CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 avril 2023

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margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; 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 } .s8773B649 { width:25.2pt; display:inline-block } .sB81C5FD1 { width:141.42pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }     FIRST SECTION CASE OF DURSUN ALIYEV v. AZERBAIJAN (Application no. 20216/14)     JUDGMENT Art 6 § 1 (criminal) • Fair hearing • Applicant deprived of an effective opportunity to challenge reliability of key evidence against him, oppose its use and adduce evidence in his favour • Inadequate review of applicant’s objections on reliability and probative value of prosecution evidence • Failure to provide adequate reasons for procedural decisions depriving applicant of an effective opportunity to challenge them before higher courts   STRASBOURG 27 April 2023   FINAL   27/07/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Dursun Aliyev v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Péter Paczolay,   Krzysztof Wojtyczek,   Lətif Hüseynov,   Ivana Jelić,   Gilberto Felici,   Raffaele Sabato , judges , and Renata Degener, Section Registrar, Having regard to: the application (no.   20216/14) 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 Dursun Israfil oglu Aliyev ( Dursun İsrafil oğlu Əliyev – “the applicant”), on 21 February 2014; the decision to give notice to the Azerbaijani Government (“the Government”) of the complaint concerning Article 6 §§ 1 and 3 (c) of the Convention and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 21 March 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant complained that the criminal proceedings against him on charges of drug dealing had been in breach of Article 6 §§ 1 and 3 (c) of the Convention because, among other things, he had been convicted on the basis of fabricated or otherwise unreliable evidence; he had not been given an opportunity to effectively challenge that evidence and to adduce evidence in his favour; and during his initial questionings at the pre-trial stage of the criminal proceedings against him he had been deprived of access to effective legal assistance. THE FACTS 2.     The applicant was born in 1961 and lives in Baku. He was represented by Mr J. Suleymanov, a lawyer based in Baku. 3.     The Government were represented by their Agent, Mr Ç. Əsgərov. 4.     The facts of the case may be summarised as follows. BACKGROUND INFORMATION 5.     The applicant had originally worked as an operations officer in the criminal investigations department of the Binagadi District Police Office (“the police office”). 6 .     According to the applicant, he was in conflict with the chief of the criminal investigations department of that police office, H.H. In 2010 a new chief of the police office, A.M., was appointed. Immediately after that, A.M.   started forcing the old staff to resign in order to employ people closer to him. H.H. also pressured the applicant to resign. When the applicant refused to do so, the conflict worsened and both H.H. and A.M. started to harass him. Consequently, in 2011 he was demoted and started to work as an operations officer at police station no. 6 of the same police office. CRIMINAL PROCEEDINGS AGAINST THE APPLICANT Search of the applicant’s office and seizure of drugs 7 .     According to a record of 5 July 2011 prepared by K.A., an officer of the Organised Crime Department of the Ministry of Internal Affairs ( Baş   Mütəşəkkil Cinayətkarlıqla Mübarizə İdarəsi – “the OCD”), F.G., who worked as a driver and had a previous conviction, had made a statement ( şifahi ərizə ) on the same day reporting that the applicant had told him that he (the applicant) would sell him drugs; that in the past the applicant had regularly engaged in selling drugs; and that he (F.G.) was ready to participate as a “buyer” acting under police instructions in order to expose the applicant’s illegal actions. 8.     On the same day, K.A. decided to conduct “an operation” ( əməliyyat axtarış tədbirləri ) and a search of the applicant’s office ( xidməti otağa baxış ) based on F.G.’s above-mentioned statement. 9.     According to another record prepared by K.A., he gave F.G. two banknotes to the value of 10 Azerbaijani manats (AZN) each and bearing serial numbers B41 ... and A86 ..., in the presence of two attesting witnesses, D.G. and M.A. F.G. was to use those banknotes in the operation, for the purpose of purchasing drugs from the applicant in order to expose his illegal actions. 10.     On the same day, 5 July 2011, F.G. called the applicant by phone and later, at around 2 p.m., he entered the applicant’s office while the applicant was there. B.B. (a retired police officer who was informally assisting with the work of the police office) was also present, working in the same room. 11 .     