CEDH · CASELAW;CLIN;ENG — 18 février 2021

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Azerbaijan - 65583/13 and 70106/13 Judgment 18.2.2021 [Section V] Article 18 Restrictions for unauthorised purposes Pre-trial detention of opposition activists predominantly aiming to punish and silence them for active involvement in anti-government demonstrations: violation Facts – Both applicants, members of NIDA, a non-governmental youth organisation, participated in peaceful anti-government demonstrations concerning the deaths of soldiers in the army in non-combat situations. They were arrested and remanded in custody on charges of illegal possession of narcotic substances and Molotov cocktails (second applicant), following searches of their flats and a day before another demonstration was planned. Their pre-trial detention was extended pursuant to a number of domestic court decisions, and their requests for alternative house arrest were dismissed. Additional criminal charges ensued. Law – Article 5 § 3: The domestic courts had failed to give “relevant” and “sufficient” reasons to justify the need for extending the applicants’ pre-trial detention: they had used a standard template merely listing the detention grounds without addressing case-specific facts; they had cited irrelevant grounds and had disregarded the fact that the second applicant was a minor. Conclusion : violation (unanimously) Article 18 together with Article 5 § 3: The complaint under this Article constituted a fundamental and distinct aspect of the case which merited separate examination. The applicants in the present case and those in the case of Rashad Hasanov and Others had been prosecuted and convicted within the framework of the same criminal proceedings. However, unlike the case of Rashad Hasanov and Others , in the present case the Court was not called upon to examine whether the applicants had been deprived of their liberty in the absence of a “reasonable suspicion” of their having committed a criminal offence, as the applicants had not exhausted domestic remedies in this regard. The present case had therefore to be distinguished from cases in which an applicant’s right or freedom had been restricted solely for a purpose that was not prescribed by the Convention (compare, for example, Rashad Hasanov and Others v.   Azerbaijan, Aliyev v.   Azerbaijan , and Navalnyy v. Russia ), notably the Court had to address the issue of a potential plurality of purposes. In doing so, the Court found as follows: First, there were sufficient elements to find that the applicants’ pre-trial detention had pursued an ulterior motive; namely, punishing and silencing NIDA members for their active involvement in the anti-government demonstrations. In particular, the prosecuting authorities: (i)   as found in Rashad Hasanov and Others v. Azerbaijan , had clearly targeted NIDA and its members; (ii)   had tried from the very beginning of the criminal proceedings to link the applicants’ alleged possession of narcotic substances and Molotov cocktails to their NIDA membership; (iii)   had used the institution of the criminal proceedings (bearing in mind their timing – on the eve of another demonstration) and the applicants’ subsequent pre-trial detention to prevent the organisation of further demonstrations; and (iv)   had tried to portray leaflets found in the second applicant’s flat and worded “democracy urgently needed, tel: + 994, address: Azerbaijan” as illegal material in an attempt to establish intention for incitement to violence and civil unrest at the demonstration planned the next day. Secondly, this ulterior motive had been the predominant purpose of the restriction of their liberty.   In reaching this conclusion, the Court took into account: (i)   the backdrop and pattern of arbitrary arrest and detention of government critics, human-rights defenders and civil society activists, including NIDA members, through retaliatory prosecutions and misuse of the criminal law (as identified in the case of Aliyev v. Azerbaijan and reaffirmed in subsequent judgments); (ii)   the particular targeting of NIDA as an organisation and its administration with a view to paralysing its activities ( Rashad Hasanov and Others v. Azerbaijan ) and the attempt to prevent further protests via the institution of criminal proceedings against the applicants and their pre-trial detention; and lastly, (iii)   the failures of the domestic courts when examining the applicants’ pre-trial detention as found under Article 5 § 3. Conclusion : violation (unanimously). (See also Selahattin Demirtaş v. Turkey (no. 2) [GC], 14305/17, 22 December 2020, Legal Summary ; Navalnyy v. Russia [GC], 29580/12 et al., 15 November 2018, Legal Summary ; Aliyev v. Azerbaijan , 68762/14 and 71200/14, 20 September 2018, Legal Summary ; Rashad Hasanov and Others v. Azerbaijan , 48653/13 et al., 7 June 2018; Merabishvili v. Georgia [GC], 72508/13, 28 November 2017, Legal Summary ; Buzadji v. the Republic of Moldova [GC], 23755/07, 5 July 2016, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes