Communicated on 13 October 2014
FIRST SECTION
Application no. 81545/12
Genadiy BIBIN against Azerbaijan
lodged on 12 December 2012
STATEMENT OF FACTS
The applicant, Mr Genadiy Nikitovich Bibin, is a Belarusian national, who was born in 1960 and is currently serving a prison sentence in Baku. He is represented before the Court by Ms V. Leonidchenko, a lawyer practising in Moscow.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 July 2010 the applicant, together with his brother and one acquaintance of him (respectively Mr Sergey Bibin and Mr Anatoliy Vaytkevich – hereinafter referred to as “S.B.” and “A.V.” – whose applications nos. 81518/12 and 81547/12 are being considered simultaneously with the present one), were arrested in Baku while travelling by plane from Kiev to Tehran via Baku. Following a search carried out during their arrest, electric relay and contactor systems were found in their baggage.
According to the applicant, neither after his arrest, nor during his first questioning was he provided with legal assistance.
On 4 July 2010 the applicant was charged with the criminal offence of fraud as provided by Article 178.3.2 of the Criminal Code. On the same day the Nasimi District Court ordered the applicant’s detention for a period of three months.
On 15 September 2010 the applicant lodged a request with the prosecuting authorities complaining that he did not have effective legal and interpreter assistance.
On 25 September 2010 the investigator in charge of the case decided to provide the applicant with legal assistance of an additional lawyer. The investigator also decided to provide the applicant with assistance of a new interpreter.
On 8 October 2010 the investigator in charge of the case re-qualified the criminal case under Article 206.4 (smuggling, committed by an organised group) of the Criminal Code and decided to continue the criminal proceedings against the applicant. The charges against him were based on the fact that the applicant, together with S.B. and A.V., had smuggled electric relay and contactor systems, which could be used for military purposes, without making a customs declaration.
In the meantime, a technical forensic examination of relay and contactor systems was carried out. It appears from the forensic report of 5 October 2010 that the expert concluded that although the items in question could not be considered as firearms, weapons or their component parts, they could be used for military purposes. The expert, however, refused to reply to the question whether the movement of these items was forbidden and required a special licence, finding that this question fell out of his competence.
It appears from the case file that on 13 October 2010 the applicant lodged a request with the investigator asking for a new forensic examination.
By a decision of 18 October 2010 the investigator dismissed the applicant’s request, finding it unsubstantiated and holding that there was no need to conduct a new forensic examination.
On an unspecified date the applicant lodged a complaint with the Nasimi District Court claiming violation of his right to defence. He complained in particular that he had not been provided with all documents relating to the criminal proceedings in a language which he understood.
On 26 October 2010 the Nasimi District Court dismissed the applicant’s complaint as unsubstantiated.
On 26 November 2010 the Assize Court held a preliminary hearing in which it decided, inter alia, to hold the trial in camera and to leave unchanged the preventive measure of remand in custody in respect of the applicant.
On 2 May 2011 the Assize Court found the applicant guilty of smuggling, committed by an organised group, and sentenced him to eight years’ imprisonment. The court held that the applicant, S.B. and A.V., with their one Iranian and two Azerbaijani accomplices, planned to smuggle through the Azerbaijani border to Iran items which could be used for military purposes. It appears from the judgment that in the course of the proceedings before the Assize Court the applicant claimed his innocence. In particular, he stated that he was a retired military engineer by profession and in May 2010 S.B. asked him to find a specialist in the field of repairs of missile systems. Following this, he contacted A.V. who was a specialist in this field and they intended to travel to Iran in order to repair the missile systems.
On 26 October 2011 the Baku Court of Appeal upheld the Assize Court’s judgment in respect of the applicant. The hearings before the appellate court were held in camera.
On 6 July 2012 the Supreme Court upheld the Baku Court of Appeal’s judgment of 26 October 2011 in respect of the applicant. On 29 November 2012 the applicant was provided with a copy of the Supreme Court’s decision translated into Russian.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the court hearings were held in camera without any reason and that he was not provided with all documents relating to the criminal proceedings in a language which he understands. He also complains under Article 6 of the Convention that he was not provided with legal assistance at the initial stage of the criminal proceedings, in particular after his arrest and during his first questioning.
QUESTIONS TO THE PARTIES
1. Was the applicant afforded a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 of the Convention? In particular:
(a) Did the exclusion of the public in the present case pursue one of the legitimate aims enumerated in the second sentence of Article 6 § 1 and was it “strictly necessary” within the meaning of this provision?
(b) Was the applicant informed promptly, in a language which he understands and in detail, of the nature and cause of the accusations against him, in accordance with Article 6 § 3 (a) of the Convention?
(c) Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention? In particular, was he afforded free legal assistance at the initial stage of the proceedings?
2. The Government are requested to submit copies of all documents (detention record, search record, record of questioning, testimony record, forensic report, bill of indictment, the prosecuting authorities’ decisions, the domestic courts’ decisions and judgments, as well as the applicant’s complaints against them, etc.) relating to the criminal proceedings instituted against the applicant.
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