Communicated on 9 April 2018
FIFTH SECTION
Application no. 76644/14
Siraj KARIMLI against Azerbaijan
and 3 other applications
(see list appended)
STATEMENT OF FACTS
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants, Mr Karimov, Mr Savalanli and Mr Adilov (for further details see the Appendix), are members of the main opposition political parties. Mr Karimli is the brother of Mr Karimov and was arrested five days prior to the latter’s arrest.
On various dates the applicants were approached by police officers in the street based on “operative information” that the latter possessed drugs and taken to police stations. Once at the hands of the police, they were subjected to bodily searches and various quantities of narcotic substances were found on them. It appears that the police officers searched Mr Savalanli, Mr Karimov and Mr Karimli at the police stations while Mr Adilov was searched by the police officers on the way to the police station several kilometres away from the place where he was apprehended. The police also searched the latter’s flat where large quantities of drugs were discovered. According to the applicants the drugs in question were planted by police officers.
While in police custody the applicants were denied access to lawyers of their own choosing and were not able to inform their families about their arrest.
The applicants were charged under the relevant provisions of the Criminal Code with drug trafficking. In charging the applicants, investigators mainly relied on material evidence found on them.
The domestic courts, referring to the official charges brought against the applicants and the prosecutor’s request for the application of the preventive measure of remand in custody, ordered the applicants’ detention pending trial. In their submissions before the domestic courts the applicants complained, in particular, that the drugs had been planted by police officers in order to frame them in retaliation for their political activities. According to the applicants, their relevant complaints were ignored by the domestic courts.
Further relevant information about the circumstances of the cases is summarised in the Appendix.
COMPLAINTS
The applicants raise various complaints under Articles 5, 6, 11, 13 and 14 of the Convention.
The complaints of each of the applicants are set out in detail in the Appendix.
QUESTIONS
COMMON QUESTIONS
1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? Was their detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion?
In answering those questions the Government are requested to address, inter alia, the following points concerning the circumstances surrounding the applicants’ arrest and detention:
(a) As regards the events prior to the applicants’ arrest, did the authorities have good reasons for mounting the operative search measure against the applicants?
(b) As regards the applicants’ arrest, what investigative activities, where, when and by whom were conducted with the applicants’ participation during the period between the moment of their actual apprehension by police officers and until the moment when they were transferred to the pre-trial detention facility? Were they given access to a lawyer before and during such investigative activity, and, if so, was that a lawyer on duty invited by a police officer or an investigator, or a lawyer of the applicants’ choice?
(c) As regards the events after the applicants’ arrest, apart from the narcotic substances found on the applicants’ person and flat, what was the other material relied on by the investigative authorities and examined by the courts to verify if the reasonable suspicion underpinning the applicants’ pre-trial detention existed and persisted throughout the entire period in question?
The Government are requested to provide relevant procedural and other documents in support of their answers, including, for example, testimonies of police informants, if any, which might have triggered the opening of criminal investigation and the decision to conduct an operative search measure against the applicants; materials relating to the investigative activities carried out and evidence available in the criminal case-file in relation to the applicants’ alleged involvement in drug-trafficking; and documents concerning the applicants’ pre-trial detention.
2. Did the domestic courts give sufficient and relevant reasons for the applicants’ detention for the purposes of Article 5 § 3 of the Convention? Did they consider alternative measures to their continued detention?
3. Did the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?
4. Were the restrictions imposed by the State in the applicants’ cases, purportedly pursuant to Article 5 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention?
CASE SPECIFIC QUESTIONS
Application no. 54151/11
Was the applicant’s deprivation of liberty from 8:30 p.m. on 5 February 2011 until the moment of his formal apprehension as a suspect at 2:45 a.m. on 6 February 2011 compatible with the guarantees of Article 5 § 1 of the Convention?
Application no. 7683/15
Was the applicant’s presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in view of the findings of the Narimanov District Court expressed in its decision of 6 November 2014 pertaining to the applicant’s alleged involvement in drug trafficking?
APPENDIX
No.