According to a search and seizure record of 5 July 2011, some time after F.G. had entered the applicant’s office three OCD officers, K.A., I.A. and E.S., together with the deputy chief of police station no. 6, A.Z., and a police officer from the same police station, M.B., knocked on the door of the applicant’s office and asked for it to be opened. However, as no one opened the door, the police officers kicked it open and entered. They were accompanied by the above-mentioned attesting witnesses, D.G. and M.A. F.G. then handed over a package wrapped in notebook paper containing a substance that looked like dried marijuana and had a characteristic smell. He also handed over a “Winston” cigarette which likewise contained a substance that looked like dried marijuana and had a characteristic smell. F.G. stated that he had bought these from the applicant for AZN 20. Then, in the presence of the attesting witnesses, the police officers searched the applicant’s office and seized a white paper package containing a substance that looked like dried marijuana and had a characteristic smell which they had found in one of the drawers of his desk. The applicant admitted that he had sold F.G. dried marijuana for AZN 20 and had thrown two AZN 10 banknotes which he had received from F.G. out of the office window. The two AZN 10 banknotes, bearing the serial numbers B41... and A86..., were found by the police officers in the backyard of the office, under the applicant’s office window, in the presence of the attesting witnesses. 12.     The applicant did not sign the above-mentioned search and seizure record. 13 .     According to the applicant, he knew F.G. as a so-called paid police “agent”, that is to say, a person who cooperates with the police by passing on information about people suspected of a crime or otherwise helps to expose those people. F.G.’s services had usually been used in drug-related cases. Before coming to the applicant’s office, F.G. had told him on the phone that he wanted to meet and provide information about a drug dealer. When F.G. entered the applicant’s office, he had closed the door behind him, approached the applicant and sat near him. In the middle of a conversation with the applicant, F.G. had asked him for some drugs. The applicant had understood that that was a scheme against him when F.G. took out some marijuana from his pocket and asked whether he could smoke it. The applicant had demanded that F.G. leave the room and moved towards the door to open it. At that moment three people had broken the door open and entered the room. One of them had said that they were officers of the OCD and alleged that the applicant had sold F.G. drugs for AZN 30. They had handcuffed the applicant. F.G. had said that he had bought drugs for AZN 20 and handed over a package to the officers. Then the applicant had been placed in a car and taken to the OCD and forced to make partially self-incriminating statements (see paragraph 20 below). Expert examination of the seized drugs 14 .     It appears that on the same day, 5 July 2011, the Forensic Expert Examination Centre examined the substance seized in the applicant’s office and concluded that it was dried marijuana, and that the marijuana found in the applicant’s desk weighed 0.7 grams, whereas the marijuana in the package and the cigarette handed over by F.G. weighed 1.3 grams. 15 .     The substance in question was also examined later by the same Forensic Expert Examination Centre. An expert report issued on 18 August 2011 essentially confirmed the conclusions of the above-mentioned initial report, but concluded that the “Winston” cigarette contained only tobacco. Narcology expert examination of F.G. 16.     It appears that F.G. was examined by the Narcology Centre of the Ministry of Healthcare, which concluded in a report dated 6 October 2011 that F.G. was a drug addict. The applicant’s arrest and questioning 17.     After the operation of 5 July 2011 (“the operation”) K.A. prepared a report on the applicant’s arrest as a suspect. The report stated, among other things, that the applicant “declared that his rights had been explained to him [and] he did not want a lawyer”. 18.     The applicant refused to sign that report. 19.     The applicant was taken to the OCD. Then he was questioned three times and gave partially self-incriminating statements (see paragraphs 21-24, 27-28 and 31 below). 20 .     According to the applicant, during his detention at the OCD on 5 July 2011 he was ill-treated by officers of the OCD. He was severely beaten and had a paroxysmal tachycardia attack. During that attack he was told that he would be given his medication only if he signed the above-mentioned search and seizure record and confessed to drug dealing. He made his partly self ‑ incriminating statements because of that ill-treatment and for fear of being subjected to ill-treatment again on the days that followed. Questioning by K.A. 21 .     When questioned by K.A., the applicant stated that he had become acquainted with F.G. because of his (the applicant’s) work as a police officer; that he had got to know F.G. not only in a work-related context but also personally; that F.G. was a drug addict and had pleaded with him for drugs in exchange for help in exposing drug dealers; and that on three occasions in the past he (the applicant) had given F.G. enough marijuana for a single use, free of charge, in exchange for his help in police operations. 22.     