FIFTH SECTION
CASE OF HUSEYNOV v. AZERBAIJAN
(Application no. 3899/08)
JUDGMENT
STRASBOURG
18 January 2018
This judgment is final but it may be subject to editorial revision.
In the case of Huseynov v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 12 December 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 3899/08) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Mushfig Tofig oglu Huseynov (Müşfiq Tofiq oğlu Hüseynov – “the applicant”), on 16 January 2008.
2. The applicant was represented by Ms S. Agayeva, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. On 26 May 2016 the complaints concerning the alleged lack of justification for the applicant’s pre-trial detention (Article 5 § 3 of the Convention), the absence of the applicant from the hearings concerning the extension of his pre-trial detention (Article 5 § 4 of the Convention) and the alleged violation of the applicant’s right to the presumption of innocence (Article 6 § 2 of the Convention) were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1972 and lives in Saatli.
5. The applicant was a journalist and worked for the Bizim Yol newspaper at the time of the events described below.
A. Institution of criminal proceedings against the applicant and his remand in custody
6. Following the publication of a series of articles criticising the activities of the Ministry of Labour and Social Security (“the Ministry”) written by the applicant, the head of the Ministry’s administration, R.A., contacted the applicant and asked for a meeting. They met on 11 June 2007, and then on 19 and 20 July 2007 as well. According to the applicant, during these meetings R.A. firstly demanded that he stop writing articles about the Ministry. R.A. also threatened him saying that he should not forget the case of B.H., a journalist who had been heavily beaten in May 2006. However, when R.A. realised that the applicant would continue to write articles about the Ministry’s activities, he proposed him money in exchange for stopping writing the articles. According to the applicant, at the beginning he rejected that proposal, but he later accepted it because of his difficult financial situation.
7. On 24 July 2007 they met again at a restaurant in Baku. During the meeting when the applicant received 3,500 United States dollars from R.A., agents of the Ministry of National Security (“the MNS”) intervened and arrested him.
8. On the same day criminal proceedings were instituted against the applicant under Article 311.1 (bribe-taking) of the Criminal Code.
9. On 26 July 2007 the applicant was charged under Article 311.1.
10. On the same day the Nasimi District Court ordered the applicant’s detention pending trial for a period of three months. The judge substantiated the necessity for this measure as follows:
“Taking into account the possibility of the accused’s absconding from the investigation, and the character and gravity of the crime attributed to him, I consider it necessary to apply the preventive measure of remand in custody in respect of him.”
11. On 27 July 2007 the applicant appealed against the detention order, claiming that there was no risk of his absconding or obstructing the investigation and that the court had failed to take his personal situation into consideration.
12. On 3 August 2007 the Baku Court of Appeal dismissed the appeal. The appellate court did not make mention of the applicant’s particular complaints. The relevant part of the decision reads as follows:
“The first-instance court, when deciding to apply the preventive measure of remand in custody in respect of Mushfig Huseynov, has correctly taken into account the character and degree of public dangerousness of the committed crime, the possibility of his absconding from the investigation, and the fact that the sanction provided for the commission of this act is over two years’ imprisonment.
Therefore, there is no ground for granting the appeal and quashing the impugned decision.”
13. On 17 October 2007 the prosecutor in charge of the criminal case lodged an application with the court asking for an extension of the applicant’s pre-trial detention for a period of three months. In that connection, he submitted that more time was needed to complete the investigation.
14. On 19 October 2007 the Nasimi District Court granted the prosecutor’s request by extending the applicant’s detention pending trial by three months, until 24 January 2008. The court substantiated the need for the extension by the necessity of additional time to carry out further investigative actions, as well as by the seriousness of the charge and the likelihood that if released he might abscond. It appears from the court decision and the transcript of the court hearing of 19 October 2007 that the hearing was held in the absence of the applicant and his lawyer.
15. On 22 October 2007 the applicant appealed against that decision, claiming that the first-instance court had failed to justify his continued detention and to take his personal situation into account. The applicant did not make any mention of his and his lawyer’s absence from the hearing of 19 October 2007 in his appeal.
16. On 31 October 2007 the Baku Court of Appeal dismissed the appeal, finding that the Nasimi District Court’s decision of 19 October 2007 was justified. It appears from the appellate court’s decision and the transcript of the court hearing of 31 October 2007 that the hearing was held in the absence of the applicant, but in the presence of his lawyer.
17. On 21 January 2008 the Assize Court found the applicant guilty and sentenced him to six years’ imprisonment.
18. On 4 April 2008 the Baku Court of Appeal upheld the applicant’s conviction, but reduced his sentence to five years’ imprisonment.
19. On 29 July 2008 the Supreme Court upheld the Baku Court of Appeal’s judgment of 4 April 2008.
20. On 25 December 2009 the applicant was released from serving the remainder of his sentence after being pardoned by a presidential decree.
B. Broadcast of a television programme concerning the applicant’s arrest
21. On 1 August 2007 a television programme concerning the applicant’s arrest on 24 July 2007 was broadcast on a private television channel. It appears from the transcript of the broadcast that the programme began with a narrated section, the transcript of which reads as follows in its relevant part:
“Although in the Republic of Azerbaijan, which has chosen to take a democratic development path, all the legislative guarantees and comprehensive conditions have been established for freedom of speech and of the press, it is still possible to encounter members of the press who violate the requirements, established by the Mass Media Act, prohibiting abuse of the freedom of the press and performance of unlawful actions incompatible with journalistic ethics. One of these undesirable members of the mass media is the editor of the Bizim Yol newspaper, Huseynov Mushfiq Tofig oglu – who was accused of having committed serious and especially serious crimes and was convicted of libel and defamation under Articles 147.2 and 148 of the Criminal Code of the Republic of Azerbaijan by the Nasimi District Court’s judgment of 25 April 2006 – [he] did not draw conclusions from that and committed an even more serious crime, bribe-taking ...”
22. The programme then showed the video recordings, filmed by the law-enforcement authorities, of the meeting and dialogue between the applicant and R.A., and of the applicant’s arrest by the agents of the MNS when he was taking money from R.A. At the end of the programme the narrator stated that the criminal investigation was ongoing and that the public would be informed of further developments.
II. RELEVANT DOMESTIC LAW AND PRACTICE
23. The relevant provisions of the Code of Criminal Procedure concerning the pre-trial detention are described in detail in the Court’s judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83-102, 9 November 2010) and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35‑49, 9 December 2010). The relevant decisions of the Plenum of the Supreme Court concerning the pre-trial detention are described in detail in the Court’s judgment in Allahverdiyev v. Azerbaijan (no. 49192/08, §§ 31‑32, 6 March 2014).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
24. The applicant complained under Article 5 of the Convention that the domestic courts had failed to justify the need for his detention and provide reasons for his continued detention. The Court considers that this complaint falls to be examined under Article 5 § 3 of the Convention, which reads as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
26. The applicant maintained his complaint.
27. The Government contested the applicant’s submissions, stating that the domestic courts had g
