:189.31pt; display:inline-block } .sAF874133 { width:14.88pt; display:inline-block } .sBE67C8B8 { width:224.78pt; display:inline-block }     FIFTH SECTION DECISION Application no. 5598/09 Rovshan Farman oglu BAYRAMOV against Azerbaijan   The European Court of Human Rights (Fifth Section), sitting on 26 June 2018 as a Committee composed of:   Erik Møse, President,   Síofra O’Leary,   Lәtif Hüseynov, judges, and Claudia Westerdiek, Section Registrar, Having regard to the above application lodged on 21 January 2009, 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 1.     The applicant, Mr Rovshan Bayramov, is an Azerbaijani national, who was born in 1968 and lives in Baku. He was represented before the Court by Mr V. Xasayev, a lawyer practising in Azerbaijan. 2.     The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. A.     The circumstances of the case 3.     In 2004 the applicant was appointed as Chief of Declarations Division at Baku City Taxes Department, branch no. 2 ( Bakı Şəhəri Vergilər Departamentinin 2 saylı filialının bəyannamələr şöbəsinin rəisi ). 4.     On 28 June 2006 criminal proceedings were instituted against the applicant. He was charged with unregistered business activity (Article 192 of the Criminal Code), tax fraud (Article 213 of the Criminal Code) and forgery of official documents (Article 320 of the Criminal Code). 5.     During the pre-trial investigation fourteen witnesses gave evidence. Two of them, A.Ma. and A.Mu., stated that the applicant had founded several companies. A.Ma. and A.Mu. had acted as directors and founders of these companies. Although they had signed official documents of the companies, the real founder and owner of these companies had been the applicant. 6.     At the face-to-face confrontation between the applicant and A.Ma., the applicant asserted that A.Ma. must have been mistaken in giving his oral evidence. For his part, A.Ma. was silent when asked whether he confirmed his previous statements. However, when giving his further testimony at a separate interrogation in the absence of the applicant, A.Ma. reiterated his previous statements and clarified that he had been uncomfortable to do the same during the face-to-face confrontation because of his close relations with the applicant. A.Ma. confirmed his original statements once again during another interrogation held some time later. 7.     Witness E.T. said that he was a director of two companies that had bought some bank equipment from the applicant. Payments made to the accounts of the subject companies had been cashed out by him in the presence of A.Ma. and he had personally passed the money to the applicant as the latter did not trust the former. 8.     Witness L.A. stated that A.Ma. and other persons formally founded and then registered several companies at the tax department branch where the applicant was working and he was a true owner of those companies. She and those persons had acted under the applicant’s direct instructions. According to the applicant, L.A. then considered that this statement could be used against her and refused to sign the written record of her statement. 9.     On 27   October 2006 the Nasimi District Court ( Nəsimi Rayon Məhkəməsi ) found L.A. guilty of running unregistered businesses, forgery of documents and fraudulent business representation, and sentenced her to two years’ imprisonment. 10.     Trial in respect of the applicant commenced on 16 October 2006 at the Sabail District Court ( Səbail Rayon Məhkəməsi ). 11.     During the trial L.A. denied that she had given any evidence against the applicant during the investigation and stated that she knew the applicant as a tax officer to whom she had been submitting accounting reports from several companies where she had acted as an accountant. She further asserted that she had had no knowledge of the applicant’s activities pertaining to the sale of the bank equipment. 12.     Witnesses Sh.S. and D.G., who worked at the companies run by E.T., gave detailed statements related to the business relations between the applicant and E.T. They further asserted that L.A. had actually represented the companies where A.Ma. had been the managing director, thus confirming the allegations against the applicant. 13.     The applicant asked for two witnesses, A.Ma. and E.T., to be called. The Sabail District Court accepted the applicant’s request and adjourned the hearing. 14.     On 1 November 2006 A.Ma. sent a verified telegram to the Sabail District Court confirming his statement against the applicant given during the investigation and asking the court to consider his absence acceptable without giving any specific reasons for it. E.T. also sent a verified telegram to the Sabail District Court on 7 November 2006 whereby he confirmed his statement given during the investigation and informed the court that because of health problems he would be abroad for one month. 