LAYIJOV v. AZERBAIJAN - 22062/07 - Chamber Judgment [2014] ECHR 383 (10 April 2014)

In the case of Layijov v. Azerbaijan,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 18 March 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 22062/07) 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 Tajir Shirin oglu Layijov (Tacir Şirin oğlu Layıcov - “the applicant”), on 18 April 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. The applicant alleged, in particular, that he had been ill-treated during his arrest and in police custody and that the domestic authorities had failed to investigate his allegation of ill-treatment. He also alleged that the criminal proceedings had been unfair, because his conviction had been based on unlawfully planted evidence.

4. On 10 November 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1959 and lives in Balakan.

A. The applicant’s arrest and the pre-trial investigation

6. On 16 March 2005 an operation was planned for the applicant’s arrest following allegations made by N.V. and H.M. to the police that he was a drug dealer and had tried to sell them narcotic substances.

7. At around 4 p.m. on 17 March 2005 the applicant stopped for petrol at a petrol station in Balakan. At that moment he was approached by several plain-clothes police officers. According to the applicant, they dragged him out of his car and began beating, punching and kicking him, and hitting him with a truncheon. He then fainted.

8. When he regained consciousness, he found himself in the back seat of a moving car with the above-mentioned police officers. According to the applicant, one of the two officers sitting on either side of him in the back seat slipped something into his right side trouser pocket. The applicant tried to stop him, but was punched and hit in the head with the butt of a handgun and fainted again. He was taken to the Zagatala District Police Station.

9. According to the applicant, he was repeatedly beaten after his arrival at the Zagatala District Police Station.

10. A search of the applicant and his car was conducted at the police station. According to the search record, the search was carried out at 4.30 p.m. on 17 March 2005 in the presence of the applicant, police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, narcotic (cannabis-based) substances were found both on his person and in his car. The applicant claimed that the drugs did not belong to him and had been planted. He refused to sign the search record. According to him, the search had been filmed and the recording would have shown signs of ill-treatment on his body.

11. At 7 p.m. on 18 March 2005 a police investigator drew up a record of the applicant’s arrest (tutma protokolu). It indicated that the applicant was arrested on 18 March 2005, not 17 March 2005. The applicant refused to sign the record.

12. At an unspecified time on 18 March 2005 the investigator gave the applicant details of four defence lawyers registered with the Zagatala Bar Association who could represent him. The applicant did not choose any of them, and stated that he would be defending himself. However, he refused to sign a waiver of legal assistance.

13. On 20 March 2005 the Zagatala District Court ordered the applicant’s detention for three months, calculating the period of detention from 18 March 2005.

14. On the same day the applicant was examined by a forensic expert from the Zagatala District Forensic Medicine and Pathological Anatomy Department. According to the forensic report, the applicant complained of having been ill-treated by the police on 17 March 2005. The expert noticed an oval-shaped bruise on his neck. The conclusion of the expert reads as follows:

"The oval-shaped bruise on Layijov’s neck, caused by a hard blunt object, its time of infliction corresponds to 17 March 2005, the time initially indicated. The degree of the injury was not determined because it was not an injury causing harm to health. The injury found would not have caused Layijov to lose consciousness.”

15. On an unspecified date during his interrogation, the applicant informed the investigator that there was a knife in his car. In this connection, he submitted that the police had not carried out a “real” search of his car on 17 March 2005, and had only found narcotic substances they had planted there themselves, otherwise they would have found the knife. Following the applicant’s questioning, on 25 March 2005 a new search of the car was conducted and a knife was recovered.

16. On 14 June 2005 the investigator at the Zagatala District Police Station delivered a decision on assessment of the evidence. It appears from the decision that the applicant was also examined by a forensic narcotics expert who established that he had not been using narcotic substances and was not a drug user. By the same decision, the investigator also refused to launch a criminal inquiry in respect of the applicant’s allegation of ill-treatment. The relevant part of the decision reads as follows:

“T. Layijov alleged in his testimony that he had been beaten up by police officers and had even fainted. It appears from the case file that T. Layijov tried to escape when he was being taken to the district police station and that police officers dragged him upstairs. In that case, there should have been contusions and bruises on his body. It was established in the forensic report that there was an oval-shaped bruise on Layijov’s neck, but no injuries were found on other parts of his body. The degree of the injury was not determined because it was not an injury causing harm to health and it was established that the injury [found] would not have caused [him] to lose consciousness. Nevertheless, the procedural legislation allows causing harm to a person who has committed a crime, if he tries to escape during arrest. As the extent of T. Layijov’s injuries was much less serious than the crime he had committed, a criminal inquiry in respect of the fact that he sustained injuries should be rejected.”

