К разделу "
Пополнения базы анонсируются в ветке Пополнение подборки полезных судебных решений, на обновления которой можно подписаться штатными инструментами форума
Наркотики изъяты через 20 минут после фактического задержания, задержанный утверждал, что их подбросили.Решением ЕСПЧ удовлетворена жалоба азербайджанца Сакита Захидова в части признания нарушенной статьи 6 Конвенции "Право на справедливое судебное разбирательство".
Нарушение выразилось в том, что национальные суды не рассмотрели надлежащим образом вопрос о допустимости вещественного доказательства - наркотиков, изъятых через 20 минут вне места задержания Захидова. Сам Захидов утверждал, что наркотики ему подбросили.
Трудно переоценить это решение, в РФ большинство изъятий происходит не на месте задержания.
Рекомендуется всем, кто подпадает под описанные в решении условия и у кого не истекли сроки, подать жалобу в ЕСПЧ.
Обсуждение на форуме.
по делу «Сакит Захидов против Азербайджана»
51. <…> По мнению Суда, вывод о виновности заявителя был основан исключительно на вещественном доказательстве [т.е. наркотическом средстве], обнаруженном при нем 23 июня 2006 года [во время личного обыска], без которого прийти к такому выводу было бы невозможно.
52. При таких обстоятельствах Суд рассмотрит сначала вопрос о качестве вещественного доказательства, в т.ч. о том, вызывают ли сомнения в его достоверности обстоятельства его получения, а затем — вопрос о том, была ли заявителю предоставлена возможность оспаривания его достоверности и возражения против его использования в рамках производства по уголовному делу <…>.
53. Что касается первого вопроса, то Суд в первую очередь отмечает, что сторонами не оспаривается, что личный обыск заявителя не был проведен сразу же после его задержания в 19 часов 23 июня 2006 года. Он был проведен 23 июня 2006 года в 19:20 в [помещении] ГУБНМВД [Главного управления по борьбе с наркотиками Министерства внутренних дел], находившемся совсем не рядом с местом его задержания. <…> Промежуток времени около 20 минут, прошедших с момента задержания до обыска, вызывает обоснованное опасение, что доказательство было подброшено, поскольку в течение этого времени заявитель находился под полным контролем сотрудников полиции. Более того, нет никаких оснований полагать, что какие-либо особые обстоятельства делали невозможным проведение обыска немедленно после задержания заявителя. Далее Суд отмечает, что национальные суды отказались исследовать видеозапись обыска, несмотря на то, что заявителем было прямо заявлено ходатайство об этом <…>. Кроме того, власти [государства-ответчика] также не предоставили Суду копию [этой видеозаписи] в ответ на конкретный запрос сделать это.
54. Суд также не может упустить из виду то обстоятельство, что сотрудники полиции не оформили задержание заявителя сразу же. В частности, хотя стороны не оспаривают тот факт, что заявитель был задержан сотрудниками полиции в 19 часов 23 июня 2006 года, протокол задержания не был составлен до 22:50 23 июня 2006 года <…>. Более того, кажется, интересы заявителя не были представлены защитником во время задержания и обыска в ГУБНМВД.
55. Принимая во внимание все вышеизложенное, Суд приходит к выводу, что качество вещественного доказательства, которое было положено в основу вывода национальных судов о виновности заявителя, сомнительно, поскольку порядок его получения вызывает сомнения в его достоверности.
56. Что касается второго вопроса, то Суд отмечает, что заявитель поднял вопрос о достоверности вещественного доказательства и его использовании во всех национальных судах. Однако он не был надлежащим образом рассмотрен ими, поскольку в судебных актах об этом ничего не говорится.
57. В связи с этим Суд отмечает, что, несмотря на конкретные жалобы заявителя, национальные суды обошли молчанием использование доказательств, полученных в ходе обыска 23 июня 2006 года. В частности, они не рассмотрели вопросы о том, почему обыск заявителя не был проведен незамедлительно в месте его задержания и был ли обыск проведен в соответствии процессуальными нормами <…>. Национальные суды ограничились указанием на то, что утверждение заявителя о подбрасывании [ему наркотического средства] представляло собой способ защиты и не нашло подтверждения в ходе судебного разбирательства, не рассматривая названные выше конкретные претензии заявителя. Поэтому Суд не может не прийти к выводу, что заявителю не была предоставлена возможность поднять данный вопрос, так как его претензии на этот счет не были рассмотрены национальными судами без приведения соответствующего обоснования.
