CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 février 2016

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AZERBAIJAN   (Application no. 81553/12)                 JUDGMENT     STRASBOURG     4 February 2016     FINAL   06/06/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Hilal Mammadov v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Khanlar Hajiyev,   Erik Møse,   Faris Vehabović,   Yonko Grozev,   Carlo Ranzoni,   Mārtiņš Mits, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 12 January 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 81553/12) 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 Hilal Alif oglu Mammadov ( Hilal Əlif oğlu Məmmədov - “the applicant”), on 19 November 2012. 2.     The applicant was represented by Mr K. Bagirov, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3.     The applicant alleged, in particular, that he had been ill-treated during his arrest by the police and that the domestic authorities had failed to conduct an effective investigation in this respect. He also alleged that his detention had been unlawful because there was no reasonable suspicion that he had committed a criminal offence. Moreover, the domestic authorities had failed to justify his detention pending trial. He further complained that the effective exercise of his right of petition had been hindered by the domestic authorities. 4.     On 4 November 2014 the application was communicated to the Government. In addition, third-party comments were received from the Council of Europe Commissioner for Human Rights, who exercised his right to intervene in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1959 and lives in Baku. 6.     The applicant is a mathematician and physicist who worked at the Academy of Sciences of the Republic of Azerbaijan from 1981 to 1993. He then became involved in the political and social life of the country. He also worked as editor-in-chief of the Talishi Sedo , a bilingual Azerbaijani-Talish newspaper, and was chairman of the Talish Cultural Centre. He has been chairman of the Committee for Rehabilitation of Detainees since 2009. A.     The applicant’s arrest and alleged ill-treatment by the police 1.     The applicant’s version of events 7.     At around noon on 21 June 2012, when the applicant was on his way home, six or seven plain-clothes police officers assaulted him near the Neftchilar metro station in Baku. Without showing their official identification, they restrained the applicant’s arms and began to hit him below the knees. They kicked him in the lower part of his right ribcage and then slipped narcotic substances into his right trouser pocket. They handcuffed him and dragged him into their car, where they continued to beat him. In the car they started to insult him, making comments about his ethnic origin, and threatened him on account of a video recording he had uploaded to the YouTube online video platform. 8.     The police officers did not inform the applicant of the reasons for his arrest. Indeed, the applicant did not even realise that he had been arrested by the police until he was taken to the Narcotics Department of the Ministry of Internal Affairs (“the NDMIA”). 9.     A search of the applicant was conducted at the NDMIA. According to the record (no. 7/32-130 dated 21 June 2012) of operational measures and the seizure of physical evidence ( əməliyyat tədbirinin keçirilməsi və maddi sübutun götürülməsi barədə protokol ) drawn up by a police investigator, the search was carried out from 1.45 to 2   p.m. on 21   June 2012 in the presence of the applicant, three police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, 5 grams of a substance similar to heroin was found in his right trouser pocket. 10.     At 2 p.m. on 21 June 2012 a police investigator drew up a record of the applicant’s arrest. 11.     On the same day a search was carried out in the applicant’s flat without a court order. According to the search record, it was conducted from 6.10 to 7.55 p.m. on 21 June 2012 in the presence of the applicant, six police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer and the two attesting witnesses were the same persons who had previously participated in the search at the NDMIA. During the search, narcotic substances similar to heroin were found. The applicant made a written comment in the record that the narcotic substances did not belong to him. 12.     According to the applicant, on 21 and 22 June 2012 he was detained in handcuffs and was deprived of food and water. 2.     The Government’s version of events 13.     The Government submitted that on 21 June 2012, during the applicant’s arrest and afterwards at the police station, he was not subjected to torture or inhuman or degrading treatment by the police. B.     The applicant’s pre-trial detention and criminal conviction 14.     On 22 June 2012 the applicant was charged under Article 234.4.3 (illegal preparation, production, possession, storage, transportation and sale of a large quantity of narcotic substances) of the Criminal Code. 15.     