CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 mars 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s85A66119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:14pt } .sE208486F { font-family:Arial; color:#ff0000 } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD2857263 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD777C0A5 { margin-top:42pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s804EF768 { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC4726361 { font-family:Arial; color:#800000 } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8E011338 { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s56E27C8 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s687FC4CF { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-after:avoid } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s8C122C8C { width:158.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s6B737D45 { width:205.46pt; display:inline-block }     FIRST SECTION         CASE OF INSANOV v. AZERBAIJAN   (Application no. 16133/08)                 JUDGMENT     STRASBOURG   14 March 2013     FINAL   14/06/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Insanov v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 12 February 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 16133/08) 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 Ali Binnat oglu Insanov ( Əli Binnət oğlu İnsanov – “the applicant”), on 31 March 2008. 2.     The applicant was represented by Mr A.   Shahverdi and Mr   T.   Babayev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr   Ç.   Asgarov. 3.     The applicant complained, in particular, about the conditions of detention, and also alleged unfairness of the civil proceedings concerning his conditions of detention, lack of adequate medical treatment in detention, unfairness of the criminal proceedings against him, and other violations of the Convention. 4.     On 19 November 2009 the application was declared partly inadmissible and the complaints under Article 3 concerning lack of adequate medical treatment and conditions of detention, the complaint under Article 6 concerning the fairness of the civil proceedings, the complaints under Article 6 concerning the fairness of the criminal proceedings, and the complaint under Article 1 of Protocol No. 1 to the Convention were communicated to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1946. He was the Minister of Health Care from 1993 to 2005. A.     Criminal proceedings against the applicant 1.     Pre-trial stage 6.     On 20 October 2005 the applicant was summoned to the Ministry of National Security (“the MNS”). He arrived at the MNS at around 3 p.m. and was questioned until 7 p.m. 7.     After being questioned he was detained on suspicion of abuse of official authority, embezzlement of public funds and complicity in an attempted coup d’état , allegedly planned to take place after the parliamentary elections of 6 November 2005 and masterminded by former Parliament Speaker R.   Guliyev (who was living abroad at that time) and several other high-ranking government officials. He was held in the detention facility of the MNS. 8.     It appears that he was dismissed from his ministerial office on the same day. 9.     On 22 October 2005 the Prosecutor General’s Office formally charged the applicant with criminal offences under Articles 28/220.1 (preparation to organise public disorder), 278 (actions aimed at usurping State power), 179.3.2 (high-level embezzlement), 308.2 (abuse of official authority entailing grave consequences), 311.3.2 (repeated bribe-taking) and   311.3.3 (high-level bribe-taking) of the Criminal Code. The applicant was formally charged in criminal case no. 76586. 10.     On 22 October 2005 the Nasimi District Court remanded the applicant in custody for a period of three months (until 20 January 2006). On 13 January 2006 the same court extended this period by another four months (until 20 May 2006). On 19 May 2006 this period was extended again, by another five months (until 20 October 2006). Lastly, on 16   October 2006 the period was extended again, by another six months (until 20 April 2007). The applicant lodged appeals against each of these decisions. All his appeals were dismissed by the Court of Appeal. An appeal by the applicant against the extension decision of 16   October 2006 was dismissed by a decision of the Court of Appeal on 2   November 2006. 11.     In the course of the pre-trial investigation, the investigating authorities carried out a search of the applicant’s home and found, inter alia , large amounts of cash in various currencies, large quantities of gold items and jewellery, and deeds of a number of residential properties. 12.     On 19 January 2007 the Prosecutor General’s Office issued a new indictment charging the applicant with criminal offences under Articles   28/220.1, 278, 179.3.2, 306.2 (failure by a public official to execute a final court judgment), 308.1 (abuse of official authority), 308.2, 311.3.1 (bribe ‑ taking), 311.3.2 and 311.3.3 of the Criminal Code. 13.     