FIRST SECTION

CASE OF ZEYNALOV v. AZERBAIJAN

(Application no. 31848/07)

JUDGMENT

STRASBOURG

30 May 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Zeynalov v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Isabelle Berro-Lefèvre, President,
	Elisabeth Steiner,
	Khanlar Hajiyev,
	Mirjana Lazarova Trajkovska,
	Julia Laffranque,
	Ksenija Turković,
	Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 7 May 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 31848/07) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Ahmadshah Mammadshah oglu Zeynalov (Əhmədşah Məmmədşah oğlu Zeynalov – “the applicant”), on 9 April 2007.
2.  The applicant was represented by Mr A. Nağıyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3.  The applicant alleged, in particular, that the examination by the Supreme Court of a criminal case against him had not complied with the guarantees of Article 6 of the Convention.
4.  On 10 November 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1935 and lives in Siyazan. He is a farmer.
6.  Following a dispute over ownership rights to a plot of land between the applicant and the Sadan Municipality in the district formerly known as Davachi (“the Municipality”), criminal proceedings were instituted against the applicant.
7.  On 29 December 2004 the Davachi District Court convicted the applicant under Article 188 of the Criminal Code (violation of a lawful owner’s right to a plot of land, by means of unauthorised occupation, alteration or cultivation thereof) and sentenced him to a fine in the amount of one hundred conventional financial units (550,000 old Azerbaijani manats, equivalent to 110 new Azerbaijani manats (AZN), which according to the official exchange rates published by the Central Bank of the Republic of Azerbaijan amounted to approximately 84 euros (EUR) at the relevant time). The court found that the applicant had unlawfully occupied and cultivated a plot of land of 0.8 hectares owned by the Municipality. The Court based its findings on witness statements and information provided by the State Committee of Land and Cartography (“the SCLC”).
8.  On an unspecified date, the applicant appealed against the judgment of 29 December 2004, arguing that the plot of land in question was part of a larger parcel of land measuring 50 hectares belonging to his family farming business. On 18 March 2005 the Court of Appeal upheld the first-instance court’s judgment.
9.  The applicant lodged an appeal on points of law, alleging that the lower courts had erred in their assessment of the facts. On 9 August 2005 the Supreme Court, composed of a panel of three judges including judge N.H., quashed the judgment of the Court of Appeal of 18 March 2005 and remitted the case for a new examination to the Court of Appeal. The Supreme Court noted, in particular, that the conviction was based on insufficient evidence.
10.  Taking into consideration the findings of the Supreme Court, the Court of Appeal sent a new request to the SCLC and the Municipality requesting detailed information about the exact location, measurements and ownership of the plot of land. The Municipality submitted that, according to the official records, the plot in question belonged to the Municipality and not the applicant. The SCLC conducted an on-site inspection of the plot of land and submitted to the court that the plot in question was part of the Municipality’s estate. On 12 July 2006 the Court of Appeal delivered a new judgment upholding the Davachi District Court’s judgment of 29 November 2004 convicting the applicant. The court held that the disputed plot of land which the applicant cultivated belonged to the Municipality and that the relevant law had been applied correctly.
11.  The applicant appealed. On 10 October 2006 the Supreme Court, composed of a panel of three judges including judge N.H., examined the applicant’s appeal. It found that the Court of Appeal had examined all the relevant and available evidence and had committed no breaches of substantive or procedural law. Accordingly, the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 12 July 2006.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
12.  The relevant provisions of the Code of Criminal Procedure of 2000 (“the CCrP”) concerning the disqualification of judges provided as follows:
Article 109.  Objection to a judge
“109.1.  An objection to a judge (or judicial formation) must state reasons ... An objection to a judge may be considered justified and be granted unconditionally if there exists at least one of the following grounds precluding a person’s participation in a criminal proceedings as a judge:
...
109.1.6.  if the judge had participated as a judge in the examination of the same criminal case or another prosecution matter in a court of first instance or appeal or before the Supreme Court, or on the basis of newly discovered facts (the judge’s examination of the file at the pre-trial stage by way of judicial supervision, or the initial hearing of the case, shall not preclude his subsequently examining the case as a member of the court of first instance or appeal or the Supreme Court);
...
109.2.  In any of the cases covered by Article 109.1 of this Code, the judge shall disqualify himself or herself.”
13.  The following are the relevant provisions of the CCrP concerning the review of the relevant decisions delivered in domestic proceedings and reopening of the domestic proceedings following a finding by the Court of a violation of the Convention:
Article 455. Grounds for review of judicial decisions in connection with the violation of rights and freedoms
“455.0.  The following are grounds for review of judicial decisions in connection with the violation of rights and freedoms:
...
455.0.2.  finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings, simplified pre-trial proceedings or proceedings involving a complaint under the private prosecution procedure, conducted by courts of the Republic of Azerbaijan; ...”
Article 456.  Procedure for review of judicial decisions in connection with the violation of rights and freedoms
“456.1.  The Plenum of the Supreme Court of the Republic of Azerbaijan is vested with the competence to review judicial decisions in connection with the violation of rights and freedoms.
456.2.  Where grounds exist under Articles 455.0.1 and 455.0.2 of this Code, the Plenum of the Supreme Court examines the cases only on points of law, in connection with the execution of judgments of the Constitutional Court of the Republic of Azerbaijan and the European Court of Human Rights. After a judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court, the President of the Supreme Court assigns the case to one of the [Supreme Court] judges for preparation and presentation of the case at the Plenum [of the Supreme Court]. The case shall be reviewed at a hearing of the Plenum of the Supreme Court no later than three months after the judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court. ...”
Article 459. Decision taken after review in connection with the finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings conducted by courts of the Republic of Azerbaijan
“459.0.  Having conducted a review in cases stipulated by Article 455.0.2 of this Code, the Plenum of the Supreme Court has competence to deliver one of the following decisions:
459.0.1.  to quash, fully or partially, judicial decisions of the first-instance, appellate and cassation courts, as well as judicial decisions delivered under the procedure of additional cassation ..., and to remit the criminal case, the case materials of simplified pre-trial proceedings, or the case materials of proceedings involving a complaint under the private prosecution procedure, for re-examination by the relevant first‑instance or appellate court;
459.0.2.  to amend a decision of the court of cassation and/or additional cassation in situations stipulated in Articles 421.1.2 and 421.1.3 of this Code;
459.0.3.  to quash a decision of the court of cassation and/or additional cassation and to deliver a new decision.”
14.  In its decision no. 3 of 24 November 2005 concerning the courts’ practice on implementation of the rules concerning objections to a judge or the bench, the Plenum of the Supreme Court held that when relevant legal grounds for disqualification exist, a judge must withdraw from the examination of the case of his or her own accord, even when the parties to the proceedings have not raised an objection. This requirement to withdraw is defined by the Plenum as the judge’s “legal duty” (paragraph 3.2). A judge who has already heard a criminal case in a court of first instance, appeal or cassation, cannot take part in the re-examination of the same criminal case (paragraph 13).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
15.  The applicant complained that judge N.H. had been a member of both Supreme Court panels that had examined his two successive appeals on points of law. He noted that the participation of the judge in the examination of the same case for the second time had been in breach of the requirements of the domestic procedural law and therefore that the Supreme Court panel composed in this manner could not have been impartial. Article 6 of the Convention provides as follows, in the relevant part:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
A.  Admissibility
16.  The Government requested the Court to elaborate whether in the present case the applicant had suffered a “significant disadvantage”.
17.  The applicant did not comment on the issue.
18.  The Court considers that in such circumstances it has to determine whether the applicant’s complaint is admissible under Article 35 of the Convention, as amended by Protocol No. 14 to the Convention, which entered into force on 1 June 2010. Protocol No. 14 added a new admissibility requirement to Article 35 which, in so far as relevant, provides as follows:
“3.  The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
...
(b)  the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
19.  The Court reiterates that the new provision applies from the date of its entry into force to all applications pending before the Court, except those which have already been declared admissible (see Gaftoniuc v. Romania (dec.), no. 30934/05, § 29, 22 February 2011).
20.  The Court notes that the main element of the criterion set by Article 35 § 3 (b) of the Convention is whether the applicant has suffered any significant disadvantage (see Ionescu v. Romania (dec.), no. 36659/04, § 32, 1 June 2010, and Korolev v. Russia (dec.), no. 25551/05, 1 July 2010).
21.  Inspired by the general principle of de minimis non curat praetor, this admissibility criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative, and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev, cited above). The absence of any significant disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Ionescu, cited above, § 34).
22.  In the present case, the Court considers that account must be taken of the fact that the domestic proceedings which are the subject of the complaint resulted in the applicant’s criminal conviction. According to the material in the case file, the applicant committed a relatively minor infraction which apparently caused no material damage to the Municipality, as the latter never sought any monetary compensation from the applicant for having cultivated its land without authorisation. Although it appears that alternative and arguably more appropriate mechanisms for resolving this property dispute were available (such as, for example, civil injunction proceedings), the strictest recourse was chosen: the applicant was convicted and punished under criminal law. In such circumstances, the right to have the criminal charge against him determined by an independent and impartial tribunal established by law was a question of principle for the applicant (see, mutadis mutandis, Diacenco v. Romania, no. 124/04, § 46, 7 February 2012). In the particular circumstances of the present case, the Court considers that the matter at hand was objectively important for the applicant and that he cannot be considered not to have suffered a significant disadvantage.
23.  Moreover, the Court notes that the Supreme Court upheld, by a final decision, the judgments of the lower courts by which the applicant was convicted and sentenced to a criminal fine amounting to approximately EUR 84.
24.  The Court observes that neither of the parties submitted clear information concerning the applicant’s financial situation. Nevertheless, it observes that the applicant was a farmer operating a relatively small farming business together with his relatives.
25.  The Court accordingly dismisses the Government’s objection. Furthermore, the complaint is not inadmissible on any other grounds; it must therefore be declared admissible.
B.  Merits
26.  The Government admitted that the fact that the same judge had sat twice as a judge of the Supreme Court in the same criminal case was contrary to the domestic law. However they submitted that, having regard to the specific facts of the case at hand, the rights of the applicant guaranteed under Article 6 of the Convention were not disrespected. The Government referred to the fact that the Supreme Court had delivered different decisions in two hearings. In the Supreme Court’s decision of 9 August 2005, the panel of three judges, including N.H., upheld the applicant’s appeal on points of law, quashed the original appellate judgment of 18 March 2005 and remitted the case to the Court of Appeal for a new examination. The Supreme Court noted that the evidence in the case should be re-examined. In its subsequent decision of 10 October 2006, the panel of three judges of the Supreme Court, including N. H., upheld the Court of Appeal’s new judgment of 12 July 2006, declaring the applicant’s appeal on points of law unsubstantiated. It was the Government’s view that the applicant’s case had been examined by the national courts in accordance with the guarantees of Article 6 of the Convention.
27.  The applicant reiterated his complaint.
28.  The Court notes that the primary question raised by this complaint is whether the Supreme Court panel examining the case for the second time could be considered to be a “tribunal established by law”. In this case this issue takes precedence over any doubts as to the objective impartiality of judge N.H. In this regard, the applicant noted, and the Government accepted in their submissions, that the Supreme Court panel had been composed in breach of the requirements of the domestic law concerning the disqualification of judges.