58. В свете того факта, что вещественное доказательство, обнаруженное при заявителе, являлось основным доказательством, положенным в основу вывода о его виновности, Суд считает, что приведенные выше соображения достаточны, чтобы позволить ему прийти к выводу, что способ получения вещественного доказательства, использованного в ходе судебного разбирательства в отношений заявителя, и отказ национальных судов рассмотреть его возражения и обоснованные аргументы относительно достоверности этого доказательства и его использования против него сделали все производство по делу в целом несправедливым <…>.
59. Таким образом, имело место нарушение
CASE OF SAKIT ZAHIDOV v. AZERBAIJAN
(Application no. 51164/07)
12 November 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Sakit Zahidov v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
András Sajó, President,
Mirjana Lazarova Trajkovska,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 20 October 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 51164/07) 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 Sakit Salim oglu Zahidov (Sakit Səlim oğlu Zahidov - “the applicant”), on 24 October 2007.
2. The applicant was represented by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. He alleged, in particular, that the criminal proceedings against him had been unfair because his conviction had been based on planted evidence.
4. On 11 March 2011 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1959 and lives in Belgium.
6. He was an independent journalist, satirist and poet who at the relevant time was working for the Azadliq newspaper.
A. Arrest and search at the Narcotics Department of the Ministry of Internal Affairs (“the NDMIA”)
1. The applicant’s version of events
7. At around 5 p.m. on 23 June 2006 the applicant met a friend at the Gozel Mekan café in Baku where they had a meal. At 7 p.m. they left and the applicant took a taxi home.
8. Shortly after the taxi moved off, it was stopped by four plain-clothes agents of the NDMIA. Without showing themselves, they dragged the applicant into a Jeep. He was not informed of the reasons for his arrest. After his arrest they restrained his hands and only after some time, when the vehicle was moving, did they inform him that they were police officers.
9. According to the applicant, as he was in shock during his arrest, he did not immediately notice that the officers had planted some drugs on him. However, he later realised that one of the officers, A.A., had slipped narcotic substances into his pocket, taking advantage of the fact that the other officers had restrained his hands.
10. The applicant was taken to the NDMIA, where a search was conducted. According to record no. 94 on carrying out operational measures and the seizure of physical evidence (əməliyyat tədbirinin keçirilməsi və maddi sübutun götürülməsi barədə protokol), it was carried out at 7.20 p.m. on 23 June 2006 in the presence of the applicant, some police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, 9.264 grams of a substance similar to heroin was found in his left trouser pocket. He signed the record to say that he drank alcohol, but did not use or sell drugs. He further indicated that the drugs found did not belong to him, but that he could not explain where they had come from. Moreover, it appears from record no. 95 in the case file that the search was filmed. Despite the Court’s explicit request to the Government to submit a copy of the video-recording, they did not do so.
11. Following the search, at around 7.45 p.m., the applicant was taken to the Republic Narcotics Clinic, where he underwent a urine test to determine his state of intoxication. According to him, the urine test was also a drugs test and after examination the doctor, R.M., stated that he was in a state of intoxication but was not a drug user. Record no. 1/4104 was compiled the same day containing details of the urine test. Despite the Court’s explicit request to the Government to submit copies of all documents relating to the proceedings in question, the Government failed to provide the Court with a copy of the record in question.
2. The Government’s version of events
12. The Government did not submit any comments in respect of the applicant’s version of events.
13. It appears, however, from police report no. 922 dated 23 June 2006 submitted by the Government that on that date an operation was planned for the applicant’s arrest on the basis of operational information (əməliyyat məlumatları) suggesting that an individual named Sakit was a drug dealer and had been involved in drug dealing near the Gozel Mekan café. It was also noted in the report that he had obtained drugs from A., who lived in Veravul, a village in the Lankaran region.
