Communicated on 5 January 2015
FIRST SECTION
Application no. 68817/14
Leyla YUNUSOVA and Arif YUNUSOV against Azerbaijan
lodged on 17 October 2014
STATEMENT OF FACTS
The applicants, Ms Leyla Yunusova (“the first applicant”) and Mr Arif Yunusov (“the second applicant”), are Azerbaijani nationals, who were born in 1955 and live in Baku. They are represented before the Court by Mr K. Bagirov and Mr J. Javadov, lawyers practising in Azerbaijan.
A. The background of the case
The first applicant is a well-known human rights defender and civil society activist. She is the director of the Institute for Peace and Democracy (“the Institute”), a non-governmental organisation specialising in human rights protection and conflict resolution problems.
The second applicant, who is the husband of the first applicant, is a researcher and the head of the Conflictology Department of the Institute.
On an unspecified date in 2014 the Prosecutor General’s Office instituted a criminal case no. 142006022 against R.M., an independent journalist based in Turkey, in connection with alleged spying for Armenia. On 20 April 2014 R.M. was arrested and charged under Article 274 (high treason) of the Criminal Code.
On 25 April 2014, at the request of the Prosecutor General’s Office, the applicants’ bank accounts were frozen.
B. Events of 28 and 29 April 2014
On 28 April 2014 the Yasamal District Court ordered in two separate decisions a search at the applicants’ flat and at the Institute’s office within the framework of the criminal case no. 142006022, relying on the prosecutor’s request in this respect. The applicants and their lawyer were not informed of the Yasamal District Court’s hearings of 28 April 2014.
On 28 April 2014 the applicants arrived at Baku Heydar Aliyev Airport in order to take a flight for Doha. At around 10.30 p.m. during the passport control the State Border Service did not allow them to board the flight. Soon after two investigators came to the airport and searched the applicants’ luggages in the absence of their lawyer and without presenting a court order. Following the search, the investigator seized all the documents in the luggage, including a laptop, a video camera, USB flash drives and the applicants’ passports. It appears from the record on examination (baxış keçirilməsi haqqında protokol) of 28 April 2014 that the examination began at 11.20 p.m. on 28 April 2014 and ended at 03.15 a.m. on 29 April 2014. The applicants refused to sign the record.
According to the applicants, during their stay at the airport they were kept in a room from 10.30 p.m. on 28 April 2014 to 3.40 a.m. on 29 April 2014 and they were not free to leave the room.
At around 3.40 a.m. on 29 April 2014 the applicants were taken by car to their flat. They were accompanied by plain-clothes police officers who abused them during the journey using threatening and offensive language. In particular, the police officers threatened the applicants with rape during their transfer by car from the airport to their flat. As a result, on their arrival at the building where their flat was situated the second applicant did not feel well and he was diagnosed with hypertension. He was then taken to hospital where he stayed in-patient treatment until 7 May 2014.
Although the investigator wanted to conduct a search at the flat, the first applicant refused to open the door of the flat stating that her husband was at risk of death and she could not participate in these circumstances in a search. During this period, the first applicant was under strict police control and was accompanied by a police officer while she was using the toilet in her neighbour’s flat. When she complained about the police officer’s intrusion into the toilet to I.A., the head of the Yasamal District Police Office who was on the spot, the latter answered that the police officer had rightly behaved himself and that, as she was not an Azerbaijani, but an Armenian, any disrespectful attitude towards her was permissible.
At 7 a.m. on 29 April 2014 the first applicant was taken to the Prosecutor General’s Office where she was questioned until 4.50 p.m. She was then taken to the Institute’s office where the investigator carried out a search on the basis of the Yasamal District Court’s decision of 28 April 2014. It appears from the search record that the search began at 4.50 p.m. and ended at 6.45 p.m. The search was conducted in the presence of the applicants’ lawyer and was filmed.
The first applicant was then taken to her flat where the investigator conducted a search. During the searches, the investigator seized various documents, including a computer, different books, business cards and bank documentation.
The first applicant was set free only after the end of the searches.
B. Remedies used by the applicants
1. The proceedings concerning the searches at the applicants’ flat and at the Institute’s office
On 1 May 2014 the applicants appealed against the Yasamal District Court’s decision of 28 April 2014 ordering a search at their flat. Relying on Article 8 of the Convention, the applicants argued that the search had been unlawful. In particular, they complained that there had been no justified reason for carrying out such a search and that they had not been provided with a copy of the search order.
