CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 juillet 2011

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display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }     FIRST SECTION           CASE OF HUSEYN AND OTHERS v. AZERBAIJAN   (Applications nos. 35485/05, 45553/05, 35680/05 and 36085/05)             JUDGMENT       STRASBOURG   26 July 2011     FINAL   26/10/2011     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Huseyn and Others v. Azerbaijan , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Elisabeth Steiner,   Khanlar Hajiyev,   George Nicolaou,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Linos-Alexandre Sicilianos, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 5 July 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in four applications (nos. 35485/05, 45553/05, 35680/05 and 36085/05) against the Republic of Azerbaijan lodged in September 2005 with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Azerbaijani nationals, Mr Panah Chodar oglu Huseyn ( Pənah Çodar oğlu Hüseyn – “the first applicant”), Mr Rauf Arif oglu Abbasov ( Rauf Arif oğlu Abbasov – “the second applicant”), Mr Arif Mustafa oglu Hajili ( Arif Mustafa oğlu Hacılı – “the third applicant”) and Mr Sardar Jalal oglu Mammadov ( Sərdar Cəlal oğlu Məmmədov – “the fourth applicant”), together referred to as “the applicants”. 2.     The first and fourth applicants were represented by Mr F.   Agayev. The second applicant was represented by Mr R.   Hajili. The third applicant was represented by Mr I.   Aliyev. All representatives were lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç.   Asgarov. 3.     The applicants alleged, in particular, that there had been numerous defects in the criminal proceedings against them, resulting in a violation of their right to a fair trial, and that their right to presumption of innocence had been infringed. 4.     On 12 July 2007 (applications nos. 35485/05, 35680/05 and   36085/05) and 9 October 2007 (application no. 45553/05) the President of the First Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1957, 1966, 1962 and 1957 respectively and live in Baku. 6.     The first applicant, Mr Panah Huseyn (also sometimes referred to as Panah Huseynov), was a prominent member of the Popular Front Party of Azerbaijan. The second applicant, Mr Rauf Abbasov (commonly known as Rauf Arifoglu), was a prominent member of the Müsavat Party and the editor-in-chief of the opposition-oriented newspaper Yeni Müsavat . The third applicant, Mr Arif Hajili, was a deputy chairman of the Müsavat Party. The fourth applicant, Mr Sardar Mammadov (commonly known as Sardar Jalaloglu), was a deputy chairman of the Democratic Party of Azerbaijan. 7.     The respective political forces with which the applicants were affiliated were founders of the election coalition Bizim Azerbaijan, formed with the aim of supporting the main opposition candidate, Mr Isa Gambar, the chairman of the Müsavat Party, in the presidential elections of 15   October 2003. A.     Events of 15 and 16 October 2003 8.     Mr Gambar lost the elections of 15 October 2003. 9.     On the evening of election day a group of opposition supporters gathered in front of the Müsavat Party’s headquarters in the centre of Baku, claiming victory for their candidate in the election. At that time there were some violent altercations between opposition supporters and the security forces. 10.     At around 2 p.m. on 16 October a number of opposition supporters started gathering near the State Carpet Museum, in the centre of Baku, to protest against the election results. The crowd then started moving towards Azadliq   Square, the main square in the city. It was reported that, on the way, some people in the crowd began damaging cars, buildings, benches and other urban constructions. It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence. 11.     It has been claimed that some police officers who had been deployed at Azadliq Square were attacked by some of the demonstrators. Shortly thereafter large numbers of riot police and military personnel, fully equipped with helmets, shields and truncheons, arrived in the square with the aim of dispersing the demonstration. The situation quickly escalated into public disorder and violent clashes occurred between the crowd and the police. It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question. 12.     The applicants, among other persons, were considered by the State authorities to be the organisers of the demonstration. At around 2.30   p.m. all of the applicants, except Mr Mammadov, had appeared on a tribune in Azadliq Square. Mr Hajili gave a speech to the people gathered in the square, while the two other applicants did not. Mr Mammadov was in the headquarters of his political party at that time and, according to his own statements, was unable to go to Azadliq Square (although he wished to do so), because the exits from the headquarters were reportedly blocked by State security forces. 13.     At around 6 p.m. the demonstration was completely dispersed. Several hundred people were arrested during the events of 16 October and in their aftermath. B.     Institution of criminal proceedings and pre-trial investigation 1.     The applicants’ arrests 14.     On 16 October 2003 the Prosecutor General’s Office instituted criminal proceedings (case no. 80308) concerning the events of 15 and 16   October 2003. More than a hundred persons arrested in connection with those events were eventually prosecuted in the context of those proceedings. The proceedings concerned only the actions of the organisers of the demonstration and those participating in it, and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration (see Muradova v. Azerbaijan , no.   22684/05, §§ 23 and 114, 2 April 2009). 15.     In the context of the above-mentioned criminal proceedings, on the dates specified below all of the applicants were arrested and charged with criminal offences. 16.     The first applicant, Mr Panah Huseyn, was arrested at his home on 18 October 2003 by a number of police officers of the Organised Crime Department of the Ministry of Internal Affairs (“the OCD”). He was taken to the OCD’s detention facility. 17.     According to the second applicant, Mr Rauf Abbasov, on 17 October 2003 several police officers in plain clothes unsuccessfully attempted to arrest him. Thereafter, in order to avoid being arrested, the applicant sought refuge in the Norwegian Embassy until 21 October 2003. He left the Embassy after he received assurances from the police that he would not be arrested. However, on 27 October 2003 he was arrested and taken to Detention Facility no. 1. 18.     As for the third applicant, Mr Arif Hajili, on 21 October 2003 the Nasimi District Court remanded him in custody, on the basis of a request by the Prosecutor General’s Office. The applicant was not present personally and was not represented at that hearing. On 24 October 2003 he was arrested pursuant to the detention order. 19.     The fourth applicant, Mr Sardar Mammadov, was arrested at his home on 18 October 2003 and taken to the OCD (see Mammadov v.   Azerbaijan , no. 34445/04, §§ 6-14, 11 January 2007, for a more detailed description of the circumstances of the fourth applicant’s arrest and detention). 20.     Following their arrests, the first, third and fourth applicants were not given immediate access to a lawyer (see section B.4 below). 21.     All of the applicants were formally charged with offences of “organising public disorder” and “use of violence against State officials” under Articles 32.2, 220.1 and 315.2 of the Criminal Code. On the basis of relevant requests by the Prosecutor General’s Office, all of them were remanded in custody pursuant to a court order, with their detention subsequently being extended until the trial. 2.     Alleged ill-treatment of the first, second and fourth applicants 22.     The first applicant was kept in the OCD’s detention facility until 22   October 2003. Thereafter, he was transferred to another detention facility. According to him, during the five days of his detention in the OCD he was repeatedly ill-treated. He was also informed that several of his relatives, including his brother, had been detained. He was not allowed access to a lawyer until 23 October 2003 (see below). After his transfer to another detention facility, for an unspecified period of time he was kept in solitary confinement and was not allowed to possess writing accessories, books, a radio or newspapers. 23.     In February 2004 the first applicant, together with several other detained persons (none of whom are applicants in the present case), lodged a complaint with the Prosecutor General’s Office, alleging that they had been ill-treated during the first few days of their detention and seeking to have criminal proceedings opened against the perpetrators. On 14 February 2004 their complaint was rejected as unsubstantiated. In particular, in respect of the first applicant, it was noted that he had not made any allegations of ill-treatment in the immediate aftermath of his initial questioning, that the various allegations he had made at different times had been inconsistent, and that, when given the opportunity to undergo an examination by a forensic expert, he had refused to do so, stating that there were no injuries on his person. It was concluded that no evidence of ill ‑ treatment had been produced. 24.     During the trial proceedings (described in section C. below), the first applicant complained before the trial court that he had been tortured in the OCD. Responding to a number of specific questions put to him in connection with his allegations, he mentioned that he had been handcuffed and punched in his chest and kidneys and that it had been hinted to him that his son would be ill-treated, but he expressly refused to provide any further details of the alleged torture, stating generally that he had “never seen such cruelty”. He also refused to mention any names of the alleged perpetrators because “they were not important people”, and instead accused the President, the Minister of Internal Affairs and the Head of the Presidential Administration of “making orders” to ill-treat him. He also mentioned that, from what he had heard, many other people had also been ill-treated. It appears that the trial court dismissed his complaints of ill-treatment as unsubstantiated. 