14. It further transpires from the documents submitted by the Government that at 10.55 p.m. on 23 June 2006 a police investigator drew up an official record of the applicant’s arrest (cinayət törətməkdə şübhəli şəxsin tutulması haqqında protokol). The relevant part of the record reads as follows:
“Reason for arrest: In accordance with Article 148 of the Code of Criminal Procedure of the Republic of Azerbaijan. 9.264 grams of heroin, which constitutes a large quantity of narcotic substances and shows the commission of the criminal offence provided for by law, were found on Zahidov Sakit Salim oglu’s person and clothes.”
The record was drawn up without a lawyer present and was signed by the applicant and the investigator.
B. Institution of criminal proceedings against the applicant and criminal investigation
15. On 23 June 2006 a police investigator instituted criminal proceedings against the applicant under Article 234.4.3 (illegal preparation, production, possession, storage, transportation and sale of a large quantity of narcotic substances) of the Criminal Code. The decision relied on the fact that following a search that day 9.264 grams of heroin had been found on him.
16. At 11 p.m. on 23 June 2006 the investigator questioned the applicant as a suspect in the presence of his lawyer. It appears from the record of the questioning that in reply to the question regarding where, when and why he had obtained the heroin found on him, the applicant answered that he did not know when or where the drugs in question had been planted in his pocket. In reply to another question regarding whether he sold drugs, the applicant stated that it could be seen from his examination by the doctor that he did not use or sell drugs.
17. On 23 June 2006 the investigator separately questioned two attesting witnesses who had participated in the search. Their statements were identical in their wording. They stated that they had seen the drugs found in the left trouser pocket of the applicant, who had stated after the search that the drugs did not belong to him.
18. On the same day the investigator separately questioned four police officers who had participated in the arrest and search. Their statements were identical in their wording. They stated that they had received operational information that some drug dealers had been operating near the Gozel Mekan café, so they had gone to the area to determine who they were. Once they arrived, they stopped a taxi because an individual, who appeared to be in a state of intoxication and had caught their attention by his suspicious behaviour, had just taken the taxi in question. This individual, whose identity was later established, was then taken to the NDMIA where the drugs were found on him.
19. On 24 June 2006 the applicant was charged with illegal possession of a large quantity of narcotic substances with intent to sell under Article 234.4.3 of the Criminal Code. On the same day a judge of the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody, ordered his detention for a period of three months.
20. On 30 June 2006 the Court of Appeal upheld the detention order of 24 June 2006.
21. On an unspecified date in June 2006 (the date of the record of the questioning is illegible) the applicant was questioned by the investigator as an accused in the presence of his lawyer. He maintained his initial statement, pointing out that the drugs did not belong to him and had been planted.
22. On 1 July 2006 the investigator ordered a forensic medical examination to establish whether the applicant was a drug addict. On the same day the investigator also ordered a forensic chemical examination of the drugs found on him.
23. On 5 July 2006 experts issued an opinion (no. 1026) concerning the forensic medical examination. The part concerning drug use by the applicant reads as follows:
“[The applicant] denies that he uses narcotic substances. He denies that the...heroin found in his trouser pocket and seized belongs to him. He does not give complete information about his history of drug use. He tries to hide his abuse of narcotic substances. During the examination no signs of obvious abstinence were revealed. He has developed an initial pathological tendency (ilkin patoloji meyl) towards narcotic substances. A psychological dependence on the use of narcotic substances is observed. A physical dependence on the use of narcotic substances is not currently observed. He denies taking narcotic substances by injection.”
The conclusion of the opinion reads as follows:
“During the examination it was established that Zahidov Sakit Salim oglu suffers from drug addiction at the initial stage (başlanğıc mərhələli narkomaniya xəstəliyi). This is confirmed by there being an initial pathological tendency towards narcotic substances, the results of the objective examination and the material of the criminal case. Taking into consideration that there are currently no signs of abstinence or drug intoxication and the fact that he has criticised himself for his situation, there is no need for his compulsory drug intoxication. It is advisable to register him at the local narcotics clinic.”
The opinion was established on the basis of the applicant’s “general features”, without a blood or urine sample being taken.
24. On 5 July 2006 the chemical expert issued opinion no. 6930 finding that 9.228 grams of yellow sandy matter submitted for examination was home-made heroin.
25. On 22 July 2006 the applicant and his lawyer were provided with a copy of the forensic medical opinion of 5 July 2006. The applicant immediately complained to the investigator in charge of the case, contesting its conclusions. He asked the investigator to order a “commission forensic examination”, indicating that he was not suffering from drug addiction. He further complained that the drugs found on him had been planted during his arrest by officer A.A., who had taken advantage of the fact that the other police officers had restrained his hands.
