CASE OF ZAYIDOV v. AZERBAIJAN

FIRST SECTION

CASE OF ZAYIDOV v. AZERBAIJAN

(Application no. 11948/08)

JUDGMENT

STRASBOURG

20 February 2014

FINAL

20/05/2014

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

In the case of Zayidov v. Azerbaijan,

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

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 28 January 2014,

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

PROCEDURE

1. The case originated in an application (no. 11948/08) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Ganimat Salim Oglu Zayidov (Qənimət Səlim oğlu Zayidov - “the applicant”), on 13 February 2008.

2. The applicant was represented by Mr E. Sadigov and Mr R. Hajili, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicant alleged, in particular, that his right to liberty under Article 5 of the Convention had been breached, because the domestic courts had failed to justify the application of the preventive measure of remand in custody in his respect, and had rejected his request for release on bail without giving any reasons.

4. On 4 January 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1963 and lives in Baku.

6. The applicant was a journalist and the editor-in-chief of the Azadliq newspaper.

A. Institution of criminal proceedings against the applicant

7. On 7 November 2007 when the applicant was in front of the entrance of a publishing house in Baku, he had a verbal altercation with a woman (S.Q.) who accused him of having “abused” her. At that moment a man (V.H.) who was an acquaintance of S.Q. approached them and intervened in the quarrel. Following V.H.’s intervention, the initial verbal altercation turned into a physical altercation between the applicant and V.H., which was stopped after other people intervened.

8. On the same day the applicant informed the media of the incident, stating that he had been attacked because of his activities as a journalist and that he had been set up.

9. On 7 November 2007 V.H. lodged a complaint with the Yasamal District Police Office alleging that he had been beaten and insulted in front of the publishing house by a man he did not know. In his statement to the police, V.H. stated that on 7 November 2007 he took S.Q. to the publishing house by car. On their arrival, he parked the car in front of the publishing house. S.Q. crossed the street first and he followed her. At that moment he realised that a man was insulting S.Q. and that a verbal altercation occurred between them. He immediately approached the man, asking him in a normal way why he had insulted S.Q., but the man in question began to insult him. When he replied, the man physically assaulted him by first slapping him, then headbutting and punching him. They were separated by bystanders.

10. S.Q., who was questioned on the same day by the investigator, confirmed V.H.’s statement. In particular, she stated that on 7 November 2007, while she was on the street in front of the publishing house, a man complimented her on her looks. She rebutted his compliment, saying that “she [was] not his type” and the man began to “abuse” her by calling her a prostitute. At that moment a verbal altercation occurred between her and the man. V.H was nearby and approached the man, asking him why he had insulted her. The man also began to insult V.H., and the verbal altercation turned into a physical altercation between V.H. and the man. He first slapped V.H. and then headbutted and punched him.

11. On 7 November 2007 criminal proceedings were instituted by the Yasamal District Police Office in connection with above-mentioned incident under Article 221.1 (hooliganism) of the Criminal Code.

12. On 8 November 2007 V.H. informed the police that he could identify the man with whom he had been involved in the physical altercation on 7 November 2007. V.H. said that it was the applicant and that he could identify him, having seen the applicant’s photo in the Yeni Musavat newspaper.

13. On the same day the investigator in charge of the case contacted the applicant, asking him to come to the police office. The applicant informed him that he was not currently in Baku, but that he would come to the police office present himself on 10 November 2007.

14. On 9 November 2007 S.Q. and V.H. were examined by a forensic expert. In respect of S.Q., the expert concluded that there were no signs of injury on her body. As regards V.H., the expert noticed that there were bruises and injuries to his nose, left ear and upper lip. The expert also observed an incomplete fracture of V.H.’s right cheekbone, noting that he had suffered a head injury. Lastly, the expert concluded that the injuries were those causing “less serious injury to health”, because they had long‑term effects.

15. On 10 November 2007 the investigator questioned two witnesses (A.I. and V.R.), who confirmed that they had witnessed a physical altercation between two men on 7 November 2007 in front of the publishing house. They stated that one of the men, who was older and wearing glasses, punched the other man in the mouth.

