CASE OF RASHAD HASANOV AND OTHERS v. AZERBAIJAN
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 18+5-1-c - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security;Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer
4. The applicants’ years of birth and home addresses are listed in the Appendix. 5. The applicants are civil society activists. They are board members of the civic movement NIDA, a non-governmental organisation established by a group of young people in February 2011. According to its manifesto, NIDA wants liberty, justice, truth and change in Azerbaijan and it rejects violence and uses only non-violent methods of struggle. NIDA is governed by a board of members composed of seven people. The first, second and fourth applicants are also co-founders. 6. In January and March 2013 a number of peaceful demonstrations were held in Baku in protest against the death of soldiers in the Azerbaijani army in non-combat situations. The demonstrations were organised through social media and the applicants and other members of NIDA actively participated in organising and conducting them. One of the demonstrations was scheduled for 10 March 2013 in the city centre. 7. On 7 March 2013 three members of NIDA (S.N., B.G. and M.A.) were arrested by agents of the Ministry of National Security (“the MNS”). Domestic proceedings concerning the arrest and pre-trial detention of S.N. and M.A. are the subject of other applications pending before the Court (see applications nos. 70106/13 and 65583/13). 8. On 8 March 2013 the Prosecutor General’s Office and the MNS made a joint public statement to the press, stating that “illegal attempts to undermine the social-political stability established in the country have recently been made by some radical destructive forces” (son dövrlər radikal yönümlü bəzi destruktiv qüvvələr tərəfindən ölkədə bərqərar olmuş ictimai-siyasi sabitliyin pozulmasına yönəlmiş qanunazidd cəhdlər göstərilir). The statement was also public confirmation that S.N., B.G. and M.A. had been arrested for planning to incite violence and civil unrest during the unlawful demonstration scheduled for 10 March 2013. It also said that criminal proceedings had been instituted against S.N., B.G. and M.A. as narcotic substances had been found in their flats. It further stated that nineteen Molotov cocktails had been found in B.G.’s flat, three Molotov cocktails had been found in S.N.’s flat and twenty-eight leaflets worded “Democracy urgently needed (təcili demokratiya tələb olunur), tel: + 994, address: Azerbaijan” had been found in M.A.’s flat. In that connection, the statement said that “it was established during the preliminary investigation that since mid-2012 all three individuals, being addicted to narcotic substances and becoming members of NIDA through the Internet, had actively participated in a number of illegal activities of the organisation and prepared a flammable liquid known as Molotov cocktails, found in their flats” (İlkin istintaqla müəyyən edilmişdir ki, hər üç şəxs 2012-ci ilin ortalarından etibarən internet vasitəsilə “Nida” vətəndaş hərəkatının üzvləri və narkotika aludəçisi olmaqla, təşkilatın bir sıra qanunsuz tədbirlərində fəal iştirak etmiş və yaşadıqları mənzillərdən aşkar edilmiş “Molotov kokteyli” adlanan tez alışan maye onlar tərəfindən hazırlanmışdır). 9. On the same day NIDA made a public statement, saying that the arrest of S.N., B.G. and M.A. had been politically motivated and had aimed to silence the protesters by creating a feeling of fear among them before the demonstration of 10 March 2013. 10. It appears from the documents in the case file that on the basis of the investigator’s decision of 8 March 2013 twenty-two Molotov cocktails found in the flats of S.N. and B.G. were submitted for an expert examination, which began on 12 March 2013. Expert report no. 4503/04, dated 10 April 2013 and signed by two experts, concluded that twenty of the Molotov cocktails “were only flammable (incendiary) tools which could not be considered explosive devices”. The report further stated that the two remaining Molotov cocktails could be considered explosive devices because there had been a syringe with gunpowder attached to the bottles. 11. On 14 March 2013 the first applicant, on 30 March 2013 the third and fourth applicants and on 1 April 2013 the second applicant were arrested and taken to the Serious Crimes Department of the Prosecutor General’s Office. 12. It appears from the documents in the case file that on the respective dates of their arrest the applicants were informed that they had been charged with an offence under Article 228.3 (illegal acquisition, transfer, sale, storage, transportation and carrying of arm, its accessories, supplies, explosive substances and devices by an organised group) of the Criminal Code. The decisions charging the applicants were made on various dates but by the same investigator. They were identical in their wording except for the name of the person charged. The description of the charges consisted of a single sentence half a page long. The relevant part of the decision concerning the first applicant stated: “... Rashad Zeynalabdin oglu Hasanov has been charged on the basis of sufficient charging evidence because in early March 2013 in Baku, in an organised group with B.G., S.N. and others with whom he had close ties, [he] unlawfully obtained twentytwo glass bottles of explosive devices known as Molotov cocktails, which are prepared with flammable liquid petrol as an explosive substance by inserting a cotton rag preventing the liquid from dispersing and evaporating, as well as acting as a fuse, [and arranged storage] until 7 March 2013 by giving nineteen of them to B.G. who lives in ... and three of them to S.N. who lives in ... Through these actions, Rashad Zeynalabdin oglu Hasanov committed a criminal offence under Article 228.3 of the Criminal Code of the Republic of Azerbaijan. ...” 13. On the respective dates of their arrest the First Deputy Prosecutor General of the Republic of Azerbaijan requested that the courts remand each applicant in custody (həbs qətimkan tədbiri). In each case, the prosecutor used the exact same wording as in the decisions charging the applicants. 