As regards the events of 5 July 2011, the applicant stated that on that day F.G. had called him and again pleaded for drugs and, despite his refusal, had insisted on coming to his office; that he (the applicant) had given F.G. enough marijuana for a single use, free of charge; that he had then closed the door of his office at F.G.’s request and immediately afterwards the door had been kicked open by police officers; and that F.G. had handed over the marijuana he had given him to the officers. The applicant denied receiving AZN 20 from F.G. and throwing the banknotes out of his office window. 23.     As regards the origins of the marijuana he had given to F.G., the applicant stated that he had obtained it by keeping to himself some of the drugs that had been found on detained people; that his purpose in obtaining drugs that way was to use them as a reward for people who helped the police; and that unlawful methods of that kind were the most effective methods used by the police in combating drug-related crimes. 24 .     As regards the origins of the marijuana seized from his desk, the applicant stated that he had found a small amount of marijuana in a “Kazbek” cigarette dropped by N.G., a person brought to the police station at around midnight the same day. 25.     The applicant signed a record of his questioning that was prepared by   K.A. Questioning by the OCD investigator, J.D. 26.     It appears that after the applicant had been questioned by K.A., a   State-funded lawyer, Sh.A., had been appointed for him. The applicant signed a record which contained a statement that he had not objected to being represented by Sh.A. 27 .     Later on the same day, 5 July 2011, the applicant was questioned as a suspect by the OCD investigator in charge of the case, J.D. The applicant gave essentially the same statement as summarised in paragraphs 21-24 above. In addition, he stated that he had not drawn up any official record about the marijuana he had allegedly found in the cigarette dropped by N.G. because it would have been difficult in any event to prove that it belonged to N.G. 28 .     The applicant also stated that he had kept the marijuana which belonged to N.G. in his desk in order to use it in his police operations. 29.     A record of the applicant’s questioning was signed by him and the State-funded lawyer. Questioning by an investigator from the Binagadi district prosecutor’s office, E.M. 30.     On 6 July 2011 the case was transferred to the Binagadi district prosecutor’s office for further investigation. The next day it was assigned to an investigator from that office, E.M. 31 .     On 7 July 2011, the applicant was questioned as an accused person by the investigator E.M. The applicant essentially repeated his earlier statements as summarised in paragraphs 21-24 and 27 above. However, as regards the purpose of keeping the marijuana which allegedly belonged to N.G. in his desk, the applicant stated that he had intended to continue his investigation the next day but had failed to do so because he had been busy. 32.     In addition, the applicant stated that he had been beaten at the OCD to force him to incriminate himself. The applicant asked the investigator to order an expert medical examination as he had injuries on his body as a result of the ill-treatment. 33.     The applicant and a lawyer of his own choosing, S.S., who became involved in the proceedings on the same day, signed a record of the applicant’s questioning by E.M. Charges against the applicant 34 .     On 7 July 2011 the investigator, E.M., charged the applicant under Article 234.2 of the Criminal Code with the illegal acquisition and possession of a narcotic substance with intent to sell and the illegal sale of a narcotic substance (“drug dealing”). 35.     On 13 October 2011 the applicant was additionally charged under Article 309.1 of the Criminal Code with abuse of official authority. The applicant’s transfer to a Ministry of Justice pre-trial detention facility and his complaint of ill-treatment 36.     On 7 July 2011 the Binagadi District Court ordered the applicant’s detention for two months pending trial. 37 .     On 9 July 2011 the applicant was transferred from the OCD to a Ministry of Justice pre-trial detention facility. On admission to the detention facility, he was examined by a doctor, A.Sh. During this examination, several bruises were found on his body – namely bruises behind both of his ears, in the right kidney area, on his right side below his ribs and on his right shoulder. The bruises were documented in a record ( akt ) drawn up on the same day and signed by the doctor and three other staff members of the detention facility, V.H., Z.N. and I.N. 38.     On an unknown date a lawyer chosen by the applicant, A.H., who became involved in the proceedings on 16 August 2011, lodged a complaint with the Binagadi District Court, alleging that the applicant had been subjected to torture by the police at the OCD. He alleged that the applicant had been severely beaten and threatened in order to force him to sign the search and seizure record and to give self-incriminating statements. On 30   September 2011 the Binagadi District Court sent that complaint to the General Prosecutor’s Office for examination. 39 .     