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Application no. It may be subject to editorial revision. In the case of Fariz Ahmadov v. Azerbaijan ,. Having deliberated in private on 1 December ,. Delivers the following judgment, which was adopted on that date:. The application concerns the alleged unfairness of the criminal proceedings against the applicant for the illegal sale of drugs. In particular, relying on Article 6 of the Convention , the applicant alleged that the domestic courts had based his conviction on inadmissible evidence. The applicant, Mr Fariz Ahmadov, was an Azerbaijani national who was born in and at the time of the events in question lived in Mingachevir. He was represented before the Court by Mr I. Aliyev, a lawyer based in Azerbaijan. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was working as a waiter at a tearoom in Mingachevir. On 7 March R. At the police station 0. He told the police that he had obtained the marijuana from A. On the same day, A. The applicant was arrested on 8 March at approximately 8 p. The applicant stated in a hand-written declaration that he waived his right to be legally assisted and that he chose to defend himself. On 10 March the applicant was charged under Article On 10 March the applicant was questioned by an investigation officer of the city police. Before being questioned he was apprised of his rights, including the right to be represented and not to incriminate himself. The applicant signed a handwritten document in which he acknowledged that the pertinent legal provisions of the Code of Criminal Procedure had been explained to him, that he waived his right to be assisted by a lawyer, and that he chose to defend himself personally. A report describing in detail the procedural rights of accused persons was compiled by the investigation officer and signed by him, the applicant and a State-funded lawyer appointed by the investigation officer. During the questioning that followed immediately thereafter, which was conducted without the presence of a lawyer, the applicant stated that on 7 March A. He had refused to do so, but a few minutes later he had noticed some animal manure lying on the floor of the backroom and had put it into a cigarette, which he had then given to A. On 10 March a face-to-face confrontation was held between the applicant and A. According to the record of the confrontation, A. The applicant challenged A. However, he had informed A. The applicant also stated that he had given A. The confrontation was held in the absence of a lawyer, as the applicant had already waived his right to a lawyer and had chosen to defend himself. On 5 April the applicant appointed a lawyer of his own choosing. On 5 August a new face-to-face confrontation was held between the applicant and A. The applicant confirmed A. According to the record of a separate testimony given by A. When asked why he had made a different statement.

FARIZ AHMADOV proti Ázerbajdžánu

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Application no. It may be subject to editorial revision. In the case of Fariz Ahmadov v. Having regard to:. Having deliberated in private on 1 December ,. Delivers the following judgment, which was adopted on that date:. The application concerns the alleged unfairness of the criminal proceedings against the applicant for the illegal sale of drugs. In particular, relying on Article 6 of the Convention, the applicant alleged that the domestic courts had based his conviction on inadmissible evidence. The applicant, Mr Fariz Ahmadov, was an Azerbaijani national who was born in and at the time of the events in question lived in Mingachevir. He was represented before the Court by Mr I. Aliyev, a lawyer based in Azerbaijan. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was working as a waiter at a tearoom in Mingachevir. On 7 March R. At the police station 0. He told the police that he had obtained the marijuana from A. On the same day, A. The applicant was arrested on 8 March at approximately 8 p. The applicant stated in a hand-written declaration that he waived his right to be legally assisted and that he chose to defend himself. On 10 March the applicant was charged under Article On 10 March the applicant was questioned by an investigation officer of the city police. Before being questioned he was apprised of his rights, including the right to be represented and not to incriminate himself. The applicant signed a handwritten document in which he acknowledged that the pertinent legal provisions of the Code of Criminal Procedure had been explained to him, that he waived his right to be assisted by a lawyer, and that he chose to defend himself personally. A report describing in detail the procedural rights of accused persons was compiled by the investigation officer and signed by him, the applicant and a State-funded lawyer appointed by the investigation officer. During the questioning that followed immediately thereafter, which was conducted without the presence of a lawyer, the applicant stated that on 7 March A. He had refused to do so, but a few minutes later he had noticed some animal manure lying on the floor of the backroom and had put it into a cigarette, which he had then given to A. On 10 