CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 février 2020

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padding:1.02pt 5.03pt; vertical-align:top } .sF4E2E8B1 { height:46.8pt } .sB723F2D { border-top-style:solid; border-top-width:0.75pt; border-right:0.75pt solid #949494; border-left:0.75pt solid #949494; border-bottom:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s1533E8B1 { height:41.4pt } .sE31B4500 { height:37.8pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   FIFTH SECTION CASE OF IBRAHIMOV AND MAMMADOV v. AZERBAIJAN (Applications nos. 63571/16 and 5 others – see appended list)   JUDGMENT This version was rectified on 25 August 2020 under Rule 81 of the Rules of Court.     Art 3 (substantive and procedural limbs) • Inhuman and degrading treatment • Police ill-treatment with a view to forcing the applicants to confess to serious charges • Lack of effective investigation Art 5 § 1 (c) • Reasonable suspicion • Minimum standard of “reasonableness” of suspicion not met in view of applicant’s status, sequence of events, investigations and authorities’ conduct Art 5 § 4 • Review of lawfulness of detention • Systemic failure on the part of domestic courts to protect against arbitrary arrest and continued pre-trial detention Art 18 (+ Art 5) • Restriction for unauthorised purposes • Detention of opposition activists in order to punish them for painting anti-government graffiti on statue of former president Art 10 • Freedom of expression • Grossly arbitrary prosecution for drug-related crimes in retaliation for political expression   STRASBOURG 13 February 2020 FINAL   13/06/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ibrahimov and Mammadov v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Gabriele Kucsko-Stadlmayer,   André Potocki,   Yonko Grozev,   Mārtiņš Mits,   Lәtif Hüseynov,   Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 21 January 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in six applications 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 two Azerbaijani nationals, namely, applications nos. 63571/16, 2890/17, 39541/17 by Mr Giyas Hasan oglu Ibrahimov ( Qiyas Həsən oğlu Ibrahimov – “the first applicant”) and applications nos. 74143/16, 2883/17 and   39527/17 by Mr Bayram Farman oglu Mammadov ( Bayram Fərman oğlu Məmmədov – “the second applicant”) (“the applicants”), on various dates (see Appendix). 2.     The applicants were represented by Mr E. Sadigov and Ms   Z.   Sadigova, lawyers based in Azerbaijan. [1] The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov. 3.     The applicants alleged, in particular, under Articles 3, 5, 10 and 18 that they had been subjected to ill-treatment and torture in police custody and that their prosecution, arrest and pre-trial detention had been carried out in bad faith for purposes other than those prescribed in the Convention. 4.     On 9 April 2018 notice of the applications was given to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASES 5.     The first and second applicants were born in 1994 and 1995 respectively and lived in Baku at the material time. Background information 6.     At the time of the events the first and second applicants were fourth ‑ year students at Baku Slavic University’s Faculty of Journalism and Faculty of Translation respectively. 7.     Both applicants are members of the Nida civic movement (“NIDA”). NIDA is a non-governmental organisation established by a group of young people in February 2011. According to its manifesto, NIDA pursues liberty, justice, truth and change in Azerbaijan; it rejects violence and uses only non-violent methods of protest.     Its members have been actively involved in the organisation and conduct of a number of peaceful demonstrations in Baku. In particular, in January and March 2013 a number of demonstrations were held in Baku to protest against the death of soldiers in the Azerbaijani army. Following those demonstrations, a number of NIDA members were arrested and prosecuted for various crimes. In the context of those proceedings the Prosecutor General’s Office and the Ministry of National Security made a joint public statement in which they portrayed NIDA as part of “radical destructive forces” (see Rashad Hasanov and Others v.   Azerbaijan , nos. 48653/13 and 3 others, §§ 122-123, 7 June 2018). Criminal proceedings against the applicants The applicants’ arrest and alleged ill-treatment (a)    The applicants’ account (i)   Spraying graffiti on the statue of Heydar Aliyev 8.     Mr Heydar Aliyev, who was born on 10 May 1923, was the former president of the Republic of Azerbaijan. He was also the father of the current president of the country, Mr Ilham Aliyev. 9.     