15.     Following a formal request of the defence, on 14 November 2006 the Sabail District Court ordered the Sabail District Police Department to bring A.Ma. and E.T. to the court hearing, but the police failed to do so as, according to the Government, the witnesses were still abroad. 16.     At a court hearing held on 28   November 2006 the prosecutor asked the court to read out the pre-trial statements of the witnesses who did not appear. The defence did not object and the written statements of seven witnesses, including A.Ma. and E.T., were read out. 17.     On the same day the Sabail District Court found the applicant guilty as charged, sentenced him to three years’ imprisonment and ordered him to pay to the State 2,716,319.06 Azerbaijani manats (AZN – approximately 2,360,000 euros (EUR) at the time) in respect of the civil claim. 18.     In his appeal lodged on an unspecified date, the applicant, inter alia , alleged that the first-instance court had failed to pursue the execution of its orders to bring A.Ma. and E.T. to the hearing in order to rectify the contradictions contained in their statements given during the pre-trial investigation. 19.     On 8   February 2007 the Court of Appeal ( Azərbaycan Respublikasının Apellyasiya Məhkəməsi ) reduced the applicant’s sentence to one and a half years’ imprisonment and upheld the civil claim. The appellate court was silent as regards the applicant’s arguments concerning the evidence given by A.Ma. and E.T. 20.     The applicant’s subsequent cassation appeal was dismissed on 22   July 2008 by the Supreme Court ( Azərbaycan Respublikasının Ali Məhkəməsi ). It held that the first-instance court had made sufficient efforts to arrange for the participation of all witnesses at the proceedings including passing orders on forcible appearance at court hearings. However, as some of the absent witnesses had been abroad and others did not reside at the addresses listed in the indictment, the first-instance court had read out their statements given during the pre-trial stage, which was in accordance with the relevant procedural rules (Article 329 of the Code of Criminal Procedure). B.     Relevant domestic law 21.     The relevant provisions of the Code of Criminal Procedure (“the CCrP”) provide as follows: Article 95: Witness “95.1.     A person who is aware of any important circumstances of the case may be summoned and questioned as a witness by the prosecution during the investigation or the court proceedings and by the defence during the court proceedings. ... 95.4.     The witness shall fulfil the following duties in accordance with this Code in the circumstances provided for by it: 95.4.1.     attend and participate at the investigation and other procedural matters as required by the authority conducting criminal proceedings and answer questions fully and correctly on all facts known to him [her]; ... 95.4.6.     comply with the instructions of the preliminary investigator, investigator, prosecutor and presiding judge; 95.4.7.     be at the disposal of the court, and not go elsewhere without the permission of the court or without notifying the prosecuting authority of his [her] whereabouts ...” Article 178: Forcible appearance “178.1.     Forcible appearance shall entail bringing a person by force to the authority conducting criminal proceedings and forcibly ensuring his [her] participation in investigative or other procedural matters. 178.2.     This measure may be applied to a person participating in criminal proceedings and summoned by the authority conducting criminal proceedings only in the following circumstances: 178.2.1.     if he [she] fails to attend in response to a compulsory summons of the authority conducting criminal proceedings without good reason; 178.2.2.     if he [she] evades receipt of the summons from the authority conducting criminal proceedings; 178.2.3.     if he [she] hides from the authority conducting criminal proceedings; 178.2.4.     if he [she] has no permanent place of residence. 178.3.     Children under the age of fourteen, pregnant women, persons who are seriously ill and victims bringing a private criminal prosecution may not be forcibly brought before the authority conducting criminal proceedings ...” Article 329: Reading out witness statements “329.1.     Reading out witness statements given at the pre-trial stage, previous or current court hearing without a witness’s presence at the court hearing, as well as playing out audio records or demonstration of video records of such statements shall be permitted only in cases when reasons exempting a witness from coming to the court hearing exist or in other cases listed in Article 327.1 of this Code ...” Article 392. Determination of the proceedings at the court of appellate instance “392.1.     