Information Note on the Court’s case-law 240

May 2020

Farzaliyev v. Azerbaijan - 29620/07

Judgment 28.5.2020 [Section V]

Article 6

Article 6-2

Presumption of innocence

Applicant, neither charged nor aware of criminal investigation until after its discontinuation, ordered to pay compensation for “crime” in civil proceedings brought shortly thereafter : Article 6 applicable; violation

Facts – The applicant, a for mer Prime Minister of an autonomous region in Azerbaijan, was ordered to pay compensation in civil proceedings for his “crime” of criminal embezzlement. The applicant had never been charged and had only discovered there had been a brief criminal investigat ion against him during the civil proceedings.

Law – Article 6 § 2

(a) Applicability – The impugned civil proceedings had been instituted after the criminal proceedings involving the applicant had been discontinued as statute barred. The applicant had never been formally charged as an “accused” within the meaning of domestic law and had not become aware of those proceedings until after their discontinuation, when the prosecuting authorities had lodged a civil claim. Given such circumstances, the questions to be answered were, firstly, whether the discontinued criminal proceedings had involved the applicant as a person “charged with a criminal offence” within the meaning of the Convention and, if so, secondly, whether the subsequent civil proceedings fell with in the ambit of Article 6 § 2.

Article 6 § 2 applied where a person had been “charged with a criminal offence”. Within the meaning of Article 6 § 2, that was an autonomous concept and had to be interpreted according to the three criteria set out in the Cou rt’s case-law, namely the classification of the proceedings in domestic law, their essential nature, and the degree of severity of the potential penalty. A “criminal charge”, within the autonomous meaning of Article 6, existed from the moment that an indiv idual had been officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him. It was the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggered the application of Article 6 in its criminal aspect.

In order to answer the question of whether the applicant had been a person “charged with a criminal offence” within the autonomous meaning of Article 6 § 2, the Court had to look behind the appearances and investigate the realities of the situation before it. It was true that in the applicant’s case no formal decis ion charging him with the criminal offences had been taken. However, the decision to institute criminal proceedings had expressly designated him as one of the primary suspects with regard to the offences of embezzlement and abuse of official power. The aut horities had intended to question him, albeit at that stage in the formal capacity of a witness, but clearly in connection with their suspicion that he had committed those offences. The authorities had considered that the applicant should be formally charg ed under the Criminal Code, the relevant provisions of which all provided for prison sentences in the event of a finding of guilt, but they had been precluded from doing so owing to the expiry of the criminal prescription period. Lastly, the prosecuting au thorities had lodged a civil claim under the provisions of the Code of Criminal Procedure on the procedure for “civil claims within the framework of criminal proceedings”. That procedure required, inter alia, the existence of a “criminal charge”, as it cou ld be lodged only against an “accused” person or a person who could be held materially liable for the criminal actions of the accused. The applicant had become aware of the allegations made against him in the criminal proceedings only after the civil claim had been lodged, less than a month after their discontinuation.

Having regard to the case-specific sequence of closely inter-connected events, considered as a whole, as well as to the relatively close temporal proximity between the relevant events in question, in the particular circumstances of the applicant’s case, th e combined effect of the authorities’ actions taken as a result of a suspicion against the applicant was that his situation had been “substantially affected” by the conduct of the authorities and that therefore, for the purposes of the complaint, he had to be considered as a person “charged with a criminal offence” within the autonomous meaning of Article 6 § 2.

When the question of the applicability of Article 6 § 2 arose in the context of subsequent proceedings, the applicant had to demonstrate the existe nce of a link between the concluded criminal proceedings and the subsequent proceedings. Such a link was likely to be present, for example, where the subsequent proceedings required examination of the outcome of the prior criminal proceedings and, in parti cular, where they obliged the court to analyse the criminal judgment, to engage in a review or evaluation of the evidence in the criminal file, to assess the applicant’s participation in some or all of the events leading to the criminal charge, or to comme nt on the subsisting indications of the applicant’s possible guilt.

In the applicant’s case the subsequent civil proceedings had been linked to the discontinued criminal proceedings, and it had not been argued otherwise. The civil compensation claim had be en brought against the applicant by the prosecution authorities on behalf of the State under the provisions of the Code of Criminal Procedure on “civil claims within the framework of criminal proceedings”. The prosecution authorities had relied on the evid ence collected by the investigation, arguing that the defendants, including the applicant, had committed embezzlement of State funds in large amounts but could not be held criminally liable owing to the expiry of the prescription period, and had requested the court to order those individuals to compensate the State for the “embezzlement”. Accordingly, under the relevant legislation and practice as applied by the domestic authorities and courts, the civil proceedings were the “direct consequence” of the crim inal investigation. Moreover, the statements made by the court allegedly imputing criminal liability on the applicant had also created a link with the criminal proceedings.

Conclusion : Article 6 § 2 applicable.

(b) Merits – The criminal proceedings against the applicant had been discontinued owing to the expiry of the criminal prescription period. The applicant had never been tried for that offence by a court competent to determine questions of guilt under criminal law. Th e domestic court ruling on the civil claim had stated that money had been “embezzled” and that, even though the defendants had been absolved of criminal liability by way of discontinuation of the criminal proceedings, “the damage caused as a result of the criminal offence” had not been compensated. The wording employed reflected an unequivocal opinion that a criminal offence had been committed and that the applicant had been guilty of that offence, even though he had never been convicted and had never had t he opportunity to exercise his rights of defence in a criminal trial.

Conclusion : violation (unanimously).

The Court also held that there had been a violation of Article 6 § 1, finding that the applicant’s right to a reasoned judgment had been breached.

Ar ticle 41: EUR 4,700 in respect of non-pecuniary damage.

(See also Allen v. the United Kingdom [GC], 25424/09, 12 July 2013, Information Note 165 ; Simeonovi v. Bulgaria [GC], 21980/04, 12 May 2017, Information Note 207 ; Allenet de Ribemont v. France , 15175/89, 10 February 1995, Information Note ; Vulakh and Others v. Russia , 33468/03, 10 Ja nuary 2012, Information Note 148 ; and Batiashvili v. Georgia , 8284/07, 10 October 2019, Information Note 223 )

© Council of Europe/European Cou rt of Human Rights This summary by the Registry does not bind the Court.

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