Between 2004 and 2016 the date of 10 May, which coincides with the birthday of Mr Heydar Aliyev, was celebrated in Azerbaijan as “Flower day” ( Gül bayramı ), during which floral displays were featured in public parks across the country. In Baku these floral decorations were set in front of the statue of Heydar Aliyev, which stands in a public park next to the Heydar Aliyev Palace. 10.     On the night of 9 to 10 May 2016 the applicants, in order to express their opposition to the government, sprayed graffiti on the statue of Heydar Aliyev and afterwards disseminated photographs thereof on social networks, which were also reproduced by some online media. The photographs, as submitted by the applicants, showed the statue plinth daubed in graffiti with the words in English “F..k the system” on the frontal side; on the lateral side of the statue plinth was the slogan in Azerbaijani “Happy slave day” ( Q u l bayramınız mübarək) ; and the last slogan was a play on words for “Happy flower day” ( G ü l bayramınız mübarək) . (ii)   Mr Giyas Ibrahimov’s arrest, search and alleged ill-treatment 11.     According to the first applicant, at around 3 p.m. on 10 May 2016 while leaving the campus of Baku Slavic University he was apprehended by several men in plain clothes. The men approached the applicant and administered two heavy blows to his head, which knocked him down. They grabbed him and forced him into a van. While on their way the men asked the first applicant about painting graffiti on the statue and continued to beat him. They also abused him verbally and threatened him with rape. 12.     The first applicant was taken to a room in the Baku Main Police Department (“the BMPD”) where the beatings continued. According to the first applicant, he received punches to all parts of his body, including slaps to the head and neck, after which he fainted. Officers poured water on him to make him regain consciousness and told him that they had called two attesting witnesses in order to seize drugs from his person. They then took something from the left pocket of his jacket. The first applicant told the officers that the drugs did not belong to him and that they had been planted while he was unconscious. In response, the officers started to beat him again, which lasted for several minutes. 13.     Afterwards, the first applicant was taken to another room, where he saw the second applicant being beaten by other officers (see paragraph   23 below). The second applicant was taken out of the room and the men continued to beat the first applicant, demanding that he make a public apology in front of television cameras for painting graffiti on the statue of Heydar Aliyev. The applicant refused. The officers then told the first applicant that he had to confess to the drugs charges. When the first applicant refused to do that as well, they hit him and took off his trousers. They showed him a rubber truncheon and threatened to rape him with it. Being frightened, the applicant agreed to accept the charges. The officers told the applicant that they would also search his flat and find more drugs there and he would have to confess to possession of whatever they found there. 14.     The officers drove the applicant to the one-room flat where he lived with his mother. Once there, about seventeen officers grabbed the first applicant and burst into the flat. The applicant’s mother was at home and the officers told her that the first applicant was accused of drug trafficking. The first applicant saw that his mother looked unwell and told her not to worry and that he had been arrested for political reasons. At this point the applicant’s mother noticed that a cushion on her bed had been moved and something had been placed underneath. The officers started to ask the first applicant where he hid drugs and which of the two beds belonged to him. At that point the first applicant’s mother replied that they knew where the drugs were hidden because they had just planted them there themselves, but they had mistakenly hidden the drugs in her bed instead of that of her son. Then one of the officers approached his mother’s bed, pushed the cushion and a parcel fell on the ground. There were no attesting witnesses and no lawyer present. The officers seized the parcel and, without further searching the flat, took the first applicant and left. They put the first applicant in the van and drove back to the BMPD. During the drive the officers beat him again and spat in his face. 15.     Once back at the BMPD, the officers continued to beat the first applicant and forced him to write an explanatory note ( izahat ) dictated by them, confessing to the drug charges. The officers told the applicant to indicate in the note that he had bought the drugs from an Iranian national named “Akram”. 16.     