March a face-to-face confrontation was held between the applicant and A. According to the record of the confrontation, A. The applicant challenged A. However, he had informed A. The applicant also stated that he had given A. The confrontation was held in the absence of a lawyer, as the applicant had already waived his right to a lawyer and had chosen to defend himself. On 5 April the applicant appointed a lawyer of his own choosing. On 5 August a new face-to-face confrontation was held between the applicant and A. The applicant confirmed A. According to the record of a separate testimony given by A. When asked why he had made a different statement during the confrontation, A. In the meantime, by means of a blood test conducted on 4 June it was established that the applicant did not use drugs habitually. On an unspecified date a bill of indictment against the applicant was sent to the Mingachevir City Court. He alleged, inter alia, that a State-funded lawyer had not been present when the applicant had signed a waiver of his right to legal assistance before the holding of the face-to-face confrontation between the applicant and A. The court also held that the applicant should remain in detention, pending the renewed investigation. On 28 December A. He reiterated his previous assertion that he had bought a cigarette filled with marijuana from the applicant in exchange for payment of AZM 10,, and had then passed it on to R. The applicant and his lawyer were not present. On 29 December a bill of indictment against the applicant was sent to the Goranboy District Court. The applicant argued before that court that the criminal case against him had been fabricated and that he had not sold any drugs to A. In the meantime, A. In turn, R. The finding of guilt was based, inter alia, on the following evidence:. In particular, he complained that the trial court had unlawfully relied on the confrontation of 10 March , which had been held in violation of his right to be properly legally assisted, as A. He also submitted that at the hearing R. On 20 September the applicant lodged a cassation appeal, essentially reiterating his previous complaints. The Supreme Court found that although the applicant had alleged that his and A. The applicant died on 13 October Article Right to have legal assistance and to defend himself. The authority conducting criminal proceedings shall ensure that the suspect or the accused has been provided with the following rights in the circumstances and in the manner defined by this Code:. Defence lawyer. Any waiver signed by a suspect or accused person of his right to \[appoint\] defence counsel shall be recorded. Admissibility of evidence. Information, documents and other items shall not be admitted as evidence in a criminal case under the following circumstances:. Preliminary hearing. The following matters shall be decided on at the preliminary hearing:. The Court notes at the outset that the applicant died after lodging the application and that his mother has expressed her wish to continue the proceedings before the Court. Azerbaijan , no. Azerbaijan \[Committee\], no. The applicant complained that the criminal proceedings against him had been unfair, since the domestic courts had unlawfully based his conviction on the face-to-face confrontation of 10 March between him and A. He relied on Article 6 of the Convention. Everyone charged with a criminal offence has the following minimum rights:. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. The applicant submitted that the only evidence that had been used against him had been collected at the preliminary-investigation stage, during the face-to-face confrontation between him and A. The domestic courts had accepted that that confrontation had been conducted in a manner that had been in violation of his defence rights in that he had not been assisted by a lawyer. Although it was true that he had signed a waiver of his right to be assisted by a lawyer, that waiver had been signed without the presence of a lawyer, even though that was a requirement under the relevant rules on criminal procedure. Therefore, any subsequent decision convicting him on the basis of that impugned evidence had to be considered as unlawful. Moreover, in a further face-to-face confrontation between him and A. Nevertheless, the domestic courts had ignored that evidence and had failed to assess it. On 5 April the applicant had been provided with a lawyer of his own choosing, who had then participated in all the investigative procedures conducted in respect of the applicant — including the face-to-face confrontation with A. Although during the second confrontation held on 5 August A. Lastly, A. The Government furthermore argued that A. At the hearing R. During the pre-trial stage he had insisted that he had given A. In support of their submission, the Government provided copies of the reports of A. In the present case the applicant complained that the domestic courts had unlawfully admitted evidence obtained in a confrontation held at the pre-trial stage without his being assisted by a lawyer, and had based his conviction on that evidence. Both in his complaints to the domestic authorities and to the Court he acknowledged that in the