26. On 24 July 2006 the investigator dismissed his complaint, indicating that there were no grounds to doubt the conclusions of the forensic medical opinion. As to the allegation that the drugs had been planted by the police, the investigator found it unsubstantiated, indicating that the applicant had not made any such statement when questioned after his arrest.
27. On 29 July 2006 the investigator issued a bill of indictment under Article 234.4.3 of the Criminal Code and filed it with the Assize Court.
C. The applicant’s trial
28. In the course of the proceedings before the Assize Court the applicant claimed that he was innocent, insisting that the criminal case against him had been fabricated because of his journalistic and political activity, and that the drugs had been planted on him by the police officers. In this connection, he firstly submitted that the search of his person had not been carried out immediately after his arrest in the presence of the taxi driver or other individuals present at the place of his arrest, but at the NDMIA. He further submitted that the police had failed to search the taxi in which he had been arrested. However, if he had really had the drugs in his pocket, he would have thrown them into the taxi before his arrest. The police had not carried out a “real” search and had only found the drugs they had planted on him, otherwise they would have also searched the taxi. Moreover, they had failed to take its number plate and identify the driver. The applicant also pointed out that the identity of A., from whom he had allegedly obtained the drugs, had never been established by the investigation. Lastly, he submitted that in any event the drugs found on him could not be used in the proceedings because they had been obtained in breach of the relevant procedural requirements. In particular, he pointed out that Articles 207.4 and 217.1 of the Code of Criminal Procedure did not allow investigating authorities to carry out any investigative measures except an examination of the scene of the incident before the institution of criminal proceedings. However, in the present case a search of the applicant was carried out before the adoption of the investigator’s decision in that regard.
29. At the hearing, the Assize Court heard the police officers who had carried out the arrest and search of the applicant. They confirmed their statements made during the investigation. Moreover, officer A.A. stated that he had not planted anything on the applicant, and that the applicant had lied about this.
30. On 4 October 2006 the Assize Court, having reclassified the criminal charges, found the applicant guilty under Article 234.1 of the Criminal Code (illegal possession of a quantity of narcotic substances exceeding that necessary for personal use without intent to sell), and sentenced him to three years’ imprisonment. The part of the judgment concerning his conviction reads as follows:
“It appears from opinion no. 1026 dated 05.07.2006 of the forensic narcotics examination that it was established during the examination that Zahidov Sakit Salim oglu suffers from drug addiction at the initial stage. This is confirmed by there being an initial pathological tendency towards narcotic substances, the results of the objective examination and the material of the criminal case. Taking into consideration that there are currently no signs of abstinence or drug intoxication and the fact that he has criticised himself for his situation, there is no need for his compulsory drug intoxication. It is advisable to register him at the local narcotics clinic.
The above-mentioned opinion was confirmed at the court hearing by addiction specialist I.F. from the Republic Narcotics Clinic, who was heard as an additional witness.
It appears from forensic opinion no. 6930 dated 05.07.2006 ... that 9.228 grams of yellow sandy matter rolled in cigarette paper submitted for examination in an envelope was home-made...heroin.
The accused S. Zahidov’s commission of the above-mentioned criminal offence was therefore fully proved in court. [His] statement that the narcotic substances found on him had been planted in his pocket by the police is defensive in nature and was not confirmed during the court examination.
The court notes that the investigating authority accused S. Zahidov under Article 234.4.3 of the Criminal Code, indicating in the bill of indictment that [he had] obtained the 9.264 grams of heroin found on him, which constituted a large quantity of narcotic substances with intent to sell.
The investigating authority’s conclusion was not proved at the court hearing. In fact, when charging S. Zahidov with this criminal offence, [it] relied on the fact that the 9.264 grams of heroin found on him constituted a large quantity of narcotic substances and considered this as illegal possession with intent to sell, but failed to collect any evidence proving the intent to sell or to refer to such evidence in the bill of indictment. However, it does not transpire from the material of the case file or the statements of the persons heard in court that S. Zahidov obtained these narcotic substances with intent to sell. The individual to whom S. Zahidov would sell the narcotic substances was not identified during the investigation or court examination. The statements of the police officers involved in the operation made during the investigation and before the court – that they had information that S. Zahidov had obtained the narcotic substances with intent to sell – are not supported by any plausible evidence. Moreover, the fact that the narcotic substance was in the same fold and undivided also confirms that it had not been prepared for sale. The accusation that S. Zahidov had been in possession of the drug with intent to sell was formed by the investigating authority on the basis of speculation and could not constitute the basis of the judgment.”
