CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 avril 2022

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text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s35008A5F { width:18.55pt; display:inline-block } .s90B2F37D { width:135.76pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } FIFTH SECTION CASE OF FATULLAYEV v. AZERBAIJAN (No. 2) (Application no. 32734/11)     JUDGMENT   Art 6 § 1 (criminal) • Fair hearing • Applicant not given opportunity to effectively present main defence, during criminal proceedings for drug possession, that drugs had been planted during a personal search in prison • Applicant’s inability to effectively challenge decisive evidence and adduce evidence in his favour, in the absence of reasons by the domestic court • Applicant’s allegations dismissed by courts merely by relying on statements by prison authorities and without considering his journalistic activities which made him a potential target Art 34 • Hinder the exercise of the right of petition • Seizure of case files, including on the applicant’s pending application before the Court, from the office of the applicant’s representative   STRASBOURG 7 April 2022 FINAL   07/07/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fatullayev v. Azerbaijan (no. 2), The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Mārtiņš Mits,   Ganna Yudkivska,   Stéphanie Mourou-Vikström,   Lətif Hüseynov,   Lado Chanturia,   Mattias Guyomar, judges, and Victor Soloveytchik, Section Registrar, Having regard to: the application (no.   32734/11) 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 Eynulla Emin oglu Fatullayev ( Eynulla Emin oğlu Fətullayev ) (“the applicant”), on 7 April 2011; the decisions to give notice to the Azerbaijani Government (“the Government”) of the complaints concerning Articles 6, 10, 18 and 34 and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 15 March 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant complained in particular 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 and fabricated evidence; he had not been given an opportunity to effectively challenge that evidence and to adduce evidence in his favour. The applicant also complained that the seizure of his case file from the office of his lawyer had been in breach of his right of individual application without hindrance under Article 34 of the Convention. THE FACTS 2.     The applicant was born in 1976 and lives in Baku. He was initially represented by Mr I. Aliyev, and, from 7 January 2019, by Mr E. Sadigov, lawyers based in Baku. 3.     The Government were represented by their Agent, Mr Ç. Əsgərov. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Background information The applicant’s earlier case before the Court 5 .     At the time of the events complained of the applicant was a journalist, and the founder and chief editor of the newspapers Gündəlik Azərbaycan and Realniy Azerbaijan , widely known for publishing articles criticising the Azerbaijani government and various public officials. The applicant had been sued for defamation in a number of sets of civil and criminal proceedings instituted following complaints by various high-ranking government officials. 6 .     In 2007 the applicant was convicted, in two sets of criminal proceedings, of defamation, threat of terrorism, incitement to ethnic hostility , and tax evasion – in particular, on the basis of two articles published by him. The applicant was sentenced to imprisonment for eight years and six months. Those events were the subject of the Court’s judgment in Fatullayev v.   Azerbaijan (no.   40984/07, 22 April 2010) , where the Court found violations of Articles 6 §§ 1 and 2 and 10 of the Convention. 7 .     In November 2010 the applicant’s convictions for defamation, threat of terrorism and incitement to ethnic hostility were quashed, following the Court’s judgment in the above-cited case of Fatullayev . 8.     The events complained of in the present case occurred while the applicant was serving his above-mentioned sentence at Penal Facility No. 12 (“the penal facility”). Articles published by the applicant while he was in the penal facility and the alleged attacks and provocations against him 9 .     While in the penal facility, the applicant wrote several articles and had them (with the help of third persons) published on an Internet-based media outlet called Mediaforum . In one of the articles the applicant alleged that in June 2009 inmates had rioted against the penal facility authorities and that those authorities had tried to “hush it up”. In an article entitled “My new arrest” ( mənim yeni həbsim ) published on 21   December 2009 the applicant, inter alia , gave information about his case pending before the Court (see paragraph 6 above) and declared that he might possibly be sentenced again on some new, fabricated charges (the applicant did not submit copies of his articles). 10 .     