Professional Documents
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CASE OF FATULLAYEV v. AZERBAIJAN (No. 2)
CASE OF FATULLAYEV v. AZERBAIJAN (No. 2)
JUDGMENT
STRASBOURG
7 April 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
FATULLAYEV v. AZERBAIJAN (No. 2) JUDGMENT
INTRODUCTION
1. The applicant complained in particular that the criminal proceedings
against him had been in breach of Article 6 of the Convention because he had
been convicted on the basis of planted and fabricated evidence; he had not
been given an opportunity to effectively challenge that evidence and to
adduce evidence in his favour. The applicant also complained that the seizure
of his case file from the office of his lawyer had been in breach of his right of
individual application without hindrance under Article 34 of the Convention.
THE FACTS
2. The applicant was born in 1976 and lives in Baku. He was initially
represented by Mr I. Aliyev, and, from 7 January 2019, by Mr E. Sadigov,
lawyers based in Baku.
3. The Government were represented by their Agent, Mr Ç. Əsgərov.
4. The facts of the case, as submitted by the parties, may be summarised
as follows.
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A. Background information
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governor of the penal facility had called him to his office and questioned him,
saying that a high-ranking official had asked whether he had been using
drugs. Furthermore, via an acquaintance of his the applicant had received
threats made by a certain public official that he would remain in prison
indefinitely if he continued to pursue his journalistic enquiries – in particular,
if he publicised and sent to the Court information that he had uncovered about
the death of his friend, Elmar Huseynov, a journalist (see Huseynova
v. Azerbaijan, no. 10653/10, 13 April 2017).
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(a) Expert examinations of the applicant’s blood and urine samples and of his
jacket and shoe for traces of drugs
20. On 30 December 2009 a 10-millilitre blood sample and a 20-millilitre
urine sample were taken from the applicant for expert examination ordered
by the investigator. To conserve the blood sample a special preserving agent
was added to it.
21. Later, on the same day, a 5-millilitre blood sample was taken from the
applicant and given to his lawyer, I.A. According to the applicant, on
unspecified dates his lawyer asked several medical laboratories to examine
that sample for traces of drugs, but none of them agreed to perform the tests.
22. The investigator asked the experts in charge to determine whether the
applicant’s blood and urine contained traces of drugs and, if so, which ones.
23. A report dated 18 January 2010, prepared by two experts, G.H. and
M.A., concluded that the applicant’s blood and urine contained narcotic
substances such as morphinan (one of the metabolites of heroin),
amphetaminil (one of the phenylalkylamine group of drugs) and
flunitrazepam-M (Nor) HY (a 1,4 benzodiazepine). The analysis was
conducted using the thin-layer chromatography technique, colour tests,
microcrystal tests, hydrolysis and other scientific methods.
24. A separate expert report dated 22 January 2010 established that the
applicant’s shoe and jacket bore traces of heroin.
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32. The applicant argued in particular that (i) the alleged “operational
information” indicating that he had recently “exhibited signs of drug use” had
been forged and either the informants who had allegedly provided such
information were purely imaginary, or, if there had indeed been any such
informants, they had been participants in the scheme aimed at framing him;
(ii) despite the fact that the penal facility was a high-security institution,
where drugs were not readily available, the investigator in charge of the case
had not even tried to question him about the source of the drugs, which
demonstrated the bogus character of the criminal proceedings; (iii) an expert
fingerprints examination would show that he had never touched the packages
containing the drugs; and (iv) in the penal facility there would have been
many possibilities for drugs to be planted in his personal belongings (for
example, when he had been taking a shower or eating in the cafeteria).
33. Relying on those arguments, the applicant requested the court to
examine in the same proceedings the source from which the drugs had
allegedly been obtained, instead of making that question a subject of separate
proceedings (see paragraph 30 above); to identify, summon and question the
informants (if there had indeed been any); and to order an expert fingerprints
examination of the packaging in which the drugs had been wrapped.
34. Furthermore, the applicant complained that the personal search
conducted on him had taken place in the absence of a search warrant issued
by a court, and that his request to be allowed to call his family and to invite
his lawyer to be present during the search had been denied.
35. The applicant also alleged that the expert report of 18 January 2010
was unreliable. He argued in particular that the report contradicted the
above-mentioned general health and narcology report (see paragraph 26
above) because the narcotic substances allegedly found in his blood and urine
samples (see paragraph 23 above) would have had a serious impact on his
psychological and physical state, whereas, according to the general health and
narcology report, his psychological state had been stable, he had had no health
issues and had not been a drug user (see paragraph 26 above); he accordingly
argued that it was important to re-examine the blood and urine samples and
to establish the level of the drugs present in them. The applicant argued that
such a re-examination of the blood and urine samples would reveal that they
had been tampered with.