16. At around noon on 10 November 2007 the applicant presented himself at the Yasamal District Police Office. He was questioned as a witness by the investigator in connection with the incident on 7 November 2007. The applicant admitted that he had been involved in a physical altercation with V.H. that day. He said that as he approached the entrance of the publishing house, a woman who was on the street talking on her phone had insulted him. She then accused him of having “abused” her and began to shout at him and insult him. He asked her to stop insulting him and stated that he had not “abused” her. At that moment a man approached them and intervened in the verbal altercation between him and the woman. The man insulted him and then tried to punch and kick him. The applicant defended himself by pushing the man, who fell down to his knees. The applicant stated that he had neither slapped, headbutted nor punched him.

17. On the same day face-to-face confrontations were carried out between the applicant and V.H., and between the applicant and S.Q. The applicant, V.H. and S.Q. reiterated their initial statements. The investigator also proceeded to a formal identification of the people involved and the applicant was identified by A.I. and V.R. as the older man wearing glasses who had punched the other man during the altercation.

18. On 10 November 2007 the investigator issued a record of the applicant’s forty-eight-hour detention as a suspect (tutma protokolu) in the presence of him and his lawyer. The applicant was suspected of the deliberate infliction of less serious injury to health and hooliganism, offences under Articles 127.2.3 and 221.1 of the Criminal Code.

19. On 10 November 2007 the applicant asked the investigator to order a new forensic examination of V.H., disputing the conclusions of the expert report of 9 November 2007. On the same day the investigator granted the applicant’s request and ordered the examination.

20. On 23 November 2007 V.H. was again examined by a forensic expert. The expert confirmed the existence of various bruises and injuries to his nose, left ear, and upper lip, as well as an incomplete fracture of the right cheekbone and a head injury, concluding that their time of infliction corresponded to 7 November 2007. The expert also concluded that the bruise to the right cheek area and the incomplete fracture of the right cheekbone were injuries causing “less serious injury to health” with long‑term effects, and that his other injuries were those causing “minor injury to health” with short-term effects.

B. The applicant’s remand in custody

21. On 11 November 2007 the applicant was charged under Articles 127.2.3 (deliberate infliction of less serious injury to health) and 221.1 (hooliganism) of the Criminal Code.

22. On the same day the prosecutor asked the Yasamal District Court to apply the preventive measure of remand in custody (həbs qətimkan tədbiri) in respect of the applicant. To substantiate the necessity of the measure, the prosecutor gave reasons such as the likelihood of the applicant absconding from and obstructing the investigation and the nature of the criminal acts imputed to him.

23. On 11 November 2007 a judge of the Yasamal District Court, relying on the formal charges brought against the applicant and the prosecutor’s request, remanded the applicant in custody for a period of two months. The judge substantiated the necessity of this measure as follows:

“Taking into account the likelihood, in the future, of the accused Ganimat Salim oglu Zayidov absconding from the investigation and obstructing the normal functioning of the court proceedings, reoffending ... and the fact that he poses a danger to society, the request must be granted and the preventive measure of remand in custody must be applied in his respect.”

24. On 14 November 2007 the applicant appealed against this decision. He complained that there was insufficient evidence that he had committed a criminal offence. The applicant further complained of a lack of justification for the application of the preventive measure of remand in custody, arguing that the judge had merely relied on the prosecutor’s submissions without taking into consideration his social status, family situation, place of residence or other personal circumstances when he had ordered his detention. He also argued that the judge had not considered any alternative measures to ensure his appearance at trial.

25. On 22 November 2007 the Baku Court of Appeal dismissed the applicant’s appeal, finding that the detention order was justified. The relevant part of the appellate court’s decision reads as follows:

“After having heard the explanations of the investigator, as well as the lawyer’s submissions in support of the appeal and the prosecutor’s submissions against it, the panel of the court considers that the decision should remain unchanged as it is lawful and justified, and the appeal should not be allowed as it is unjustified...

