FIFTH SECTION

DECISION

Application no. 33234/08 Vagif GULMAMMADOV against Azerbaijan

The European Court of Human Righ ts (Fifth Section), sitting on 12 Dece mber 2017 as a Committee composed of:

André Potocki , President, Mārtiņš Mits , Lәtif Hüseynov , judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 1 July 2008,

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 Vagif Gulmammadov , is an Azerbaijani national who was born in 1950 and lives in Baku. He was represented before the Court by Mr A. Mammadov , a lawyer practising in Azerbaijan.

2. The Azerbaijani Government (“the Government”) was represented by their Agent, Mr Ç. Asgarov.

A. 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 one of the three founders of the “ Dayaq ” LLC (hereinafter the “ Dayaq Company”). He was also president of the Baku Production Renovation and Construction Company (hereinafter the “Baku PRCC”).

5. On an unspecified date in 2004, the applicant ’ s co-founder in the Dayaq Company lodged a claim with the Binagadi District Court against the applicant and the third co-founder, asking the court to nullify the founding contract between the parties signed on 31 July 2001, to make a monetary estimate of their respective stakes in the enterprise, and to order the defendants to repay the plaintiff his stake in the business.

6. On 20 December 2004 the Binagadi District Court issued an order freezing certain assets which belonged to Dayaq Company, namely an office building and the equipment located in a workshop used for mixing concrete.

7. On 2 June 2005 the Binagadi District Court delivered a special court order informing the prosecution authorities of the case in order that they might determine whether there was a need to institute criminal proceedings.

8. On 7 July 2005 the Binagadi District Prosecutor rejected the instigation of a criminal case. However, it appears that on an unspecified date the prosecution authorities changed this decision and instituted criminal proceedings against the applicant. The applicant was charged with criminal offences under Articles 179 (fraud), 303 (illegal actions in respect of property subject to arrest), 308 (abuse of authority) and 313 (forgery of official documents) of the Criminal Code. According to the indictment the applicant, acting as president of Baku PRCC, had abused his position and fraudulently sold property belonging to the Dayaq Company to a third party for 46,000 Azerbaijani manats (AZN – approximately 41,500 euros (EUR) at the time).

9. On 17 July 2007 the Assize Court, sitting as a court of first instance for serious offences and having re-classified the criminal charges against the applicant, found the applicant guilty under Article 322 (arbitrary action) of the Criminal Code because he had sold property belonging to the Dayaq Company to another company, despite the existence of the asset-freezing order of 20 December 2004. The court imposed on the applicant a fine of two hundred conventional financial units, a figure that in currency terms corresponded to 220 AZN (approximately 185 EUR at the time).

10. The applicant appealed against this judgment, seeking acquittal. The applicant argued that the court order imposing the asset-freezing had been lifted and that the proceedings as a whole had been discontinued on 14 September 2005. Therefore, any subsequent actions concerning previously frozen assets could not have been considered unlawful. Moreover, as a co-founder of the Dayaq Company with no executive authority, he was anyway not in a position to authorise any property transaction.

11. On 24 September 2007 the Baku Court of Appeal dismissed the applicant ’ s appeal and upheld the judgment of 17 July 2007. On an unspecified date the applicant lodged a cassation appeal with the Supreme Court , reiterating the arguments from his appeal.

12. On 8 January 2008 and 15 January 2008 the Supreme Court held hearings. The applicant and his lawyer were not present at those hearings. The prosecutor was present and made oral submissions at the latter hearing.

13. According to the Government, the Supreme Court informed the applicant by summonses on 4 December 2007 and 8 January 2008 that the cassation appeal hearings concerning his case would be held on 8 January 2008 and 15 January 2008 respectively. According to the applicant, he did not receive any such summons.

14. On 15 January 2008 the Supreme Court upheld the Court of Appeal ’ s judgment, noting that the proceedings before the lower courts had been in accordance with the relevant law. In its judgment the Supreme Court noted that the applicant and his lawyer had not been present at the proceedings but did not indicate whether they had been informed of the hearings held on 8 January 2008 and 15 January 2008.

B. Relevant domestic law

15. The relevant provisions of domestic law concerning proceedings in the Supreme Court are described in detail in the Court ’ s judgments in Abbasov v. Azerbaijan (no. 24271/05, §§ 19-21, 17 January 2008), Maksimov v. Azerbaijan (no. 38228/05, §§ 22-24, 8 October 2009), and Faig Mammadov v. Azerbaijan (no. 60802/09, §13, 26 January 2017).

16. Article 83.3.2 of the Criminal Code stipulates that the criminal record of a person who has been sentenced with a punishment not involving imprisonment is to be considered as extinguished one year after the date on which the punishment was completely executed. Extinguishing or lifting of the criminal record removes all legal consequences thereof (Article 83.6).