The judgment made no mention of the applicant’s specific complaints concerning the conditions in which the search had been carried out or the lawfulness of the use of evidence obtained in those circumstances against him.
31. On an unspecified date the applicant appealed, claiming that he was innocent. He alleged, in particular, that the criminal case against him had been fabricated, and that the drugs had been planted on him by the police. In this connection, he reiterated that the agents of the NDMIA had failed to conduct a body search immediately after his arrest, and that the search had been carried out in breach of the relevant procedural requirements. Moreover, they had failed to search the taxi in which he had been arrested. He further complained that the forensic medical examination of 5 July 2006, which had been based on his “general features” and carried out without taking a blood sample from him, could not be considered an expert opinion. In this connection, he also submitted that it had been established in the urine test carried out immediately after his arrest that he was not a drug user. He further asked the court to examine the video-recording of his body search.
32. On 15 December 2006 the Court of Appeal upheld the first-instance court’s judgment. The relevant part of the appellate court’s judgment reads as follows:
“The panel of the court considers that the actions of Zahidov Sakit Salim were correctly classified by the court under Article 234.1 of the Criminal Code of the Republic of Azerbaijan, and that he was sentenced to a punishment within the authorised limits of the Article [of the Criminal Code]of which he was accused.
As the arguments raised in the appeal were examined in the descriptive part of the judgment and were not confirmed, the panel of the court does not see any reason to grant the appeal.”
The Court of Appeal was silent as to the applicant’s specific complaints concerning the narcotic substances being planted on him by the police, the conditions in which the search had been carried out, the lawfulness of the use of evidence obtained in those circumstances against him, the examination of the video-recording of the search, and the reliability of the forensic medical opinion of 5 July 2006.
33. On 24 April 2007 the Supreme Court upheld the Court of Appeal’s judgment of 15 December 2006.
34. On 9 April 2009 the applicant was released from prison under an amnesty law adopted by the Milli Mejlis (Parliament) on 17 March 2009.
D. Public reaction to the applicant’s arrest and criminal proceedings against him
35. The applicant’s arrest and the institution of criminal proceedings against him attracted significant public and media interest both nationally and internationally.
36. The relevant part of Resolution 1614 (2008) “The Functioning of Democratic Institutions in Azerbaijan”, adopted on 24 June 2008 by the Parliamentary Assembly of the Council of Europe, reads:
“16. In view of the above, the Assembly recalls its Resolution 1545 (2007) and urges the Azerbaijani authorities to implement a number of measures without further delay...
22. As regards the follow-up to the issue of alleged political prisoners, the Assembly:
22.3 condemns the lack of transparency and fairness in the relevant investigations and court proceedings and demands the immediate release of imprisoned opposition journalists ... Sakit Zahidov ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution of the Republic of Azerbaijan
37. Article 63 (IV) of the Constitution provides:
“Unlawfully obtained evidence shall not be used in the administration of justice.”
B. The Code of Criminal Procedure (“the CCrP”), as in force at the material time
38. Information, documents and other items, if there is no doubt as to their accuracy, their source and the circumstances in which they were obtained, may be accepted as evidence (Article 125.1). Article 125.2 of the CCrP provides that information, documents and other items cannot be accepted as evidence in a criminal case if they have been obtained in the following circumstances: if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings have been deprived of their rights protected by law, or those rights have been restricted through a violation of their constitutional human and civil rights and liberties or of other requirements of the Code (Article 125.2.1); through the use of violence, threats of violence, deceit, torture or other cruel, inhuman or degrading acts (Article 125.2.2); or where the rules governing investigation or other procedures have been seriously violated (Article 125.2.7). Article 125.3 of the CCrP provides that information, documents and other items obtained in the circumstances described in Article 125.2 of the Code are to be regarded as invalid and may not be used to prove any circumstance with a view to determining a charge correctly.