The panel of the court points out that when the first-instance court applied the preventive measure of remand in custody, it took into account the nature and degree of danger to the public of the offences with which the accused was charged, the fact that he was charged with a less serious offence punishable by more than two years’ imprisonment, and the likelihood that if released he might abscond from the investigation and obstruct the normal functioning of the investigation.”

C. The applicant’s request for release on bail and further developments

26. On 16 November 2007 the applicant lodged a request for bail with the Yasamal District Court. He argued that his detention during the investigation was unnecessary. In this connection he stated that he had no criminal record, had never tried to abscond and had always cooperated with the investigation, that he was a well-known journalist and editor-in-chief of the Azadliq newspaper, that he had a permanent place of residence, and that he was taking care of four young children.

27. On 21 November 2007 the Yasamal District Court dismissed the request, finding the preventive measure of remand in custody justified. The relevant part of the decision reads as follows:

“There were sufficient grounds for applying the preventive measure of remand in custody in respect of Zayidov Ganimat Salim oglu. The preventive measure of remand in custody was applied by ... court decision in accordance with Article 155.2.1 of the CCrP [Code of Criminal Procedure] taking into account the gravity, nature and the circumstances of the commission of the act imputed to Zayidov Ganimat Salim oglu.

Under Article 164.4 of the CCrP, if any of the circumstances mentioned in Articles 155.1 and 155.2 of this Code exist, the court may refuse release on bail relying on relevant grounds.”

28. On 23 November 2007 the applicant appealed against this decision. The applicant reiterated his previous arguments for release.

29. On 7 December 2007 the Baku Court of Appeal upheld the Yasamal District Court’s decision of 21 November 2007. The relevant part of the appellate court’s decision reads as follows:

“The panel of the court considers that the first-instance court was correct in dismissing the request relying on Article 164.4 of the CCrP.

If any of the circumstances mentioned in Articles 155.1 and 155.2 of the CCrP exist, the court may refuse release on bail relying on relevant grounds.

The panel of the court considers that, as the arguments put forward in the appeal lodged by the lawyers of the accused Zayidov Ganimat Salim oglu were insufficient for his release by way of [replacing] the preventive measure of remand in custody by bail, the decision of the first-instance court should remain unchanged.”

30. On an unspecified date fourteen members of parliament lodged a request with the Prosecutor General asking for the preventive measure of remand in custody in respect of the applicant to be changed, but no decision was taken in this regard.

31. On 11 December 2007 the prosecutor in charge of the case filed the indictment with the Yasamal District Court.

32. On 26 December 2007 the Yasamal District Court held a preliminary hearing in which it decided, inter alia, that the preventive measure of remand in custody in respect of the applicant should remain unchanged.

33. On 7 March 2008 the Yasamal District Court sentenced the applicant to four years’ imprisonment.

34. The applicant was released from serving the remainder of his sentence by a presidential pardon given on 17 March 2010.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Code of Criminal Procedure (“the CCrP”)

35. Chapter XVII of the CCrP deals with preventive measures. Article 154 provides for ten types of preventive measures imposed pending trial, including remand in custody (həbs qətimkan tədbiri). Any preventive measure, including remand in custody, can be applied taking into account the existence of a risk that the accused may: (a) hide from the prosecuting authority; (b) interfere with the pre-trial investigation or trial by illegally influencing the parties to the proceedings or by tampering with or hiding the relevant evidence; (c) reoffend or pose a danger to the public; (d) fail to appear before the prosecuting authority without good reason or otherwise evade criminal responsibility and punishment; or (e) hinder the execution of a court judgment (Article 155.1). The following should also be taken into account when deciding upon the need for a preventive measure and choosing the type of measure to be applied: (a) the nature and gravity of the criminal charge and circumstances in which the investigated offence was committed; (b) the accused’s personality, age, health, occupation, and family, financial and social situation; and (c) whether the accused has been convicted or subjected to preventive measures before, and other relevant circumstances (Article 155.2). Moreover, as a general rule, the preventive measure of remand in custody can be imposed only with regard to a person who is charged with an offence which carries a punishment of more than two years’ imprisonment (Article 155.3).