14. On the same dates the applicants were brought before a judge of the Nasimi District Court. Referring to the official charges brought against them and the prosecutor’s requests to remand them in custody, the judges ordered their detention for a period of three months. It appears from the transcripts of the court hearings before the Nasimi District Court available in the case file that the applicants denied the charges against them, stating that their arrest was related to their social and political engagement. Although the Nasimi District Court’s decisions were delivered on various dates and by different judges, their wording was almost identical. Each time, the judges justified the applicants’ detention pending trial by the gravity of the charges and the likelihood that if released they might abscond or obstruct the investigation. Moreover, in respect of the first applicant, the judge also noted that the first applicant had avoided the investigation until his arrest on 14 March 2013 because he had been wanted by the police since 10 March 2013 on the basis of the investigator’s decision charging him with a criminal offence under Article 228.3 of the Criminal Code. 15. On various dates in March and April 2013 the applicants appealed against the decisions ordering their pre-trial detention. They complained that there was no evidence that they had committed a criminal offence and there had been no justification for their detention pending trial. The first applicant also submitted that he had never been informed of any decision of the investigator charging him with a criminal offence until his arrest on 14 March 2013. In that connection, he pointed out that between 10 and 14 March 2013 he had not gone into hiding and had actively participated in the political life of the country, giving an interview to a newspaper and participating in the gathering of a political movement. 16. On various dates in March and April 2013 the Baku Court of Appeal dismissed the applicants’ appeals, finding that the detention orders were justified. In that connection, the appellate court held that the Nasimi District Court had correctly taken into account the seriousness of the criminal offence attributed to the applicants and the likelihood that if released they might abscond or obstruct the normal functioning of the investigation. 17. On 26 April 2013 the first applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pretrial detention. He claimed, in particular, that his detention was not justified and that there was no reason for it to continue. In support of his request, he pointed out that he had a permanent address, had never been convicted, and that there was no risk of his absconding or obstructing the investigation. 18. On 27 April 2013 the Nasimi District Court dismissed the request, finding it unfounded. 19. On 3 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 20. On 29 May 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the first applicant’s pre-trial detention of three months, submitting that more time was needed to complete the investigation. 21. On 30 May 2013 the Nasimi District Court extended the first applicant’s detention pending trial until 7 September 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges, and the likelihood that if released the first applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings. 22. On 3 June 2013 the first applicant appealed against that decision. He complained, in particular, that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to justify the extension of his detention pending trial. 23. On 6 June 2013 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court’s decision of 30 May 2013. 24. No further extension decisions were included in the case file. 25. On 26 April 2013 the second applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pretrial detention. He claimed, in particular, that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration. 26. On 30 April 2013 the Nasimi District Court dismissed the request, finding it unfounded. 27. On 6 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 28. On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the second applicant’s pre-trial detention for a period of three months. In that connection, he submitted that more time was needed to complete the investigation. 29. On 24 June 2013 the Nasimi District Court extended the second applicant’s detention pending trial by three months, until 1 October 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges and the need for additional time to carry out further investigative measures. 30. On 27 June 2013 the second applicant appealed against that decision, reiterating that there was no evidence that he had committed a criminal offence and that the Nasimi District Court had failed to justify his continued detention. 31. On 1 July 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of the second applicant’s detention pending trial was justified. 32. On 15 July 2013 the second applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention, reiterating his previous arguments. 33. On 17 July 2013 the Nasimi District Court dismissed the request, finding that the grounds for his pre-trial detention had not changed. 34. On 25 July 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 35. On 17 September 2013 the prosecutor lodged a request with the court asking for an extension of the second applicant’s pre-trial detention for a period of two months. The prosecutor gave as the reason for the need to extend the detention the complexity of the case and the need for more time for the accused and his lawyer to familiarise themselves with the material in the case file. 36. On 18 September 2013 the Nasimi District Court extended the second applicant’s detention pending trial by two months, until 1 December 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges, the need for additional time to carry out further investigative measures and the likelihood that if released the second applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings. 37. On 27 September 2013 the Baku Court of Appeal upheld the firstinstance court’s decision. 