It appears that the prosecutor who was put in charge of the applicant’s ill-treatment complaint, T.I., questioned J.D., K.A., E.S. and other police officers involved in the criminal case against the applicant, as well as F.G., D.G., M.A. and B.B., who all stated that the applicant had not been subjected to any ill-treatment. 40.     The applicant was subjected to an expert medical examination. The above-mentioned record of 9 July 2011 concerning the applicant’s injuries was apparently also submitted to an expert (or experts) for examination. A medical expert report of 19 October 2011 stated that at the time of the examination there were no injuries on the applicant’s body; that the injuries documented in the record of 9 July 2011 were not injuries that would cause damage to health; and that the record of 9 July 2011 did not contain clear information as to the character, form and shape of the injuries, and therefore it was impossible to give any opinion about when they had been inflicted. 41.     On 20 October 2011 the prosecutor, T.I., concluded that the available evidence did not confirm that the applicant had been tortured or subjected to any other unlawful treatment. Consequently, he refused to open a criminal case in respect of the applicant’s alleged ill-treatment. He based his decision on the above-mentioned statements (see paragraph 39 above) and on the medical expert report of 19 October 2011. 42.     The applicant did not challenge the prosecutor’s decision of 20   October 2011 in the domestic courts. Later, during proceedings in the trial court, the defence explained that failure as being the result of their receiving that decision too late (see paragraph 83 below). The applicant’s requests lodged with the investigator, E.M. 43.     On 11 July 2011 the applicant asked the investigator, E.M., to conduct a fingerprint examination of the two banknotes which he had allegedly received from F.G. as a payment for the drugs. He argued that he had never touched the banknotes and that if it was true that he had received the banknotes from F.G. and then thrown them out of his window, then his fingerprints would remain on them. 44 .     On 12 July 2011 the investigator rejected that request on the ground that the banknotes had been picked up from the ground by the participants in the operation and touched by several people. 45.     The applicant also asked the investigator to examine the background of F.G., D.G. and M.A., in particular whether they had previous convictions and whether they had previously participated as attesting witnesses in other criminal proceedings. 46.     On 29 July 2011 the investigator rejected that request, on the ground that it had no relevance to the examination of the criminal case against the applicant. Questioning of the witnesses and face-to-face confrontations 47 .     The investigator, E.M., questioned several witnesses and held face ‑ to ‑ face confrontations. 48.     During his confrontations with F.G., D.G. and M.A., the applicant retracted his earlier partially self-incriminating statements and said that he had made those statements because he had been ill-treated at the OCD and feared being subjected to ill-treatment again. He gave an account of the events of 5 July 2011 similar to the one summarised in paragraphs 13 and 20 above. Furthermore, the applicant alleged that he knew F.G. and M.A. as paid police “agents” under the code names “Fedya” and “Yashar” respectively. Statements given by F.G. 49 .     During his questioning on 4 September 2011 F.G. stated that he was a driver in the jewellery trade. He also stated that he was a drug user and had a previous conviction, and that on several occasions before the events of 5   July 2011 he had bought drugs from the applicant in the latter’s office or car, or near the police office. At the OCD two AZN 10 banknotes bearing the serial numbers B41... and A86... had been given to him in the presence of attesting witnesses. After that he (F.G.) had called the applicant’s mobile phone three or four times and asked for drugs “in code”, and the applicant had said that F.G. could come to his office. He had bought marijuana from the applicant wrapped in notebook paper and in a “Winston” cigarette box, using the money he had received. He (F.G.) had emptied one of his “Winston” cigarettes. Then, when the police officers had entered the room, the applicant had thrown the two banknotes out of his office window. In one of the drawers of the applicant’s desk the police officers had found a package containing a substance that looked like dried marijuana and seized it. They also had found and seized two AZN 10 banknotes in the backyard. F.G. also stated that the applicant had claimed that he had given the marijuana to F.G. in exchange for his participation in a police operation. 50 .     