Conviction of a police officer for drug trafficking. Multiple fair trial violations regarding prosecution evidence and witness testimony
JUDGMENT
Dursun Aliyev v. Azerbaijan 27.04.2023 (app. no. 20216/14)
SUMMARY
Fair trial and evidentiary process.
The applicant is a police officer in the investigative division of the police station in the area where he lives. He was charged and convicted of drug trafficking. In the trial that took place, he raised several objections, mainly regarding the evidence and witness accusations, which were rejected without reason. He appealed to the ECtHR claiming, among other things, that he was entrapped by the police due to a conflict with his superiors and was convicted on the basis of “fabricated” and unreliable evidence.
The Court reiterated that the purpose of the ECHR is to ensure that the judicial process as a whole, including the manner in which the evidence was gathered, is fair.
The ECtHR found that: a) the prosecution witnesses may not have been reliable or lacked personal integrity, b) their testimony was unclear and contradictory, c) there were objections regarding the evidence, d) the claim of the applicant for unlawful violence during the preliminary investigation and the domestic courts took into account his confession given in the light of threat and violence and (e) the appellate court did not conduct a judicial inquiry.
The ECtHR found multiple violations of the fair trial and awarded the applicant 4,000 euros for moral damage and 1,000 euros for costs.
PROVISIONS
Article 6 par. 1
Article 6 par. 3(c)
PRINCIPAL FACTS
The applicant, Dursun Israfil oglu Aliyev, is an Azerbaijani national who was born in 1961 and lives in
Baku. He used to work as an operations officer in a police office.
The case concerns criminal proceedings that were brought against him on charges of drug dealing.
Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial) of the European Convention, he alleges, among
other things, that he was framed because of a conflict with his superiors and he was convicted on
the basis of fabricated or otherwise unreliable evidence; that he was not given an opportunity to
effectively challenge that evidence and to effectively present arguments for consideration in his
favour; and, that he was deprived of access to effective legal assistance during his initial
questionings at the pre-trial stage of the criminal proceedings.
THE DECISION OF THE COURT…
While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law.
It is therefore not for the Court to determine, in principle, whether particular types of evidence – for example, evidence obtained illegally in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question to be answered is whether the process as a whole, including the manner in which the evidence was gathered, was fair.
The Court noted at the outset that the applicant did not dispute, either in the domestic proceedings or before the Court, the fact that he had in his possession, without following the required procedures and without documents, the drugs found in his office on 5 July 2011. His main line of defense was that he had never been involved in drug dealing and had not sold drugs to F.G. nor had he given them to him free of charge on 5 July 2011. The applicant alleged that the criminal proceedings against him for alleged drug trafficking were fabricated because of his conflict with two senior officers of the Binagadi District Police Office, where he served.
i) How the domestic authorities dealt with the credibility and personal integrity of police prosecution witnesses.
The applicant attempted to impugn the credibility and personal integrity of F.G., D.G. and M.A. He claimed that they had cooperated with the police in building the criminal case against him and that the reason for this was his conflict with two senior officers of the Binagadi District Police Office and his resistance to the pressure put on him by those officers to resign . The applicant asked the domestic courts to exclude the statements of the aforementioned witnesses on the grounds that they had not been given in good faith and had no value.
The Court noted that domestic law did not provide that investigative authorities would have a list of persons who could be called as witnesses on a regular basis. In contrast, the Code of Criminal Procedure expressly prohibited the routine participation of a person as a witness. The fact that D.G. and M.A. they had repeatedly participated as witnesses or as witnesses in various criminal proceedings over a long period of time, as confirmed by their own statements and by the evidence submitted by the applicant to the Court – evidence on which the Government did not comment – therefore, raises serious concerns as to possible links between D.G. and M.A. and the police, as claimed by the applicant. Considering that any such connection could lead to an abuse of the evidence-gathering process, national courts were expected to be particularly careful and take measures to dispel these concerns.