On the same day the Nizami District Court, relying on the official charge brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody ( həbs qətimkan tədbiri ), ordered the applicant’s detention for a period of three months. The court justified the applicant’s detention pending trial by the gravity of the charge, the fact that the applicant was charged with a criminal offence punishable by more than five years’ imprisonment, and the likelihood that if released he might abscond from the investigation. 16.     On 14 August 2012 the Baku Court of Appeal upheld the detention order of 22   June 2012. 17.     In the meantime, on 3 July 2012 the applicant was charged with new criminal offences under Articles 274 (high treason) and 283.2.2 (incitement to ethnic, racial, social or religious hatred and hostility) of the Criminal Code. 18.     On 17 August 2012 the applicant applied to the Nasimi District Court to be placed under house arrest instead of pre-trial detention. He claimed, in particular, that his detention had not been justified and that there was no reason for his continued detention. 19.     On 1 September 2012 the Nasimi District Court dismissed the application as unsubstantiated. 20.     On 10 September 2012 the Baku Court of Appeal dismissed an appeal lodged by the applicant. It found that if he was placed under house arrest, the applicant might abscond from the investigation and obstruct the investigation by influencing those involved in the proceedings. 21.     On 15 September 2012 the Nasimi District Court extended the applicant’s pre-trial detention for a period of four months. 22.     On 20 September 2012 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 15 September 2012. 23.     On 27 September 2013 the Baku Assize Court found the applicant guilty on all counts and sentenced him to five years’ imprisonment. 24.     On 25 December 2013 the Baku Court of Appeal upheld this judgment. It was further upheld on 25 June 2014 by the Supreme Court. C.     Criminal inquiry concerning the applicant’s alleged ill-treatment 25.     At 8.30 p.m. on 21 June 2012 an investigator at the Nizami District Police Office questioned the applicant as a suspect. It appears from the record of the questioning that the applicant complained of ill-treatment during his arrest by the police. He stated in this connection that on his way home at around noon on 21 June 2012 near the Neftchilar metro station in Baku, two cars stopped next to him and six or seven plain-clothes police officers assaulted him. They dragged him into one of the cars without showing their official identification and began to beat him up. He did not realise that he had been arrested by the police until he was taken to the NDMIA. The applicant further stated that the narcotic substances found on him and in his flat had been planted by the police. He pointed out that his arrest was related to his political and social activities, as he was editor ‑ in ‑ chief of the Talishi Sedo newspaper and was involved in defending political prisoners’ human rights. 26.     On the same day the investigator ordered a forensic examination of the applicant. 27.     On 22 June 2012 the applicant was examined by a forensic expert. His report (no. 554 dated 23 June 2012) stated that the applicant had complained of having been beaten up by the police during his arrest on 21   June 2012. The expert noticed abrasions on the applicant’s left calf and right thigh, and concluded that they could have been inflicted on 21 June 2012. The relevant part of the forensic report reads as follows: “Questions addressed to the forensic expert: 1.     What kind of injuries are there on the body of citizen H. Mammadov? 2. What are their characteristics and location? 3. On which part of the body, in which circumstances and with which instrument were the injuries inflicted? Could these injuries have been sustained as a result of an assault? 4. What is the degree of gravity of the injuries? Initial information: ... H. Mammadov submitted in his statement that on 21 June 2012 police officers arrested him and dragged him into a car where they hit him on various parts of his body. On 22 June H. Mammadov was subjected to a forensic examination. According to him, at around noon on 21 June 2012 six or seven plain-clothes police officers arrested him near his place of residence. They kicked and punched him as they put him in the car and whilst in the car. He did not ask for medical help. He complains of pain in the location of his injuries. Objective examination: 1.     The person examined is a man of medium height, normal build and well fed. 2.     There are two abrasions ( sıyrıq ), measuring 1.7x0.5 cm and 1.8x0.2 cm, 4 cm apart, on the middle of the outer side of the left calf ( baldır ). The surface of the abrasions is covered with a red scab and is situated below the level of healthy skin tissue. There is an analogical abrasion, measuring 1.0x0.1 cm, on the middle of the outer side of the right thigh ( bud ). No other injuries were noticed on the body.   