17. According to the indictment issued on 25 June 2005, the applicant was charged with offences under Articles 234.1 (illegal possession of narcotic substances in an amount exceeding that necessary for personal use, without intention to sell), 234.2 (illegal sale or illegal possession of narcotic substances with intention to sell), and 228.4 (illegal possession of a cold steel weapon) of the Criminal Code.

B. Proceedings before the domestic courts

18. On 22 July 2005 the Zagatala District Court convicted the applicant of all the offences as charged and sentenced him to six years’ imprisonment. The applicant complained in the course of the proceedings that he had been ill-treated by the police during his arrest and in police custody. He also complained that the criminal case against him had been fabricated by the police because of a pre-existing dispute he had with some officers from the Zagatala District Police Station. In this connection, he claimed that the drugs had been planted by the police officers and that despite his request, the search of his person and car had not been carried out immediately after his arrest. However, his complaints were not addressed in the judgment. The part of the judgment concerning the applicant’s conviction reads as follows:

“The criminal offence committed by the accused T. Layijov was not only proved by witness testimonies, but also other materials in the case file...

In total 181.62 grams of cannabis-based narcotic substances, 19.75 grams of opium, one hunting knife and one “Nokia” mobile phone taken within the framework of the case had been recognised as real evidence...

Therefore, the fact that the accused T. Layijov committed the criminal offences provided for by Articles 234.1, 234.2 and 228.4 of the Criminal Code was again proved in the court investigation by witness testimonies, expert opinions, records of face-to-face questioning and other official information in the case file.

The preliminary investigating authority had rightly qualified the criminal offences of the accused T. Layijov under Articles 234.1, 234.2 and 228.4 of the Criminal Code. He should be found guilty under these Articles and be punished.”

According to the judgment, the period of imprisonment was to be calculated from 18 March 2005.

19. On 7 March 2006 the Court of Appeal upheld the Zagatala District Court’s judgment of 22 July 2005. In the course of the proceedings, the applicant reiterated his complaints, but the Court of Appeal did not consider them.

20. On 10 August 2006 the Supreme Court quashed that judgment and remitted the case for fresh examination. The Supreme Court found that there had been flaws in the assessment of the admissibility and probative value of evidence serving as a basis for the applicant’s convictions, and that the lower courts had failed to properly determine the date of the applicant’s arrest and to examine the issue of the applicant’s alleged ill-treatment in police custody and the compliance with procedural requirements of the search of the applicant and his car. The Supreme Court also noted that the lower courts had not examined why a search of the applicant and his car had not been carried out immediately at the place of his arrest. The relevant part of the decision reads as follows:

“According to forensic report no. 53 of 20 March 2005, the injuries on T. Layijov’s body are characteristic of a beating.

The documents and statements signed by police officers were drafted by G. I. at the same time, using the same pen. The content of the attesting witnesses’ statements, as well as those of N.V. and H.M., was dictated by a professional police officer and they say the same thing.

During the investigation and in the proceedings before the courts, these facts were not examined and no action was taken in this respect.

Under Article 125 of the Code of Criminal Procedure of the Republic of Azerbaijan, evidence and facts, if there are doubts as to their source or the circumstances in which they were obtained, cannot be used in order to determine the charge correctly. All the documents and statements on which the court relied as evidence in the present case are contradictory, and do not disprove T. Layijov’s allegations.

It follows that, when the case is re-examined at appellate court level, it should be considered whether N.V. and H.M. cooperated with the police and participated in the procedural measures in other cases and were for this reason interested in the outcome of the case, the reason why the first operation aimed at arresting T. Layijov on 16 March was not carried out, the reason why a search of T. Layijov and his car was not immediately conducted when he was arrested at the petrol station in Balakan as required by the operational search and criminal procedural legislation, the cause and perpetrators of T. Layijov’s injuries, as well as the reason why the knife, which was considered to be a cold steel weapon, was not found in the car during the first search on 17 March, but was found eight days later. As it appears from T. Layijov’s statements, his allegation, that the narcotic substances were not taken from his car otherwise the knife would also have been found during the search, must be assessed from a logical point of view.”