According to the applicant, he wrote the latter article because he had deduced from certain earlier events that, ultimately, he would be “framed” for a crime that he had not committed. In particular, he had been subjected to several attacks and “provocations” aimed at implicating him in criminal offences for which he could then be held liable: in 2008 he had been physically attacked by some inmates; in June 2009 some inmates had tried to make him join in the above-mentioned riot; and in September 2009 the governor of the penal facility had called him to his office and questioned him, saying that a high ‑ ranking official had asked whether he had been using drugs. Furthermore, via an acquaintance of his the applicant had received threats made by a certain public official that he would remain in prison indefinitely if he continued to pursue his journalistic enquiries – in particular, if he publicised and sent to the Court information that he had uncovered about the death of his friend, Elmar Huseynov, a journalist (see Huseynova v.   Azerbaijan , no. 10653/10, 13 April 2017). Criminal investigation against the applicant A personal search of the applicant and a search of the inmates’ dormitories 11 .     On 28 December 2009, a penal facility officer, K.S., submitted a written report to the governor of the penal facility, saying that he had received “operational information” according to which the applicant and four other inmates (I.Z., G.A., F.G. and S.S.) had recently “exhibited signs of drug use”. On the same date, in reply to K.S.’s report, the governor of the penal facility (A.Ag.) authorised a personal search of the applicant and of those inmates and a search of their dormitories. 12 .     On 29 December 2009 at around 9.30 a.m, the applicant and the other inmates mentioned above were taken to the office of K.S. and were searched by penal facility officers (Fa.S., B.G., E.I., A.Ah. and Fe.S.), in the presence of attesting witnesses – two inmates (A.B. and T.D.) and two employees of the penal facility (I.I. and Sh.S.). 13.     As a result of the search two wrapped plastic packages were found on the applicant – one hidden in the sleeve of his jacket and the other in his shoe. One similar package was also found on one of the other inmates (S.S.). 14.     Before being searched the applicant requested to be allowed to call his family and to ask his lawyer to be present at the search. That request was refused. 15.     According to the search records, the packages found on the applicant contained yellowish powder that resembled a narcotic substance and had a specific smell. 16 .     After the body search the applicant was placed in a punishment cell and, on the same date, a search of the inmates’ dormitories was also conducted, with the participation of the same attesting witnesses. No forbidden items were found as a result of that search. Initial expert examination of the packages found on the applicant 17 .     On the same date, 29 December 2009, the packages found on the applicant were sent by the penal facility authorities for an initial expert examination ( ilkin ekspertiza ). The expert report, issued on the same day, concluded that the yellowish sandy powder contained in the packages weighed in total 0.223   grams and was “home-made” ( kustar ) heroin. Further investigative measures 18.     The penal facility authorities sent the collected documents and physical evidence to the investigations unit of the Garadagh district police office. 19 .     On 30 December 2009 the investigator in charge of the case ordered expert examinations of the applicant’s blood and urine and of his jacket and shoe in order to test for traces of drugs; the investigator also ordered an expert examination of the applicant’s general health, including a narcology examination (see paragraphs 20-27 below). He also questioned the applicant and a number of witnesses and held confrontations between the applicant and some of the witnesses. (a)    Expert examinations of the applicant’s blood and urine samples and of his jacket and shoe for traces of drugs 20 .     On 30 December 2009 a 10-millilitre blood sample and a 20-millilitre urine sample were taken from the applicant for expert examination ordered by the investigator. To conserve the blood sample a special preserving agent was added to it. 21 .     Later, on the same day, a 5-millilitre blood sample was taken from the applicant and given to his lawyer, I.A. According to the applicant, on unspecified dates his lawyer asked several medical laboratories to examine that sample for traces of drugs, but none of them agreed to perform the tests. 22.     The investigator asked the experts in charge to determine whether the applicant’s blood and urine contained traces of drugs and, if so, which ones. 23 .     A report dated 18 January 2010, prepared by two experts, G.H. and M.A., concluded that the applicant’s blood and urine contained narcotic substances such as morphinan (one of the metabolites of heroin), amphetaminil (one of the phenylalkylamine group of drugs) and flunitrazepam ‑ M   (Nor)   HY (a 1,4 benzodiazepine). The analysis was conducted using the thin-layer chromatography technique, colour tests, microcrystal tests, hydrolysis and other scientific methods. 