FIRST SECTION

DECISION

Application no. 6383/15 Araz Faig oglu GULIYEV against Azerbaijan

The European Court of Human Rights (First Section), sitting on 5 September 2023 as a Committee composed of:

Krzysztof Wojtyczek , President , Lətif Hüseynov, Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 6383/15) 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”) on 3 January 2015 by an Azerbaijani national, Mr Araz Faig oglu Guliyev (“the applicant”), who was born in 1979 and lives in Masalli, and who was represented by Mr K. Agaliyev, a lawyer based in Azerbaijan;

the decision to give notice of the application to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the criminal conviction of the applicant, who alleged that his rights protected under Article 6 §§ 1 and 3 (d) of the Convention had been violated by the domestic courts.

2 . The applicant is the editor-in-chief of the website www.xeber44.com, which publishes articles on religious issues.

3. Between 6 and 10 September 2012 the Masalli District Executive Authority held the International Folklore Festival in Masalli.

4. On 6 September 2012 the applicant allegedly attempted to disrupt the festive entertainment, and in doing so disobeyed a police officer and caused him injury.

5. On the evening of 8 September 2012, the applicant, together with other members of a religious group called “People of Imam Museyi Kazim” ( “İmam Museyi Kazım heyəti” ), founded by the applicant, protested against a discotheque which had been organised in the Youth Centre building because in their view it was incompatible with their religion. This resulted in clashes between them and a group of local residents and the police. It appears that two police officers and two individuals, F.R. and K.S., were injured during the clashes and the window of a police car was broken.

6. The following day the applicant was arrested, and a criminal investigation was opened in respect of him under Article 221.2.1 (hooliganism) of the Criminal Code.

7. On 20 September 2012 a search was carried out at the applicant’s home in the presence of two attesting witnesses. Two explosive devices and two detonators were found and seized during the search.

8. According to the bill of indictment, the applicant was charged under Articles 228.1 (illegal possession of weapons), 233 (organising public unrest), 283.1 (encouraging religious hatred), 315.2 (violence against a public officer endangering health and life), and 324 (abusive disrespect of the national flag) of the Criminal Code.

9 . According to the transcripts of the trial, three out of the five victims and twenty-four witnesses testified in court. The victims F.R. and K.S. did not testify in person and their pre-trial statements were read out during the trial. Neither the applicant nor his lawyer, who were present at the hearing, objected to that measure.

10. On 5 April 2013, the Lankaran Court of Serious Crimes found the applicant guilty as charged on all counts and sentenced him to eight years’ imprisonment. In its judgment, the first-instance court based its findings on the investigation file, the victims’ and witnesses’ evidence, and the expert opinions obtained. According to a linguistic and religious expert opinion, certain articles published by the applicant on his website (see paragraph 2 above) contained opinions that could lead to religious hatred and enmity. Other forensic expert opinions concerned a medical, ballistic and trace examination, which concluded, inter alia , that minor bodily injures had been inflicted on the victims.

11. The applicant appealed, arguing that the trial court had erred in its assessment of the facts of the case, had based its judgment on unsubstantiated linguistic and religious expert opinion, and had failed to ensure the participation of the victims F.R. and K.S. He also argued that one of the attesting witnesses who had been present during the search of his home had had a mental illness, and that the domestic courts had not obtained video recordings from the security cameras of the shop and the tea house in front of which the clashes had taken place.

12 . It appears from the transcript of the Shirvan Court of Appeal’s hearing that the applicant’s request to obtain the video recordings was granted. On 9 January 2014 the appellate court dismissed the applicant’s appeal, finding that the first-instance court had examined all the circumstances of the case and the evidence before it, and had come to the right conclusion. It also dismissed the applicant’s arguments regarding procedural violations. It is not, however, clear whether the video recordings were obtained and examined during those proceedings.

13. The applicant lodged a cassation appeal, reiterating his previous arguments. However, he did not mention his request to obtain the video recordings from the security cameras.

14. On 3 July 2014 the Supreme Court upheld the appellate court’s judgment. It found that the lower courts had given the applicant and his lawyer the opportunity to participate in adversarial oral hearings, had considered their requests and had made a thorough and detailed analysis of the evidence and the testimonies given by the victims and witnesses, and that their judgments were not arbitrary or unreasoned.

15. The applicant complained under Article 6 § 1 of the Convention that his trial had been unfair, that the domestic courts had based their judgments on “suspicious” linguistic and religious expert opinion and had failed to assess his complaint that one of the attesting witnesses had had a mental illness at the time when he had witnessed the search of the applicant’s home. The applicant also complained that the domestic courts had not granted his application to obtain the video recordings from the security cameras of the shop and the tea house in front of which the clashes had taken place. The applicant further complained under Article 6 § 3 (d) of the Convention that he had not been able to examine the victims F.R. and K.S. at any stage of the proceedings.

THE COURT’S ASSESSMENT

16. The Court refers to the applicable general principles under Article 6 §§ 1 and 3 (d) which have been set out in Schatschaschwili v. Germany ([GC] no. 9154/10, §§ 100-31, ECHR 2015) and Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 150-68, 18 December 2018) and are equally pertinent to the present case.

17. In the present case, the Court notes at the outset that although the applicant complained that the domestic courts had relied in their judgments on “suspicious” linguistic and religious expert opinion, he failed to present any argument to substantiate that complaint before the Court.

18. The Court also notes that in his application before it the applicant did not elaborate on his complaint that one of the attesting witnesses had had a mental illness at the time when he had witnessed the search of the applicant’s residence (compare Murtazaliyeva , cited above, § 138). In particular, the applicant did not complain that his conviction had been based on planted evidence (contrast Lay ijov v. Azerbaijan , no. 22062/07, § 57, 10 April 2014, and Sak it Zahidov v. Azerbaijan , no. 51164/07, § 42, 12 November 2015).

