CEDH · CASELAW;STATEMENTOFFACTS;ENG — 26 avril 2011

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid }     FIRST SECTION Application no. 4854/10 by Adnan HAJIZADE and Emin ABDULLAYEV against Azerbaijan lodged on 19 January 2010   STATEMENT OF FACTS THE FACTS The applicants, Mr Adnan Hajizade (“the first applicant”) and Mr Emin Abdullayev, also known as Emin Milli (“the second applicant”), are Azerbaijani nationals who were born in 1983 and 1979 respectively and live in Baku. They are represented before the Court by Mr I. Ashurov, a lawyer practising in Azerbaijan. A.     Background Both applicants have several higher education degrees from Azerbaijani and foreign universities and, in addition to their professional careers, have been involved in youth activism advocating for a number of social and political causes. In particular, the applicants were among the founders of two youth organisations named the Alumni Network and OL!, whose primary goals were the civic education of young people, advocacy of young people’s rights and the encouragement of social and political reforms in the country. As part of their social activism efforts, the applicants also engaged in internet blogging and video blogging by making videos and uploading them to social networking websites. These videos, often satirical and critical of the Government, were starting to gain popularity among politically-minded young people for their creativity and relevance to current social problems. On 28 June 2009 the applicants uploaded a video named “Interview with a Donkey” to YouTube and disseminated it through various social networking sites such as Facebook. The video apparently concerned a 2009 report by the State Statistics Committee which, amongst other things, had contained information on official Government imports of a number of donkeys at exorbitant prices, which had been widely understood and discussed as an example of alleged methods for theft of public funds by corrupt Government officials. The video depicted a mock press-conference held by an “imported donkey” (apparently played by the first applicant dressed in a full-body donkey costume), who made a number of thinly ‑ veiled satirical remarks aimed at the incumbent Government and its officials. At around this time, the first applicant felt that he was being followed and shared his concerns about this with his father (who was a known member of the political opposition). B.     The incident of 8 July 2009 At around 7 p.m. on 8 July 2009 the second applicant and five of his friends had light meals and beer at a restaurant in Baku. They talked about upcoming municipal elections and generally about politics and various social issues. The first applicant joined them a bit later. Soon afterwards, two young people of athletic build (later identified as V.M. and B.H.) entered the restaurant and sat at a nearby table. There were no other customers in the restaurant except the aforementioned individuals. At some point, the applicants and their friends began discussing the situation of freedom of expression in the country, and the second applicant made some critical remarks about the Government in this connection. At this point, B.H., who was sitting at a nearby table, began swearing at the applicants and asking them loudly what they were talking about. The applicants and their friends ignored him, which made both B.H. and V.M. angrier. V.M. approached the applicants’ table and unexpectedly head butted the second applicant in the face and then assaulted the first applicant. He continued beating up the applicants, both of whom fell to the floor. At the same time, B.H. knocked down tables and chairs in order to prevent the applicants’ friends from assisting the applicants. As a result of this incident, both applicants sustained facial injuries, while the second applicant also sustained a leg injury. After the incident was over, the restaurant staff prevented B.H. and V.M. from leaving the restaurant. At around 7.35 p.m. the applicants headed for Police Station no. 39 of the Sabail District Police Department, in order to make a report about the assault and the individuals that had assaulted them. On their way to the police station, they made phone calls to some of their colleagues at OL! and informed them about the incident. At around 7.50 p.m. a number of youth activists came to Police Station no.   39, where the applicants had already arrived. They all witnessed the injuries sustained by the applicants. At Police Station no. 39 the applicants were instructed to report the matter to Police Station no. 9, owing to its territorial jurisdiction over the locus of the incident. At 8.30 p.m. the applicants arrived at Police Station no. 9 and filed a criminal complaint against the two individuals who had physically assaulted them. The alleged perpetrators, V.M. and B.H., as well as two employees of the restaurant, were also brought to the police station in police cars. However, no statements were formally taken from them at this time. At around 8.40 p.m. both applicants, together with one of their friends who had been with them in the restaurant (O.G.), as well as V.M. and B.H., were taken to the Republic Drug Clinic for medical examinations to determine their state of intoxication. A doctor at the clinic conducted an examination of the above-mentioned five individuals between 8.55 and 9.05 p.m. According to medical records nos. 1/5910 and 1/5911 issued in respect of B.H. and V.M. on 8 July 2009, neither of them were intoxicated and no injuries were observed on their persons. According to medical record no.   1/5914 issued on the same date in respect of the first applicant, he was at a medium level of alcohol intoxication and had admitted to drinking beer. According to the record, the first applicant had visible bruising on his forehead. C.     