Case of European Court of Human Rights, October 31, 2019 (case MEHDIYEV v. AZERBAIJAN)

Defense:AZERBAIJAN
Resolution Date:October 31, 2019
SUMMARY

Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-d - Obtain attendance of witnesses) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing)

 
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FIFTH SECTION

CASE OF MEHDIYEV v. AZERBAIJAN

(Application no. 59090/12)

JUDGMENT

STRASBOURG

31 October 2019

This judgment is final but it may be subject to editorial revision.

In the case of Mehdiyev v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

André Potocki, President,Mārtiņš Mits,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 8 October 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 59090/12) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Hakimeldostu Bayram oqlu Mehdiyev (Hakimeldostu Bayram oğlu Mehdiyev – “the applicant”), on 26 July 2012.

  2. The applicant was represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers based in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.

  3. On 23 June 2016 notice of the complaint under Article 6 §§ 1 and 3 (d) of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  4. The applicant was born in 1961 and lives in Nakhchivan.

  5. On an unspecified date in January 2010 the applicant opened a carwash facility next to his house.

  6. On 13 July 2011 representatives of the Sharur District Electricity Network (“the electricity company”) inspected the electricity usage in the carwash facility (“the facility”) and found that the applicant had unlawfully connected his facility to the main (public) electricity supply line and had been using electricity without paying for it.

  7. On an unspecified date criminal proceedings were instituted against the applicant and he was charged under Article 189-1.1 (unlawful consumption of electricity causing serious damage) of the Criminal Code. The total amount of damage caused was determined by an expert at 1,050.18 Azerbaijani manats (AZN – approximately 977 euros (EUR) at the time). The calculation was based on the assumption that on average fifteen cars were washed at the facility per day and that the facility had been operational thirty days per month for fourteen months.

  8. In the course of the proceedings before the trial court, the applicant claimed his innocence. He stated that he had tried to obtain an electricity‑consumption meter for the facility from the electricity company, and that having failed to do so, he had decided to connect the facility to the electricity-consumption meter in his house. He also stated that he had been operating the facility for around one year and had serviced on average two or three cars per day. He further stated that he had paid around AZN 5 (approximately EUR 5) per month for the total amount of electricity consumed at the facility and at his house.

  9. The applicant further argued that if, owing to weather conditions, the facility had been operational not thirty days a month, as assumed in the expert’s opinion, but twenty-eight days, the total cost of the damage would be AZN 75 less, in which case the alleged offence could not be considered as a criminal offence.

  10. The applicant’s son testified that he was in charge of the facility and that on average he serviced two or three, and occasionally five or six, cars per day.

  11. During the trial nine witnesses called by the prosecution testified that whenever they passed by the facility or had their cars washed there, they saw three or four cars queuing to be washed. Some of them stated that they paid AZN 3 (approximately EUR 3) for their cars to be washed.

  12. Two more witnesses for the prosecution stated that they estimated the average number of cars washed at the facility at fifteen to twenty per day. Three witnesses, who were employees of the electricity company, gave evidence concerning the applicant’s unauthorised connection to the main electricity supply.

  13. The applicant applied to the court for the attendance of four witnesses on his behalf who would give statements as to the real number of cars actually washed in the facility per day. He stated that the prosecution witnesses had deliberately given statements exaggerating the number of cars serviced daily at the facility so that the quantity of electricity used would make him criminally liable for his acts.

  14. According to the transcript of the hearing, having heard the prosecutor, who stated that in total eighteen witnesses were scheduled to be heard during the proceedings and that there was no need for additional ones, the trial court dismissed the applicant’s request without providing any reasons.

  15. On 23 September 2011 the Sharur District Court found the applicant guilty as charged and sentenced him to a fine in the amount of AZN 1,000 (approximately EUR 930). The...

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