39. Article 207.4 provides that during the examination of information about a committed or planned offence, the investigator or the prosecutor in charge of the case may request additional documents or an explanation from the complainants or other persons, and may examine the scene of the incident. It is forbidden to take any investigative measure or procedural compulsory measure except this before the institution of criminal proceedings. Article 217.1 provides that a preliminary investigation or a preliminary examination in the form of inquiry, including all the investigative measures except an examination of the scene of the incident, are not carried out until after the adoption of a decision instituting criminal proceedings.
40. The following are the relevant provisions of the CCrP concerning the review of domestic judicial decisions and the reopening of domestic proceedings following a finding by the Court of a violation of the Convention:
Article 455: Grounds for review of judicial decisions in connection with the violation of rights and freedoms
“455.0. The following are grounds for review of judicial decisions in connection with the violation of rights and freedoms:
455.0.2. a finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings, simplified pre-trial proceedings or proceedings involving a complaint under the private prosecution procedure, conducted by courts of the Republic of Azerbaijan; ...”
Article 456: Procedure for review of judicial decisions in connection with the violation of rights and freedoms
“456.1. The Plenum of the Supreme Court of the Republic of Azerbaijan is vested with the competence to review judicial decisions in connection with the violation of rights and freedoms.
456.2. Where grounds exist under Articles 455.0.1 and 455.0.2 of this Code, the Plenum of the Supreme Court examines the cases only on points of law, in connection with the execution of judgments of the Constitutional Court of the Republic of Azerbaijan and the European Court of Human Rights. After a judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court, the President of the Supreme Court assigns the case to one of the [Supreme Court] judges for preparation and presentation of the case at the Plenum [of the Supreme Court]. The case shall be reviewed at a hearing of the Plenum of the Supreme Court no later than three months after the judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court ...”
Article 459: Decision taken after review in connection with the finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings conducted by courts of the Republic of Azerbaijan
“459.0. Having conducted a review in cases stipulated by Article 455.0.2 of this Code, the Plenum of the Supreme Court has competence to deliver one of the following decisions:
459.0.1. to quash, fully or partially, judicial decisions of the first-instance, appellate and cassation courts, as well as judicial decisions delivered under the procedure of additional cassation ... and to remit the criminal case, the case material of simplified pre-trial proceedings, or the case material of proceedings involving a complaint under the private prosecution procedure, for re-examination by the relevant first‑instance or appellate court;
459.0.2. to amend a decision of the court of cassation and/or additional cassation in situations stipulated in Articles 421.1.2 and 421.1.3 of this Code;
459.0.3. to quash a decision of the court of cassation and/or additional cassation and to deliver a new decision.”
If the accused retracts his statements made during the investigation in court, the court must examine the reasons for [the retraction] ...”
C. The decision of the Plenum of the Supreme Court “on the Activities of Courts in the Field of the Protection of Human Rights and Liberties in the Administration of Justice” of 10 March 2000
41. The relevant part of the decision of the Plenum of the Supreme Court reads as follows:
“6. Unlawfully obtained evidence cannot be used in the administration of justice. For this reason, when examining cases, courts ... shall not under any circumstances use unlawfully obtained evidence. The court, if it considers that evidence submitted by the prosecution or the investigating authority has been unlawfully obtained, shall give an opinion on the actions of the person having violated the law and in all cases excludes [those items] from the body of evidence in the case...”
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
42. The applicant complained that his right to a fair trial had been violated, because his conviction had been based on planted evidence. The relevant part of Article 6 reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
43. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
44. The Government submitted that the applicant had been arrested on the basis of operational information. They further submitted that the question of no lawyer being present during the search and the domestic courts’ failure to examine the video-recording of the applicant’s body search could not be examined by the Court as the applicant had failed to raise these issues in his application.
45. The applicant maintained his complaint, arguing that the narcotic substances found on him had been planted by the police, and that the domestic courts had relied on evidence which had been unlawfully obtained. In this connection, he submitted that he had not been searched at the time of his arrest and had only been subjected to a search at the NDMIA. Moreover, the search had been conducted in breach of the relevant procedural requirements. He also argued that the expert opinion of 5 July 2006 concerning his drug dependence to which the domestic courts referred when convicting him could not be considered reliable evidence since it had been based on his “general features” and had not been conducted correctly. Lastly, the applicant complained about the domestic courts’ failure to examine the video-recording of the body search.
