European Court of Human Rights

FIRST SECTION

CASE OF MURADVERDIYEV v. AZERBAIJAN

(Application no. 55772/15)

JUDGMENT
 

STRASBOURG

14 December 2023

This judgment is final but it may be subject to editorial revision.

In the case of Muradverdiyev v. Azerbaijan,

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

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 55772/15) 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") on 28 October 2015 by an Azerbaijani national, Mr Akif Shamsaddin oglu Muradverdiyev (Akif Şəmsəddin oğlu Muradverdiyev - "the applicant"), who was born in 1949, lives in Baku and was represented by Mr F. Agayev, a lawyer based in Azerbaijan;

the decision to give notice of the application to the Azerbaijani Government ("the Government"), represented by their Agent, Mr Ç. Əsgərov;

the parties' observations;

Having deliberated in private on 21 November 2023,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns the alleged unfairness of the criminal proceedings instituted against the applicant for gold coin smuggling.

2.  The applicant had worked as the Head of the Administrative Department of the Office of the President of the Republic of Azerbaijan prior to his arrest and conviction on charges of embezzlement and bribery in 2006 (for further details see Muradverdiyev v. Azerbaijan, no.16966/06, 9 December 2010).

1. The applicant's arrest and the Pre-trial investigation

3.  On 20 June 2013 at around 9 a.m. the applicant went to the Heydar Aliyev International Airport in Baku in order to travel to Moscow. He had one small bag which he intended to take on the plane as carry-on luggage.

4.  According to the applicant, after he had passed the security, customs and border checks and was approaching the boarding gate, he was arrested by officials of the then Ministry of National Security ("the MNS"), who took away his bag and took him into a room where he was questioned for approximately twenty minutes.

5.  The applicant's bag was then returned to him and the MNS officials began conducting a search of him and his belongings in the presence of two attesting witnesses. The search was filmed but the applicant was not represented by a lawyer. According to the record of the search, it was carried out at 9.45 a.m. on 20 June 2013. During the search, forty gold coins were found in the applicant's bag along with cash in various currencies and several mobile phones. The applicant objected, stating that the money and the phones belonged to him but the gold coins found in his bag had been planted there. He also refused to sign the record of the search.

6.  Following the search, the applicant was taken to the MNS, where he was first questioned as a witness. It appears from the record of the questioning that in reply to the question regarding the gold coins found in his bag, the applicant stated that they did not belong to him and had been planted in the bag after it had been taken away from him.

7.  Later on the same date the applicant was charged with the criminal offence of smuggling under Article 206.1 of the Criminal Code. In his statement as the accused, made in the presence of his lawyer, the applicant maintained his initial statement, asserting that the gold coins did not belong to him and had been planted.

8.  The applicant was then brought before the Sabail District Court, which ordered his pre-trial detention.

9.  On 24 June 2013 the applicant's lawyer asked the investigator to obtain the video-recordings from the airport security cameras and examine them. It appears from the decision of the investigator of 25 June 2013 that he granted that request. However, it also appears that the decision was never executed.

10.  On 24 June 2013 the investigator ordered a forensic trace examination of the polythene bag which contained the gold coins that were found in the applicant's bag.

11.  On 8 July 2013 a trace expert's report no. 11269 was drawn up, which said that the polythene bag had the applicant's fingerprints on it. In the proceedings in the domestic courts and before the Court, the applicant contested the reliability of that expert report.

12.  On 31 October 2013 the investigator drafted a bill of indictment under Article 206.1 of the Criminal Code and filed it with the Khazar District Court.

2. The applicant's trial

13.  In the course of the proceedings in the first-instance court, the applicant insisted that the criminal case against him had been fabricated and that the gold coins had been planted in his bag by MNS officials. He also asked the court to obtain the video-recordings from the airport security cameras and to exclude the search record from the list of evidence as the search had been carried out unlawfully without a warrant.

14.  The first-instance court heard the two attesting witnesses who had participated in the search. However, it never questioned the MNS officials who had carried out the search of the applicant's bag.

15.  On 13 December 2013 the Khazar District Court found the applicant guilty under Article 206.1 of the Criminal Code and sentenced him to four years' imprisonment. The first-instance court found the applicant guilty primarily because of the evidence of the record of the search of his bag and the expert report no. 11269. The judgment made no mention of the applicant's specific complaints about the conditions in which the search had been carried out or the lawfulness of the use against him of evidence obtained in those circumstances.