On 24 January 2007 a new criminal case (no. 76932) was severed from criminal case no. 76586. Under criminal case no. 76932 the applicant was formally charged with the offences under Articles 179.3.2, 306.2, 308.1, 308.2, 311.3.1, 311.3.2, 311.3.3 and 313 (forgery in public office) of the Criminal Code. 14.     Specifically, the applicant was accused of having committed the following criminal acts, inter alia : (i)     Between 1997 and 2004 he had created conditions for unlawful disposal (by way of privatisation) of numerous State-owned real-property assets (land and non-residential premises) which were on the books of the Ministry of Health Care and had a total estimated value of 27,221,574 New Azerbaijani manats (AZN) (approximately 23,500,000 euros (EUR) at that time). Among other things, the applicant was accused of falsifying, with the assistance of accomplices, certain documents related to the above-mentioned assets, in order for that property to be designated suitable for privatisation under the State Privatisation Programme and privatisation laws, whereas in fact those assets did not qualify as such, and were necessary for the proper functioning of State health care institutions. Most of these assets were privatised by dummy companies affiliated to the applicant or his acquaintances and were subsequently resold to the applicant’s family members and acquaintances. In connection with the above transactions, the applicant also received bribes in the total amount of 200,000 United States dollars (USD) (equivalent to AZN 195,460); (ii)     He had embezzled AZN 115,240 of public funds in order to pay for the publication of one of his books; (iii)     He had taken a number of bribes in the total amount of USD 76,900 (equivalent to AZN 75,423) and another bribe in the amount of AZN 2,800 in exchange for issuing licences to private companies for operating pharmacies, and had kept 70% of the above amounts for himself while distributing the remainder among his accomplices; (iv)     He had continually failed to comply with seven final domestic judgments (the earliest of which had been delivered in 1994), ordering the reinstatement of former Ministry of Health Care employees who had been unlawfully dismissed from their positions; and (v)     He had committed a number of other acts of embezzlement and abuse of official authority. 15.     On 24 January 2007 the investigating authorities informed the applicant that the pre-trial investigation in criminal case no. 76932 had been completed. Criminal case no. 76932 was sent for trial in the Assize Court. The original criminal case no. 76586, which still carried the charges under Articles 28/220.1 and 179.3.2 of the Criminal Code, was not sent for trial, but was not terminated either. 16.     On 29 January 2007 the applicant’s lawyers lodged a complaint with the Prosecutor General, alleging that the defence had not been allowed to properly familiarise themselves with the case materials. In particular, they complained that not all the annexes to the case files had been presented to the defence and that the defence had not been allowed to take photocopies of case materials. By a letter of 2 February 2007 the Prosecutor General rejected this complaint, noting that during the period from 24 to 30 January 2007 the applicant and his lawyers had been allowed access to all forty ‑ three   volumes of the case file, three video-tapes, photographs and other material evidence, and that on 30 January 2007 they had signed a record of familiarisation with the case file together with the annexed time sheets. Furthermore, he stated that, from the content of the other, unrelated complaints lodged with the prosecution authorities at around the same time, it was clear that the defence had sufficient knowledge of the entire investigation case file. Lastly, the Prosecutor General added that, if necessary, the defence would be given an opportunity to consult and take photocopies of the investigation materials again during the trial. 17.     On 15 February 2007 the applicant lodged a complaint with the Assize Court, arguing that the defence had not been given an opportunity to adequately familiarise themselves with the case file and requesting the court to suspend the proceedings on this ground and to send the case back to the investigation stage. By an interim decision of 15 February 2007 the Assize Court refused this request, finding that the defence had been given adequate access to the case file. 2.     Trial 18.     The applicant was tried at the Assize Court with ten others, who were either former officials of the Ministry of Health Care or had been involved in commercial transactions with the Ministry. Each of the ten was charged with complicity in some of the criminal offences with which the applicant had been charged. In connection with the embezzlement charges, a civil claim was also advanced against the applicant and some of the other defendants in the criminal case. 19.     In addition there were around twenty civil defendants in the case, against whom no criminal charges had been brought. The civil defendants were the current private owners of the formerly public property which had allegedly been unlawfully embezzled or sold by the applicant. (a)     Hearings at the Assize Court 20.     