CASE OF HAJIZADE AND ABDULLAYEV v. AZERBAIJAN

FIRST SECTION

CASE OF HAJIZADE AND ABDULLAYEV v. AZERBAIJAN

(Application no. 4854/10)

JUDGMENT
 

STRASBOURG

18 January 2024

This judgment is final but it may be subject to editorial revision.

In the case of Hajizade and Abdullayev v. Azerbaijan,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 4854/10) 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”) on 19 January 2010 by two Azerbaijani nationals, Mr Adnan Hikmet oglu Hajizade (Adnan Hikmət oğlu Hacızadə – “the first applicant”) and Mr Emin Pasha oglu Abdullayev (Emin Paşa oğlu Abdullayev – “the second applicant”, also known as Emin Milli), who were born in 1983 and 1979 and live in Seattle and Berlin respectively, and who were represented by Mr I. Ashurov (until his death) and Mr E. Guliyev (until his death), lawyers based in Azerbaijan, and Ms K. Mehtiyeva, a lawyer based in Paris;

the decision to give notice of the application to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov;

the observations submitted by the respondent Government and the observations submitted by the applicants in reply;

the comments submitted by the Media Legal Defence Initiative, the Media Rights Institute and the Index on Censorship, which had been granted leave to intervene by the President of the Section;

Having deliberated in private on 12 December 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the arrest and conviction of the applicants, well‑known bloggers, on charges of hooliganism.

2.  The applicants were among the founders of two youth organisations, the Alumni Network and OL!. As social activists, the applicants engaged in blogging, with a focus on satirical videos, some of which were critical of the authorities, and uploading them to social networking websites.

3.  On 28 June 2009 the applicants uploaded a video named “Interview with a Donkey” to YouTube and disseminated it through various social networking sites such as Facebook. The video criticised, in a satirical manner, alleged corrupt practices by Government officials.

4.  According to the applicants, on 8 July 2009, a few days after the video had been uploaded, they were at a restaurant in Baku with five friends. Two men, sitting at a nearby table, later identified as V.M. and B.H., began arguing with them about critical remarks they had overhead the applicants making about the Government. V.M. approached the applicants’ table and unexpectedly head-butted the second applicant and then assaulted the first applicant. The applicants hastily left the restaurant and headed to Police Station no. 39 of the Sabail District Police Department to report the assault. On their way to the police station, they made telephone calls to friends and informed them about the incident. Several youth activists arrived at Police Station no. 39 and saw the applicants’ injuries. At Police Station no. 39 the applicants were instructed to report the matter to Police Station no. 9, which had territorial jurisdiction. The applicants made their own way to Police Station no. 9; on arrival, they filed a criminal complaint against V.M. and B.H., who were brought to the station in police cars.

5.  According to the Government, when asked at the restaurant by V.M. and B.H. to stop swearing, the applicants responded aggressively and physically assaulted them. Police officers who were patrolling nearby came to the restaurant and escorted the persons concerned, including both applicants, to Police Station no. 9. At the police station, emergency doctors called by the police provided medical assistance to the applicants and established that the bruises on their bodies did not pose any danger to their health. Meanwhile, the next day (9 July 2009), V.M.’s condition deteriorated and he was taken by ambulance to the Clinical Medical Centre, where it was established that he had sustained a head trauma.

6.  On 8 July 2009 the investigator instituted criminal proceedings against the applicants under Article 221.2.1 (hooliganism) of the Criminal Code. He questioned the applicants and also V.M. and B.H., and organised face-to-face confrontations between them. During the initial interviews, the applicants were not informed that a criminal case had been instituted against them.

7.  On 9 July 2009 the investigator drew up records of the applicants’ detention as suspects. The applicants refused to sign these records and maintained their innocence. The records were signed by a State-appointed lawyer invited by the investigator to participate in the early procedural steps as the applicants’ representative.

8.   The investigator also questioned two witnesses, R.A. and S.R., who were the restaurant owner’s father and his business partner, and had been at the restaurant at the time of the incident. They confirmed that the applicants had assaulted V.M. and B.H.