21. On 22 December 2006 the Court of Appeal quashed the Zagatala District Court’s judgment of 22 July 2005 in the part relating to the charges under Articles 234.2 and 228.4 of the Criminal Code and terminated the corresponding part of the criminal proceedings. The court held that the evidence concerning the charge under Article 234.2 of the Criminal Code had been obtained in breach of the relevant procedural requirements and failed to prove the applicant’s guilt. In particular, N.V. and H.M.’s statements were inconsistent and had been drafted by the investigator. The court also noted that the testimony of N.V. and H.M. at the hearings before the Court of Appeal had differed from their statements. The court further noted that the evidence in connection with the charge under Article 228.4 of the Criminal Code, namely the knife found in the applicant’s car, did not qualify as a weapon for the purposes of that provision. The court also found that the applicant had actually been arrested on 17 March 2005 and for a day had been unlawfully detained in police custody. As to his allegation of ill-treatment, the court noted that he had been ill-treated by the police during his arrest and in police custody, as certified by the forensic report of 20 March 2005. The relevant part of the judgment reads as follows:

“It was established following the investigation carried out by the panel of the court that during T. Layijov’s arrest the requirements of criminal procedural law were violated by the investigating authorities; his arrest was not immediately documented, he was not provided with a lawyer, he was not informed of his rights and obligations and he was unlawfully detained at the Zagatala District Police Station for a day...

Taking into consideration the fact that the video-recording of the investigative steps taken during the preliminary investigation was not added to the case file as evidence, and the fact that T. Layijov’s allegation of being beaten by police officers was not rebutted by any plausible evidence by the party defending the charge, the court considers that the injuries on T. Layijov’s body were inflicted by the police during the preliminary investigation.”

22. However, the Court of Appeal upheld the applicant’s conviction under Article 234.1. The relevant part of the judgment reads as follows:

“... The panel of the court considers that the accused T. Layijov had committed the crime under Article 234.1 of the Criminal Code and that he had been correctly found guilty and convicted by the first-instance court.”

23. The Court of Appeal was silent as to the applicant’s particular complaints concerning the drugs being planted on him by the police, the conditions in which the search had been carried out, and the lawfulness of the use of the evidence obtained in those circumstances against him.

24. The Court of Appeal reduced the applicant’s sentence to two years’ imprisonment and decided to calculate the beginning of the corresponding sentence from 17 March 2005.

25. On 17 March 2007 the applicant was released after having served his sentence.

26. On 19 June 2007 the Supreme Court upheld the Court of Appeal’s judgment of 22 December 2006.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Constitution of the Republic of Azerbaijan

27. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads as follows:

“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”

28. 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”)

29. 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 this 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); and 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.

30. The following are the relevant provisions of the CCrP concerning the review of the relevant decisions delivered in domestic proceedings 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. 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 materials of simplified pre-trial proceedings, or the case materials 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.”

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

31. 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 acts of the person having violated the law and excludes in all cases [those items] from the body of evidence in the case...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

32. Relying on Articles 3 and 13 of the Convention, the applicant complained that he had been ill-treated during his arrest and in police custody, and that the domestic authorities had failed to investigate his allegation of ill-treatment. The Court considers that the present complaint falls to be examined solely under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

33. The Government did not raise any objection as regards the admissibility of this complaint. However, as the domestic courts have already acknowledged the applicant’s ill-treatment, the Court considers it necessary to satisfy itself that the applicant can be considered as a victim within the meaning of the Convention in respect of his complaint under Article 3 of the Convention.

34. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). Moreover, in cases of wilful ill-treatment the breach of Article 3 cannot be remedied only by an award of compensation to the victim and there should be an effective investigation in addition to adequate compensation (see Gäfgen v. Germany [GC], no. 22978/05, § 119, ECHR 2010).

35. Turning to the circumstances of the present case, the Court notes that the mere fact that the domestic courts expressly acknowledged that the applicant had been subjected to treatment contrary to Article 3 of the Convention (see paragraphs 20-21 above), cannot deprive the applicant of his victim status under the Convention, as no compensation was awarded to him in respect of the alleged violation of the Convention. The foregoing considerations are sufficient to enable the Court to conclude that the applicant is still victim within the meaning of the Convention in respect of his complaint under Article 3 of the Convention.