36. The preventive measure of bail requires a sum of money (securities) or other items of value determined by a court to be deposited in the State bank in the court’s name, in order to release a person from detention while guaranteeing that he remains at the disposal of the prosecuting authority. This applies to individuals charged with offences not posing a serious public threat, less serious offences, or serious offences committed negligently (Article 164.1). If any of the circumstances mentioned in Articles 155.1 and 155.2 of the Code exist, a court may, relying on relevant grounds, refuse release on bail (Article 164.4).

B. Decisions of the Plenum of the Supreme Court

1. Decision “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” of 30 March 2006

37. The relevant part of this decision reads as follows:

“13 ...the preventive measure of remand in custody must be considered an exceptional measure to be applied in absolutely necessary cases, where the application of another preventive measure is not possible.

14. The courts should take into account that persons whose right to liberty has been restricted are entitled, in accordance with Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to trial within a reasonable time, as well as to release pending trial if it is not necessary to apply the preventive measure of remand in custody in respect of them.”

2. Decision “on the Practice of the Application of the Legislation by the Courts during the Examination of Requests for the Application of the Preventive Measure of Remand in Custody in Respect of an Accused” of 3 November 2009

38. The relevant part of this decision reads as follows:

“3 ... when deciding to apply the preventive measure of remand in custody, the courts must not be content with only listing the procedural grounds provided for by Article 155 of the CCrP, but must verify whether each ground is relevant in respect of the accused and whether it is supported by the materials in the case file. In so doing, the nature and gravity of the offence committed by the accused, information about his personality, age, family situation, occupation, health and other circumstances of that kind must be taken into consideration.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

39. The applicant complained, relying on Article 5 of the Convention, that his arrest and detention had not been based on reasonable grounds for suspecting that he had committed a criminal offence. In his observations lodged with the Court on 15 June 2011, the applicant also complained that his arrest on 10 November 2007 had been unlawful, because he had been unlawfully detained by the investigator. The relevant part of Article 5 § 1 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...”

A. Reasonable suspicion

40. The Government submitted that the applicant had been arrested on a reasonable suspicion that he had committed a criminal offence. In particular, the suspicion was based on the statements of V.H. and other witnesses.

41. The applicant alleged that there had been no reasonable suspicion that he had committed a criminal offence, and that the domestic authorities had failed to furnish sufficient facts and information to found a reasonable suspicion that he had committed any criminal offence. In this connection, he submitted that on the day of his arrest, 10 November 2007, there had been no reliable evidence that he had caused V.H.’s injuries, because the forensic report of V.H. dated 9 November 2007 had been unreliable. For this reason, on 10 November 2007 the investigator himself had ordered a new forensic examination of V.H.

42. 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, and Erdagöz v. Turkey, 22 October 1997, § 51, Reports of Judgments and Decisions 1997‑VI). Nor is it necessary that the person detained should ultimately have been charged or taken before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling the suspicions which provide the grounds for the 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 criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300‑A). However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. 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 (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182, and Cebotari v. Moldova, no. 35615/06, § 48, 13 November 2007).

43. In the present case, the applicant was suspected of the offences of deliberate infliction of less serious injury to health and hooliganism when the first-instance court ordered his pre-trial detention. It is not disputed that these types of actions qualified as criminal offences under domestic law.

44. The Court observes that the initial suspicion against the applicant was based on the statements of V.H. and S.Q., with whom he was involved in the altercation, as well as on the statements of other two witnesses who identified the applicant as the man who had punched V.H. Moreover, the forensic report of 9 November 2007 established the existence of various injuries on V.H.’s body, which were classed by the expert as “less serious”.

