CASE OF SAKIT ZAHIDOV v. AZERBAIJAN
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
5. The applicant was born in 1959 and lives in Belgium. 6. He was an independent journalist, satirist and poet who at the relevant time was working for the Azadliq newspaper. 7. At around 5 p.m. on 23 June 2006 the applicant met a friend at the Gozel Mekan café in Baku where they had a meal. At 7 p.m. they left and the applicant took a taxi home. 8. Shortly after the taxi moved off, it was stopped by four plain-clothes agents of the NDMIA. Without showing themselves, they dragged the applicant into a Jeep. He was not informed of the reasons for his arrest. After his arrest they restrained his hands and only after some time, when the vehicle was moving, did they inform him that they were police officers. 9. According to the applicant, as he was in shock during his arrest, he did not immediately notice that the officers had planted some drugs on him. However, he later realised that one of the officers, A.A., had slipped narcotic substances into his pocket, taking advantage of the fact that the other officers had restrained his hands. 10. The applicant was taken to the NDMIA, where a search was conducted. According to record no. 94 on carrying out operational measures and the seizure of physical evidence (əməliyyat tədbirinin keçirilməsi və maddi sübutun götürülməsi barədə protokol), it was carried out at 7.20 p.m. on 23 June 2006 in the presence of the applicant, some police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, 9.264 grams of a substance similar to heroin was found in his left trouser pocket. He signed the record to say that he drank alcohol, but did not use or sell drugs. He further indicated that the drugs found did not belong to him, but that he could not explain where they had come from. Moreover, it appears from record no. 95 in the case file that the search was filmed. Despite the Court’s explicit request to the Government to submit a copy of the video-recording, they did not do so. 11. Following the search, at around 7.45 p.m., the applicant was taken to the Republic Narcotics Clinic, where he underwent a urine test to determine his state of intoxication. According to him, the urine test was also a drugs test and after examination the doctor, R.M., stated that he was in a state of intoxication but was not a drug user. Record no. 1/4104 was compiled the same day containing details of the urine test. Despite the Court’s explicit request to the Government to submit copies of all documents relating to the proceedings in question, the Government failed to provide the Court with a copy of the record in question. 12. The Government did not submit any comments in respect of the applicant’s version of events. 13. It appears, however, from police report no. 922 dated 23 June 2006 submitted by the Government that on that date an operation was planned for the applicant’s arrest on the basis of operational information (əməliyyat məlumatları) suggesting that an individual named Sakit was a drug dealer and had been involved in drug dealing near the Gozel Mekan café. It was also noted in the report that he had obtained drugs from A., who lived in Veravul, a village in the Lankaran region. 14. It further transpires from the documents submitted by the Government that at 10.55 p.m. on 23 June 2006 a police investigator drew up an official record of the applicant’s arrest (cinayət törətməkdə şübhəli şəxsin tutulması haqqında protokol). The relevant part of the record reads as follows: “Reason for arrest: In accordance with Article 148 of the Code of Criminal Procedure of the Republic of Azerbaijan. 9.264 grams of heroin, which constitutes a large quantity of narcotic substances and shows the commission of the criminal offence provided for by law, were found on Zahidov Sakit Salim oglu’s person and clothes.” The record was drawn up without a lawyer present and was signed by the applicant and the investigator. 15. On 23 June 2006 a police investigator instituted criminal proceedings against the applicant under Article 234.4.3 (illegal preparation, production, possession, storage, transportation and sale of a large quantity of narcotic substances) of the Criminal Code. The decision relied on the fact that following a search that day 9.264 grams of heroin had been found on him. 16. At 11 p.m. on 23 June 2006 the investigator questioned the applicant as a suspect in the presence of his lawyer. It appears from the record of the questioning that in reply to the question regarding where, when and why he had obtained the heroin found on him, the applicant answered that he did not know when or where the drugs in question had been planted in his pocket. In reply to another question regarding whether he sold drugs, the applicant stated that it could be seen from his examination by the doctor that he did not use or sell drugs. 17. On 23 June 2006 the investigator separately questioned two attesting witnesses who had participated in the search. Their statements were identical in their wording. They stated that they had seen the drugs found in the left trouser pocket of the applicant, who had stated after the search that the drugs did not belong to him. 18. On the same day the investigator separately questioned four police officers who had participated in the arrest and search. Their statements were identical in their wording. They stated that they had received operational information that some drug dealers had been operating near the Gozel Mekan café, so they had gone to the area to determine who they were. Once they arrived, they stopped a taxi because an individual, who appeared to be in a state of intoxication and had caught their attention by his suspicious behaviour, had just taken the taxi in question. This individual, whose identity was later established, was then taken to the NDMIA where the drugs were found on him. 19. On 24 June 2006 the applicant was charged with illegal possession of a large quantity of narcotic substances with intent to sell under Article 234.4.3 of the Criminal Code. On the same day a judge of the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody, ordered his detention for a period of three months. 