36. He also argued that the charts annexed to the expert report of
18 January 2010 demonstrated that the level of narcotic substances found in
the samples would have been lethal if that level had indeed been present in
his body.
37. Furthermore, the applicant complained that under the domestic law he
had no right to independently commission expert examination of his blood
for traces of drugs and that none of the medical laboratories that were
approached had agreed to examine the blood sample given to his lawyer, I.A.
The applicant requested the court to order an expert examination of that
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sample. He also requested the court to order an expert examination of his hair
(including his body hair) and nails for traces of drugs. He argued that traces
of narcotic substances remained in a person’s hair and nails for up to two
years, and that such an alternative expert examination would prove that he
had not used drugs.
38. All the above-mentioned requests were dismissed by the Garadagh
District Court.
39. Accordingly, the court ruled that there was no need to examine in the
same set of proceedings the source from which the applicant had allegedly
obtained the drugs, because the severing of the criminal proceedings under
Article 234.2 of the Criminal Code (see paragraph 30 above) had “not created
any difficulties in respect of the examination of the criminal proceedings
against the applicant”.
40. The court also declared that questioning the informants would be of
no use because the information given by those individuals “had not served as
a basis for the criminal proceedings against the applicant”.
41. From the case-file material, it is not clear on which grounds the court
dismissed the applicant’s request to order an expert fingerprints examination.
42. Furthermore, the court found that there was no reason to doubt the
reliability of the report of 18 January 2010. The court also stated that it had
been “scientifically established” that traces of drugs remained in a person’s
hair only for several weeks or months and in his or her nails for up to 136
days. It therefore ruled that an expert examination of the applicant’s hair and
nails would be of no use because more than five months had passed since
traces of drugs had been found in his blood and urine samples; furthermore,
there were no technical facilities in Azerbaijan for carrying out the requested
hair and nails tests. The court reached these findings after it had heard the
above-mentioned expert, G.H. (see paragraphs 50-52 below).
43. As to the applicant’s complaint that the personal search conducted on
him had taken place in the absence of a search warrant issued by a court, the
court found that the domestic law relevant to personal searches conducted by
a penal facility authorities on inmates did not require such a warrant.
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and 26-27 above) and on most of the witness testimony (the court disregarded
A.N.’s testimony that there had been instances when the applicant had left his
clothes outside the washing area before entering a shower room and the expert
testimony given by G.H. noted in paragraph 52 above).
54. The court also examined the applicant’s articles published in
Mediaforum (see paragraph 9) and found that the article published on
21 December 2009 “[had] not contained any specific points indicating a
threat that the applicant would be [charged] again, as had been claimed by
[him]” (məqalədə təqsirləndirilən şəxsin dediyi kimi onun yenidən həbs
olunması təhlükəsinə işarə olunan konkret məqamlar yoxdur). On the basis
of the testimony of the governor of the penal facility (see paragraph 46
above), the court also found that the applicant’s allegations that a riot had
taken place in June 2009 and that he had been subjected to attacks and
provocations (see paragraph 10) were false. Furthermore, the court declared
that there was no need to examine the applicant’s allegations regarding the
death of journalist Elmar Huseynov (ibid.) because there was no causal
relationship between those allegations and the criminal case against the
applicant. Consequently, the court dismissed the applicant’s arguments that
the drugs had been planted on him by the authorities and that the criminal
case against him had been fabricated.
55. The court sentenced the applicant to two years and six months’
imprisonment.
56. The applicant appealed against the judgment. He reiterated his earlier
arguments and complained about the Garadagh District Court’s refusal to
grant his requests. It can be seen from the case-file material that he also
lodged his requests again (in particular, his requests for an expert fingerprints
examination and for his hair and nails to be tested for traces of drugs).
57. The applicant’s appeal was examined by the Court of Appeal “without
judicial investigation” (məhkəmə istintaqını aparmadan). On 25 January
2011 the Court of Appeal dismissed the applicant’s appeal and upheld the
Garadagh District Court’s judgment. The appellate court also dismissed the
applicant’s requests on the same grounds as the trial court.
58. The applicant lodged a cassation appeal, reiterating his earlier
complaints.
59. On 3 November 2011 the Supreme Court dismissed the appeal as
unfounded and upheld the lower courts’ judgments.
