GAFAROV v. AZERBAIJAN
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
1. The applicant, Emil Beybala oglu Gafarov (Emil Bəybala oğlu Qafarov), is an Azerbaijani national, who was born in 1986 and lives in Sumgayit. 2. The applicant had been granted legal aid and was represented before the Court by Mr A. Mustafayev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. At approximately 11 p.m. on 11 September 2008, after having participated in a robbery with another person, the applicant voluntarily appeared at a police station. According to the applicant, on arrival at the police station he was arrested. 4. At 5 p.m. on 12 September 2008 the investigator in charge of the case drew up a record of the applicant’s arrest as a suspect (tutma haqqında protokol). The record was signed by the investigator and the applicant. 5. On 13 September 2008 the applicant was charged with the criminal offence of robbery as defined under Article 180.2.1 of the Criminal Code. On the same day the prosecutor requested that the preventive measure of remand in custody be applied in respect of the applicant. 6. At approximately 11 a.m. on 15 September 2008 the Sumgayit City Court granted the prosecutor’s request and remanded the applicant in custody for a period of three months. The court also held that the beginning of the detention was to be calculated from 12 September 2008. 7. According to the applicant, at the hearing before the first-instance court his lawyer complained that under domestic law, a suspect should not be detained for more than forty-eight hours, but the court left the complaint without consideration. However, according to the record of the hearing – the content of which was not disputed by the applicant – held in the presence of the applicant and his lawyer, the lawyer only asked the court not to apply the preventive measure of remand in custody in respect of the applicant because he was young and had confessed to the crime. 8. The applicant did not appeal against the Sumgayit City Court’s decision of 15 September 2008. 9. On 16 September 2008 the applicant’s lawyer lodged a request with the Sumgayit City Court, asking the court to place the applicant under house arrest in lieu of being remanded in custody. He submitted that the applicant had voluntarily presented himself to the police, that there was no risk of his absconding, that he was suffering from a kidney disease, and that he was a student. 10. On 19 September 2008 the Sumgayit City Court dismissed the request, finding that there was no need to change the preventive measure of remand in custody. It appears from the record of the hearing that the applicant’s lawyer raised the same arguments in support of the request during the hearing in the court. 11. On the same day the applicant lodged an appeal with the Sumgayit Court of Appeal. In his appeal, the applicant asked the court to replace his detention on remand with house arrest, noting that, when ordering his pre-trial detention, the court had not taken into consideration the fact that he had no criminal record, that he had voluntarily given himself up to the police, as well as his state of health and other personal circumstances. The applicant also complained about his detention as a suspect from 11 to 15 September 2008, claiming that he had not been brought before a judge within forty-eight-hours of his arrest as required by domestic law. 12. On 26 September 2008 the Sumgayit Court of Appeal partially granted the appeal and replaced the applicant’s remand in custody with the preventive measure of house arrest. The appellate court’s decision made no mention of the part of the complaint relating to the applicant’s alleged unlawful detention in excess of the maximum forty-eight-hour period. 13. The relevant provisions of the Code of Criminal Procedure (“the CCrP”) concerning arrest on suspicion of having committed a criminal offence are described in detail in the Court’s judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 84-88, 9 November 2010) and Salayev v. Azerbaijan (no. 40900/05, §§ 25-29, 9 November 2010). 14. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings may challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or his counsel may challenge actions or decisions of the prosecuting authorities concerning, inter alia, arrest and detention on remand or violation of the rights of an arrested person. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). The judge’s decision may be challenged before an appellate court in accordance with the procedure established in Articles 452 and 453 of the CCrP.