36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged ill-treatment of the applicant by the police

(a) The parties’ submissions

37. The Government submitted that the applicant had not been subjected to inhuman or degrading treatment. In this connection, they argued that as the applicant had tried to escape when he was taken to the Zagatala District Police Station, police officers had had to drag him inside. They also pointed out that the forensic report of 20 March 2005 had concluded that the injury on the applicant’s neck was not serious and would not have caused him to lose consciousness.

38. The applicant contested the Government’s submissions. He submitted that he had been beaten up by the police during his arrest and while in police custody in the Zagatala District Police Station. As to the Government’s argument that he had tried to escape, the applicant pointed out that he had neither tried to resist arrest nor escape afterwards and that there was no indication in the record of his arrest that this had happened.

(b) The Court’s assessment

39. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII, and Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V).

40. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Assessment of this minimum level depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, § 92).

41. The Court reiterates that “[w]here an individual, when taken in police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention” (see Tomasi v. France, 27 August 1992, §§ 108-11, Series A no. 241-A, and Selmouni, cited above, § 87).

42. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nevertheless, where allegations are made under Article 3 of the Convention, the Court must apply particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place (see Avşar, cited above, §§ 283-84, and Muradova v. Azerbaijan, no. 22684/05, § 99, 2 April 2009).

43. Turning to the circumstances of the present case, the Court observes at the outset that the applicant’s ill-treatment by the police was explicitly acknowledged by the domestic court decisions (see paragraphs 20-21 above). The Court does not see any reason to depart from those findings.

44. In this connection, the Court considers that the applicant has been able to produce sufficiently strong evidence supporting the fact that he was ill-treated by the police on 17 March 2005. In particular, the forensic report of 20 March 2005 certified the existence of an oval-shaped bruise on his neck which had been caused by a hard blunt object, the time of infliction corresponding to 17 March 2005. The Court cannot accept the Government’s argument that the injury in question was sustained when the police officers dragged him into the police station. In fact, it was clearly established in the forensic report that the injury had been caused by a hard blunt object and not by “dragging”.

45. In any event, the Court cannot accept the Government’s argument that the use of force against the applicant was justified and not excessive because the applicant had tried to escape. In this connection, the Court observes that there is no indication in the record on the applicant’s arrest or in the search record that he had tried to escape or to resist the police during his arrest. Moreover, nowhere was it shown that the applicant used violence against the police or posed a threat to them during his arrest or afterwards which would have required the use of force against him.

46. The Court also does not overlook the fact that despite its explicit request, the Government did not submit a copy of the video-recording of the applicant’s body search. It notes that the existence of such a recording was confirmed by the Court of Appeal’s judgment of 22 December 2006 (see paragraph 21 above). In these circumstances, it does not see any contradiction or inconsistency in the applicant’s allegation that he had been ill-treated by the police during his arrest and in police custody.

47. As to the seriousness of the act of ill-treatment, the Court considers that although the injuries sustained by the applicant did not require any important medical intervention, they must have caused him serious physical pain and suffering. The ill-treatment and its consequences must have also caused him considerable mental suffering, diminishing his human dignity. In these circumstances, the Court considers that the ill-treatment complained of was sufficiently serious to attain a minimum level of severity falling within the scope of Article 3 and to be considered as inhuman and degrading treatment.

48. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb.

2. Alleged failure to carry out an effective investigation

(a) The parties’ submissions

49. The Government submitted that the domestic authorities had conducted an effective investigation of the applicant’s allegation of ill-treatment. In this connection, they pointed out that following the examination of the allegation, the investigator in charge of the case had refused to launch a criminal inquiry by its decision on assessment of the evidence of 14 June 2005.

50. The applicant maintained his complaint.

(b) The Court’s assessment

51. Where an individual raises an arguable claim that he or she has been ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

52. For an investigation required by Articles 2 and 3 of the Convention to be effective, those responsible for and carrying out the investigation must be independent and impartial, in law and in practice. This means not only that there must be no hierarchical or institutional connection with those implicated in the events, but that there must also be independence in practical terms (see Boicenco v. Moldova, no. 41088/05, § 121, 11 July 2006; Kolevi v. Bulgaria, no. 1108/02, § 193, 5 November 2009; and Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 66, 24 June 2010).