On 15 May 2014 the Baku Court of Appeal dismissed the appeal, finding that the search order had been lawful.
In the meantime, on 14 May 2014 the applicants appealed against the Yasamal District Court’s decision of 28 April 2014 ordering a search at the Institution’s office. Relying on Article 8 of the Convention, the applicants complained that the search order had been unlawful because there had been no reason for conducting such a search.
The applicants did not receive any response to their appeal.
2. The proceedings concerning the lawfulness of the applicants’ search at the airport
On an unspecified date the applicants lodged a complaint claiming the unlawfulness of their search at the airport on 28 April 2014. In this connection, they submitted that there had been no court order for conducting this search and that it had been conducted in the absence of their lawyer.
On 9 June 2014 the Khazar District Court dismissed the applicants’ claim. The court held that the investigator had not conducted a search of the applicants, but an examination of their objects which did not constitute a procedural action requiring a court order under domestic law. As to the absence of the applicants’ lawyer, the court found that the lawyer’s presence was not required by domestic law during this kind of examination.
On 20 June 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 9 June 2014.
3. The proceedings concerning the lawfulness of the applicants’ deprivation of liberty and their alleged ill-treatment on 28 and 29 April 2014
On an unspecified date the applicants lodged a complaint with the Yasamal District Court complaining about their unlawful deprivation of liberty and ill-treatment. In particular, they complained that they had been subjected to inhuman and degrading treatment because they had been verbally abused and threatened with rape by plain-clothes police officers during their transfer by car from the airport to their flat. They argued that as a result of this treatment following their arrival at the building where their flat was situated the second applicant did not feel well. He was diagnosed with hypertension and was then taken to hospital. The first applicant further submitted that the fact that a police officer had entered into the toilet stall while she was using the toilet in her neighbour’s flat had constituted a degrading treatment. She submitted that this degrading treatment had been justified by I.A., the head of the Yasamal District Police Office, in the presence of other police officers. In particular, I.A. stated that as she was not an Azerbaijani, but an Armenian, any disrespectful attitude towards her was permissible and, following this statement of I.A., other police officers continued to insult her. In support of this claim, the applicants relied on various video recordings.
The applicants also complained relying on Article 5 of the Convention that they had been unlawfully arrested on 28 April 2014 at the airport and had been deprived of their liberty. In particular, they argued that the first applicant had been under strict police control about twenty-six hours and that the second applicant had been under strict police control until his transfer to hospital.
On 17 June 2014 the Yasamal District Court dismissed the applicants’ claim. The court held that the applicants had failed to prove their allegations and that the prosecuting authorities’ actions had been lawful.
The applicants appealed against this decision, reiterating their previous complaints.
On 10 July 2014 the Baku Court of Appeal dismissed the appeal.
4. The proceedings concerning the lawfulness of the seizure of the applicants’ passports and their prevention from leaving the country
On an unspecified date the applicants lodged a complaint with the investigator in charge of the case asking him for return of their passports. In particular, the applicants argued that the seizure of their passports on 28 April 2014 at Baku Heydar Aliyev Airport had been unlawful and had breached their right to liberty of movement. In this connection, they submitted that, although there was no official decision restricting their right to freedom of movement, they had been unlawfully prevented from leaving the country.
On an unspecified date the applicants lodged a complaint with the Nasimi District Court complaining of the seizure of their passports by the investigator. Relying on Article 2 of Protocol No. 4 to the Convention, they alleged that the imposition of a travel ban and the seizure of their passports in the absence of any procedural decision had been unlawful and had violated their right to freedom of movement.
On 14 May 2014 the Nasimi District Court refused to admit the claim, holding that the domestic law did not provide the possibility to dispute the prosecutor’s decision to impose a travel ban before the domestic courts.
The applicants appeled against this decision, reiterating their previous complaints.
On 26 May 2014 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 14 May 2014.
In the meantime, by letters dated 22 May and 5 June 2014, the Head of the Serious Crimes Department of the Prosecutor General’s Office informed the applicants that their request had been added to the case file and that they would be informed of the result of its examination.
5. The proceedings concerning the freezing of the applicants’ bank accounts
On an unspecified date the applicants lodged a request with their bank asking it to explain the reason for freezing of their bank accounts.
By a letter of 12 July 2014 the bank informed the applicants that their bank accounts had been deactivated at the request of the Prosecutor General’s Office.
