Communicated on 9 April 2018
FIFTH SECTION
Application no. 63571/16
Giyas IBRAHIMOV against Azerbaijan
and 6 other applications
(see list appended)
STATEMENT OF FACTS
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants (for further details see the Appendix) are three members of NIDA civic movement (“NIDA”) and known for their active participation in anti-government demonstrations and criticising the Government on social networks.
On various dates in 2016 the applicants engaged in expressing their discontent with the Government in different forms. Specifically, Mr Gahraman posted a Facebook post concerning the upcoming constitutional referendum and Mr Ibrahimov and Mr Mammadov painted graffiti on the statue of the former president of the Republic of Azerbaijan, Mr Heydar Aliyev. Shortly after these events, the applicants were approached by police officers in the street and brought to police stations. While in police custody the applicants were subjected to bodily searches and various quantities of heroin were found on them. As regards two applicants, Mr Ibrahimov and Mr Mammadov, the police also searched their flats where large quantities of heroin were discovered. According to the applicants, the drugs in question were planted by police officers.
Once in police custody the applicants were denied access to lawyers of their own choosing and were not able to inform their families about their arrest. They claim to have been ill-treated, humiliated and threatened with rape by police officers with a view to punishing them for their actions and extracting confessions from them. As a result, the applicants were forced to confess to the crimes which they alleged not to have committed.
The applicants were charged under the relevant provisions of the Criminal Code with drug trafficking. In charging the applicants, investigators relied on material evidence found on the applicants’ persons and in their flats as well as the confessions given by the applicants.
The domestic courts, based on the official charges brought against the applicants and the prosecutor’s request for the application of the preventive measure of remand in custody, ordered the applicants’ detention pending trial. In their submissions before the domestic courts the applicants complained, in particular, that there was no reasonable suspicion that they had committed criminal offences, that the drugs had been planted by police officers, they had been ill-treated with a view to extracting confessions and that the actual reason for their arrest were their anti-government actions. According to the applicants, their complaints were ignored by the domestic courts.
Further relevant information about the circumstances of the cases is summarised in the Appendix.
COMPLAINTS
The applicants raise various complaints under Articles 3, 5, 6, 8, 10, 13 and 18 of the Convention.
The complaints of each of the applicants are set out in detail in the Appendix.
COMMON QUESTIONS TO THE PARTIES
1. Were the applicants subjected to torture, inhuman or degrading treatment or punishment during their arrest and detention, in breach of Article 3 of the Convention?
In answering that question the Government are requested to address, inter alia, the following points concerning the circumstances surrounding the applicants’ alleged ill-treatment:
(a) Were the applicants informed of their rights? If so, when, and what rights were they informed about?
(b) Were they given the possibility of informing their families about their apprehension and, if so, when?
(c) Were they given access to a lawyer and, if so, when? Was that a lawyer on duty invited by a police officer or an investigator, or a lawyer of the applicants’ own choice? If given initially a State-appointed lawyer, when did the applicants receive access to a lawyer of their choice?
(d) Were they given access to a doctor and, if so, when?
The Government are requested to provide relevant procedural and other documents in support of their answers, records of the applicants’ apprehension; records of the applicants’ entering and leaving the police station and of their admission to the pre-trial detention facility; any documents attesting to their state of health and injuries recorded during the period in police custody and in the pre-trial detention facility.
2. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), did the State conduct an investigation in compliance with Article 3 of the Convention?
The Government are requested to submit copies of the materials of the investigation file into the applicants’ allegations of ill-treatment.
3. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? Was their detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion?
In answering those questions the Government are requested to address, inter alia, the following points concerning the circumstances surrounding the applicants’ arrest and detention:
(a) As regards the events prior to the applicants’ arrest, did the authorities have good reasons for mounting the operative search measure against the applicants?
(b) As regards the applicants’ arrest, what investigative activities, where, when and by whom were conducted with the applicants’ participation during the period between the moment of their actual apprehension by police officers and until the moment when they were transferred to the pre-trial detention facility?
(c) As regards the events after the applicants’ arrest, apart from the narcotic substances found on the applicants’ persons and in their flats, what was other material relied on by the investigative authorities and examined by the courts to verify if the reasonable suspicion underpinning the applicants’ pre-trial detention existed and persisted throughout the entire period in question?