The applicants’ formal arrest and the pre-trial proceedings Following the intoxication test, the above-mentioned five individuals were brought back to Police Station no. 9 and handed over to Captain Z.   Aliyev, the Chief Investigator of the Sabail District Police Department. At around 9.20   p.m. Captain Aliyev took them all to the Sabail District Police Headquarters. At an unspecified time on 8 July 2009 the investigator instituted criminal proceedings against the applicants under Article 221.2.1 (hooliganism) of the Criminal Code. The investigator’s decision stated, inter alia , that the applicants, “together with other individuals whose identities [are] unknown to the investigation”, had committed hooliganism accompanied by the use of physical violence and had seriously breached the peace in the restaurant by using force against V.M. and B.H., hitting them in various parts of their bodies. It is apparent that both V.M. and B.H. were considered as “victims” in the case from the moment it was opened. According to the applicants, the criminal proceedings were instituted on the basis of a criminal complaint by V.M. which had allegedly been fabricated by the police. On the same date, the investigator formally questioned V.M., B.H. and the applicants. During the initial questioning, the applicants were not informed of the fact that a criminal case had been instituted against them. According to the applicants, the statements of V.M. and B.H. were “changed” and rewritten by the police in order to present them as victims and to incriminate the applicants. Although on 8 July 2009 the applicants’ friends who had witnessed the incident at the restaurant had voluntarily appeared before Captain Aliyev and expressed their intention to testify about the incident, he failed to question them until 16 July (see below) without providing any reasons for this delay. At 0.05 a.m. on 9 July 2009 the investigator drew up a record of the second applicant’s detention as a suspect. A similar record was drawn up in respect of the first applicant on 0.45 a.m. on the same day. The applicants refused to sign these records. They were signed by a State-appointed lawyer invited by the investigator to participate in the early procedural steps as the applicants’ representative. At around 1.30 a.m. on 9 July 2009 the applicants were taken to a temporary detention facility. At noon on the same date they were brought back to the Sabail District Police Headquarters and formally charged with a criminal offence under Article 221.2.1 of the Criminal Code. The applicants were able to meet the lawyers of their choice for the first time on 9 July 2009. Based on a request by the prosecuting authority, by two separate decisions of 10 July 2009 the Sabail District Court ordered the applicants’ remand in custody for a period of two months. The first applicant appealed against this decision, arguing, inter alia , that there had been no reasonable suspicion that the applicants had committed a criminal offence, that the detention order lacked relevant and sufficient reasons, and that the judge had ignored their oral requests for medical assistance in connection with their injuries. On 20 July 2009 the Baku Court of Appeal rejected this appeal. On 16 July 2009 the applicants’ lawyer lodged a complaint with the Sabail District Court concerning violations of the applicants’ rights by the police authorities. He complained, inter alia , that despite clearly visible injuries on the applicants’ persons, the police had handcuffed, detained and questioned them for hours and had failed to provide them with any medical assistance during this time. He further complained that the applicants had not been allowed to be represented by a lawyer of their own choosing from the moment of their arrest. On 23 July 2009 the Sabail District Court rejected this complaint as unsubstantiated, finding that the applicants had been provided with first aid and that they had been allowed to meet the lawyers of their choice as soon as the latter had presented the necessary papers. The applicants appealed. On 28 August 2009 the Baku Court of Appeal dismissed their appeal, reiterating the Sabail District Court’s reasoning. While the above proceedings concerning the applicants’ pre-trial detention were underway, on 20 July 2009 the first applicant, on behalf of himself and the second applicant, sent an application to the Prosecutor General, arguing that the criminal case against them had been fabricated with the aim of suppressing their freedom of expression and requesting a criminal inquiry in respect of the police’s actions, which he claimed had infringed their rights under Articles 3 and 10 of the Convention. No formal decision was taken by the Prosecutor General’s Office in connection with this application. In the meantime, it appears that the investigator requested forensic examinations of the applicants and the alleged victims, which produced the following results: (a)     according to a forensic report of 11 July 2009, B.H. had two bruises on his person; (b)     according to a forensic report of 13 July 2009, the second applicant had a number of bruises on four body parts; (c)     according to a forensic report of 24 July 2009, the first applicant had a number of bruises on four body parts; and (d)     according to a forensic report of 30 July 2009, V.M. had sustained a number of injuries that were comparatively more serious than those of the other three individuals, including a haematoma on his head, concussion, post-traumatic head and neck pains, bleeding from the right eardrum, and a number of bruises. D.     