On an unspecified date the applicants lodged a complaint with the Nasimi District Court complaining of the prosecuting authorities’ request to freeze their bank accounts. They claimed, in particular, that there had been no legal basis for such a request which had violated their property rights. They also submitted that in any event such a measure could not be applied in respect of them because there were no criminal proceedings against them.
On 18 July 2014 the Nasimi District Court refused to admit the claim, holding that the domestic law did not provide the possibility to dispute the prosecutor’s decision to freeze bank accounts before the domestic courts. The hearing was held in the absence of the applicants and their lawyer.
The applicants were provided with a copy of this decision on 24 July 2014.
The applicants appeled against this decision, reiterating their previous complaints. They further asked the appellate court to restore the time-limits for lodging an appeal, noting that the hearing before the first-instance court had been held in their absence and that they had been provided with a copy of the decision only on 24 July 2014.
On 4 August 2014 the Baku Court of Appeal decided to return the case to the first-instance court without considering it. The appellate court held that the question of the restoration of time-limits for lodging an appeal should be firstly examined by the lower court.
C. Institution of criminal proceedings against the applicants and their remand in custody
1. The criminal proceedings against the first applicant
On 30 July 2014 the first applicant was arrested by the police and was taken to the Serious Crimes Department of the Prosecutor General’s Office.
On the same day she was charged under Articles 178.3.2 (large-scale fraud), 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion), 274 (high treason), 320.1 and 320.2 (falsification of official documents) of the Criminal Code.
On the same day the Nasimi District Court, relying on the official charges brought against her and the prosecutor’s request for the application of the preventive measure of remand in custody, ordered her detention for a period of three months. The court justified the application of the preventive measure of remand in custody by the gravity of the charges and the likelihood that if released she might abscond from the investigation.
On 1 August 2014 the first applicant appealed against this decision, claiming that her detention was unlawful. She submitted, in particular, that there was no reasonable suspicion that she had committed a criminal offence and that there was no justification for the application of the preventive measure of remand in custody. She pointed out in this connection that the court had failed to justify her detention on remand and to take into account her personal circumstances, such as her social status, her state of health and her age, when it ordered her remand in custody. She further argued that her detention was related to her activities as a human rights defender and that she had been punished for her activities.
On 6 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the first-instance court’s decision was lawful.
2. The criminal proceedings against the second applicant
On 30 July 2014 the second applicant was questioned by an investigator at the Serious Crimes Department of the Prosecutor General’s Office. Following the interrogation, he was charged under Articles 178.3.2 (large‑scale fraud) and 274 (high treason) of the Criminal Code.
On the same day the investigator decided to apply in respect of him the preventive measure of placement under police supervision taking into account his state of health.
On 5 August 2014 the second applicant was arrested by the police. On the same day the prosecutor lodged a request with the Nasimi District Court asking it to replace the second applicant’s placement under police supervision by the preventive measure of remand in custody. The prosecutor justified his request by the second applicant’s failure to comply with the requirements of the preventive measure of placement under police supervision.
On 5 August 2014 the Nasimi District Court ordered the second applicant’s detention for a period of three months. The court justified the application of the preventive measure of remand in custody by the gravity of the charges and the likelihood that if released he might abscond from the investigation.
On 8 August 2014 the second applicant appealed against this decision. He submitted, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for the replacement of the preventive measure of placement under police supervision by the preventive measure of remand in custody. He further pointed out that the court had failed to justify his detention on remand and that his detention was related to his activities as a civil society activist and his wife’s activities as a human rights defender.
On 11 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the detention order was justified.
D. Joint statement of 31 July 2014 by law-enforcement authorities concerning the criminal proceedings against the applicants and other statements published in the media
Before and after the applicants’ arrest, numerous articles about them were published in the State media and in the media allegedly close to the Government. In these articles, they were described as “a spy of foreign countries” and “a traitor”. Moreover, a number of politicians from the ruling political party made pejorative comments about recently arrested NGO activists in Azerbaijan in their interviews in the media.
On 29 April 2014 the Prosecutor General’s Office made a public statement in which it was noted that the applicants were prevented from leaving the country because they should be questioned as witnesses in the ongoing criminal proceedings and, in spite of official summons sent to them, they had failed to appear before the investigation.
On 30 May 2014 the Prosecutor General’s Office made another public statement to the media in which it was noted that the first applicant had refused to co-operate with the investigation and to reply to the investigation’s requests.