25.     According to the second applicant, during the first thirty-six days of his detention in Detention Facility no. 1, he was held in a single cell and was not given access to writing materials, books, newspapers or a radio. 26.     The fourth applicant’s ill-treatment was the subject of an earlier case examined by the Court (see Mammadov , cited above). 3.     Pre-trial investigation, severing the applicants’ case from criminal case no. 80308, and completion of the pre-trial investigation 27.     Throughout the period from the beginning of the criminal proceedings until 1 March 2004, the investigation into the accusations against the applicants, as well as other accused persons, was carried out within the framework of criminal case no. 80308. 28.     On 1 March 2004 the head of the investigation team issued a decision severing a new criminal case (no. 80365) from criminal case no.   80308. The new case concerned seven accused persons in total, including the four applicants and Mr I.   Agazade, Mr I. Ibrahimov and Mr   E.   Asadov. The following reasons were given for the decision: “The investigation has gathered sufficient evidence to prove the named persons guilty of having committed the offences with which they are charged. The criminal prosecution in respect of the other accused persons is continuing ... The especially large volume of material in the case file and the large number of incidents comprising the case would make it necessary to prolong the pre-trial investigation and pre-trial detention. This would create difficulties in ensuring the rights and lawful interests of the accused persons in respect of whom sufficient evidence has been obtained and, at the same time, would result in an unacceptable delay in referring the case to the trial court. Accordingly ... it is appropriate to sever a new criminal case from criminal case no.   80308 ..., to complete the pre-trial investigation in respect of the severed case and to refer it to the trial court.” 29.     It appears that the pre-trial investigation in respect of criminal case no. 80365 was formally declared completed on the same day, 1 March 2004. 4.     Legal representation of the applicants throughout the proceedings, and their lawyers’ access to the investigation file upon completion of the pre-trial investigation 30.     Below is the information on the legal assistance received by the applicants, the lawyers who represented them, and the circumstances in which they were given access to the investigation file after completion of the pre-trial investigation and before the trial proceedings, inasmuch as this can be discerned from the material available in the case file. (a)     The first applicant 31.     Following his arrest on 18 October 2003, the first applicant, Mr   Huseyn, was not allowed access to a lawyer until 23 October 2003. From that date on, he was represented by Mr M. Hadi. 32.     Following the completion of the pre-trial investigation on 1 March 2004, the applicant and his lawyer, Mr Hadi, were given access to the prosecution’s case file and on 6 April and 15 April 2004, respectively, they signed a record on familiarisation with the material in the case file. According to the applicant, his lawyer was granted access to the entire case file for only one working day. 33.     Subsequently, starting from an unspecified date during the trial, Mr   Huseyn was also represented by another lawyer, Mr S. Panahov. (b)     The second applicant 34.     After his arrest, the second applicant, Mr Abbasov, was represented by a State-appointed lawyer. The lawyer was subsequently replaced by three lawyers whom the applicant retained in October and November 2003. One of these lawyers was Mr T. Karim. 35.     It appears that, following the termination of the pre-trial investigation, Mr Karim was given access to the case file and signed a record on familiarisation with the material in the file, dated 15 April 2004. Mr Abbasov himself was also given access to the case file. According to him, he was given less than 100 hours to study the file, which was insufficient to become fully familiar with all the evidence, consisting of twenty-two volumes of documents (amounting to more than 6,200 pages) and twenty-two video cassettes (each containing about two and a half hours of video material). 36.     On 27 May 2004, at one of the preliminary hearings in the Assize Court, which had commenced on 7 May 2004 (see paragraph 44 below), Mr   Abbasov lodged an application refusing the services of all three lawyers representing him on the ground that these lawyers had not been able to defend him adequately. He requested leave to defend himself in person but, according to the Government, subsequently asked for a new lawyer. On 4   June 2004 the Assize Court accepted the application and decided that the applicant should be provided with a new State-appointed lawyer. The lawyer, Mr S. Panahov, was appointed at some date around 8 June 2004. During the trial, another lawyer, Mr E. Guliyev, was retained by the applicant. (c)     The third applicant 37.     