24 .     A separate expert report dated 22 January 2010 established that the applicant’s shoe and jacket bore traces of heroin. (b)    The applicant’s general health and narcology expert examination 25 .     On 30 December 2009 a doctor-narcologist examined the applicant in person. Blood and urine samples were again taken from him for the purposes of a general health examination. The applicant was also examined by a neuropathologist. 26 .     A report dated 19 January 2010, prepared by a committee composed of narcology experts, concluded that (i) the applicant’s psychological state was stable, (ii) he had no health issues and was not a drug user, (iii) he did not need compulsory treatment, and (iv) there were no visible traces of drug administration on his body. 27 .     However, on the basis of the conclusions set out in the above ‑ mentioned report of 18 January 2010 (see paragraph 23 above), the committee also concluded that there had been occasions when the applicant had used heroin, amphetamine and benzodiazepine; accordingly, it recommended that he be registered as a drug user, for “prophylactic” purposes. Charges against the applicant 28 .     On 31 December 2009 the investigator charged the applicant under Article 234.1 of the Criminal Code with the illegal possession and holding of narcotic substances (without any intent to sell) in an amount exceeding the amount necessary for personal use (“illegal possession of drugs”). The applicant’s trial 29.     On 29 March 2010 the investigator prepared an indictment against the applicant, which was filed with the Garadagh District Court, following which the applicant’s trial began. 30 .     The indictment stated, inter alia , that on 26 February 2010 it had been decided to initiate new criminal proceedings under Article 234.2 of the Criminal Code in order to establish the source from which the drugs found on the applicant had been obtained and to sever those proceedings from the criminal proceedings against the applicant. Arguments and requests submitted by the defence to the trial court 31 .     At a preliminary hearing of the first-instance court, the Garadagh District Court, and during the examination of the case on the merits the applicant alleged that the drugs had been planted on him by the authorities and that the criminal case against him had been fabricated because of his journalistic activities and his case pending before the Strasbourg Court (namely the above-cited case of Fatullayev ), and in order to force him to cooperate with the government. The applicant submitted to the first-instance court the articles that he had written and had been published in Mediaforum (see paragraph 9 above). He also alleged that, before the drugs had been planted on him, he had been threatened and subjected to physical attacks and provocations aimed at implicating him in certain criminal offences for which he could then be held liable (see paragraph 10 above). 32 .     The applicant argued in particular that (i) the alleged “operational information” indicating that he had recently “exhibited signs of drug use” had been forged and either the informants who had allegedly provided such information were purely imaginary, or, if there had indeed been any such informants, they had been participants in the scheme aimed at framing him; (ii) despite the fact that the penal facility was a high-security institution, where drugs were not readily available, the investigator in charge of the case had not even tried to question him about the source of the drugs, which demonstrated the bogus character of the criminal proceedings; (iii) an expert fingerprints examination would show that he had never touched the packages containing the drugs; and (iv) in the penal facility there would have been many possibilities for drugs to be planted in his personal belongings (for example, when he had been taking a shower or eating in the cafeteria). 33 .     Relying on those arguments, the applicant requested the court to examine in the same proceedings the source from which the drugs had allegedly been obtained, instead of making that question a subject of separate proceedings (see paragraph 30 above); to identify, summon and question the informants (if there had indeed been any); and to order an expert fingerprints examination of the packaging in which the drugs had been wrapped. 34.     Furthermore, the applicant complained that the personal search conducted on him had taken place in the absence of a search warrant issued by a court, and that his request to be allowed to call his family and to invite his lawyer to be present during the search had been denied. 35 .     