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number of documents from Mr Aliyev’s office, including all the case files
relating to applications pending before the Court, which were in the
possession of Mr Aliyev as a representative. The file relating to the present
case was also seized in its entirety. The facts relating to the seizure and the
relevant proceedings are described in more detail in Annagi Hajibeyli
v. Azerbaijan (no. 2204/11, §§ 21-28, 22 October 2015).
61. On 25 October 2014 some of the seized documents were returned to
Mr Aliyev’s lawyer.
E. Further developments
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331.3. Having examined the expert report, the court has the right to order a repeated
or additional expert examination – following a request lodged by one of the parties to
the criminal proceedings or on its own initiative – after hearing each of the parties.
331.4. If during the initial investigation of the criminal case an expert examination is
not ordered, then during the court proceedings the parties to the criminal proceedings
may lodge a request asking [the court] to order an expert examination.”
69. Extract from the “Guidelines for Testing Drugs under International
Control in Hair, Sweat and Oral Fluid”, issued by the United Nations Office
on Drugs and Crime, 2014:
“[H]air analysis is now considered to be the most efficient tool to investigate drug-
related histories, particularly when the period of use needs to be tested back to many
days or even months before the sampling. On these grounds, following recent
suggestions from international associations, such as the Society of Hair Testing, hair
analysis can become not only a fundamental tool in forensic toxicology and medicine,
but also a way to find traces of illicit drugs in subjects claiming abstinence for months
before sampling. Following the success of advances in hair analysis, other “alternative
biological specimens”, such as sweat and oral fluid, have gained popularity as forensic
specimens, being able to provide information in specific circumstances. As depicted in
table 1, these alternate matrices offer different detection windows. In most instances,
they show significantly different metabolic profiles when compared to traditional blood
and urine testing.
Table 1. Detection windows for drugs in various biological matrices
Specimen Detection window
Blood (serum) - Several hours to 1-2 days
Urine - Several hours to 3 days
Oral fluid - Several hours to 1-2 days (or more for basic drugs)
Sweat (patch) - Weeks
Hair - Months/years ...”
THE LAW
70. The applicant complained that the criminal proceedings against him
had been in breach of Article 6 of the Convention because he had been
convicted on the basis of planted and fabricated evidence, and because he had
not been given an opportunity either to effectively challenge that evidence
against him or to adduce evidence in his favour. The relevant part of Article 6
of the Convention reads:
“1. In the determination ... of any criminal charge against him, everyone is entitled
to a fair ... hearing ...”
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A. Admissibility
71. 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.
B. Merits
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experts, and to call his own witnesses. Even though the applicant had not been
able to commission an independent examination of the blood and urine
samples taken from him on 30 December 2009, his lawyer could have
collected fresh samples himself and submitted them for expert examination
in one of the numerous medical facilities or laboratories existing in the
country.
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secured under the Convention, the Court seeks to establish whether the
reasons provided for decisions given by the domestic courts are automatic or
stereotypical (see Moreira Ferreira, cited above, § 84). An issue with regard
to a lack of reasoning of judicial decisions under Article 6 § 1 of the
Convention will normally arise when the domestic courts ignored a specific,
pertinent and important point raised by the applicant (see Nechiporuk and
Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011; Rostomashvili
v. Georgia, no. 13185/07, § 59, 8 November 2018; and Zhang v. Ukraine,
no. 6970/15, § 73, 13 November 2018).
84. The Court notes from the outset that the applicant did not dispute,
either in the domestic proceedings or before the Court, the fact that drugs had
been found in his jacket and shoe. His main line of defence was the argument
that the criminal proceedings against him had been fabricated and that the
drugs in question had been planted on him by the authorities (see
paragraphs 31-37 and 72-73 above).
85. The Court also notes that the applicant’s conviction was based to a
decisive degree on two pieces of evidence – namely the packages containing
drugs found on the applicant during his personal search and the expert report
of 18 January 2010, which stated that the blood and urine samples taken from
the applicant contained traces of drugs.
86. All the other supporting evidence against the applicant was of
secondary importance either because it concerned circumstances not disputed
by the defence – namely the fact that drugs had been found in the applicant’s
jacket and shoe – or because they constituted the witnesses’ personal
opinions. Thus, the expert reports of 29 December 2009 and 22 January 2010
described the drugs in question and/or traces of them on the applicant’s jacket
and shoe (see paragraphs 17 and 24 above). On the basis of the report of
18 January 2010, the expert report of 19 January 2010 recommended that the
applicant be registered as a drug user (see paragraphs 26-27 above). Witness
statements given by the above-mentioned penal facility officers, attesting
witnesses and inmates either simply described the moment at which drugs
had been found and seized (see paragraph 47 above) or constituted their
personal opinion that in the premises of the penal facility it had been
impossible for drugs to be planted on the applicant by any third persons (see
paragraph 48 above) and that the applicant had allegedly been seen under the
influence of drugs in the past (see paragraph 49 above).
