CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 avril 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sE208486F { font-family:Arial; color:#ff0000 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 27 April 2016   FIFTH SECTION Application no. 28727/07 Mushfig SALIFOV against Azerbaijan lodged on 2 July 2007 STATEMENT OF FACTS The applicant, Mr Mushfig Nariman oglu Salifov, is an Azerbaijani national, who was born in 1981 and lives in Baku. He is represented before the Court by Mr. L. Hincker and Mr K. Nasibov, lawyers based in Strasbourg and Baku respectively. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s arrest and charges against him According to the applicant, on 25 January 2005 he attended a sports event at the “Əl oyunları” sports venue. At the entrance he was checked by a metal detector and let in. At around 7.45 p.m. when the event ended and the applicant was leaving the venue he was arrested. According to official records, the applicant was arrested based on intelligence information, received by the Organised Crime Department of the Ministry of Internal Affairs (“the OCD”) at around 1 p.m. on the same date, that he had been illegally carrying a firearm. The applicant had been searched at the place of his arrest and a firearm (a revolver and bullets) had been found on him. The search had been carried out in the presence of two attesting witnesses, F.N. and N.H. According to the applicant, he was arrested by plain clothed police officers. His bodyguard was with him at the moment of the arrest. He was not subjected to a search at the place of the arrest, but was taken to the OCD and was searched there. The firearm found during the search had been planted on him by officers of the OCD in custody. Mr F.N. and Mr N.H. had already been present at the OCD. On an unspecified date during the investigation the applicant was questioned without participation of a lawyer and gave self-incriminating statements. Later he retracted those statements, claiming that he had been forced to give them. No fingerprint examination of the firearm had been carried out, despite the applicant’s requests. The applicant was charged with illegally carrying a firearm. On unspecified date Mr O.D. was questioned as an aggrieved person. He gave testimony against the applicant. Based on Mr O.D. testimony the applicant was also charged with extortion by threats. He was accused of obtaining USD 1,200 from Mr O.D., a restaurant owner, by use of threats and of forcing the latter to provide restauration services for free. 2.     The applicant’s trial On an unspecified date the trial against the applicant began at the Court of Serious Crimes. At the trial, police officer N.M. testified that on 25 January 2005 he had participated in the arrest operation ( əməliyyat tədbiri ) against the applicant. The applicant had been searched and a firearm had been seized from him at the place of the arrest, but the record of personal search had been drawn up at the OCD because it had been a dark and rainy evening. Officer S.A. (who had been chief of the operation against the applicant) and officer O.A. gave statements similar to that of officer N.M. Attesting witness F.N. testified that on 25 January 2005 he had been on a street, attending his personal business, when two officers had approached him and asked to participate at an arrest operation. He had agreed and witnessed the applicant’s arrest and search. The search had been conducted at the place of the arrest and a firearm had been seized from the applicant. He also had witnessed the officers draw up a search report at the OCD. Attesting witness N.H. was not heard during the trial. The applicant stated that the firearm had been planted on him and that he had been forced to give self-incriminating statements. Apparently he also submitted to the trial court copies of records showing that on several prior occasions both Mr F.N. and Mr N.H. had participated as attesting witnesses in other criminal cases in which officer S.A. had been involved. The applicant’s bodyguard Mr A.A. testified that the applicant had not been searched at the place of the arrest. The police took both him and the applicant to the OCD. Mr O.D. retracted his statements against the applicant given at the pre-trial stage. He explained that he had been threatened and forced by the officers of the OCD to give those statements. Mr O.D. testified that the applicant was his family friend, and that he did not have any claim or complaint against the latter. Apparently Mr O.D. also submitted to the court some photographs depicting him, his family and the applicant together. Three employees of Mr O.D.’s restaurant (Ms M.S., Mr R.Z. and Mr   R.M.) testified that Mr O.D. had instructed them not to charge the applicant for meals at the restaurant. Mr R.M. testified in addition that the applicant had always wanted to pay for his meals. None of those witnesses testified that the applicant had either threatened or extorted money from Mr   O.D. The trial court considered the statements given by the applicant at the hearing as unreliable. It also considered Mr. O.D.’s statements given at the hearing as insincere, and based its judgment on the statements given by Mr   O.D. at the pre-trial stage. The trial court also noted that the fact that Mr F.N. and Mr N.H. had participated as attesting witnesses in other criminal cases did not negate the fact that a firearm had been found on the applicant. According to the applicant, the trial court ignored his requests to summon attesting witness N.H. and to order fingerprint examination of the firearm. On 7 October 2005 the Court of Serious Crimes found the applicant guilty of extortion by threats committed by an organised gang (Article   182.3.1 of the Criminal Code) and of carrying a firearm (Article   228.1 of the Criminal Code). The applicant was sentenced to twelve years’ imprisonment. The applicant appealed. In addition, Mr. O.D. submitted an appeal in favour of the applicant. On 31 July 2006 the Court of Appeal dismissed the appeals. The court made changes in the judgment of the first-instance court. It requalified the applicant’s offence as falling under Articles 182.2.1 (extortion by threats committed by a group of persons in conspiracy) and 182.2.4 (extortion by threats causing considerable damage to an aggrieved person) of the Criminal Code instead of Article 182.3.1. The court reduced the applicant’s sentence to nine years’ imprisonment. The applicant lodged a cassation appeal. Mr O.D. also submitted a cassation appeal. On 4 May 2007 the Supreme Court changed the decision of 31 July 2006. The court reduced the applicant’s sentence to seven years’ imprisonment. As a ground for its decision the Supreme Court referred to the absence of a complaint by Mr O.D. The applicant’s lawyer was not informed about the hearing of 4 May 2007. COMPLAINT Relying on Article 6 of the Convention the applicant complained that he had not been afforded a fair hearing. He complained in particular that his right to be defended by a lawyer of his choice had been restricted during the initial stages of the proceedings; that the defence party had been placed in a disadvantageous position; that he had been unable to properly examine witnesses against him; and that his right to a reasoned judgment had been violated.     QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention? In particular, (i) was the principle of equality of arms respected; (ii) was the applicant’s right to be defended by a lawyer of his choice restricted during the initial stages of the proceedings; (iii) was he able to examine witnesses against him; and (iv) was his right to a reasoned judgment respected?   Were the applicant and his lawyer informed about the hearing of 4 May 2007 of the Supreme Court?   2.     The parties are requested to submit copies of all documents relating to the criminal proceedings, including the transcripts of the hearings and the applicant’s appeals and requests.   The parties are also requested to submit copies of the documents, submitted by the applicant to the first-instance court, regarding the fact that Mr F.N. and Mr N.H. had participated as attesting witnesses in other criminal cases.