Last Updated on February 10, 2021 by LawEuro
FIFTH SECTION
DECISION
Application no. 76177/13
Kamran Sakhavatoglu BAYALIYEV
against Azerbaijan
The European Court of Human Rights (Fifth Section), sitting on 14 January 2021 as a Committee composed of:
Lado Chanturia, President,
Latif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above application lodged on 5 November 2013,
Having regard to the decision to give notice to the Azerbaijani Government (“the Government”) of the complaint under Article 6 §§ 1 and 3 (c) of the Convention and to declare the remainder of the application inadmissible,
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 Kamran SakhavatogluBayaliyev (Kamran SəxavətoğluBəyalıyev, is an Azerbaijani national, who was born in 1978 and lives in Khirdalan. He was represented before the Court by Mr V. Khasayev, a lawyer based in Azerbaijan.
2. The Government were represented by their Agent, Mr Ç.Əsgərov.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was arrested on 28 August 2013 and taken to the Absheron District Police Office, where a report was drawn up indicating that he had committed an administrative offence under Article 296 (minor hooliganism) of the Code of Administrative Offences (“the CAO”). According to the report, the applicant had been arrested for threatening and insulting a certain V.I. during a telephone conversation on 23 August and in person in front of the police office building on 28 August 2013.
5. The applicant was offered legal assistance from a State-funded lawyer but he rejected it. Subsequently, the police officer in charge of the case compiled a report to that effect which was signed by him and by the State‑funded lawyer who had been invited to defend the applicant. The applicant did not sign the report and refused to provide any explanation (izahat) in respect of the alleged administrative offence.
6. On the same day the applicant was brought before the Absheron District Court.
7. According to the transcript, at the preliminary hearing, which commenced at 11.45 a.m., the applicant was apprised of his rights under the CAO, including the right to defend himself in person or through legal assistance. He was also offered the services of a State-funded lawyer but rejected that offer. Moreover, he refused to choose any of the lawyers from a list of eleven lawyers from the local bar association and stated that he did not require any legal assistance at all as he was going to defend himself in person. Thereafter, a pre-printed report (ərizə) was compiled and signed by the court officer and by the State-funded lawyer who had been invited to defend the applicant. A handwritten note on the report stated that the applicant had refused to sign it. The court then scheduled the main hearing for 3 p.m. of the same day, to allow the applicant time to prepare his defence or to contact his own lawyer.
8. At the main hearing at 3 p.m., the presiding judge informed the applicant that he could ask the court for a further adjournment should he require more time for preparing his defence or contacting his own lawyer. However, the applicant stated that he had had enough time to familiarise himself with the case material and to prepare his defence strategy, and that he was going to conduct his own defence without any assistance. The applicant denied committing the offence he had been charged with and told the court that he had indeed had a tense telephone conversation with V.I. a few days previously, but he had not used any offensive or insulting language. On 28 August 2013 he had been invited to the Absheron District Police Office, where he had been informed that V.I. had lodged a complaint against him on the grounds of having been threatened and insulted by him in a telephone conversation several days previously. Furthermore, despite the allegations that he had repeatedly threatened and insulted V.I. on 28 August 2013 in front of the police office building, he had not seen the latter at the place in question on that date.
9. The first-instance court convicted the applicant as charged and sentenced him to ten days’ administrative detention. The court based its decision on statements made by V.I., who had told the court that on 23 August 2013 the applicant had called him on the phone and started to insult and threaten him. Their conversation had been broadcast out loud because he had accidentally hit the wrong button on the phone screen while trying to cancel the call, and it had been overheard by his co-workers. Eventually he had felt unwell and someone had called an ambulance. Later on the same day he had lodged a complaint with the Absheron District Police Office against the applicant because of the events that had taken place. V.I. further stated that on 28 August 2013 he had met the applicant at the entrance to the Absheron District Police Office, where he had been invited in connection with his complaint. The applicant had started loudly insulting him again, and two police officers, who were standing at the entrance to the building, had asked the applicant to calm down. The applicant had ignored their request and the police officers had taken him inside the building.V.I.’s account of the events of 23 August 2013 was supported by six witness statements from his co-workers. Another two witnesses – the police officers who were on duty guarding the entrance to the Absheron District Police Office on 28 August 2013 – gave statements supporting V.I.’s testimony about the applicant’s encounter with him on that date.
10. The applicant, now represented by a lawyer of his own choosing, lodged an appeal with the Sumgayit Court of Appeal. His arguments related mainly to the way in which the first-instance court had assessed the circumstances of his case. He also complained that he had been deprived of access to his own lawyer at the police station and at the first-instance court. In particular, the applicant submitted that his telephone had been seized during police questioning and he had been denied the opportunity to contact his own lawyer. In response, he had refused to sign the report compiled by the police officer and had rejected any legal assistance at all. The applicant did not make submissions about any particular circumstances of the proceedings before the first-instance court, and limited his complaint to a summary statement.