A preliminary hearing was held on 15 February 2007 and hearings on the merits were held from 22 February to 20 April 2007. The hearings were held on working days between around 9.30   a.m. and around 6   p.m., but sometimes lasted until after 7 p.m. 21.     According to the Government, more than 120 witnesses were heard during the trial. The Assize Court’s judgment of 20 April 2007 summarised statements from a large number of witnesses, who testified in connection with all of the accusations against the applicant and the other accused persons. 22.     In addition to hearing witnesses, the court also examined various documentary and other material evidence presented by the prosecution, including various expert reports on forensic handwriting analyses of a large number of documents, reports on valuation of unlawfully privatised properties, and so on. Among this documentary evidence, an important role in the prosecution’s submissions was given to three audit reports of 27 June, 11 August and 18 December 2006 concerning the “audit of the financial and economic activities of the Ministries of Health Care and Economic Development”, prepared by a number of employees (sometimes referred to as “experts” in the relevant court documents) of the Ministry of Finance, the Chamber of Auditors and other State agencies, pursuant to a decision of the Nasimi District Court of 29 November 2005. In sum, these reports concluded that, despite the fact that the State privatisation programme allowed privatisation of State health care facilities only by a decision of the President of the Republic, the applicant had exceeded and abused his official powers and, together with “other persons”, had unlawfully issued instructions and otherwise created conditions for unlawful privatisation of a large number of State-owned health care facilities, plots of land, and other assets. Furthermore, the reports also found that there had been a number of breaches of accounting requirements, instances of mismanagement of State budgetary resources allocated to the Ministry of Health Care, undocumented or improperly documented use of large amounts of money, and so on. It appears that these three reports were among the most decisive pieces of evidence on which the applicant’s eventual conviction was based. In particular, the Assize Court stated in its judgment that these reports confirmed that the applicant had committed acts of abuse of official powers and embezzlement of public funds. 23.     During the hearings, the applicant complained that he was not allowed time to confer with his lawyers in a confidential setting in the course of the hearings, and that whereas the hearings lasted a full day each time, he was not allowed to meet his lawyers at the detention facility at weekends and on other non-working days. In particular, by a letter of 17   March 2007, he complained to the MNS about the MNS Detention Facility’s refusal to allow his lawyers to enter the facility for meetings with the applicant at weekends. Furthermore, in his complaints about the Assize Court judges made in late March and early April 2007, the applicant complained, among other things, that the judges had ignored his complaints concerning inadequate time and facilities for meetings with his lawyers and that the court had repeatedly refused the defence’s requests for short adjournments to the hearings in order to allow the applicant and his lawyers to hold confidential discussions concerning their defence strategy. Instead, they had been forced to confer with each other in the presence of prosecutors and judges. 24.     According to the applicant, the Assize Court essentially ignored the above complaints. According to the Government, the Assize Court examined the applicant’s complaints about meetings with his lawyers and, in particular, on 30 March 2007 adjourned the hearing for the defence to confer and prepare a representation. Also, the Assize Court sent a letter to the acting head of the MNS Detention Facility, reminding the latter of the applicant’s right to meet with his lawyers and requesting him to allow such meetings on days when no hearings were scheduled. (b)     Various requests by the applicant concerning examination of additional witnesses 25.     During both the preliminary and the trial hearings, the applicant made a number of requests to the Assize Court concerning various substantive and procedural matters, including examination of additional witnesses, as summarised below. (i)     In respect of charges relating to privatisation fraud and abuse of official power 26.     On 15, 22 and 28 February and 6, 7, 12 and 30 March 2007, the applicant requested the court to summon and hear a number of witnesses in connection with the accusations against him of creating conditions for unlawful privatisation and sale of State property and other abuses of official powers. 27.     