FIRST SECTION
 
 
 
 
CASE OF INSANOV v. AZERBAIJAN
 
(Application no. 16133/08)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
14 March 2013
 
 
FINAL
 
14/06/2013
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Insanov v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Isabelle Berro-Lefèvre, President,
 Elisabeth Steiner,
 Khanlar Hajiyev,
 Mirjana Lazarova Trajkovska,
 Julia Laffranque,
 Linos-Alexandre Sicilianos,
 Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 12 February 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 16133/08) 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 Ali Binnat oglu Insanov (Əli Binnət oğlu İnsanov – “the applicant”), on 31 March 2008. 2. The applicant was represented by Mr A. Shahverdi and Mr T. Babayev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. The applicant complained, in particular, about the conditions of detention, and also alleged unfairness of the civil proceedings concerning his conditions of detention, lack of adequate medical treatment in detention, unfairness of the criminal proceedings against him, and other violations of the Convention. 4. On 19 November 2009 the application was declared partly inadmissible and the complaints under Article 3 concerning lack of adequate medical treatment and conditions of detention, the complaint under Article 6 concerning the fairness of the civil proceedings, the complaints under Article 6 concerning the fairness of the criminal proceedings, and the complaint under Article 1 of Protocol No. 1 to the Convention were communicated to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1946. He was the Minister of Health Care from 1993 to 2005. A. Criminal proceedings against the applicant
1. Pre-trial stage
6. On 20 October 2005 the applicant was summoned to the Ministry of National Security (“the MNS”). He arrived at the MNS at around 3 p.m. and was questioned until 7 p.m. 7. After being questioned he was detained on suspicion of abuse of official authority, embezzlement of public funds and complicity in an attempted coup d’état, allegedly planned to take place after the parliamentary elections of 6 November 2005 and masterminded by former Parliament Speaker R. Guliyev (who was living abroad at that time) and several other high-ranking government officials. He was held in the detention facility of the MNS. 8. It appears that he was dismissed from his ministerial office on the same day. 9. On 22 October 2005 the Prosecutor General’s Office formally charged the applicant with criminal offences under Articles 28/220.1 (preparation to organise public disorder), 278 (actions aimed at usurping State power), 179.3.2 (high-level embezzlement), 308.2 (abuse of official authority entailing grave consequences), 311.3.2 (repeated bribe-taking) and 311.3.3 (high-level bribe-taking) of the Criminal Code. The applicant was formally charged in criminal case no. 76586. 10. On 22 October 2005 the Nasimi District Court remanded the applicant in custody for a period of three months (until 20 January 2006). On 13 January 2006 the same court extended this period by another four months (until 20 May 2006). On 19 May 2006 this period was extended again, by another five months (until 20 October 2006). Lastly, on 16 October 2006 the period was extended again, by another six months (until 20 April 2007). The applicant lodged appeals against each of these decisions. All his appeals were dismissed by the Court of Appeal. An appeal by the applicant against the extension decision of 16 October 2006 was dismissed by a decision of the Court of Appeal on 2 November 2006. 11. In the course of the pre-trial investigation, the investigating authorities carried out a search of the applicant’s home and found, inter alia, large amounts of cash in various currencies, large quantities of gold items and jewellery, and deeds of a number of residential properties. 12. On 19 January 2007 the Prosecutor General’s Office issued a new indictment charging the applicant with criminal offences under Articles 28/220.1, 278, 179.3.2, 306.2 (failure by a public official to execute a final court judgment), 308.1 (abuse of official authority), 308.2, 311.3.1 (bribe‑taking), 311.3.2 and 311.3.3 of the Criminal Code. 13. On 24 January 2007 a new criminal case (no. 76932) was severed from criminal case no. 76586. Under criminal case no. 76932 the applicant was formally charged with the offences under Articles 179.3.2, 306.2, 308.1, 308.2, 311.3.1, 311.3.2, 311.3.3 and 313 (forgery in public office) of the Criminal Code. 14. Specifically, the applicant was accused of having committed the following criminal acts, inter alia:
(i)  Between 1997 and 2004 he had created conditions for unlawful disposal (by way of privatisation) of numerous State-owned real-property assets (land and non-residential premises) which were on the books of the Ministry of Health Care and had a total estimated value of 27,221,574 New Azerbaijani manats (AZN) (approximately 23,500,000 euros (EUR) at that time). Among other things, the applicant was accused of falsifying, with the assistance of accomplices, certain documents related to the above-mentioned assets, in order for that property to be designated suitable for privatisation under the State Privatisation Programme and privatisation laws, whereas in fact those assets did not qualify as such, and were necessary for the proper functioning of State health care institutions. Most of these assets were privatised by dummy companies affiliated to the applicant or his acquaintances and were subsequently resold to the applicant’s family members and acquaintances. In connection with the above transactions, the applicant also received bribes in the total amount of 200,000 United States dollars (USD) (equivalent to AZN 195,460);