In view of the above, the Court considered that in the present case there were reasons to indicate that the witnesses in question may not be reliable or lack personal integrity. Therefore, in the absence of proper judicial review, the weight given to their testimony raises serious questions as to the fairness of the proceedings.
(ii) How the domestic authorities dealt with the credibility of the testimony given by the prosecution witnesses.
The Court noted that the ambiguities between the testimony of the prosecution witnesses themselves given at different times, as well as the inconsistencies between the testimony of the various prosecution witnesses, created serious grounds for questioning the credibility of these witnesses and their probative value. However, the domestic courts did not consider these objections and did not take them into account when relying on the evidence as a basis for the applicant’s conviction.
iii) How the national authorities dealt with the reliability of the physical evidence.
The objections and requests regarding this physical evidence which the applicant had submitted to the national courts were supported by important arguments of his defence. However, the courts did not address these objections or provide sufficient or clear reasons for accepting the prosecution’s lack of cooperation.
(iv) The manner in which the domestic authorities dealt with the credibility of the applicant’s own initial partly self-incriminating confessions given at the preliminary inquiry.
The Court noted that, during his cross-examination with the prosecution witnesses at the pre-trial stage of the proceedings and when he appeared before the court, the applicant retracted his initial partially self-incriminating confessions and gave completely different statements. The applicant argued that these initial confessions were false and that he had made them because he had been ill-treated at the police station and feared that he would be ill-treated again.
Taking into account ECtHR jurisprudence, the applicant had submitted to both the prosecutor and the domestic court prima facie evidence that, when he had been transferred from the police station to the detention center of the Ministry of Justice, he had sustained several injuries on his body. In addition, the Chairman of the Azerbaijan Committee against Torture, E.B., was heard as an expert by the court and expressed the opinion that the applicant had been ill-treated. This evidence and the testimony of E.B. lent credence to the applicant’s claim that his partly self-incriminating confessions were the result of police brutality. In light of this evidence, the domestic court should have been particularly careful in examining his claims and should have examined the admissibility of the objections at issue with a high degree of scrutiny, even if those statements were not decisive in securing of the applicant’s conviction. However, the court rejected the applicant’s claims on formal grounds and did not conduct an independent and comprehensive examination of their merits. It failed to investigate, inter alia, whether the injuries documented in the file of 9 July 2011 were visible on the applicant’s body before he was arrested and taken to the police station.
v) On the manner in which the courts dealt with the applicant’s appeals.
The Court noted that the higher courts had in turn failed to consider the applicant’s objections to the manner in which the court dealt with them, his arguments and requests. Furthermore, the Court of Appeal failed to check the new information provided by the appellant in relation to his claim that D.G. he was an “agent” cooperating with the police in building the criminal case against him, since that court decided to consider the applicant’s appeal “without a judicial inquiry” and without calling for additional evidence.
In view of the above, the Court considered that the applicant’s drug-trafficking conviction was based on evidence of dubious reliability and, given that the domestic courts had not conducted an adequate review of the applicant’s arguments regarding the reliability and probative value of the prosecution’s evidence principle, he was deprived of an effective opportunity to challenge the reliability of the key evidence against him, to effectively object to its use in the domestic proceedings and to present effective evidence in his favour. Furthermore, the domestic courts did not provide sufficient reasons for refusing to accept the applicant’s requests and objections or to respond to his specific and relevant arguments, thus depriving him of an effective opportunity to challenge them before the higher courts.
The ECtHR found a violation of the applicant’s right to a fair trial, as protected by Article 6 § 1 of the ECHR.
In view of the above findings, the Court considered that there was no need to consider (i) whether the applicant’s right to a fair trial was also violated by the fact that the criminal prosecution against him had been instituted without a court order and (ii) whether during pre-trial the applicant had been denied access to effective legal aid.
Just satisfaction: The ECtHR awarded 4,000 euros for moral damage and 1,000 euros for costs and expenses (edited by echrcaselaw.com).