The applicant also alleged that the expert report of 18   January 2010 was unreliable. He argued in particular that the report contradicted the above ‑ mentioned general health and narcology report (see paragraph 26 above) because the narcotic substances allegedly found in his blood and urine samples (see paragraph 23 above) would have had a serious impact on his psychological and physical state, whereas, according to the general health and narcology report, his psychological state had been stable, he had had no health issues and had not been a drug user (see paragraph 26 above); he accordingly argued that it was important to re-examine the blood and urine samples and to establish the level of the drugs present in them. The applicant argued that such a re ‑ examination of the blood and urine samples would reveal that they had been tampered with. 36 .     He also argued that the charts annexed to the expert report of 18   January 2010 demonstrated that the level of narcotic substances found in the samples would have been lethal if that level had indeed been present in his body. 37 .     Furthermore, the applicant complained that under the domestic law he had no right to independently commission expert examination of his blood for traces of drugs and that none of the medical laboratories that were approached had agreed to examine the blood sample given to his lawyer, I.A. The applicant requested the court to order an expert examination of that sample. He also requested the court to order an expert examination of his hair (including his body hair) and nails for traces of drugs. He argued that traces of narcotic substances remained in a person’s hair and nails for up to two years, and that such an alternative expert examination would prove that he had not used drugs. 38.     All the above-mentioned requests were dismissed by the Garadagh District Court. 39 .     Accordingly, the court ruled that there was no need to examine in the same set of proceedings the source from which the applicant had allegedly obtained the drugs, because the severing of the criminal proceedings under Article 234.2 of the Criminal Code (see paragraph 30 above) had “not created any difficulties in respect of the examination of the criminal proceedings against the applicant”. 40 .     The court also declared that questioning the informants would be of no use because the information given by those individuals “had not served as a basis for the criminal proceedings against the applicant”. 41.     From the case-file material, it is not clear on which grounds the court dismissed the applicant’s request to order an expert fingerprints examination. 42 .     Furthermore, the court found that there was no reason to doubt the reliability of the report of 18 January 2010. The court also stated that it had been “scientifically established” that traces of drugs remained in a person’s hair only for several weeks or months and in his or her nails for up to 136 days. It therefore ruled that an expert examination of the applicant’s hair and nails would be of no use because more than five months had passed since traces of drugs had been found in his blood and urine samples; furthermore, there were no technical facilities in Azerbaijan for carrying out the requested hair and nails tests. The court reached these findings after it had heard the above-mentioned expert, G.H. (see paragraphs 50-52 below). 43 .     As to the applicant’s complaint that the personal search conducted on him had taken place in the absence of a search warrant issued by a court, the court found that the domestic law relevant to personal searches conducted by a penal facility authorities on inmates did not require such a warrant. Witnesses questioned by the trial court 44 .     During the examination of the case by the Garadagh District Court a number of witnesses were questioned. 45 .     A penal facility officer, K.S. , and the governor of the penal facility, A.Ag., testified that the personal search of the applicant and the search of the dormitory where he had slept had been carried out because they had received “operational information” according to which the applicant had exhibited signs of drug use. 46 .     A.Ag. also stated that the applicant’s allegations were false. In particular, no riot had occurred in the penal facility in June 2009, and the applicant had not been subjected to any attacks or provocations or questioned on whether or not he had been using drugs. 47 .     K.S. and several other penal facility officers (A.Ab., B.G., A.Ah., Fa.S., Fe.S., and E.I.), attesting witnesses I.I., Sh.S., A.B. and T.D., and inmates I.Z., G.A., F.G. and S.S. (see paragraphs 11-12 above) in their respective testimony described the personal search conducted on the applicant and the search of the dormitory in which he had slept. 48 .     Furthermore, K.S. and A.Ag. testified that in the premises of the penal facility it had been impossible for any third persons to have planted the drugs on the applicant. A.N., an inmate, testified that security guards had guarded the dormitories in the penal facility and that he had not heard of any third persons interfering with inmates’ clothes. He also testified that there had been instances when the applicant had left his clothes outside the washing area before entering a shower room. However, other inmates, O.B., R.M. and Az.Ah. , testified that the applicant had not been in the habit of leaving his clothes outside the washing area before entering the shower and had kept them inside the shower room. 49 .     