FIFTH SECTION
CASE OF MOVSUM SAMADOV v. AZERBAIJAN
(Application no. 48431/11)
JUDGMENT
STRASBOURG
12 December 2019
This judgment is final but it may be subject to editorial revision.
In the case of Movsum Samadov v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 19 November 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 48431/11) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Movsum Mardan oglu Samadov (Mövsüm Mərdan oğlu Səmədov ‑ “the applicant”), on 18 July 2011.
2. The applicant was represented by Mr A. Gasimli and Mr Y. Imanov, lawyers based in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.
3. On 30 June 2014 the Government were given notice of the application.
THE FACTS
4. The applicant was born in 1965 and lives in Baku.
5. He was the chairman of the Islamic Party of Azerbaijan at the time of the events described below.
6. On 2 January 2011 the applicant delivered a speech at a meeting of the general assembly of the Islamic Party of Azerbaijan in which he criticised 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 criticised the general political, economic and social situation in the country.
7. The video recording of the applicant’s speech was broadcast on the Internet and was widely commented on in the media and on social media.
8. At around 8 p.m. on 7 January 2011 when the applicant was a passenger in a car with three other persons in Baku, their car was stopped by the police for breach of traffic rules. The applicant was taken to Narimanov District Police Station No. 18 where at 8.30 p.m. an administrative-offence report (inzibati xəta haqqında protokol) was drawn up against him by police officer, S.B. The report stated that at around 8 p.m., at Heydar Aliyev avenue in Baku, the applicant had disobeyed lawful orders of the police officer. He had been charged with the administrative offence under Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”). The applicant made a written comment in the report, noting that he had not disobeyed the police officer.
9. It appears from the documents in the case file that at 9.30 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. According to the applicant, he was not given an opportunity to hire a lawyer of his own choosing. According to the transcript of the court hearing and the documents in the case file, as the applicant could not reach a lawyer of his own choosing by telephone, the court appointed a State-funded lawyer. However, the applicant refused the assistance of a State-funded lawyer and decided to defend himself in person.
10. Police officer, S.B. stated before the court 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. Relying on S.B.’s statement and the administrative-offence report, at 10.15 p.m. on the same day the court found the applicant guilty under Article 310.1 of the CAO and sentenced him to thirteen days’ administrative detention.
11. It appears from the documents submitted to the Court by the Government that on 7 January 2011 the Narimanov District Court’s decision of 7 January 2011 was served on the head of Narimanov District Police Station No. 18 because the applicant refused to receive a copy of that decision. However, there is no document in the case file indicating that the head of Narimanov District Police Station No. 18 subsequently transmitted the copy of the decision in question to the applicant.
12. On 17 January 2011 the applicant, represented by a lawyer of his own choosing, appealed against the Narimanov District Court’s decision of 7 January 2011. The applicant’s lawyer submitted that the applicant’s administrative conviction had been totally unjustified. The lawyer further claimed that he had not been provided with a copy of the first-instance court’s decision, indicating that he had prepared the appeal without having a copy of the Narimanov District Court’s decision of 7 January 2011.
13. According to the applicant’s lawyer, on 19 January 2011 the clerk of the Baku Court of Appeal contacted him by telephone asking him to come to the court. Upon his arrival, the lawyer learned that a hearing would be held in connection with his appeal against the decision of 7 January 2011. It appears from the documents in the case file that the lawyer lodged a request with the Baku Court of Appeal asking the appellate 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 had been authorised to meet him only once, on 13 January 2011.
14. On 19 January 2011 the Baku Court of Appeal dismissed the appeal and upheld the first-instance court’s decision. The appellate court’s decision made no mention of the applicant’s 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 witnesses at the hearing. This decision was not subject to any appeal.
15. On 20 January 2011, the last day of his administrative detention, the applicant was charged with the criminal offenses of preparation of terrorism, unlawful possession of weapons and usurpation of state power by force under Articles 28, 214.2.1, 214.2.3, 228.3 and 278 of the Criminal Code.
16. On the same date 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.
17. On 21 January 2011 the applicant appealed against that decision, complaining about the lack of justification for application of the preventive measure of remand in custody. He argued that there was no risk of his absconding or obstructing the investigation and that the first-instance court had failed to take into account his social status, family situation, place of residence or other personal circumstances, when it had ordered his pre-trial detention.
18. On 25 January 2011 the Baku Court of Appeal dismissed the appeal, finding that the detention order was justified. The appellate court made no mention of the applicant’s particular complaints.
19. On 9 February 2011 the applicant lodged an application with the Nasimi District Court, asking to be placed under house arrest in lieu of being held in pre-trial detention. He claimed, in particular, that his pre-trial detention was not justified and that there was no reason for it to continue. In support of his application, he pointed out that he had a permanent place of residence, that he had no criminal record, that he had three children, and that he was the chairman of a political party.