Conclusion Relying on the forensic examination of H. Mammadov, born in 1959 and the initial information, and in reply to the questions addressed in the decision, I conclude as follows: 1.     The following injuries were noticed on the body of citizen H. Mammadov: abrasions on the left calf and on the right thigh. 2.     The above-mentioned injuries were caused by a hard blunt object(s). They could have been inflicted in the circumstances and at the time indicated in the descriptive part of the decision, namely on 21 June 2012. The degree of the injuries has not been determined because they are not injuries causing harm to health.” 28.     The applicant was not provided with a copy of the forensic report. 29.     It appears from the case file that on 22 June 2012 the applicant’s complaint of ill-treatment was transferred to the Nizami District Prosecutor’s Office. 30.     On 29 June 2012 an investigator at the Nizami District Prosecutor’s Office questioned the applicant about his ill-treatment by the police. The applicant reiterated his previous statement, pointing out that at around noon on 21 June 2012 he had been beaten up during his arrest by six or seven plain-clothes police officers. He further stated that these police officers had also participated in the search at the NDMIA on 21 June 2012 and that the name of one of them was Q. 31.     It appears from the documents submitted by the Government that on 31 July 2012 the Head of the Serious Crimes Department of the Prosecutor General’s Office asked the Deputy Prosecutor General to order the examination of the applicant’s complaint of ill-treatment received by the Nizami District Prosecutor’s Office. 32.     On 6 and 9 August 2012 an investigator at the Prosecutor General’s Office separately questioned four police officers, including Q., who had participated in the arrest and search. The wording of their statements was identical. They each claimed that they had not used physical force against the applicant during his arrest. 33.     On 13 and 14 August 2012 the investigator separately questioned three police officers who had been on guard duty at the temporary detention centre when the applicant had been taken there following his arrest. Their statements were also identical, each claiming that, when the applicant had been taken to the temporary detention centre, he had not complained of ill ‑ treatment. 34.     On 15 August 2012 the applicant was questioned by the investigator and reiterated that he had been beaten up during his arrest. In reply to the investigator’s question concerning the fact that the police officers who had participated in his arrest had denied the allegation of ill-treatment, the applicant stated that they had lied in their statements. 35.     On the same day the investigator examined the clothes that the applicant had been wearing on the day of his arrest. The investigator found that the clothes were not damaged. 36.     On 17 August 2012 the investigator ordered an additional examination of the applicant by a forensic commission. In particular, he asked the experts to establish whether the injuries found on the applicant’s body could have resulted from his body coming into contact with “sharp parts of the vehicle” ( avtomobilin çıxıntı hissələri ) during his arrest. 37.     On 23 August 2012 the applicant was examined by two experts who issued   forensic report no. 213 on 24 August 2012. According to the forensic report, the applicant complained of having been beaten up during his arrest on 21 June 2012. The experts confirmed the existence of injuries on the applicant’s body, but concluded that they had resulted from the applicant’s body coming into contact with “angular protruding parts of the vehicle” ( avtomobilin qabarıq tinli hissələri ) during his arrest. The relevant part of the forensic report reads as follows: “Information about the case: ... 1.   The person examined is a man of medium height, normal build and well fed. 2.     There is brown-grey pigmentation in the shape of a strip, measuring 1.4x0.3 cm, on the middle of his outer left calf. No injury or trace of injury was noticed on other parts of his body. Conclusion Relying on the forensic examination of H. Mammadov, born in 1959, the facts indicated in the descriptive part of the decision, the observations indicated in forensic report no. 554 in respect of him and in reply to the questions addressed in the decision, the commission of experts concludes as follows: 1.     There are two abrasions on the middle of the outer side of his left calf and one abrasion on the middle outer side of his right thigh. 2. The above-mentioned injuries were caused by a hard blunt object(s). They could have been inflicted at the time indicated in the descriptive part of the decision, namely on 21 June 2012. The degree of the injuries has not been determined because they are not injuries causing harm to health. 