Following his arrest on 24 October 2003, the third applicant, Mr   Hajili, was not allowed access to a lawyer until 27 October 2003. From this date on, it appears that he was represented by a number of lawyers throughout the proceedings. 38.     Following the completion of the pre-trial investigation on 1 March 2004, the applicant and several of his lawyers (Mr M. Shahmarov, Mr   N.   Safarov, Mr M. Hadi and Mr O. Kazimov) were given access to the prosecution’s case file. On 6 April the applicant, and on 15, 16 and 17 April 2004 each of the lawyers, signed a separate record on familiarisation with the material in the case file. (d)     The fourth applicant 39.     Mr V. Khasayev was appointed as Mr Mammadov’s lawyer on 18   October 2003. 40.     On 21 October 2003 Mr Khasayev complained to the Prosecutor General’s Office, by telegram, that he had not been allowed to meet the applicant. Eventually, he was able to meet the applicant for the first time on 22 October 2003. 41.     There is no information in the case file as to whether Mr Khasayev or the applicant were given access to the prosecution’s case file following the completion of the pre-trial investigation. C.     Trial 42.     As noted above, more than one hundred persons were prosecuted, in the framework of criminal case no. 80308, for their involvement in the events of 15 and 16 October 2003. Subsequently, this case was split, dividing the accused persons into fifteen separate groups (one of which groups comprised the newly severed criminal case no. 80365 concerning the applicants), and each group was tried separately. The first fourteen trials concerned the cases of those who were accused of participating in mass disorder and use of violence against officials. All those trials were conducted by either the Assize Court or the Sabail District Court and were completed in March and April 2004. All the defendants in those trials were found guilty and were sentenced to either imprisonment, suspended periods of imprisonment or restriction of liberty. 43.     The fifteenth and last trial in criminal case no. 80365 concerned the persons who were accused of organising the mass disorder, including the four applicants in the present case. This trial took place after the first fourteen trials. 44.     The trial was conducted by the Assize Court. It commenced with several preliminary hearings, the first of which took place on 7 May 2004.     The three-judge panel hearing the case was composed of Judges M.   Ibayev (presiding), S. Aleskerov and J. Jumaliyev. 1.     Applications by the defence during the preliminary hearings and trial hearings 45.     During a preliminary hearing on 12 May 2004, the applicants’ lawyers complained to the Assize Court about an alleged danger to their personal safety, notifying the court about an incident which had taken place after the preliminary hearing of 7 May 2004. According to the lawyers, six of them had been harassed and assaulted by a number of police officers outside the courthouse when they were giving an interview to a television journalist. To support this allegation, two of the lawyers produced some items of clothing damaged during the altercation and photographs depicting the incident. They characterised the alleged incident as a form of undue pressure put on them by the authorities and asked the court to take measures to ensure their personal safety. The presiding judge replied that the court could not be concerned with any incidents taking place outside its courtroom and that the lawyers should use the relevant avenues of redress if they wished to complain about any alleged harassment outside the court hearings. The court nevertheless decided to notify “the relevant authorities” about the lawyers’ allegation. However, from the material available in the case file, it is unclear which specific steps were taken by the court in this regard. 46.     Furthermore, the first applicant, Mr Huseyn, lodged an application objecting to the participation in the trial of one of the Assize Court’s judges, Judge Ibayev, noting that the judge’s son worked at the Prosecutor General’s Office and was subordinate to the head of the investigation team dealing with his case. The other defendants joined the application. On 24   June 2004 the Assize Court rejected the application, finding that, although Judge Ibayev’s son indeed worked at the Prosecutor General’s Office, he had never been personally involved in the applicants’ case. 47.     Subsequently, the first applicant, joined by other defendants, also objected to the participation in the trial of Judge Aleskerov. They pointed out that Judge Aleskerov was the brother of Mr   N.   