20. On 15 February 2011 the Nasimi District Court dismissed the application as unfounded.
21. On 25 February 2011 the Baku Court of Appeal upheld the first‑instance court’s decision.
22. Following a request from the prosecutor in charge of the case for an extension of the period of the applicant’s pre-trial detention, on 15 April 2011 the Nasimi District Court extended the applicant’s remand in custody until 8 August 2011. The court substantiated the need for the extension by the necessity of additional time to carry out further investigative actions on account of the complexity of the case.
23. On the same day, in a separate decision, the Nasimi District Court also dismissed the applicant’s application to be put under house arrest in place of pre-trial detention.
24. On 18 April 2011 the applicant appealed against both decisions of the Nasimi District Court, reiterating his previous complaints.
25. On 22 April 2011 the Baku Court of Appeal dismissed, in two separate decisions, the applicant’s appeals against the Nasimi District Court’s two decisions of 15 April 2011.
26. No further extension decisions were included in the case file.
27. On 7 October 2011 the Baku Court of Serious Crimes found the applicant guilty and sentenced him to twelve years’ imprisonment.
28. The relevant provisions of the Code of Criminal Procedure concerning pre-trial detention are described in detail in the Court’s judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83-102, 9 November 2010) and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35‑49, 9 December 2010). The relevant decisions of the Plenum of the Supreme Court concerning pre-trial detention are described in detail in the Court’s judgment in Allahverdiyev v. Azerbaijan (no. 49192/08, §§ 31‑32, 6 March 2014).
29. The relevant provisions of the CAO are described in detail in the Court’s judgment in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 32‑38, 15 October 2015).
THE LAW
30. The applicant complained under Article 5 of the Convention that the domestic courts had failed to justify the need for his pre-trial detention and provide reasons for his continued detention. The Court considers that this complaint falls to be examined under Article 5 § 3 of the Convention, which reads as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
32. The applicant maintained his complaint.
33. The Government contested the applicant’s submissions, pointing out that the domestic courts had correctly assessed the applicant’s situation and delivered lawful decisions on his pre-trial detention.
34. The Court refers to the general principles established in its case-law set out in the judgment Buzadji v. the Republic of Moldova [GC] (no. 23755/07, §§ 84-91, 5 July 2016), which are equally pertinent to the present case.
35. As regards the period to be taken into consideration for the purposes of Article 5 § 3, in the present case, this period commenced on 20 January 2011, when the applicant’s pre-trial detention was ordered within the framework of the criminal proceedings instituted against him, and ended on 7 October 2011, when the first-instance court convicted him. Thus, the applicant’s pre-trial detention lasted eight months and seventeen days in total.
36. The Court observes that the applicant’s pre-trial detention was first ordered for a period of three months when he was brought before the judge at the Nasimi District Court on 20 January 2011. That decision was upheld by the Baku Court of Appeal on 25 January 2011. His detention was subsequently extended by the Nasimi District Court’s decision of 15 April 2011 until 8 August 2011. That decision was upheld by the Baku Court of Appeal’s decision of 22 April 2011. Moreover, on 15 and 25 February 2011, as well as on 15 and 22 April 2011, respectively, the domestic courts dismissed the applicant’s application to be placed under house arrest in place of pre-trial detention.
37. The Court observes that both the first-instance court and the appellate court used a standard template when ordering the applicant’s pre‑trial detention (see paragraphs 16 and 18 above). In particular, the Court notes that the domestic courts limited themselves to repeating a number of grounds for detention in an abstract and stereotyped way, without giving any reasons why they considered those grounds relevant to the applicant’s case. They failed to mention any case-specific facts relevant to those grounds and to substantiate them with relevant and sufficient reasons (see Farhad Aliyev v. Azerbaijan, no. 37138/06, §§ 191-94, 9 November 2010, and Muradverdiyev v. Azerbaijan, no. 16966/06, §§ 87-91, 9 December 2010).
38. The Court notes that the domestic courts also relied on irrelevant grounds when they extended the applicant’s pre-trial detention. In particular, they substantiated their decisions by stating that more time was needed to complete the investigation (see paragraphs 22 and 25 above). However, the Court reiterates that, under Article 5 § 3, grounds such as the need to implement further investigative measures, or the fact that proceedings have not yet been completed, do not correspond to any of the acceptable reasons for detaining a person pending trial (see Allahverdiyev v. Azerbaijan, no. 49192/08, § 60, 6 March 2014, and Mammadov and Others v. Azerbaijan, no. 35432/07, § 99, 21 February 2019).
39. In view of the foregoing considerations, the Court concludes that, by using a standard formula merely listing the grounds for detention without addressing the specific facts of the applicant’s case, and by relying on irrelevant grounds, the authorities failed to give “relevant” and “sufficient” reasons to justify the need for the applicant’s pre-trial detention.