3. Taking into consideration the characteristics (morphological particularities) and location of the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov, and the fact that such injuries could not have been inflicted by another person or other persons in the passenger compartment of a car, it is refuted that these injuries could have been inflicted in the circumstances described in the statement of H. Mammadov. 3.1. It therefore results from the above-mentioned observations that the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov were caused by contact of the examined lower parts of his body with angular protruding parts of the vehicle when he was put in the car. 4. No injury or trace of injury corresponding to the circumstances described in H.   Mammadov’s explanation and statements that he was beaten in the head, neck and chest in the passenger compartment of the vehicle was noticed either during the initial forensic examination dated 22 June 2012 or during the additional commission forensic examination of 23 August 2012.” 38.     The applicant was not provided with a copy of forensic report no.   213. 39.     On 27 August 2012 the Deputy Prosecutor General refused to institute criminal proceedings in connection with the applicant’s complaint of ill-treatment. The prosecutor concluded that it had not been established that the applicant had been beaten up during his arrest. In this connection, he relied on the conclusions of the forensic report of 24 August 2012, the statements from four police officers who had participated in the applicant’s arrest and from three police officers who had been on guard duty at the temporary detention centre on 21 June 2012. The relevant part of the decision reads as follows: “Q. also stated that when they arrested H. Mammadov on the territory of the Nizami District they had shown their official identification and had not used any violence against him. The police officers of the NDMIA (A.X., C.M. and Q.H.) who had been questioned during the inquiry made statements similar to that of Q., pointing out that H.   Mammadov had not been subjected to violence during his arrest and search. ... It appears from forensic report no. 554 dated 23 June 2012 issued by ... that H.   Mammadov sustained abrasions on his left calf and right thigh. Their degree of gravity has not been determined because they are not injuries causing harm to health. On 17 August 2012 a decision ordering an additional commission forensic examination was adopted. It appears from forensic report no. 213 dated 24 August 2012 in respect of H. Mammadov issued by ... that the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov were caused by contact of the examined lower parts of his body with angular protruding parts of the vehicle when he was put in the car. No injury or trace of injury corresponding to the circumstances described in H. Mammadov’s statement that he had been beaten in the head, neck and chest in the passenger compartment of the vehicle was noticed either during the initial forensic examination dated 22 June 2012 or during the additional commission forensic examination of 23 August 2012. ... After having comparatively analysed the facts of the case with the material collected during the inquiry, I therefore conclude that the allegations of H. Mammadov ... that the injuries found on his body were caused on 21 June 2012 when he was beaten up and was subjected to physical force during his arrest by police officers are not proven. Accordingly, as the allegations that H. Mammadov was beaten up and subjected to physical force during his arrest by police officers of the NDMIA are not proven, no criminal act was committed. In accordance with Article 39.1 of the Code of Criminal Procedure, institution of criminal proceedings should be refused.” 40.     It appears from the document submitted by the Government that the investigator in charge of the case sent a copy of the prosecutor’s decision of 27 August 2012 to the detention centre where the applicant was detained at that time. Although the document was signed by the investigator, it was not dated. Moreover, the date on which it was sent was not indicated on the document. 41.     In the meantime, on 6 July 2012, having received no response from the investigating authorities concerning his complaint of ill-treatment, the applicant lodged a complaint with the Nasimi District Court concerning the investigating authorities’ failure to investigate his complaint of ill-treatment. The applicant asked the court to find a violation of his right protected under Article 3 of the Convention. 42.     