Communicated on 23 June 2016
FIFTH SECTION
Application no. 20216/14
Dursun ALIYEV
against Azerbaijan
lodged on 21 February 2014
STATEMENT OF FACTS
The applicant, Mr Dursun Aliyev, is an Azerbaijani national who was born in 1961 and lives in Baku. He is represented before the Court by Mr J. Süleymanov, a lawyer practising in Baku.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was an operative police officer working in the criminal investigation department of the sixth division of the Binagadi District Police Office (“the BDPO”).
On 5 July 2011 at about 2 p.m. a certain F.G., a person known to the applicant as a police informer used in drugs cases, came to the applicant’s office and entered his room. One of the applicant’s colleagues, B.B., was also working in the room. According to the applicant, F.G. asked for some drugs and the applicant told him to go away. F.G. then took out some marijuana from his pocket and asked for permission to smoke it inside the room. The applicant again asked him to leave and went towards the door to open it. At that moment three officers of the General Directorate for Combating Organised Crime under the Ministry of Internal Affairs (“the GDCOC”) together with the deputy chief and a police officer of the sixth division of the BDPO opened the door and entered the room. Two witnesses, M.A. and D.G, accompanied the police officers. According to the applicant, M.A. and D.G. were also police informers. During the pre-trial investigation M.A. admitted that he was a paid informer of the police.
The officers searched the applicant’s room. A package containing 0.7 grams of marijuana was allegedly found in the applicant’s desk and seized. F.G. gave another package containing 1.3 grams of marijuana to the police stating that he had bought it from the applicant for 20 Azerbaijani manats (AZN, approximately 17 euros (EUR)). F.G. stated that when the police had entered the room, the applicant had thrown the money out of the window. The money was allegedly found later in the yard behind the office, but originals of those banknotes were never produced before the courts.
The applicant was arrested and taken to the GDCOC, where he was allegedly ill-treated and he had to make partly self-incriminating statements indicating that he had not sold the drugs to F.G. but had given them to him free of charge. The applicant was not allowed to retain the services of a lawyer of his own choosing at the first questioning by the police. He was provided with a state-appointed lawyer without his consent. According to the applicant, the state-appointed lawyer was not present during the questioning; he merely signed the interview record. Moreover, the state‑appointed lawyer was not present at any further stages of the proceedings for two months and for this reason was removed from the proceedings by the Prosecutor’s Office.
On 5 July 2011 criminal proceedings were instituted against the applicant and on 6 July 2011 the case was transferred to the Prosecutor’s Office for further investigation. On 7 July 2011 the applicant was charged with drug dealing under Article 234 of the Criminal Code. On the same day the Binagadi District Court ordered his detention pending trial.
On 7 July 2011 the applicant lodged an application for investigation of alleged ill-treatment by the police. The application was accepted by the court and sent to the Prosecutor’s Office.
On 9 July 2011 he was transferred from the GDCOC to a detention facility of the Ministry of Justice. On admission to the detention facility, he was checked by four staff members, including a doctor. During this examination, several bruises were found on his body.
On 20 October 2011 the Prosecutor’s Office refused to open a criminal case in respect of the alleged ill-treatment indicating that the severity of the bruises was not enough to confirm the complaints. The applicant did not challenge this decision before the courts.
On 13 October 2011 the applicant was charged with another criminal offence (abuse of official authority) under Article 309 of the Criminal Code.
On 5 June 2012 the Binagadi District Court found the applicant guilty under Article 234 and not guilty under Article 309. It sentenced him to two years and one month’s imprisonment, suspended for one year and six months.
The applicant’s conviction was mainly based on the evidence obtained as a result of the police operation, in particular the drugs allegedly sold by the applicant and handed over by F.G. to the police; the drugs found on the applicant’s desk during the search; the money (given to F.G. by the police prior to the operation) allegedly thrown out of the window by the applicant and found in the yard behind the office; the applicant’s partly incriminating statements at pre-trial investigation allegedly made under duress; the statements of F.G., M.A., D.G., the police informers carrying out the operation. At the hearing B.B. stated that he hadn’t seen any sale and purchase of drugs.
The applicant appealed against that judgment, mainly arguing that the charges against him had been fabricated and that he had been convicted on the basis of planted evidence.
The Baku Court of Appeal and the Supreme Court upheld the judgment on 11 February and 4 September 2013 respectively.
COMPLAINTS
Relying on Article 6 § 1 of the Convention, the applicant complains that the domestic criminal proceedings were not fair. In particular, he complains that the charges against him were fabricated and that he was convicted on the basis of planted evidence, which he did not have an effective opportunity to challenge.
The applicant complains, under Article 6 §§ 1 and 3 (c) of the Convention, that his right to legal assistance was breached.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, were the proceedings as a whole, including the way in which the evidence was taken and used in the proceedings, fair?
2. Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 §§ 1 and 3 (c) of the Convention? Did his legal representation by the State-appointed lawyer fall short of the requirements of effective legal representation, contrary to Article 6 §§ 1 and 3 (c) of the Convention?
3. The Government are requested to submit copies of all the relevant documents concerning the applicant’s case.
Full & Egal Universal Law Academy