When confronted with the applicant on 24 September 2011 F.G. stated, among other things, that he had received three banknotes of AZN 10 each for the operation to expose the applicant. After he had bought the marijuana from the applicant, he had filled one of his emptied “Winston” cigarettes with some of it in order to smoke it. When the police officers had entered, the applicant had been standing near the office door. The officers had seized the marijuana and the cigarette filled with marijuana from him, and also seized more marijuana which had been on the applicant’s desk and in one of the drawers of the same desk. F.G. had not been present at the scene when the banknotes had been found. Both the applicant and F.G. had been removed from the office in handcuffs. In response to a question from the applicant’s lawyer, F.G. stated that his nickname was indeed “Fedya”, but that he was not an “agent” and did not belong to any police network. Statements given by D.G. and M.A. 51 .     During his questioning on 15 August 2011 D.G. stated that on 5 July 2011 he had been approached in the street by police officers and invited to attend an operation as an attesting witness and he had agreed. Subsequently, at the OCD two AZN 10 banknotes bearing the serial numbers B41... and A86... had been given to F.G. in his presence. D.G. gave a description of the operation identical to the description given in the search and seizure record summarised in paragraph 11 above. 52 .     M.A., when he was questioned on 24 August 2011, gave the same statement as D.G. 53 .     When confronted with the applicant on 24 September 2011 D.G. stated, among other things, that when he and the police officers had entered the applicant’s office on 5 July 2011, the applicant had been sitting at his desk. On the applicant’s desk he (D.G.) had seen a package containing marijuana. Two AZN 10 banknotes and another package containing marijuana had been found in the backyard of the police station. 54 .     M.A., who was also confronted with the applicant on 24 September 2011, stated, among other things, that he was a paid “agent” under the code name “Yashar”, that he belonged to the police network of the Binagadi district police office, that he had cooperated with police station no. 4 of the same police office, and that he had known the applicant before the events of 5 July 2011 from their encounters at the Binagadi district police office. M.A. mentioned in particular that the applicant himself had once paid him his monthly payment as an “agent”. On 5 July 2011 he had come to pick up his payment at the police office, where he had been invited by police officers to attend an operation as an attesting witness. He had been told that F.G. was already with the applicant inside the latter’s office. When he and the police officers had entered the office, the applicant had been standing near the door. He had seen a small package on the applicant’s desk, and F.G. had said that the package contained drugs which he had bought from the applicant for AZN   20. In response to a question from the applicant’s lawyer as to whether, as a paid police “agent”, he had ever been questioned as a witness, M.A. confirmed that he had on two previous occasions been questioned as a witness and that he was going to be questioned at the Assize Court on that very day. Statements given by B.B. 55.     During his questioning on 8 August 2011 B.B. stated that on 5 July 2011 he had witnessed the applicant selling drugs to F.G. in his office and accepting AZN 20 in return. When the police officers broke in, the applicant had tried to throw two AZN 10 banknotes out of the office window, but because of the wind they had fallen onto his (B.B.’s) computer keyboard and he had pushed them aside. Then on his second attempt the applicant had managed to throw the banknotes out of the window. Statements given by officers K.A., E.S. and M.B. 56 .     It appears that the officers K.A. and E.S. and M.B. gave a description of the operation identical to the one given in the search and seizure record summarised in paragraph 11 above. They also referred to the results of the first expert examination of the seized drugs (see paragraph 14 above). Removal of the State-funded lawyer 57.     After signing the record of the applicant’s questioning on 5 July 2011, the State-funded lawyer Sh.A. did not attend any part of the investigation for two months and did not meet with the applicant. For that reason, and considering that the applicant had two lawyers of his own choosing, the investigator E.M. removed Sh.A. from the proceedings by a decision of 6   October 2011. The Binagadi district prosecutor’s request for information about the banknotes 58 .     It appears that the Binagadi district prosecutor’s office responsible for investigating the case did not have in its possession the originals of the two banknotes which the applicant had allegedly received from F.G., and therefore on 17 October 2011 the Binagadi district prosecutor requested information about their whereabouts from the relevant authority. In reply to that request the OCD, on behalf of the Ministry of Internal Affairs, informed the district prosecutor that the banknotes were being kept at the OCD. THE APPLICANT’S TRIAL 59.     On 27 October 2011 the investigator prepared an indictment against the applicant which was then filed with the Binagadi District Court, following which the applicant’s trial began in November 2011. Witnesses questioned by the trial court 60.     