Application
no. and date of introduction
Applicant name
date of birth
place of residence
nationality
Represented by
The applicant’s background
Date of the arrest and description of the charges
Decisions concerning the applicant’s pre-trial detention and grounds for detention
Complaints
1.
54151/11
23/08/2011
Jabbar SAVALANLI
04/09/1991
Sumgayit
Azerbaijani
Intigam ALIYEV
The applicant is a member of the Popular Front Party of Azerbaijan.
Apprehended on 5 February 2011, formally arrested as a suspect on 6 February 2011 and charged under Article 234.1 (illegal possession of narcotic substances in an amount exceeding that necessary for personal use without intent to sell).
Decision of 7 February 2011 of the Sumgayit City Court (as upheld on appeal on 16 February 2011) ordering the applicant’s detention for two months.
In its decision the court held that the detention period should be counted from the moment of his actual apprehension, i.e. 5 February 2011, and not from the moment when the arrest record had been compiled, i.e. on 6 February 2011.
Gravity of the charges and risk of reoffending.
Art. 5 - unrecorded, unlawful and unjustified detention.
Art. 6 - ineffective judicial review of the lawfulness of detention.
Art. 11 and 13 - actual reason for arrest and detention was the fact that the applicant was a member of the political opposition party and criticised the Government on social networks.
76631/14
05/12/2014
Faraj KARIMOV
12/10/1985
Baku
Azerbaijani
Nemat KARIMLI
The applicant is a member of the Musavat party.
Arrested on 23 July 2014 and charged under Article 234.4.3 (illegal preparation, possession, purchase, transportation and sale of narcotic substances in large quantities).
Decision of 24 July 2014 of the Narimanov District Court (as upheld on appeal on 1 August 2014) ordering the applicant’s detention for three months.
Gravity of the charges and the risks of the applicant absconding and obstructing the course of justice.
Art. 5 § 1 (c) - lack of reasonable suspicion, unlawful and unjustified detention, ineffective judicial review of the lawfulness of detention.
76644/14
05/12/2014
Siraj KARIMLI
05/04/1984
Baku
Azerbaijani
Nemat KARIMLI
The applicant is brother of Faraj Karimov (see above)
Arrest on 17 July 2014 and charged under Article 234.4.3 (illegal preparation, possession, purchase, transportation and sale of narcotic substances in large quantities).
Decision of 18 July 2014 of the Narimanov District Court (as upheld on appeal on 24 July 2014) ordering the applicant’s detention for three months.
Gravity of the charges and the risks of the applicant absconding and obstructing the course of justice.
Art. 5 § 1 (c) - lack of reasonable suspicion, unlawful and unjustified detention, ineffective judicial review of the lawfulness of detention.
7683/15
27/01/2015
Murad ADILOV
09/06/1983
Baku
Azerbaijani
Yalchin IMANOV
The applicant is a member of the Popular Front Party and co-founder of its Youth Organisation. He is also a brother of Mr Natiq Adilov, the spokesperson for the Popular Front Party and a columnist for an opposition-oriented newspaper, Azadliq.
Arrested on 11 August 2014 and charged under Article 234.4.3 (illegal preparation, possession, purchase, transportation and sale of narcotic substances in large quantities).
Decision of 13 August 2014 of the Narimanov District Court (as upheld on appeal on 25 August 2014) ordering the applicant’s detention for three months.
Decision of 6 November of 2014 of the Narimanov District Court (as upheld on appeal on 13 November 2014) extending the applicant’s detention for two months. The decision stated, in particular, that "preliminary evidence gathered was sufficient to establish [the applicant’s] involvement in drug trafficking."
Decision of 25 November 2014 of the Narimanov District Court (as upheld on appeal on 4 December 2014) dismissing the applicant’s request for release pending trial.
Gravity of the charges, risks of absconding and disrupting the investigation.
Art. 5 - unlawful and unjustified detention, ineffective judicial review of the lawfulness of detention.
Art. 6 § 2 - breach of presumption of innocence on account of the decision of 6 November 2014 extending the applicant’s pre-trial detention.
Art. 14 - actual reason for arrest was the applicant’s political views and his brother’s anti-government media campaign.
Full & Egal Universal Law Academy