COMPLAINTS

17. The applicant complained under Article 6 of the Convention that he had not been informed of the date and place of the hearings before the Supreme Court.

18. Relying on Articles 6 and 7 of the Convention, he further complained that the criminal case against him had been fabricated, that the courts had not been impartial and had not correctly assessed the facts and evidence pertaining to the case, and that he had been convicted of an act which did not constitute a criminal offence.

THE LAW

A. Alleged violation of article 6 § 1 of the Convention

19. The applicant complained under Article 6 § 1 of the Convention that he had not been informed of the hearing of his cassation appeal on 15 January 2008 before the Supreme Court. The relevant part of Article 6 § 1 of the Convention reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1. The parties ’ submissions

20. The Government rejected the applicant ’ s contentions. They submitted that the applicant and his lawyer had been duly informed about the hearing, and that his and his lawyer ’ s failure to attend the hearing could therefore not prevent it from taking place in their absence. They produced copies of the summonses signed by the presiding judge of the Supreme Court, addressed to the applicant and his lawyer and dated 4 December 2007 and 8 January 2008. The summonses stated that the hearings would be held at 10 a.m. on 8 January and 10.30 a.m. on 15 January 2008 respectively. The Government also produced copies of the extracts from the Special State Postal Service ’ s ( Xüsusi Dövlət Poçtu ) records dated 5 December 2007 and 9 January 2008 confirming that the summonses had been entrusted to the postal service for delivery to the applicant and his lawyer.

22. The applicant maintained that he had not received the summons. He also argued that his conviction had resulted in non-pecuniary damage caused by being considered as a criminal in society.

2. The Court ’ s assessment

23. The Court notes at the outset that the facts of the case are disputed. Notwithstanding this dispute, Court sees no need to address the parties ’ arguments, as the complaint is anyway inadmissible for another reason.

24. Article 35 § 3 of the Convention reads:

“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.”

26. In the present case, the Assize Court, having re-classified several serious criminal charges against the applicant, ordered him to pay a fine equivalent to EUR 185 at the relevant time.

27. The Court observes from documents submitted by the applicant that he was the co-founder and president of two construction companies and was involved directly or indirectly in the operation of a number of others. The applicant has not shown that the financial implications of the proceedings represented a particular hardship for him, and given the modest amount at stake the Court concludes that this was not the case.

28. Furthermore, the record of his conviction had been erased from the register in October 2008 and the applicant did not submit any information to the Court indicating that the information on the register had affected him adversely in any tangible way.

29. At the same time the Court is mindful that the pecuniary sum involved is not the only element that determines whether the applicant has suffered a significant disadvantage. Indeed, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting any pecuniary interest. However, the Court does not consider that any such issues have been raised by the applicant.

30. In view of the foregoing, the Court concludes that the applicant has not suffered a significant disadvantage as a result of the alleged violations of the Convention.

31. Second, the Court further observes that the problem of applicants not having been properly summoned in Azerbaijan has been addressed on numerous occasions in its judgments (see Abbasov and Maksimov v. Azerbaijan , both cited above; and Pirali Orujov v. Azerbaijan , no. 8460/07 , 3 February 2011 ) and considers that respect for human rights, as defined in the Convention and Protocols thereto, does not require an examination of the present application on the merits.

32. Lastly, as regards the third condition of this inadmissibility criterion, namely that the case must have been “duly considered” by a domestic tribunal, the Court notes that the applicant ’ s complaint was that he had not been informed of the date and place of the hearings before the Supreme Court, and neither him nor his lawyer had been present at those hearings, where his appeal against the judgment of the Court of Appeal was reviewed. The Court observes that the case against the applicant was examined on the merits by the Assize Court and the Court of Appeal and that the applicant was able to submit his arguments in adversarial proceedings. The Court also notes that the scope of examination of the case by the Supreme Court was limited to the material contained in the case file and that the Supreme Court could have properly determined the issues before it without making a direct assessment of the evidence given by the applicant in person (compare Faig Mammadov v. Azerbaijan , no. 60802/09, § 31, 26 January 2017).

33. The three conditions of the inadmissibility criterion having thus been satisfied, the Court finds that this complaint must be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.

B. Other complaints

34. The applicant also complained under Articles 6 and 7 of the Convention that the criminal case against him had been fabricated, that the courts had not been impartial, that the courts had not correctly assessed the facts and evidence pertaining to the case, and that he had been convicted of an act which did not constitute a criminal offence.

35. Having regard to all the material in its possession, and in so far as these complaints fall 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 must be rejected as being manifestly ill-founded, pursuant to 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 18 January 2018 .

Anne-Marie Dougin André Potocki Acting Deputy Registrar President