The Binagadi District Court heard a number of prosecution witnesses during the examination of the case. Most of them gave testimony differing from their pre-trial statements and the official records drawn up by the police. Consequently, those pre-trial statements were also read out in the presence of those witnesses. 61 .     Thus, in contrast to his 4 September 2011 statement, F.G. stated, among other things, that he was a driver transporting stationery products; that for the operation to expose the applicant he had received three banknotes of the value of AZN 10 each; that the applicant had sold him marijuana in two forms, dried and powdered, and it had been in two different packages, one wrapped in white paper and one in gold paper; that he had wanted to consume immediately the marijuana he had purchased from the applicant, but had no time to do so because the police officers had entered the room; and that when the door had been kicked open by the police the applicant had stood up and moved towards the window holding the money, but he (F.G.) had not seen either the applicant throwing the money out of the window or how it had been found. F.G. also stated that he had been visiting the police office regularly. In response to a question from the applicant’s lawyer, F.G. said that he had been able to enter the police office freely because he sold his stationery products there. After his pre-trial statement was read out, F.G. said that he had given contradictory statements because he had forgotten some of the details as a lot of time had passed since the events in question. 62 .     D.G. stated, among other things, that F.G. had produced drugs from his pocket, and that one package with drugs had been found in the applicant’s desk and another one had been on his desk. In response to a question from the applicant’s lawyer, D.G. said that once or twice in the past he had participated as an attesting witness in some investigative measures. 63.     M.A. declared that he wanted to confirm the statement he had given at the pre-trial stage and that he did not remember anything of the events of 5   July 2011, except for the fact that he had participated in an operation concerning drugs. In response to a question from the applicant’s lawyer, M.A. stated that he was not a police “agent”, that the matter in question was secret, and that he could not say anything on the subject. 64 .     M.A. also addressed the applicant by saying “it was always you who were imprisoning people and now for once you go to prison; the prisoners there are waiting for you impatiently”. 65 .     B.B. stated, among other things, that after the police officers entered the applicant’s office F.G. had handed over some drugs to them saying that he had bought those drugs from the applicant. B.B. also said that he had not seen the applicant either giving drugs to F.G. or receiving any money from him. 66 .     B.B. furthermore stated that the applicant had declared that the operation was a set-up to frame him. 67.     In contrast to his pre-trial statement, officer E.S. stated, among other things, that F.G. had handed over “something” in a package and said that he had bought it for AZN 20; and that he (E.S.) had not participated in the finding of the banknotes. After his pre-trial statement was read out, E.S. said that he was wrong, that he had in fact participated in the finding of the banknotes, and that he had forgotten some of the details because of the elapse of time. 68 .     Officer M.B. declared that he wanted to confirm what he had said when the official records had been drawn up since he did not have a clear recollection of the events of 5 July 2011. M.B. also stated that he had not participated directly in the operation against the applicant; that he had been shown two banknotes and two packages later on and had been told that the matter concerned drugs; and that the applicant had not been in the room when he (M.B.) had arrived but had been in a car. After his pre-trial statement was read out, M.B. said that he had not previously read his statement and that he had difficulties explaining the contradictions in his pre-trial and courtroom statements. After a confrontation with officer K.A. before the trial court, where K.A. stated that M.B. had participated in the operation from the beginning, M.B. said that he confirmed K.A.’s statement; that the applicant had been in the room when he (M.B.) had arrived; and that he had given contradictory statements because he had misunderstood the questions addressed to him and because he had remembered the events vaguely but hearing his own pre-trial statements had helped him to remember the events better. 69 .     Officer K.A. gave a statement similar to his pre-trial statement (see paragraph 56 above) and also stated that he had not known that F.G. was a drug addict with a previous conviction; and that before sending him to participate as a “buyer” in the operation the officers had not searched F.G.’s person. 70.     At the applicant’s request, the Binagadi District Court also summoned and heard the investigator E.M. and the chairman of the Anti-Torture Committee of Azerbaijan, E.B. 71 .     