O.B. also testified that in a private conversation with him the applicant had once said that, while he had been waiting for the Court to deliver its judgment in case of Fatullayev (cited above), he had felt tired and under mental pressure and would gladly use drugs if they were available, and that he had used drugs before, during his military service. O.B. also testified that he had seen the applicant under the influence of drugs in June or July 2009. O.B. declared that he knew the signs of being under drug influence because he had been a drug user himself. 50 .     The experts confirmed the result of their relevant reports (see paragraphs 17, 23-24 and 26-27 above). 51 .     In addition, addressing the applicant’s arguments that the level of narcotic substances found in the samples would have been lethal if that level had indeed been present in his body, G.H., the expert, stated that the defence had misunderstood the meaning of the report of 18 January 2010 – the charts annexed to the report did not demonstrate the level of the narcotic substances found in the applicant’s blood and urine samples. The charts in question only showed which narcotic substances had been detected. The experts had never been asked to determine the level of those substances. 52 .     In response to the defence’s relevant questions G.H. also stated that some parts of the samples taken from the applicant remained in the possession of the expert agency and could still be tested; and that drugs could be detected in a person’s hair for up to two years. The applicant’s conviction and his appeals 53.     On 6 July 2010 the Garadagh District Court convicted the applicant for illegal possession of drugs, as charged. In finding the applicant guilty the court relied on the above ‑ mentioned expert reports (see paragraphs 17, 23-24 and 26-27 above) and on most of the witness testimony (the court disregarded A.N.’s testimony that there had been instances when the applicant had left his clothes outside the washing area before entering a shower room and the expert testimony given by G.H. noted in paragraph 52 above). 54 .     The court also examined the applicant’s articles published in Mediaforum (see paragraph 9) and found that the article published on 21   December 2009 “[had] not contained any specific points indicating a threat that the applicant would be [charged] again, as had been claimed by [him]” ( məqalədə təqsirləndirilən şəxsin dediyi kimi onun yenidən həbs olunması təhlükəsinə işarə olunan konkret məqamlar yoxdur ). On the basis of the testimony of the governor of the penal facility (see paragraph 46 above), the court also found that the applicant’s allegations that a riot had taken place in June 2009 and that he had been subjected to attacks and provocations (see paragraph 10) were false. Furthermore, the court declared that there was no need to examine the applicant’s allegations regarding the death of journalist Elmar Huseynov (ibid.) because there was no causal relationship between those allegations and the criminal case against the applicant. Consequently, the court dismissed the applicant’s arguments that the drugs had been planted on him by the authorities and that the criminal case against him had been fabricated. 55.     The court sentenced the applicant to two years and six months’ imprisonment. 56.     The applicant appealed against the judgment. He reiterated his earlier arguments and complained about the Garadagh District Court’s refusal to grant his requests. It can be seen from the case-file material that he also lodged his requests again (in particular, his requests for an expert fingerprints examination and for his hair and nails to be tested for traces of drugs). 57.     The applicant’s appeal was examined by the Court of Appeal “without judicial investigation” ( məhkəmə istintaqını aparmadan ). On 25 January 2011 the Court of Appeal dismissed the applicant’s appeal and upheld the Garadagh District Court’s judgment. The appellate court also dismissed the applicant’s requests on the same grounds as the trial court. 58.     The applicant lodged a cassation appeal, reiterating his earlier complaints. 59.     On 3 November 2011 the Supreme Court dismissed the appeal as unfounded and upheld the lower courts’ judgments. Search and seizure in the office of the applicant’s representative 60.     