2. The Court’s assessment
46. The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting States in the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140).
47. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way the evidence was obtained, were fair (see, among other authorities, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000‑V, and Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002-IX).
48. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. In particular, it must be examined whether the applicant was given the opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Khan, §§ 35 and 37, and Allan, § 43, both cited above). Where the reliability of evidence is in dispute, the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Allan, cited above, § 47, and Bykov v. Russia [GC], no. 4378/02, § 95, ECHR 2009).
49. The Court reiterates that, even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Article 6 may therefore be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Salduz v. Turkey [GC], no. 36391/02, § 50, 27 November 2008).
50. Turning to the circumstances of the present case, the Court observes at the outset that the initial charges against the applicant, namely the illegal possession of a large quantity of narcotic substances with intent to sell, were subsequently dropped by the Assize Court at trial owing to lack of evidence. That court held that the indictment issued by the investigating authorities and the police officers’ statements in this regard were not supported by any plausible evidence (see paragraph 30 above). The applicant was ultimately convicted of illegal possession of a quantity of narcotic substances exceeding that necessary for personal use, without intent to sell. His final conviction was therefore based on physical evidence, namely narcotic substances found on his person during a search carried out at the NDMIA on 23 June 2006. In convicting the applicant, the Assize Court also referred to the medical forensic opinion of 5 July 2006 which said that he was at the initial stages of drug addiction.
51. In this connection, the Court observes that, although the domestic courts referred to the medical forensic opinion of 5 July 2006 when convicting the applicant, it was not carried out on the basis of any medical examination of the applicant, but on the basis of his “general features” and without taking a blood or urine sample. Regardless of this, the experts were nevertheless able to conclude that the applicant was suffering from drug addiction. The Court further notes that the applicant was not convicted of using drugs, but of illegal possession. In these circumstances, even assuming that the applicant was suffering from drug addiction as indicated in the opinion, the Court does not find it established this could constitute a basis for his conviction for illegal possession of a quantity of narcotic substances exceeding that necessary for personal use without intent to sell. The Court accordingly considers that the applicant’s conviction was based solely on the physical evidence found on him on 23 June 2006, without which his conviction could not have been secured.
52. In these circumstances, the Court will examine firstly the quality of the physical evidence, including whether the circumstances in which it was obtained casts doubt on its reliability or accuracy and secondly, whether the applicant was given the opportunity to challenge its authenticity and oppose its use in the domestic proceedings (see Bykov, cited above, § 90; Lisica v. Croatia, no. 20100/06, §§ 51-54, 25 February 2010; and Jannatov v. Azerbaijan, no. 32132/07, § 74, 31 July 2014).
53. As regards the first question, the Court observes at the outset that it is undisputed by the parties that the search of the applicant was not carried out immediately following his arrest at 7 p.m. on 23 June 2006. It took place at 7.20 p.m. on 23 June 2006 at the NDMIA, nowhere near his place of arrest. In this connection, the Court notes that it has already found in a case against Azerbaijan that the police’s failure to conduct a search immediately following an arrest without good reason raises legitimate concerns about the possible “planting” of evidence (see Layijov v. Azerbaijan, no. 22062/07, § 69, 10 April 2014). The Court considers that these findings are also relevant to the present case. In fact, the time lapse of around twenty minutes between the arrest and search raises legitimate concerns about the possible “planting” of the evidence, because the applicant was completely under the control of the police during that time. Moreover, there is nothing to suggest that there were any special circumstances rendering it impossible to carry out a search immediately after the applicant’s arrest. The Court further observes that the domestic courts failed to examine a copy of the video‑recording of the search despite the applicant’s explicit request in this regard (see paragraphs 31-32 above). Furthermore, the Government also failed to provide a copy to the Court when specifically requested to do so.
54. The Court also cannot overlook the fact that the applicant’s arrest was not immediately documented by the police. In particular, although it is undisputed by the parties that he was arrested by the police at 7 p.m. on 23 June 2006, an official record of the arrest was not drawn up until 10.55 p.m. on 23 June 2006 (see paragraph 14 above). Moreover, it appears that the applicant was not represented by a lawyer during his arrest and the search at the NDMIA.