(ii)  He had embezzled AZN 115,240 of public funds in order to pay for the publication of one of his books;
(iii)  He had taken a number of bribes in the total amount of USD 76,900 (equivalent to AZN 75,423) and another bribe in the amount of AZN 2,800 in exchange for issuing licences to private companies for operating pharmacies, and had kept 70% of the above amounts for himself while distributing the remainder among his accomplices;
(iv)  He had continually failed to comply with seven final domestic judgments (the earliest of which had been delivered in 1994), ordering the reinstatement of former Ministry of Health Care employees who had been unlawfully dismissed from their positions; and
(v)  He had committed a number of other acts of embezzlement and abuse of official authority. 15. On 24 January 2007 the investigating authorities informed the applicant that the pre-trial investigation in criminal case no. 76932 had been completed. Criminal case no. 76932 was sent for trial in the Assize Court. The original criminal case no. 76586, which still carried the charges under Articles 28/220.1 and 179.3.2 of the Criminal Code, was not sent for trial, but was not terminated either. 16. On 29 January 2007 the applicant’s lawyers lodged a complaint with the Prosecutor General, alleging that the defence had not been allowed to properly familiarise themselves with the case materials. In particular, they complained that not all the annexes to the case files had been presented to the defence and that the defence had not been allowed to take photocopies of case materials. By a letter of 2 February 2007 the Prosecutor General rejected this complaint, noting that during the period from 24 to 30 January 2007 the applicant and his lawyers had been allowed access to all forty‑three volumes of the case file, three video-tapes, photographs and other material evidence, and that on 30 January 2007 they had signed a record of familiarisation with the case file together with the annexed time sheets. Furthermore, he stated that, from the content of the other, unrelated complaints lodged with the prosecution authorities at around the same time, it was clear that the defence had sufficient knowledge of the entire investigation case file. Lastly, the Prosecutor General added that, if necessary, the defence would be given an opportunity to consult and take photocopies of the investigation materials again during the trial. 17. On 15 February 2007 the applicant lodged a complaint with the Assize Court, arguing that the defence had not been given an opportunity to adequately familiarise themselves with the case file and requesting the court to suspend the proceedings on this ground and to send the case back to the investigation stage. By an interim decision of 15 February 2007 the Assize Court refused this request, finding that the defence had been given adequate access to the case file. 2. Trial
18. The applicant was tried at the Assize Court with ten others, who were either former officials of the Ministry of Health Care or had been involved in commercial transactions with the Ministry. Each of the ten was charged with complicity in some of the criminal offences with which the applicant had been charged. In connection with the embezzlement charges, a civil claim was also advanced against the applicant and some of the other defendants in the criminal case. 19. In addition there were around twenty civil defendants in the case, against whom no criminal charges had been brought. The civil defendants were the current private owners of the formerly public property which had allegedly been unlawfully embezzled or sold by the applicant. (a)  Hearings at the Assize Court
20. A preliminary hearing was held on 15 February 2007 and hearings on the merits were held from 22 February to 20 April 2007. The hearings were held on working days between around 9.30 a.m. and around 6 p.m., but sometimes lasted until after 7 p.m. 21. According to the Government, more than 120 witnesses were heard during the trial. The Assize Court’s judgment of 20 April 2007 summarised statements from a large number of witnesses, who testified in connection with all of the accusations against the applicant and the other accused persons. 22. In addition to hearing witnesses, the court also examined various documentary and other material evidence presented by the prosecution, including various expert reports on forensic handwriting analyses of a large number of documents, reports on valuation of unlawfully privatised properties, and so on. Among this documentary evidence, an important role in the prosecution’s submissions was given to three audit reports of 27 June, 11 August and 18 December 2006 concerning the “audit of the financial and economic activities of the Ministries of Health Care and Economic Development”, prepared by a number of employees (sometimes referred to as “experts” in the relevant court documents) of the Ministry of Finance, the Chamber of Auditors and other State agencies, pursuant to a decision of the Nasimi District Court of 29 November 2005. In sum, these reports concluded that, despite the fact that the State privatisation programme allowed privatisation of State health care facilities only by a decision of the President of the Republic, the applicant had exceeded and abused his official powers and, together with “other persons”, had unlawfully issued instructions and otherwise created conditions for unlawful privatisation of a large number of State-owned health care facilities, plots of land, and other assets. Furthermore, the reports also found that there had been a number of breaches of accounting requirements, instances of mismanagement of State budgetary resources allocated to the Ministry of Health Care, undocumented or improperly documented use of large amounts of money, and so on. It appears that these three reports were among the most decisive pieces of evidence on which the applicant’s eventual conviction was based. In particular, the Assize Court stated in its judgment that these reports confirmed that the applicant had committed acts of abuse of official powers and embezzlement of public funds. 