16.  The applicant appealed, reiterating his arguments.

17.  On 12 February 2014 the Baku Court of Appeal upheld the judgment of the first-instance court. The appellate court's judgment was silent as to the applicant's specific complaints that the gold coins had been planted in his bag and about the conditions in which the search had been carried out.

18.  On 29 April 2015 the Supreme Court upheld the appellate court's judgment.

3. COmPLAINTS

19.  The applicant complained that the criminal proceedings against him had been in breach of Article 6 of the Convention because he had been convicted on the basis of planted evidence; he had not been given an opportunity to challenge that evidence against him in an effective manner; and at the pre-trial stage of the criminal proceedings against him he had been deprived of access to effective legal assistance.

THE COURT'S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

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

21.  The general principles applicable to the present case have been summarised in Sakit Zahidov v. Azerbaijan (no. 51164/07, §§ 46-49, 12 November 2015) and Dursun Aliyev v. Azerbaijan (no. 20216/14, §§ 115-18, 27 April 2023).

22.  Turning to the circumstances of the present case, the Court notes that the applicant was convicted of smuggling by the domestic courts primarily on the basis of physical evidence, namely the gold coins found in his bag during the search carried out by the MNS officials.

23.  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 provenance and, secondly, whether the applicant was given the opportunity to challenge its provenance and oppose its use in the domestic proceedings (see Bykov v. Russia [GC], no. 4378/02, § 90, 10 March 2009, and Sakit Zahidov, cited above, § 52).

24.  As regards the first question, the Court observes that, after arriving at the airport, the applicant had passed the security, customs and border checks and was approaching the boarding gate where he was arrested by the MNS officials, one of whom took away his bag. He was taken to a room where he had to wait for approximately twenty minutes for his bag to be brought back and for the search to start. The video-recording of the search provided by the Government corroborates the applicant's claim that his bag had been taken away from him as he explicitly states that to the preliminary investigator carrying out the search at the beginning of the recording.

25.  The Court notes in this connection that the failure to conduct a search immediately following an arrest without good reason raises legitimate concerns about the possible "planting" of evidence, because the applicant is completely under the control of the authorities during that time (see Layijov v. Azerbaijan, no. 22062/07, § 69, 10 April 2014). 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.

26.  The Court also notes that the authorities have offered no plausible explanation of how the applicant might have been able to pass through the security and customs checks with the coins undetected and without raising any suspicions from the relevant officials.

27.  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.

28.  As regards the second question, the Court observes that the applicant raised the question of the provenance of the physical evidence found in his bag 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 issue (see Layijov, cited above, § 73).

29.  The domestic courts contented themselves with noting that the applicant's assertion that the evidence had been planted had been raised by way of defence and had not been proved in the proceedings, without examining the applicant's specific complaints. Therefore, the Court cannot but conclude that the applicant was not given the opportunity to challenge that evidence and to oppose its use in the domestic proceedings, as the domestic courts did not consider his complaints in that respect and gave no reason for failing to do that (see Sakit Zahidov, cited above, § 57). This also deprived him of the opportunity to effectively challenge the lower courts' judgments.

30.  In view of the fact that the physical evidence found in the applicant's bag was the primary evidence on which his 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 provenance of that evidence and its use against him, rendered the proceedings as a whole unfair (see Layijov, § 76, and Sakit Zahidov, § 58, both cited above).

31.  There has accordingly been a violation of the applicant's right to a fair trial as protected by Article 6 § 1 of the Convention.

32.  In view of the above findings, the Court considers that there is no need to examine whether at the pre-trial stage of the criminal proceedings against him, the applicant had been deprived of access to effective legal assistance (compare Rustamzade v. Azerbaijan (no. 2), no. 22323/16, § 44, 23 February 2023, and Dursun Aliyev, cited above, § 146).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

34.  The Government submitted that finding of a violation would constitute in itself a sufficient reparation for any non-pecuniary damage sustained.

35.  The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Ruling on an equitable basis, it awards the applicant the sum of EUR 4,000 under this head, plus any tax that may be chargeable.

36.  The applicant did not claim any costs and expenses. Accordingly, there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 14 December 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President