On 31 July 2014 a joint statement was made by the Prosecutor General’s Office and the Ministry of National Security. This joint statement officially informed the public of the institution of criminal proceedings against the applicants. It was noted in the joint statement that it had been established that the applicants had cooperated with the Armenian intelligence service and had failed to comply with the requirements of the tax legislation.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention that on 28 and 29 April 2014 they were ill-treated by police officers. In particular, they complain that they were verbally abused and threatened with rape by plain‑clothes police officers during their transfer by car from the airport to their flat. The first applicant further complains that the facts that a police officer entered into the toilet stall while she was using the toilet in her neighbour’s flat and that I.A., the head of the Yasamal District Police Office, insulted her before other police officers constituted a degrading treatment.
2. The applicants complain under Article 5 of the Convention that their detention at the airport on 28 April 2014 amounted to a deprivation of liberty and was unlawful. They argue that the first applicant was under strict police control about twenty-six hours and that the second applicant was under strict police control until his transfer to hospital.
3. The applicants complain under Article 5 § 1 of the Convention that their arrest and detention within the framework of the criminal proceedings instituted against them were unlawful because there was no reasonable suspicion that they had had committed a criminal offence.
4. The applicants complain under Article 5 § 3 of the Convention that the domestic courts failed to justify the application of the preventive measure of remand in custody in their respect and that there was no relevant and sufficient reasons for their continued pre-trial detention.
5. The applicants complain under Article 6 § 2 of the Convention that various statements made by the domestic authorities and the politicians amounted to an infringement of their right to the presumption of innocence. In particular, they complain that the joint statement made by the Prosecutor General’s Office and the Ministry of National Security to the press dated 31 July 2014 amounted to an infringement of their right to the presumption of innocence.
6. The applicants complain under Article 8 of the Convention that their right to respect for their private and family life, their home and their correspondence was violated because their search at the airport, as well as the searches at their home and at the Institute’s office, were unlawful.
7. The applicants complain under Article 18 of the Convention that their Convention rights were restricted for purposes other than those prescribed in the Convention. In particular, they argue that their arrest and pre-trial detention were intended to silence them as human rights defenders and civil society activists.
8. The applicants complain under Article 1 of Protocol No. 1 to the Convention that their property rights were violated, because the prosecuting authorities unlawfully ordered the freezing of their bank accounts.
9. The applicants complain under Article 2 of Protocol No. 4 to the Convention that their freedom of movement was violated, because the domestic authorities prevented them from leaving the country in the absence of any official decision in this regard and that their passports were seized by the investigator.
10. Relying on Articles 6 and 13 of the Convention, the applicants complain that they had no effective remedy by which to challenge the lawfulness of the prosecuting authorities’ actions. In particular, they complain about the domestic courts’ failure to examine their complaints concerning the seizure of their passports, their prevention from leaving the country and the freezing of their bank accounts by the prosecuting authorities.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention? Having regard to the procedural protection from torture or inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
2. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention on 28 and 29 April 2014? Was the applicants’ detention on 28 April 2014 at Haydar Aliyev Airport in Baku compatible with the requirements of Article 5 of the Convention? In particular, was a detention record ever compiled? If it was, the Government are requested to submit a copy of it.
3. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention within the framework of the criminal proceedings instituted against them? In particular, was their detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion?
4. Did the domestic courts give sufficient and relevant reasons for the applicants’ detention for the purposes of Article 5 § 3 of the Convention? Did they consider alternative measures to their continued detention?
5. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, did the joint statement made by the Prosecutor General’s Office and the Ministry of National Security to the press dated 31 July 2014 amounted to an infringement of the applicants’ right to the presumption of innocence?
6. Has there been an interference with the applicants’ right to respect for their private and family life, home or correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
7. 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 those provisions, contrary to Article 18 of the Convention?
8. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, on account of the freezing of their bank accounts?
9. Was any restriction placed on the applicants’ freedom to leave the territory of the respondent State, as guaranteed by Article 2 § 2 of Protocol No. 4? If so, was that restriction in accordance with the law and necessary in terms of Article 2 § 3 of Protocol No. 4?
10. Did the applicants have at their disposal an effective domestic remedy for their complaints concerning the seizure of their passports, their prevention from leaving the country and the freezing of their bank accounts, as required by Article 13 of the Convention?
11. The parties are requested to submit copies of all documents relating to the criminal proceedings against the applicants, the proceedings concerning the applicants’ arrest and pre-trial detention, their search at the airport and the searches at their home and at the Institute’s office (including the search orders, the search records, the records of questioning of the applicants, video recordings).
Full & Egal Universal Law Academy