29.  The Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 37, Reports of Judgments and Decisions 1997‑VIII).
30.  The phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also compliance by the tribunal with the particular rules that govern it and the composition of the bench in each case (see, among other authorities, Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000; Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002; and Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006). The “law”, within the meaning of Article 6 § 1 of the Convention, comprises not only legislation providing for the establishment and competence of judicial organs, but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular (see, among other authorities, Lavents, cited above, § 114; Gorguiladzé v. Georgia, no. 4313/04, § 68, 20 October 2009; and Pandjikidzé and Others v. Georgia, no. 30323/02, § 104, 27 October 2009).
31.  In the present case, the Court notes that, as admitted by the Government, Article 109 of the CCrP provided that a judge should be disqualified from hearing any case which he or she had already heard previously in any of the three levels of ordinary jurisdiction (see paragraph 12 above). The relevant domestic case-law also provided a clear interpretation of this rule, which provided that a judge in such a position should automatically disqualify himself or herself even in the absence of an objection from the parties (see paragraph 14 above). As judge N.H. was in the exact same position in the present case, the Court concludes – and, as noted above, the Government accepted – that the composition of the Supreme Court’s panel examining the applicant’s second appeal on points of law concerning the same criminal case was in breach of the relevant domestic rules. Therefore, it was not a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention.
32.  There has accordingly been a violation of Article 6 § 1 of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
33.  The applicant also complained under Article 6 of the Convention that he had not been provided free legal assistance in the criminal proceedings against him.
34.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
35.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
1.  Pecuniary damage
36.  The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage, which covered the income lost owing to the fact that he and eighteen members of his family had been unable to “engage in any agricultural activity” for a number of years.
37.  The Government submitted that there was no causal link between the alleged violation and the claim, and that the applicant had failed to present any evidence supporting his claim under this head.
38.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
2.  Non-pecuniary damage
39.  The applicant claimed EUR 50,000 in respect of non-pecuniary damage.
40.  The Government considered the amount claimed to be excessive. They submitted that finding a violation in this case would constitute sufficient compensation in respect of any non-pecuniary damage suffered by the applicant.
41.  The Court reiterates that when an applicant has been convicted despite an infringement of the guarantees of Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that, in principle, the most appropriate form of redress in such a situation would be to ensure that the applicant is granted in due course a rehearing of the case in compliance with the relevant guarantees (see, mutatis mutandis, Gurov v. Moldova, no. 36455/02, § 43, 11 July 2006). In the present case, the Court notes that the possibility exists under Azerbaijani law (see paragraph 13 above) for the applicant, if he so requests, to obtain a rehearing of his appeal on points of law in the light of the Court’s finding that it was not examined by a “tribunal established by law”.
42.  Having regard to the above and the facts of the present case, the Court considers that finding of the violation in this case constitutes sufficient compensation in respect of any non-pecuniary damage suffered by the applicant. It therefore makes no award under this head.
B.  Costs and expenses
43.  The applicant claimed EUR 2,000 for legal fees in the proceedings before the Court. In connection with this claim, he submitted a copy of an “agreement” signed by him and his lawyer, according to which the fee would be paid in the event that the Court delivers a judgment finding a violation. The applicant also claimed EUR 6,600 for travel expenses allegedly incurred by him and his eighteen family members to attend domestic court hearings and meetings with other authorities in connection with the criminal proceedings, and EUR 15,048 for postal expenses allegedly incurred in connection with the domestic proceedings.
44.  The Government noted that the “agreement” signed by the applicant and his lawyer did not qualify as a proper contract for legal services under domestic law, as it did not stipulate rights and duties of the parties and terms and conditions of the contract and was not notarised. Therefore, the Government argued that the “agreement” was not binding, that the applicant had no legal commitment to pay the lawyer and that, therefore, his claim for legal fees should be dismissed.
45.  Further, the Government noted that the claim in respect of travel expenses was unsupported by appropriate evidence and these expenses were not necessarily incurred. As to the postal expenses, the Government noted that the applicant had supported this claim by submitting receipts for a total amount of only approximately 1 Azerbaijani manat (AZN). Therefore, the Government accepted this claim for an amount of AZN 1.
46.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.
47.  As to the claim in respect of the legal fees, when deciding on just satisfaction claims in the proceedings before it, the Court is not necessarily bound by the requirements of domestic law concerning the form of a contract for legal services. Having regard to the submitted written “agreement” signed by the applicant and his lawyer, the Court considers that it constitutes evidence of legal fees incurred by the applicant in the proceedings before the Court. However, having regard to the amount of work necessary and reasonable in the present case, the Court considers that the sum claimed is excessive and that EUR 1,000 should be awarded to the applicant under this head, plus any tax that may be chargeable to the applicant on this amount.
48.  As to the alleged postal expenses, the Court notes that, contrary to what the Government alleged, the receipts submitted by the applicant, even though not properly itemised and often not fully legible, appear to be for a total amount exceeding AZN 1, but nevertheless this total amount is not EUR 15,048 as claimed by the applicant. In any event, in respect of both the alleged postal expenses and the alleged travel costs incurred in the domestic proceedings, the Court considers that these claims are exaggerated, unsupported by appropriate evidence and irrelevant in the context of the violation found in the present case. For these reasons, these claims shall be rejected.
C.  Default interest
49.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1.  Declares unanimously the complaint concerning the composition of the bench of the Supreme Court admissible and the remainder of the application inadmissible;