53. An investigation into allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et seq., and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004-IV).

54. The Court observes at the outset that in the present case the applicant’s ill-treatment by the police was explicitly acknowledged by the domestic court decisions, in particular the Court of Appeal’s judgment of 22 December 2006. However, no investigation was carried out with a view to identifying and punishing the perpetrators of the applicant’s ill-treatment after it was acknowledged by the Court of Appeal. Although the applicant raised an arguable claim, supported by a forensic report, that he had been ill-treated by the police, the investigator at the Zagatala District Police Station refused to launch a criminal inquiry in connection with the applicant’s allegation. No explanation was given by the Government as to the domestic authorities’ failure to conduct an investigation in this respect.

55. The Court has repeatedly stressed that the procedural obligation under Articles 2 and 3 requires an investigation to be independent and impartial, both in law and in practice (see paragraph 52 above). However, in the present case the applicant’s allegation that he had been ill-treated by the police officers of the Zagatala District Police Station was, prior to the acknowledgement of the applicant’s ill-treatment by the Court of Appeal, examined by an investigator at the Zagatala District Police Station. Therefore, the applicant’s complaint was examined by the same police station whose agents had allegedly committed the offense. In the Court’s view, in such circumstances an investigation by the police force of an allegation of misconduct by its own officers could not be independent (compare Najafli v. Azerbaijan, no. 2594/07, § 52, 2 October 2012).

56. The foregoing considerations are sufficient to enable the Court to conclude that there was no effective investigation of the applicant’s allegation of ill-treatment. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

57. The applicant complained that his right to a fair trial had been violated, because his conviction had been based on unlawfully 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 ...”

A. Admissibility

58. The Government did not raise any objection as regards the admissibility of this complaint.

59. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

60. The Government submitted that the police had not planted anything on the applicant or in his car.

61. The applicant maintained his complaint. He argued that the narcotic substances found on him and in his car had been planted by police officers. He had not been searched at the time of his arrest and had only been subjected to a search at the Zagatala District Police Station nowhere near his place of arrest. He also argued that police officers had not carried out a “real” search of his car on 17 March 2005, and had only found narcotic substances they had planted. In support of his claim, the applicant submitted that during the initial search the police had failed to find a knife which was in his car, and had only recovered it some eight days later on 25 March 2005 after he had told them about it. Therefore, if the search of his car on the day of his arrest had been “real”, the knife would have been recovered during that initial search.

2. The Court’s assessment

62. 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).

63. 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 in which 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).

64. 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, cited above, §§ 35 and 37, and Allan, cited above, § 43). 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).

65. 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. Thus, Article 6 may 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).

66. Turning to the circumstances of the present case, the Court observes at the outset that two of the three offences of which the applicant had initially been found guilty were subsequently dropped by the domestic courts owing to numerous breaches of material and procedural law and the applicant was ultimately convicted for illegal possession of drugs. His final conviction was based only on physical evidence, namely narcotic substances found on his person and in his car during a search carried out by the police on 17 March 2005.

67. In these circumstances, the Court will examine firstly the quality of the evidence, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy and secondly, whether the applicant was given the opportunity to challenge the authenticity of the evidence and to oppose its use in the domestic proceedings (see Bykov, cited above, § 90, and Lisica v. Croatia, no. 20100/06, §§ 51-54, 25 February 2010).

68. As regards the first question, the Court considers that there are a number of serious shortcomings.

69. Firstly, the Court observes that it is undisputed by the parties that the search of the applicant and his car was not carried out immediately following his arrest. It took place at the Zagatala District Police Station, nowhere near his place of arrest. In this connection, the Court notes that such a time lapse, around thirty minutes, between the arrest and the 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. The Court further observes that the investigating authorities failed to submit in the course of the domestic proceedings a copy of the video-recording of the search of the applicant and his car (see paragraph 21 above) and, despite an explicit request, the Government did not submit a copy of the video-recording in question to the Court.

70. In any event, there is nothing in the present case to suggest that there were any special circumstances rendering it impossible to carry out a search immediately after the applicant’s arrest. Moreover, it is not clear why he was not taken to the Balakan District Police Station situated some five to ten minutes from his place of arrest but rather to the Zagatala District Police Station.