87. Consequently, the Court will examine whether the circumstances in
which the drugs were found on the applicant and in which the expert report
of 18 January 2010 was issued cast doubt on the reliability of those pieces of
evidence, whether the applicant was given an opportunity to effectively
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challenge their reliability and oppose their use in the domestic proceedings,
whether he was given an opportunity to effectively adduce evidence to
support his arguments, and whether the domestic courts gave sufficient
reasons for their decisions in respect of the applicant’s challenges to the
decisive incriminating evidence and his requests for the collection of other
evidence.
(ii) The manner in which the domestic authorities dealt with the reliability of the
evidence regarding the finding of the drugs
88. The Court notes that, as can be seen from the case-file material, the
applicant had no criminal history of being involved in drug related crimes
(compare Ibrahimov and Mammadov v. Azerbaijan, nos. 63571/16 and
5 others, § 119, 13 February 2020). His sentence of imprisonment was related
to his journalistic activities (see paragraphs 6-7 above).
89. The Court also notes that the two packages containing drugs were
found during the personal search conducted on the applicant, which was
ordered on the basis of alleged “operational information” that he had been
using drugs. However, neither the relevant report, nor any decisions taken
subsequently, nor the testimony given by a penal facility officer, K.S., and
the governor of the penal facility contained any specifics as regards the
collection and receipt of the operational information in question (see
paragraphs 11 and 45 above). Notably, despite the applicant’s insistence to
be allowed to question the alleged informants (see paragraph 33 above), it
remained unknown how the operational information had allegedly been
acquired by the penal facility authorities; nor was the source of the
information (the alleged informants) identified or how that source had
acquired the information (compare, mutatis mutandis, Ibrahimov and
Mammadov, cited above, § 120).
90. Moreover, while the applicant was accused of possessing drugs,
neither the investigator in charge nor the domestic courts tried to establish
how the applicant had allegedly procured the drugs in question (compare
Ibrahimov and Mammadov, cited above, § 130). At the time the criminal
proceedings against the applicant ended in November 2011, the criminal
proceedings initiated in order to establish the source of the drugs found on
him remained pending without any developments (see paragraphs 30 and 43
above).
91. The Court also notes that the personal search conducted on the
applicant was carried out on the premises of the penal facility – which meant
that the applicant was under the complete control of the authorities. In such
circumstances, the Court considers plausible the applicant’s argument that
there had been many possibilities for drugs to be planted in his personal
belongings, including his shoe and jacket. The applicant was subjected to the
search within the premises of the penal facility because he was serving a
sentence of imprisonment. Consequently, the fact that the search was carried
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FATULLAYEV v. AZERBAIJAN (No. 2) JUDGMENT
out in the penal facility was dictated by objective circumstances, which could
not be altered. Nevertheless, that fact constitutes an element to be taken into
consideration by the Court in its assessment of the reliability of the decisive
evidence in the present case (compare, mutatis mutandis, Sakit Zahidov
v. Azerbaijan, no. 51164/07, § 53, 12 November 2015, and Layijov
v. Azerbaijan, no. 22062/07, § 69, 10 April 2014, in which the applicants had
been searched only after they had been taken into police custody and had been
under the complete control of the police, and where the Court found that the
police’s failure without good reason to conduct a search immediately
following their arrest raised legitimate concerns about the possible “planting”
of evidence, in breach of Article 6 of the Convention).
92. As to the presence of attesting witnesses during the personal search of
the applicant, that could not serve as a safeguard against drugs or other
incriminating evidence being pre-planted in his personal belongings (see
Ibrahimov and Mammadov, cited above, § 127). Thus, in Ibrahimov and
Mammadov (cited above) the Court took note of observations made by a
delegation to Azerbaijan from the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment about a number
of consistent accounts of drugs or other incriminating evidence being planted
in the belongings of detained persons prior to the arrival of attesting witnesses
to official searches and seizures (ibid., §§ 83 and 127). Even though the
mentioned observations were made in 2016, several years later than the
circumstances of the present case, the Court finds those observations relevant
for the examination of the present case, considering their general nature.