Afterwards, the first applicant was handcuffed and taken to the office of Mr M.S., the head of the BMPD. The latter told the applicant that everyone should kneel before him and one of the officers kicked the applicant from behind. As a result, the applicant fell on his knees and when he tried to stand up, an officer standing by M.S. ordered his colleagues to take off the applicant’s belt. The men, grabbing the applicant’s hair and beard, took off his belt and started to beat him with it. They asked who had ordered him to paint graffiti on the statue, who had been his accomplices and why he had done that. The applicant replied that he had painted graffiti in order to demand democracy in the country. His beatings continued for about an hour. 17.     Thereafter, the officers transferred the first applicant to the temporary detention facility of the Narimanov District Police Office (“the NDPO”). Once there, a police officer to whom others referred as “chief” told the applicant “So, it was you who painted the statue”, and then hit him. The applicant fell down and other officers started to kick him, as result of which he lost consciousness. He was then dragged to a cell. 18.     On the following morning, 11 May 2016, the first applicant was taken to the yard of the facility and ordered to clean it. When he refused, officers beat him. He was thus forced to sweep up cigarette butts in the yard. Later the same day, officers forced him – again by hitting him – to clean the facility toilet. While he was cleaning it, they laughed and took photographs of him with their mobile phones. 19.     On 12 May 2016 the first applicant – together with the second applicant (see paragraph 27 below) – was forced again to clean the yard. At about 10.30 a.m. on that day, Mr Sadigov, the applicants’ lawyer, went to the temporary detention centre to visit the applicants. When the lawyer approached the yard of the facility, he saw officers beating both applicants to force them to sweep up cigarette butts in the yard. This was done under the supervision of an officer to whom others referred as “chief”. When the applicants’ lawyer protested against such treatment of the applicants and demanded that it stop, the so-called “chief” ordered other officers to escort him off the premises. Despite his repeated requests to meet the applicants, he was not allowed to do so. 20.     At about 4 p.m. the same day, the first applicant was taken to the Khatai District Court for a decision on the preventive measure of restraint to be applied pending trial. He was able to meet his lawyer, Mr Sadigov, for the first time shortly before the hearing. During the hearing the first applicant complained to the court about his ill-treatment and torture and the extraction of his confession under such treatment. The court instructed the prosecutor in charge of the case to investigate the applicant’s allegations. Following the hearing, the applicant was taken back to the temporary detention facility of the NDPO, where his ill-treatment continued until his transfer to the Baku pre-trial detention facility at about 5 p.m. on 13 May 2016. 21.     On 16 May 2016 the first applicant met his lawyer in the detention facility. The lawyer witnessed injuries on the first applicant’s body. The first applicant gave him a detailed account of his ill-treatment and asked him to disseminate that information through the press, which the lawyer did. (iii)   Mr Bayram Mammadov’s arrest, search and alleged ill-treatment 22.     According to the second applicant, at around 2 to 3 p.m. on 10 May 2016 he was apprehended in the street next to his home by three men in plain clothes. By using force against him, the men put him into a jeep and took him to police station no. 12 of the Sabunchu district. On the way the men asked him about painting graffiti on the statue of Heydar Aliyev, verbally abused and punched him. He was taken to the office of the head of the police station, where around seven to eight men kicked, punched and slapped him. 23.     Afterwards, the second applicant was transferred to the BMPD, where he was told to confess to drug charges. When he refused, officers started to beat and verbally abuse him. Then they took off his trousers and, showing him a rubber truncheon, threatened to rape him with it. Being frightened, the applicant agreed to accept the charges and wrote an explanatory note ( izahat ) dictated by an officer, confessing to drug trafficking. The officers also demanded that the second applicant make a public apology for painting graffiti on the statue. He refused, and the beatings continued. 24.     In the evening of the same day, police officers took the second applicant to the flat where he lived with his parents. Several officers proceeded directly to his bedroom, where the second applicant alleges they planted a parcel containing drugs behind his computer. There were no attesting witnesses and no lawyer present. The officers seized the parcel and left, taking the second applicant with them. 25.     