The Government are requested to provide relevant procedural and other documents in support of their answers, including, for example, testimonies of police informants, if any, which might have triggered the opening of criminal investigation and the decision to conduct an operative search measure against the applicants; materials relating to the investigative activities carried out and to evidence available in the criminal case-file concerning the applicants’ alleged involvement in drug-trafficking; and documents concerning the applicants’ pre-trial detention.
4. Did the domestic courts give sufficient and relevant reasons for the applicants’ detention for the purposes of Article 5 § 3 of the Convention? Did they consider alternative measures to their continued detention?
5. Did the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?
6. Has there been an interference with the applicants’ freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 of the Convention?
7. Were the restrictions imposed by the State in the applicants’ cases, purportedly pursuant to Article 5 of the Convention, applied for a purpose other than those envisaged by those provisions, contrary to Article 18 of the Convention?
As regards the applications nos. 63571/16 and 74143/16, did painting of graffiti in public places, including monuments, constitute an offense under Azerbaijani administrative or criminal law? If yes, did the authorities initiate proceedings into painting of graffiti on the statue of Heydar Aliyev and what was the outcome of those proceedings?
As regards the application no. 14307/17, the parties are requested to provide a copy of the post allegedly published by the applicant on Facebook with its translation into English.
CASE SPECIFIC QUESTIONS
Application no. 14307/17
1. Was the applicant subjected to treatment in breach of Article 3 of the Convention on account of his confinement in a metal cage in the courtroom?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of the Convention about ill-treatment by the police, as required by Article 13 of the Convention?
Application no. 74143/16
Was the refusal of the domestic courts to examine on merits the applicant’s request for release of 20 September 2016 in compliance with Article 5 § 4 of the Convention?
Applications nos. 39541/17 and 39527/17
1. Was there an interference with the applicants’ right to respect for their 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? In particular, were the searches of the applicants’ persons and home circumscribed by the safeguards against abuse?
In support of their answers, the Government are requested to provide detailed information on the manner in which the searches of the applicants’ persons and home were conducted and to submit the relevant materials, including video recordings of the searches, if any, witness testimonies, records and decisions concerning those searches.
2. Were the restrictions imposed by the State in these cases, purportedly pursuant to Article 8 of the Convention, applied for a purpose other than those envisaged by this provision, contrary to Article 18 of the Convention?
APPENDIX
No.
Applicant name
date of birth
place of residence
nationality
Application
no. and date of introduction
Represented by
Events preceding the applicant’s arrest
Date of the arrest and description of the charges
Decisions concerning the applicant’s ill‑treatment complaints
Decisions concerning the applicant’s pre-trial detention and grounds for detention
Decisions concerning the search
Complaints
Giyas IBRAHIMOV
03/08/1994
Baku
Azerbaijani
63571/16
25/10/2016
2890/17
20/12/2016
39541/17
08/05/2017
Elchin SADIQOV
On 9 May 2016 the applicant painted graffiti on the statue of the former president of the Republic of Azerbaijan, Mr Heydar Aliyev. The graffiti read "Fuck the system" and “Happy Slave Day”, which is a play on words for “Happy Flower Day”, celebrated on 10 May, the same day as Mr Heydar Aliyev’s birthday.
Arrested on 10 May 2016 and charged under Articles 234.4.1 and 234.4.3 (illegal preparation, possession, purchase, transportation and sale of narcotic substances in large quantities and committed by an organised group) of the Criminal Code.
Decision of 7 June 2016 of the Baku prosecutor’s office refusing to open a criminal case.
Decision of 14 September 2016 of the Sabail District Court (as upheld on appeal on 6 October 2016) finding the prosecutor’s decision lawful.
Decision of 12 May 2016 of the Khatai District Court (as upheld on appeal on 19 May 2016) ordering the applicant’s detention for four months.
Decision of 20 May 2016 (as upheld on 26 May 2016) dismissing the applicant’s request for release pending trial.
The gravity of the criminal offences, risks of absconding and reoffending.
Decision of 27 September 2016 of the Nizami District Court (as upheld on appeal on 12 October 2016) finding the search lawful.
The text of the final decision was received by the applicant on 24 April 2017.
Art. 3 – ill-treatment in police custody with a view to extracting a confession and failure to conduct an effective investigation.
Art. 5 § 1 (c) – lack of reasonable suspicion.