In these submissions the applicant contested the findings contained in the three audit reports of 27 June, 11 August and 18 December 2006 (see paragraph 22 above). He argued that those findings were wrong and mutually contradictory, and claimed that some of the “experts” who had worked on the relevant audits had either refused to sign those reports or had signed them with reservations. In his submissions the applicant repeatedly insisted that the court summon and hear as witnesses a number of those experts who had worked on the audits and authored the reports, including the head of the State Financial Control Department of the Ministry of Finance and three other experts from that ministry, an auditor of the Chamber of Auditors, a section head of the State Committee for Management of State Property, the Deputy Minister and two other high ‑ ranking officials of the Ministry of Economic Development, and so on. 28.     Furthermore, the applicant noted that, whereas he was accused of having created conditions for unlawful privatisation and sale of State property which belonged to the Ministry of Health Care, under domestic law the agencies responsible for privatisation of State property were the State Committee for Management of State Property (formerly the Department of Management and Privatisation of State Property) and the Ministry of Economic Development. Only these agencies had the authority to dispose of State property. As such, these State agencies had ultimately carried out and approved the sale and privatisation of the assets in question, and officials of these agencies had signed the relevant final acts. The applicant further argued that his role (as Minister of Health Care and Chairman of the State Commission on Reforms in the Health Care System) in the privatisation procedure was limited to merely submitting proposals to the President and the Cabinet of Ministers for items to be included in lists of various assets suggested for privatisation, as well as giving his confirmation to the Ministry of Economic Development on a case-by-case basis that he did not object to the privatisation of specific State-owned facilities which were on the books of the Ministry of Health Care. Therefore, even if the relevant assets had been privatised unlawfully, he could not be held responsible for it, and the officials of the State Committee for Management of State Property and the Ministry of Economic Development were responsible for the entire privatisation process and for any failure to detect abuse or unlawfulness. For these reasons, the applicant repeatedly insisted in his submissions that the court summon and examine as witnesses the Chairman of the State Committee for Management of State Property and the former Minister of Economic Development (the former Minister of Economic Development, Mr Farhad Aliyev, was tried and convicted in separate criminal proceedings at around the same time in connection with, inter alia , charges of alleged corruption and a number of abuses of official power). 29.     At the preliminary hearing of 15 February 2007 the Assize Court examined the above request and heard the parties’ submissions in connection with it. The prosecution submitted that, at this stage, this request was premature because the question whether it was necessary to examine any additional evidence should be decided after the judicial examination of the prosecution material submitted to the court. Having heard the parties’ submissions, the Assize Court refused the applicant’s request without providing any reasoning. 30.     On 22 February 2007 the Assize Court examined the applicant’s repeated request and refused it on the ground that it had been raised prematurely at the preliminary hearing stage and that it would be examined at the trial hearing stage. 31.     As regards the applicant’s repeated requests to the same end made on 28 February and 6, 7 and 12 March 2007, the Assize Court refused them during various trial hearings, noting that it would determine whether it was necessary to hear additional witnesses at a later stage. 32.     During the trial hearing of 30 March 2007 the applicant submitted the same request again. The Assize Court refused the request. It noted that during previous trial hearings which had been held in the meantime it had already heard representatives of the State Committee for Management of State Property and examined all relevant privatisation-related and other documents signed by officials of this agency: therefore the part of the applicant’s request seeking that the appropriate officials of this agency be heard was no longer relevant and should be rejected. As regards the request to call the experts who had conducted the audits and authored the reports of 27 June, 11 August and 18 December 2006, the Assize Court refused this part of the applicant’s request too, noting that if the court considered, once the relevant reports had been read out at the subsequent hearings, that there were indeed some contradictions in those reports and that it was necessary to seek clarification, the court could decide to grant the request at one of the future hearings and to call those experts to testify. 33.     It appears that at the subsequent hearings the Assize Court did not take up this matter again. 34.     The court’s judgment of 20 April 2007 (see below) was silent in respect of the applicant’s procedural requests for additional witnesses to be heard. (ii)     In respect of other charges 35.     