CASE OF LAYIJOV v. AZERBAIJAN
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1959 and lives in Balakan. 6. On 16 March 2005 an operation was planned for the applicant’s arrest following allegations made by N.V. and H.M. to the police that he was a drug dealer and had tried to sell them narcotic substances. 7. At around 4 p.m. on 17 March 2005 the applicant stopped for petrol at a petrol station in Balakan. At that moment he was approached by several plain-clothes police officers. According to the applicant, they dragged him out of his car and began beating, punching and kicking him, and hitting him with a truncheon. He then fainted. 8. When he regained consciousness, he found himself in the back seat of a moving car with the abovementioned police officers. According to the applicant, one of the two officers sitting on either side of him in the back seat slipped something into his right side trouser pocket. The applicant tried to stop him, but was punched and hit in the head with the butt of a handgun and fainted again. He was taken to the Zagatala District Police Station. 9. According to the applicant, he was repeatedly beaten after his arrival at the Zagatala District Police Station. 10. A search of the applicant and his car was conducted at the police station. According to the search record, the search was carried out at 4.30 p.m. on 17 March 2005 in the presence of the applicant, police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, narcotic (cannabis-based) substances were found both on his person and in his car. The applicant claimed that the drugs did not belong to him and had been planted. He refused to sign the search record. According to him, the search had been filmed and the recording would have shown signs of ill-treatment on his body. 11. At 7 p.m. on 18 March 2005 a police investigator drew up a record of the applicant’s arrest (tutma protokolu). It indicated that the applicant was arrested on 18 March 2005, not 17 March 2005. The applicant refused to sign the record. 12. At an unspecified time on 18 March 2005 the investigator gave the applicant details of four defence lawyers registered with the Zagatala Bar Association who could represent him. The applicant did not choose any of them, and stated that he would be defending himself. However, he refused to sign a waiver of legal assistance. 13. On 20 March 2005 the Zagatala District Court ordered the applicant’s detention for three months, calculating the period of detention from 18 March 2005. 14. On the same day the applicant was examined by a forensic expert from the Zagatala District Forensic Medicine and Pathological Anatomy Department. According to the forensic report, the applicant complained of having been ill-treated by the police on 17 March 2005. The expert noticed an oval-shaped bruise on his neck. The conclusion of the expert reads as follows: "The oval-shaped bruise on Layijov’s neck, caused by a hard blunt object, its time of infliction corresponds to 17 March 2005, the time initially indicated. The degree of the injury was not determined because it was not an injury causing harm to health. The injury found would not have caused Layijov to lose consciousness.” 15. On an unspecified date during his interrogation, the applicant informed the investigator that there was a knife in his car. In this connection, he submitted that the police had not carried out a “real” search of his car on 17 March 2005, and had only found narcotic substances they had planted there themselves, otherwise they would have found the knife. Following the applicant’s questioning, on 25 March 2005 a new search of the car was conducted and a knife was recovered. 16. On 14 June 2005 the investigator at the Zagatala District Police Station delivered a decision on assessment of the evidence. It appears from the decision that the applicant was also examined by a forensic narcotics expert who established that he had not been using narcotic substances and was not a drug user. By the same decision, the investigator also refused to launch a criminal inquiry in respect of the applicant’s allegation of ill-treatment. The relevant part of the decision reads as follows: “T. Layijov alleged in his testimony that he had been beaten up by police officers and had even fainted. It appears from the case file that T. Layijov tried to escape when he was being taken to the district police station and that police officers dragged him upstairs. In that case, there should have been contusions and bruises on his body. It was established in the forensic report that there was an oval-shaped bruise on Layijov’s neck, but no injuries were found on other parts of his body. The degree of the injury was not determined because it was not an injury causing harm to health and it was established that the injury [found] would not have caused [him] to lose consciousness. Nevertheless, the procedural legislation allows causing harm to a person who has committed a crime, if he tries to escape during arrest. As the extent of T. Layijov’s injuries was much less serious than the crime he had committed, a criminal inquiry in respect of the fact that he sustained injuries should be rejected.” 17. According to the indictment issued on 25 June 2005, the applicant was charged with offences under Articles 234.1 (illegal possession of narcotic substances in an amount exceeding that necessary for personal use, without intention to sell), 234.2 (illegal sale or illegal possession of narcotic substances with intention to sell), and 228.4 (illegal possession of a cold steel weapon) of the Criminal Code. 18. On 22 July 2005 the Zagatala District Court convicted the applicant of all the offences as charged and sentenced him to six years’ imprisonment. The applicant complained in the course of the proceedings that he had been illtreated by the police during his arrest and in police custody. He also complained that the criminal case against him had been fabricated by the police because of a pre-existing dispute he had with some officers from the Zagatala District Police Station. In this connection, he claimed that the drugs had been planted by the police officers and that despite his request, the search of his person and car had not been carried out immediately after his arrest. However, his complaints were not addressed in the judgment. The part of the judgment concerning the applicant’s conviction reads as follows: “The criminal offence committed by the accused T. Layijov was not only proved by witness testimonies, but also other materials in the case file... In total 181.62 grams of cannabis-based narcotic substances, 19.75 grams of opium, one hunting knife and one “Nokia” mobile phone taken within the framework of the case had been recognised as real evidence... Therefore, the fact that the accused T. Layijov committed the criminal offences provided for by Articles 234.1, 234.2 and 228.4 of the Criminal Code was again proved in the court investigation by witness testimonies, expert opinions, records of face-to-face questioning and other official information in the case file. The preliminary investigating authority had rightly qualified the criminal offences of the accused T. Layijov under Articles 234.1, 234.2 and 228.4 of the Criminal Code. He should be found guilty under these Articles and be punished.” According to the judgment, the period of imprisonment was to be calculated from 18 March 2005. 