CASE OF ZEYNALOV v. AZERBAIJAN
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
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. 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 firstinstance 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).