At about half past midnight the second applicant was transferred to the temporary detention facility of the NDPO. 26.     On the following morning, 11 May 2016, the second applicant was ordered by a person called “chief” to clean the yard of the facility. When he refused, the so-called “chief” slapped and punched him, and threatened him with rape with a truncheon. The second applicant was thus obliged to clean the yard and while he was sweeping it, officers took photographs of him. 27.     On the morning of 12 May 2016 the second applicant – together with the first applicant – was beaten and forced to clean the yard again, which was witnessed by their lawyer (see paragraph 19 above). At about 2 p.m. the second applicant was taken to the Khatai District Court, which was to decide on the preventive measure of restraint to be applied pending trial. He met his lawyer, Mr Sadigov, for the first time shortly before the hearing. During the hearing the applicant complained to the court that he had been ill-treated and tortured by the police and that his confession had been extracted under such treatment. The court ordered the prosecutor in charge of the case to investigate the applicant’s allegations of ill-treatment. After the hearing, the second applicant was transferred back to the temporary detention centre of the NDPO. He was taken to the office of the head of the facility, where there were also two men in plain clothes. They asked him again about the graffiti on the statue and told him that if he apologised publicly before the statue in front of television cameras, they would release him. The applicant refused and the head of the facility told other officers: “Take him and work on him a bit”. 28.     The second applicant was taken to another room downstairs, where officers shackled his legs and handcuffed his hands behind his back and started to punch and kick him, and hit him with a truncheon. When he began to scream with pain, they stuck adhesive tape over his mouth. Then they decided to remove the handcuffs from his hands and legs because the second applicant presumed they wished to ensure no marks were left. They bound his legs and hands with adhesive tape and laid him face down. One of the officers sat on his back and kept his legs tight, while other officers started to apply “falaka” by striking the soles of his feet with truncheons. They then put him in a standing position with his legs and hands bound and pushed him down onto the floor. They did this four or five times before the tape on his hands ripped. They then stepped on his hands and smashed them while another officer continued to strike the soles of his feet. Afterwards, they pulled him up and administered truncheon blows to his chest and knees. Once the officers became tired, they laid him on his back on the floor, put a sheet of paper on his face and told him that if it fell down they would beat him. Each time the paper moved, they hit him. After a while, the officers ordered the second applicant to clean the toilet in the detention centre. The applicant refused and was beaten again until he lost consciousness. Officers poured water on him and dragged him to a cell. 29.     On 16 May 2016 the second applicant met his lawyer in the pre-trial detention facility. The lawyer witnessed injuries on his body. The second applicant gave him a detailed account of his ill-treatment and asked him to disseminate the information through the press, which the lawyer did. (b)    The Government’s account 30.     According to the Government, prior to the applicants’ arrest, the police had received operational information about their involvement in drug trafficking. With a view to verifying that information, on 10 May 2016 the police decided to conduct operational search measures in respect of the applicants. Following the applicants’ arrests as suspects, their rights were explained to them and they signed the relevant records in this regard. On the date of their arrest, they were provided with State-funded lawyers and were interrogated as suspects in their presence. The search of the applicants’ flats was carried out with their consent and in the presence of attesting witnesses. Following the operational search measures carried out, material evidence, namely drugs, was collected. Based on the evidence gathered, the applicants were formally charged under the relevant articles of the Criminal Code. 31.     At about midnight of 10 to 11 May 2016 both applicants underwent medical examinations at the police station and no traces of any injuries were found on them. 32.     On 26 May 2016 the applicants underwent forensic medical examinations. According to the medical reports dated 30 May 2016 the applicants did not have any injuries on their bodies. 