The investigator E.M. questioned as a witness, stated that when confronted with the applicant, M.A. had indeed said that he was a police “agent” and complained that his payment as an “agent” had been delayed for several months; and that later the relevant authorities had denied that M.A. was an “agent”. E.M. also stated that he had been told that the originals of the two banknotes had been kept at the OCD. 72 .     The chairman of the Anti-Torture Committee of Azerbaijan, E.B., questioned as a specialist, stated that when the applicant had been admitted to the pre-trial detention facility of the Ministry of Justice he had injuries on his body which had been confirmed by a record of 9 July 2011 signed by four people, including a doctor; and that in his opinion the applicant had been subjected to ill-treatment. Arguments and requests submitted by the defence to the trial court 73 .     At a preliminary hearing of the Binagadi District Court, and during the examination of the case on the merits the applicant alleged that the events of 5 July 2011 had been set up by the chief officers of the Binagadi District Police Office because he had a conflict with them and had resisted their pressuring him to resign, and that the ensuing criminal proceedings against him had been fabricated. He also gave an account of his alleged conflict with the chief police officers as summarised in paragraph 6 above and of the events of 5 July 2011 as summarised in paragraphs 13 and 20 above. 74.     In addition, the applicant repeated his pre-trial statement about the marijuana found in his desk (see paragraphs 24, 27 and 31 above). Arguments and requests relating to the reliability and personal integrity of F.G., D.G. and M.A. 75 .     The applicant argued in particular that there were several elements demonstrating that F.G., D.G. and M.A. had cooperated with the police in order to frame him. He argued that, contrary to the assertions they had made in the trial court, F.G., D.G. and M.A. were paid police “agents”. He knew F.G. and M.A. personally. Both F.G. and M.A. belonged to the network of the Binagadi District Police Office, were cooperating respectively with police stations nos. 6 and 4 of the same police office and were known under the code names “Fedya” and “Yashar” respectively. F.G. was an “agent” who reported to officer H.H. and he had his personal dossier number (which the applicant mentioned). F.G.’s services were used in “in-cell” operations. The applicant also mentioned the amounts the two were allegedly receiving monthly for their services as “agents”. Furthermore, the applicant drew the court’s attention to M.A.’s statement that he was an “agent” belonging to the network of the Binagadi District Police Office (see paragraph 54 above), to M.A.’s and D.G.’s statements in which they had admitted to participating as witnesses or attesting witnesses in a number of other criminal proceedings (see paragraphs 54 and 62 above), and to F.G.’s statement that he had been visiting the Binagadi District Police Office regularly and freely (see paragraph 61 above). 76 .     The applicant asked the trial court to examine the backgrounds of F.G., D.G. and M.A. and remove their witness testimony as unreliable (inadmissible) evidence on the basis that it had not been given in good faith and had no value. 77 .     On 4 May 2012 the trial court requested information from the Ministry of Internal Affairs on whether F.G., D.G. and M.A. were on the Ministry’s list of secret collaborators ( məxfi əməkdaşlar ). That request was transferred to the OCD, which replied that F.G., D.G. and M.A. were not registered in the list of secret collaborators of the OCD network. Arguments and requests relating to the reliability of the testimonies given by the prosecution witnesses 78 .     The applicant also noted extensive inconsistencies and contradictions in statements given by key witnesses at the pre-trial stage of the proceedings and during the trial and argued that those flaws showed that the case had been fabricated. The applicant asked the court to read those inconsistencies and contradictions in his favour. Arguments and requests relating to the reliability of the physical evidence used against the applicant 79 .     The applicant argued that during the operation F.G. had brought with him the marijuana which he had then handed over to the police officers. To support his argument the applicant referred to his above ‑ mentioned arguments about F.G.’s personal integrity and the inconsistencies and contradictions in key witness statements, the fact that before sending F.G. to participate as a “buyer” in the operation the police had not searched his person (see paragraph 69 above), and the fact that B.B. – the only person who had been present in the applicant’s office together with the applicant and F.G. on 5 July 2011 – had testified in the trial court that he had not seen the applicant selling drugs to F.G. (see paragraph   65 above). 80 .     Furthermore, the applicant argued that the criminal case file contained only a photocopy of the two banknotes which he had allegedly received from F.G. as a payment for the marijuana allegedly sold to him. He asked the court to make an order for the originals to be produced for examination in the court proceedings. The applicant emphasised that as he had been accused of selling drugs (drug dealing), the banknotes in question constituted crucial evidence against him. 81.     