A large number of individuals had been questioned by the investigation authorities during the pre-trial investigation, with the purpose of establishing and proving the allegations of corruption by Ministry of Health Care officials, including the applicant, in connection with applications for pharmaceutical licences. Not all those questioned by the investigation authorities were ultimately included in the list of prosecution witnesses to testify against the applicant during the trial. In particular, a number of individuals who stated during pre-trial questioning that they had not been asked for, and had not given, a bribe when they made their licence application were not called to testify during the trial. On 30 March and 2   April 2007 the applicant asked for eleven specifically named individuals who had stated at the pre-trial stage that they had not given any bribes in exchange for approval of their applications for a licence to be called as witnesses. It appears that he intended to use these witnesses’ statements to “disprove” the prosecution’s accusations concerning corruption. These requests were refused. 36.     Furthermore, in connection with various other charges, the applicant repeatedly requested that the authors of the expert reports on valuation of privatised and other properties, the new Minister of Health Care and some other employees of that ministry, the chairman of the State committee for admission of students to higher education institutions, the deputy chairman of the Yeni Azerbaijan Party, various officials of the President’s office, several investigators who had conducted various stages of the pre-trial investigation, and others, be called as witnesses. These requests were also refused. (c)     The verdict and sentence 37.     By a judgment of 20 April 2007 the Assize Court found the applicant guilty as charged on all counts under criminal case no. 76932, and sentenced him to eleven years’ imprisonment with confiscation of property and three years’ prohibition on holding official positions in public service. The court found that the applicant had caused in excess of AZN 15,000,000 in financial damage by his criminal actions, and that he was responsible for compensating for this damage, as described below. 38.     Initially, the court allowed the civil claim in part, ordering the in ‑ kind transfer of part of the unlawfully privatised real-property assets back to the Ministry of Health Care. This covered part of the financial damage caused. On the other hand, the court found that some of the unlawfully privatised assets were now owned by bona fide purchasers, and therefore dismissed the civil claim in the part relating to those assets. 39.     As regards the pecuniary damage remaining to be compensated for after the partial upholding of the civil claim, the court found that the applicant remained responsible for damage in the amount of AZN 527,087 personally, and in the total amount of AZN 7,937,822 jointly and severally with three other criminal defendants. In compensation the court ordered, applying the confiscation sanction under Article 179.3.2 of the Criminal Code, that the following private property of the applicant be confiscated: (a)   various precious metals and jewellery items valued at AZN 1,040,486, which had been found in his home; (b) USD 1,309,295 in cash found in his home; (c) EUR 884,475 in cash found in his home; (d) AZN 8,984 in cash found in his home; (e) eleven houses and apartments, some of them with auxiliary premises such as garages, collectively valued at AZN   3,655,179.90; and (f)   a car valued at AZN 54,000. 3.     Appeals 40.     The applicant appealed, claiming innocence and arguing, among other things, that his convictions on all counts had been based on inadmissible, irrelevant or insufficient evidence, that he had not been given adequate time and facilities to prepare his defence and to meet with his lawyers in confidential circumstances, and that despite his repeated requests the investigating authorities and the trial court had not sought to hear certain witnesses whose statements could have been crucial for the outcome of the case. The other criminal and civil defendants also appealed, on various grounds. 41.     On 21 September 2007 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the part of the Assize Court’s judgment which related to the applicant. The applicant and his lawyers participated in the appeal hearings. 42.     The applicant lodged an appeal on points of law reiterating his complaints. Hearings in this appeal were held in the presence of the applicant’s lawyer, but in the applicant’s absence. On 16 January 2008 the Supreme Court dismissed the applicant’s appeal and upheld the parts of the lower courts’ judgments which related to the applicant. B.     The applicant’s health and medical treatment received 1.     Summary of the relevant facts 43.     Many years before the events concerning the present case, the applicant, then at an early age, had suffered from pulmonary tuberculosis. It appears that he had been treated successfully and his tuberculosis had been in remission since then. 44.     Prior to the applicant’s arrest, in February 2005 he underwent a magnetic nuclear resonance tomography (“MNRT”) in Munich, Germany, and was diagnosed with “herniation of L3-L4 intervertebral disc”. It was recommended that therapeutic treatment be continued and that ultimately surgery would be necessary if the symptoms persisted. 