CEDH · CASELAW;COMMUNICATEDCASES;ENG — 26 mars 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } Published on 15 April 2024   FIRST SECTION Applications nos. 56974/17 and 4608/19 Mehman Rafig oglu HUSEYNOV against Azerbaijan lodged on 31 July 2017 and 25 December 2018 respectively communicated on 26 March 2024 SUBJECT MATTER OF THE CASE The applicant in both applications is a well-known blogger on social media who describes his activity as independent journalism. At the time of the events giving rise to the present applications, he was also the chairman of an NGO named the Institute for Reporters’ Freedom and Safety. The applicant was known for being critical towards the authorities and for aiming to expose corruption and human rights abuses by government officials. He claims that, prior to the events giving rise to the present applications, he had been subjected to various forms of pressure, threats and harassment by the authorities in connection with his work. Application no. 56974/17 According to the applicant, on 9 January 2017 he was approached on a public street by several persons in civilian clothing, who tied his hands, covered his head with a sack, put him into a car, and took him to a police station where he was subjected to ill-treatment. According to the documents in the case file, on 9 January 2017 the applicant was involved in an argument and a physical altercation with another individual in a public area and failed to obey lawful orders of nearby police officers who approached the scene, following which both the applicant and the other individual were arrested. The applicant was charged with an administrative offence under Article 535.1 of the Code of Administrative Offences (failure to obey a lawful order of a police officer). On 10 January 2017 the Nasimi District Court convicted the applicant of the administrative offence and fined him 200 Azerbaijani manats. Following his conviction, he was released from the courtroom and immediately after the release made statements to the press about the alleged ill-treatment (see application no. 4608/19 below). Following an appeal, the applicant’s conviction was eventually upheld by the Baku Court of Appeal on 31 January 2017. In the meantime, following the applicant’s complaints about the alleged ill-treatment made at the hearing before the first-instance court, on 12 January 2017 the judge of the Nasimi District Court applied to the Baku City Prosecutor’s Office with a request to investigate those allegations. Following an inquiry, the Baku City Prosecutor’s Office refused to institute criminal proceedings on the ground of absence of a criminal event. The applicant’s appeals against this decision were dismissed by the Sabail District Court and the Baku Court of Appeal on 28 March and 27 April 2017 respectively. The applicant complains under Articles 3, 5, 6, 10 and 18 of the Convention that he had been unlawfully arrested and detained and subjected to ill-treatment, that his right to a fair trail had been breached, and that the actual purpose of arresting, ill-treating and convicting him was punishing him for his journalistic work and deterring him from doing this work. Application no. 4608/19 As noted above, following his release from the courtroom on 10 January 2017, the applicant made statements to journalists and other persons who had gathered outside the courtroom, alleging that he had been abducted and then ill-treated by the police. Following this, M.M., Head of the Nasimi District Police Office, instituted private prosecution proceedings against the applicant under Article 147.2 of the Criminal Code (slander by accusing of having committed a serious or especially serious criminal offence), arguing that, by deliberately and falsely making public statements that police officers of the Nasimi District Police Office had abducted and ill-treated him, the applicant had disseminated information degrading the honour and dignity and damaging the reputation of M.M.’s subordinates as well as those of M.M. himself as their hierarchical superior, and had thus committed slander. On 3 March 2017 the Surakhani District Court convicted the applicant under Article 147.2 of the Criminal Code and sentenced him to two years’ imprisonment. After a series of appeals and remittals, by a final decision of 25 June 2018 (delivered to the applicant on 12 July 2018) the Supreme Court upheld the applicant’s conviction and sentence. The applicant complains under Articles 6, 10 and 18 of the Convention that the criminal proceedings were not compliant with the guarantees of a fair trial, that his criminal conviction amounted to a violation of his freedom of expression and that its actual purpose was to prevent him from doing his independent journalistic work. QUESTIONS TO THE PARTIES In respect of application no. 56974/17   1.     Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article   3 of the Convention? Having regard to the procedural protection from torture or inhuman or degrading treatment (see paragraph   131 of Labita v.   Italy [GC], no.   26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article   3 of the Convention?   2.     Was the applicant deprived of his liberty arbitrarily in breach of Article   5 §   1 of the Convention?   3.     Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article   6   §   1 of the Convention? In particular, were the requirement of a public hearing, the principle of equality of arms and the right to a reasoned decision respected? Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention? Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article   6 §   3   (c) of the Convention?   4.     Has there been an interference with the applicant’s freedom of expression, in particular his right to impart information and ideas, within the meaning of Article   10 §   1 of the Convention? If so, was that interference prescribed by law and necessary in pursuit of a legitimate aim in terms of Article   10 §   2?   5.     Were the restrictions imposed by the State in the present case, purportedly pursuant to Articles 5 and 10 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article   18 of the Convention?   In support of their submissions, the parties are requested to provide copies of all the relevant documents which are not currently in the case file, including the arrest record, record ( protokol ) on the administrative offence, any other material in the administrative-offence case file including any witness statements, forensic reports, and so on.   In respect of application no. 4608/19   6.     Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article   6 §   1 of the Convention? In particular, were the principle of equality of arms and the right to a reasoned decision respected? Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention? Was the applicant able to examine witnesses against him and to obtain the attendance of witnesses on his behalf under the same conditions as the witnesses against him, as required by Article   6 § 3   (d) of the Convention?   7.     Has there been an interference with the applicant’s freedom of expression, in particular his right to impart information and ideas, within the meaning of Article   10 §   1 of the Convention? If so, was that interference prescribed by law and necessary in pursuit of a legitimate aim in terms of Article   10 §   2?   8.     Were the restrictions imposed by the State in the present case, purportedly pursuant to Articles 6 and 10 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article   18 of the Convention?