9.  On 9 July 2009 the applicants were both charged with a criminal offence under Article 221.2.1 of the Criminal Code. Charges of deliberate infliction of minor physical injury under Article 127.2.3 of the Criminal Code were subsequently added.

10.  On 10 July 2009, in two separate decisions, the Sabail District Court remanded the applicants in custody for a period of two months, justifying these decisions by the gravity of the charges, the fact that the applicants had been charged with an offence punishable by up to five years’ imprisonment, and the likelihood that, if released, they might abscond and obstruct the investigation. The court did not, however, give any reason as to why it considered those grounds relevant to the applicants’ case or mention any case‑specific facts related to those grounds.

11.  On 20 July 2009 the Baku Court of Appeal upheld those decisions.

12.  In the meantime, a lawyer who had been instructed by the applicants lodged a complaint with the Sabail District Court, alleging violations of the applicants’ rights by the police authorities. He claimed that on 8 and 9 July 2009, despite the applicants’ clearly visible injuries, the police had handcuffed, detained and questioned them for hours and had failed to provide any medical assistance during this time.

13.  On 23 July 2009 the Sabail District Court dismissed this complaint as unsubstantiated.

14.  On 28 August 2009 the Baku Court of Appeal upheld that decision.

15.  In the course of the investigation, the investigator requested forensic examinations of the applicants and the alleged victims. According to the forensic reports, B.H. had two bruises on his body; the second applicant had a number of bruises on four different parts of his body, the first applicant had a number of bruises on four different parts of his body; and V.M. had sustained a number of injuries, including a haematoma on his head, concussion, post-traumatic head and neck pains, bleeding from the right eardrum, and a number of bruises.

16.  On 11 July 2009 the Baku City Prosecutor’s Office and the Baku City Chief Police Department, and on 14 July 2009 the Prosecutor General’s Office and the Ministry of Internal Affairs issued joint official statements to the media, stating that the applicants had been arrested for violating public order and committing the criminal offence of hooliganism.

17.  On 24 August 2009 the investigator issued a bill of indictment and filed it with the Sabail District Court.

18.  On 4 September 2009 the Sabail District Court ordered that the applicants’ detention on remand be extended, rejecting their lawyers’ requests to replace this detention by a non-custodial preventive measure.

19.  In the course of the proceedings before the first-instance court, the applicants maintained their innocence and argued that they had been the victims in the case, as it had been V.M. and B.H. who had assaulted them. They claimed that following the incident of 8 July 2009 they had gone to Police Station no. 39 to lodge a complaint against V.M. and B.H. and that they had witnesses and photographs to support their claims.

20.  During the trial the court heard evidence from R.A. and S.R., who supported the prosecution’s version of the events.

21.  The court also heard O.G., P.A., B.A., N.B. and U.H., the applicants’ friends, who had been with them at the time of the incident, and who corroborated their account of the events.

22.  The applicants also requested that the court call additional witnesses, who had not been at the restaurant during the time of the incident but who had arrived at Police Station no. 39 and had seen the applicants arrive on their own. That request was rejected by the court as unsubstantiated.

23.  On 11 November 2009 the Sabail District Court convicted both applicants as charged and sentenced them to two years’ and two years and six months’ imprisonment respectively.

24.  In convicting the applicants, the court relied on the statements by V.M., B.H., R.A. and S.R., and the forensic evidence provided by the prosecution. As to the statements by the applicants’ friends, the court concluded that these could not be relied on, since they were aimed at protecting the applicants on account of the latter’s personal relationships with their friends.

25.  The applicants appealed, complaining that the first-instance court’s judgment lacked adequate reasoning and that their right to equality of arms and adversarial proceedings had been breached.

26.  On 10 March 2010 the Baku Court of Appeal upheld the first-instance court’s judgment. The court did not, however, explain why it considered the prosecution’s evidence more reliable than that of the applicants.