course of the first questioning he had signed a waiver of his right to be assisted by a lawyer, but insisted that he had done so without the presence of a lawyer. The Court furthermore notes that the Government in their submission also accepted that the applicant had not been provided with legal assistance from the moment of his arrest see paragraph 43 above. In that regard the Court observes that under Article Turkey , no. The right to a lawyer also applies in the context of a confrontation between the accused and a third party, for example a witness or a co-accused see Beuze v. Belgium \[GC\], no. The Court further reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving, of his own free will — either expressly or tacitly — the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest. Bulgaria \[GC\], no. Those considerations also hold true for the validity of a waiver of the entitlement to the guarantees of a fair trial, as what constitutes a valid waiver cannot be the subject of a single unvarying fact but must depend on the individual circumstances of the particular case see, mutatis mutandis , Murtazaliyeva v. Russia \[GC\], no. The Court also notes that throughout the pre-trial investigation the applicant did not complain or claim in any other way that the waiver and his statements had been obtained against his will and under pressure from the police. Furthermore, he did not allege that he had been induced to waive his right to counsel. Likewise, he did not make any such complaints or allegations to the Court. Nor did the applicant ever argue — either in the proceedings before the domestic courts or in his application to the Court — that he had not understood the meaning of the waiver of his right to be assisted by a lawyer. On this latter point the Court observes that the applicant had two previous convictions and that, therefore, is unlikely to have been unaware of the benefits of being defended by a lawyer. Having regard to the findings of the preceding paragraph, the Court concludes that the applicant in the present case waived his right to be legally assisted in a knowing manner and voluntarily. Switzerland , judgment of 12 July , Series A no. Lithuania \[GC\], no. The Court further reiterates that while Article 6 guarantees the right to a fair hearing, it does not lay down any rules regarding the admissibility of evidence as such, which is primarily a matter for regulation under national law see Bykov v. Germany \[GC\], no. It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence — for example, evidence obtained unlawfully in terms of domestic law — may be admissible. Russia , no. In the circumstances of the present case, the violation of the procedural requirement providing for presence of a lawyer at the time when a waiver had been made before the confrontation of 10 March cannot be considered as having had the effect of seriously prejudicing the overall fairness of the criminal proceedings against the applicant. There is no indication or allegation — either during the domestic proceedings or in his application to the Court — that in the absence of a lawyer the applicant had made self-incriminating statements that he would later retract or change. On the contrary, he consistently denied all the charges against him and advanced his version of events, as he also did during the subsequent proceedings compare Trymbach v. Ukraine , no. The Court observes that the national courts, in convicting the applicant, noted that throughout the entire proceedings the applicant had consistently stated that A. Moreover, there was no dispute that the same cigarette had been passed to R. Whereas the applicant claimed that the cigarette had been filled with manure, the national courts — on the basis of the oral testimony given by R. In particular, in its decision endorsing the findings of the lower courts, the Supreme Court held that the statements made by the applicant and A. In sum, having examined the proceedings as a whole, the Court sees no grounds for finding that they were unfair and that the decisions of the national courts were arbitrary or otherwise contrary to Article 6 of the Convention. The Court notes that the applicant failed to substantiate these allegations. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. The applicant also complained that his pre-trial detention had been unlawful. In the present case, the applicant was convicted on 30 May see paragraph 30 above and the six-month time-limit concerning his Article 5 complaint started running on that date. Art Four-month period former six-month. The finding of guilt was based, inter alia, on the following evidence: i a written statement by A. The authority conducting criminal proceedings shall ensure that the suspect or the accused has been provided with the following rights in the circumstances and in the manner defined by this Code: Information, documents and other items shall not be admitted as evidence in a criminal case under the following circumstances: The following matters shall be decided on at the preliminary hearing Everyone charged with a criminal offence has the following minimum rights Alleged violation of Article 5 of the Convention

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