Published on 3 October 2022
FIFTH SECTION
Application no. 365/20
Elkhan ISGANDAROV and Abulfaz BUNYATOV
against Azerbaijan
lodged on 21 December 2019
communicated on 12 September 2022
SUBJECT MATTER OF THE CASE
The present case concerns the alleged unfairness of criminal proceedings against the applicants.
The applicants are members of the board of an unregistered religious movement, “Müsəlman Birliyi” (“the MB”), established in the beginning of 2015 by Taleh Bagirov (who is one of the applicants in application no. 47347/18 pending before the Court).
On 5 November 2015 applicant Elkhan Isgandarov was arrested in front of the Sabunchu district police department where he and some other people had gathered to protest against reported ill-treatment of Elchin Gasimov, the deputy chairman of the MB who had been arrested on the same day (the arrest of Elchin Gasimov and the subsequent administrative offence proceedings against him are the subject of application no. 30813/16 pending before the Court). On 6 November 2015 the Sabunchu District Court convicted applicant Elkhan Isgandarov of an administrative offence of deliberately failing to comply with a lawful order given by a police officer. He was sentenced to fifteen days of administrative imprisonment.
On 26 November 2015 so-called “Nardaran events” occurred, during which applicant Abulfaz Bunyatov was arrested.
On that day armed police officers of the Ministry of Internal Affairs (“the MIA”) carried out an operation (“the operation”) by entering a house of applicant Abulfaz Bunyatov in Nardaran settlement of Baku, where a number of people were attending a religious gathering.
According to the police records, the operation was organised based on operative information that Taleh Bagirov and some other people had been, inter alia, gathering to prepare the seizure of State power by violent means, mass disorders, terrorist acts, organising armed groups and obtaining weapons.
During the operation shootings occurred, killing six people (four Nardaran residents who attended the gathering and two police officers) and injuring many others, including applicant Abulfaz Bunyatov. According to the police records, at the scene were found and seized, inter alia, weapons, explosive substances, and booklets containing calls for violence.
According to the applicants, during the Nardaran events in total more than seventy people were detained.
On 27 November 2015 the Sabunchu city prosecutor lodged an appeal (apellyasiya protesti) against the Sabunchu District Court’s judgment of 6 November 2015, asking the Court of Appeal to cancel that judgment because the actions of applicant Elkhan Isgandarov should have been qualified as criminal offences (namely, as resistance or violence against a representative of the authorities and hooliganism using weapons or other items used as weapons) and not as an administrative offence. The Court of Appeal granted the prosecutor’s appeal and discontinued the administrative offence proceedings.
Later both applicants were convicted of a number of grave crimes as members of the MB, including preparation to commit terrorism, public calls to commit terrorism, calls to commit mass disorder, unlawfully obtaining, keeping and carrying weapons, explosives, etc., violent capture of power, creation of armed units or groups, public calls against the State by a group of people, incitement of national, racial or religious hostility by an organised criminal group, and resistance or violence against a representative of the authorities. Applicant Elkhan Isgandarov was in addition convicted of organisation of and participation in actions to breach public order by a group of people. Applicant Abulfaz Bunyatov was in addition convicted of intentional murder by an organised criminal group, and fabrication and use of fabricated documents.
The applicants were prosecuted in the framework of the same criminal proceedings and were sentenced to fourteen- and fifteen-years imprisonment respectively.
On 12 June 2019 the Supreme Court delivered a final decision in the criminal proceedings (which made available to the applicants’ lawyers on 21 June 2019).
Before the applicants were convicted, the MIA and the General Prosecutor’s Office made statements to the media about the Nardaran events.
The applicants argue before the Court that their conviction was based on fabricated and otherwise unlawful evidence and complain that the criminal proceedings against them were in breach of various fair-trial guarantees under Article 6 §§ 1 and 3 of the Convention.
The applicants also complain under Article 6 § 2 of the Convention that their presumption of innocence was violated because the MIA and the General Prosecutor’s Office in their statements to the media had called or portrayed them as criminals, before they were convicted of any criminal offence.
Furthermore, the applicants complain under Article 9 of the Convention and Article 18 of the Convention taken in conjunction with Article 6 that their arrest and charges against them were in breach of their right to freedom of religion, and that they were arrested and charged for political reasons, their criticism of the authorities, and their link with the MB.
The applicant Elkhan Isgandarov also complains under Article 4 of Protocol No. 7 to the Convention that he has been tried twice for the same offence.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, was the applicants’ right to a reasoned decision and the principles of equality of arms and adversarial proceedings respected? Were the applicants afforded an adequate opportunity to contest the evidence against them, and to adduce evidence in support of their line of defence and to have such evidence assessed by the court?
2. Were the applicants able to examine witnesses against them, as required by Article 6 § 3 (d) of the Convention? Were the applicants able to obtain the attendance of witnesses on their behalf, as required by Article 6 § 3 (d) of the Convention?
3. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, in particular, in view of the statements made to the media by the MIA and the General Prosecutor’s Office? Regarding this complaint, have the applicants complied with the requirement of exhaustion of domestic remedies and the six-month rule?
4. Has there been an interference with the applicants’ freedom of religion within the meaning of Article 9 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?
5. In the circumstances of the present case, does Article 18 apply in conjunction with Article 6 of the Convention (see Ilgar Mammadov v. Azerbaijan (no. 2), no. 919/15, § 261, 16 November 2017)?
6. Were the restrictions imposed by the State on the applicants, purportedly pursuant to Article 6 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention?
7. Has the applicant Elkhan Isgandarov been tried twice for the same offence, contrary to Article 4 § 1 of Protocol No. 7 to the Convention? If so, did the proceedings fall within the exceptions envisaged by Article 4 § 2 of Protocol No. 7?
8. On which date was the judgment of the Sabunchu district court of 6 November 2015 made available to the Sabunchu district police department and the Sabunchu city prosecutor’s office?
The parties are requested to provide necessary documentary evidence in support of their replies and submissions, including copies of the judgments and decisions of the domestic courts, transcripts of the court hearings and the applicants’ appeals and requests.