93. Furthermore, the Court notes that the applicant attempted to contest
the reliability of the decisive evidence against him by, inter alia, asking the
courts to identify, summon and question the individuals who had allegedly
provided the “operational information” that he had been using drugs, to
examine the source from which the drugs had allegedly been obtained, and to
order an expert fingerprints examination of the packaging in which the drugs
had been wrapped. The applicant’s requests were substantiated by important
arguments pertinent to his line of defence (see paragraphs 31-33 and 84
above).
94. Nevertheless, the domestic courts refused to grant those requests
without any adequate and clear reason. Rather, in some instances the courts
decided in general terms that granting the applicant’s requests would not
contribute to the examination of the case (see paragraphs 39-40 above), and
in others they simply provided no reason whatsoever for not granting them
(see paragraph 43 above, concerning the applicant’s request to order an expert
fingerprints examination). In the Court’s view, examining the issues raised
by the applicant in his above-mentioned requests, in particular his request to
order an expert fingerprints examination, could have shed light on the
question of whether or not the drugs could have been planted on him.
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FATULLAYEV v. AZERBAIJAN (No. 2) JUDGMENT
95. In view of the above, the Court considers that the circumstances in
which the drugs were found on the applicant cast doubt on the reliability of
that decisive evidence against him. Furthermore, the applicant was deprived
of the opportunity to effectively challenge the reliability of the evidence in
question and to oppose its use in the domestic proceedings, and to adduce
evidence in his favour. In addition, when refusing to grant the applicant’s
requests in that regard, the domestic courts breached his right to a reasoned
decision.
(iii) The manner in which the authorities dealt with expert evidence on alleged traces
of drugs in the applicant’s blood and urine samples
96. The report of 18 January 2010 – which stated that the blood and urine
samples taken from the applicant contained traces of drugs – was akin to
incriminating evidence. It was issued following an expert examination
ordered by the investigator in charge of the case (see paragraph 19 above;
also compare Stoimenov, cited above, §§ 38-42). Therefore, the principle of
equality of arms required that the applicant be afforded an opportunity to
effectively challenge that evidence and to adduce counterevidence in his
favour.
97. The Court notes in that regard that when blood and urine samples were
taken from the applicant on the investigator’s order, a blood sample of
5 millilitres was given to the applicant’s lawyer (see paragraph 21 above).
However, the defence was not able to make any use of that sample. Thus,
according to the CCrP, the defence had no right to independently commission
an expert examination in criminal proceedings on public charges (see
paragraphs 64-66 above; also compare, mutatis mutandis, Khodorkovskiy and
Lebedev, cited above, §§ 729-30). Furthermore, an expert examination of the
blood sample for traces of drugs required a specialised complex methodology
and machinery (see paragraph 23 above) and, according to the applicant, the
medical laboratories, which the defence had approached, refused to perform
an examination of the blood sample in question (see paragraph 21 and 37
above). Even assuming that the defence could find a biological, chemical or
other laboratory capable and willing to make the requested examination, it is
doubtful that such examination, commissioned by the defence and performed
in an uncontrolled environment by a private expert, would have had any
probative value comparable to that of an expert examination ordered by the
court itself or by the prosecution. The same can also be said in respect of any
other expert examinations that the applicant wanted to be conducted – namely
a re-examination of the blood and urine samples taken from him on the
investigator’s order and an examination of his hair and nails for traces of
drugs.
98. Under the CCrP (see paragraphs 67-68 above), the defence could
challenge the report of 18 January 2010 by asking the domestic courts to order
the above-mentioned expert examinations. However, to obtain such fresh
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conduct the requested tests, it did not explain the reasons why that situation
should not lead to the application of the in dubio pro reo principle which
requires that the benefit of any doubt about the reliability of existing evidence
should be given to the defendant (see, mutatis mutandis, Ilgar Mammadov
v. Azerbaijan (no. 2), no. 919/15, § 232, 16 November 2017). Consequently,
the domestic court did not reject the expert report of 18 January 2010,
disregarding the applicant’s arguments which were relevant and cast doubts
about its reliability.
100. Therefore, having regard to the manner in which the domestic courts
dealt with the reliability of the report of 18 January 2010 and the applicants’
requests in that regard, the Court finds that the applicant was deprived
through unreasoned decisions of the opportunity to put forward arguments in
his defence on the same terms as the prosecution in respect of a key piece of
evidence.