23. During the hearings, the applicant complained that he was not allowed time to confer with his lawyers in a confidential setting in the course of the hearings, and that whereas the hearings lasted a full day each time, he was not allowed to meet his lawyers at the detention facility at weekends and on other non-working days. In particular, by a letter of 17 March 2007, he complained to the MNS about the MNS Detention Facility’s refusal to allow his lawyers to enter the facility for meetings with the applicant at weekends. Furthermore, in his complaints about the Assize Court judges made in late March and early April 2007, the applicant complained, among other things, that the judges had ignored his complaints concerning inadequate time and facilities for meetings with his lawyers and that the court had repeatedly refused the defence’s requests for short adjournments to the hearings in order to allow the applicant and his lawyers to hold confidential discussions concerning their defence strategy. Instead, they had been forced to confer with each other in the presence of prosecutors and judges. 24. According to the applicant, the Assize Court essentially ignored the above complaints. According to the Government, the Assize Court examined the applicant’s complaints about meetings with his lawyers and, in particular, on 30 March 2007 adjourned the hearing for the defence to confer and prepare a representation. Also, the Assize Court sent a letter to the acting head of the MNS Detention Facility, reminding the latter of the applicant’s right to meet with his lawyers and requesting him to allow such meetings on days when no hearings were scheduled. (b)  Various requests by the applicant concerning examination of additional witnesses
25. During both the preliminary and the trial hearings, the applicant made a number of requests to the Assize Court concerning various substantive and procedural matters, including examination of additional witnesses, as summarised below. (i)  In respect of charges relating to privatisation fraud and abuse of official power
26. On 15, 22 and 28 February and 6, 7, 12 and 30 March 2007, the applicant requested the court to summon and hear a number of witnesses in connection with the accusations against him of creating conditions for unlawful privatisation and sale of State property and other abuses of official powers. 27. In these submissions the applicant contested the findings contained in the three audit reports of 27 June, 11 August and 18 December 2006 (see paragraph 22 above). He argued that those findings were wrong and mutually contradictory, and claimed that some of the “experts” who had worked on the relevant audits had either refused to sign those reports or had signed them with reservations. In his submissions the applicant repeatedly insisted that the court summon and hear as witnesses a number of those experts who had worked on the audits and authored the reports, including the head of the State Financial Control Department of the Ministry of Finance and three other experts from that ministry, an auditor of the Chamber of Auditors, a section head of the State Committee for Management of State Property, the Deputy Minister and two other high‑ranking officials of the Ministry of Economic Development, and so on. 28. Furthermore, the applicant noted that, whereas he was accused of having created conditions for unlawful privatisation and sale of State property which belonged to the Ministry of Health Care, under domestic law the agencies responsible for privatisation of State property were the State Committee for Management of State Property (formerly the Department of Management and Privatisation of State Property) and the Ministry of Economic Development. Only these agencies had the authority to dispose of State property. As such, these State agencies had ultimately carried out and approved the sale and privatisation of the assets in question, and officials of these agencies had signed the relevant final acts. The applicant further argued that his role (as Minister of Health Care and Chairman of the State Commission on Reforms in the Health Care System) in the privatisation procedure was limited to merely submitting proposals to the President and the Cabinet of Ministers for items to be included in lists of various assets suggested for privatisation, as well as giving his confirmation to the Ministry of Economic Development on a case-by-case basis that he did not object to the privatisation of specific State-owned facilities which were on the books of the Ministry of Health Care. Therefore, even if the relevant assets had been privatised unlawfully, he could not be held responsible for it, and the officials of the State Committee for Management of State Property and the Ministry of Economic Development were responsible for the entire privatisation process and for any failure to detect abuse or unlawfulness.

Article of the Convention at issue: Article 3
Outcome: violation