Communicated on 19 November 2014
FIRST SECTION
Application no. 68762/14
Intigam ALIYEV against Azerbaijan
lodged on 16 October 2014
STATEMENT OF FACTS
The applicant, Mr Intigam Kamil oglu Aliyev, is an Azerbaijani national, who was born in 1962 and lives in Saray. He is represented before the Court by Ms R. Remezaite and Mr J. Javadov, lawyers practising, respectively, in London and Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Institution of criminal proceedings against the applicant and his remand in custody
The applicant is a well-known human rights advocate and civil society activist.
He is the chairman of the Legal Education Association (“the Association”), a non-governmental organisation specialised in legal education. The Association organised, in particular, trainings for lawyers, human rights defenders and journalists, prepared reports relating to various human rights issues in Azerbaijan and conducted projects relating to the preparation of complaints to the Court.
The applicant is also the representative of the applicants before the Court in about 130 pending cases, dozens of which concern the alleged irregularities in the parliamentary elections of 2010.
On 13 May 2014 the Prosecutor General’s Office instituted criminal proceedings under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of non-governmental organisations, including the Association.
On 7 July 2014 the Sabail District Court ordered a freezing injunction in respect of the applicant’s and the Association’s bank accounts.
On 7 August 2017 the applicant was invited to the Prosecutor General’s Office for questioning as a witness in connection with the above-mentioned criminal proceedings. The questioning was scheduled for 8 August 2014.
At 9 a.m. on 8 August 2014 the applicant arrived at the premises of the Prosecutor General’s Office. According to the applicant, his interrogation lasted about thirty minutes during which he was questioned about his biography and family.
Following the end of the interrogation, the investigator issued a decision charging the applicant under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code.
On the same day the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s request for the application of the preventive measure of remand in custody, ordered the applicant’s detention for a period of three months. The court justified the application of the preventive measure of remand in custody by the gravity of the charges and the likelihood that if released he might abscond from the investigation and influence other participants in the criminal proceedings.
On 11 August 2014 the applicant appealed against this decision, claiming that his detention was unlawful. He stated, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for the application of the preventive measure of remand in custody. He pointed out in this respect that the court had failed to justify his detention on remand and to take into account his personal circumstances, such as his social and family status, his state of health and his age, when it ordered his remand in custody. The applicant further complained relying on Article 18 of the Convention that he had been deprived of his liberty because of his activity as a human rights activist. He submitted in this connection that the actual reason for his arrest was the fact that he represented numerous applicants before the Court in cases relating to election irregularities.
On 13 August 2014 the Baku Court of Appeal dismissed the applicant’s appeal, finding that the first-instance court’s decision was lawful.
B. Search at the applicant’s home and at the Association’s office
On 7 August 2014 the Nasimi District Court ordered a search at the Association’s office and “other places of storage” (digər saxlanc yerləri) relying on the prosecutor’s request in this respect.
On 8 August 2014 the investigator carried out a search at the applicant’s home on the basis of the Nasimi District Court’s decision of 7 August 2014. According to the search record of 8 August 2014, the search was carried out in the presence of the applicant’s lawyer, members of his family and two attesting witnesses (hal şahidi). The investigator seized all the documents, computers, USB flash drives and other electronic data storage devices. On the same day the investigator also carried out a search at the applicant’s brother’s home where the applicant was officially registered as a resident.
On 9 August 2014 the investigator carried out a search at the Association’s office. It appears from the search record of 9 August 2014 that all the documents found in the office, including the case files and documents relating to the applications pending before the Court and the domestic courts, were taken by the investigator.
On an unspecified date the applicant lodged a complaint with the Nasimi District Court claiming that the searches had been unlawful. Relying on Article 8 of the Convention, he complained that there had been no legal basis for carrying out the searches. He also complained that the investigator had failed to register each seized document as required by the relevant law and had taken the documents without making an inventory. He further complained about the seizure of numerous documents and files relating to the ongoing court proceedings before the Court and the domestic courts.
On 12 September 2014 the Nasimi District Court dismissed the applicant’s claim. The first-instance court held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic court, it found that they could not be returned to the applicant at this stage of the proceedings.
On 15 September 2014 the applicant appealed against this decision reiterating his previous complaints. He asked, in particular, the appellate court to declare the searches unlawful, to order the return of the documents relating to the cases pending before the Court and the domestic courts, and to provide him with a copy of all the seized documents in order to prepare his defence.
On 23 September 2014 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision of 12 September 2014.
C. The applicant’s request for release on bail or replacement of his pre-trial detention by house arrest
On 3 September 2014 the applicant lodged a request with the Nasimi District Court asking the court to release him on bail or to place him under house arrest in lieu of being remanded in custody. He argued that his continued detention was unjustified and that he had been detained because of his activity as a human rights activist.
On 12 September 2014 the Nasimi District Court dismissed the request, finding that there was no need to change the preventive measure of remand in custody.
On 22 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision.
COMPLAINTS
1. The applicant complains under Article 5 § 1 of the Convention that his arrest and detention were unlawful because there was no reasonable suspicion that he had committed a criminal offence.
2. The applicant complains under Article 5 § 3 of the Convention that the domestic courts failed to justify the application of the preventive measure of remand in custody in his respect and that there were no relevant and sufficient reasons for his continued detention.
[A1]3. The applicant complains under Article 5 § 4 of the Convention that the domestic courts failed to address his specific arguments in support of his release.
4. The applicant complains under Article 8 of the Convention that his right to respect for his private and family life, his home and his correspondence was violated because the search at his home and at the Association’s office, and the seizure of all the documents and electronic items were unlawful.
5. The applicant complains under Article 11 of the Convention that his right to freedom of association was violated because his arrest and detention were intended to silence him as an NGO activist.
6. Relying on Article 18 of the Convention, the applicant complains that his Convention rights were restricted for purposes other than those prescribed in the Convention. In particular, he argued that his deprivation of liberty and the seizure of the files relating to the pending cases before the Court were intended to prevent him from representing numerous applicants before the Court in high-profile cases relating to election irregularities and deprivations of property.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was his detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion?
2. Did the domestic courts give sufficient and relevant reasons for the applicant’s detention for the purposes of Article 5 § 3 of the Convention? Did they consider alternative measures to his continued detention?
3. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
4. Has there been an interference with the applicant’s right to respect for his private and family life, home or correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
5. Has there been an interference with the applicant’s freedom of association within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?
6. Were the restrictions imposed by the State in the present case, purportedly pursuant to Articles 5 and 8 of the Convention, applied for a purpose other than those envisaged by those provisions, contrary to Article 18 of the Convention?
7. The parties are requested to submit copies of all documents relating to the proceedings concerning the applicant’s arrest and pre-trial detention (including the record of questioning of the applicant as a witness on 8 August 2014), as well as the search at his home and at the Association’s office.
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