45. In these circumstances, the Court cannot accept the applicant’s submissions that there had been no reasonable suspicion that he had committed a criminal offence. As to his submission that on 10 November 2007 the investigator had ordered a new forensic examination of V.H. at his request, the Court notes that it could not automatically be interpreted that the report of 9 November 2007 was unreliable, as the investigator merely granted the applicant’s request for a new forensic examination. The Court thus holds that, within the meaning of the previously cited case-law, the above-mentioned evidence objectively linked the applicant to the alleged criminal offence and was sufficient to have created a “reasonable suspicion” against him.

46. 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.

B. Lawfulness of the applicant’s detention on 10 November 2007

47. The Government submitted that the applicant had failed to exhaust the available domestic remedies in respect of his complaint concerning the lawfulness of the investigator’s actions during his arrest and detention on 10 November 2007. The Government argued in this connection that the applicant should have lodged an appeal against the investigator’s decision to detain him.

48. The applicant contested the Government’s submissions, arguing that he had exhausted the available domestic remedies in respect of this complaint, as the domestic courts which had applied the preventive measure of remand in custody should have examined the lawfulness of his detention of their own motion.

49. However, having examined the applicant’s initial submissions in his application lodged with the Court on 13 February 2008, the Court notes that the applicant did not raise any complaint in this respect in his application before the Court. The first time he raised this complaint before the Court was in his observations lodged on 15 June 2011 in reply to those of the Government. Taking into consideration that the final domestic decision in the proceedings concerning the applicant’s detention was the Baku Court of Appeal’s decision of 22 November 2007, the Court notes that this complaint was lodged with the Court out of time and does not comply with the six‑month rule.

50. Accordingly, this complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

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

51. The applicant complained under Article 5 of the Convention that the domestic courts had failed to justify the necessity for the application of the preventive measure of remand in custody and had refused his request for release on bail without any explanation. The Court considers that these complaints fall to be examined under Article 5 § 3 of the Convention, which provides as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

52. 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

53. The Government contested the applicant’s submissions, arguing that the domestic courts had provided relevant and sufficient reasons for the applicant’s detention. The Government further submitted that the applicant’s request for bail had been duly examined by the courts.

54. The applicant submitted that the domestic courts had failed to provide reasons for his detention. In particular, he argued that the courts had merely quoted the relevant legal provisions without making any assessment of his particular circumstances when they ordered his detention. The applicant further submitted that the domestic courts had failed to provide any reasons for dismissing his request for bail and had not duly examined that request.

2. The Court’s assessment

55. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 58, ECHR 2003‑IX (extracts), and Khodorkovskiy v. Russia, no. 5829/04, § 182, 31 May 2011). According to the Court’s established case-law, the presumption under Article 5 is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between bringing an accused to trial within a reasonable time and granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006‑X, and Bykov v. Russia [GC], no. 4378/02, § 61, 10 March 2009).

56. The persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000‑IV).

57. The domestic courts must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release (see Letellier v. France, 26 June 1991, § 35, Series A no. 207). Arguments for and against release must not be general and abstract (see Clooth v. Belgium, 12 December 1991, § 44, Series A no. 225).

58. The Convention case-law has developed four basic acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: the risk that the accused would fail to appear for trial (see Stögmüller v. Austria, 10 November 1969, § 15, Series A no. 9); take action to prejudice the administration of justice if released (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7); commit further offences (see Matznetter v. Austria, 10 November 1969, § 9, Series A no. 10); or cause public disorder (see Letellier, cited above, § 51).

59. In this connection, the Court reiterates that, while the severity of the sentence faced is one of the relevant elements in the assessment of the risk of absconding, the gravity of the charges cannot by itself serve to justify long periods of detention (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001). Moreover, the risk of absconding, which may justify detention, cannot be gauged solely on the basis of the severity of the sentence faced. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Panchenko v. Russia, no. 45100/98, § 105, 8 February 2005, and Letellier, cited above, § 43).

