FIFTH SECTION
\nDECISION<\/p>\n
Application no. 5598\/09
\nRovshan Farman oglu BAYRAMOV
\nagainst Azerbaijan<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 26 June 2018 as a Committee composed of:<\/p>\n
Erik M\u00f8se, President,
\nS\u00edofra O\u2019Leary,
\nL\u04d9tifH\u00fcseynov, judges,
\nand Claudia Westerdiek, Section Registrar,<\/p>\n
Having regard to the above application lodged on 21 January 2009,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr RovshanBayramov, 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.<\/p>\n 2.\u00a0\u00a0The Azerbaijani Government (\u201cthe Government\u201d) were represented by their Agent, Mr \u00c7. Asgarov.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0In 2004 the applicant was appointed as Chief of Declarations Division at Baku City Taxes Department, branch no. 2 (Bak\u0131\u015e\u0259h\u0259riVergil\u0259rDepartamentinin 2 sayl\u0131filial\u0131n\u0131nb\u0259yannam\u0259l\u0259r\u015f\u00f6b\u0259sininr\u0259isi).<\/p>\n 4.\u00a0\u00a0On 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).<\/p>\n 5.\u00a0\u00a0During the pre-trial investigationfourteen witnesses gave evidence. Two of them, A.Ma.andA.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.<\/p>\n 6.\u00a0\u00a0At 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.<\/p>\n 7.\u00a0\u00a0Witness 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.<\/p>\n 8.\u00a0\u00a0Witness 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\u2019s 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.<\/p>\n 9.\u00a0\u00a0On 27\u00a0October 2006 the Nasimi District Court (N\u0259simi Rayon M\u0259hk\u0259m\u0259si) found L.A. guilty of running unregistered businesses, forgery of documents and fraudulent business representation, and sentenced her to two years\u2019 imprisonment.<\/p>\n 10.\u00a0\u00a0Trial in respect of the applicant commenced on 16 October 2006 at the Sabail District Court (S\u0259bail Rayon M\u0259hk\u0259m\u0259si).<\/p>\n 11.\u00a0\u00a0During 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\u2019s activities pertaining to the sale of the bank equipment.<\/p>\n 12.\u00a0\u00a0Witnesses 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.<\/p>\n 13.\u00a0\u00a0The applicant asked for two witnesses, A.Ma. and E.T., to be called. The Sabail District Court accepted the applicant\u2019s request and adjourned the hearing.<\/p>\n 14.\u00a0\u00a0On 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.<\/p>\n 15.\u00a0\u00a0Following 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.<\/p>\n 16.\u00a0\u00a0At a court hearing held on 28\u00a0November 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.<\/p>\n 17.\u00a0\u00a0On the same day the Sabail District Court found the applicant guilty as charged, sentenced him to three years\u2019 imprisonment and ordered him to pay to the State 2,716,319.06 Azerbaijani manats (AZN \u2013 approximately 2,360,000 euros (EUR) at the time) in respect of the civil claim.<\/p>\n 18.\u00a0\u00a0In 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.<\/p>\n 19.\u00a0\u00a0On 8\u00a0February 2007 the Court of Appeal (Az\u0259rbaycan Respublikas\u0131n\u0131n ApellyasiyaM\u0259hk\u0259m\u0259si) reduced the applicant\u2019s sentence to one and a half years\u2019 imprisonment and upheld the civil claim. The appellate court was silent as regards the applicant\u2019s arguments concerning the evidence given by A.Ma. and E.T.<\/p>\n 20.\u00a0\u00a0The applicant\u2019s subsequent cassation appeal was dismissed on 22\u00a0July 2008 by the Supreme Court (Az\u0259rbaycan Respublikas\u0131n\u0131n Ali M\u0259hk\u0259m\u0259si). 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).<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 21.\u00a0\u00a0The relevant provisions of the Code of Criminal Procedure (\u201cthe CCrP\u201d) provide as follows:<\/p>\n Article 95: Witness<\/p>\n \u201c95.1.\u00a0\u00a0A 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.<\/p>\n …<\/p>\n 95.4.\u00a0\u00a0The witness shall fulfil the following duties in accordance with this Code in the circumstances provided for by it:<\/p>\n 95.4.1.\u00a0\u00a0attend 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];<\/p>\n …<\/p>\n 95.4.6.\u00a0\u00a0comply with the instructions of the preliminary investigator, investigator, prosecutor and presiding judge;<\/p>\n 95.4.7.