Aleskerov, an investigator from the Prosecutor General’s Office who, during the period from 19   October 2003 to 26 January 2004, had been a member of the investigation team dealing with the applicants’ case. The first applicant argued that, owing to Judge Aleskerov’s brother’s direct involvement in the case, he would not be able to hear the case as an impartial judge. On 28 June 2004 the Assize Court rejected that application, noting that Mr N. Aleskerov had indeed been one of the forty-three members of the investigation team working on criminal case no. 80308. However, he had been removed from the team on 26 January 2004. Subsequently, after the new case no. 80365 (concerning the applicants) had been severed from case no. 80308, Mr   N.   Aleskerov had not been included in the investigation team dealing with this new case. For these reasons, the Assize Court concluded that claims concerning the lack of impartiality of Judge Aleskerov could not be objectively justified. 48.     Throughout the trial in the Assize Court, the applicants lodged a number of other applications. According to them, the court’s interim decisions rejecting those applications were either not given to them or were made available to them only after significant delays. Moreover, the applicants requested permission to verify the transcripts of court hearings after each hearing in order to be able to comment on alleged irregularities and “falsifications” contained in them. However, they were given access to the transcripts only at the very end of the trial. 2.     Evidence examined during the trial 49.     During the course of the trial, the Assize Court examined large volumes of testimonial evidence, as well as video recordings and other materials. Below is a brief summary of the evidence heard and the manner in which it was ultimately assessed in the Assize Court’s judgment. (a)     Witnesses for the prosecution 50.     The majority of prosecution witnesses were police officers deployed at Azadliq Square on 16 October 2003. The investigation also produced records of pre-trial questioning of some of the persons who had been convicted at earlier trials in connection with the events of 15 and 16 October 2003, and a number of other civilian witnesses. (i)     Evidence concerning the events of 15 and 16 October 2003 in general, which did not directly implicate the applicants 51.     It appears that the absolute majority of prosecution witnesses were called to merely provide a general description of the events of 15   and   16   October 2003 in order to establish the fact of public disorder. Their testimonies were aimed at showing that the demonstrators had collected clubs, stones and other objects from the headquarters of the Müsavat Party and other opposition parties, that they had used these objects as weapons against the police and military forces and that they had damaged a variety of public and private property. These witness testimonies did not directly mention the applicants as either organisers of or participants in those violent actions. In addition, the prosecution produced some expert evaluations of various forms of damage to private and public property. (ii)     Statements by police officers directly implicating the applicants 52.     As to the applicants’ specific role in the events of 16 October, in order to establish that they had directed and incited the demonstrators’ violent actions, the prosecution produced pre-trial depositions of several police officers who had specifically described, inter alia , how they had seen the applicants arriving at Azadliq Square on 16 October 2003, publicly proclaiming the election victory of I.   Gambar and inciting the demonstrators to violence from the tribune in the square. 53.     Prior to the scheduled examination of these witnesses, on 5 August 2004 the first applicant, joined by all the other defendants, complained that the pre-trial depositions of some of those witnesses had been identical word for word and asked for this evidence to be excluded. He pointed out that, according to the relevant records, some of these depositions had been taken by the same investigator at the same time on the same day. He argued that this was either physically impossible or in breach of Article 230 of the Code of Criminal Procedure, which required that witnesses be questioned separately, and that, in either case, this evidence should not be admitted. It is not clear whether the Assize Court ever gave any decision concerning this objection, but it admitted the relevant depositions as evidence. 54.     At the trial hearings, each of the police officers concerned testified separately and was cross-examined by the applicants and their lawyers. In particular, police officer V.N. stated, inter alia , that when the public disturbance had started at Azadliq Square, some of the defendants, including the second and third applicants, had been inciting the crowd to violence and making such declarations as “Isa [Gambar] has been elected President, we are now in power, do not be afraid of anyone, soon we will overtake the entire city, resist anyone who confronts you...”