CASE OF RASHAD HASANOV AND OTHERS v. AZERBAIJAN

FIFTH SECTION

CASE OF RASHAD HASANOV AND OTHERS v. AZERBAIJAN

(Applications nos. 48653/13 and 3 others – see appended list)

JUDGMENT

STRASBOURG

7 June 2018

FINAL

07/09/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Rashad Hasanov and Others v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
André Potocki,
Yonko Grozev,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 7 May 2018,

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

PROCEDURE

1. The case originated in four applications (nos. 48653/13, 52464/13, 65597/13 and 70019/13) 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 four Azerbaijani nationals, Mr Rashad Zeynalabdin oglu Hasanov (Rəşad Zeynalabdin oğlu Həsənov – “the first applicant”), Mr Zaur Araz oglu Gurbanli (Zaur Araz oğlu Qurbanlı – “the second applicant”), Uzeyir Mahammad oglu Mammadli (Üzeyir Məhəmməd oğlu Məmmədli – “the third applicant”) and Mr Rashadat Fikrat oglu Akhundov (Rəşadət Fikrət oğlu Axundov – “the fourth applicant”) (“the applicants”), on various dates in 2013 (see Appendix).

2. The applicants were represented by various lawyers practising in Azerbaijan (see Appendix). The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicants alleged that their right to liberty had been breached because they had been unlawfully detained in the absence of a reasonable suspicion that they had committed a criminal offence. They also alleged that the domestic courts had failed to justify their pre-trial detention, and that there had been no relevant and sufficient reasons for their continued detention.

On 18 December 2015 (applications nos. 48653/13, 65597/13 and 70019/13) and 9 March 2016 (application no. 52464/13), the complaints concerning the alleged absence of a reasonable suspicion that the applicants had committed a criminal offence (Article 5 § 1 (c) of the Convention), the alleged lack of justification for the applicants’ pre-trial detention (Article 5 § 3 of the Convention) and, ex officio, an issue under Article 18 of the Convention were communicated to the Government. On 18 December 2015 the remainder of applications nos. 48653/13 and 65597/13 were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants’ years of birth and home addresses are listed in the Appendix.

A. Background information

5. The applicants are civil society activists. They are board members of the civic movement NIDA, a non-governmental organisation established by a group of young people in February 2011. According to its manifesto, NIDA wants liberty, justice, truth and change in Azerbaijan and it rejects violence and uses only non-violent methods of struggle. NIDA is governed by a board of members composed of seven people. The first, second and fourth applicants are also co-founders.

6. In January and March 2013 a number of peaceful demonstrations were held in Baku in protest against the death of soldiers in the Azerbaijani army in non-combat situations. The demonstrations were organised through social media and the applicants and other members of NIDA actively participated in organising and conducting them. One of the demonstrations was scheduled for 10 March 2013 in the city centre.

7. On 7 March 2013 three members of NIDA (S.N., B.G. and M.A.) were arrested by agents of the Ministry of National Security (“the MNS”). Domestic proceedings concerning the arrest and pre-trial detention of S.N. and M.A. are the subject of other applications pending before the Court (see applications nos. 70106/13 and 65583/13).

8. On 8 March 2013 the Prosecutor General’s Office and the MNS made a joint public statement to the press, stating that “illegal attempts to undermine the social-political stability established in the country have recently been made by some radical destructive forces” (son dövrlər radikal yönümlü bəzi destruktiv qüvvələr tərəfindən ölkədə bərqərar olmuş ictimai-siyasi sabitliyin pozulmasına yönəlmiş qanunazidd cəhdlər göstərilir). The statement was also public confirmation that S.N., B.G. and M.A. had been arrested for planning to incite violence and civil unrest during the unlawful demonstration scheduled for 10 March 2013. It also said that criminal proceedings had been instituted against S.N., B.G. and M.A. as narcotic substances had been found in their flats. It further stated that nineteen Molotov cocktails had been found in B.G.’s flat, three Molotov cocktails had been found in S.N.’s flat and twenty-eight leaflets worded “Democracy urgently needed (təcili demokratiya tələb olunur), tel: + 994, address: Azerbaijan” had been found in M.A.’s flat. In that connection, the statement said that “it was established during the preliminary investigation that since mid-2012 all three individuals, being addicted to narcotic substances and becoming members of NIDA through the Internet, had actively participated in a number of illegal activities of the organisation and prepared a flammable liquid known as Molotov cocktails, found in their flats” (İlkin istintaqla müəyyən edilmişdir ki, hər üç şəxs 2012-ci ilin ortalarından etibarən internet vasitəsilə “Nida” vətəndaş hərəkatının üzvləri və narkotika aludəçisi olmaqla, təşkilatın bir sıra qanunsuz tədbirlərində fəal iştirak etmiş və yaşadıqları mənzillərdən aşkar edilmiş “Molotov kokteyli” adlanan tez alışan maye onlar tərəfindən hazırlanmışdır).

9. On the same day NIDA made a public statement, saying that the arrest of S.N., B.G. and M.A. had been politically motivated and had aimed to silence the protesters by creating a feeling of fear among them before the demonstration of 10 March 2013.

10. It appears from the documents in the case file that on the basis of the investigator’s decision of 8 March 2013 twenty-two Molotov cocktails found in the flats of S.N. and B.G. were submitted for an expert examination, which began on 12 March 2013. Expert report no. 4503/04, dated 10 April 2013 and signed by two experts, concluded that twenty of the Molotov cocktails “were only flammable (incendiary) tools which could not be considered explosive devices”. The report further stated that the two remaining Molotov cocktails could be considered explosive devices because there had been a syringe with gunpowder attached to the bottles.

B. Institution of criminal proceedings against the applicants and their remand in custody

11. On 14 March 2013 the first applicant, on 30 March 2013 the third and fourth applicants and on 1 April 2013 the second applicant were arrested and taken to the Serious Crimes Department of the Prosecutor General’s Office.