27.  On 19 August 2010 the Supreme Court upheld the lower courts’ judgments.

28.   The first and second applicants were released on parole on 18 and 19 November 2010 respectively.

29.  The applicants raised a number of complaints under Article 3, Article 5 §§ 1 (c), 3 and 4, Article 6 §§ 1, 2 and 3 (b), (c) and (d), and Articles 8 and 10 of the Convention.

THE COURT’S ASSESSMENT

30.  The applicants complained under Article 3 of the Convention that despite being injured, they had been detained by the police, who had failed to provide them with adequate medical treatment and had also ill-treated them, by handcuffing them and questioning them for hours while they were injured.

31.  The relevant case-law principles pertinent to the present complaint have been summarised in Blokhin v. Russia ([GC], no. 47152/06, §§ 135-40, 23 March 2016) and Bouyid v. Belgium ([GC], no. 23380/09, §§ 86-88, ECHR 2015).

32.  In the present case, the Court notes that according to the documents available in the case file, after the incident between the applicants and V.M. and B.H., the applicants were examined by emergency doctors who established that the bruises on their bodies did not pose any danger to their health. As to the handcuffing of the applicants, the Court observes that the handcuffs were only used for short periods of time during their transportation to and from the detention facility.

33.  On the basis of the evidence before it and assessing the relevant facts as a whole, the Court cannot therefore conclude that the handcuffing and questioning of the applicants while injured, and the quality of the medical care provided to them, caused them suffering reaching the minimum level of severity required by Article 3 of the Convention.

34.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

35.  The applicants complained that they had been detained in the absence of any reasonable suspicion that they had committed a criminal offence in violation of Article 5 § 1 (c) of the Convention.

36.  The general principles relevant to the present complaint are set out in, among other authorities, Rashad Hasanov and Others v. Azerbaijan (nos. 48653/13 and 3 others, §§ 91-96, 7 June 2018).

37.  In the present case, the applicants were suspected of the offence of hooliganism when the first-instance court ordered their pre-trial detention. It is not disputed that this type of action qualified as a criminal offence under domestic law.

38.  The Court observes that the initial suspicion against the applicants was based on the following evidence: 1) statements of V.M. and B.H., with whom they had had a physical altercation; 2) the face-to-face confrontations conducted between them; 3) statements by other witnesses who identified the applicants as the men who had assaulted V.M. and B.H.; and 4) the medical report of 9 July 2009 stating that V.M. had suffered head trauma.

39.  In these circumstances, the Court considers that, within the meaning of its case-law, the above-mentioned evidence objectively linked the applicants to the alleged criminal offences and was sufficient to have created a “reasonable suspicion” against them (see Zayidov v. Azerbaijan, no. 11948/08, § 45, 20 February 2014, and Rafig Aliyev v. Azerbaijan, no. 45875/06, § 77, 6 December 2011).

40.  As to the applicants’ arguments regarding the questionable nature of the evidence used against them, and in particular their claim that the initial evidence had been clearly fabricated and was unreliable, the Court considers that these arguments relate to the issue of the admissibility and reliability of the evidence, which falls to be examined under Article 6 of the Convention in the context of fairness of criminal proceedings (ibid., § 78, and see paragraphs 47-58 below).

41.  For these reasons, the Court finds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

42.  The applicants further complained that the judicial decisions ordering their pre-trial detention had lacked relevant and sufficient reasons and that the judicial hearings concerning their continued pre-trial detention had been unfair, in violation of Article 5 §§ 3 and 4 of the Convention.

43.  In the leading cases of Farhad Aliyev v. Azerbaijan (no. 37138/06, 9 November 2010) and Isayeva v. Azerbaijan (no. 36229/11, 25 June 2015), the Court found a violation in respect of issues similar to those in the present case.

44.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of this complaint. Having regard to its case-law on the subject, the Court considers that in the present case, by using a standard formula merely listing the grounds for detention without mentioning the specific facts of the applicants’ case, as well as by dismissing their request for the replacement of remand in custody with a non-custodial preventive measure without duly examining the arguments for release put forward by them, the domestic courts failed to give “relevant” and “sufficient” reasons to justify the applicants’ pre-trial detention (compare Zayidov, cited above, § 62).