In support of his complaint, he submitted that on 21 June 2012, without showing their official identification, six or seven plain-clothes police officers had assaulted him near the Neftchilar metro station in Baku. They restrained his arms and began to strike him in below the knees. They kicked him in the lower part of his right ribcage and then slipped narcotic substances into his right trouser pocket. They then dragged him into their car where they continued to beat him. In the car they started to insult him, making comments about his ethnic origin, and threatened him on account of a video recording he had uploaded to the YouTube online video platform. 43.     On 29 August 2012 the Nasimi District Court dismissed the applicant’s complaint. The court held that a criminal inquiry had already been carried out in respect of the applicant’s complaint of ill-treatment and by a decision of 27 August 2012 the Deputy Prosecutor General had refused to institute criminal proceedings. The court further held that as the prosecutor’s decision was still in force, it could not deliver a new decision in this connection. The applicant could, however, lodge a complaint against the prosecutor’s decision of 27 August 2012. 44.     Following the delivery of the Nasimi District Court’s decision of 29   August 2012, the applicant learned about the existence of the Deputy Prosecutor General’s decision of 27   August 2012 refusing to institute criminal proceedings in respect of his complaint of ill-treatment. The court also provided him for the first time with copies of the forensic reports of 23   June 2012 and of 24 August 2012. 45.     On 14 September 2012 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 29 August 2012. 46.     On an unspecified date in October 2012 the applicant lodged a complaint with the court against the Deputy Prosecutor General’s decision of 27 August 2012 refusing to institute criminal proceedings. He reiterated his previous complaints concerning his ill-treatment by the police during his arrest and complained about the ineffectiveness of the criminal inquiry. In this connection, he disputed the conclusions of the additional forensic report of 24 August 2012. He asked the court to quash the prosecutor’s decision and declare it unlawful. He also asked the court to hear the experts who had conducted his forensic examinations and the police officers who had participated in his arrest. 47.     On 8 November 2012 the Sabail District Court dismissed the applicant’s complaint, finding the prosecutor’s decision justified. The court, however, made no mention of the applicant’s particular requests that it hear the experts and the police officers. The relevant part of the decision reads as follows: “Having examined the allegations that the complainant H. Mammadov was subjected to ill-treatment by police officers during his arrest and that he was beaten up and subjected to degrading treatment when he was taken to the NDMIA, the court considers that a thorough investigation in this respect was conducted by the Prosecutor General’s Office of the Republic of Azerbaijan in accordance with the current legislation and the requirements of the international treaties. All possible measures were taken during this investigation; the persons who had been involved in the complainant’s arrest and had been in contact with him immediately after his arrest were questioned; a forensic examination and an additional commission forensic examination were carried out; however, the collected material did not prove the allegations indicated in the complaint. In these circumstances, the court considers that it was not possible to collect sufficient evidence which could constitute the basis for instituting criminal proceedings in connection with the injuries sustained by H. Mammadov on 21 June 2012. Therefore, taking into consideration the collected material and the evidence examined at the court hearing, the court considers that the decision of 27 August 2012 refusing to institute criminal proceedings adopted within his competence by the Deputy Prosecutor General of the Republic of Azerbaijan ... was justified and H.   Mamadov’s application for its quashing should be dismissed.” 48.     On an unspecified date the applicant appealed against that decision, reiterating his previous complaints. 49.     On 19 November 2012 the Baku Court of Appeal upheld the first ‑ instance court’s decision. The appellate court’s decision was identical in its wording to the Sabail District Court’s decision of 8 November 2012. D.     Examination of the applicant’s detention pending trial by the Working Group on Arbitrary Detention of the Human Rights Council of the United Nations 50.     It appears from the applicant’s observations submitted to the Court in reply to the Government’s observations that the Working Group on Arbitrary Detention of the Human Rights Council of the United Nations (“the Working Group on Arbitrary Detention”) delivered its opinion no.   59/2013 concerning the applicant’s pre-trial detention on 22 November 2013. The relevant part of the opinion reads as follows: “2.     