CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 8 octobre 2009

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Azerbaijan (application no. 38228/05 )   CONVICTED BAKU METRO BOMBER’S APPEAL PROCEEDINGS UNFAIR   Violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights   The applicant made no claim under Article 41 (just satisfaction) of the Convention, so the Court made no such award. However, it held, by four votes to three, that the most appropriate form of redress would be to reopen the cassation proceedings in order to guarantee the examination of the applicant’s appeal in accordance with the requirements of Article 6 of the Convention. (The judgment is available only in English.)   Principal facts   The applicant, Rahib Shaval oglu Maksimov, is an Azerbaijani national who was born in 1961 and is currently serving a life sentence in Gobustan Prison (Azerbaijan) for a bomb attack carried out in March 1994 in the Baku metro killing 14 people and injuring many more.   The applicant, a former member of “Sadval”, considered by some an extreme nationalist and separatist organisation, was convicted in May 1996 of planning and carrying out the 1994 metro bomb attack. He was initially given a death sentenced which, following the abolition of the death penalty in Azerbaijan in 1998, was commuted to life imprisonment.   In 2000 a new Code of Criminal Procedure (“CCP”) was adopted in Azerbaijan. In August 2004 the applicant lodged a cassation appeal under the transitional law which, before entry into force of the new CCP, allowed the lodging of an appeal against final first-instance judgments delivered according to the former criminal procedure. He alleged that his conviction had been unfair.   Both the Supreme Court and, following the applicant’s additional cassation appeal, the Plenum of the Supreme Court, after having held hearings in the applicant’s absence in April and November 2005, dismissed in the main the applicant’s appeals.   The Government alleged that they had sent the applicant summons on 22 March and 10   November 2005 notifying him of the appeal hearings in his case. The applicant claimed that he did not receive either of the summons and that, as a general rule, did not receive information on his case until months later.   Complaints, procedure and composition of the Court   Relying on Article   6   §   1 (right to a fair trial), the applicant complained of the domestic courts’ failure to summon him to the hearings of his cassation appeals.   The application was lodged with the European Court of Human Rights on 12 October 2005.   Judgment was given by a Chamber of seven judges, composed as follows: Nina Vajić (Croatia), President , Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland), judges , and also André Wampach , Deputy Section Registrar .   Decision of the Court   The Court noted that copies of the summons issued on 22 March and 10 November 2005, as submitted by the Government, were not postmarked. Nor did the Government provide any other evidence to prove that the summons had actually been sent or delivered to the applicant.   Given on the one hand the presence of the Public Prosecutor – who had made oral submissions at the hearing before the Supreme Court – and on the other hand the absence of the applicant who, moreover, had not been legally represented, it was up to the Supreme Court to maintain the adversarial character of the proceedings by ensuring the applicant’s presence. However, there was no indication that the Supreme Court had even checked whether the summons had indeed been served on the applicant. Likewise, the applicant had not been duly informed of the hearing before the Plenum.   It was difficult to see how the applicant, without having prior notice of the hearings, could have exercised his right to be present and participate effectively in proceedings concerning the determination of criminal charges against him, a right implicit in the notion of an adversarial procedure. The Court therefore held unanimously that the proceedings before both the Supreme Court and its Plenum had not been fair, in violation of Article 6 § 1.     ***   This press release is a document produced by the Registry; the summary it contains does not bind the Court. The judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Tracey Turner-Tretz (tel : + 33 (0)3 88 41 35 30) or Stefano Piedimonte (tel : + 33 (0)3 90 21 42 04) or Kristina Pencheva-Malinowski (tel : + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel : + 33 (0)3 90 21 58 77) Frédéric Dolt (tel : + 33 (0)3 90 21 53 39) Nina Salomon (tel : + 33 (0)3 90 21 49 79) The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.