Civil conviction for embezzlement against a former prime minister against whom the criminal proceedings had been suspended due to statute of limitations. Violation of presumption of innocence

JUDGMENT

Farzaliyev v. Azerbaijan 28.05.2020 (no. 29620/07)

see here

SUMMARY

The case concerned proceedings brought against the applicant, the former Prime Minister of the
Nakhchivan Autonomous Republic in Azerbaijan (“the NAR”), for allegedly embezzling public funds.

He was never convicted of an offence in criminal proceedings, but was subsequently ordered to pay
compensation in civil proceedings amounting to the sum allegedly embezzled.

The Court found in particular that the applicant’s right to a reasoned judgment had been breached
because the national courts had not responded to his submissions during the compensation
proceedings. He had argued that the civil claim against him should have been dismissed because the
domestic law had been misapplied in his case.

It also found that the wording of the ruling ordering the applicant to pay compensation had
unequivocally reflected the opinion that he had committed a criminal offence, even though he had
never had the opportunity to exercise his rights of defence in a criminal trial and had never actually
been convicted.

PROVISIONS

Article 6§1

Article 6§2

PRINCIPAL FACTS

The applicant, Bejan Ibrahim oglu Farzaliyev, is an Azerbaijani national who was born in 1946. He has
been living in Turkey since 1993 and currently lives in Ankara.

In 2005 Mr Farzaliyev was the primary suspect in criminal proceedings for embezzlement of public
funds and abuse of office which had allegedly occurred in the early 1990s when he was Prime
Minister of the NAR, an autonomous entity within the Republic of Azerbaijan. It was alleged that
State funds had been allocated for the purchase of several helicopters, which had never actually
been delivered.

Following an investigation, the Nakhchivan prosecuting authorities considered that Mr Farzaliyev
should be formally charged. However, they discontinued the criminal proceedings in January 2006
without formally charging anyone because the offence had become statute-barred.

The prosecuting authorities subsequently brought civil proceedings, asking the Nasimi District court
to order the applicant and two other suspects to compensate the State for the embezzlement they
had allegedly committed. The applicant discovered that there had been a brief criminal investigation
against him during these civil proceedings.

In May 2006, the district court allowed the claim, finding that 2,327,059 Azerbaijani manats (AZN –
approximately 2,025,000 euros at the relevant time) had been embezzled and that the applicant and
one other suspect should therefore pay, jointly, that sum in damages. The court ruled in particular
that, even though the defendants had been absolved of criminal liability because the criminal
proceedings had been discontinued, the damage caused “as a result of the criminal offence” had not
been compensated.

Mr Farzaliyev appealed to the higher courts, complaining that the civil court had accepted the
prosecution’s statement of facts as proven, found him liable for committing a criminal offence and
ordered him to pay compensation, when there had been no final judgment resulting in his
conviction. He also submitted that the claim against him had been brought under the procedure for
civil claims within the framework of criminal proceedings provided for by the Code of Criminal
Procedure, instead of the relevant provisions of the civil law, arguing that this was unlawful. In
particular, had the claim been examined under the civil law provisions, it would likely have been
dismissed because the statutes of limitations had long since expired.

In December 2006 the Supreme Court endorsed the district court’s judgment, without responding to
the applicant’s arguments in his appeals.

He subsequently unsuccessfully attempted to have the case reopened and reviewed by the Plenum
of the Supreme Court and the Constitutional Court.

THE DECISION OF THE COURT…

Article 6 § 1 (fairness of the proceedings)

The Court reiterated that courts and tribunals should adequately state the reasons on which their
rulings were based.

The Court noted that the applicant’s submissions concerning the lack of a lawful basis for the civil
court’s acceptance of the claim against him had been potentially decisive for the outcome of the case, as they could have led to its dismissal. In point of fact, the claim had been lodged with and
examined by the civil court, despite the fact that it was clear under the Code of Criminal Procedure
that a civil claim within the framework of criminal proceedings, to which civil statutes of limitations
did not apply, could only be lodged within the criminal procedure, before the court examining the
criminal charges.

However, the domestic courts had not provided any response to his submissions in their judgments.
It was thus impossible to ascertain whether the courts had not examined the applicant’s submissions
at all, or whether they had actually assessed them but dismissed them and, if so, what had been
their reasons for doing so.

The Court concluded that the applicant’s right to a reasoned judgment had therefore been
breached. There had accordingly been a violation of Article 6 § 1 of the Convention.

Article 6 § 2 (presumption of innocence)

The Court reiterated that there would be a breach of the presumption of innocence if, without the
accused’s having been convicted in earlier criminal proceedings, a judicial decision concerning him or
her reflected the view that he or she was guilty. For Article 6 § 2 to be applicable, an applicant would
need to have been charged with a criminal offence or to be “substantially affected”.

Although the applicant had never formally been charged with a criminal offence in the discontinued
criminal proceedings and had only become aware of the allegations against him during the civil
proceedings, the authorities’ actions taken as a result of the suspicion against him had “substantially
affected” his situation in the particular circumstances of his case. In particular, the authorities had,
among other things, opened criminal proceedings concerning him as a primary suspect and had
subsequently lodged a civil claim “in the framework of the criminal proceedings”.

Having regard to those actions and the case-specific sequence of closely inter-connected events, the
applicant had therefore to be considered as a person “charged with a criminal offence” within the
meaning of Article 6 § 2.

Moreover, under the relevant legislation and practice as applied by the domestic authorities and
courts in the case, the civil proceedings had been linked to and had been the “direct consequence”
of the criminal investigation. Furthermore, the statements made during the civil proceedings,
imputing criminal liability on the applicant, had also created a link with the criminal proceedings. For
these reasons, the Court found that Article 6 § 2 was applicable in the present case.

As to the merits of the applicant’s complaint, the Court went on to note that the Nasimi District
Court’s judgment of May 2006 ruling on the civil claim had stated that AZN 2,327,059 had been
“embezzled” and that, even though the defendants had been absolved of criminal liability, “the
damage caused as a result of the criminal offence” had not been compensated. The Court
considered that that wording had reflected an unequivocal opinion that a criminal offence had been
committed and that the applicant had been guilty of that offence, even though he had never had the
opportunity to exercise his rights of defence in a criminal trial and had never actually been
convicted.

The Court concluded that the applicant’s right to the presumption of innocence had thus been
breached, in violation of Article 6 § 2 of the Convention.

Article 1 of Protocol No. 1 (protection of property)

Given the above findings, the Court considered that there was no need to give a separate ruling on
the admissibility and merits of the applicant’s complaint under Article 1 of Protocol No. 1.

Article 41 (just satisfaction)

The Court held that Azerbaijan was to pay the applicant 4,700 euros (EUR) in respect of nonpecuniary damage and EUR 1,500 in respect of costs and expenses.

 


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