The trial court formally granted the defence’s request and ordered the production of the originals of the two banknotes. However, the court’s order was ignored and several reminders to the prosecution to produce the banknotes in question for examination in court were unsuccessful. Arguments and requests relating to the reliability of the applicant’s own initial partially self-incriminating statements given at the pre ‑ trial stage 82 .     The applicant also asked the trial court for an order excluding his own initial partially self-incriminating statements given at the pre-trial stage of the criminal proceedings against him as unreliable (inadmissible) evidence. He argued that he had given those statements under duress as he had been ill ‑ treated at the OCD and had feared for his life. In support of his argument the applicant referred to the record of 9 July 2011 documenting his injuries (see paragraph 37 above) and to the evidence given by E.B. (see paragraph   72 above). 83 .     The defence explained the failure to challenge in the relevant domestic courts the prosecutor T.I.’s decision of 20 October 2011 declining to open a criminal case in respect of the applicant’s alleged ill-treatment by arguing that they had received that decision too late. 84 .     The court held that by failing to challenge the decision of 20 October 2011 the applicant had demonstrated that he had accepted that decision. It also held that, in accordance with Article 65.1 of the Code of Criminal Procedure, no new decision could be taken on a matter on which a prosecuting authority’s decision was still in effect. Consequently, the court rejected the applicant’s request for the exclusion of the partially self-incriminating statements that he had made at the pre-trial stage. Arguments concerning the applicant’s access to effective legal assistance at the pre-trial stage of the proceedings 85.     The applicant complained that he had not been allowed to access the services of a lawyer of his own choosing at the initial sessions of questioning by the police. A State-funded lawyer, Sh.A., had been appointed for him without his consent and had not been present during the questioning, but had merely signed the record of it prepared by the OCD investigator, J.D. The applicant also referred to the fact that Sh.A. had subsequently been removed by a decision of the investigator E.M., for failure to carry out his duties. The applicant’s conviction and his appeals 86.     On 5 June 2012 the Binagadi District Court convicted the applicant of drug dealing under Article 234.2 of the Criminal Code and sentenced him to three years’ imprisonment. The court found that the applicant had sold marijuana to F.G. in exchange for a payment of AZN 20. In finding the applicant guilty the trial court relied on the above ‑ mentioned expert report (see paragraph 15 above), some of the testimony given by B.B. in court (see paragraph 65 above), the statements given by F.G., D.G., M.A., and officers E.S. and M.B. at the pre-trial stage as read out in the courtroom and then confirmed by those witnesses (see paragraphs 49, 51-52 and 56 above), the statements given by officer K.A. in court which were similar to his pre-trial testimony (see paragraph 56 above), and the initial partly self-incriminating statements given by the applicant at the pre-trial stage (see paragraphs 21-24, 27-28 and 31 above). 87.     The trial court found the applicant not guilty of abuse of official authority under Article 309.1 of the Criminal Code. 88 .     The applicant appealed against the judgment. He reiterated his earlier arguments and complained about the Binagadi District Court’s refusal to grant his requests. He also lodged his requests again, in particular his request for the production and examination of the originals of the two banknotes used as physical evidence against him (see, in particular, paragraphs 76, 78, 80 and   82 above). 89 .     Furthermore, in support of his allegation that F.G., D.G. and M.A. were paid “agents” cooperating with the police in fabricating the case against him, the applicant submitted new information that on 27 April 2012 D.G. had participated as an “attesting witness” in some other criminal case before the Binagadi District Court, with Judge T.A. presiding. The applicant also argued that M.A. had been brought before the trial court in handcuffs as he had been under arrest for illegally possessing a gun. The applicant also referred to a remark M.A. had addressed to the applicant during the trial court proceedings and argued that the aggressive and vengeful character of that remark had revealed his true face and exposed the fact that M.A. was not simply a neutral attesting witness (see paragraph 64 above). He also referred to the fact that F.G. had admitted that his nickname was indeed “Fedya”, and that it had been established that he was a drug addict. 90.     The applicant complained that the trial court had ignored the inconsistencies and contradictions in the prosecution witnesses’ statements. He referred in particular to the inconsistent and contradictory statements given by F.G.