Communicated on 30 June 2014
FIRST SECTION
Application no. 48431/11
Movsum SAMADOV against Azerbaijan
lodged on 18 July 2011
STATEMENT OF FACTS
The applicant, Mr Movsum Samadov, is an Azerbaijani national, who was born in 1965 and lives in Baku. He is represented before the Court by Mr A. Gasimli, a lawyer practising in Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s arrest and administrative detention
The applicant was the chairman of the Azerbaijan Islamic Party.
On 2 January 2011 in his speech given at a meeting of the General Council of the Azerbaijan Islamic Party the applicant criticized the ban on wearing veils in schools in Azerbaijan and called the population to protest against this ban. In his speech the applicant also vigorously criticized the President of the Republic and his policy, as well as the general economic and social situation in the country.
The video recording of the applicant’s speech was broadcasted on the Internet and was widely commented in the media and on the social networking websites.
At around 8 p.m. on 7 January 2011 when the applicant was in a car as a passenger with three other persons in Baku, their car was stopped by the police. The applicant was taken to Narimanov District Police Station No. 18 where a record on an administrative offence was drawn up by police officers.
At 10.15 p.m. on the same day the applicant was taken to the Narimanov District Court and appeared before a judge. The applicant was not represented by a lawyer in the proceedings. At the hearing a police officer stated that at 8 p.m. on 7 January 2011 during the control of the driver of a car in which the applicant was present as a passenger, the applicant had protested against the control and had disobeyed the orders of the police by preventing them from performing their function. The applicant denied that this had happened. The judge found the applicant guilty under Article 310.1 (obstructing the police) of the Code of Administrative Offences and sentenced him to thirteen days’ administrative detention. The judge decided that the decision should be executed by the Narimanov District Police Office.
On 17 January 2011 the applicant’s lawyer appealed against this decision. He noted that the applicant’s administrative conviction had been totally unjustified and that the applicant was not detained in the administrative detention facility, but in the detention facility of the Organised Crime Department of the Ministry of Internal Affairs. The lawyer also noted that the applicant had not been provided with a copy of the first‑instance court’s decision.
On 19 January 2011 the clerk of the Baku Court of Appeal contacted the applicant’s lawyer by telephone and asked him to come to the court. Upon his arrival, the lawyer learned that a hearing will be held in connection with his appeal against the decision of 7 January 2011. The lawyer lodged a request with the Baku Court of Appeal asking the court to ensure the applicant’s presence at the hearing. He further asked the court to give him more time and facilities for the preparation of the defence, because since the applicant’s arrest he was authorised to meet him only once.
On 19 January 2011 the Baku Court of Appeal upheld the first-instance court’s decision and dismissed the applicant’s appeal without replying to his particular requests and complaints. The hearing was held in the lawyer’s presence, but in the applicant’s absence. It appears from the court decision that the appellate court did not hear any witness at the hearing. This decision was not subject to any appeal.
B. Institution of criminal proceedings against the applicant and his remand in custody
On 20 January 2011, the last day of his administrative detention, the applicant was informed that he was being charged with preparation of terrorism, unlawful possession of weapons and preparation of usurpation of state power by force under Articles 28, 214.2.1, 214.2.3, 228.3 and 278 of the Criminal Code.
On the same day the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody (həbs qətimkan tədbiri), ordered the applicant’s detention for a period of three months. The judge substantiated the necessity of this measure by the gravity of the applicant’s alleged criminal acts and the possibility of his absconding and obstructing the investigation.
The applicant appealed against the Nasimi District Court’s decision of 20 January 2011, complaining about the lack of justification for application of the preventive measure of detention on remand. He argued that there was no risk of his absconding or obstructing the investigation and that the judge had failed to take into consideration his social status, family situation, place of residence or other personal circumstances when he had ordered his detention.
On 25 January 2011 the Baku Court of Appeal dismissed his appeal, noting that the detention order was justified.
C. The applicant’s request for replacement of his pre-trial detention by house arrest and further extension of the applicant’s pre-trial detention
On 9 February 2011 the applicant’s lawyer lodged a request with the Nasimi District Court for the applicant to be placed under house arrest in lieu of being remanded in custody.
On 15 February 2011 the Nasimi District Court refused the request noting that there was no need to change the preventive measure of remand in custody.
On 25 February 2011 the Baku Court of Appeal upheld the first-instance court’s decision.
Following a request from the Prosecutor General’s Office for an extension of the period of the applicant’s detention on remand, on 15 April 2011 the Nasimi District Court extended the applicant’s remand in custody by four months, until 8 August 2011. The judge substantiated the necessity of this extension on the grounds that a number of investigative steps needed to be carried out and thus more time was needed to complete the investigation. On the same day the Nasimi District Court also refused in a separate decision the applicant’s request for replacement of his pre-trial detention by house arrest.
On 22 April 2011 the Baku Court of Appeal dismissed the applicant’s appeal against the Nasimi District Court’s two decisions of 15 April 2011.
COMPLAINTS
The applicant complains under Article 5 of the Convention that his right to liberty was violated, because there was no reason for application of remand in custody as a preventive measure and that the domestic courts failed to justify the extension of his pre-trial detention period.
Relying on Articles 5 and 6 of the Convention, the applicant complains that his administrative conviction was unlawful and that he was punished because of his political activities. In particular, he complains that his right to a fair trial was violated, because he was not provided with a lawyer following his arrest on 7 January 2011 and was not represented by a lawyer in the administrative proceedings before the first-instance court, and that the hearing before the Baku Court of Appeal on 19 January 2011 was held in his absence. He also complains that he had no adequate time and facilities for the preparation of his defence and that the domestic courts decisions in the administrative proceedings were not reasoned. The applicant further complains that he was deprived of his right to examine the witnesses against him before the Baku Court of Appeal and that he could not obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
QUESTIONS TO THE PARTIES
1. Did the domestic courts give sufficient and relevant reasons for the applicant’s detention for the purposes of Article 5 § 3 of the Convention? Did they consider alternative measures to the applicant’s continued detention?
2. Was Article 6 § 1 of the Convention under its criminal head applicable to the administrative proceedings in the present case? Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular during the administrative proceedings, was the applicant represented by a lawyer in the proceedings before the first-instance court on 7 January 2011? Was the applicant able to be present at the hearing before the Baku Court of Appeal on 19 January 2011? Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention? In particular, was the applicant provided with a copy of the Narimanov District Court’s decision of 7 January 2011? Was the applicant’s lawyer authorised to meet the applicant and to have access to the case file for preparation of the applicant’s defence? Was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention? Was the applicant able to examine witnesses against him in the proceedings before the Baku Court of Appeal, as required by Article 6 § 3 (d) of the Convention?
The Government are requested to submit copies of all the documents relating to the administrative proceedings, including the record on an administrative offence, the transcripts of the hearings and witness submissions.
The parties are requested to submit copies of the applicant’s appeals against the Nasimi District Court’s two decisions of 15 April 2011 and the Baku Court of Appeal’s decisions of 22 April 2011 upholding the Nasimi District Court’s two decisions of 15 April 2011.
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