CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 8 janvier 2019

.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 } .s20FC8552 { font-family:Arial; font-size:11.5pt } .sD4EAAB82 { font-family:Arial; font-size:11.5pt; font-style:italic } .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 } .s88036C24 { width:29.79pt; display:inline-block } .s766CA6F { width:155.43pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 44727/09 Fuad HUSEYNOV against Azerbaijan   The European Court of Human Rights (Fifth Section), sitting on 8   January 2019 as a Committee composed of:   André Potocki, President,   Mārtiņš Mits,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, 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 Fuad Huseynov, is an Azerbaijani national, who was born in 1972 and lives in Ujar. He was represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan. 2.     The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     Prior to the proceedings complained of in the present application, the applicant had been convicted of defamation and insult in respect of A.S. and his family, and was sentenced to six months’ imprisonment. 5.     Relying on the applicant’s above-mentioned conviction, A.S. lodged a civil claim against him with the Ujar District Court seeking payment of 200,000   manats (AZN – approximately 161,000 euros (EUR) at the time) for non-pecuniary damage. A.S. argued that he had suffered non-pecuniary damage as a result of the applicant’s actions, namely his decision to produce hand-made posters containing insulting statements and pictures in respect of A.S. and his family and to fix them publicly around the city where they lived. 6.     On an unspecified date the court sent notification of the claim to the administration of the detention facility, asking them to serve a copy of the statement of claim and a written statement of the defendant’s rights ‑ including the right to attend a hearing and to submit written observations ‑ on the applicant, and to inform him of a preliminary hearing scheduled for 3   October 2007. Service of the notification and the attached documents was confirmed by the applicant’s signature on 19 September 2007. 7.     On 30 October 2007 the court sent another notification to the administration of the detention facility, asking them to inform the applicant of a hearing scheduled for 6 November 2007. 8.     On the same date, 30 October 2007, the applicant lodged an application requesting the withdrawal of the presiding judge on the grounds that he had presided in the case in which the applicant had been convicted. 9.     On 6 November 2007 the court adjourned the hearing to 22   November 2017 in order to allow the applicant more time to submit his objections to the claim. 10.     On 22 November 2007 the court dismissed the applicant’s application for the withdrawal of the presiding judge on the grounds that he had failed to substantiate his allegations. 11.     On the same date the Ujar District Court ordered the applicant to pay AZN 5,000 (approximately EUR 4,000 at the time) to the claimant. It appears from the judgment and the transcript of the hearing that the court did not examine the facts of the case but based its decision as to the applicant’s liability for the damage on the findings made at the time of the applicant’s conviction. 12.     The applicant’s representative participated in the proceedings before the first-instance court and was present at all hearings. The documents before the Court do not indicate that he made any specific argument as to the amount of the damages claimed. 13.     On 25 December 2007 the applicant’s lawyer lodged an appeal, arguing that the Ujar District Court had breached the requirements of the Code of Civil Procedure (“the CCP”) in that it had failed to properly summon the applicant. 14.     On 6 February, 4 March and 19 March 2008 the Ali Bayramli Court of Appeal sent notifications to the applicant at the detention facility and to his representative at the latter’s place of residence, informing them of the dates and places of hearings scheduled for 4 and 18 March, and 3 April 2008 respectively. 15.     According to the “delivery notifications” ( poçt göndərişinin verilməsi haqqında xəbərnamələr ) submitted by the Government, the applicant’s representative personally received the court notifications on 14   and 25 March 2008. 16.     The hearing of 18 March 2008 was adjourned owing to the absence of the applicant’s representative. 17.     On 30 March 2008 the applicant himself signed the notification of the hearing scheduled for 3 April 2008 and asked the court in writing to adjourn the hearing to 5 April 2008 and to make arrangements for his personal participation. On the same date, his request was forwarded to the court with an accompanying letter from the director of the detention facility. According to the Government, the applicant’s request was delivered to the court on 8   April 2008. 18.     On 3 April 2008 the Ali Bayramli Court of Appeal rejected the appeal and upheld the decision of the first-instance court. Relying on Article   82.4 of the CCP under which a decision of the court in criminal proceedings is binding on a civil court dealing with the same set of facts, the court found that the Ujar District Court had correctly refrained from examining the facts underlying the applicant’s liability and had restricted itself to defining the amount of damages to be paid. 19.     On 2 July 2008 the applicant lodged a cassation appeal, essentially reiterating his previous complaints. Because proceedings before the Supreme Court require the mandatory participation of a member of the bar, the applicant also lodged an application for a legal aid lawyer, which was granted by the court. 20.     On 3 March 2010 the Supreme Court upheld the decision of the Ali   Bayramli Court of Appeal and endorsed its reasoning. It appears from the decision that the applicant’s lawyer was present at the hearing whereas the claimant, A.S., and his lawyer were not. B.     Relevant domestic law 21.     The relevant provisions of the Code of Civil Procedure ( Azərbaycan Respublikasının Mülki-Prosessual Məcəlləsi ), adopted on 28 December 1999 and published in the Official Gazette ( Azərbaycan Respublikasının qanunvericilik toplusu – 2000, No. 1, Article   17) provide as follows: Article 1.     