CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 mars 2019

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt }   Communicated on 18 March 2019   FIFTH SECTION Application no. 32370/10 Azad GULIYEV against Azerbaijan lodged on 7 June 2010 STATEMENT OF FACTS The applicant, Mr Azad Guliyev, is an Azerbaijani national, who was born in 1956 and lives in Absheron. The facts of the case, as submitted by the applicant, may be summarised as follows. On 18 June 2007 officers of the Ministry of National Security ( Milli   Təhlükəsizlik Nazirliyi - “the MTN”) conducted a search of the applicant’s house on the suspicion that he was engaged with a group of persons preparing to murder the head of the District Executive Authority. During the search, ten forged banknotes purporting to be worth 100 US dollars (USD) each and around 100 grams of heroin were discovered at his residence. The applicant and, allegedly, his son were arrested and taken to the MTN. On an unspecified date a court of first instance ordered the applicant to be remanded in custody, starting from 20 June 2007. On 16 November 2007 the Court of Serious Crimes convicted the applicant of crimes contrary to Article 204.1 (the preparation, acquisition and sale of forged banknotes and securities) and Article 234.4.3 (the preparation, possession, purchase and transportation of illegal drugs with intent to sell, or the sale of illegal drugs in significant quantity) of the Criminal Code and sentenced him to eleven years’ imprisonment. The applicant denied the accusations and argued that only USD 3,700 had been surrendered to the MTN officer by his wife but that, suspiciously, that amount had increased to USD 5,000 when it was counted by the officer for the purpose of preparing the relevant report, after the money had been in the possession of the MTN for an hour. Furthermore, according to the testimony given by a co-accused in court, it was in fact the co-accused who owned the narcotics and had placed them in the basement of the applicant’s house without informing him. Moreover, following the discovery of the narcotics, the applicant had immediately required that his fingerprints be taken and that the package containing the narcotics be examined to check whether it showed any trace of his fingerprints. The court found that the testimony given by his co-accused regarding the narcotics had been intended to exempt the applicant from responsibility for the crime, and that the applicant’s allegations that the forged banknotes had been planted by the MTN officers contradicted the testimony of attesting and other witnesses. On an unknown date the applicant appealed against this judgment. He reiterated his arguments from the trial adding that at the time when the narcotics had been discovered in the basement of his home, one of the attesting witnesses was on the second floor witnessing the surrender of the money and the other one had stayed outside the basement and could not have seen exactly from where they had been recovered, if at all. On 29 May 2008 the Court of Appeal partly granted the applicant’s appeal by acquitting him in respect of the crime under Article 204.1 of the Criminal Code and reducing his sentence to nine years’ imprisonment. The court found that being in possession of forged money had not been considered a crime at the material time and that, in any case, according to the established facts, the money in question had been given to the applicant’s wife by some relatives for safe-keeping at their home and the applicant had had no knowledge of that. As to the rest of the case, the appellate court relied on the findings and reasoning of the trial court. While being questioned at the appellate court, one of the attesting witnesses confirmed that he had not been present at the particular location in the residence where the narcotics had been discovered. The other one stated that she had not entered the basement as it was too small for more than one person to go in, but that she had not seen the officer in charge of the search with anything either on him or in his hands when entering the basement. On an unknown date the applicant lodged a cassation appeal reiterating his previous complaints. The applicant also asked the Supreme Court to ensure his personal participation in the hearing. On 8 December 2009 the Supreme Court upheld the Court of Appeal’s judgment in respect of the applicant’s conviction. However, the Supreme Court took into consideration that it was the applicant’s first conviction, that he had participated in the Garabakh War and had been awarded a medal for bravery, that he had one minor child and that his health conditions were deteriorating, and reduced his imprisonment from nine to seven years. The applicant did not participate in the hearing at the Supreme Court. However, his lawyer was present and was able to present the case on the applicant’s behalf. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention that the domestic courts failed to properly address irregularities in the testimonies of the attesting witnesses and to assess evidence in his favour given by his co ‑ accused, and that this failure resulted in an unjustified conviction. The applicant further complains, under Article 6 § 3 (c) of the Convention, that, despite his express request, the Supreme Court failed to ensure his personal participation in the hearing concerning his cassation appeal. 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 of the Convention?   2.     Was the applicant’s absence from the hearing held before the Supreme Court in compliance with the requirements under Article 6 §§ 1 and 3 (c) of the Convention? The Government are requested to submit copies of all the documents in the case file relating to the domestic proceedings.