12. It appears from the documents in the case file that on the respective dates of their arrest the applicants were informed that they had been charged with an offence under Article 228.3 (illegal acquisition, transfer, sale, storage, transportation and carrying of arm, its accessories, supplies, explosive substances and devices by an organised group) of the Criminal Code. The decisions charging the applicants were made on various dates but by the same investigator. They were identical in their wording except for the name of the person charged. The description of the charges consisted of a single sentence half a page long. The relevant part of the decision concerning the first applicant stated:

“... Rashad Zeynalabdin oglu Hasanov has been charged on the basis of sufficient charging evidence because in early March 2013 in Baku, in an organised group with B.G., S.N. and others with whom he had close ties, [he] unlawfully obtained twenty‑two glass bottles of explosive devices known as Molotov cocktails, which are prepared with flammable liquid petrol as an explosive substance by inserting a cotton rag preventing the liquid from dispersing and evaporating, as well as acting as a fuse, [and arranged storage] until 7 March 2013 by giving nineteen of them to B.G. who lives in ... and three of them to S.N. who lives in ...

Through these actions, Rashad Zeynalabdin oglu Hasanov committed a criminal offence under Article 228.3 of the Criminal Code of the Republic of Azerbaijan.

...”

13. On the respective dates of their arrest the First Deputy Prosecutor General of the Republic of Azerbaijan requested that the courts remand each applicant in custody (həbs qətimkan tədbiri). In each case, the prosecutor used the exact same wording as in the decisions charging the applicants.

14. On the same dates the applicants were brought before a judge of the Nasimi District Court. Referring to the official charges brought against them and the prosecutor’s requests to remand them in custody, the judges ordered their detention for a period of three months. It appears from the transcripts of the court hearings before the Nasimi District Court available in the case file that the applicants denied the charges against them, stating that their arrest was related to their social and political engagement. Although the Nasimi District Court’s decisions were delivered on various dates and by different judges, their wording was almost identical. Each time, the judges justified the applicants’ detention pending trial by the gravity of the charges and the likelihood that if released they might abscond or obstruct the investigation. Moreover, in respect of the first applicant, the judge also noted that the first applicant had avoided the investigation until his arrest on 14 March 2013 because he had been wanted by the police since 10 March 2013 on the basis of the investigator’s decision charging him with a criminal offence under Article 228.3 of the Criminal Code.

15. On various dates in March and April 2013 the applicants appealed against the decisions ordering their pre-trial detention. They complained that there was no evidence that they had committed a criminal offence and there had been no justification for their detention pending trial. The first applicant also submitted that he had never been informed of any decision of the investigator charging him with a criminal offence until his arrest on 14 March 2013. In that connection, he pointed out that between 10 and 14 March 2013 he had not gone into hiding and had actively participated in the political life of the country, giving an interview to a newspaper and participating in the gathering of a political movement.

16. On various dates in March and April 2013 the Baku Court of Appeal dismissed the applicants’ appeals, finding that the detention orders were justified. In that connection, the appellate court held that the Nasimi District Court had correctly taken into account the seriousness of the criminal offence attributed to the applicants and the likelihood that if released they might abscond or obstruct the normal functioning of the investigation.

C. Extension of the applicants’ pre-trial detention

1. In respect of the first applicant

17. On 26 April 2013 the first applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre‑trial detention. He claimed, in particular, that his detention was not justified and that there was no reason for it to continue. In support of his request, he pointed out that he had a permanent address, had never been convicted, and that there was no risk of his absconding or obstructing the investigation.

18. On 27 April 2013 the Nasimi District Court dismissed the request, finding it unfounded.

19. On 3 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

20. On 29 May 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the first applicant’s pre-trial detention of three months, submitting that more time was needed to complete the investigation.

21. On 30 May 2013 the Nasimi District Court extended the first applicant’s detention pending trial until 7 September 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges, and the likelihood that if released the first applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings.

22. On 3 June 2013 the first applicant appealed against that decision. He complained, in particular, that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to justify the extension of his detention pending trial.

23. On 6 June 2013 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court’s decision of 30 May 2013.

24. No further extension decisions were included in the case file.

2. In respect of the second applicant

25. On 26 April 2013 the second applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre‑trial detention. He claimed, in particular, that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration.

26. On 30 April 2013 the Nasimi District Court dismissed the request, finding it unfounded.

27. On 6 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

28. On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the second 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.

29. On 24 June 2013 the Nasimi District Court extended the second applicant’s detention pending trial by three months, until 1 October 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges and the need for additional time to carry out further investigative measures.

30. On 27 June 2013 the second applicant appealed against that decision, reiterating that there was no evidence that he had committed a criminal offence and that the Nasimi District Court had failed to justify his continued detention.

31. On 1 July 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of the second applicant’s detention pending trial was justified.

32. On 15 July 2013 the second applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention, reiterating his previous arguments.

33. On 17 July 2013 the Nasimi District Court dismissed the request, finding that the grounds for his pre-trial detention had not changed.

34. On 25 July 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

35. On 17 September 2013 the prosecutor lodged a request with the court asking for an extension of the second applicant’s pre-trial detention for a period of two months. The prosecutor gave as the reason for the need to extend the detention the complexity of the case and the need for more time for the accused and his lawyer to familiarise themselves with the material in the case file.

36. On 18 September 2013 the Nasimi District Court extended the second applicant’s detention pending trial by two months, until 1 December 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges, the need for additional time to carry out further investigative measures and the likelihood that if released the second applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings.

37. On 27 September 2013 the Baku Court of Appeal upheld the first‑instance court’s decision.

38. No further extension decisions were included in the case file.

3. In respect of the third applicant

39. It appears from the documents in the case file that on an unspecified date in May 2013 the third applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention. In that regard the Court notes that it explicitly requested the Government to submit copies of all the documents relating to the applicants’ pre-trial detention; they failed to do so.

40. On 17 May 2013 the Nasimi District Court dismissed the request, finding that there was no need to use an alternative preventive measure to custody.

41. On 23 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

42. On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the third applicant’s pre-trial detention for a period of three months, submitting that more time was needed to complete the investigation.

43. On 22 June 2013 the Nasimi District Court extended the third applicant’s remand in custody by three months, until 30 September 2013. The court substantiated the need for the extension by the gravity of the charges, the risk of his reoffending, and the likelihood that if released he might abscond or obstruct the investigation.