2.  Holds by six votes to one that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds unanimously that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage the applicant may have suffered;

4.  Holds unanimously
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Azerbaijani manats at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 May 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Isabelle Berro-Lefèvre
	Deputy Registrar	President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.
I.B.L.
A.M.W.

DISSENTING OPINION OF JUDGE DEDOV
I am not satisfied with the analysis of the impartiality issue made by the Court in this case. In paragraph 28 the Court notes that “whether the Supreme Court panel examining the case for the second time could be considered to be a ‘tribunal established by law’ takes precedence over any doubts as to the objective impartiality of the judge”, and then goes on to examine whether the composition of judges of the national Supreme Court was established in compliance with the requirements of the domestic law.

However, the national Supreme Court quashed the decision of the lower court for lack of a factual basis to make a decision on the merits. In these circumstances the objective impartiality of a judge would be undermined only if the same judge had participated in the examination of the case in a lower (or a higher) court. So security measures to protect the objective impartiality of judges should be created in such a manner as to ensure that the same judge cannot supervise, or be supervised by, himself, and thus to avoid a conflict of interest. As it appears from the case file, the judge concerned acted twice in the same capacity.

The Court was reluctant to interpret the domestic law as being intended to avoid such conflicts of interest, although there was nothing to prevent it from doing so, as Article 109.1.6 of the Code of Criminal Procedure (see paragraph 12 of the judgment) is worded in very broad terms. Such a formalistic approach could adversely affect the functioning of the national judicial systems of the Contracting States and raise difficulties without any reasonable and proportional basis.