60. The Court further observes that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures to ensure his appearance at trial. Indeed, that Article lays down not only the right to “trial within a reasonable time or release pending trial” but also provides that “release may be conditioned by guarantees to appear for trial” (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000). Whenever the danger of absconding can be avoided by bail or other guarantees, the accused must be released, it being incumbent on the national authorities to always duly consider such alternatives (see, mutatis mutandis, G.K. v. Poland, no. 38816/97, § 85, 20 January 2004).

61. Turning to the circumstances of the instant case, the Court reiterates that the period to be taken into consideration for the purposes of Article 5 § 3 begins on the day the accused is taken into custody and ends on “the day when the charge is determined, even if only by a court of first instance” (see Kalashnikov v. Russia, no. 47095/99, § 110, ECHR 2002‑VI, and Labita, cited above, § 147). This period commenced on 10 November 2007 when the applicant was arrested, and ended on 7 March 2008 when the first-instance court convicted him. Thus, the applicant’s pre-trial detention lasted a total of three months and twenty‑seven days.

62. The Court notes at the outset that the total length of the applicant’s detention does not appear manifestly excessive. However, it reiterates that Article 5 § 3 of the Convention cannot be seen as authorising pre‑trial detention unconditionally, even if it is short. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Belchev v. Bulgaria, no. 39270/98, § 82, 8 April 2004; Sarban v. Moldova, no. 3456/05, § 97, 4 October 2005, and Castravet v. Moldova, no. 23393/05, § 33, 13 March 2007). Even when issuing the first order for the applicant’s detention only a few days after his arrest, the national authorities were already under an obligation to demonstrate convincingly their justification for such a measure (see Patsuria v. Georgia, no. 30779/04, § 67, 6 November 2007, and Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 75, 13 January 2009). Moreover, the Court has already held that there must be an opportunity for judicial consideration of release pending trial even at the very early stages of pre‑trial detention, where the nature of the offence or the personal circumstances of the suspected offender are such as to render detention unreasonable, or unsupported by relevant or sufficient grounds (see McKay, cited above, § 46).

63. In the present case, the applicant’s detention was ordered when he was brought before the Yasamal District Court on 11 November 2007. This decision was upheld by the Baku Court of Appeal on 22 November 2007.

64. The Court observes that the first-instance court justified the applicant’s detention on the grounds that there was a risk of him absconding from and obstructing the investigation, the likelihood of him reoffending, and the fact that he posed a danger to society (see paragraph 23 above). On appeal, the Baku Court of Appeal reiterated the risk of him absconding from and obstructing the investigation, also relying on the nature of the offence and the fact that he was charged with a less serious offence punishable by more than two years’ imprisonment (see paragraph 25 above).

65. The Court notes in this regard that both the Yasamal District Court and the Baku Court of Appeal limited themselves to repeating various grounds for the applicant’s detention in a general and stereotyped way, without indicating any reasons why they considered the grounds relevant in respect of the applicant. Nor did they address in any detail the arguments put forward by him against the application of the preventive measure of remand in custody. They failed in particular to mention any case-specific facts relevant to those grounds and to substantiate them with relevant and sufficient reasons (see Farhad Aliyev v. Azerbaijan, no. 37138/06, §§ 190‑194, 9 November 2010, and Muradverdiyev v. Azerbaijan, no. 16966/06, §§ 87-91, 9 December 2010).

66. In this connection, the Court notes that the Plenum of the Supreme Court clearly established in its decision of 3 November 2009 that a general reference to grounds for detention cannot be considered as sufficient justification when the courts order pre-trial detention (see paragraph 38 above). The domestic courts are under an obligation to describe in detail each ground relied on in respect of an accused’s detention and his personal situation, also verifying whether the ground relied on is relevant.

67. As to the applicant’s request for release on bail, the Court observes that, when dismissing it, the Yasamal District Court and the Baku Court of Appeal relied on Article 164.4 of the CCrP, which provides that the court may refuse release on bail if any of the circumstances mentioned in Articles 155.1 and 155.2 of CCrP exist (see paragraphs 27 and 29 above). The appellate court also held that the arguments put forward by the applicant were insufficient for his release.