The Working Group regards deprivation of liberty as arbitrary in the following cases: (a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to the detainee) (category I); (b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (category II); (c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III); (d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV); (e) When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights (category V). Submissions Communication from the source 3.     The case summarized below was reported to the Working Group on Arbitrary Detention. 4.     Hilal Mammadov, born in XXXX in Astara Rayon, Azerbaijan, is an Azerbaijani journalist and a defender of minority rights. Since 9 June 2012, he has been the editor ‑ in-chief of the Baku-based newspaper Tolishi Sado (The Voice of Talysh), the only newspaper printed in the minority Talysh language. 5.     The source informs the Working Group that the Talysh people are an ethnic minority residing in southern Azerbaijan. 6.     On 21 June 2012, Mr. Mammadov was arrested by the Nasimi District Police pursuant to article 234.4.3 of the Criminal Code of Azerbaijan in relation to illegal manufacture, purchase, storage, transfer, transport or sale of drugs in a large quantity. According to the source, the authorities alleged that they had seized five grams of heroin from his person, and approximately 30 grams from his place of residence. 7.     On 22 June 2012, the Nasimi District Court (Baku City) sentenced Mr.   Mammadov to three months’ detention. Mr. Mammadov appealed the sentence and requested to be permitted to serve the term under house arrest. On 10 September 2012, the Baku Appeal Court upheld the original decision, denying him provisional release. Mr. Mammadov remains in detention to this day. ... 17.     On 28 November 2012, Mr. Mammadov’s lawyers reported that, following the completion of the investigation into the criminal charges against him, Mr. Mammadov was charged under article 274 (high treason), article 283.2.2 (incitement to national, racial or religious hostility) and articles 234.4.3 (illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics and psychotropic substances) of the Criminal Code. 18.     On 21 December 2012, the hearing of Mr. Mammadov’s criminal charges was reportedly transferred to the Baku Grave Crimes Court. A preparatory session defining the procedural issues of the case took place on 9 January 2013. On that date, Mr. Mammadov’s lawyer reportedly submitted two motions: one requesting an audio ‑ visual recording of the hearing; and another requesting that his client be allowed to sit beside his lawyer rather than behind secure bars. The source informs the Working Group that both motions were rejected. 19.     The source was informed by the Human Rights Centre of Azerbaijan that Mr.   Mammadov had been beaten and injured by his cellmate in a Kurdakhani prison on 26, 28 and 29 November 2012. The source reports that Mr. Mammadov was placed in the cell two weeks prior to the attacks. Mr. Mammadov’s lawyers had requested on several occasions that he be removed from the cell as his cellmate’s behaviour was aggressive to the point of preventing him from sleeping at night. Those requests were all ignored. On 29 November 2012, his cellmate was transferred to the medical unit of the prison hospital for treatment of his reportedly severe mental illness. 20.     The source considers the ongoing harassment of Mr. Mammadov as an attempt to silence his efforts to report on human rights violations. The source points out that Mr. Mammadov’s arrest came shortly before the first edition of the Tolishi Sado newspaper under his authority as editor-in-chief was due to be published (at the end of June 2012). He was arrested after posting music and a video clip on the Internet which attracted attention to the Talysh culture. 21.     The source submits that Mr. Mammadov faces imprisonment sentences ranging up to life for trumped-up charges brought against him successively in June and July 2012, and most recently in November 2012. 22.     The source signals its concern with regard to Mr. Mammadov’s conditions of detention in the light of the fate that befell Novruzali Mammadov, the former editor ‑ in-chief of the Tolishi Sado newspaper, who was allegedly subjected to similar acts of harassment and arbitrary detention in 2007, and who died in custody on 17   August 2009. 23.     The source concludes that the detention of Hilal Mammadov is arbitrary and considers it an obvious attempt to silence his efforts to report on human rights violations. Furthermore, his rights to legal protection have been violated. 24.     The source further expresses its fears for the physical and psychological integrity of Mr. Mammadov. Response from the Government ... Discussion 61.     The Working Group was informed that Mr. Mammadov has been sentenced to five years in prison for criminal offences relating to “illegal selling of drugs”, “high treason” and “incitement to national, racial, social and religious hatred and hostility” under articles 234.4.3, 274 and 283 respectively of the Criminal Code of the Republic of Azerbaijan. 