44. It appears from the documents in the case file that on an unspecified date in June 2013 the third applicant appealed against that decision. The Government did not make a copy of the appeal available to the Court.

45. On 27 June 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of his detention pending trial was justified.

46. On 30 July 2013 the third applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention. He claimed that his continued detention was not justified and that no investigative measures had been carried out since the beginning of his pre-trial detention.

47. On 31 July 2013 the Nasimi District Court dismissed the request.

48. On 7 August 2013 the Baku Court of Appeal upheld the first‑instance court’s decision.

49. No further extension decisions were included in the case file.

4. In respect of the fourth applicant

50. On 15 April 2013 the fourth applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre‑trial detention. He claimed, in particular, that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration.

51. On 17 April 2013 the Nasimi District Court dismissed the request.

52. On 22 April 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

53. On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant’s pre-trial detention for a period of three months, submitting that more time was needed to complete the investigation.

54. On 24 June 2013 the Nasimi District Court extended the fourth applicant’s remand in custody by three months, until 30 September 2013. The court substantiated the need for the extension by the complexity of the case, the need for additional time to carry out further investigative measures and the possibility of the fourth applicant’s absconding or influencing persons participating in the criminal proceedings.

55. On 25 June 2013 the fourth applicant appealed against that decision, reiterating that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to justify his continued detention.

56. On 4 July 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of his detention pending trial was justified.

57. On 7 August 2013 the fourth applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention or to be released on bail. He submitted in support of his request that there was no reason justifying his continued detention and that the courts had failed to take into account his personal situation.

58. On 13 August 2013 the Nasimi District Court dismissed the request, finding that there was no need to use an alternative preventive measure to custody.

59. On 22 August 2013 the Baku Court of Appeal upheld the first‑instance court’s decision.

60. It appears from the documents in the case file that on an unspecified date in September 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant’s pre-trial detention for a period of two months. The Government did not make a copy of the request available to the Court.

61. On 18 September 2013 the Nasimi District Court decided to extend the fourth applicant’s detention pending trial for a period of two months, until 30 November 2013.

62. On 19 September 2013 the fourth applicant appealed against that decision, complaining that there was no justification for his continued detention. He reiterated that there was no reasonable suspicion that he had committed a criminal offence and that the first-instance court had failed to justify its decision.

63. It appears from the documents in the case file that on 4 October 2013 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 18 September 2013. The Government did not make a copy of the appellate court’s decision available to the Court.

64. No further extension decisions were included in the case file.

D. Further developments

65. It appears from the documents in the case file that in September 2013 the applicants were additionally charged with new criminal offences under Articles 28 (preparation of a crime) and 220.1 (mass disorder) of the Criminal Code. The Government did not make the investigator’s decisions in this respect available to the Court.

66. On 6 May 2014 the Baku Court of Serious Crimes found the applicants guilty on all counts and sentenced the first applicant to seven and a half years’ imprisonment, the second applicant to eight years’ imprisonment, the third applicant to seven years’ imprisonment and the fourth applicant to eight years’ imprisonment.

67. On 16 December 2014 the Baku Court of Appeal upheld that judgment.

68. On 2 June 2015 the Supreme Court upheld the appellate court’s judgment in respect of the first and third applicants.

69. On 15 October 2015 the Supreme Court upheld the appellate court’s judgment in respect of the second and fourth applicants.

70. In the meantime, on 29 December 2014 the second and third applicants were released from serving the remainder of their sentence after being pardoned by a presidential decree.

71. On 17 March 2016 the first and fourth applicants were also released from serving the remainder of their sentence after being pardoned by a presidential decree.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Criminal Code

72. Article 28 of the Criminal Code provides as follows:

Article 28. Preparation of a crime

“28.1. Preparation of a crime shall mean looking for, purchasing or manufacturing means or instruments for committing a crime, entering into contact with others to commit a crime, making arrangements or intentionally creating the conditions for committing a crime in another way, provided that for reasons beyond that person’s control the crime is not consummated.

28.2. Criminal liability shall be established only for the preparation of serious and particularly serious crimes.”

73. The relevant part of Article 220 of the Criminal Code provides as follows:

Article 220. Mass disorder

“220.1. Organisation of or participation in mass disorder accompanied by violence, plunder, arson, destruction of property, the use of firearm or explosive substances or devices, or by armed resistance to public officers –

is punishable by deprivation of liberty for a period of four to twelve years.

...”

74. The relevant part of Article 228 of the Criminal Code provides as follows:

Article 228. Illegal acquisition, transfer, sale, storage, transportation and carrying of arm, its accessories, supplies, explosive substances and devices

“228.1 Illegal acquisition, transfer, sale, storage, transportation and carrying of arm, its accessories, supplies (except for smoothbore hunting firearm and its supplies), explosive substances and devices –

is punishable by corrective labour for a period of up to two years or deprivation of liberty for a period of up to three years.

228.2 The same acts, if committed:

283.2.1. by a group of individuals on preliminary arrangement;

283.2.2. repeatedly –

are punishable by deprivation of liberty for a period of three to five years.

283.3. The acts provided for by Articles 228.1 or 228.2 of this Code, if committed by an organised group –

are punishable by deprivation of liberty for a period of five to eight years.

...”

B. Code of Criminal Procedure (“the CCrP”)

75. A detailed description of the relevant provisions of the CCrP concerning pre-trial detention and proceedings concerning the application and review of detention pending trial can be found in the cases of Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83-102, 9 November 2010), and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35-49, 9 December 2010).

76. In accordance with Article 215 of the CCrP and a presidential decree on the approval, entry into force of the CCrP of the Republic of Azerbaijan and matters concerning related legal regulations in that respect, dated 25 August 2000, investigations instituted in connection with Articles 220 and 228 of the Criminal Code are carried out by the police.

C. Decisions of the Plenum of the Supreme Court

77. A detailed description of the relevant parts of the decisions of the Plenum of the Supreme Court on the application of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights in the administration of justice, dated 30 March 2006, and on the application of the legislation by the courts during the consideration of applications for the preventive measure of remand in custody in respect of an accused, dated 3 November 2009, can be found in Rasul Jafarov v. Azerbaijan (no. 69981/14, §§ 50-76 and §§ 79-80, 17 March 2016).

