Communicated on 9 April 2018
FIFTH SECTION
Application no. 32734/11
Eynulla Emin Oglu FATULLAYEV
against Azerbaijan
lodged on 7 April 2011
STATEMENT OF FACTS
The applicant, Mr Eynulla Fatullayev, is an Azerbaijani national, who was born in 1976 and lives in Baku. He is represented before the Court by Mr Intigam Aliyev, a lawyer practising in Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was the founder and chief editor of the newspapers Gündəlik Azərbaycan and Realny Azerbaijan. The newspapers were widely known for often publishing articles harshly criticising the Government and various public officials. The applicant had been sued for defamation in a number of sets of civil and criminal proceedings instituted following complaints by various high-ranking government officials, including cabinet of ministers and members of parliament.
In 2007, prior to the events complained of in this application, the applicant was convicted within two sets of criminal proceedings for defamation, threat of terrorism, incitement to ethnic hostility and tax evasion, in particular, on account of his published articles called “The Karabakh Diary” and “The Aliyevs Go to War”. The applicant was sentenced to eight years and six months’ imprisonment (for detailed information concerning these proceedings see Fatullayev v. Azerbaijan, no. 40984/07, 22 April 2010).
On 29 December 2009, while serving his prison sentence in Penal Facility no. 12, the applicant was brought to the office of the head of the prison operative division where he was, together with other four inmates, searched by prison officers. During the applicant’s search the officers found and seized two wrapped plastic baggies, one being hidden in the sleeve of his T-shirt and another one in his shoe. Later on, the applicant learnt that the baggies found on him allegedly contained heroin.
On 31 December 2009 the applicant was charged under Article 234.1 (illegal possession of narcotic substances in an amount exceeding that necessary for personal use without intent to sell) of the Criminal Code. On the same date the applicant was transferred to Baku Pre-trial Detention Facility.
During the investigation of the case, the investigator in charge interrogated a number of witnesses and carried out confrontation interviews between the applicant and other witnesses and ordered to conduct forensic examinations of the applicant’s blood and urine samples as well as of two baggies found on him.
On 18 January 2010 the experts concluded that the applicant’s blood and urine contained various narcotic substances and that yellow sandy matter contained in the baggies was home-made heroin.
On 29 March 2010 the prosecutor in charge of the case filed the indictment with the Garadag District Court.
On 9 April 2010 the applicant requested the trial court to conduct an additional expert examination because the forensic expert report of 18 January 2010 was unreliable. He complained that the report contained numerous inconsistencies, in particular, as regards the quantity of narcotic substances found in his blood and urine which allegedly exceeded the lethal dose. The applicant’s request was denied.
On 6 July 2010 the Garadag District Court convicted the applicant as charged and sentenced him to two years and six months’ imprisonment. In finding the applicant guilty the court relied on the forensic expert reports, the testimonies of a number of prison officers and prisoners as well as on testimonies given by forensic experts.
On 25 January 2011 the Court of Appeal dismissed the applicant’s appeal and upheld the Garadag District Court’s judgment.
On an unspecified date the applicant lodged a cassation appeal. He complained, in particular, that the criminal case against him had been fabricated because of his journalistic activities. He alleged that the drugs had been planted by the authorities and the search of his person had been carried out in breach of the relevant procedural requirements. He also complained that the forensic expert reports were unreliable and his request to conduct an additional expert examination was refused by the trial court.
On 3 November 2011 the Supreme Court dismissed the complaints as being unfounded and upheld the lower courts’ judgments.
COMPLAINTS
The applicant complains under Article 6 of the Convention about unfairness of the criminal proceedings against him. In particular, he alleges that there were numerous procedural shortcomings in the manner the material and forensic evidence was obtained and that the domestic courts breached the principle of equality of arms by refusing his request to produce evidence in his defence.
Relying on Articles 10 and 18 of the Convention, the applicant also complains that the criminal proceedings against him were instituted with a view to preventing him from exercising his journalistic activities and to force him to cooperate with the Government.
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 of the Convention? Were the principle of equality of arms and the requirement of adversarial proceedings respected as regards the admission and examination of evidence? In particular:
- Was the applicant afforded an adequate opportunity to contest the evidence against him, including the material and expert evidence obtained by the prosecution?
- Was the applicant afforded an adequate opportunity to adduce evidence in support of his position and to have such evidence assessed by the court, in particular, by way of submitting alternative expert reports or by way of having experts examined at the trial on the applicant’s behalf? Was the refusal of the domestic courts to appoint an independent expert examination compliant with the requirements of Article 6 of the Convention?
The parties are requested to provide necessary documentary evidence in support of their replies and submissions, including copies of the judgments and decisions of the domestic courts, transcripts of the court hearings and the applicant’s appeals and motions.
2. Has there been an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
3. Was there a violation of Article 18 of the Convention taken in conjunction with Article 6?
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