38. No further extension decisions were included in the case file. 39. It appears from the documents in the case file that on an unspecified date in May 2013 the third applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention. In that regard the Court notes that it explicitly requested the Government to submit copies of all the documents relating to the applicants’ pre-trial detention; they failed to do so. 40. On 17 May 2013 the Nasimi District Court dismissed the request, finding that there was no need to use an alternative preventive measure to custody. 41. On 23 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 42. On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the third applicant’s pre-trial detention for a period of three months, submitting that more time was needed to complete the investigation. 43. On 22 June 2013 the Nasimi District Court extended the third applicant’s remand in custody by three months, until 30 September 2013. The court substantiated the need for the extension by the gravity of the charges, the risk of his reoffending, and the likelihood that if released he might abscond or obstruct the investigation. 44. It appears from the documents in the case file that on an unspecified date in June 2013 the third applicant appealed against that decision. The Government did not make a copy of the appeal available to the Court. 45. On 27 June 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of his detention pending trial was justified. 46. On 30 July 2013 the third applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention. He claimed that his continued detention was not justified and that no investigative measures had been carried out since the beginning of his pre-trial detention. 47. On 31 July 2013 the Nasimi District Court dismissed the request. 48. On 7 August 2013 the Baku Court of Appeal upheld the firstinstance court’s decision. 49. No further extension decisions were included in the case file. 50. On 15 April 2013 the fourth applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pretrial detention. He claimed, in particular, that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration. 51. On 17 April 2013 the Nasimi District Court dismissed the request. 52. On 22 April 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 53. On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant’s pre-trial detention for a period of three months, submitting that more time was needed to complete the investigation. 54. On 24 June 2013 the Nasimi District Court extended the fourth applicant’s remand in custody by three months, until 30 September 2013. The court substantiated the need for the extension by the complexity of the case, the need for additional time to carry out further investigative measures and the possibility of the fourth applicant’s absconding or influencing persons participating in the criminal proceedings. 55. On 25 June 2013 the fourth applicant appealed against that decision, reiterating that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to justify his continued detention. 56. On 4 July 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of his detention pending trial was justified. 57. On 7 August 2013 the fourth applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention or to be released on bail. He submitted in support of his request that there was no reason justifying his continued detention and that the courts had failed to take into account his personal situation. 58. On 13 August 2013 the Nasimi District Court dismissed the request, finding that there was no need to use an alternative preventive measure to custody. 59. On 22 August 2013 the Baku Court of Appeal upheld the firstinstance court’s decision. 60. It appears from the documents in the case file that on an unspecified date in September 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant’s pre-trial detention for a period of two months. The Government did not make a copy of the request available to the Court. 61. On 18 September 2013 the Nasimi District Court decided to extend the fourth applicant’s detention pending trial for a period of two months, until 30 November 2013. 62. On 19 September 2013 the fourth applicant appealed against that decision, complaining that there was no justification for his continued detention. He reiterated that there was no reasonable suspicion that he had committed a criminal offence and that the first-instance court had failed to justify its decision. 63. It appears from the documents in the case file that on 4 October 2013 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 18 September 2013. The Government did not make a copy of the appellate court’s decision available to the Court. 64. No further extension decisions were included in the case file. 65. It appears from the documents in the case file that in September 2013 the applicants were additionally charged with new criminal offences under Articles 28 (preparation of a crime) and 220.1 (mass disorder) of the Criminal Code. The Government did not make the investigator’s decisions in this respect available to the Court. 66. On 6 May 2014 the Baku Court of Serious Crimes found the applicants guilty on all counts and sentenced the first applicant to seven and a half years’ imprisonment, the second applicant to eight years’ imprisonment, the third applicant to seven years’ imprisonment and the fourth applicant to eight years’ imprisonment. 67. On 16 December 2014 the Baku Court of Appeal upheld that judgment. 68. On 2 June 2015 the Supreme Court upheld the appellate court’s judgment in respect of the first and third applicants. 69. On 15 October 2015 the Supreme Court upheld the appellate court’s judgment in respect of the second and fourth applicants. 70. In the meantime, on 29 December 2014 the second and third applicants were released from serving the remainder of their sentence after being pardoned by a presidential decree. 71. On 17 March 2016 the first and fourth applicants were also released from serving the remainder of their sentence after being pardoned by a presidential decree.