20. On 30 June 2006 the Court of Appeal upheld the detention order of 24 June 2006. 21. On an unspecified date in June 2006 (the date of the record of the questioning is illegible) the applicant was questioned by the investigator as an accused in the presence of his lawyer. He maintained his initial statement, pointing out that the drugs did not belong to him and had been planted. 22. On 1 July 2006 the investigator ordered a forensic medical examination to establish whether the applicant was a drug addict. On the same day the investigator also ordered a forensic chemical examination of the drugs found on him. 23. On 5 July 2006 experts issued an opinion (no. 1026) concerning the forensic medical examination. The part concerning drug use by the applicant reads as follows: “[The applicant] denies that he uses narcotic substances. He denies that the...heroin found in his trouser pocket and seized belongs to him. He does not give complete information about his history of drug use. He tries to hide his abuse of narcotic substances. During the examination no signs of obvious abstinence were revealed. He has developed an initial pathological tendency (ilkin patoloji meyl) towards narcotic substances. A psychological dependence on the use of narcotic substances is observed. A physical dependence on the use of narcotic substances is not currently observed. He denies taking narcotic substances by injection.” The conclusion of the opinion reads as follows: “During the examination it was established that Zahidov Sakit Salim oglu suffers from drug addiction at the initial stage (başlanğıc mərhələli narkomaniya xəstəliyi). This is confirmed by there being an initial pathological tendency towards narcotic substances, the results of the objective examination and the material of the criminal case. Taking into consideration that there are currently no signs of abstinence or drug intoxication and the fact that he has criticised himself for his situation, there is no need for his compulsory drug intoxication. It is advisable to register him at the local narcotics clinic.” The opinion was established on the basis of the applicant’s “general features”, without a blood or urine sample being taken. 24. On 5 July 2006 the chemical expert issued opinion no. 6930 finding that 9.228 grams of yellow sandy matter submitted for examination was home-made heroin. 25. On 22 July 2006 the applicant and his lawyer were provided with a copy of the forensic medical opinion of 5 July 2006. The applicant immediately complained to the investigator in charge of the case, contesting its conclusions. He asked the investigator to order a “commission forensic examination”, indicating that he was not suffering from drug addiction. He further complained that the drugs found on him had been planted during his arrest by officer A.A., who had taken advantage of the fact that the other police officers had restrained his hands. 26. On 24 July 2006 the investigator dismissed his complaint, indicating that there were no grounds to doubt the conclusions of the forensic medical opinion. As to the allegation that the drugs had been planted by the police, the investigator found it unsubstantiated, indicating that the applicant had not made any such statement when questioned after his arrest. 27. On 29 July 2006 the investigator issued a bill of indictment under Article 234.4.3 of the Criminal Code and filed it with the Assize Court. 28. In the course of the proceedings before the Assize Court the applicant claimed that he was innocent, insisting that the criminal case against him had been fabricated because of his journalistic and political activity, and that the drugs had been planted on him by the police officers. In this connection, he firstly submitted that the search of his person had not been carried out immediately after his arrest in the presence of the taxi driver or other individuals present at the place of his arrest, but at the NDMIA. He further submitted that the police had failed to search the taxi in which he had been arrested. However, if he had really had the drugs in his pocket, he would have thrown them into the taxi before his arrest. The police had not carried out a “real” search and had only found the drugs they had planted on him, otherwise they would have also searched the taxi. Moreover, they had failed to take its number plate and identify the driver. The applicant also pointed out that the identity of A., from whom he had allegedly obtained the drugs, had never been established by the investigation. Lastly, he submitted that in any event the drugs found on him could not be used in the proceedings because they had been obtained in breach of the relevant procedural requirements. In particular, he pointed out that Articles 207.4 and 217.1 of the Code of Criminal Procedure did not allow investigating authorities to carry out any investigative measures except an examination of the scene of the incident before the institution of criminal proceedings. However, in the present case a search of the applicant was carried out before the adoption of the investigator’s decision in that regard. 