62.     The source alleged that the authorities fabricated the case against Mr.   Mammadov due to his human rights work and support for the minority Talysh population. 63.     The source informed the Working Group that Mr. Mammadov was a consultant with the Institute for Democracy and Peace and editor-in-chief of Tolishi Sado, the only newspaper in the minority Talysh language in Azerbaijan. Mr. Mammadov was also head of the Committee for the Defence of Novruzali Mammadov, a prominent Talysh scientist and human rights activist and former editor-in-chief of Tolishi Sado, who was charged in June 2008 with espionage, subsequently sentenced to 10 years of imprisonment, and who died in prison in 2009. 64.     Hilal Mammadov was arrested on 21 June 2012 for alleged possession of heroin. On 3 July 2012 and 23 November 2012, he was also charged with treason and incitement of national, racial, social and religious hatred and hostility. His hearing in the Baku Grave Crimes Court began on 29 January 2013; he was convicted of the charges brought against him and sentenced on 27 September 2013. 65.     In its response, the Government set out the case for the prosecution and the court’s judgment. However, the Working Group is of the view that the Government did not provide a satisfactory explanation as to the allegations put forward by the source concerning the arbitrary character of the charges against Mr. Mammadov and his subsequent conviction. 66.     The information provided by the source and the Government to the Working Group indicates that the charges of treason and incitement of national, racial, social and religious hatred and hostility are based on Mr. Mammadov’s legitimate exercise of the right of freedom of expression under article 19 of the Universal Declaration of Human Rights and article 19 of the International Covenant on Civil and Political Rights. As such, the Working Group considers that the deprivation of liberty of Hilal   Mammadov falls within category II of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it. 67.     Furthermore, the Working Group is of the view that the response from the Government does not adequately address the source’s allegations of ill-treatment to which Mr. Mammadov has been subjected in detention, its concerns for his health, nor the groundless rejection of his application for an audio-visual recording of the hearing. 68.     The Working Group finds that these violations of international law relating to the right of a fair trial are of such gravity as to give the deprivation of liberty of Hilal   Mammadov an arbitrary character. As such, the Working Group considers that Mr.   Mammadov’s detention falls within category III of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it. Disposition 69.     In the light of the foregoing, the Working Group on Arbitrary Detention renders the following opinion: The detention of Hilal Mammadov is arbitrary, being in contravention of articles 9,   11 and 19 of the Universal Declaration of Human Rights and articles 9, 12 and 19 of the International Covenant on Civil and Political Rights. It falls within categories II   and III of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it. 70.     Consequent upon the opinion rendered, the Working Group requests the Government of Azerbaijan to remedy the situation of Mr. Mammadov and bring it into conformity with the standards and principles set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. 71.     Taking into account all the circumstances of the case, the Working Group is of the view that the adequate remedy would be to immediately release Mr. Mammadov and accord him an enforceable right to compensation in accordance with article 9, paragraph 5, of the International Covenant on Civil and Political Rights.” E.     The applicant’s contacts with his representative, Mr Bagirov 51.     The applicant’s representative, Mr Bagirov, was an advocate and a member of the Azerbaijani Bar Association (“the ABA”). He was affiliated to Law Office no. 6 in Baku. 52.     In November 2014 disciplinary proceedings were instituted against Mr Bagirov by the ABA on the basis of a letter dated 25 September 2014 from a judge of the Shaki Court of Appeal. In his letter the judge informed the ABA that Mr Bagirov had breached the ethical rules of conduct for advocates at the court hearings held in September 2014 before the Shaki Court of Appeal within the criminal proceedings against I.M. 53.     On 10 December 2014 the Collegium of the ABA held a meeting at which it examined the complaint against Mr Bagirov. Following the meeting, the Collegium of the ABA held that Mr Bagirov had breached the ethical rules of conduct for advocates because at the court hearing he had made the following remark about the judicial system: “Like State, like court ... If there were justice in Azerbaijan, Judge R.H. would not deliver unfair and partial judgments, nor would an individual like him be a judge” (“ Belə dövlətin belə də məhkəməsi olacaq ... Azərbaycanda ədalət olsaydı, hakim R.H. ədalətsiz və qərəzli hökm çıxarmaz, nə də onun kimisi hakim işləməzdi ”). On the same day the Collegium of the ABA decided to refer Mr   Bagirov’s case to a court with a view to his disbarment. It also decided to suspend his activity as an advocate ( vəkillik fəaliyyəti ) pending a decision by the court. 