CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 novembre 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 } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .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 } .s69A82CF5 { margin-top:36pt; margin-bottom:12pt; text-align:left }   Communicated on 10 November 2016   FIFTH SECTION Application no. 29656/07 Mushfig MADATOV against Azerbaijan lodged on 20 June 2007 STATEMENT OF FACTS The applicant, Mr Mushfig Madatov, is an Azerbaijani national, who was born in 1967 and lives in Baku. He is represented before the Court by Mr   E.   Sadigov, a lawyer practising in Azerbaijan. 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 the charges against him At the material time the applicant was serving a sentence at penal facility no. 16 (“the prison”) in the Bina settlement. The applicant shared a cell with Mr N.S. On an unspecified date Mr N.S.’s mobile phone call history was checked by the Organised Crime Department of the Ministry of Internal Affairs (“the OCD”). Based on the list of persons whom Mr N.S. had contacted, several persons, including Ms T.H., Ms T.I., Ms D.R. and Ms L.M., were summoned to the OCD and questioned. Ms T.H., Ms T.I., Ms D.R. and Ms L.M. made the following statements against the applicant and Mr N.S.: (a)     Ms T.H. stated that in 2002 Mr N.S. had called her friend, Ms D.R., threatened the latter and demanded that she come to the prison. Ms D.R. agreed to do so. At the prison Mr N.S. raped Ms D.R. Then in mid ‑ September 2002 Mr N.S. again called Ms D.R., threatened her and demanded that she bring one of her girlfriends to the prison. Seeing that Ms D.R. was in a difficult situation, Ms T.H. agreed to go with her. At the prison Mr N.S. raped Ms D.R. and the applicant raped Ms T.H. Then the applicant threatened her against complaining to the law-enforcement agencies. (b)     Ms T.I. also stated that at the end of September 2002 Mr N.S. had called Ms D.R., threatened the latter and demanded that she bring one of her girlfriends to the prison. Seeing that Ms D.R. was in a difficult situation, Ms T.I. agreed to go with her. At the prison Mr N.S. raped Ms   D.R. and the applicant raped Ms T.I. Then the applicant threatened her against complaining to the law-enforcement agencies. (c)     Ms D.R. gave statements similar to those of Ms T.H. and Ms T.I. (d)     Ms L.M. stated that in mid-September 2002 Mr N.S. had telephoned her and told that he had seen her on television at a beauty contest and liked her. Mr N.S. threatened her and demanded that she come to the prison. She already knew that on many previous occasions Mr N.S. had raped her girlfriend, Ms P., by deceit. Therefore Ms L.M. agreed to go and meet Mr N.S. At the prison she met Mr N.S., a man of approximately thirty years old. Mr N.S. asked her if she was afraid of him or not and spoke to her harshly. The applicant protected her from Mr N.S., took her to another room and raped her. Then Mr N.S. threatened her against complaining to the law-enforcement agencies. It appears that when questioned subsequently, Ms L.M. testified that Mr   N.S. had also attempted to rape her at the prison. Based on the above statements, a criminal investigation against the applicant began. It appears that he was suspected of raping Ms   T.H., Ms T.I. and Ms L.M. According to the applicant, since he was confined to the prison where he was serving his sentence and did not have access to a lawyer, he had no information about any investigative proceedings against him. On an unspecified date in May 2005 the applicant was charged with rape committed by a group of accomplices, rape committed by threatening the victim or another person with death or with serious bodily harm, repeated rape and making death threats or threats of serious bodily harm. On 1 June 2005 the applicant was transferred from the prison to a pre ‑ trial detention facility. 2.     The applicant’s trial On an unspecified date in 2005 the trial against the applicant began at the Court of Serious Crimes. The trial concerned the applicant and six other persons, including Mr N.S. According to the applicant, he was not given an opportunity to familiarise himself with the case file before the trial. The applicant also claimed that the defence had not been informed about the court’s preliminary hearing, which was conducted in a closed session. At the beginning of the trial the applicant stated that he was not guilty of the crimes of which he had been accused, and that he would make a statement at the end of the proceedings. When questioned by the court, Ms D.R. retracted the statements she had given at the investigation stage, explaining that she had been forced