29. At the hearing, the Assize Court heard the police officers who had carried out the arrest and search of the applicant. They confirmed their statements made during the investigation. Moreover, officer A.A. stated that he had not planted anything on the applicant, and that the applicant had lied about this. 30. On 4 October 2006 the Assize Court, having reclassified the criminal charges, found the applicant guilty under Article 234.1 of the Criminal Code (illegal possession of a quantity of narcotic substances exceeding that necessary for personal use without intent to sell), and sentenced him to three years’ imprisonment. The part of the judgment concerning his conviction reads as follows: “It appears from opinion no. 1026 dated 05.07.2006 of the forensic narcotics examination that it was established during the examination that Zahidov Sakit Salim oglu suffers from drug addiction at the initial stage. This is confirmed by there being an initial pathological tendency towards narcotic substances, the results of the objective examination and the material of the criminal case. Taking into consideration that there are currently no signs of abstinence or drug intoxication and the fact that he has criticised himself for his situation, there is no need for his compulsory drug intoxication. It is advisable to register him at the local narcotics clinic. The above-mentioned opinion was confirmed at the court hearing by addiction specialist I.F. from the Republic Narcotics Clinic, who was heard as an additional witness. It appears from forensic opinion no. 6930 dated 05.07.2006 ... that 9.228 grams of yellow sandy matter rolled in cigarette paper submitted for examination in an envelope was home-made...heroin. The accused S. Zahidov’s commission of the above-mentioned criminal offence was therefore fully proved in court. [His] statement that the narcotic substances found on him had been planted in his pocket by the police is defensive in nature and was not confirmed during the court examination. The court notes that the investigating authority accused S. Zahidov under Article 234.4.3 of the Criminal Code, indicating in the bill of indictment that [he had] obtained the 9.264 grams of heroin found on him, which constituted a large quantity of narcotic substances with intent to sell. The investigating authority’s conclusion was not proved at the court hearing. In fact, when charging S. Zahidov with this criminal offence, [it] relied on the fact that the 9.264 grams of heroin found on him constituted a large quantity of narcotic substances and considered this as illegal possession with intent to sell, but failed to collect any evidence proving the intent to sell or to refer to such evidence in the bill of indictment. However, it does not transpire from the material of the case file or the statements of the persons heard in court that S. Zahidov obtained these narcotic substances with intent to sell. The individual to whom S. Zahidov would sell the narcotic substances was not identified during the investigation or court examination. The statements of the police officers involved in the operation made during the investigation and before the court – that they had information that S. Zahidov had obtained the narcotic substances with intent to sell – are not supported by any plausible evidence. Moreover, the fact that the narcotic substance was in the same fold and undivided also confirms that it had not been prepared for sale. The accusation that S. Zahidov had been in possession of the drug with intent to sell was formed by the investigating authority on the basis of speculation and could not constitute the basis of the judgment.” The judgment made no mention of the applicant’s specific complaints concerning the conditions in which the search had been carried out or the lawfulness of the use of evidence obtained in those circumstances against him. 31. On an unspecified date the applicant appealed, claiming that he was innocent. He alleged, in particular, that the criminal case against him had been fabricated, and that the drugs had been planted on him by the police. In this connection, he reiterated that the agents of the NDMIA had failed to conduct a body search immediately after his arrest, and that the search had been carried out in breach of the relevant procedural requirements. Moreover, they had failed to search the taxi in which he had been arrested. He further complained that the forensic medical examination of 5 July 2006, which had been based on his “general features” and carried out without taking a blood sample from him, could not be considered an expert opinion. In this connection, he also submitted that it had been established in the urine test carried out immediately after his arrest that he was not a drug user. He further asked the court to examine the video-recording of his body search. 32. On 15 December 2006 the Court of Appeal upheld the first-instance court’s judgment. The relevant part of the appellate court’s judgment reads as follows: “The panel of the court considers that the actions of Zahidov Sakit Salim were correctly classified by the court under Article 234.1 of the Criminal Code of the Republic of Azerbaijan, and that he was sentenced to a punishment within the authorised limits of the Article [of the Criminal Code]of which he was accused. As the arguments raised in the appeal were examined in the descriptive part of the judgment and were not confirmed, the panel of the court does not see any reason to grant the appeal.” The Court of Appeal was silent as to the applicant’s specific complaints concerning the narcotic substances being planted on him by the police, the conditions in which the search had been carried out, the lawfulness of the use of evidence obtained in those circumstances against him, the examination of the video-recording of the search, and the reliability of the forensic medical opinion of 5 July 2006. 33. On 24 April 2007 the Supreme Court upheld the Court of Appeal’s judgment of 15 December 2006. 34. On 9 April 2009 the applicant was released from prison under an amnesty law adopted by the Milli Mejlis (Parliament) on 17 March 2009. 35. The applicant’s arrest and the institution of criminal proceedings against him attracted significant public and media interest both nationally and internationally. 36. The relevant part of Resolution 1614 (2008) “The Functioning of Democratic Institutions in Azerbaijan”, adopted on 24 June 2008 by the Parliamentary Assembly of the Council of Europe, reads: “16. In view of the above, the Assembly recalls its Resolution 1545 (2007) and urges the Azerbaijani authorities to implement a number of measures without further delay... 22. As regards the follow-up to the issue of alleged political prisoners, the Assembly: ... 22.3 condemns the lack of transparency and fairness in the relevant investigations and court proceedings and demands the immediate release of imprisoned opposition journalists ... Sakit Zahidov ...”