While determining the proceedings following an appeal complaint or an appeal protest the court of appeal shall decide upon the following issues: 392.1.1.     on necessity of conducting a judicial investigation and about its extent; 392.1.2.     on necessity of requesting additional evidence; 392.1.3.     about the persons to be summoned to the court hearing; ...” COMPLAINTS 22.     The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that the criminal proceedings against him had been unfair, since he had been deprived of the right to examine witnesses against him. 23.     The applicant also complained under Article 5 § 1 of the Convention that his pre-trial detention was not justified. 24.     The applicant further complained under Article 13 of the Convention of a lack of effective remedies against the decision of the trial court. THE LAW A.     Complaint under Article 6 §§ 1 and 3 (d) of the Convention 25.     The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that the criminal proceedings against him had been unfair, since he had not been given an opportunity to examine evidence from A.Ma. and E.T. at any of the hearings. The relevant parts of Article 6 read as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (d)     to examine or have examined witnesses against him ...” 1.     The parties’ arguments (a)     The Government 26.     The Government opposed the applicant’s contentions and submitted that the domestic courts had taken sufficient measures to ensure the applicant’s fair trial. Following receipt of telegrams from A.Ma. and E.T. whereby they had informed the first-instance court of their inability to attend the proceedings, the Sabail District Court had agreed with the request of the applicant. The trial court had ordered their forcible appearance at the court hearing and instructed the Sabail District Police Department to execute its decision. However, the police had failed to execute that decision as the witnesses had still been abroad. The Government argued that the applicant had the opportunity to examine A.Ma. during their face-to-face confrontation at the investigation stage and that the evidence of the absent witnesses was corroborated by other witness statements. (b)     The applicant 27.     The applicant argued that A.Ma. and E.T.’s evidence had been of substantial significance in terms of his conviction. According to him, there were discrepancies between their statements and the evidence given by other witnesses. The applicant asserted that there had not been sufficient procedural guarantees to counterbalance his disadvantage during the proceedings. He argued that the first-instance court could have made further efforts to investigate whether A.Ma. and E.T. had indeed been abroad at the time of the trial or, at least, to seek evidence that they had been in need of medical treatment. 2.     The Court’s assessment 28.     The Court formulated the general principles to be applied in cases where a prosecution witness did not attend the trial and statements previously made by him or her were admitted as evidence in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§   118-151, ECHR 2011, and Schatschaschwili v. Germany [GC], no.   9154/10, §§ 100-131, ECHR 2015) 29.     The Court has also held that before an accused can be said to have, through his conduct, implicitly waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen the consequences of his conduct in this regard (see Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003). 30.     The Court observes that neither the applicant nor his lawyer objected to A.Ma. and E.T.’s statements being read out at the trial (see paragraph 14 above). This might be not sufficient for the Court to conclude that he thereby waived his right to examine the witnesses. However, the Court also notes that neither the applicant nor his lawyer specifically requested the Court of Appeal to summon those witnesses at the appeal stage (contrast Gabrielyan v. Armenia , no. 8088/05, § 85, 10 April 2012), even though the Court of Appeal had the power to do so (see paragraph 21 above). The applicant, therefore, must be considered to have waived his right to examine A.Ma. and E.T. at the trial (see Palchik v. Ukraine , no. 16980/06, § 36, 2   March 2017). 31.     It follows that the applicant’s complaint concerning the failure to examine witnesses A.Ma. and E.T. at the trial is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B.     Other complaints 32.     The applicant also complained under Article 5 § 1 of the Convention that his pre-trial detention was not justified. He further complained under Article 13 of the Convention of a lack of effective remedies against the decision of the trial court. 33.     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. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 19 July 2018. Claudia Westerdiek   Erik Møse     Registrar   President