11. On 2 September 2013 the Sumgayit Court of Appeal dismissed the applicant’s appeal, and at the same time reduced the duration of the administrative detention to five days, ordering the release of the applicant as having served his sentence. Relying on the material in the case file, the court found the applicant’s allegations to be lacking any justification, as he had been provided with a State-funded lawyer immediately after his arrest but had chosen to reject the offer of the latter’s assistance. Moreover, the applicant had acted in a similar way in the proceedings before the first‑instance court, where he had also refused the assistance of a State‑funded lawyer and preferred to conduct his own defence. The appellate court’s decision was not amenable to further appeal.
COMPLAINTS
12. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he had been deprived of the right to be represented by a lawyer of his own choosing.
THE LAW
13. The Government submitted that immediately upon his arrest the applicant had been apprised of his right to legal representation but had stated that he did not wish to avail himself of that right, without giving any further explanation, and that a report had been compiled to that effect. Moreover, the applicant had reiterated his decision to defend himself in person during the hearing before the first-instance court, where he had consistently rejected the presiding judge’s invitations to instruct a lawyer of his own choosing or make use of assistance from a State-funded lawyer. Accordingly, the applicant’s right to a lawyer of his own choosing could not be considered to have been restricted.
14. The applicant did not submit any observations in reply to those of the Government.
15. The Court notes the Government’s argument that by rejecting the assistance of a State-funded lawyer or of a lawyer of his own choosing, which was offered to him at the police office and in the proceedings before the first-instance court, the applicant explicitly waived his right to legal representation both before and during the trial. Accordingly, the Court’s task in the present case consists in ascertaining whether the particular circumstances of the case might point to a valid waiver of the right to legal assistance obtained in compliance with the requirements of Article 6 of the Convention.
16. In that connection, the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving, of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, 12 May 2017). It follows that a waiver of the right to a lawyer, a fundamental right among those listed in Article 6 § 3 which constitute the notion of a fair trial, must be strictly compliant with the above requirements (see, mutatis mutandis, Murtazaliyeva v. Russia [GC], no. 36658/05, § 118, 18 December 2018).
17. Turning to the circumstances of the present case, the Court observes that the applicant did not complain when he was brought before the trial court that he had not been given an opportunity to contact a lawyer of his own choosing during the police questioning. On the contrary, it appears from the transcripts of the court hearing before the Absheron District Court – the content of which was not disputed by the applicant – that he was twice reminded of his right to legal assistance, and provided with an opportunity to contact a lawyer of his own choosing (see paragraphs 7 and 8 above). Moreover, a list of eleven lawyers was presented to the applicant, who refused to choose any of the lawyers from that list (see paragraph 7 above).
18. The Court also notes that, having summarily complained in his appeal that he had been denied an opportunity to contact his own lawyer during the police questioning and in the proceedings before the first‑instance court, the applicant did not submit any information or evidence in support of his complaint. Moreover, he failed to elaborate on the circumstances in which he was allegedly deprived of the right to be assisted by a lawyer of his own choosing during the trial, either in his complaint to the Court or in his reply to the Government’s observations.
19. On the basis of these facts, the Court considers that the applicant explicitly waived any rights he may have had under Article 6 § 1 of the Convention.
20. Moreover, the waiver was attended by minimum safeguards commensurate with its importance. The trial judge was a professional judge independent of the prosecution (see Murray v. the United Kingdom [Committee], no. 20391/16, § 34, 12 November 2019). He was also consistent in advising the applicant to exercise his right to legal assistance (see paragraphs 7 and 8 above).
21. In light of the foregoing, the Court concludes that it was the applicant’s own choice not to have a lawyer and that the authorities thus cannot be held responsible for the fact that he was not legally represented in the course of the administrative proceedings against him (see Galstyan v. Armenia, no. 26986/03, § 92, 15 November 2007, and Zakshevskiy v. Ukraine, no. 7193/04, § 113, 17 March 2016).
22. Having found that the applicant’s right of access to a lawyer has not been restricted, the Court, in principle, does not need to assess the overall fairness of the criminal proceedings against the applicant (see Dvorski v. Croatia [GC], no. 25703/11, § 82, ECHR 2015).
23. However, the Court finds it necessary to add that in the circumstances of the present case, the absence of a lawyer of his own choosing could not in any event be considered to have had the effect of irretrievably prejudicing the overall fairness of the criminal proceedings against the applicant, as he did not make any self-incriminating statements that he would later retract or change at either stage of the proceedings. On the contrary, he consistently denied all the charges against him and put forward his own version of events (compare Trymbach v. Ukraine, no. 44385/02, § 64, and Zinchenko v. Ukraine, no. 63763/11, § 89, 13 March 2014), and actively participated at all stages in the criminal proceedings by presenting that version of events. The domestic courts did not use any of the statements made by the applicant during the proceedings as a basis for his conviction, and nor did they base his conviction exclusively on the statement given by V.I. Their decisions were supported by extensive witness testimonies and do not appear arbitrary or manifestly unreasonable.
24. In the light of the above considerations, the Court finds nothing to suggest that the applicant’s defence rights have been breached. It therefore considers that his complaint under Article 6 §§ 1 and 3 (c) of the Convention is manifestly ill-founded and should be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 February 2021.
Martina Keller Lado Chanturia
Deputy Registrar President
Leave a Reply