. 55.     From the record of the court hearings, it appears that, during the cross-examination, the defence were able to reveal a number of alleged inconsistencies between the accounts given by V.N. during the hearing and in his pre-trial deposition (concerning such specific details of his testimony as, for example, whether he had actually seen any of the defendants appear on the tribune or not, or whether any of the defendants had actually used any phrases such as “Beat the police!”). The defence read out V.N.’s pre ‑ trial deposition at the hearing with the aim of pointing out these alleged inconsistencies. Likewise, according to the defence, cross-examination of most of the other witnesses of this type revealed alleged inconsistencies between their statements at the trial and in their pre-trial depositions. As appears from the transcript of the trial hearings, when confronted with these alleged inconsistencies, some of the witnesses stated that their pre-trial statements had not been properly recorded, while others reverted back to their pre-trial statements and retracted any inconsistent statements which they had made during the hearing prior to cross-examination. 56.     It appears from the transcript of the court hearings that more than ten witnesses of this type were heard. In its judgment of 22 October 2004 the Assize Court separately summarised the testimonies of six of those witnesses and relied on them as proving the applicants’ guilt. The judgment addressed neither the objections raised by the applicants as to the admissibility of these witness testimonies, nor any objections concerning the inconsistencies allegedly revealed in their testimonies during cross ‑ examination by the defence. (iii)     Statements by previously convicted participants in the demonstration directly implicating the applicants 57.     The prosecution also relied on testimony obtained during pre-trial questioning from a number of other persons convicted in connection with the events of 15 and 16 October. These persons had already been convicted at first-instance trials conducted by the Assize Court in March 2005. Inasmuch as this can be discerned from the Assize Court’s judgment of 22   October 2004 in the applicants’ case, the court relied on testimonies of five witnesses of this type. 58.     According to the records produced by the prosecution, in the course of questioning as accused persons at the pre-trial investigation stage of criminal case no. 80308, these persons had described, in various degrees of detail, that they had witnessed the applicants at Azadliq Square inciting the demonstrators to violent resistance during the events of 16 October 2003. 59.     During the trial hearings, these witnesses were called to be questioned about their pre-trial statements. According to the relevant trial transcripts and the Assize Court’s judgment of 22 October 2004, having taken to the witness stand at the oral hearings, four of these witnesses openly retracted their pre-trial statements against the applicants, noting that they had been forced to make those statements under torture, ill-treatment and other forms of duress applied to them during their pre-trial detention. 60.     In reply to these allegations, the Assize Court noted that the witnesses’ complaints of ill-treatment had been addressed at their own respective trials and had been found to be unsubstantiated. The court found that, since these witnesses’ statements had already been relied on as sound evidence at those trials, the assessment of this evidence was a “ res judicata matter”. In such circumstances, the court decided to accept these witnesses’ pre-trial statements as good evidence, and refused to attach weight to the fact that the witnesses had subsequently retracted them at their own trials and at the applicants’ trial. (iv)     Statements by other witnesses directly implicating the applicants 61.     The prosecution also submitted depositions of several other civilian witnesses who had not been convicted in connection with the events of 16   October 2003. According to the records produced by the prosecution, during the pre-trial investigation these witnesses had made statements similar to those made by the witnesses mentioned above. However, again, during the questioning at the public hearing, at least three of those witnesses retracted their earlier statements and claimed that they had been forced to make them under threat of ill-treatment or by means of actual ill-treatment. 62.     According to the trial transcript, witness N.N. noted that he had been detained for a period of several days after the events of 16   October 2003 and, during that time, had been coerced into giving false testimony against the defendants (mostly against the second applicant). He noted that he had been threatened with prosecution and imprisonment for participating in the events of 16 October 2003, had been refused any water during his questioning and had otherwise been intimidated with the purpose of making him sign a pre-printed witness statement prepared by an investigator. 