Communicated on 12 March 2018

FIFTH SECTION

Application no. 60824/08 Ganimat ZAYIDOV against Azerbaijan lodged on 15 November 2008

STATEMENT OF FACTS

The applicant, Mr Ganimat Zayidov , is an Azerbaijani national, who was born in 1963 and lives in Baku. He is represented before the Court by Mr R. Hajili and Mr E. Sadigov , lawyers practising in Azerbaijan.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a journalist and at the relevant time he was the editor ‑ in ‑ chief of the Azadlıq newspaper.

On 7 November 2007 when the applicant was in front of the entrance of a publishing house in Baku, he had a verbal altercation with a woman (S.Q.) who accused him of having “abused” her. At that moment a man (V.H.) who was an acquaintance of S.Q. approached them and intervened in the quarrel. Following V.H. ’ s intervention, the initial verbal altercation turned into a physical altercation between the applicant and V.H., which was stopped after other people intervened. Following the incident, V.H. went to a hospital where he was examined by an on-duty doctor, F.Z., and received in-patient treatment.

On the same day, following V.H. ’ s complaint, the Yasamal District Police Office instituted criminal proceedings in connection with the above incident under Article 221.1 (hooliganism) of the Criminal Code.

On 9 November 2007 S.Q. and V.H. were examined by a forensic expert. In respect of S.Q., the expert concluded that there were no signs of injury on her person. As regards V.H., the expert noted that there were bruises on his nose, left ear, upper lip and head. V.H. was also diagnosed on the basis of an X-ray examination with “an incomplete fracture” of the right cheekbone. The expert concluded that the injuries caused “less serious harm to health” and had long-term effects.

On 10 November 2007 the applicant requested the investigator to order a new forensic examination of V.H., alleging that the expert report of 9 November 2007 was forged and unreliable. On the same day the investigator granted the applicant ’ s request and ordered a new examination. The new expert report issued on 23 November 2007 confirmed the existence of the same bruises and injuries. The expert concluded that the bruise to the right cheek area and “the incomplete fracture” of the right cheekbone as attested by the X-ray examination were injuries causing “less serious harm to health” with long-term effects while the remaining injuries were of minor nature.

On 11 November 2007 the applicant was charged under Articles 127.2.3 (deliberate infliction of less serious harm to health) and 221.1 (hooliganism) of the Criminal Code.

On the same date the Yasamal District Court ordered the applicant ’ s detention pending trial.

On 11 December 2007 the prosecutor in charge of the case filed the indictment with the Yasamal District Court.

The trial court held hearings on the merits from 8 January to 7 March 2008. During the hearings the applicant lodged a number of motions. In particular, on 19 February 2008 the applicant submitted that the expert opinions concerning V.H. ’ s medical examination were unreliable as the materials of the file did not contain the X-ray image on which they were based and the defence had never had an opportunity to examine this piece of evidence. He argued that that the X-ray image determined the severity of the injuries sustained by V.H. and therefore played a decisive role in the qualification of the criminal offence. The applicant accordingly requested the court to either examine it in court or to order a new X-ray examination. The court dismissed the applicant ’ s request without providing any reasons.

On 7 March 2008 the Yasamal District Court convicted the applicant as charged and sentenced him to four years ’ imprisonment. The court relied, inter alia , on medical expert reports, forensic evidence and numerous witnesses ’ statements, including testimonies given by medical experts and eyewitnesses. In particular, A.I. testified that he had seen two men fighting near a publishing house. Another eyewitness, I.T., stated that he had been at the scene and had observed that a tall man wearing eyeglasses punched and knocked down another person. Furthermore, S.Q. testified that the applicant slapped, headbutted and punched V.H. The court also read out the pre-trial statement of a prosecution witness, V.R., who was absent from the trial due to illness. According to his statement, he witnessed that one man was beating another one at the crime scene. Two medical experts, who had carried out V.H. ’ s forensic examination, were also heard by the court.

The applicant appealed complaining, inter alia , about the breach of equality of arms and the trial court ’ s unreasoned judgment. Notably, he submitted that the medical expert opinions were based on the X-ray image which had never been presented to the defence and examined in court and that his arguments to the trial court in this context remained unanswered. He also complained that he was not given an opportunity to examine witnesses against him and to adduce evidence in support of his position.

On 13 May 2008 the Baku Court of Appeal dismissed the applicant ’ s appeal and upheld the above judgment. As regards the applicant ’ s complaints about the breach of the principle of equality of arms, the court held that there was nothing in the case file demonstrating that the applicant ’ s rights under Article 6 had been violated.

The applicant lodged a cassation appeal reiterating his complaints.

On 26 August 2008 the Supreme Court dismissed the applicant ’ s appeal and upheld the lower courts ’ judgments.

COMPLAINTS

The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention about the unfairness of the criminal proceedings against him. In particular, he alleges that the domestic courts breached the principle of equality of arms by refusing his requests to produce evidence in his defence, that he was unable to properly examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf and that his right to a reasoned judgment was violated.

QUESTIONS TO THE PARTIES

1. Having regard to the applicant ’ s specific allegations, did he have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 of the Convention? Were the principle of equality of arms and the requirement of adversarial proceedings respected as regards the admission and examination of evidence? Was the applicant ’ s right to a reasoned judgment based on a proper examination of the submissions and requests respected in the present case? In particular:

(a) Did the materials of the criminal case-file contain the X-ray image relied on by the medical experts in determining the degree of the injuries sustained by V.H. and was the applicant given an opportunity to examine this piece of evidence? If not, was this compatible with Article 6 § 1 of the Convention?

(b) Was the applicant afforded an adequate opportunity to adduce evidence in support of his position? Was the domestic court ’ s refusal of the applicant ’ s request to seek additional evidence as regards V.H. and S.Q. ’ s background and their contacts prior to the incident compatible with Article 6 § 1 of the Convention?

2. Was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention? Was the domestic courts ’ refusal to examine F.Z. compatible with Article 6 §§ 1 and 3 (d) of the Convention?

3. Was the applicant able to examine witnesses against him, including V.R., before or during the trial? Was the admission of V.R. ’ s pre-trial statements compatible with Article 6 §§ 1 and 3 (d) of the Convention?

4. The parties are requested to provide necessary documentary evidence in support of their replies and submissions, including the transcripts of the court hearings and the applicant ’ s appeals and motions.