78. The relevant part of the decision of the Plenum of the Supreme Court on judicial practice concerning cases related to the illegal manufacture, circulation and plunder of arm, its accessories, supplies, explosive substances and devices, dated 27 May 2005, reads as follows:

“4. ...

Explosive substances shall be understood to mean substances composed of chemical compounds capable of having the characteristics of immediate chemical transformation - explosion.

That includes TNT, ammonites, plastics, elastics, white and smokeless gunpowder, solid rocket fuel, etc.

Explosive devices include items composed of explosive substances and special devices (for example detonator, fuse, etc.) which create a spark for an explosion according to their constructive purpose.

...”

III. RELEVANT INTERNATIONAL DOCUMENTS

79.  In November 2015 the UN Committee Against Torture considered the fourth periodic report of Azerbaijan, which covered the period from 2009 to 2015, and adopted, inter alia, the following concluding observations (CAT/C/AZE/CO/4):

“Arbitrary imprisonment and ill-treatment of human rights defenders

10. The Committee is deeply concerned about consistent and numerous allegations that a number of human rights defenders have been arbitrarily deprived of their liberty, subjected to ill-treatment and, in some cases, denied adequate medical treatment in retaliation for their professional activities. Among those human rights defenders are ... Rashadat Akhundov and Rashad Hasanov. ... The Committee regrets the State party’s categorical position that all the above allegations are unfounded, despite the existence of reports of the United Nations, other international organisations and human rights mechanisms indicating otherwise (see, for example, the joint statement of the Special Rapporteurs on the situation of human rights defenders, on the rights to freedom of peaceful assembly and of association, on the promotion and protection of the right to freedom of opinion and expression, on the independence of judges and lawyers, on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and of the Chair-Rapporteur of the Working Group on Arbitrary Detention of 20 August 2015 and the judgement dated 22 May 2014 of the European Court of Human Rights concerning Ilgar Mammadov v. Azerbaijan, application no. 15172/13) ...”

80. The United Nations Working Group on Arbitrary Detention conducted its first official visit to Azerbaijan from 16 to 25 May 2016. On 26 May 2016 it published a statement containing conclusions on its visit. The relevant part of the statement reads as follows:

“IV. Arbitrary detention in the context of the exercise of human rights or fundamental freedoms guaranteed by international norms

During its visit, the Working Group could observe the severe limitations placed on the work of human rights defenders, journalists, political opponents and religious leaders ...

In addition to the human rights defenders, journalists, political and religious leaders met in detention facilities, including prisons, the Working Group also met with persons who had served their sentence or were pardoned and received a list of some 70 human rights defenders, journalists, political and religious leaders currently detained on a broad range of charges (drugs and arms related offences, hooliganism, tax evasion, etc.).

...

While fully taking into account the pardon decree signed by the President of Azerbaijan on 17 March 2016 which resulted in the release of political prisoners and prisoners of conscience, the Working Group was unable to observe any significant change in the country with respect to this situation regarding other persons deprived of liberty for apparently the same reasons. The Working Group holds the view that human rights defenders, journalists, political and religious leaders continue to be detained under criminal or administrative charges as a way to impair the exercise of their basic human rights and fundamental freedoms and to silence them. These practices constitute an abuse of authority and violate the rule of law that Azerbaijan has agreed to comply with.”

81. The United Nations Special Rapporteur on the situation of human rights defenders visited Azerbaijan from 14 to 22 September 2016. On 22 September 2016 he “called on Azerbaijan to rethink [its] punitive approach to civil society” and published the following end of mission statement:

“I have shared with the Government my preliminary conclusion that, over the last two-three years, the civil society in Azerbaijan has faced the worst situation since the independence of the country. Dozens of NGOs, their leaders, employees and their families have been subject to administrative and legal persecution, including the seizure of their assets and bank accounts, travel bans, enormous tax penalties and even imprisonment.

Civil society has been paralysed as a result of such intense pressure. Human rights defenders have been accused by public officials to be a fifth column of the Western governments, or foreign agents, which has led to misperception in the population of the truly valuable role played by civil society. Activists promoting fundamental freedoms and criticising violations have been accused of being political opponents, touting values that run counter to those of their society or culture. They were denounced as politically or financially motivated actors. They were attacked, threatened or brought to court and sentenced under such charges as “hooliganism”, “money-laundering”, “provocation”, “drug-trafficking” or incitement to overthrow the State ...”

THE LAW

I. JOINDER OF THE APPLICATIONS

82. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

83. Relying on Article 5 §§ 1 (c) and 3 of the Convention, the applicants complained that they had been arrested and detained in the absence of a “reasonable suspicion” that they had committed a criminal offence. They further complained that the domestic courts had failed to provide relevant and sufficient reasons justifying the need for their continued detention. Article 5 §§ 1 (c) and 3 of the Convention reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

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

84. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicants

85. The applicants maintained that the accusations against them had been groundless and that all the steps taken by the authorities to prosecute and detain them had been arbitrary and politically motivated. The prosecution authorities had not been in possession of any objective evidence or information that could have given rise to a “reasonable suspicion” that they had committed a criminal offence.

86. In that connection, the applicants submitted that when the domestic courts had ordered and subsequently extended their detention pending trial there had been no evidence in the case file proving that they had obtained any explosive substances or devices and arranged storage in the flats of S.N. and B.G. According to them, the only documents which had been submitted to the domestic courts dealing with their pre-trial detention had been the investigator’s decisions charging them and the prosecutor’s requests to remand them in custody.

87. The applicants also submitted that the Molotov cocktails allegedly found in the flats of S.N. and B.G. constituted flammable substances and could not in any case be considered explosive substances or devices within the meaning of Article 228 of the Criminal Code. They also disputed the fact that there had been syringes on the two bottles of Molotov cocktail as indicated in expert report no. 4503/04, submitting that no syringes had been visible on any bottle of Molotov cocktail on the photos taken immediately after the search had been carried out in the flats of S.N. and B.G. or the video recordings of the search broadcast on television.