71. Secondly, the Court has already found in the present case that the applicant was ill-treated by the police during his arrest and in police custody on 17 March 2005, that is to say, when he was being searched by the police and narcotic substances forming the evidence produced against him were found.

72. Thirdly, the Court observes that, as it was subsequently acknowledged by the domestic courts, the applicant’s arrest was not documented on 17 March 2005 and he was unlawfully detained for a day in the police station (see paragraph 21 above).

73. As to the second question, the Court observes that the applicant raised the question of the authenticity of the physical evidence found on him and in his car both at the beginning of the criminal proceedings and in the course of the proceedings before all the domestic courts. However, this point was not adequately considered by the domestic courts as their judgments were silent on this point.

74. In this connection, the Court notes that the Court of Appeal’s judgment of 22 December 2006, which determined the applicant’s final conviction under Article 234.1 of the Criminal Code, excluded the use of other evidence against the applicant, such as N.V. and H.M.’s statements, but remained silent as to the use of the evidence obtained from the search of 17 March 2005. Despite the fact that the Supreme Court explicitly requested the appellate court to examine why a search of the applicant and his car was not immediately conducted at the place of his arrest (see paragraph 20 above), the Court of Appeal failed to consider this issue in its judgment of 22 December 2006.

75. In any event, no explanation was given by the domestic courts or the Government as to why the applicant’s complaints on the authenticity of the evidence and its use in the domestic proceedings against him were not considered by the domestic courts when they convicted him on the basis of the evidence in question. Therefore, the Court cannot but conclude that the applicant was not given the opportunity to challenge the authenticity of the evidence and to oppose its use in the domestic proceedings, as his complaints in this respect were not considered by the domestic courts without any reason.

76. In view of the fact that the physical evidence found on the applicant’s person and in his car was the only 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.

77. Accordingly, there has been a violation of Article 6 of the Convention.

III. ALLEGED VIOLATION OF ARTICLES 5 AND 14 TAKEN IN CONJUNCTION WITH ARTICLES 3, 5 AND 6 OF THE CONVENTION

78. The applicant complained that he had been unlawfully arrested on 17 March 2005 and detained without any lawful basis or any formal record of detention for a period of one day. The applicant further complained that the police had discriminated against him without specifying any ground of discrimination.

79. As far as the applicant complained about his unlawful detention on 17 March 2005, the Court notes that the applicant did not appeal against the detention order of 20 March 2005. Furthermore, even assuming that there was no remedy to exhaust the Court notes that this complaint, submitted on 18 April 2007, has been lodged out of time and does not comply with the six-month rule set out in Article 35 § 1 of the Convention. As to the remainder of the complaints, the Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

80. 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.”

A. Damage

81. The applicant claimed EUR 10,000 in compensation for non-pecuniary damage.

82. The Government did not comment on the applicant’s claim.

83. 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. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 10,000 under this head, plus any tax that may be chargeable on this amount.

84. 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 the reopening of the proceedings in order to guarantee the conduct of the trial in accordance with the requirements of Article 6 of the Convention (see, mutatis mutandis, Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV; Shulepov v. Russia, no. 15435/03, § 46, 26 June 2008; Abbasov v. Azerbaijan, no. 24271/05, §§ 41-42, 17 January 2008; and Maksimov v. Azerbaijan, no. 38228/05, § 46, 8 October 2009). 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 30 above).

B. Costs and expenses

85. The applicant claimed EUR 1,750 for costs and expenses incurred before the Court. He also claimed EUR 300 for translation expenses and EUR 100 for postal expenses. In support of his claim, he submitted a contract for legal services rendered in the proceedings before the Court and a contract with a translator.

86. The Government did not comment on the applicant’s claim.

87. 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. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,050 covering costs under all heads.

C. Default interest

88. 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 complaints under Articles 3 and 6 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention as regards the ill-treatment by the police;

3. Holds that there has been a violation of Article 3 of the Convention as regards the lack of effective investigation of the applicant’s allegation of ill-treatment;

4. Holds that there has been a violation of Article 6 of the Convention;

5. Holds

(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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,050 (two thousand fifty 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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LAYIJOV v. AZERBAIJAN - 22062/07 - Chamber Judgment [2014] ECHR 383 (10 April 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/383.html Cite as: [2014] ECHR 383