19. It must be reiterated that in the determination of whether the proceedings were fair the Court does not act as a court of fourth instance deciding on whether evidence has been obtained unlawfully in terms of domestic law, its admissibility, or on the guilt of an applicant (see Murtazaliyeva , cited above, §149, and, mutatis mutandis , Gäf gen v. Germany [GC], no. 22978/05, § 162, ECHR 2010; see also Tseber v. the Czech Republic , no. 46203/08, § 42, 22 November 2012, and Nikolitsas v. Greece , no. 63117/09, § 30, 3 July 2014). In line with the principle of subsidiarity, it is not appropriate for the Court to rule on whether the available evidence was sufficient for an applicant’s conviction and thus to substitute its own assessment of the facts and the evidence for that of the domestic courts. The Court’s only concern is to examine whether the proceedings in a given case were conducted fairly and were compatible with the Convention, while also taking into account the specific circumstances, the nature and the complexity of the case (see Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010; Al ‑ Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011; and Murtazaliyeva , cited above, § 149).

20. The Court observes that Azerbaijani criminal procedure contains separate provisions on material witnesses and attesting witnesses and uses different terms to distinguish between them. Attesting witnesses are invited by an investigator to act as neutral observers of an investigative measure. They are not considered to be witnesses for the prosecution or the defence, since, unlike material witnesses, they have no knowledge of the case and they do not testify about the circumstances of the case or a defendant’s guilt or innocence. The attesting witness’ evidence is limited to the manner in which investigative measures were conducted and is, in essence, redundant evidence (compare Shumeyev and Others v. Russia (dec.) , no. 29474/07 and 3 others, § 37 , 22 September 2015, and Murtazaliyeva , cited above, § 136). It appears from the case file that during the proceedings, both the applicant and his lawyer were fully able to present their submissions and to cross-examine the attesting witness alleged to have had a mental illness (compare Madatov v. Azerbaijan (dec.), no. 29656/07, § 64 , 5 March 2019).

21. In connection with the applicant’s complaint regarding the refusal of the domestic courts to grant his request to obtain the video recordings from the security cameras of the shop and the tea house, it appears from the case file that the appellate court granted the applicant’s request to obtain them (see paragraph 12 above). However, it does not appear from the documents in the case file whether that evidence existed or was examined during the proceeding. Furthermore, the applicant did not complain about it in his cassation appeal. Thus, it is not clear whether the video recording of the incident was available and whether it was a crucial piece of physical evidence in the circumstances of the case (contrast Abd ullayev v. Azerbaijan , no. 6005/08, §§ 62-64, 7 March 2019).

22. As to the applicant’s inability to examine the victims F.R. and K.S., the Court reiterates that it is only in exceptional circumstances that it will be led to conclude that the failure to hear a witness was incompatible with Article 6 of the Convention. The dismissal of a request without giving reasons or the “silence” of the domestic courts in respect of a sufficiently reasoned and relevant request to call a defence witness does not necessarily lead to a finding of a violation of Article 6. Since the overall fairness of the proceedings is an overriding criterion under Article 6 an applicant has to demonstrate not only that a particular defence witness was not examined, but also that the examination of that witness was necessary and that the refusal to call the witness prejudiced the rights of the defence (see Dorokhov v. Russia , no. 66802/01, §§ 74-75, 14 February 2008, and Murtazaliyeva , cited above, § 148).

23. In the present case, the pre-trial statements of the victims F.R. and K.S. were read out during the trial . The applicant, assisted by his defence lawyer, did not object to the reading out of the witnesses’ pre-trial statements at the hearing (see paragraph 9 above) and did not contest the accuracy of the relevant trial records (compare Kha metshin v. Russia , no. 18487/03, §§ 40 ‑ 41, 4 March 2010, and Murtazaliyeva , cited above, §§ 119 ‑ 25). The first-instance court assessed the transcript of F.R.’s and K.S.’s statements read out at the trial. Furthermore, those statements were neither the sole nor the decisive basis for the applicant’s conviction by the domestic courts, which based their findings on further significant evidence (compare Aho v. Switzerland (dec.), no. 15065/05, § 25 , 29 September 2009, and Chu kayev v. Russia , no. 36814/06, § 126-27, 5 November 2015; and contrast Schatschaschwili , cited above, § 144, and Ava z Zeynalov v. Azerbaijan , nos. 37816/12 and 25260/14, § 122, 22 April 2021).

24. The Court considers that there was enough corroborating evidence, including the testimonies of victims and witnesses, as well as numerous expert opinions, and that the applicant, assisted by a lawyer, was able to conduct his defence effectively, confront and examine the victims – except for F.R. and K.S. – and the witnesses testifying against him, comment without hindrance on the incriminating evidence, adduce evidence he considered relevant, and present his account of the events to the domestic courts. Having regard to these circumstances, the Court notes that there are sufficient counterbalancing factors to conclude that the domestic courts’ decision not to hear those particular victims at trial did not undermine the overall fairness of the proceedings (compare Isgandarov v. Azerbaijan, no. 77612/11, § 18 , 17 March 2022).

25. Having regard to all the information in its possession and given its limited role concerning the assessment of evidence by the national courts, the Court sees no grounds that would allow it to conclude that the domestic courts’ findings were arbitrary or inadequately reasoned, or that the proceedings were otherwise contrary to Article 6 of the Convention.

26. Accordingly, this complaint must be rejected as manifestly ill ‑ founded and declared inadmissible 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 28 September 2023.

Liv Tigerstedt Krzysztof Wojtyczek Deputy Registrar President