Art. 5 § 3 – failure of domestic courts to give sufficient and relevant reasons for detention.
Art. 5 § 4 – failure to address specific arguments in favour of release.
Art. 6 and 8 – unlawfulness of the searches of his person and home and the domestic courts’ failure to scrutinize the unlawfulness of the search.
Art. 10 – fabricated charges for anti-government slogans
Art. 18 – arrest, detention and searches had the purpose of punishing the applicant for his anti-government protest.
Bayram MAMMADOV
01/03/1995
Baku
Azerbaijani
74143/16
10/11/2016
2883/17
20/12/2016
39527/17
03/05/2017
Elchin SADIQOV
On 9 May 2016 the applicant painted graffiti on the statue of the former president of the Republic of Azerbaijan, Mr Heydar Aliyev. The graffiti read "Fuck the system" and “Happy Slave Day”, which is a play on words for “Happy Flower Day”, celebrated on 10 May, the same day as Mr Heydar Aliyev’s birthday.
Arrested on 10 May 2016 and charged under Articles 234.4.1 and 234.4.3 (illegal preparation, possession, purchase, transportation and sale of narcotic substances in large quantities and committed by an organised group) of the Criminal Code.
Decision of 7 June 2016 of the Baku prosecutor’s office refusing to open a criminal case.
Decision of 14 September 2016 of the Sabail District Court (as upheld on appeal on 6 October 2016) finding the prosecutor’s decision lawful.
Decision of 12 May 2016 of the Khatai District Court (as upheld on appeal on 19 May 2016) ordering the applicant’s detention for four months.
Decision of 20 May 2016 (as upheld on 26 May 2016) dismissing the applicant’s request for release pending trial.
Decision of 6 September 2016 (as upheld on 14 September 2016) extending the applicant’s detention for two months.
Decision of 23 September 2016 (as upheld on 14 October 2016) refusing to examine the applicant’s request for release on merits.
The gravity of the criminal offences, risks of absconding and reoffending.
Decision of 13 October 2016 of the Sabunchu District Court (as upheld on appeal on 2 November 2016) finding the search lawful.
The text of the final decision was received by the applicant on 4 November 2016.
Art. 3 – ill-treatment in police custody with a view to extracting a confession and failure to conduct an effective investigation.
Art. 5 § 1 (c) – lack of reasonable suspicion.
Art. 5 § 3 – failure of domestic courts to give sufficient and relevant reasons for detention.
Art. 5 § 4 and 6 – failure of domestic courts to address specific arguments in favour of release and to examine on merits one of his requests for release.
Art. 6 and 8 – unlawfulness of the searches of his person and home and the domestic courts’ failure to scrutinize the unlawfulness of the search.
Art. 10 – fabricated charges for anti-government slogans
Art. 18 – arrest, detention and searches had the purpose of punishing the applicant for his anti-government protest.
Elgiz GAHRAMAN
01/11/1986
Baku
Azerbaijani
14307/17
16/02/2017
Nemat KARIMLI
On an unspecified date the applicant wrote a post on Facebook concerning the constitutional referendum to be held on 26 September 2016.
Arrested on 12 August 2016 and charged under Article 234.4.3 (illegal preparation, possession, purchase, transportation and sale of narcotic substances in large quantities).
Decision of 17 October 2016 of the Prosecutor General’s Office refusing to open a criminal case.
Decision of 5 December 2016 of the Sabail District Court (as upheld on appeal on 20 December 2016) finding the prosecutor’s decision lawful.
Decision of 13 August 2016 of the Narimanov District Court (as upheld on 18 August 2016) ordering the applicant’s detention for four months.
Decision of 29 September 2016 (as upheld on 7October 2016) dismissing the applicant’s request for release pending trial.
The gravity of the charges, risks of absconding and disrupting the investigation and reoffending.
N/A
Art. 3 – ill-treatment in police custody with a view to extracting a confession and failure to conduct an effective investigation.
Art. 3 – detention in a metal cage in the courtroom.
Art. 5 § 1 (c) – lack of reasonable suspicion and unjustified detention.
Art. 5 § 4 and 13 – failure to address specific arguments in favour of release and lack of effective remedies in relation to his complaints under Article 5.
Art. 10 – real reason for arrest and detention was related to his anti-government Facebook post.
Art. 13 - lack of effective remedies in relation to his complaint concerning ill-treatment by the police.
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