The authorities’ press statements made in the course of the investigation The applicants’ arrest immediately attracted the attention of the media and of various local and international human rights organisations, as well as some foreign embassies in Baku, most of which condemned the authorities’ actions as an act of retaliation for the applicants’ critical videos. Ostensibly in response to such public reaction, on 11 July 2009 the Baku City Prosecutor’s Office and the Baku City Chief Police Department issued a joint official statement through the media, which declared that the applicants had been arrested because they had assaulted V.M. and B.H. in a restaurant and had committed the criminal offence of hooliganism. The statement also mentioned that the authorities were taking measures to identify three individuals (whose first names were known to the police and were mentioned in the statement) who had accompanied the applicants in the restaurant and who might also have been implicated in the incident. On 14 July 2009 those three individuals (P.A., U.H. and N.B.), who had been with the applicants during the incident of 8 July 2009 and whose first names had been mentioned in the authorities’ statement of 11   July 2009, held a press conference where they told the media their version of the events of 8 July 2009. They claimed that, in their press statement, the authorities had distorted the facts and that, in reality, the applicants had been the victims of an assault and fabricated criminal case. They also claimed to have applied to the investigator (Captain Aliyev) to be questioned as witnesses, but to no avail. It appears that the investigator finally questioned the above three individuals several days after this press conference. In response to the above-mentioned press conference and numerous other media reports condemning the applicants’ arrest, on 14 July 2009 the Prosecutor General’s Office and the Ministry of Internal Affairs issued another press statement, in which they “strongly objected” to premature doubts about the objective character of the investigation of an “ordinary incident of hooliganism”, and to alleged attempts by some media outlets to “put pressure on the investigation” by “politicizing” the incident. The authorities further reiterated that the applicants and five other individuals had violated public order and had committed a criminal act of hooliganism. On 29 July 2009 the applicants’ lawyers lodged a complaint with the Sabail District Court, claiming that the authorities’ press statements of 11   and 14 July 2009 had breached the applicants’ right to be presumed innocent. This complaint was rejected on 10 August 2009. On 10 September 2009 the Baku Court of Appeal rejected the applicants’ appeal against that decision. E.     Trial and appeals On 11 August 2009, additional charges were brought against the applicants under Articles 221.2.1 (hooliganism) and 127.2.3 (deliberate infliction of minor physical injury) of the Criminal Code. On 24 August 2009 the investigator issued an indictment, which was approved by the supervising prosecutor on the same date, and the case was transmitted to the Sabail District Court for trial. On 4 September 2010 the Sabail District Court held its preliminary hearing, during which the applicants’ lawyers requested, inter alia , that the applicants’ remand in custody be replaced by another, non-custodial preventive measure pending trial. By a decision of 4 September 2010 the Sabail District Court rejected this request and ordered the applicants’ continued detention pending trial. During the trial, the court examined statements by the applicants, the alleged victims, the applicants’ friends, the restaurant personnel and the police officers who had been called to the scene of the incident. It also examined the forensic evidence provided by the prosecution. By a judgment of 11 November 2009 the Sabail District Court convicted both applicants under Articles 127.2.3 and 221.2.1 of the Criminal Code. It sentenced the first applicant to two years’ imprisonment and the second applicant to two years and six months’ imprisonment. The applicants appealed. On 10 March 2010 the Baku Court of Appeal upheld the first-instance court’s judgment. On 19 August 2010 the Supreme Court upheld the lower courts’ judgments. According to the applicants, the alleged victims, V.M. and B.H., showed a great deal of unwillingness to participate in the pre-trial investigation and the trial hearings. They only appeared at two hearings during the first ‑ instance trial, accompanied by the investigator and other law ‑ enforcement officials. During the appeal hearings, the Baku Court of Appeal was unable to secure their attendance because their alleged residential addresses noted in the case file could not be found by the postal service and summonses could not be delivered. F.     International reactions and the applicants’ release As noted above, the case received considerable local and international media attention and was quickly dubbed a “bloggers’ case” in media reports. Moreover, a number of governments and officials of foreign States (including the U.S., Germany and Norway) and international organisations (including the Council of Europe, the EU and the OSCE), as well as a number of local and international human rights groups, have voiced numerous concerns over the arrest of the applicants and the general situation of freedom of expression in the country, while some of them openly condemned the authorities’ actions and urged them either to conduct a fair investigation or to release the applicants. On 18 and 19 November 2010 respectively, the first and second applicants were released on parole following relevant decisions by the Baku Court of Appeal. COMPLAINTS 1.     