Communicated on 27 April 2016
FIFTH SECTION
Application no. 54846/14
Omar MAMMADOV
against Azerbaijan
lodged on 21 July 2014
STATEMENT OF FACTS
The applicant, Mr Omar Mammadov, is an Azerbaijani national, who was born in 1995 and lives in Baku. He is represented before the Court by Mr K. Bagirov, a lawyer practising in Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a student at a university in the “Turkish Republic of Northern Cyprus” at the time of the events. He was also a member of NIDA civic movement (“NIDA”), a non-governmental organisation established in 2011. The applicant was a blogger. He was active on social media and published various articles criticising the Government. In particular, he was the administrator of two famous Facebook pages entitled “Extracts from AZTV” (“AZTV-dən seçmələr”) and “Page named after Heydar Aliyev” (“Heydər Əliyev adına səhifə”).
In November 2013 the applicant’s father was invited to the Organised Crime Department (“the OCD”) of the Ministry of Internal Affairs where he was questioned about his son’s activities. While his father was at the OCD, an officer of the OCD called the applicant by telephone and demanded that he stop the administration of the Facebook page “Extracts from AZTV” and leave the NIDA movement. He was also told that they would meet him in January 2014 when he would return to Baku.
Approximately one week after this conversation, the applicant stopped to administrate the Facebook page “Extracts from AZTV”. He also stopped to be in contact with the NIDA movement.
On 31 December 2013 the applicant’s father was again invited to the OCD where he was informed that his son had insulted the President of the Republic on social media.
Following the beginning of his university holidays, on 20 January 2014 the applicant returned to Baku.
On 21 January 2014 the applicant, together with his father, was invited to the OCD where he was questioned about his activities. He was explained that he should stop his activities on social media. No document concerning the applicant’s questioning was compiled.
At around 2 p.m. on 24 January 2014, when the applicant was near the Narimanov metro station in Baku, plain-clothes police officers arrested him. They handcuffed the applicant and took him to the Narcotics Department of the Ministry of Internal Affairs (“the NDMIA”).
At around 3 p.m. on 24 January 2014 a search of the applicant was conducted at the NDMIA. According to the applicant, the police officers found in his coat pocket narcotic substances that they had planted during his transfer from his place of arrest to the NDMIA.
On 24 January 2014 criminal proceedings were instituted against the applicant and on 25 January 2014 he was charged under Article 234.4.3 (illegal preparation, possession, purchase, transportation and sale of narcotic substances in large quantities) of the Criminal Code.
On 25 January 2014 the Narimanov District Court, relying on the official charge brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody, ordered the applicant’s detention pending trial for a period of three months. The court justified the application of the preventive measure of remand in custody by the gravity of the charge and the likelihood that if released he might abscond from and obstruct the investigation.
On 28 January 2014 the applicant appealed against this decision, claiming that the court had failed to substantiate his detention pending trial.
On 3 February 2014 the Baku Court of Appeal dismissed the applicant’s appeal, finding that the first-instance court’s decision was justified.
In the meantime, on 31 January 2014 the applicant lodged a separate complaint with the court, claiming that his arrest was unlawful. In particular, he complained that, although under Article 148 of the Code of Criminal Procedure (“the CCrP”) a person could be arrested before institution of criminal proceedings only in the exceptional circumstances listed in the same article, the applicant had been arrested by the police before institution of criminal proceedings in the absence of any exceptional circumstance provided for by Article 148 of the CCrP.
On 14 February 2014 the Narimanov District Court dismissed the applicant’s claim as unsubstantiated.
On 28 February 2014 the Baku Court of Appeal upheld the first-instance court’s decision.
On 7 March 2014 the applicant lodged a request with the Narimanov District Court asking to be put under house arrest in place of pre-trial detention or to be released on bail. He submitted in support of his request that there was no risk of his absconding from or obstructing the investigation and that the courts had failed to take into consideration his personal situation.
On 12 March 2014 the Narimanov District Court dismissed the request, finding that there was no need to change the preventive measure of remand in custody.
On 19 March 2014 the Baku Court of Appeal upheld the first-instance court’s decision.
It appears from the case file that in April 2014 the bill of indictment was sent to the Baku Court of Serious Crimes for trial.
On 24 April 2014 the applicant lodged a request with the court asking for his release. In particular, he complained that despite the fact that his pre-trial detention period had expired on 24 April 2014 he had not been released from detention.
On 20 June 2014 the Khazar District Court dismissed the applicant’s request, finding that his detention was lawful. The court held in this respect that the bill of indictment had been filed with the Baku Court of Serious Crimes which decided, on 30 April 2014, that the preventive measure of remand in custody should be left “unchanged”.
On 3 July 2014 the Baku Court of Appeal upheld the Khazar District Court’s decision of 20 June 2014.
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that his arrest on 24 January 2014 was unlawful because, contrary to the requirements of the domestic law, he was arrested before institution of criminal proceeding. He also complains under Article 5 § 1 of the Convention that his detention after 24 April 2014 was unlawful, as it was not based on any court order.
Relying on Article 5 § 3 of the Convention, the applicant complains that the domestic courts failed to justify his detention pending trial and that there were no relevant and sufficient reasons for his continued detention.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant’s arrest on 24 January 2014 carried out in compliance with Article 5 § 1 of the Convention? Was the applicant’s detention during the period between 24 and 30 April 2014 in compliance with Article 5 § 1 of the Convention?
2. 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?
3. Were the restrictions imposed by the State in the present case, 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?
4. The Government are requested to submit copies of all documents relating to the proceedings concerning the applicant’s arrest and pre-trial detention, including all documents and decisions relating to extensions (if any) of the applicant’s pre-trial detention which have taken place after the lodging of the present application.
Full & Egal Universal Law Academy