63.     In order to assess the allegations of ill-treatment made by these witnesses, the Assize Court heard evidence from investigators and police officers who had questioned them. They stated that they had not ill-treated these witnesses during pre-trial questioning. Furthermore, the court noted that the witnesses’ pre-trial statements were corroborated by other evidence. On that basis, the court found that the allegations of ill-treatment were unfounded and that, therefore, the statements contained in the pre-trial depositions of these witnesses should be accepted and relied on as evidence incriminating the applicants. (b)     Witnesses for the defence 64.     The Assize Court partially granted the applicants’ requests to obtain the attendance of witnesses prepared to testify on their behalf. From the judgment, it appears that more than twenty such witnesses testified. Most of these witnesses were the applicants’ political companions or other persons affiliated with their political parties. 65.     In its judgment, the Assize Court summarised all of these persons’ testimonies noting that all of them denied that the applicants had carried out the specific acts attributed to them, such as planning any violent actions in advance, verbally inciting the crowd to violence or organising the distribution of clubs and stones to demonstrators. It further noted that the witnesses had insisted that, on the contrary, the police had used excessive violence against the demonstrators and that, in their speeches, the applicants had called the demonstrators to refrain from attacking the police and responding to any provocation. 66.     The Assize Court then went on to dismiss these testimonies as unreliable, using the following reasoning: “Having examined the testimonies of these witnesses heard at the request of [the defendants], the court established that, as indicated above, these persons were members or employees of the [political] parties headed by the defendants and, as they worked with [the defendants], they were persons subordinate to and associated with [the defendants]. Some of their statements were even contradictory. In particular, while replying to the questions, [N.H.] stated, on the one hand, that the people speaking from the tribune had not been inciting people to violence and, on the other hand, that he had not heard the speeches as he had been standing 70-100 metres away from the tribune and had not been able to even see who had been speaking. [N.Y.] stated that she had been at the square by herself, while [E.P.] stated that [N.Y.] had been there with him. Moreover, the circumstances described by them have been refuted by the above-mentioned comprehensive, reliable and mutually corroborative evidence consisting of testimonies of victims and witnesses, video recordings, material evidence and court judgments in force. Therefore, the court considers that [the defence witnesses’] testimonies are groundless.” (c)     Other evidence 67.     In addition, a number of videos depicting the events of 16 October 2003 were viewed during the court hearings. 68.     The videos submitted by the prosecution were intended to show the allegedly violent actions of the demonstrators. Some of the images seen on the videos contradicted the testimonies of certain prosecution witnesses. Some of the defendants’ lawyers (for example, Mr Hadi) claimed that they had seen the video evidence for the first time at the court hearings, as it had not been made available to them by the prosecution before the trial, and that they had therefore been unprepared for the examination of this evidence. 69.     It appears that, following an application by the defence, the Assize Court also admitted additional video evidence submitted by the defence, which was intended to demonstrate the allegedly excessive use of force by the police and military while suppressing the demonstration. 70.     Assessing the video evidence, the Assize Court noted that the video depicted the violent actions of the demonstrators as well as the distribution to them of bludgeons, stones and other “weapons” in an organised manner. 3.     The parties’ closing addresses 71.     On 29 September 2004 the Assize Court announced that the presentation of evidence was complete and that it would proceed to hear the parties’ oral submissions, inviting the prosecution to make their closing address first. The prosecution asked for an adjournment until 1 October 2004 to prepare their speech. On 1 October the prosecution asked for another adjournment until 11 October 2004. The prosecution delivered their closing address during two hearings on 11 and 12 October 2004. 72.     Following the prosecution’s speech, on 12 October 2004 the court invited the defendants to deliver their respective closing addresses. However, in response to this invitation, almost all of the applicants’ lawyers, taking the floor one after the other, refused to take part in the oral submissions and make a closing address for the defence, providing the court with the following explanations for their refusal. 