The applicants complain under Article 3 of the Convention that, despite being injured, they were detained by the police, who failed to provide them with adequate medical treatment and, moreover, ill-treated them by handcuffing them and questioning them whilst injured for hours. 2.     The applicants complain under Article 5 §§ 1 (c), 3 and 4 of the Convention that they were detained in the absence of any reasonable suspicion that they had committed a criminal offence, that the judicial decisions ordering their pre-trial detention lacked relevant and sufficient reasons, and that the judicial hearings concerning their continued pre-trial detention were unfair. 3.     The applicants complain under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention that the criminal proceedings as a whole were unfair and arbitrary, that they were not provided with adequate time and facilities for the preparation of their defence, that they were not allowed access to legal assistance of their own choosing immediately from the beginning of the criminal proceedings, and that the domestic courts arbitrarily refused to examine evidence and witnesses on behalf of the defence, generally assessed the evidence in an arbitrary manner and failed to provide a reasoned decision in respect of various aspects of the case. 4.     The applicants complain under Article 6 § 2 of the Convention that the law-enforcement authorities’ press statements of 11 and 14 July 2009 infringed their right to be presumed innocent. 5.     The applicants complain under Article 8 of the Convention that, during the entire pre-trial detention period, the investigating authorities rejected numerous requests by their family members for permission to visit the applicants, without providing any reasonable grounds justifying the necessity of such a measure. 6.     Relying on Article 10 of the Convention, the applicants complain that all of the above-mentioned alleged violations of their rights also amounted to unjustified interference with their right to freedom of expression. They contend that the incident of 8 July 2009 was staged and that the subsequent criminal proceedings resulting in their conviction and imprisonment were fabricated by the authorities with the purpose of punishing them for their social activism and public criticism of the Government.   QUESTIONS TO THE PARTIES 1.     Have the applicants been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?   2.     Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, was their detention compatible with Article 5 § 1 (c) in terms of being lawful and based on reasonable suspicion?   3.     Were the domestic courts’ decisions concerning the applicants’ pre ‑ trial detention and the procedure by which the applicants sought to challenge the lawfulness of their detention in conformity with the requirements of Article 5 §§ 3 and 4 of the Convention?   4.     Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, were the principle of equality of arms and the applicants’ right to a reasoned decision respected? Were the applicants afforded adequate time and facilities to prepare their defence, as required by Article 6 § 3 (b) of the Convention? Were they able to defend themselves through legal assistance of their own choosing, as required by Article 6 §   3   (c) of the Convention? Were they able to examine witnesses against them and to obtain the attendance of witnesses on their behalf under the same conditions as witnesses against them, as required by Article 6 § 3 (d) of the Convention?   5.     Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?   6.     In connection with the alleged ban on the applicants’ meeting with their family members during their pre-trial detention, has there been an interference with the applicants’ right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?   7.     Has there been an interference with the applicants’ freedom of expression, in particular their right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention?   8.     In connection with the above questions, the parties are also requested to submit the following information, supported where necessary by relevant evidence (including, but not limited to, any official documents or witness statements procured by each party): (a)     a detailed account of the events of 8 July 2009, with the emphasis on exactly what happened, in chronological order, between the moment the incident in the restaurant came to an end and the time when the criminal proceedings were formally instituted. In particular, the parties are requested to inform the Court whether the applicants were arrested at the restaurant or appeared at the relevant police station voluntarily, and whether they were provided with medical assistance immediately after their arrest or at any subsequent time (and if so, including a detailed description of the medical assistance provided). The same information is to be provided in respect of V.M. and B.H.; (b)     a copy of the prosecution’s case file, including official documents concerning all procedural decisions and investigative steps taken from the very beginning of the proceedings and all the evidence (testimonial, forensic, or other) collected during the pre-trial investigation; (c)     a copy of the transcript of the trial hearings; (d)     copies of appeals lodged by the applicants against their conviction; (e)     copies of any other applications, appeals or complaints lodged by the applicants (or their relatives) concerning any of the alleged violations of their rights, and copies of any decisions taken by the domestic authorities; (f)     copies of decisions forming the basis for the applicants’ release on parole.