19. On 7 March 2006 the Court of Appeal upheld the Zagatala District Court’s judgment of 22 July 2005. In the course of the proceedings, the applicant reiterated his complaints, but the Court of Appeal did not consider them. 20. On 10 August 2006 the Supreme Court quashed that judgment and remitted the case for fresh examination. The Supreme Court found that there had been flaws in the assessment of the admissibility and probative value of evidence serving as a basis for the applicant’s convictions, and that the lower courts had failed to properly determine the date of the applicant’s arrest and to examine the issue of the applicant’s alleged illtreatment in police custody and the compliance with procedural requirements of the search of the applicant and his car. The Supreme Court also noted that the lower courts had not examined why a search of the applicant and his car had not been carried out immediately at the place of his arrest. The relevant part of the decision reads as follows: “According to forensic report no. 53 of 20 March 2005, the injuries on T. Layijov’s body are characteristic of a beating. The documents and statements signed by police officers were drafted by G. I. at the same time, using the same pen. The content of the attesting witnesses’ statements, as well as those of N.V. and H.M., was dictated by a professional police officer and they say the same thing. During the investigation and in the proceedings before the courts, these facts were not examined and no action was taken in this respect. Under Article 125 of the Code of Criminal Procedure of the Republic of Azerbaijan, evidence and facts, if there are doubts as to their source or the circumstances in which they were obtained, cannot be used in order to determine the charge correctly. All the documents and statements on which the court relied as evidence in the present case are contradictory, and do not disprove T. Layijov’s allegations. It follows that, when the case is re-examined at appellate court level, it should be considered whether N.V. and H.M. cooperated with the police and participated in the procedural measures in other cases and were for this reason interested in the outcome of the case, the reason why the first operation aimed at arresting T. Layijov on 16 March was not carried out, the reason why a search of T. Layijov and his car was not immediately conducted when he was arrested at the petrol station in Balakan as required by the operational search and criminal procedural legislation, the cause and perpetrators of T. Layijov’s injuries, as well as the reason why the knife, which was considered to be a cold steel weapon, was not found in the car during the first search on 17 March, but was found eight days later. As it appears from T. Layijov’s statements, his allegation, that the narcotic substances were not taken from his car otherwise the knife would also have been found during the search, must be assessed from a logical point of view.” 21. On 22 December 2006 the Court of Appeal quashed the Zagatala District Court’s judgment of 22 July 2005 in the part relating to the charges under Articles 234.2 and 228.4 of the Criminal Code and terminated the corresponding part of the criminal proceedings. The court held that the evidence concerning the charge under Article 234.2 of the Criminal Code had been obtained in breach of the relevant procedural requirements and failed to prove the applicant’s guilt. In particular, N.V. and H.M.’s statements were inconsistent and had been drafted by the investigator. The court also noted that the testimony of N.V. and H.M. at the hearings before the Court of Appeal had differed from their statements. The court further noted that the evidence in connection with the charge under Article 228.4 of the Criminal Code, namely the knife found in the applicant’s car, did not qualify as a weapon for the purposes of that provision. The court also found that the applicant had actually been arrested on 17 March 2005 and for a day had been unlawfully detained in police custody. As to his allegation of ill-treatment, the court noted that he had been ill-treated by the police during his arrest and in police custody, as certified by the forensic report of 20 March 2005. The relevant part of the judgment reads as follows: “It was established following the investigation carried out by the panel of the court that during T. Layijov’s arrest the requirements of criminal procedural law were violated by the investigating authorities; his arrest was not immediately documented, he was not provided with a lawyer, he was not informed of his rights and obligations and he was unlawfully detained at the Zagatala District Police Station for a day... Taking into consideration the fact that the video-recording of the investigative steps taken during the preliminary investigation was not added to the case file as evidence, and the fact that T. Layijov’s allegation of being beaten by police officers was not rebutted by any plausible evidence by the party defending the charge, the court considers that the injuries on T. Layijov’s body were inflicted by the police during the preliminary investigation.” 22. However, the Court of Appeal upheld the applicant’s conviction under Article 234.1. The relevant part of the judgment reads as follows: “... The panel of the court considers that the accused T. Layijov had committed the crime under Article 234.1 of the Criminal Code and that he had been correctly found guilty and convicted by the first-instance court.” 23. The Court of Appeal was silent as to the applicant’s particular complaints concerning the drugs being planted on him by the police, the conditions in which the search had been carried out, and the lawfulness of the use of the evidence obtained in those circumstances against him. 24. The Court of Appeal reduced the applicant’s sentence to two years’ imprisonment and decided to calculate the beginning of the corresponding sentence from 17 March 2005. 25. On 17 March 2007 the applicant was released after having served his sentence. 26. On 19 June 2007 the Supreme Court upheld the Court of Appeal’s judgment of 22 December 2006.