45.  This complaint is therefore admissible and discloses a violation of Article 5 § 3 of the Convention in respect of both applicants.

46.  Having regard to the above finding, the Court does not consider it necessary in the present case to examine separately, under Article 5 § 4 of the Convention, whether the judicial hearings concerning the applicants’ continued pre-trial detention were unfair (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 525, 25 July 2013).

47.  The applicants also complained under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention that: the criminal proceedings as a whole had been unfair and arbitrary; they had not been provided with adequate time and facilities for the preparation of their defence; they had not been allowed access to legal assistance of their own choosing immediately; and the domestic courts had arbitrarily refused to examine evidence and witnesses on behalf of the defence, had assessed the evidence in an arbitrary manner and had failed to provide a reasoned decision in respect of various aspects of the case.

48.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

49.  The general principles concerning the right to a fair trial have been summarised in the case of Fatullayev v. Azerbaijan (no. 2) (no. 32734/11, §§ 76-83, 7 April 2022).

50.  The Court observes that the applicants’ arguments before the first‑instance court concerned the factual circumstances of their case. From the initial interviews during the pre-trial investigation, the applicants maintained their innocence and argued that it was they who had in fact been the victims in the present case. In support of their claims, the applicants asked the courts to admit and examine as evidence the photographs supporting their account of events, namely, that after the incident at the restaurant they had told their friends about it and had gone to Police Station no. 39 to lodge a complaint against V.M. and B.H. The applicants’ account of events was furthermore supported by the statements of the friends who had been with them at the restaurant and had accompanied them to both police stations (see paragraph 21 above). In addition, the applicants requested, albeit unsuccessfully, that the courts hear other witnesses who had allegedly seen them arrive at Police Station no. 39.

51.  The Court notes that the applicants’ version of the events contradicted the prosecution’s version, according to which the applicants, and also V.M. and B.H., had been arrested in the restaurant and taken directly to Police Station No. 9.

52.  It appears that the applicants’ arguments were both important and pertinent since, if proved, they would potentially have trumped the prosecution’s account of events and called into question the plausibility of the victims’ statements and the prosecution’s witnesses, consequently affecting the outcome of the trial and possibly leading to the applicants’ acquittal. The Court considers that these arguments related to the core of the criminal case against them and called for a very specific and explicit reply (compare Cupiał v. Poland, no. 67414/11, § 63, 9 March 2023).

53.  Nevertheless, the domestic courts, without providing any adequate reasoning, rejected the applicants’ arguments and instead accepted without question the prosecution’s account of events. However, they did not provide any plausible explanation as to why the various items of evidence in support of the applicants’ arguments were considered less credible than, inter alia, the statements by the prosecution witnesses. They also failed to explain why they considered it unnecessary to hear the applicants’ additional witnesses (see paragraph 22 above), who could potentially have further strengthened the credibility of the applicants’ accounts and consequently weakened that of the prosecution.

54.  It is also not clear why the fact that the defence witnesses had a personal relationship with the applicants would lead to an assumption that they would necessarily give untruthful statements in court and risk committing perjury (see paragraph 24 above). In such circumstances, the Court considers that the domestic courts’ conclusion that the witnesses who had testified in the applicants’ favour were untruthful and biased towards the applicants was made without sufficient reasons and without due regard to their individual situations (compare Ilgar Mammadov v. Azerbaijan (no. 2), no. 919/15, § 227, 16 November 2017).

55.  Furthermore, the defects of the original trial had not been remedied by either the Court of Appeal or the Supreme Court. Both courts merely reiterated the reasoning of the first-instance court and failed to explain why the prosecution’s evidence was more reliable than that of the applicants.