On 8 August 2014 criminal proceedings were instituted against Mr   Aliyev, who represented the applicant before the Court. Those criminal proceedings were the subject of a separate application lodged by him with the Court (see Aliyev v. Azerbaijan , nos. 68762/14 and 71200/14, 20   September 2018). On 8 and 9   August 2014 the investigating authorities seized a large number of documents from Mr Aliyev’s office, including all the case files relating to applications pending before the Court, which were in the possession of Mr   Aliyev as a representative. The file relating to the present case was also seized in its entirety. The facts relating to the seizure and the relevant proceedings are described in more detail in Annagi Hajibeyli v.   Azerbaijan (no. 2204/11, §§   21-28, 22   October 2015). 61.     On 25 October 2014 some of the seized documents were returned to Mr Aliyev’s lawyer. Further developments 62.     The applicant was released in May 2011, following a presidential pardon freeing him from the two-and-a-half-year prison sentence that he had received for illegal possession of drugs. 63.     From the material submitted to the Court it appears that as of November 2011, the above-mentioned separate criminal proceedings, initiated in order to establish the source of the drugs found on the applicant (see paragraph 30 above), were pending without any developments. RELEVANT LEGAL FRAMEWORK AND INTERNATIONAL DOCUMENTS 64 .     The relevant parts of Article 37 of the Code of Criminal Procedure of 2000 (“the CCrP”) provided as follows: Article 37. Types of criminal prosecution “37.1.     Depending on the nature and severity of the offence, a criminal prosecution shall be carried out [by means of bringing] private, semi-public or public charges, in accordance with the provisions of this Code. 37.2.     A criminal prosecution [by means of bringing] private charges shall take place only upon a complaint being lodged by the victim concerning offences under Articles 147 [defamation], 148 [insult], 165.1 [infringement of copyright and related rights] and 166.1 [infringement of patent and invention rights] of the Criminal Code and shall be discontinued in the event of reconciliation between the victim and the accused before the court begins its deliberations. 37.3.     A criminal prosecution in the form of [the bringing of] semi-public charges shall take place upon a complaint [being lodged] by the victim or, in the circumstances provided in   Article 37.5 of this Code, at the initiative of the prosecutor for offences under Articles 127, 128, 129.2, 130.2, 131.1, 132-134, 142.1, 149.1, 150.1, 151, 156 ‑ 158, 163, 175-177.1, 178.1, 179.1, 184.1, 186.1, 187.1, 190.1, 197 and 201.1 of the Criminal Code. ... 37.6.   In respect of other offences which are not provided in Articles 37.2. and 37.3. of this Code, a criminal prosecution shall be carried out in the form of [the bringing of] public charges.” 65 .     The relevant parts of Article 92 of the CCrP read as follows: Article 92. Defender “92.9.     A [defence lawyer] exercises the following rights in respect of the instances and in the manner prescribed by the present Code: ... 92.9.9.     ... in the event of a criminal prosecution [by means of bringing] private charges, [the right] to obtain a report [prepared by] an expert or the opinion of a specialist, on a contractual basis; 92.9.10.     to familiarise himself or herself with a decision adopted by the prosecuting authority ordering an expert examination and with the relevant expert report ...” 66 .     The relevant parts of Article 264 of the CCrP provided as follows: Article 264. Principles of conducting expert examination “264.3.     [At the pre-trial stage of the proceedings,] an expert examination shall be conducted on the basis of the investigator’s decision or, (in the event of a criminal prosecution [by means of bringing] private charges) on the basis of a written request lodged by the defence party. A decision ordering an expert examination shall be binding on the persons concerned.” 67 .     The relevant parts of Article 323 of the CCrP provided as follows: Article 323. Lodging of requests by parties to criminal proceedings prior to judicial investigation and dealing with those requests “323.1.     Before starting a judicial investigation, the presiding judge shall find out, one by one, from each party to the criminal proceedings whether or not they [plan to lodge any requests] for the following: ... 323.1.2.     inviting of additional witness, expert or specialist; 323.1.3.     ordering of an expert examination; ... 323.7.     The court has the right, on its own initiative, ... to order an expert examination, ... as well as to render a decision excluding unacceptable documents from a court hearing.” 68 .     The relevant parts of Article 331 of the CCrP provided as follows: Article 331. Expert examination during court hearing “331.1.     If at the pre-trial stage an expert examination was conducted, then during the judicial investigation, the report prepared by the expert at the pre-trial stage shall be examined. ... 331.3.     Having examined the expert report, the court has the right to order a repeated or additional expert examination – following a request lodged by one of the parties to the criminal proceedings or on its own initiative – after hearing each of the parties. 