54.     It appears from documents submitted to the Court that, following the suspension of Mr Bagirov’s activity as an advocate, the domestic authorities no longer allowed him to meet the applicant in the prison. 55.     On 29 March 2015 Mr Bagirov sent a letter to the Head of the Prison Service of the Ministry of Justice asking for a meeting with his six clients held in detention, including the applicant. He specified in his letter that he was the representative of those individuals before the Court and requested a meeting with them in connection with their pending cases before the Court. The relevant part of the letter reads as follows: “I am writing to inform you that I represent before the European Court of Human Rights the following persons who are detained in the penal facilities and temporary detention centres under your authority. I ask you to allow a meeting with these persons in connection with the progress of their cases based on their applications (the numbers of the applications are mentioned below) lodged with the European Court. 1. Mammadov Hilal Alif oglu (penal facility no. 17; application no. 81553/12) ... Attachment: Copies of the letters from the European Court and the Azerbaijani Government concerning these persons.” 56.     A copy of the letter was also sent to the Head of the Serious Crimes Department of the Prosecutor General’s Office. 57.     By a letter of 14 April 2015, the Deputy Head of the Prison Service refused to allow Mr Bagirov to meet the applicant in the prison. The relevant part of the letter reads as follows: “Your request for the organisation of a meeting in the penal facilities and detention centres with the persons detained in the penal facilities and the convicted inmates in order to provide them with advocacy services has been examined. It is explained that, as your advocacy activity at Law Office no. 6 has been suspended by decision no. 29 of 10 December 2014 of the Bar Association of the Republic of Azerbaijan and you have been disbarred, and that you can no longer practise as an advocate in court and investigation proceedings from that date, it is impossible to grant you access to the penal establishments as counsel.” II.   RELEVANT DOMESTIC LAW A.     Constitution of the Republic of Azerbaijan 58.     Article 46 (III) of the Constitution of the Republic of Azerbaijan reads: “No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...” B.     Code on Execution of Punishments (“the CEP”) 59.     Article 10.2.9 of the CEP provides that inmates have the right to legal assistance. In accordance with Article 81.7 of the CEP, with a view to providing them with legal assistance, inmates are entitled to a meeting with advocates, as well as with other persons entitled to provide them with legal assistance, at the request of the inmates, their close relatives or their legal representatives. The number and the duration of such meetings are not limited (Article 81.8 of the CEP). An advocate or other person entitled to provide legal assistance is admitted to a penal establishment on presentation of his document confirming his identity and authority. These meetings are carried out in private at the request of the parties (Article 81.9 of the CEP). C.     Law on Advocates and Advocacy Activity of 28 December 1999 60.     Section 4 (I) provides that the advocacy activity is exercised by persons admitted to the Bar Association in accordance with an established procedure. In accordance with section 4 (II), the defence of suspected and accused persons in criminal proceedings is the exclusive domain of the advocacy activity. III.   RELEVANT INTERNATIONAL LAW A.     Universal Declaration of Human Rights (UDHR) 61.     Article 9 of the UDHR provides: “No one shall be subjected to arbitrary arrest, detention or exile.” 62.     Article 11 of the UDHR provides: “1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.” 63.     Article 19 of the UDHR provides: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” B.     International Covenant on Civil and Political Rights (ICCPR) 64.     Article 9 of the ICCPR provides: “1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” 65.     Article 12 of the ICCPR provides: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country.” 66.     Article 19 of the ICCPR provides: “1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” C.     Working Group on Arbitrary Detention 67.     The Working Group on Arbitrary Detention was established in 1991 following resolution 1991/42 of the former Commission on Human Rights of the United Nations, which extended and clarified the Working Group’s mand