40. Accordingly, there has been a violation of Article 5 § 3 of the Convention.
41. The applicant complained under Article 6 of the Convention that he had not had a fair hearing in the administrative proceedings. In particular, he complained that the domestic courts’ decisions had not been reasoned, that he had not had adequate time and facilities for the preparation of his defence, that he had not been provided with a lawyer following his arrest on 7 January 2011 and had not been represented by a lawyer in the administrative proceedings before the first-instance court, that the hearing before the Baku Court of Appeal on 19 January 2011 had been held in his absence, and that he had been deprived of his right to examine the witnesses against him before the Baku Court of Appeal. The relevant parts of Article 6 of the Convention read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
42. The Government submitted that the applicant had failed to request the domestic courts to discontinue the administrative proceedings against him and had failed to complain about the lack of adequate time and facilities to prepare his defence and the examination of the witnesses.
43. The Court notes that the material before it does not support the Government’s objections as to the exhaustion of domestic remedies. The documents included in the case files indicate that the applicant complained in his appeals that his administrative conviction had been unjustified and he had asked the appellate court to quash it. The applicant also complained of inadequate time and facilities to prepare his defence. As regards the complaint concerning the appellate court’s failure to examine the witnesses, it was not possible to raise this complaint before the domestic courts since the appellate court’s decision was not subject to any appeal.
44. The Court further notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds and must therefore be declared admissible.
45. The applicant maintained his complaints. He also contested the Government’s submissions, noting that he had not been provided with the opportunity to contact his lawyer and had not been provided with a State‑funded lawyer in the proceedings before the first-instance court.
46. The Government submitted that the applicant had been provided with the opportunity to contact a lawyer of his own choosing in the proceedings before the first-instance court which appointed a State-funded lawyer only after the applicant could not reach a lawyer of his own choosing by telephone. However, the applicant refused the assistance of a State‑funded lawyer and decided to defend himself in person. The Government did not make any submissions in respect of the applicant’s other complaints under Article 6 of the Convention.
47. The Court notes at the outset that there is a significant degree of similarity between the legal issues raised by the applicant under Article 6 of the Convention in the present case and the previous cases examined by the Court against Azerbaijan concerning the administrative conviction of applicants under the CAO (see, among many other cases, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 74-96, 15 October 2015; Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, §§ 93-115, 11 February 2016; and Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 110-35, 11 February 2016).
48. In particular, as in the latter cases, the applicant in the present case was held in police custody without any contact with the outside world, was not provided with legal assistance immediately after his arrest and shortly afterwards (in the present case only one and a half hours after his arrest) was taken to a court and convicted. The first-instance court relied only on the administrative-offence report and the statement given by the police officer who drew up that report, without giving any further reasons to its decision. The appellate court completely disregarded the complaints of the applicant’s lawyer that he could not obtain a copy of the first-instance court’s decision and that he did not have adequate time and facilities to prepare the applicant’s defence because he had been authorised to meet the applicant only once, on 13 January 2011, since his arrest. Moreover, the appellate court neither ensured the applicant’s presence at the hearing, nor heard any witnesses.
49. The Court therefore considers that the administrative proceedings in the present case, considered as a whole, were not in conformity with the guarantees of a fair trial under Article 6 §§ 1 and 3 of the Convention (see Gafgaz Mammadov, cited above, § 96; Ibrahimov and Others, cited above, § 115; and Huseynli and Others, cited above, § 135).
50. Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention, the Court finds it unnecessary to rule on the issue of whether refusal by the applicant of State-funded legal assistance in the proceedings before the first-instance court constituted an unequivocal waiver of the right to a lawyer (see Hajili and others v. Azerbaijan [Committee], nos. 44699/12 and 2 others, § 61, 29 June 2017, and Mirzayev and others v. Azerbaijan [Committee], nos. 12854/13 and 2 others, § 30, 20 July 2017).
51. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
52. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.
53. The Government submitted that the applicant’s claim was unsubstantiated.
54. The Court considers that the applicant has suffered non‑pecuniary damage which cannot be compensated for solely by the finding of a violation and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 4,000 under this head, plus any tax that may be chargeable on this amount.
55. The applicant claimed EUR 3,000 for the costs and expenses incurred in the proceedings before the domestic courts and the Court.
56. The Government submitted that the applicant’s claim for the costs and expenses was unsubstantiated and was not supported by documentary evidence.
57. Regard being had to the documents in its possession and to its case‑law, the Court rejects the applicant’s claim for costs and expenses as the applicant failed to produce any documentary evidence in support of his claim (see Malik Babayev v. Azerbaijan, no. 30500/11, § 97, 1 June 2017).
58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 12 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško André Potocki
Deputy Registrar President