331.4.     If during the initial investigation of the criminal case an expert examination is not ordered, then during the court proceedings the parties to the criminal proceedings may lodge a request asking [the court] to order an expert examination.” 69 .     Extract from the “Guidelines for Testing Drugs under International Control in Hair, Sweat and Oral Fluid”, issued by the United Nations Office on Drugs and Crime, 2014: “[H]air analysis is now considered to be the most efficient tool to investigate drug-related histories, particularly when the period of use needs to be tested back to many days or even months before the sampling. On these grounds, following recent suggestions from international associations, such as the Society of Hair Testing, hair analysis can become not only a fundamental tool in forensic toxicology and medicine, but also a way to find traces of illicit drugs in subjects claiming abstinence for months before sampling. Following the success of advances in hair analysis, other “alternative biological specimens”, such as sweat and oral fluid, have gained popularity as forensic specimens, being able to provide information in specific circumstances. As depicted in table 1, these alternate matrices offer different detection windows. In most instances, they show significantly different metabolic profiles when compared to traditional blood and urine testing. Table 1. Detection windows for drugs in various biological matrices Specimen     Detection window Blood (serum)   - Several hours to 1-2 days Urine     - Several hours to 3 days Oral fluid     - Several hours to 1-2 days (or more for basic drugs) Sweat (patch)   - Weeks Hair     - Months/years ...” THE LAW ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 70.     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 and fabricated evidence, and because he had not been given an opportunity either to effectively challenge that evidence against him or to adduce evidence in his favour. The relevant part of Article   6 of the Convention reads: “1.     In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ...” Admissibility 71.     The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions 72 .     The applicant submitted that the main evidence against him – the drugs – had been planted on him. He argued in particular that in the penal facility there had been a number of possibilities for drugs to be placed in his personal belongings. Neither the investigator in charge of the case nor the domestic courts had investigated how he had allegedly obtained the drugs during his time in the penal facility. Furthermore, he had not been given an opportunity to effectively challenge that evidence or to adduce evidence in his favour because the relevant requests lodged by him (see paragraphs 32 ‑ 33 above) had not been granted by the domestic courts. 73 .     The applicant also submitted that the expert report of 18 January 2010 (see paragraph 23 above), which constituted the other important evidence against him, was unreliable. He argued in particular that the report contradicted the health and narcology report (see paragraph 26 above) because the narcotic substances allegedly found in his blood and urine samples would have had a serious impact on his psychological and physical state, whereas according to his general health and narcology report, his psychological state had been stable, he had had no health issues and had not been a drug user; he furthermore argued that if the domestic courts had allowed his request that the samples be re-examined in order to determine the level of drugs in them, the results would have revealed that those samples had been tampered with. Furthermore, he had not been given an opportunity to effectively challenge the expert report of 18 January 2010 or to adduce expert evidence in support of his arguments, because, firstly, under the domestic law he, unlike the prosecution, had had no right to order expert examinations independently and, secondly, the relevant requests lodged by him (see paragraphs 35 and 37 above) had not been granted by the domestic courts. 74 .     Furthermore, the applicant argued that the personal search to which he had been subjected had been carried out without a search warrant issued by a court, and that his request to be allowed to call his family and to invite his lawyer to be present during the search had been refused. 75.     The Government submitted that the criminal proceedings against the applicant had been fair. They argued in particular that the judgments and decisions of the domestic courts had been reasoned and based on lawful, impartial and comprehensively assessed evidence. The applicant had been able to cross-examine all witnesses on behalf of the prosecution and all the experts, and to call his own witnesses. Even though the applicant had not been able to commission an independent examination of the blood and urine samples taken from him on 30 December 2009, his lawyer could have collected fresh samples himself and submitted them for expert examination in one of the numerous medical facilities or laboratories existing in the country. The Court’s assessment (a)    Applicable principles 76.     