88. The applicants further argued that the domestic courts had failed to provide relevant and sufficient reasons justifying their pre-trial detention. In particular, they submitted that the domestic courts had merely quoted the relevant legal provisions without assessing their particular circumstances when they had ordered their detention and rejected their requests for house arrest in its place.

(b) The Government

89. The Government submitted that the applicants’ rights under Article 5 of the Convention had not been breached. They had been detained on reasonable suspicion of having committed an offence and the domestic courts had duly examined the material submitted by the prosecution authorities. In that connection, the judges had relied on the investigator’s decisions charging them, the prosecutor’s requests to remand them in custody and the investigator’s statements made at the court hearings concerning their detention pending trial.

90. The Government further submitted that the domestic courts had provided relevant and sufficient reasons justifying the need for the applicants’ continued pre-trial detention.

2. The Court’s assessment

(a) General principles

91. Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty, which must be interpreted strictly. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him or her before the competent legal authority on “reasonable suspicion” of “having committed an offence” (see Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000‑IX, and Rasul Jafarov v. Azerbaijan, no. 69981/14, § 114, 17 March 2016).

92. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c), it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145‑B). Nor is it necessary that the person detained should ultimately have been charged or brought before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling suspicions which provide the grounds for detention. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of the criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300‑A).

93. However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention (see Gusinskiy v. Russia, no. 70276/01, § 53, ECHR 2004‑IV). The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will depend upon all the circumstances (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The length of the deprivation of liberty may also be material to the level of suspicion required (see Murray, cited above, § 56).

94. When assessing the “reasonableness” of the suspicion, the Court must be enabled to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured. Consequently, the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence (see Fox, Campbell and Hartley, cited above, § 34 in fine, and Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 89, 22 May 2014).

95. Apart from its factual aspect, which is most often in issue, the existence of such a suspicion additionally requires that the facts relied on can reasonably be considered criminal behaviour under domestic law. Thus, clearly there could not be a “reasonable suspicion” if the acts held against a detained person did not constitute an offence at the time they were committed (see Włoch v. Poland, no. 27785/95, § 109, ECHR 2000‑XI; Kandzhov v. Bulgaria, no. 68294/01, § 57, 6 November 2008, and Rasul Jafarov, cited above, § 118).

96. The Court reiterates that the persistence of reasonable suspicion that an arrested person has committed an offence is a prerequisite for the lawfulness of his or her continued detention (see, among many other authorities, Stögmüller v. Austria, 10 November 1969, p. 40, § 4, Series A no. 9, and McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006‑X). Accordingly, while reasonable suspicion must exist at the time of the arrest and initial detention, it must also be shown, in cases of prolonged detention, that the suspicion persisted and remained “reasonable” throughout the detention (see Ilgar Mammadov, cited above, § 90, and Yagublu v. Azerbaijan, no. 31709/13, § 56, 5 November 2015).

(b) Application of those principles to the present case

97. The Court observes that the applicants in the present case complained of the lack of “reasonable” suspicion against them throughout the entire period of their pre-trial detention, including both during the initial period following their arrest and the subsequent periods when their remand in custody had been authorised and extended by court orders. They maintained the same complaint before the Court. The Government submitted in this respect that the applicants had been detained on reasonable suspicion of having committed a criminal offence and the domestic courts had duly examined the material submitted by the prosecution authorities. In support of their assertion, the Government submitted that the domestic courts had relied on the investigator’s decisions charging them, the prosecutor’s requests to remand them in custody and the investigator’s statements made at the court hearings concerning their detention pending trial.

98. In these circumstances, the Court notes that it has to take into account all the relevant circumstances surrounding the applicants’ arrest and detention in order to be satisfied that any objective information or fact existed showing that the suspicion against them was “reasonable”. In that connection, the Court considers it necessary to draw attention to various inconsistencies and lacks of clarity in the charges brought against them by the prosecution authorities.

99. The Court observes that the description of the charges brought against the applicants, although made on various dates in March and April 2013, was identical (see paragraph 12 above). In particular, the description consisted of a single sentence spanning about half a page of printed text from which it can be discerned that they were accused of unlawfully obtaining twenty-two glass bottles of Molotov cocktail and arranging storage in the flats of S.N. and B.G.

100. However, the Court first points out that these charges against the applicants, accusing them of unlawfully obtaining the above-mentioned Molotov cocktails and arranging storage in the flats of S.N. and B.G., were totally contradicted by the joint public statement of 8 March 2013 made by the Prosecutor General’s Office and the MNS, in which it was clearly stated that the Molotov cocktails found in the flats of S.N. and B.G. had been prepared by S.N. and B.G. themselves (see paragraph 8 above).

101. Nor can the Court overlook the fact that the decisions charging the applicants were silent as to the source from which they had allegedly obtained the Molotov cocktails in question. It appears from the case file that throughout the entire period of the applicants’ arrest and pre-trial detention the investigating authorities had failed to provide any information or documents in that respect.

102. The Court further observes that, although the applicants were charged with an offence under Article 228.3 of the Criminal Code, it does not appear from the wording of that provision (see paragraph 74 above) that the incriminated acts under Article 228 of the Criminal Code also concerned flammable (incendiary) substances and devices. The interpretation made by the Plenum of the Supreme Court in respect of the notion of explosive substances and devices in its decision of 27 May 2005 did not regard flammable substances and devices as explosive substances and devices falling within the scope of Article 228 of the Criminal Code either (see paragraph 78 above).

103. In that connection, the Court also observes that despite the conclusions of expert report no. 4503/04, which said that twenty of the twenty-two Molotov cocktails found in the flats of S.N. and B.G. could not be considered explosive substances or devices (see paragraph 10 above), it does not appear from the documents in the case file that the prosecution authorities altered the charges brought against the applicants in view of the findings of the above-mentioned expert report.