45.     After his arrest, from 20 October 2005 to 20 April 2007 the applicant was detained in the temporary detention facility of the MNS. From 20 April 2007 to 28 September 2007 he was kept in Detention Facility no. 1. He was then transferred to Penal Facility no. 13, where he is currently serving his prison sentence and where he is kept in a large dormitory designed for more than 100 prisoners. According to the applicant, the conditions of detention in all of these facilities were bad (see paragraphs 71-79 below). 46.     While in detention, the applicant complained of health problems on a regular basis. The following is a summary of the accounts of the applicant’s medical treatment in detention submitted by the applicant and the Government. 47.     On 2 February 2006 the applicant was examined by MNS medical experts and was diagnosed with the following conditions: spinal disc herniation; osteochondrosis; progressing hypertension, stage I; unicameral cyst on the left kidney not entailing a loss of the kidney’s function; a post ‑ cholecystectomy condition; chronic persisting hepatitis in the remission phase; and mild neurotic reactions. The experts considered that his condition was not critical and that outpatient treatment was sufficient. 48.     On 16 January 2006 the applicant was examined by the head physician of a neurosurgery hospital and was prescribed conservative treatment and a new MNRT. According to the relevant medical report, the applicant refused this treatment. However, according to the applicant, he did not refuse to undergo a new MNRT as the report of 16 January 2006 had indicated. 49.     On 16 May 2006 the applicant was examined by the Chief Phthisiologist of the Ministry of Health Care and on 20 May 2006 by the Head of the Neurology Centre; neither examination revealed any need for surgery. 50.     From 25 February to 8 March 2006 and from 30 May to 8 June 2006 the applicant had medical examinations on an inpatient basis in the Neurological Unit of the Ministry of Justice’s Medical Facility. The applicant was diagnosed with spinal disc herniation and was offered a new MNRT before a decision was made on whether there was a need for surgery. According to the relevant records, the applicant declined this proposal and received only conservative treatment. 51.     However, according to the applicant, he did not refuse an MNRT or surgery. He claimed that the medical records concerning his alleged refusal did not “reflect reality”, as they did not bear his signature. He noted that the Ministry of Justice’s neurological unit lacked a neurosurgery department and specialists to carry out surgery, so he requested surgery in one of the neurosurgery clinics in Baku, but his request was not answered. According to him, his treatment in the Ministry of Justice’s medical facility was terminated abruptly and he was returned to his cell. 52.     According to the relevant medical records, when the applicant was transferred to Detention Facility no. 1 on 20 April 2007 he had no serious complaints about his health. On 1 and 9 June 2007 he was examined by experts of the neurology and therapy units of the Ministry of Justice’s Medical Facility and no need for either inpatient or outpatient treatment was identified at this time. According to the relevant records, on 2 and 4 June 2007 the applicant refused to undergo blood and urine tests. On 6 June the applicant, in the presence of his lawyers, refused to undergo an ultrasound examination. In September 2007 it was proposed that the applicant undergo an MNRT in a private medical clinic (the Tusi Clinic) in order to determine whether surgery was needed. The examination was scheduled for 25   September, but did not take place. According to the Government, the applicant refused to go to the Tusi Clinic at the last moment. According to the applicant, he did not refuse to undergo any tests and the relevant records were falsified. 53.     According to the Government, in January and February 2008 it was suggested three times that the applicant be transferred to the Ministry of Justice Medical Facility in connection with his complaints about pains in his back, but he refused those offers. According to the applicant, in the winter of 2008 he was indeed offered transport to the Medical Facility, but in an “iron-covered unheated lorry”, which was not suitable for his health. As the applicant could not stand or sit comfortably because of pains in his back and legs, and as transportation in such a lorry would be very hard for him to endure, he requested in writing to be transported in an ambulance, lying down, offering to pay any transportation costs himself. This request was refused. 54.     According to the applicant, he continued to suffer from severe pain in his back and lower extremities due to the herniation of the intervertebral disc. His detention in a cold unventilated cell in Penal Facility no. 13 aggravated his health problems. 2.     The Court proceedings and subsequent medical treatment 55.     