FIRST SECTION
Application no. 16499/09
Asif NAGIYEV against Azerbaijan
lodged on 26 February 2009
STATEMENT OF FACTS
The applicant, Mr Asif Nagiyev, is an Azerbaijani national, who was born in 1980 and lives in Baku. He is represented before the Court by Mr V. Guliyev, a lawyer practising in Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 15 November 2007 a bomb explosion took place in Moscow. Criminal proceedings were instituted in connection with this explosion and on 13 December 2007 the applicant was charged with unlawful possession of explosive materials under Article 222 of the Criminal Code of the Russian Federation. On 21 December 2007 the Preobrazhenski District Court of Moscow City ordered the application of the preventive measure of remand in custody in respect of the applicant and issued an arrest warrant.
On 26 December 2007 the arrest warrant was sent to the Ministry of Internal Affairs (“the MIA”) of Azerbaijan. The applicant, who was in Azerbaijan at the relevant time, voluntarily came to the MIA and submitted that he had no link with the explosion in question. At the request of the Russian authorities, on 31 January 2008 the applicant was questioned in the MIA with the participation of two Russian police officers about his possible involvement in the explosion. Following a two-hour interrogation, no action was taken against the applicant and he left the premises of the Ministry.
On 30 June 2008 the applicant lodged a complaint with the Organised Crime Department (“the OCD”) of the MIA about an alleged misappropriation of his property by E.H. and others. The applicant subsequently lodged complaints with various State authorities about the failure of the OCD to investigate his complaint.
On 18 September 2008 the applicant was invited to the OCD and upon his arrival he was arrested. The applicant was not allowed to contact his family or a lawyer and his arrest was not documented.
On 22 September 2008 the applicant’s family was informed of the arrest and his detention in the OCD. On 24 September 2008 the applicant’s brother was allowed to meet him.
It appears from the official record on the applicant’s arrest that he was arrested at noon on 27 September 2008. However, the record was silent as to the reason for and the circumstances of the applicant’s arrest.
On 27 September 2008 the Narimanov District Court, relying on the Russian court’s detention order of 21 December 2007, ordered the application of the preventive measure of remand in custody in respect of the applicant for a period of two months. The court relied on the provisions of the Code of Criminal Procedure (“the CCrP”) of the Republic of Azerbaijan relating to detention with a view to extradition when it ordered the applicant’s detention.
The applicant appealed against this decision claiming that his arrest had been unlawful. In particular, he noted that he had been unlawfully arrested on 18 September 2008 and that there were no criminal proceedings pending against him in Azerbaijan. He further noted that he was an Azerbaijani national and he could not be extradited to a foreign State. He also submitted that his arrest and detention had not been carried out in accordance with the domestic and international law, since no official request accompanied by the relevant documents for his detention and extradition was submitted by the Russian authorities.
On 7 November 2008 the Baku Court of Appeal upheld the first-instance court’s decision without considering the applicant’s particular complaints.
On 27 November 2008 the Narimanov District Court extended the applicant’s detention for a period of two months. In its decision, the court noted that, as the applicant was an Azerbaijani national, he could not be extradited to a foreign State and, for this reason, the Azerbaijani Prosecutor General’s Office had requested the Russian Prosecutor General’s Office to transfer the applicant’s criminal case to the Azerbaijani authorities. The court thus justified the necessity of the extension of the applicant’s detention period by the fact that it needed more time for the submission of relevant documents relating to the applicant’s case from the Russian Prosecutor General’s Office to the Azerbaijani authorities.
The applicant appealed against this decision claiming the unlawfulness of the extension. He noted that there were no criminal proceedings pending against him in Azerbaijan and therefore his detention could not be extended on this basis. He also submitted that the court had failed to justify the extension of his detention and that his continued detention was in breach of the relevant international conventions.
On 5 December 2008 the Baku Court of Appeal dismissed the applicant’s appeal without considering his particular complaints.
On 12 December 2008 the applicant lodged a request for the substitution of his detention on remand by house arrest. On 19 December 2008 the Narimanov District Court dismissed the request.
On 27 January 2009 the Narimanov District Court extended the applicant’s detention for a period of one month.
On 2 February 2009 the Baku Court of Appeal upheld the first-instance court’s decision.
On 27 February 2009 the Narimanov District Court again extended the applicant’s detention for a period of one month. The applicant appealed against this decision reiterating his previous complaints.
On 10 March 2009 the Baku Court of Appeal granted the applicant’s appeal and ordered his release. The court held that the applicant’s continued detention had been in breach of the CCrP, the Bilateral Convention between Azerbaijan and Russia on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 3 March 1993 and the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 7 October 2002. In particular, the court held that the applicant could not be extradited to Russia and that, in any event, in the absence of an official request from the Russian authorities within forty days after his arrest, the applicant should be immediately released.
COMPLAINTS
The applicant complains under Article 5 of the Convention about the unlawfulness of his detention. In particular, (a) he complains that he was unlawfully arrested and detained in the OCD; (b) that the Narimanov District Court unlawfully ordered his detention on 27 September 2008; (c) that his continued detention until 10 March 2009 was unlawful and that the domestic courts failed to justify the extension of his detention period.
The applicant further complains that he had no effective remedy by which to challenge the lawfulness of his detention and that the domestic remedies were ineffective.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty during the period between 18 September 2008 and 27 September 2008 fall within paragraphs of this provision?
2. Was the applicant’s detention from 27 September 2008 to 27 November 2008 compatible with Article 5 § 1 of the Convention? In particular, did this detention fall within sub-paragraphs (a), (b), (c), (d), (e), (f) of this provision?
3. Was the applicant’s detention from 27 November 2008 to 10 March 2009 compatible with Article 5 § 1 of the Convention? In particular, did this detention fall within sub-paragraphs (a), (b), (c), (d), (e), (f) of this provision? If the applicant was detained during this period for the purposes of Article 5 § 1 (c) of the Convention, did the domestic courts give sufficient and relevant reasons for the applicant’s detention within the meaning of Article 5 § 3 of the Convention?
4. As required by Article 13 of the Convention, did the applicant have at his disposal an effective domestic remedy to challenge the lawfulness of his detention?
5. The parties are requested to submit a copy of the Narimanov District Court’s decision of 27 February 2009. The Government are requested to submit all the documents concerning the applicant’s arrest on 18 September 2008 by the Organised Crime Department of the Ministry of Internal Affairs and his subsequent detention until 27 September 2008. The Government are also requested to submit all the documents relating to the applicant’s detention submitted to or from the Russian authorities.
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