55. Having regard to the above, the Court considers that the quality of the physical evidence on which the domestic courts’ guilty verdict was based is questionable because the manner in which it was obtained casts doubt on its reliability.
56. As to the second question, the Court observes that the applicant raised the matter of the authenticity of the physical evidence and its use against him before all the domestic courts. However, it was not properly considered by them as their judgments were silent on this point.
57. In this connection, the Court observes that, despite the applicant’s specific complaints, the domestic courts remained silent about the use of the evidence obtained from the search of 23 June 2006. In particular, they failed to examine why a search of the applicant had not been immediately conducted at the place of his arrest and whether the search had been conducted in compliance with the procedural requirements (see Layijov, cited above, § 74). The domestic courts contented themselves with noting that the applicant’s assertion that the evidence had been planted was defensive in nature and was not confirmed in the proceedings without examining the applicant’s above-mentioned specific complaints. The Court therefore cannot but conclude that the applicant was not given the opportunity to raise this issue as his complaints in this respect were not considered by the domestic courts without any reason being given.
58. In view of the fact that the physical evidence found on the applicant’s person was the main evidence on which his final criminal conviction was based, the Court considers that the foregoing considerations are sufficient to enable it to conclude that the manner in which the physical evidence used at trial against the applicant was obtained, and the domestic courts’ failure to address his objections and justified arguments regarding the authenticity of that evidence and its use against him, rendered the proceedings as a whole unfair (see Layijov, cited above, § 76).
59. Accordingly, there has been a violation of Article 6 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
60. The applicant complained that his pre-trial detention had been unlawful.
61. The Court points out that the date of the “final decision” for the purposes of Article 35 § 1 of the Convention in connection with a period of pre-trial detention is to be taken as the date on which the charge is determined by a court at first instance, not the date on which a conviction becomes effective (see, among many other authorities, Jannatov, cited above, § 86, and Efendiyev v. Azerbaijan, no. 27304/07, § 53, 18 December 2014). In the present case, the applicant was convicted on 4 October 2006, so the six-month time-limit concerning this complaint started running on that date. Given that the application was lodged with the Court on 24 October 2007, the Court notes that this complaint was lodged out of time and does not comply with the six-month rule.
62. Accordingly, it must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
63. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
64. The applicant claimed EUR 1,000,000 in respect of non‑pecuniary damage.
65. The Government contested the amount claimed as unsubstantiated and excessive.
66. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. However, the amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 9,000 under this head, plus any tax that may be chargeable.
67. The Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). As has been found above, the criminal proceedings in the present case did not comply with the requirements of fairness. In these circumstances, the most appropriate form of redress would, in principle, be a reopening of the proceedings to guarantee the conduct of the trial in accordance with the requirements of Article 6 of the Convention (see, mutatis mutandis, Abbasov v. Azerbaijan, no. 24271/05, §§ 41-42, 17 January 2008; Maksimov v. Azerbaijan, no. 38228/05, § 46, 8 October 2009;Jannatov, cited above, § 96; and Efendiyev, cited above, § 64). The Court notes in this connection that the Code of Criminal Procedure of the Republic of Azerbaijan provides for a review of domestic criminal proceedings by the Plenum of the Supreme Court and remittal of the case for re-examination if the Court finds a violation of the Convention (see paragraph 40 above).
B. Costs and expenses
68. The applicant claimed EUR 3,000 for costs and expenses incurred before the Court. He also claimed a further EUR 1,500 and EUR 100 for translation and postage costs. In support of his claim, he submitted a contract for legal services rendered in the proceedings before the Court, three contracts concluded with a translator and an invoice for postage costs.
69. The Government considered the claim unsubstantiated and excessive.
70. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Although the applicant submitted the relevant contracts in support of his claim, the Court observes that the translation contracts concern a translation of the original application and the decisions of the domestic courts. The Court does not however consider that the translation of these documents was necessary for the proceedings before it (see Allahverdiyev v. Azerbaijan, no. 49192/08, § 71, 6 March 2014). Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,048 covering costs under all heads.
C. Default interest
71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 6 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:
(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,048 (three thousand and forty-eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenAndrás Sajó