CASE OF FAIG MAMMADOV v. AZERBAIJAN
No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev
5. The applicant was born in 1962 and is detained in Baku. 6. On 9 June 2008 the Assize Court (Ağır Cinayətlər Məhkəməsi – hereinafter “the Assize Court”), sitting as a court of first instance for serious offences, convicted the applicant and his wife of fraud. The applicant was sentenced to nine years’ imprisonment with confiscation of property, and his wife to seven years’ imprisonment, suspended for five years on probation. 7. On 23 January 2009 the Baku Court of Appeal (Bakı Apellyasiya Məhkəməsi – hereinafter “the Court of Appeal”) overturned the judgment of 9 June 2008, reducing the applicant’s term of imprisonment to seven years and lifting the confiscation of property sanction. 8. The applicant lodged a cassation appeal with the Supreme Court (Ali Məhkəmə – hereinafter “the Supreme Court”). The prosecutor lodged a cassation protest in respect of the judgment of 23 January 2009 with the Supreme Court, requesting that it be set aside and the case remitted to the Court of Appeal. 9. The Supreme Court scheduled the first hearing for 10 June 2009 but adjourned the proceedings until 24 June 2009 at the request of the applicant’s lawyer who pleaded that he had not enough time to familiarise himself with the case-file and collect further evidence. 10. At the hearing of 24 June 2009 the applicant’s lawyer requested another adjournment referring to health problems and lack of time for familiarisation with the case-file. The Supreme Court scheduled the next hearing for 1 July 2009. According to the minutes of the hearing of 24 June 2009 provided by the Government, the applicant’s lawyer was present when the court declared that his request had been granted and that the proceedings were adjourned until 1 July 2009. 11. On 1 July 2009, having examined the case in the absence of the applicant and his lawyer but in the presence of the prosecutor, the Supreme Court dismissed the applicant’s appeal and accepted the prosecutor’s application for supervisory review in part. The prosecutor made oral submissions during the hearing, seeking the dismissal of the applicant’s appeal. 12. The Supreme Court upheld the Court of Appeal’s judgment as regards the applicant’s conviction, but quashed his wife’s conviction, remitting that part of the case to the Court of Appeal for fresh examination. The Supreme Court found that proof of the applicant’s guilt had been duly established during the trial in the first-instance court and the Court of Appeal and that his actions had been properly classified under criminal law. Citing Article 419.4 of the Code of Criminal Procedure, the Supreme Court’s decision stated that the examination of the case was possible in the absence of the applicant and his lawyer given that the lawyer had failed to appear despite having been duly notified and the applicant, who was serving his prison sentence, had made no request to attend.