MAMMADOV v. AZERBAIJAN
Inadmissible
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
1. The applicant, Mr Akif Kazim oglu Mammadov (Akif Kazım oğlu Məmmədov), is an Azerbaijani national born in 1955 and currently serving a prison sentence in Baku. 2. He was represented before the Court by Mr I. Ashurov, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. At the time of the events, the applicant served as a police major in the Ministry of Internal Affairs. He worked for the Saatli District Police Organised Crime Department. 5. At around 10 p.m. on 22 March 2005, at a location near the Azerbaijani-Iranian border in the Imishli District, the applicant and an acquaintance (U.H.) received approximately 71.75 kg of marijuana from an Iranian national who had smuggled the drugs through the State border. The two accomplices put the packages of marijuana in the boot of the applicant’s car. When they attempted to drive off, a number of MNS agents, who had surveilled the operation, tried to stop the car. Shots were fired and two bullets reached the car’s interior and wounded the applicant in the left leg. Despite his bullet wounds, the applicant managed to continue driving his car and escape from the scene. 6. The applicant and U.H. drove several kilometres, then disposed of the packages of marijuana and abandoned the car. Shortly afterwards the applicant and U.H. were arrested by the MNS agents. The applicant was first brought to the Imishli District Department of the MNS, but due to his wounds thereafter transferred to the Imishli District Hospital for treatment. 7. The record of arrest compiled by the MNS agents on 23 March 2005 also described the circumstances of the operation of 22 March 2005. The relevant part of the record reads as follows: “...Two persons who were in the car tried to escape from the scene of the crime by speeding the car towards the MNS agents. Although the MNS agents fired a warning shot into the air, the driver tried to hit them by car and at that moment shots were fired at the car’s tyres. Two persons in the car began to drive the car through the village in the direction of the fields situated in the Beylagan District...” 8. On 24 March 2005 criminal proceedings were instituted by the Investigation Department of the MNS in connection with above-mentioned incident, under Articles 206, 234.4.1 and 234.4.3 of the Criminal Code. 9. At 6.10 p.m. on 24 March 2005 an investigator from the MNS issued a record of the applicant’s detention as a suspect (tutma protokolu) in the presence of him and his lawyer. He was suspected of smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances under Articles 206, 234.4.1 and 234.4.3 of the Criminal Code. The applicant claimed his innocence and stated that he had not known that the packages had contained marijuana. He submitted that U.H. had lied to him about what they had contained, and that he had only gone to the border area at U.H.’s request. He further confirmed that after his arrest, he had first been taken to the Imishli District Department of the MNS, and then to the Imishli District Hospital, where he had been provided with medical assistance. He did not challenge the lawfulness of the force used against him during the operation of 22 March 2005. 10. On 26 March 2005 the applicant was officially charged with smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances. On the same day the investigator questioned him again, now as an accused, in the presence of his lawyer. The applicant reiterated his previous statement. On the same day the applicant was brought before the Sebail District Court which ordered his pre-trial detention for a period of three months. 11. On 28 April 2005 the applicant’s lawyer asked the investigator to order a forensic examination to determine whether the applicant’s state of health was compatible with his pre-trial detention, as he suffered from ischemic heart disease and had once suffered a heart attack. 12. On 29 April 2005 the investigator dismissed the request after deciding that a forensic examination of the applicant was not necessary. 13. On 14 June 2005 the investigator lodged the indictment with the Assize Court. 14. According to the applicant, on 4 July 2005 at a hearing before the Assize Court in the course of the criminal trial, he submitted that on 22 March 2005 the MNS agents had shot at his car without first firing a warning shot, as a result of which he had been wounded in the left leg. He further claimed that the agents had not been wearing vests identifying them as officers of the law-enforcement authorities and he therefore could not identify them in the darkness. The applicant also complained that he had not been provided with adequate medical assistance during the first fifteen days of his detention in the MNS detention facility. 15. The proceedings before the Assize Court ended on 13 July 2005 with a judgment in which the court found the applicant guilty of smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances and sentenced him to fifteen years’ imprisonment. The court also ordered that his car be confiscated as it had been used in the crime. The court did not in its judgment refer to the issues related to the operation of 22 March 2005 and the alleged lack of adequate medical assistance following his arrest, as submitted by him on 4 July 2005 (cf. paragraph 14). 16. In August 2005 the applicant appealed against his conviction, claiming his innocence. He complained about the assessment of the evidence by the Assize Court and argued that the lower court had not taken into account when sentencing him to fifteen years’ imprisonment. 17. On 15 September 2005 the Court of Appeal upheld the applicant’s conviction, but reduced his sentence to thirteen years’ imprisonment, taking into account certain mitigating circumstances. 18. In March 2007 the applicant lodged a cassation appeal. He claimed his innocence, complaining about the assessment of the evidence by the lower courts. 19. On 22 May 2007 the Supreme Court upheld the Court of Appeal’s judgment of 15 September 2005. 20. In accordance with Article 37 of the Code of Criminal Procedure (“the CCrP”), criminal proceedings are instituted on the basis of a complaint by the victim of an alleged criminal offence. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings could challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or his counsel may challenge such actions or decisions as, inter alia, the prosecution authorities’ refusal to institute criminal proceedings or to terminate them. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). The judge’s decision may be challenged before an appellate court in accordance with the procedure established in Articles 452 and 453 of the CCrP.