104. However, the Court does not consider it necessary for the purposes of the present case to decide whether the acts held against the applicants constituted an offence at the time they were committed and to examine the applicants’ submissions disputing the existence of syringes on the remaining two other bottles of Molotov cocktail, because in any event the prosecution authorities never demonstrated that there was any information or evidence showing that the applicants had any connection with the Molotov cocktails in question. In particular, there were no documents in the case file demonstrating that they had obtained the Molotov cocktails and then arranged storage in the flats of S.N. and B.G. as alleged in the decisions charging them.

105. In that connection, the Court observes that, although the Government referred to the investigator’s decisions charging the applicants, the prosecutor’s requests to remand them in custody and the investigator’s statements made at the court hearings, there is no mention in the above documents or statements of how the prosecution reached the conclusion that the applicants had obtained the Molotov cocktails and then arranged storage in the flats of S.N. and B.G. (compare Muşuc v. Moldova, no. 42440/06, § 32, 6 November 2007). It is also undisputed that none of these documents or statements were accompanied by any evidence supporting the prosecution authorities’ charges against the applicants. Furthermore, it has not been demonstrated that any evidence was ever presented by the prosecution authorities to the domestic courts ordering and extending the applicants’ pre-trial detention in support of the requests to remand them in custody (compare Ilgar Mammadov, cited above, §§ 96-99, and Yagublu, cited above, § 60). In this regard, the Court also notes the decision of the Plenum of the Supreme Court of 3 November 2009. That decision required domestic courts to subject prosecution authorities’ applications for remand in custody to close scrutiny and to verify the existence of a suspicion against the accused by making use of their power under Article 447.5 of the CCrP to request and review the “initial evidence” in the prosecution’s possession (see paragraph 77 above). However, in the present case, the above directives were not taken into account (compare Ilgar Mammadov, cited above, § 97, and Yagublu, cited above, § 61).

106. As for the additional charges under Articles 28 and 220 of the Criminal Code brought against the applicants in September 2013, the Court notes that the Government failed to provide the Court with a copy of the decisions in that regard. In any event, all previous decisions ordering and extending the applicant’s pre-trial detention had been based solely on the original charges under Article 228.3 of the Criminal Code, and the new charges were therefore of no significance as regards assessing the reasonableness of the suspicion underpinning the applicants’ detention during the period falling within the scope of the present case, and the Government have not expressly argued otherwise (compare Rasul Jafarov, cited above, § 131).

107. The Court is mindful of the fact that the applicants’ case went to trial and they were convicted. That, however, does not affect the Court’s findings in connection with the present complaint, in which it is called upon to examine whether the deprivation of the applicants’ liberty in issue was justified on the basis of the information or facts available at the relevant time. In this respect, having regard to the above analysis, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual’s arrest and continued detention. Accordingly, it has not been demonstrated in a satisfactory manner that during the period under the Court’s consideration in the present case the applicants were deprived of their liberty on a “reasonable suspicion” of having committed a criminal offence.

108. There has accordingly been a violation of Article 5 § 1 of the Convention.

109. Having regard to the above finding, the Court does not consider it necessary to examine separately under Article 5 § 3 of the Convention whether the domestic authorities provided relevant and sufficient reasons justifying the need for the applicants’ continued pre-trial detention (see Lukanov v. Bulgaria, 20 March 1997, § 45, Reports of Judgments and Decisions 1997‑II; Ilgar Mammadov, cited above, § 102; and Yagublu, cited above, § 64).

III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 5 OF THE CONVENTION

110. The applicants argued under Article 18 of the Convention that their Convention rights had been restricted for purposes other than those prescribed in the Convention. In particular, their arrest and detention had had the purpose of punishing them for their political and social activism as board members of NIDA, as well as stopping protests against the death of soldiers and destroying the active youth movement in the country. Article 18 provides:

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

A. Admissibility

111. 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

(a) The applicants

112. The applicants submitted that the totality of the evidence in the present case was sufficient to rebut the general presumption that the public authorities in Azerbaijan had acted in good faith. The applicants maintained that they had not committed a criminal offence and that the restrictions in the present case had been applied with the intention of punishing and silencing them, thereby neutralising them as civil society activists and preventing them from continuing human rights activities. In that connection, they relied on a number of reports and statements made by various human rights organisations, such as Human Rights Watch, Amnesty International and Freedom House, all describing their arrest and detention as politically motivated.

113. They also submitted that NIDA had played a large role in the organisation of a series of protests against the death of soldiers in the Azerbaijani army and had been the most active youth movement in the country. In that connection, they argued that their arrest and detention had also intended to discourage others from such activities and to paralyse NIDA and youth political activism in general in the country. The applicants further submitted that NIDA had been specifically targeted by the Government and that a number of its members had been arrested and detained over the past few years.

(b) The Government

114. The Government argued that, as in the cases of Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011) and Khodorkovskiy and Lebedev v Russia (nos. 11082/06 and 13772/05, 25 July 2013), the applicants’ allegations in the present case were too wide and far-reaching. They were not complaining of an isolated incident, but were trying to demonstrate that the whole legal machinery of the respondent State had been misused ab initio, and that from beginning to end the authorities had been acting in bad faith and with blatant disregard for the Convention. In essence, the applicants were trying to persuade the Court that everything in their case was contrary to the Convention, and that the criminal proceedings against them were therefore invalid. That allegation was a serious one, because it assailed the general presumption of good faith on the part of the public authorities and required particularly weighty evidence in support.

115. However, according to the Government, none of the accusations against the applicants were political. They had not been an opposition leader or a public official. The acts which had been imputed to them did not relate to their participation in political life, real or imaginary – they had been prosecuted for a common criminal offence. The Government submitted that the restrictions imposed by the State in the present case pursuant to Article 5 of the Convention had not been applied for any purpose other than one envisaged by that provision, and strictly for the proper investigation of serious criminal offences allegedly committed by the applicants.

