Communicated on 20 September 2016
FIFTH SECTION
Application no. 919/15
Ilgar MAMMADOV
against Azerbaijan
lodged on 19 December 2014
STATEMENT OF FACTS
The applicant, Mr Ilgar Mammadov, is an Azerbaijani national who was born in 1970 and is currently serving a prison sentence. He is represented before the Court by Mr F. Agayev, a lawyer practising in Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has been involved in various political organisations and local and international non-governmental organisations for a number of years. In 2008 he co-founded the Republican Alternative Civic Movement (“REAL”) and in 2012 was elected its chairman.
On 4 February 2013 the applicant was charged by the Prosecutor General’s Office with criminal offences under Articles 233 (organising or actively participating in actions causing a breach of public order) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Criminal Code, in connection with the applicant’s alleged involvement in a riot in the town of Ismayilli on 24 January 2013. On 30 April 2013 the applicant was charged under Articles 220.1 (mass disorder) and 315.2 of the Criminal Code, thereby replacing the original charges. The circumstances relating to the Ismayilli events and the applicant’s arrest and pre-trial detention are described in detail in an earlier judgment of this Court, Ilgar Mammadov v. Azerbaijan (no. 15172/13, §§ 6‑55, 22 May 2014).
After completion of the pre-trial investigation, the applicant’s case was sent to trial at the Sheki Court for Serious Crimes. The applicant was to be tried together with seventeen others prosecuted in connection with the Ismayilli events. The applicant was represented by two lawyers.
On 4 November 2013 the Sheki Court for Serious Crimes held a preliminary hearing, at which it examined a number of requests by the applicant, including requests for release from detention and for the proceedings against him to be discontinued, as well as several requests concerning admission of evidence.
By an interim decision of 5 November 2013, delivered following the preliminary hearing, the Sheki Court for Serious Crimes decided to postpone the review of two of the applicant’s requests (for additional witnesses to be summoned and new evidence examined), to reject the applicant’s other requests, and to “keep unchanged” the preventive measure of remand in custody.
The trial spanned around thirty hearings. Throughout the trial, the applicant’s defence lodged a number of requests with the court, including a request for allegedly unlawfully obtained statements of various prosecution witnesses and other evidence produced by the prosecution to be declared inadmissible, for additional witnesses for the defence to be heard, for the participation in the trial of certain individuals designated as “victims of crime” to be terminated owing to the absence of any verifiable injury sustained by them during the Ismayilli events and for additional documentary evidence to be examined. According to the applicant, those requests were either refused or left unexamined or improperly examined.
On 13 January 2014 the applicant’s lawyer lodged an objection to the composition of the court. The court decided to “leave the objection unexamined” and imposed a fine on the lawyer for disrupting the court proceedings (no copy of this decision is available in the case file).
By a judgment of 17 March 2014 the Sheki Court for Serious Crimes convicted the applicant of the criminal offences under Articles 220.1 and 315.2 of the Criminal Code and sentenced him to seven years’ imprisonment.
After the trial, the presiding judge sent an application to the Bar Association requesting disciplinary measures against both the applicant’s lawyers, alleging that they had breached procedural rules numerous times throughout the trial (no copy of this application is available in the case file).
In April 2014 the applicant’s lawyers lodged an appeal against the judgment of the Sheki Court for Serious Crimes, arguing, inter alia, as follows:
(a) the defence had been denied access to the transcripts of trial hearings, and had not been given a full copy of the first-instance judgment by the date of the appeal, this having a consequent effect on the contents of the appeal;
(b) the majority of the defence’s procedural requests were rejected and the defence was not provided with adequate facilities for effective participation in the trial;
(c) the prosecution’s description of the accusations against the applicant (see Ilgar Mammadov, cited above, §§ 27 and 49) was not reasonable and did not fit the elements of the criminal offences under Articles 220.1 and 315.2 of the Criminal Code;
(d) much of the relevant evidence examined during the trial did not prove that there was any violence in Ismayilli during the applicant’s presence there on 24 January 2013; in fact, the evidence supported the applicant’s version of the events and showed that, to the contrary, there was no violence when he was there; and
(e) statements of prosecution witnesses, many of whom were police officers, were self-contradictory, incomplete and unreliable; some of those witnesses retracted their statements during the trial.
On 20 May 2014 the Sheki Court of Appeal held a preliminary hearing, scheduling the beginning of the appellate trial for 5 June 2014. Eventually, after some delays, the appellate trial began on 12 August 2014. The appellate court conducted a new examination of the evidence.
The Sheki Court of Appeal upheld the applicant’s conviction and sentence on 24 September 2014.