33.     The criminal investigation carried out by the authorities did not find any evidence to support the applicants’ allegations of ill-treatment. The applicants’ visit by the UN Working Group on Arbitrary Detention 34.     The United Nations Working Group on Arbitrary Detention carried out a visit to Azerbaijan from 16 to 25 May 2016. During their visit, they met the applicants in the Baku pre-trial detention facility. 35.     On 26 May 2016, following their visit, the Working Group issued a statement concerning their preliminary findings. The relevant part read as follows: “The United Nations Working Group on Arbitrary Detention was invited by the Government of Azerbaijan to conduct a country visit from 16 to 25 May 2016. ... ... The observations we are presenting today constitute the preliminary findings which will serve as the basis of the forthcoming deliberations followed by the report that the Working Group will officially adopt and submit to the Human Rights Council at its September 2017 session ... IV. Arbitrary detention in the context of the exercise of human rights or fundamental freedoms guaranteed by international norms During its visit, the Working Group could observe the severe limitations placed on the work of human rights defenders, journalists, political opponents and religious leaders. ... The most recent example in this respect was the arrest on 10 May 2016 of two students who reportedly drew a graffiti ‘Happy Slave Day’ on a statue of the former president of Azerbaijan, in Baku centre, as a political protest. Both reported having been subjected to violent interrogation techniques at a police station before being placed by the Khatai District Court under a four-month pre-trial detention for drug-related charges. The Working Group could visit the two students in Kurdahani pre-trial detention facility and observed what seemed to be physical sequels of such treatment .” 36.     The final report (dated 2 August 2017) on the Working Group’s visit was presented to the Human Rights Council at its thirty-sixth session (11 ‑ 29   September 2017). The part concerning the applicants read as follows: “81. ... the Working Group was informed that on 10 May 2016, two students were arrested shortly after they drew graffiti on a statue of the former President of Azerbaijan in the centre of Baku, reportedly as a form of political protest. Both have subsequently faced drug-related charges and were reported to have been subjected to violent interrogation techniques at a police station before being placed by the Khatai District Court under pretrial detention for a period of four months. The Working Group visited the two students in the Kurdakhani Pretrial Detention Facility and observed possible physical sequels of such ill-treatment, in the form of visible marks on parts of their bodies.” 37.     The Azerbaijani Government submitted their comments (dated 21   August 2017) on the above-mentioned report to the Human Rights Council. Their comments concerning the findings of the Working Group with respect to the applicants read as follows: “Paragraph 81: Persons detained due to illicit drug trafficking envisaged in the Criminal Code of the Republic of Azerbaijan, Mr. Giyas Hasan oghlu Ibrahimov and Mr. Bayram Farman oglu Mammadov were admitted on 13.05.2016 to Baku pretrial detention facility of the Penitentiary Service. During admission to the establishment and during detention, their complaints concerning the exposure to the physical and psychological pressures by the staff of the establishment and condition of detention were not received and their rights and freedoms were fully ensured. Right to meeting with their advocates, also close ones, right to phone calls and right to receive parcels were ensured.” Criminal investigation into the applicants’ alleged involvement in drug trafficking 38.     The Government were requested to provide all the documents related to the investigative measures carried out by the relevant authorities and the evidence collected within the framework of criminal investigations against the applicants. In reply to the Court’s request, they furnished various documents, indicating that they were submitting “copies of all relevant records pertaining to any procedural steps taken”. The documents provided by the Government are set out below. (a)    Mr Giyas Ibrahimov 39.     On 10 May 2016, Mr P.M., an operational officer from the Department on Combating Drug Trafficking of the BMPD, submitted the following report to his superior: “[I] report that [according to] information received by means of undercover operations, a person, named ‘Giyas’ is involved within the territory of Baku in illicit trafficking of narcotic substances on a regular basis, carries [them] on himself and stores [them] at his home[.] [I] ask you to authorise forming an operational team and carrying out relevant operational measures in order to verify [this] information.” 