(c) Conclusion
101. In sum, the applicant was not given an opportunity to effectively
present his main line of defence – namely the argument that the drugs in
question had been planted on him by the authorities and that the criminal
proceedings against him had been fabricated. Despite the consistency and
seriousness of those allegations made by the applicant, the domestic courts
failed to verify and investigate them, the applicant was not given an
opportunity to effectively challenge the decisive evidence against him and
adduce evidence in his favour. The domestic courts dismissed the applicant’s
procedural requests in unreasoned decisions.
102. The Court also notes that the domestic courts dismissed the
applicant’s above-mentioned allegations by simply relying on statements of
the penal facility authorities, and failed to take into consideration any
contextual evidence presented by the applicant (in particular: the history of
the applicant’s repeated prosecutions for his articles criticising the
government; the fact that the applicant had continued his journalistic
activities while he had been serving his sentence of imprisonment and could
potentially be targeted for that by some public officials; and the fact that the
criminal proceedings against the applicant had coincided with the
examination of the above-cited case of Fatullayev by the Court).
103. There has accordingly been a violation of the applicant’s right to a
fair trial protected by Article 6 § 1 of the Convention.
104. In view of the above findings, the Court considers that there is no
need to examine whether the applicant’s right to fair trial was breached also
by the fact that the personal search conducted on him had been carried out
without a search warrant issued by a court, and by the fact that his request to
be allowed to call his family and to invite his lawyer to be present during the
search had been refused. There is also no need to examine whether the fact
that under the domestic law the applicant, unlike the prosecution, had no right
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FATULLAYEV v. AZERBAIJAN (No. 2) JUDGMENT
110. The Government argued that the applicant had not raised this
complaint before the domestic courts and that, therefore, it was inadmissible
for non-exhaustion of the available domestic remedies. As to the merits of the
complaint, the Government did not make any submissions.
111. The applicant alleged that before the drugs had been planted on him
he had been threatened and subjected to physical attacks and provocations
aimed at implicating him in certain criminal offences for which he could then
be held liable (see paragraph 10 above). He also argued that his case could
not be viewed in isolation, as the authorities had frequently been using
fabricated charges against their opponents, critics, “whistle-blowers” and
dissenters in general. Several other journalists and activists had similarly been
arrested and charged with criminal offences. The applicant listed, inter alia,
cases in which the Court has delivered judgments – namely Sakit Zahidov
(cited above); Azizov and Novruzlu v. Azerbaijan, (nos. 65583/13 and
70106/13, 18 February 2021); and Ibrahimov and Mammadov (cited above);
and a case in which a strike-out decision based on a unilateral declaration by
the Government has been adopted – namely Rashad Ramazanov
v. Azerbaijan (dec.) ([Committee], no. 53596/15, 16 January 2020).
112. Having regard to the submissions of the parties and the Court’s
findings under Article 6 of the Convention (see, in particular, paragraphs 101-
103 above), the Court considers that there is no need to give a separate ruling
on the admissibility and merits of the complaint under Article 18 of the
Convention taken in conjunction with Articles 6 and 10 (compare Ilgar
Mammadov v. Azerbaijan (no. 2), no. 919/15, § 262, 16 November 2017).
A. Damage
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FATULLAYEV v. AZERBAIJAN (No. 2) JUDGMENT
117. The applicant also claimed EUR 12,000 for the costs and expenses
incurred before the domestic courts and the Court.
118. The Government submitted that the applicant had not substantiated
his claim for just satisfaction or supported it with any evidential material.
They asked the Court to adopt a strict approach and to dismiss the applicant’s
claim.
119. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown that
these were actually and necessarily incurred and are reasonable as to
quantum. Furthermore, under Rule 60 of the Rules of Court any claim for just
satisfaction must be itemised and submitted in writing together with the
relevant supporting documents or vouchers, failing which the Chamber may
reject the claim in whole or in part (see Malik Babayev v. Azerbaijan,
no. 30500/11, § 97, 1 June 2017). In the present case, regard being had to the
above criteria and the fact that the applicant did not submit any documents to
substantiate his claim for costs and expenses, the Court rejects it.
C. Default interest
120. The Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.
3. Holds that the respondent State has failed to comply with its obligations
under Article 34 of the Convention;
4. Holds that there is no need to examine the admissibility and merits of the
complaint under Article 18 of the Convention taken in conjunction with
Articles 6 and 10;
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FATULLAYEV v. AZERBAIJAN (No. 2) JUDGMENT
5. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final, in accordance
with Article 44 § 2 of the Convention, EUR 4,000 (four thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period, plus three percentage points;
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