56.  The Court has previously held, in examining the fairness of criminal proceedings, that by ignoring a specific, pertinent and important point made by the accused, domestic courts fall short of their obligations under Article 6 §1 of the Convention (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011, and Karimov and Others v. Azerbaijan, nos. 24219/16 and 2 others, § 30, 22 July 2021). Taking the view that in the present case the domestic courts’ decisions lacked adequate reasoning, the Court concludes that the criminal proceedings against the applicants, considered as a whole, were not compatible with the guarantees of a fair hearing.

57.  There has accordingly been a violation of the applicants’ right to a fair trial as protected by Article 6 § 1 of the Convention.

58.  In view of the above findings, the Court considers that it is not necessary to examine the remainder of the applicants’ grievances under this heading (set out in paragraph 47 above, and compare Rustamzade v. Azerbaijan (no. 2), no. 22323/16, § 44, 23 February 2023).

59.  Next, the applicants complained that the law-enforcement authorities’ press statements of 11 and 14 July 2009 had infringed their right to be presumed innocent, in violation of Article 6 § 2 of the Convention.

60.  The Court notes that the impugned statements by the law-enforcement authorities were made on 11 and 14 July 2009.

61.  The Court has established that there is no effective remedy in Azerbaijan in respect of statements made by domestic authorities concerning an applicant’s right to the presumption of innocence (see Pirali Orujov v. Azerbaijan, no. 8460/07, §§ 50-58, 3 February 2011). Therefore, such complaints should be lodged with the Court within the six-month[1] period after the date of the statement. The present application was lodged with the Court on 19 January 2010.

62.  It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-compliance with the six-month time-limit.

63.  The applicants further complained under Article 8 of the Convention that during the entire pre-trial detention period, the investigating authorities had rejected numerous requests by their family members for permission to visit them, without providing any reasonable grounds justifying the necessity of such a measure.

64.  Despite having been requested by the Court to submit a copy of any complaint made by the applicants or their relatives concerning the alleged violations of their rights under Article 8 of the Convention, and copies of any decisions taken by the domestic authorities in that regard, the parties failed to do so.

65.  Consequently, since the applicants have failed to produce any documents concerning the domestic proceedings that allegedly violated their rights under Article 8 of the Convention, or to provide any explanation for their failure to do so, the Court considers that the applicants’ complaint has not been made out.

66.  Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

67.  Lastly, the applicants complained that all of the above-mentioned alleged violations of their rights had also amounted to unjustified interference with their right to freedom of expression, in violation of Article 10 of the Convention, because the case had been fabricated to punish them for the video that they had published.

68.  Having regard to the facts of the case, the submissions of the parties, and its findings above (see paragraphs 45 and 57), the Court considers that there is no need to give a separate ruling on the admissibility and merits of the applicants’ complaint under Article 10 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

69.  The first applicant claimed 46,481.95 Azerbaijani manats (AZN) in respect of pecuniary damage, AZN 10,800 in respect of non-pecuniary damage and AZN 860 in respect of the costs and expenses incurred before the domestic courts and before the Court. The second applicant claimed AZN 56,466.85 in respect of pecuniary damage and AZN 860 in respect of the costs and expenses incurred before the domestic courts and before the Court. He also claimed non-pecuniary damage, but left the determination of the amount to the Court’s discretion.

70.  The Government contested the amounts as excessive and unsubstantiated.

71.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards each applicant 4,700 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.

72.  The Court further notes that the first applicant failed to produce any relevant documents showing that he had paid or was under a legal obligation to pay the fees charged by his representative. The second applicant failed to produce any documents in support of the claim for costs and expenses. The Court therefore dismisses this part of the applicants’ claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay each applicant, within three months, EUR 4,700 (four thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 18 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President

[1].  Protocol No. 15 to the Convention has shortened to four months from the final domestic decision the time-limit provided for by Article 35 § 1 of the Convention. However, in the present case the six-month period still applies, given that the final domestic decisions were taken prior to 1 February 2022, date of entry into force of the new rule (pursuant to Article 8 § 3 of Protocol No. 15 to the Convention).