40.     On the same date Mr P.M., with the approval of his superior, issued the following decision: “DECISION (on the conduct of operational search measures) ... I, [Mr P.M.], [official position and rank], having considered the materials collected based on the operational information received concerning illicit trafficking of narcotic substances in Baku by its resident, named ‘Giyas’, ESTABLISHED: Operational information was received concerning illicit trafficking of narcotic substances in Baku by its resident, named ‘Giyas’. [As] it is not possible to identify a person named ‘Giyas’ by other means of inquiry, it is necessary to carry out a number of operational search measures provided for by the Law on Operational Search Activities in order to establish [facts related to] the commission of the criminal acts and other circumstances which could be of operational interest and to carry out the arrest in flagrante delicto . In view of the above, in accordance with [the relevant provisions of the Law on Operational Search Activities and the Code of Criminal Procedure], I DECIDED: 1. To carry out the measures provided for by paragraphs 1 [questioning of persons] and 2 [making of enquiries] of part 1 of Article 10 of the Law on Operational Search Activities in order to establish the full identity of the person named ‘Giyas’, his exact residential address, the locations of his illicit trafficking of narcotic substances and the source from which he acquired the narcotic substances; 2. After establishing [the above], depending on the conditions during the [operational] measures, to carry out surveillance of [his] vehicle, the surroundings of the building [where he lives] and of the locations [which he could visit] and to conduct an inspection of his person, his vehicle and his apartment in accordance with paragraphs 7 [inspection of vehicles], 8 [inspection of buildings and places of residence] and 9 [surveillance of buildings, places of residence and vehicles] of part   1 of Article 10 of the Law on Operational Search Activities; 3. In accordance with part 4 of Article 14 [use of photographic, audio, video and other technical devices during the conduct of operational search measures] of the Law on ‘Operational search activities’, depending on the conditions, to use audio, photographic, video and other technical devices; 4. If the need arises during the conduct of the [operational] measure, to continue [to carry out this measure] bearing in mind other operational measures provided for by the Law on Operational Search Activities; 5. After the conduct of the measure, to forward within 48 hours a reasoned decision on the operational search measures carried out to the court exercising judicial control and the prosecutor exercising procedural supervision of the preliminary investigation.” 41.     On the same date following the first applicant’s arrest, the following record was drawn up: “RECORD (on the conduct of an operational measure and collection of evidence) We, [Messrs P.M. and E.K., operational officers from the Department on Combating Drug Trafficking of the BMPD, Messrs S.A., B.N., I.A., Ch.S., and R.A, operational officers from police station no. 22 of the Nasimi district] and [the following] attesting witnesses invited [by the operational officers] in accordance with [the relevant provisions of the Code of Criminal Procedure] ... : 1. [Mr M.A.], [date and place of birth and residence]; 2. [Mr I.M.], [date and place of birth and residence]; Prepared the present record with the participation of [the State-funded lawyer, Mr   O.M.] to attest that in May 2016 the Department for Combating Drug Trafficking of the [BMPD] received operational information that a person named ‘Giyas’ was involved in illicit drug trafficking within the territory of Baku. In order to verify the information received the officers indicated above formed an operational team. At about 7 p.m. on 10 May 2016 the members of the team arrived near a building at [address of the location] and prepared for an on-the-spot operation. While they were there, they saw a man with external characteristics corresponding to [those] of the person named ‘Giyas’, who was walking in front of the building[.] They approached this person, arrested him and brought him to the administrative building of the Department on Combating Drug Trafficking of the [BMPD]. The person, whose identity became known afterwards, [namely] Mr Giyas Hasan oglu Ibrahimov [date of birth], was subjected to an inspection in one of the service offices of the Department on Combating Drug Trafficking of the [BMPD]. During the inspection, a small