Right of access to the case file with a view to appeal before the ECtHR. Obstructing it constitutes an infringement of the right of appeal.

JUDGMENT

Akif Hasanov v. Azerbaijan 19/09/2019 (no. 7268/10)

see here 

SUMMARY

Deadline for appeal and access to the documents in the case file.

The applicant was sentenced to 5 days in prison for hooliganism. He  appealed but he was never called  to the hearing and was never served with the dismissal decision. He appealed before the ECHR for a breach of Articles 6 § 1 and 3 (right to a fair trial), Article 7 § 1 (no punishment without law) and Article 34 (right to individual applications) after 6 months.

According to Strasbourg, the inability of the applicant and his lawyer to access to the copies of the case file constitutes unjustified interference and a serious obstacle to the effective exercise of the right of individual recourse, thereby finding a violation of Article 34 of the Convention. The Court, however, held that the applicant’s inexplicable inaction for more than two years on the issue of non-enforcement by the Court of Appeal did not substantially infringe the six-month time-limit under Article 35 § 1 of the Convention, and thus his action under Articles 6-1 and 7-1 must be rejected as inadmissible

PROVISIONS

Article 6§1 and 3

Article 7§1

Article 34

Article 35§1

PRINCIPAL FACTS

The applicant, Akif Hasanov, is an Azerbaijani national who was born in 1955 and lives in Baku.
The case concerned proceedings brought against Mr Hasanov for allegedly insulting his brother and
neighbour in the street.

He was found guilty of minor hooliganism in November 2007 and sentenced to five days’
administrative detention. He was immediately detained and served his sentence.
After his release he appealed, arguing that he had been in hospital at the time of the alleged offence

and that he had a disability which should have precluded his detention. His appeal was dismissed in
December 2007. He alleges that he only received a copy of this decision in August 2009, despite
repeated complaints with the judicial and executive authorities.

Relying in particular on Article 34 (right of individual petition) of the European Convention on Human
Rights, Mr Hasanov complained that his entire case file relating to his application before the
European Court had been seized from his lawyer’s office in 2014 when proceedings had been
brought against the latter for, among other things, tax evasion.

THE DECISION OF THE COURT…

Τhe Court notes that the applicant lodged his appeal against the decision of the first-instance court on 26 November 2007. The applicant was not present at the hearing concerning his appeal and there is no evidence that the applicant was ex officio served with a copy of the Baku Court of Appeal’s decision of 12 December 2007, as he was entitled, within the time frame set by Article 437 of the CAO . The Court notes the applicant’s allegation that he had persistently complained before various domestic judicial and executive authorities about the Baku Court of Appeal’s failure to consider his appeal and to deliver the respective decision and that no response from the authorities followed. The applicant maintained that it was only on 24 August 2009 that he received a copy of the decision delivered by the Baku Court of Appeal on 12 December 2007.

Having examined the facts of the case, the Court considers that given that the time-limit for deciding such appeals under Article 433 of the CAO is three days and that the applicant lodged his appeal on 26 November 2007, the applicant should have become aware of an alleged inactivity of the appellate court in respect of his appeal by the end of 2007. Even if the Baku Court of Appeal did fail to summon him and to ensure his participation in the hearing (as well as serving a copy of its decision on the applicant), these facts could not have relieved the applicant of his own, individual obligation to undertake elementary steps and to seek information from the relevant authorities about the outcome of his appeal.

In the absence of any explanation in this respect, and having regard to the particular circumstances of the present cases, the Court considers that the applicant’s unexplained inactivity for more than two years in respect of a possible miscarriage of justice on the part of the appeal court fell foul of a major purpose of the six-month rule under Article 35 § 1 of the Convention

 ARTICLE 34 OF THE CONVENTION

By a fax of 28 August 2014 the applicant’s lawyer introduced a new complaint on behalf of the applicant, arguing that the seizure from his office of the entire case file relating to the applicant’s pending case before the Court had amounted to a hindrance to the exercise of the applicant’s right of individual petition under Article 34 of the Convention.

Τhe Court considers that the deprivation of access for the applicant and his lawyer to their copy of the case file constituted in itself an undue interference and a serious hindrance to the effective exercise of the applicant’s right of individual application.

Violation of Article 34

Just satisfaction: 500 euros (EUR) (costs and expenses) echrcaselaw.com).


ECHRCaseLaw

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