68. The Court observes in this connection that Article 164 of the CCrP does not preclude the release of a person charged with a less serious offence, such as the applicant, but provides that the court may refuse release on bail if any of the circumstances mentioned in Articles 155.1 and 155.2 of CCrP exist. However, when dismissing the applicant’s request relying on this Article, the domestic courts did not describe in detail any of the circumstances mentioned in Articles 155.1 and 155.2 of CCrP which, in the courts’ view, existed in the applicant’s case. Although the Baku Court of Appeal found the applicant’s arguments insufficient for his release on bail, in a general way and without giving any reasons for its findings, the Court observes that both the Yasamal District Court and the Baku Court of Appeal failed to examine arguments and did not even attempt to refute them.

69. In view of the foregoing considerations, the Court concludes that, by using a standard formula merely listing the grounds for detention without mentioning the specific facts of the applicant’s case, as well as dismissing his request for bail without duly examining the arguments for release put forward by him, the authorities failed to give “relevant” and “sufficient” reasons to justify the applicant’s pre-trial detention.

70. Accordingly, there has been a violation of Article 5 § 3 of the Convention on this account.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

71. The applicant complained under Article 6 of the Convention of unfairness in the proceedings, arguing that the domestic courts’ decisions concerning his detention and his request for bail had not been reasoned.

72. The Court notes that in so far as the applicant complained of unfairness in the proceedings concerning his remand in custody and his request for bail, his complaint would fall to be examined under Article 5 § 4 of the Convention.

73. However, the Court considers that in the present case there is no separate issue under Article 5 § 4 of the Convention, as the complaint concerning the lack of justification for the applicant’s detention and the dismissal of his request for bail concerns the same matters as those examined under Article 5 § 3 of the Convention. The Court therefore rejects this part of the application pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. 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

75. The applicant claimed 35,000 euros (EUR) in compensation for non‑pecuniary damage.

76. The Government submitted that the applicant’s claim was unsubstantiated and excessive. They considered that, in any event, a finding of a violation would constitute sufficient just satisfaction.

77. The Court considers that the applicant has 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 the applicant the sum of EUR 5,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

78. The applicant claimed 5,000 Azerbaijani manats (AZN) for legal and other professional services provided by two lawyers in the domestic proceedings (AZN 300 for each lawyer for representing him in court hearings, AZN 400 for each lawyer for preparing the appeal against detention, AZN 500 for each lawyer for preparing the request for release on bail, AZN 500 for each lawyer for preparing an appeal against the court’s refusal to grant bail, and AZN 800 for each lawyer for visiting him in detention). The applicant also claimed AZN 3,200 for legal services provided by two lawyers in the proceedings before the Court. The applicant also claimed 1,794.20 pounds sterling (GBP), including GBP 450 for external legal consultation and GBP 1,344.20 for translation expenses. In support of his claim, the applicant submitted various contracts and invoices.

79. The Government considered that the claim was unsubstantiated and excessive. In particular, they submitted that the applicant had failed to show that he needed to be represented by two lawyers in the domestic proceedings and before the Court, as they did the same work. The Government further submitted that one of the lawyers did not participate in the hearing before the Baku Court of Appeal concerning the request for release on bail and that the applicant had failed to submit any evidence proving that his lawyers had visited him while in detention. The Government further submitted that the applicant had failed to substantiate the need to consult a foreign expert in his case. They also contested the translation expenses. The Government argued in this connection that the applicant’s observations before the Court consisted of only fifteen pages and that the amount claimed for translation was excessive.

80. 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. In the present case, the Court observes that not all the documents submitted by the applicant were relevant to his case and some of them were not clear in their substance and did not clearly show that the relevant expenses were reasonably and necessarily incurred and were reasonable. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 covering costs under all heads.

C. Default interest

81. 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. Declares the complaint under Article 5 § 3 admissible and the remainder of the application inadmissible;

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

3. Holds

(a) that the respondent State is to pay the applicant, within three months from 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

 

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