Legislation concerning civil proceedings “1.     Rules for court proceedings concerning civil cases and economic disputes shall be governed by the Constitution, the Law ‘On Courts and Judges’, the present Code and other laws, as well as the international conventions to which the State is party. ...” Article 82.     Grounds for exemption from establishing evidence “... 82.4.     Findings recorded in a final decision delivered in criminal proceedings concerning criminal acts, and the persons who committed them, shall be binding on a court or a judge examining a civil case.” Article 185.     Failure of parties to proceedings and their representatives to   attend   a   hearing “... 185.2.     If a participant fails to attend a hearing and there is no information in the case file to show that the absent person has been notified [of the hearing], the hearing shall be adjourned. 185.3.     If the parties have been notified of the time and place of the hearing, the court shall adjourn the proceedings if it finds that they have valid reasons for being absent. 185.4.     If the parties or the claimant have been notified of the time and place of the hearing but fail to attend it for a second time, the court may proceed to examine the case. ...” 22.     The relevant provisions of the Code of Criminal Procedure ( Azərbaycan Respublikasının Cinayət Prosessual Məcəlləsi – hereinafter “the CCrP”), adopted on 20 July 2000 and published in the Official Gazette, (2000, No. 8 (Book II), Article 585) provide as follows: 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 [or 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 those criminal proceedings ... ...” COMPLAINT 23.     The applicant complained that his right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the domestic courts’ failure to ensure his participation in the appeal hearing in civil proceedings brought against him. THE LAW 24.     The applicant complained that, notwithstanding his written request sent through the administration of the detention facility on 30 March 2008, the Ali Bayramli Court of Appeal had failed to respond and to arrange his participation at the hearing held on 3 April 2008. Article 6 § 1 of the Convention, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A.     The parties’ arguments 25.     The Government, relying on the Court’s case-law, argued that Article 6 of the Convention did not guarantee the right to personal attendance before a civil court but rather a more general right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side. In cases where the applicant had been in custody, the Court had accepted that, in view of the obvious difficulties involved in transporting prisoners from one location to another, representation of a detained applicant by a lawyer would not be in breach of the principle of equality of arms, provided that the claim had not been based on the applicant’s personal experience. 26.     The Government submitted that, in the present case, the domestic courts had constantly kept the applicant informed of the proceedings and he had had knowledge of all hearings before the courts of all instances. 27.     As to the particular hearing before the Ali Bayramli Court of Appeal on 3 April 2008 and the applicant’s request for leave to attend that hearing, sent on 30 March 2008, the Government submitted that the appellate court could not have reacted to that request as it had been received on 8 April 2008, that is, after the decision had been delivered and the proceedings finalised. 28.     Nonetheless, the applicant could not be considered to have been deprived of the right to present his case before the court because he had had legal representation. It was evident from the case file that the applicant’s representative had been kept constantly informed of the dates and places of the hearings before the appellate court. Furthermore, as could be seen from the transcripts of the hearings, they had previously been adjourned on several occasions specifically owing to the absence of the applicant’s representative. Therefore, it had been the representative’s failure to attend the proceedings before the appellate court without any excuse that had left the applicant without representation at that hearing. 29.     The Government also argued that the proceedings as a whole, and in particular those before the Ali Bayramli Court of Appeal, had not involved an examination of facts or an evaluation of the applicant’s liability since he had already been found guilty of the crime in question within the preceding criminal proceedings, and the role of the civil courts had been strictly limited to assessing the amount of damages that he should pay. Therefore, the claim was not, as such, based on the applicant’s personal experiences and his presence could arguably be considered as unnecessary. 30.     Lastly, the Government argued that even if the proceedings before the Ali Bayramli Court of Appeal had been considered not to be fully compatible with the requirements of a fair trial, the principle of equality of arms had been remedied in the proceedings before the Supreme Court since the applicant’s lawyer had been present at the cassation hearing. 31.     The applicant pointed out that the Government had admitted that the request for leave to attend the hearing in question, which he had posted on 30 March 2008, had been delivered to the Ali Bayramli Court of Appeal on 8 April 2008. He submitted that he could not be held accountable for the late delivery and the resulting deficiency in dealing with his request. 32.     The applicant further argued that the domestic courts had known of his detention and that they should have taken measures to provide for his transfer from prison and attendance at the proceedings. In particular, he referred to Article 178 of the CCrP and submitted that the failure of the Ali   Bayramli Court of Appeal to deliver a court order based on that Article was sufficient to establish that the Government had not taken the necessary measures to ensure his participation in the proceedings. B.     The Court’s assessment 33.     