While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see, among many others, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017). 77.     It is not, therefore, 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. The question that must be answered is whether the proceedings as a whole – including the way in which the evidence was obtained – were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, among many others, Lisica v. Croatia , no. 20100/06, § 48, 25   February 2010). 78.     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 an 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, as must the circumstances in which it was obtained and whether these circumstances cast doubt on its reliability or accuracy. While no problem regarding fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, among many others, Bykov v.   Russia [GC], no. 4378/02, § 90, 10   March 2009). In this connection, the Court also attaches weight to whether the evidence in question was or was not decisive for the outcome of the criminal proceedings ( see, among many others, Vukota-Bojić v. Switzerland , no. 61838/10, § 95, 18 October 2016). 79.     The Court also recalls that the concept of a fair hearing within the meaning of Article 6 § 1 of the Convention includes the principle of equality of arms, which requires a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a disadvantage vis-à-vis their opponent (see, among many others, Faig Mammadov v. Azerbaijan , no. 60802/09, § 19, 26   January 2017). 80.     Although   Article 6 does not go as far as requiring that the defence be given the same rights as the prosecution in taking evidence,   the accused should be entitled to seek and produce evidence “under the same conditions” as the prosecution.   Clearly, those “conditions” cannot be exactly the same in all respects;   thus,   for example,   the defence cannot have the same search and seizure powers as the prosecution. However, as can be seen from the text of Article 6 § 3 (d) the defence must have an opportunity to conduct an active defence – for example, by calling witnesses on its behalf   or adducing other evidence (see Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 728, 25 July 2013). 81.     The principle of equality of arms is also relevant in matters related to the appointment of experts in proceedings (see Khodorkovskiy and Lebedev v. Russia (no. 2) , nos. 42757/07 and 51111/07, § 499, 14 January 2020). The mere fact that the experts in question are employed by one of the parties does not suffice to render the proceedings unfair. Although this fact may give rise to apprehension as to the neutrality of those experts, such apprehension, while having a certain importance, is not decisive. What is decisive, however, is the position occupied by the experts throughout the proceedings, the manner in which they performed their functions and the way the judges assessed the expert opinion that those experts presented. In ascertaining the experts’ procedural position and their role in the proceedings, the Court takes into account the fact that the opinion given by any court-appointed expert is likely to carry significant weight in the court’s assessment of the issues within that expert’s competence (see Shulepova v. Russia , no. 34449/03, § 62, 11   December 2008, and Poletan and Azirovik v. the former Yugoslav Republic of Macedonia , nos.   26711/07 and 2 others, § 94, 12 May 2016). 82.     Within the context of expert evidence, the rules on its admissibility must not deprive the defence of the opportunity to challenge it   effectively – in particular by introducing or obtaining alternative opinions and reports.   In certain circumstances, refusal to allow an alternative expert examination of material evidence may be regarded as a breach of Article 6   §   1 (see Stoimenov v. the former Yugoslav Republic of Macedonia , no. 17995/02, § 38 et seq., 5   April 2007, and Matytsina v. Russia , no.   58428/10, § 169, 27 March 2014). 83.     The Court also recalls that according to established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. While courts are not obliged to give a detailed answer to every argument raised, it must be clear from the decision that the essential issues of the case have been addressed and that a specific and explicit reply has been given to the arguments which are decisive for the outcome of the case (see, among others, Karimov and Others v. Azerbaijan , nos. 24219/16 and 2 others, § 29, 22 July 2021). Moreover, in cases relating to interference with rights secured under the Convention, the Court seeks to establish whether the reasons provided for decisions given by the domestic courts are automatic or stereotypical (see Moreira Ferreira , cited above, § 84). An issue with regard to a lack of reasoning of judicial decision