On 14 August 2008 the applicant, without providing detailed information about the nature of his illnesses, requested the Court to indicate to the Government under Rule 39 of the Rules of Court that he should be provided with adequate treatment and with conditions of detention which were appropriate for his illness. In reply, the applicant was requested to provide more detailed information about the nature of his ailments and complaints. The applicant complied with this request. He submitted, inter alia , that urgent surgery was necessary to treat his herniated disc. 56.     On 16 September 2008 the Government was requested, under Rule   49 § 3 of the Rules of Court, to provide information concerning any medical treatment provided to the applicant during the entire period of his detention. In reply, the Government submitted the information summarised above, supported by a number of medical records. The applicant was given an opportunity to comment on the Government’s submissions; these comments, where relevant, are also included in the above summary. 57.     Having regard to the parties’ submissions, on 25 November 2008 the President of the Chamber decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, the following interim measures, applied until further notice: “-     the applicant be immediately transferred to the prison medical facility of the Ministry of Justice; -     at the earliest possible time and without any undue delays on both sides, a medical panel be set up on a parity basis, the Government and the applicant each appointing three members from among the qualified medical experts in Azerbaijan, to diagnose the applicant’s specific problems (in particular, the herniated disc problem) and to conclude whether any long-term or immediate treatment, including surgery, is required to treat the problem(s); -     on the basis of the findings of the above medical panel, the Government design and submit to the Court [by 20 January 2009] an appropriate and detailed plan of the applicant’s treatment.” 58.     On 19 January 2009 the Government informed the Court about the measures taken. 59.     In particular, according to the documents submitted by the Government, on 12 December 2008 the applicant was transferred to the Medical Facility of the Ministry of Justice. A joint medical panel was composed on a parity basis. The panel consisted of two neurosurgeons, two phthisiologists, and two uro-nephrologists. During the period from 22 to 24   December 2008 a number of medical tests were carried out on the applicant, including an MNRT, urine test, blood test, biochemical tests, ultrasound and others. The medical panel examined the applicant several times. Additionally, cardiologists, gastroenterologists and dentists were invited to carry out necessary tests and examinations. 60.     On 10 January 2009 the medical panel issued its final opinion, in the presence of the applicant and his lawyers. The panel found that the applicant was suffering from the following primary and secondary conditions: a herniation of the L3-L4 spinal disc; osteochondrosis; mild hypertension, stage II; residual signs of inactive (cured) tuberculosis of the right lungs; unicameral cyst on the left kidney; chronic colitis; and signs of first-degree dysbacteriosis. However, the panel unanimously concluded that his condition was not critical and that no surgery was required. His overall health was considered satisfactory. It was noted that he was fully autonomous and could walk using a cane. The diagnosed pathologies were chronic and slow to develop, requiring “conservative” treatment, which could be carried out either on an inpatient or an outpatient basis. 61.     The panel designed a detailed long-term plan for treatment for the applicant’s health problems, noting that for the first month the applicant would receive inpatient treatment in the Medical Facility of the Ministry of Justice, while thereafter such inpatient treatment could be replaced with outpatient treatment in the prison. The relevant treatment, including a detailed list of medications and recommendations, was prescribed. The panel’s opinion indicated that the applicant agreed with the diagnosis and the treatment plan. 62.     On 2 February 2009 the applicant submitted his comments on the Government’s submissions. While he appeared to argue against the Government’s allegedly wrong “interpretation” of some of the joint medical panel’s findings, he did not expressly contest the panel’s conclusions or the prescribed treatment plan. 63.     On 12 February 2009 the President of the Chamber decided to lift the interim measures previously indicated under Rule 39 of the Rules of Court. 64.     The treatment prescribed by the joint medical panel was carried out on an inpatient basis in the Medical Facility of the Ministry of Justice up to 16 March 2009. 65.     On 7 March 2009 the applicant was examined by a neurosurgeon who was not a member of the joint medical panel. He noted that there had been positive progress of the applicant’s condition and found no necessity for further treatment of the herniated disc, but recommended a spinal corset. 66.     