plastic bag containing a substance resembling the narcotic substance heroin was found in the left pocket of his khaki coloured jacket and seized. During questioning, Giyas Ibrahimov stated that the substance contained in the bag was the narcotic substance heroin and that it was a part of [heroin] which he had bought about four days earlier from an Iranian national, whose name he did not remember. In addition, Giyas Ibrahimov stated that he had hidden and stored the remaining part of heroin at his home address and was willing to voluntarily hand it over. The substance resembling the narcotic substance heroin, which was found on Giyas Ibrahimov and seized, was packed and sealed with stamp number 227 of the Ministry of the Interior and signed by the attesting witnesses and the arrested person. The present record was prepared in the service office of the administrative building of the Department on Combating Drug Trafficking of the [BMPD], read out, confirmed and signed by all participants without any comments or additions.” 42.     On the same day, 10 May 2016, the authorities searched the first applicant’s flat. The search was documented as follows: “RECORD (on the conduct of an operational measure and collection of evidence) We, [Messrs P.M. and E.K., operational officers from the Department on Combating Drug Trafficking of the BMPD, Messrs S.A., B.N., I.A., Ch.S., and R.A, operational officers from police station no. 22 of the Nasimi district, Messrs B.Kh. and R.T., operational officers from police station no. 25 of the Nizami district] and [the following] attesting witnesses invited [by the operational officers] in accordance with [the relevant provisions of the Code of Criminal Procedure] ..: 1. [Mr M.A.], [date and place of birth and residence]; 2. [Mr I.M.], [date and place of birth and residence]; Prepared the present record with the participation of [the State-funded lawyer, Mr   O.M.] to attest that on 10 May 2016 Giyas Ibrahimov was arrested as a result of operational search measures and brought to the Department for Combating Drug Trafficking of the [BMPD][.] Following an inspection of his person, a small plastic bag containing a substance resembling the narcotic substance heroin was found in the left lateral pocket of his khaki coloured jacket and was seized. Mr Giyas Ibrahimov stated that the substance found on him was the narcotic substance heroin. In addition, Giyas Ibrahimov stated that he was willing to voluntarily hand over to the police heroin stored at his home address. For this reason, the members of the operational team, the defence lawyer and attesting witnesses went to the apartment where Mr Giyas Ibrahimov lived at [address of the apartment]. There, the arrested person, Giyas Ibrahimov, showed a red parcel under the mattress of his bed and stated that the parcel contained the narcotic substance heroin. The parcel shown by Mr Giyas Ibrahimov, which contained a substance resembling the narcotic substance heroin, was packed and sealed with stamp number 227 of the Ministry of the Interior and signed by the attesting witnesses and the arrested person. The present record was prepared in the service office of the administrative building of the Department on Combating Drug Trafficking of the [BMPD], read out, confirmed and signed by all participants without any comments or additions.” 43.     On 10 May 2016 the investigator ordered a forensic chemical examination of the substance found on the first applicant and in his flat. According to the expert report of the same date, the small plastic bag and the parcel submitted for examination contained home-made heroin. 44.     On 11 May 2016 Mr M.G., an investigator from the BMPD opened a criminal investigation (under file no. 160200051) against the first applicant. The decision reads as follows: “DECISION (on opening a criminal case and its processing) I, [Mr M.G.], [official position and rank], having considered the materials collected concerning Giyas Hasan oglu Ibrahimov, ESTABLISHED: It can be seen from the materials collected that Giyas Hasan oglu Ibrahimov, upon prior agreement with a person unknown to the investigation, named ‘Akram’, an Iranian national, conspired [with the latter] and formed a group with a view to illegally acquiring, transporting and selling narcotic substances in large quantities[.] For this purpose, [the first applicant] on 5 May 2016 near metro station ‘Neftchilar’ [address of the metro station], in the Nizami district, Baku, illegally acquired, with intent to sell, heroin, a narcotic substance home-made from opium, in the quantity of 1   kg and 12.607 grams from a person named ‘Akram’, an Iranian national, in order to sell it and pay 24 manats for each gram to [the latter] in future[.] Giyas Hasan oglu Ibrahimov transported [the drug] and hid it in the