Avaz Zeynalov v. Azerbaijan (Applications nos. 37816/12 and 25260/14)

A selection of key paragraphs can be found below the judgment.

III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 

60.  As regards the period to be taken into consideration for the purposes of Article 5 § 3, the Court notes that this period commenced on 28 October 2011, when the applicant was arrested, and ended on 12 March 2013, when the BCSC convicted him. Thus, the applicant was held in pre-trial detention for one year, four months and twelve days in total. 

62.  In view of the foregoing considerations, the Court finds that the legal issue raised in the present case under Article 5 § 3 of the Convention is of repetitive nature and it does not see any fact or argument capable of persuading it to reach a different conclusion.  Therefore, the Court considers that the authorities failed to give “relevant” and “sufficient” reasons to justify the need for the applicant’s pre-trial detention. 

 63.  Accordingly, there has been a violation of Article 5 § 3 of the Convention. 

 IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 

69.  Turning to the circumstances of the present case, the Court notes that the impugned statement was used in the legal reasoning part of a decision in which the appellate court justified the applicant’s continued pre-trial detention and that the decision in question referred to the applicant as an accused person in all its other parts. The appellate court thus appears to have used the impugned statement not to proclaim the applicant guilty but to substantiate its decision to justify his pre-trial detention. However, the lack of intention to breach the right to the presumption of innocence cannot rule out a violation of Article 6 § 2 of the Convention and the Court has found on numerous occasions a violation of Article 6 § 2 on account of unqualified declaration of guilt in a pre-trial detention order (see, among many other authorities, Gutsanovi v. Bulgaria, no. 34529/10, §§ 201-04, ECHR 2013 (extracts), and Grubnyk, cited above, §§ 138 and 142).

70.  The Court deems that in the present case the impugned statement was not limited to describing a “state of suspicion” against the applicant, but represented the applicant as a person who had committed a criminal offence without any qualification or reservation (compare Maksim Savov v. Bulgaria, no. 28143/10, § 73, 13 October 2020). Therefore, the overall manner in which the statement was issued by the appellate court risked leaving the reader in no doubt that the applicant had committed the criminal offence in question.

71.  The Court also does not consider that the absence of any reference to the Baku Court of Appeal’s decision of 8 December 2011 in the subsequent decisions of the domestic courts may be interpreted as remedying that situation. On the contrary, the Court observes that none of the subsequent decisions of the domestic courts made any attempt to correct the relevant wording of the Baku Court of Appeal’s decision of 8 December 2011 (see Fedorenko v. Russia, no. 39602/05, § 91, 20 September 2011).

72.  In the light of the foregoing, the Court finds that the impugned statement amounted to a declaration of the applicant’s guilt, in the absence of a final conviction, and breached his right to be presumed innocent.

73.  There has accordingly been a violation of Article 6 § 2 of the Convention.

7. VII. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (D) OF THE CONVENTION 

127.  In assessing the overall fairness of the proceedings and having regard to any counterbalancing factors, in the light of its finding to the effect that the evidence given by G.A. A.H. and S.T. were decisive for the applicant’s conviction, the Court considers that the trial court had before it scarce additional incriminating evidence regarding the bribe related criminal offences of which the applicant was found guilty. However, no procedural measure was taken to compensate for the lack of opportunity to examine the witnesses at the trial.

128.  In those circumstances, the Court is of the view that the absence of an opportunity for the applicant to examine or have examined witnesses G.A. A.H. and S.T. at any stage of the proceedings rendered the trial as a whole unfair. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.