The applicable general principles under Article 6 § 1 have been stated, inter alia , in the cases of Aždajić v. Slovenia ( no. 71872/12, §§ 47-48, 8   October 2015), Gankin and Others v. Russia (nos. 2430/06 and 3 others, §§ 25-28, 31 May 2016) and, most recently, in Bartaia v. Georgia (no.   10978/06, §§   26-29, 26 July 2018) . 34.     As regards the applicant’s argument concerning the failure of the domestic courts to engage Article 178 of the CCrP, the Court reiterates that it is for the national authorities, particularly the domestic courts, to apply and interpret domestic law in the first place, and for the Court to exercise a certain power of review (see, for example, Hammerton v. the United Kingdom , no. 6287/10, § 107, 17 March 2016). In this regard the Court observes that the Azerbaijani rules of civil procedure stipulate that proceedings must be conducted in accordance with the CCP and make no provision for the applicability of rules concerning criminal procedure (see paragraph 21 above). Moreover, Article 178 of the CCrP in itself expressly limits the right to order a forcible appearance before it to the authority conducting criminal proceedings and the application of that right to a party to proceedings (see paragraph 22 above). Against this background, the Court is not convinced by the applicant’s argument and notes that, in the circumstances of the present case, it should not be considered arbitrary for the domestic courts examining a civil claim against the applicant not to have applied a provision of the rules on criminal proceedings. 35.     As regards the applicant’s argument concerning the late delivery of his request for leave to attend the hearing before the Ali Bayramli Court of Appeal held on 3 April 2008 and the subsequent failure of the appellate court to assess it, the Court observes that the Azerbaijani rules of civil procedure allow the courts to examine a case in the absence of the parties if they have been notified of the time and place of the hearing but have failed to attend it for a second time (see paragraph 21 above). In the instant case the applicant and his representative had been notified of forthcoming hearings on three occasions, and on at least one occasion – on 18 March 2008 – the hearing was adjourned specifically because of the absence of the applicant’s representative. Moreover, the appellate court was in possession of evidence that the applicant’s representative had received the court notifications on 14 and 25 March 2008 (see paragraphs 14 to 16 above). Therefore, in the circumstances of the present case, the decision of the Ali   Bayramli Court of Appeal to continue with the examination of the claim against the applicant in the absence of both him and his representative in accordance with Article 185.4 of the CCP (see paragraph 21 above) was not unjustified. 36.     The Court notes that the applicant’s complaint is limited to his inability to participate specifically in a particular hearing before the appellate court and, in essence, he complained about the court’s failure to hear him in person. 37.     The Azerbaijani rules of civil procedure give courts examining civil claims no discretion to re-examine the facts of a case which have already been established in criminal proceedings preceding the civil claim. In the instant case, the decision concerning the applicant’s civil responsibility for a crime, of which he had been convicted, relied solely on the findings of the criminal proceedings concerned and did not involve the examination of any new evidence (see paragraph 11 above). The matter to be decided by the domestic courts, namely the amount of damages to be paid to the victim of the applicant’s crime, was not of such a nature as to require his personal involvement. What is more important is that the applicant had an opportunity to submit his arguments and to comment on the submissions of his opponent. In this respect, the Court reiterates that what is essential in order to secure the right to a fair hearing in civil proceedings is an opportunity for the person concerned to acquaint himself with the documents and to challenge and comment on them (see Trubić v.   Croatia (dec.), no. 44887/10, § 29, 2   October 2012). 38.     In this regard the Court observes that the applicant was duly informed of the claim against him during the proceedings at first-instance and had ample opportunity to submit his arguments through his representative, who participated in all hearings. He availed himself of this opportunity, for instance, in his request for the withdrawal of the presiding judge (see paragraph 8 above). 39.     Both the applicant and his representative were properly notified of the proceedings before the appellate court. However, the applicant’s representative, even though duly notified of the date and place, did not attend the hearing at issue, did not provide any justification for his absence and did not ask for an adjournment. At this juncture the Court reiterates that the responsibility of the Contracting Parties is incurred by the actions of their organs. A lawyer, even if officially appointed, cannot be considered to be an organ of the State. Given the independence of the legal profession from the State, the conduct of the case is essentially a matter between the party and his or her counsel, whether counsel be appointed under a legal aid scheme or be privately financed, and, as such, cannot, other than in special circumstances, incur the State’s liability under the Convention (see Smyk v.   Poland , no. 8958/04, § 54, 28 July 2009). 40.     Subsequently, in the course of the proceedings before the Supreme Court concerning the applicant’s cassation appeal, he was represented by a lawyer who was fully able to participate in the hearing and was afforded the opportunity to comment on available material on the applicant’s behalf. 41.     In these circumstances, it cannot be said that the applicant’s right to participate in the proceedings concerning his civil rights and obligations was impaired to such an extent that it would run contrary to the guarantees of a fair trial under Article 6 § 1 of the Convention. 42.     It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 31 January 2019.   Milan Blaško   André Potocki   Deputy Registrar   President