apartment where he lived [address of the apartment][.] On the basis of the information received in this regard operational search measures were carried out by officers from the Baku Main Police Department and Nasimi district police station no.22[.] As a result Giyas Hasan oglu Ibrahimov was arrested at about 7 p.m. on 10 May 2016 near a building at [address of the location][.] His person was searched in the Baku Main Police Department and a small plastic bag containing the narcotic substance heroin in the quantity of 2.607   grams was found in the left lateral pocket of his jacket, while 1 kg and 10 grams was found in a red plastic parcel hidden under the mattress of his bed in his apartment located at [address of the apartment]. As the materials collected [show that] the actions of Giyas Hasan oglu Ibrahimov and others contain elements of the crime provided for by Article 234.4.1 and 234.4.3 of the Criminal Code of the Republic of Azerbaijan, it is necessary to open a criminal case and assign [the case] to my management for carrying out a criminal investigation. Having regard to the above and [the relevant provisions of the Code of Criminal Procedure], I DECIDED: 1. To open a criminal case against Giyas Hasan oglu Ibrahimov and others in relation to the fact described [above] under Articles 234.4.1 and 234.4.3 of the Criminal Code of the Republic of Azerbaijan and to assign [the case] to my management for carrying out a criminal investigation. 2. To forward a copy of the decision to the prosecutor exercising procedural supervision of the preliminary investigation.” (b)    Mr Bayram Mammadov 45.     On 10 May 2016, Mr Sh.B, operational officer from the Department on Combating Drug Trafficking of the BMPD, submitted the following report to his superior: “[I] report that [according to] information received by means of undercover operations, a person named ‘Bayram’ is involved, within the territory of the Sabunchu district of Baku, in illicit trafficking of narcotic substances on a regular basis, carries [them] on himself and stores [them] at his home[.] [I] ask you to authorise forming an operational team and carrying out relevant operational measures in order to verify [this] information.” 46.     On the same date Mr Sh.B., with the approval of his superior, issued the following decision: “DECISION (on the conduct of operational search measures) ... I, [Mr Sh.B.], [official position and rank], having considered the materials collected based on the operational information received concerning illicit trafficking of narcotic substances in Baku by its resident, named ‘Bayram’, ESTABLISHED: Operational information was received concerning illicit trafficking of narcotic substances in Baku by a resident named ‘Bayram’. [As] it is not possible to identify a person named ‘Bayram’ by other means of inquiry, it was necessary to carry out a number of operational search measures provided for by the Law on Operational Search Activities in order to establish [facts related to] the commission of the criminal acts and other circumstances which could be of operational interest and to carry out the arrest in flagrante delicto . In view of the above, in accordance with [the relevant provisions of the Law on Operational Search Activities and the Code of Criminal Procedure], I DECIDED: 1. To carry out the measures provided for by paragraphs 1 [questioning of persons] and 2 [making of enquiries] of part 1 of Article 10 of the Law on Operational Search Activities in order to establish the full identity of the person named ‘Bayram’, his exact residential address, the locations of his illicit trafficking of narcotic substances and the source from which he acquired the narcotic substances; 2. After establishing [the above], depending on the conditions during the [operational] measures, to carry out surveillance of [his] vehicle, the surroundings of the building [where he lives] and of the locations [which he could visit] and to conduct an inspection of his person, his vehicle and his apartment in accordance with paragraphs 7 [inspection of vehicles], 8 [inspection of buildings and places of residence] and 9 [surveillance of buildings, places of residence and vehicles] of part 1 of Article 10 of the Law on Operative Search Activities; 3. In accordance with part 4 of Article 14 [use of photographic, audio, video and other technical devices during the conduct of operational search measures] of the Law on Operational Search Activities, depending on the conditions, to use audio, photographic, video and other technical devices; 4. If the need arises during the conduct of the [operational] measure, to continue [to   carry out this measure] bearing in mind other operational measures provided for by the Law on Operational Search Activities; 5. After the conduct of the measure,