\u00a0\u00a0be 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 …\u201d<\/p>\n Article 178: Forcible appearance<\/p>\n \u201c178.1.\u00a0\u00a0Forcible 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.<\/p>\n 178.2.\u00a0\u00a0This measure may be applied to a person participating in criminal proceedings and summoned by the authority conducting criminal proceedings only in the following circumstances:<\/p>\n 178.2.1.\u00a0\u00a0if he [she] fails to attend in response to a compulsory summons of the authority conducting criminal proceedings without good reason;<\/p>\n 178.2.2.\u00a0\u00a0if he [she] evades receipt of the summons from the authority conducting criminal proceedings;<\/p>\n 178.2.3.\u00a0\u00a0if he [she] hides from the authority conducting criminal proceedings;<\/p>\n 178.2.4.\u00a0\u00a0if he [she] has no permanent place of residence.<\/p>\n 178.3.\u00a0\u00a0Children 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 …\u201d<\/p>\n Article 329: Reading out witness statements<\/p>\n \u201c329.1.\u00a0\u00a0Reading out witness statements given at the pre-trial stage, previous or current court hearing without a witness\u2019s 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 …\u201d<\/p>\n Article 392. Determination of the proceedings at the court of appellate instance<\/p>\n \u201c392.1.\u00a0\u00a0While determining the proceedings following an appeal complaint or an appeal protest the court of appeal shall decide upon the following issues:<\/p>\n 392.1.1.\u00a0\u00a0on necessity of conducting a judicial investigation and about its extent;<\/p>\n 392.1.2.\u00a0\u00a0on necessity of requesting additional evidence;<\/p>\n 392.1.3.\u00a0\u00a0about the persons to be summoned to the court hearing;<\/p>\n …\u201d<\/p>\n COMPLAINTS<\/strong><\/p>\n 22.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 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.<\/p>\n 23.\u00a0\u00a0The applicant also complained under Article 5 \u00a7 1 of the Convention that his pre-trial detention was not justified.<\/p>\n 24.\u00a0\u00a0The applicant further complained under Article 13 of the Convention of a lack of effective remedies against the decision of the trial court.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Complaint under Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention<\/strong><\/p>\n 25.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 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:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n …<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (d)\u00a0\u00a0to examine or have examined witnesses against him …\u201d<\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n (a)\u00a0\u00a0The Government<\/p>\n 26.\u00a0\u00a0The Government opposed the applicant\u2019s contentions and submitted that the domestic courts had taken sufficient measures to ensure the applicant\u2019s 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.<\/p>\n (b)\u00a0\u00a0The applicant<\/p>\n 27.\u00a0\u00a0The applicant argued that A.Ma. and E.T.\u2019s 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.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/p>\n 28.\u00a0\u00a0The 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, \u00a7\u00a7\u00a0118-151, ECHR 2011, and Schatschaschwili v. Germany [GC], no.\u00a09154\/10, \u00a7\u00a7 100-131, ECHR 2015)<\/p>\n 29.\u00a0\u00a0The 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).<\/p>\n 30.\u00a0\u00a0The Court observes that neither the applicant nor his lawyer objected to A.Ma. and E.T.\u2019s 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, \u00a7 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, \u00a7 36, 2\u00a0March 2017).<\/p>\n 31.\u00a0\u00a0It follows that the applicant\u2019s 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 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n B.\u00a0\u00a0Other complaints<\/strong><\/p>\n 32.\u00a0\u00a0The applicant also complained under Article 5 \u00a7 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.<\/p>\n 33.\u00a0\u00a0In 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 \u00a7 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 \u00a7 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 19 July 2018.<\/p>\n Claudia Westerdiek\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Erik M\u00f8se
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n