2. The Court’s assessment

(a) General principles

116. The Court notes that the general principles concerning interpretation and application of Article 18 of the Convention have recently - after the judgments adopted in the cases of Khodorkovskiy v. Russia (cited above) and Khodorkovskiy and Lebedev v. Russia (cited above) to which the Government referred (see paragraph 114 above) - been set out by the Grand Chamber in its judgment in Merabishvili v. Georgia ([GC], no. 72508/13, 28 November 2017):

“287. In a similar way to Article 14, Article 18 of the Convention has no independent existence ... ; it can only be applied in conjunction with an Article of the Convention or the Protocols thereto which sets out or qualifies the rights and freedoms that the High Contracting Parties have undertaken to secure to those under their jurisdiction ... This rule derives both from its wording, which complements that of clauses such as, for example, the second sentence of Article 5 § 1 and the second paragraphs of Articles 8 to 11, which permit restrictions to those rights and freedoms, and from its place in the Convention at the end of Section I, which contains the Articles that define and qualify those rights and freedoms.

288. Article 18 does not, however, serve merely to clarify the scope of those restriction clauses. It also expressly prohibits the High Contracting Parties from restricting the rights and freedoms enshrined in the Convention for purposes not prescribed by the Convention itself, and to this extent it is autonomous ... Therefore, as is also the position in regard to Article 14, there can be a breach of Article 18 even if there is no breach of the Article in conjunction with which it applies ...

289. Lastly, being aware – as already highlighted – of a certain inconsistency in its previous judgments regarding the use of the terms “independent” and “autonomous” in these contexts, the Court seizes the opportunity offered by the present case to align the language used in relation to Article 18 to that used in relation to Article 14, as has been done above.

290. It further follows from the terms of Article 18 that a breach can only arise if the right or freedom at issue is subject to restrictions permitted under the Convention ...

291. The mere fact that a restriction of a Convention right or freedom does not meet all the requirements of the clause that permits it does not necessarily raise an issue under Article 18. Separate examination of a complaint under that Article is only warranted if the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case ...”

117. The Grand Chamber further found that a right or freedom is sometimes restricted solely for a purpose which is not prescribed by the Convention. But it is equally possible that a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention; in other words, that it pursues a plurality of purposes. In these circumstances, a restriction can be compatible with the substantive Convention provision which authorises it because it pursues an aim permissible under that provision, but still infringe Article 18 because it was chiefly meant for another purpose that is not prescribed by the Convention; in other words, if that other purpose was predominant. Conversely, if the prescribed purpose was the main one, the restriction does not run counter to Article 18 even if it also pursues another purpose. Which purpose is predominant in a given case depends on all the circumstances. In assessing that point, the Court will have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and bear in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (see Merabishvili, cited above, §§ 292, 305 and 307).

118. In the latter judgment, after having addressed the question of proof in relation to complaints under Article 18 of the Convention (see Merabishvili, cited above, §§ 310-15), the Court found the following concerning the standard of proof:

“316. There is therefore no reason for the Court to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof to such allegations.

317. It must however be emphasised that circumstantial evidence in this context means information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts ... Reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts are often taken into account to, in particular, shed light on the facts, or to corroborate findings made by the Court ...”

(b) Application of those principles to the present case

119. The Court considers it necessary to note at the outset that it has already found that the applicants’ arrest and pre-trial detention were not carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention (see paragraphs 97-108 above), as the charges against them were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention (contrast Merabishvili, cited above, § 318, Khodorkovskiy, cited above, § 258, and compare Lutsenko v. Ukraine, no. 6492/11, § 108, 3 July 2012; Ilgar Mammadov, cited above, § 141; and Rasul Jafarov, cited above, § 156). Therefore, the present case should be distinguished from the cases with plurality of purposes in which a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention (see Merabishvili, cited above, §§ 318-54).

120. However, the mere fact that the restriction of the applicants’ right to liberty did not pursue a purpose prescribed by Article 5 § 1 (c) is not in itself a sufficient basis to conduct a separate examination of a complaint under Article 18 unless the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case. Therefore, it remains to be seen whether there is proof that the authorities’ actions were actually driven by an ulterior purpose. The Court reiterates in this regard that there is no reason for it to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof to such allegations (see Merabishvili, cited above, § 316), as depending on the circumstances of the case, an ulterior purpose cannot always be proven by pointing to a particularly inculpatory piece of evidence which clearly reveals an actual reason (for example, a written document, as in the case of Gusinskiy) or a specific isolated incident.

121. In the present case, as in the cases of Ilgar Mammadov (cited above) and Rasul Jafarov (cited above), the Court considers that it can be established to a sufficient degree that proof of an ulterior purpose derives from a juxtaposition of the lack of suspicion with contextual factors.

122. Firstly, the Court wants to draw attention to the joint public statement of 8 March 2013 made by the Prosecutor General’s Office and the MNS in which the law-enforcement authorities clearly targeted NIDA and its members, stating that “illegal attempts to undermine the social-political stability established in the country have recently been made by some radical destructive forces”. It is also clear from the above-mentioned statement that from the very beginning of the criminal proceedings instituted in connection with the fact that narcotic substances and twenty-two Molotov cocktails were found in the flats of S.N. and B.G., the law-enforcement authorities had tried to link the alleged possession of Molotov cocktails by two members of NIDA to their membership in the group by stating, without any reservation, that “since mid-2012 all three individuals, being addicted to narcotic substances and becoming members of NIDA through the Internet, had actively participated in a number of illegal activities of the organisation” (see paragraph 8 above).

123. Secondly, the Court attaches weight to NIDA’s activities being described by the prosecution authorities as illegal, without any reason and evidence, only a few days before the arrest and detention of its four board members, in other words the applicants. In that connection, it observes that the prosecution authorities intended to show NIDA and its members to be “destructive forces” and an organisation carrying out “illegal activities”, solely relying on the fact that narcotic substances and Molotov cocktails were found in the flats of NIDA’s two members. However, there is nothing in the case file to show that the prosecution authorities had any objective information giving rise to a bona fide suspicion against NIDA and its board members at the time when they made those statements (compare Ilgar Mammadov, cited above, § 141).