On 14 March 2009 the applicant was examined by the two neurosurgeons who were members of the joint medical panel. The examination did not reveal any pathology in the applicant’s peripheral nervous system. Taking into account the applicant’s complaints of pain, they recommended applying two different types of medicinal ointment, to the backbone and left thigh areas. 67.     On 16 March 2009 the applicant was transferred back to Penal Facility no. 13. According to the Government, his medical treatment was continued on an outpatient basis, as prescribed by the joint medical panel. According to the applicant, the treatment did not comply with the panel’s prescriptions. 68.     Following the applicant’s repeated complaints of pain, on 10 April 2009 he was examined by a neurosurgeon and was prescribed treatment with Reton, a therapeutic ultrasonic device. According to the Government, within a short period of time the Medical Sanitary Unit of Penal Facility no.   13 had acquired this device and the treatment was followed through. According to the applicant, he did not receive this treatment. 69.     With regard to preventative treatment against the recurrence of tuberculosis, the joint medical commission had prescribed anti-tuberculosis medication including Rifampicin and Izoniazid. The treatment was scheduled to start in March 2009. However, the applicant refused to take Rifampicin and asked for Pirazinamid instead. The applicant later agreed to take Rifampicin and the treatment began on 8 April 2009. 70.     From April 2009 the applicant was treated on an outpatient basis by means of daily administration of two drugs for the regulation of blood pressure, two for the prevention of the recurrence of tuberculosis and two ointments for alleviation of pain resulting from the herniated spinal disc. He was able to spend a “considerable part” of the day in the open air outside his cell. However, according to the applicant, this treatment was ineffective, as it did not cure his illnesses or alleviate his condition. C.     Conditions of detention 1.     The applicant’s version 71.     From 20 October 2005 to 20 April 2007 the applicant was held in a single-person cell in the detention facility of the MNS, which was poorly lit during the daytime. The light was not switched off at night. 72.     From 20 to 30 April 2007 the applicant was held in cell no. 119, designed for four inmates, in Detention Facility no. 1. The surface area of the cell was 9.6 sq. m, or 2.4 sq. m per occupant. 73.     From 30 April 2007 to 28 September 2007 the applicant was held in another cell in Detention Facility no. 1, cell no. 123, which was designed for eight inmates. The area of the cell was 15.84 sq. m, or 1.98 sq. m per occupant. The cell was unventilated. The air inside was humid, and the cell was smelly and stuffy. It was too hot inside. There was no wall or other form of separation between the toilet area and the table and beds. The applicant had to eat his meals at the table in close proximity to the toilet. 74.   In both the MNS Detention Facility and Detention Facility no. 1 the applicant was allowed only half an hour’s “outdoor exercise” per day, which was confined to small areas specially designated for this purpose. There was no radio or television or other form of in-cell entertainment in those establishments. The applicant was allowed to read only official State newspapers. 75.     Since 28 September 2007 the applicant has been serving his sentence in Penal Facility no. 13. He is held in a 225 sq. m dormitory, which was designed to hold 128 inmates. According to the applicant, most of the time the dormitory was occupied at full capacity (128   inmates), however occasionally there were fewer inmates when some were released after the expiry of their prison terms. 76.     The air inside the dormitory is stale and humid and filled with cigarette smoke. The inmates hung their laundry to dry inside the dormitory (presumably due to the absence of proper laundry facilities). 77.     The dormitory has no heating or permanent water supply, and no natural gas supply. In winter the temperature inside dropped below freezing. In this connection, in response to a request from the applicant’s lawyer, the head of the Azerbaijani Committee against Torture (a non-governmental organisation) informed the former by a letter of 30 December 2007 that he had personally visited the applicant in Penal Facility no. 13 on 25 December 2007 and witnessed that: (a) there was no heating system in the dormitory where the applicant was held; (b) the floor in the dormitory was made of stone; and (c) there were no natural gas pipes in the dormitory. 78.     There are only seven showers and fourteen toilets available to a total of about 700 to 950 prisoners held in Penal Facility no. 13. The toilets are in bad sanitary condition and have no running water for days, so that the inmates were forced to bring bottles of water with them and stand in a queue to use the toilet. 79.     In all the places he was detained the applicant had to use bedding and clothing brought by his family, as he was not provided with those items. The applicant was not provided with the special-diet meals that he felt he needed because of his health, so he ate only the food brought to him by his family in packages twice a month. 2.     The Government’s version