FIFTH SECTION
\nDECISION
\nApplication no. 44727\/09
\nFuad HUSEYNOV
\nagainst Azerbaijan<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 8\u00a0January 2019 as a Committee composed of:<\/p>\n
Andr\u00e9 Potocki, President,
\nM\u0101rti\u0146\u0161 Mits,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, DeputySection Registrar,<\/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. 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.<\/p>\n 2. The Azerbaijani Government (\u201cthe Government\u201d) were represented by their Agent, Mr \u00c7. Asgarov.<\/p>\n A. The circumstances of the case<\/strong><\/p>\n 3. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 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\u2019 imprisonment.<\/p>\n 5. Relying on the applicant\u2019s above-mentioned conviction, A.S. lodged a civil claim against him with the Ujar District Court seeking payment of 200,000\u00a0manats (AZN \u2013 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\u2019s 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.<\/p>\n 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\u2019s rights\u2011including the right to attend a hearing and to submit written observations\u2011on the applicant, and to inform him of a preliminary hearing scheduled for 3\u00a0October 2007. Service of the notification and the attached documents was confirmed by the applicant\u2019s signature on 19 September 2007.<\/p>\n 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.<\/p>\n 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.<\/p>\n 9. On 6 November 2007 the court adjourned the hearing to 22\u00a0November 2017 in order to allow the applicant more time to submit his objections to the claim.<\/p>\n 10. On 22 November 2007 the court dismissed the applicant\u2019s application for the withdrawal of the presiding judge on the grounds that he had failed to substantiate his allegations.<\/p>\n 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\u2019s liability for the damage on the findings made at the time of the applicant\u2019s conviction.<\/p>\n 12. The applicant\u2019s 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.<\/p>\n 13. On 25 December 2007 the applicant\u2019s lawyer lodged an appeal, arguing that the Ujar District Court had breached the requirements of the Code of Civil Procedure (\u201cthe CCP\u201d) in that it had failed to properly summon the applicant.<\/p>\n 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\u2019s place of residence, informing them of the dates and places of hearings scheduled for 4 and 18 March, and 3 April 2008 respectively.<\/p>\n 15. According to the \u201cdelivery notifications\u201d (po\u00e7t g\u00f6nd\u0259ri\u015finin verilm\u0259si haqq\u0131nda x\u0259b\u0259rnam\u0259l\u0259r) submitted by the Government, the applicant\u2019s representative personally received the court notifications on 14\u00a0and 25 March 2008.<\/p>\n 16. The hearing of 18 March 2008 was adjourned owing to the absence of the applicant\u2019s representative.<\/p>\n 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\u2019s request was delivered to the court on 8\u00a0April 2008.<\/p>\n 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\u00a082.4 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\u2019s liability and had restricted itself to defining the amount of damages to be paid.<\/p>\n 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.<\/p>\n 20. On 3 March 2010 the Supreme Court upheld the decision of the Ali\u00a0Bayramli Court of Appeal and endorsed its reasoning. It appears from the decision that the applicant\u2019s lawyer was present at the hearing whereas the claimant, A.S., and his lawyer were not.<\/p>\n B. Relevant domestic law<\/strong><\/p>\n 21. The relevant provisions of the Code of Civil Procedure (Az\u0259rbaycan Respublikas\u0131n\u0131n M\u00fclki-Prosessual M\u0259c\u0259ll\u0259si), adopted on 28 December 1999 and published in the Official Gazette (Az\u0259rbaycan Respublikas\u0131n\u0131n qanunvericilik toplusu \u2013 2000, No. 1, Article\u00a017) provide as follows:<\/p>\n Article 1. Legislation concerning civil proceedings<\/p>\n \u201c1. Rules for court proceedings concerning civil cases and economic disputes shall be governed by the Constitution, the Law \u2018On Courts and Judges\u2019, the present Code and other laws, as well as the international conventions to which the State is party.<\/p>\n …\u201d<\/p>\n Article 82. Grounds for exemption from establishing evidence<\/p>\n \u201c…<\/p>\n 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.\u201d<\/p>\n Article 185. Failure of parties to proceedings and their representatives to\u00a0attend\u00a0a\u00a0hearing<\/p>\n \u201c…<\/p>\n 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.<\/p>\n 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.<\/p>\n 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.<\/p>\n …\u201d<\/p>\n 22. The relevant provisions of the Code of Criminal Procedure (Az\u0259rbaycan Respublikas\u0131n\u0131n Cinay\u0259t Prosessual M\u0259c\u0259ll\u0259si \u2013 hereinafter \u201cthe CCrP\u201d), adopted on 20 July 2000 and published in the Official Gazette, (2000, No. 8 (Book II), Article 585) provide as follows:<\/p>\n Article 178. Forcible appearance<\/p>\n \u201c178.1. 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.<\/p>\n 178.2. This measure may be applied to a person participating in criminal proceedings and summoned by the authority conducting those criminal proceedings …<\/p>\n …\u201d<\/p>\n COMPLAINT<\/strong><\/p>\n 23. The applicant complained that his right to a fair hearing under Article 6 \u00a7 1 of the Convention had been breached on account of the domestic courts\u2019 failure to ensure his participation in the appeal hearing in civil proceedings brought against him.<\/p>\n THE LAW<\/strong><\/p>\n 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 \u00a7 1 of the Convention, in so far as relevant, reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n A. The parties\u2019 arguments<\/strong><\/p>\n 25. The Government, relying on the Court\u2019s 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\u2019s 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\u2019s personal experience.<\/p>\n 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.<\/p>\n 27. As to the particular hearing before the Ali Bayramli Court of Appeal on 3 April 2008 and the applicant\u2019s 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.<\/p>\n 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\u2019s 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\u2019s representative. Therefore, it had been the representative\u2019s failure to attend the proceedings before the appellate court without any excuse that had left the applicant without representation at that hearing.<\/p>\n 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\u2019s 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\u2019s personal experiences and his presence could arguably be considered as unnecessary.<\/p>\n 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\u2019s lawyer had been present at the cassation hearing.<\/p>\n 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.<\/p>\n 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\u00a0Bayramli 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.<\/p>\n