124. Thirdly, nor can the Court accept the Government’s assertion that the accusations against the applicants could not be politically motivated because they had not been an opposition leader or a public official. It is undisputed that the applicants were civil society activists and board members of NIDA, which was one of the most active youth movements in the country and had been behind a number of protests against the government. In that connection, the Court also attaches weight to the timing of the institution of criminal proceedings against the applicants, following a series of demonstrations against the government in which members of NIDA actively participated. The Court further notes that the Government’s argument that the applicants had been arrested and detained strictly for the purpose of the investigation of the criminal offences allegedly committed by them is contradicted by the special treatment given to their case by the law‑enforcement authorities. Indeed, although under domestic law the investigation of a criminal case instituted under Article 228 of the Criminal Code should be conducted by the police (see paragraph 76 above), in the present case, however, the investigation was carried out by the Serious Crimes Department of the Prosecutor General’s Office with the involvement of the MNS.

125. The totality of the above-mentioned facts and circumstances, taken together with the most recent reports and opinions made by various international human rights instances about the crackdown on civil society in the country and the particular cases of arrest and detention of civil society activists, including the applicants (see paragraphs 79-81 above), indicates that the actual purpose of the impugned measures was to silence and punish the applicants for their active social and political engagement and their activities in NIDA.

126. In the light of these considerations, the Court finds that the restriction of the applicants’ liberty was imposed for purposes other than bringing them before a competent legal authority on reasonable suspicion of having committed an offence, as prescribed by Article 5 § 1 (c) of the Convention.

127. The Court considers this sufficient basis for finding a violation of Article 18 of the Convention, taken in conjunction with Article 5.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

128. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

1. Pecuniary damage

(a) In respect of the first and third applicants

129. The first and third applicants each claimed 35,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. In that connection, without specifying the amount of their claim in respect of pecuniary damage, they claimed that they had lost earnings as a result of their detention.

130. The Government asked the Court to reject the claims, submitting that the first and third applicants had failed to provide any evidence in support of their claims for loss of earnings.

131. The Court notes that the first and third applicants failed to submit any evidence in support of their claims for loss of earnings. Accordingly, it rejects their claims in respect of pecuniary damage.

(b) In respect of the second applicant

132. The second applicant claimed 7,000 euros (EUR) in respect of pecuniary damage. He submitted that his family had spent that sum on sending food and regularly visiting him in prison. He claimed the same amount for harm to his health in detention.

133. The Government asked the Court to reject the claim.

134. The Court does not find any causal link between the damage claimed and the violations found (see Fatullayev v. Azerbaijan, no. 40984/07, § 186, 22 April 2010; Efendiyev v. Azerbaijan, no. 27304/07, § 60, 18 December 2014; and Yagublu, cited above, § 68). Accordingly, it rejects the second applicant’s claims in respect of pecuniary damage.

2. Non-pecuniary damage

135. The first and third applicants each claimed EUR 35,000 in respect of pecuniary and non-pecuniary damage, without specifying the amount of their claims in respect of non-pecuniary damage. The second applicant claimed EUR 55,000 in respect of non-pecuniary damage. The fourth applicant claimed EUR 30,000 in respect of non-pecuniary damage.

136. The Government submitted that the amounts claimed by the applicants were unsubstantiated and excessive. They further submitted that EUR 10,000 would constitute reasonable compensation for the non‑pecuniary damage allegedly sustained by the applicants.

137. The Court considers that the applicants have suffered non‑pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 20,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

138. The first applicant claimed EUR 4,000 for legal services incurred in the proceedings before the domestic courts and the Court. The second applicant claimed EUR 4,000 for legal services incurred before the Court and EUR 570 for translation expenses. The third applicant claimed EUR 7,600 for legal services incurred in the proceedings before the domestic courts and the Court. The fourth applicant claimed EUR 7,312 for legal services incurred in the proceedings before the domestic courts and the Court. The applicants submitted the relevant contracts concluded with their representatives in support of their claims. The first and third applicants also asked that the compensation in respect of costs and expenses be paid directly into their representatives’ bank account.

139. The Government considered that the amounts claimed by the applicants were unsubstantiated and excessive. In that connection, the Government asked the Court to apply a strict approach in respect of the applicants’ claims. They further asked it to take into consideration the fact that the first and third applicants were represented before the Court by the same lawyers and had made identical submissions. The Government also submitted that the representative of the second applicant had already made very similar submissions in another application pending before the Court and that his request for translation expenses was not justified because he had a good command of English. They also contested the way the costs and expenses had been calculated by the representatives of the fourth applicant, submitting that not all the legal services indicated in the contract concluded between him and his lawyers were relevant to the current proceedings before the Court.

140. 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 have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that in the present case the first and third applicants were represented by the same lawyers and that substantial parts of their submissions in relation to their applications were similar. Having regard to this fact, as well as to the documents in its possession and to its case-law, the Court considers it reasonable to award the following amounts covering costs under all heads, plus any tax that may be chargeable to the applicants:

‑ EUR 5,000 jointly to the first and third applicants, to be paid directly into their representatives’ bank account;

‑ EUR 3,000 to the second applicant;

‑ EUR 3,000 to the fourth applicant.

C. Default interest

141. 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 5 § 1 of the Convention;

4. Holds that there is no need to examine separately the complaints under Article 5 § 3 of the Convention;

5. Holds that there has been a violation of Article 18 of the Convention taken in conjunction with Article 5 of the Convention;

6. Holds

(a) that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, to each applicant, in respect of non-pecuniary damage;

(ii) EUR 5,000 (five thousand euros), to the first and third applicants jointly, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly into their representatives’ bank account;

(iii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to him, to the second applicant, in respect of costs and expenses;

(iv) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to him, to the fourth applicant, in respect of costs and expenses;

(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;

7. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 7 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

APPENDIX

No.

Application

no.

Lodged on

Applicant name,

year of birth,

home address

Represented by

1. 

48653/13

12/07/2013

Rashad HASANOV

1982

Lankaran

Asabali MUSTAFAYEV

Ruslan MUSTAFAZADE

2.

52464/13

23/07/2013

Zaur GURBANLI

1987

Khirdalan

Khalid BAGIROV

3.

65597/13

01/09/2013

Uzeyir MAMMADLI

1987

Barda

Asabali MUSTAFAYEV

Ruslan MUSTAFAZADE

4.

70019/13

07/08/2013

Rashadat AKHUNDOV

1984

Baku

Rashid HAJILI

Zibeyda SADIGOVA

 

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