After the appellate trial, the presiding judge sent an application to the Bar Association requesting disciplinary measures against both the applicant’s lawyers, alleging that they had breached procedural rules numerous times throughout the trial. On 10 December 2014 the Bar Association suspended one of the applicant’s lawyers, Mr K. Bagirov, and applied to a court for him to be deprived of the status of an advocate.
In November 2014 the applicant lodged a cassation appeal with the Supreme Court, mostly reiterating the points made in the previous appeal.
The examination of the cassation appeal did not take place until until October 2015.
By a decision of 13 October 2015, the Supreme Court quashed the Sheki Court of Appeal’s judgment of 24 September 2014, finding that the lower court’s rejection of the applicant’s requests for examination of additional witnesses and other evidence had been in breach of the domestic procedural rules and the requirements of Article 6 of the Convention. The case was remitted to the Sheki Court of Appeal for a new examination in compliance with the domestic procedural rules and the Convention requirements.
On 19 October 2015 one of the applicant’s lawyers complained to the domestic authorities that the applicant had been assaulted in prison by three high-ranking prison officials. According to the applicant, after “a relatively long time”, an investigator and a State medical expert questioned him regarding the incident. The applicant also submits that no further information was made available to him as to any investigative steps taken by the authorities.
In the meantime, according to the applicant, official and other newspapers published a number of editorial articles claiming that the applicant’s actions in Ismayilli had been a part of a secret US “plot”.
Following a new appellate trial, on 29 April 2016 the Sheki Court of Appeal dismissed the applicant’s appeal and upheld his conviction and sentence.
COMPLAINTS
1. The applicant complains under Article 6 §§ 1 and 3 (b) of the Convention that:
(a) his rights to equality of arms and adversarial proceedings were breached because all of the defence’s procedural requests were ignored or rejected and because the defence was not given a reasonable opportunity to present its case under conditions which were not disadvantageous vis-à-vis the prosecution; (b) the facilities for the conduct of the defence were not adequate, as they were not allowed to use electronic devices or consult the transcripts of the hearings; (c) the domestic courts’ judgments were unreasoned and were not based on a proper evaluation of evidence; (d) the length of the criminal proceedings was unreasonable because there were significant delays by higher courts examining his appeals.
2. The applicant complains under Article 13 of the Convention that there were no effective remedies against the violation of his rights under Article 6 of the Convention.
3. The applicant complains under Article 14 of the Convention, in conjunction with Articles 6 and 13, that he was discriminated against based on his political opinions and his role as an opposition politician.
4. The applicant complains under Article 17 that, by depriving him of liberty and delaying the finalisation of the criminal proceedings against him, the authorities performed acts aimed at the destruction of the rights and freedoms set forth in the Convention (in particular, Article 6 and other provisions) and at their limitation to a greater extent than is provided in the Convention. As a result of these acts, the applicant was deprived of his liberty, removed from the political scene and unable to participate in the presidential and parliamentary elections.
5. The applicant complains under Article 18 of the Convention that his rights were restricted with the intention of removing him from the political scene as a critic of the Government and one of the potentially serious contenders at presidential, parliamentary and municipal elections, and to intimidate other existing and potential political opponents of the current Government.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular, was the applicant’s right to a reasoned judgment based on a proper examination of the submissions and evidence respected in the present case? Was the principle of equality of arms respected as regards the conditions afforded to the defence to present its case? Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention? Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
Where appropriate, the parties are requested to support their responses to the above questions by references to specific pages of the domestic judgments, decisions, transcripts of hearings, or other relevant documents.
3. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his political opinions, contrary to Article 14 of the Convention read in conjunction with Article 6?
4. Were the acts of the State in the present case aimed at the destruction of rights and freedoms to a greater extent than is provided for in the Convention, within the meaning of Article 17?
5. Were the restrictions imposed by the State in the present case for a purpose other than those envisaged by Article 6 or another Convention provision, contrary to Article 18 of the Convention?
6. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?
7. The parties are requested to submit copies of: (a) the transcripts of the first-instance and higher courts’ hearings, in the parts relating to the applicant; (b) any interim decisions taken by the courts relating to the objections or procedural requests lodged by the applicant’s defence; (c) the Sheki Court of Appeal’s judgment of 29 April 2016 and any subsequent judgments or decisions of the domestic courts; (d) any further appeals by the applicant within the framework of the criminal proceedings; (e) all documents and decisions relating to various measures requested or taken in respect of the applicant’s lawyers; and (f) any other documents relevant to the above complaints which are not currently available in the case file.
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