by the OCD investigator to give those statements. She testified that she had known Mr N.S. since 2002, had been in a good relationship with him, and had visited him four times. Ms T.H. also retracted her statements against the applicant. She testified that on the date in question, she and her friend, Ms D.R., had had a meal with the applicant and Mr N.S. at the prison. She had then had consensual sexual intercourse with the applicant. Neither the applicant nor Mr N.S. had forced her and Ms D.R. to do anything. According to the applicant, after Ms T.H. had been heard, the judge announced a break. During the break the applicant used foul language in the courtroom in respect of the Ministry of Internal Affairs and the chief prosecutor and members of his family. As a result of that behaviour, the judge removed the applicant from the courtroom on that date and for the remainder of the first-instance hearings. Ms T.I. also retracted the statements she had given at the investigation stage, explaining that she had been forced to give those statements at the OCD. She testified that she and Ms D.R. had willingly visited the applicant and Mr N.S. Ms L.M. testified that Mr N.S. had threatened to have her forcefully transported to the prison. The incident happened in 2004 and, being afraid of Mr N.S.’s threats, she had agreed to go and meet him. At the prison Mr   N.S. had spoken to her rudely. The applicant had protected her, taken her to another room and raped her. According to the applicant, Ms T.I. and Ms L.M. were heard hastily and neither he nor his lawyer had an opportunity to question them. In addition, since the crime of which he was accused had allegedly been committed at the prison, the applicant requested the court to summon and question the officers serving there. The court did not grant that request. The applicant was not given an opportunity to give a final statement. The trial court considered the statements given by the applicant at the beginning of the trial as a refusal to testify. It also considered the statements given at the hearing by Ms T.H., Ms T.I. and Ms D.R. as insincere, and based its judgment on the statements they had given at the pre-trial investigation stage. On 7 October 2005 the Court of Assizes found the applicant guilty of rape committed by a group of accomplices (Article 149.2.1 of the Criminal Code), rape committed by threatening the victim or another person with death or with serious bodily harm (Article 149.2.4 of the Criminal Code), repeated rape (Article 149.2.5 of the Criminal Code) and making death threats or threats of serious bodily harm (Article 134 of the Criminal Code). The court sentenced the applicant to thirteen years’ imprisonment. According to the applicant, the judgment was pronounced without the participation of his lawyer or himself. The applicant appealed. In addition, Ms T.H., Ms T.I. and Ms D.R. submitted appeals in favour of the applicant. On 31 July 2006 the Court of Appeal dismissed the appeals. It amended the judgment of the first-instance court, removing the applicant’s conviction under Article 134 of the Criminal Code because criminal responsibility for that offence had become time barred. The applicant’s sentence was reduced to eleven years’ imprisonment. The applicant lodged a cassation appeal. In addition, Ms L.M. wrote to the Supreme Court stating that she had no complaints or claims against the applicant. On 4 May 2007 the Supreme Court changed the decision of 31 July 2006, reducing the applicant’s sentence to seven years’ imprisonment. The applicant did not attend the hearing of 4 May 2007. COMPLAINTS Invoking Article 6 of the Convention, the applicant complained that he had not been afforded a fair hearing in the domestic criminal proceedings. He complained, in particular, that he had not been afforded sufficient time and facilities to prepare his defence; that the defence had been placed in a disadvantageous position during the domestic proceedings; that he had been unable to properly examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf; 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 of the Convention? In particular, (i) was the principle of equality of arms respected; (ii) was the applicant afforded adequate and sufficient time and facilities to prepare his defence; (iii) was he able to examine witnesses against him and to obtain the attendance of witnesses; and (iv) was his right to a reasoned judgment respected?   When was the applicant’s lawyer given access to his criminal case file for the first time?   Were the applicant and his lawyer informed about the first-instance court’s preliminary hearing?   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.