73.     The first applicant’s lawyer, Mr Hadi, speaking first, noted that, throughout the proceedings, he had not been given adequate time and facilities to prepare his client’s defence. He had not been allowed to fully study the investigation file before the trial and had not been given access to some of the prosecution evidence, such as video recordings, in order to be able to adequately plan his defence tactics. He further noted that, during the proceedings, the defence lawyers had come under various forms of pressure and had even been physically assaulted when arriving at one of the preliminary hearings. He claimed that the lawyers had regularly received various threats from unspecified persons aimed at preventing them from adequately defending the applicants. Although the lawyers had repeatedly brought this matter to the Assize Court’s attention, and had even specifically complained about the incident involving the physical assault on them, the court had failed to take any action and had ignored the difficulties faced by them. He further argued that, in reality, the outcome of the trial had been predetermined and politically motivated and that the trial itself was being held only as a show, since even before its conclusion the President had publicly declared that the applicants were criminals and would be punished. He stated that, in such circumstances, the lawyers themselves felt vulnerable and frightened. He stated that, for these reasons, he was unable to adequately defend his client and was therefore unable to submit an oral argument. He apologised to his clients, the first applicant and Mr   Ibrahimov, and noted that it would be best if the defendants were allowed to prepare and deliver the oral arguments themselves. 74.     Mr Panahov, counsel for the first and second applicants, gave a similar explanation. He also noted that he was not able to provide effective assistance to his clients because, inter alia , he had never been given access to the investigation file. He claimed that after the completion of the pre-trial investigation the lawyers had been pressured into signing records on familiarisation with the material in the case file so that the case could be sent for trial quickly. Although he had specifically complained about this during the preliminary hearings, the Assize Court had ignored this matter. Like Mr Hadi, Mr Panahov also noted that the lawyers were concerned for their personal safety, and that this affected their ability to provide adequate assistance to their clients. 75.     Other lawyers concurred with everything stated by their colleagues and gave similar explanations for their refusal to give a closing address. 76.     Following this, the first applicant spoke to the court, on behalf of himself and the other defendants, asking for permission to make their defence speeches in person. He noted that, following their lawyers’ refusal to take part in the oral submissions, they were essentially left without any legal assistance. He requested the court to allow them sufficient time to prepare their closing addresses. 77.     In response, Judge Ibayev stated that the defendants would be allowed to exercise a right of reply ( replika ). Judge Aleskerov noted that procedural law allowed a defendant to give a closing address in person only if he or she was unrepresented by counsel. Judge Jumaliyev commented that counsel could not shirk their duty to defend their clients. 78.     At the next hearing, on 13 October 2004, the first applicant, on behalf of himself and the other defendants, lodged a formal application in writing, requesting the court to allow them to make their defence speeches themselves. 79.     The court rejected the application as groundless. It noted that the defence lawyers had provided effective and adequate legal assistance to their clients. It further noted that the lawyers had been given ample opportunity to consult the investigation file but had themselves failed to do so, that it was the lawyers’ duty to participate in oral arguments, that they could not refuse to assist their clients at this stage of the proceedings, and that they had no good reason for shirking their duties. 80.     It appears that only the fourth applicant’s lawyers delivered a closing address on behalf of their client, despite the fact that the fourth applicant had joined the first applicant’s request for permission to give the closing address in person. 81.     The Assize Court then proceeded to invite the parties to exercise their right of reply. The prosecution waived that right. 82.     Prior to the defendants’ speeches in reply, the third applicant asked the court not to place any time-limits on them, taking into account the fact that no closing addresses had been delivered on their behalf during the oral submissions. The presiding judge noted that this would be taken into account. 83.     Exercising his right of reply, the first applicant spoke for about two hours. The presiding judge interrupted him three