CASE OF NOVRUZ ISMAYILOV v. AZERBAIJAN
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The applicant was born in 1961 and is currently serving a sentence of imprisonment in a prison in Baku. 6. The applicant was a founder of the private Borçalı Bank and of the Borçalı Association. He was also the chairman of the bank’s supervisory board. 7. On 19 April 2004 criminal proceedings were instituted under Article 213 of the Criminal Code (tax evasion) by the Ministry of Taxes in connection with the activities of the Borçalı Association. 8. The applicant responded to the investigator’s calls to testify as a witness within the framework of the above-mentioned criminal proceedings and participated in various investigative steps. 9. In particular, on 16 July 2004 the applicant was questioned by the investigator and on 20 July 2004 a confrontation was carried out between the applicant and another witness. 10. On 21 and 27 July 2004 the applicant was again requested to attend to assist with the investigation; however he failed to comply with the request. 11. On 18 and 26 August 2004 the applicant voluntarily appeared before the investigating authorities and two confrontations were conducted by the investigator between the applicant and two other persons. 12. In the beginning of September 2004, the investigator tried to contact the applicant, but he could not determine his whereabouts. 13. On 14 September 2004 the investigator ordered the applicant’s compulsory participation in the investigation. 14. On 28 September 2004 the applicant appeared before the investigating authority. On the same day the investigator in charge of the case informed the applicant that he was charged under Articles 178 (fraud), 179 (embezzlement) and 313 (forgery by an official) of the Criminal Code. The charges against the applicant were based on the results of a financial audit carried out in respect of the Borçalı Association, and on the statements of various persons with whom the applicant had business relationships within the framework of his activities at the Borçalı Bank and the Borçalı Association. 15. Again on the same day, the prosecutor requested the judge to apply the preventive measure of remand in custody (həbs qətimkan tədbiri) in respect of the applicant. The prosecutor gave as the reasons for requesting that measure the seriousness of the applicant’s alleged criminal acts and the possibility of his absconding from and obstructing the investigation. 16. At the hearing before the court, the applicant and his lawyer submitted that the applicant had never absconded from or obstructed the investigation. They also submitted that the applicant’s failure to comply with some of the requests to assist with the investigation had been due to his state of health, because he had been sick at the time. 17. On 28 September 2004 the judge, relying on the official charges brought against the applicant and the prosecutor’s request for the application of the preventive measure of remand in custody, ordered the applicant’s detention for a period of three months. The judge reasoned the necessity for this measure as follows: “Taking into account that Ismayilov Novruz Binnat oglu has committed a serious crime, the possibility of his absconding from the investigation and illegally influencing persons participating in the criminal proceedings, obstructing the normal functioning of the investigation by hiding or falsification of the items necessary for the prosecution, and that there are sufficient grounds [that he might] fail to comply with calls to attend the investigation without any good reason, or flee from criminal responsibility by other means, ... the preventive measure of remand in custody should be applied in respect of Ismayilov Novruz Binnat oglu.” 18. The applicant appealed against the Khatai District Court’s decision of 28 September 2004, complaining of a lack of evidence that he had committed a criminal offence and lack of justification for the application of the preventive measure of remand in custody. He noted, in particular, that he had always collaborated with the investigating authority before his arrest and that the court had not taken into consideration his family status, state of health or other personal circumstances. The applicant also noted that it would be impossible for him to hide or falsify any document relating to the case, because all the relevant documents had been taken from his office by the investigating authority. 19. On 5 October 2004 the Court of Appeal dismissed the appeal, finding that the detention order was justified. The relevant part of the court’s decision reads as follows: “After having examined the arguments of the appeal, heard the lawyer’s submissions in support of the appeal and the prosecutor’s submissions against it, the panel of the court considers that the court’s decision of 28 September 2004 should remain unchanged as it is lawful and justified”. 20. On 16 December 2004, the investigator requested from the Deputy Prosecutor General an extension of the applicant’s detention, because although a number of statements had been obtained and a financial audit of the Borçalı Bank had been conducted by the National Bank and the Ministry of Taxes, more time was needed to complete the investigation. 21. On 23 December 2004 the Deputy Prosecutor General submitted a request to the court for the extension of the applicant’s detention period until 28 February 2005. The relevant part of the prosecutor’s request reads as follows: “The records of the documented audit carried out in this case must be obtained, depending on the conclusions of the audit, certain witnesses must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided. In order to carry out the said investigative actions, no less than two months are needed. However, the period of remand in custody in respect of the accused person Ismayilov Novruz Binnat oglu ends on 28 December 2004. Thus, because of the complexity of the criminal case and the need for at least two months for the carrying out of the above-mentioned investigative actions, the period of remand in custody in respect of N. Ismayilov must be extended until 28 February 2004.” 22. On 23 December 2004 the judge at the Khatai District Court, relying on the prosecutor’s request, extended the length of the applicant’s remand in custody by a period of two months, until 28 February 2005. The court decision, which is almost identical in wording to the prosecutor’s request, reasoned the necessity for the extension of the applicant’s detention as follows: “The records of the documented audit carried out in this case must be obtained, certain witnesses, depending on the conclusions of the audit, must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided. The period of remand in custody in respect of Ismayilov Novruz Binnat ... ends on 28 December 2004. However, as it will not have been possible to complete the additional investigative actions during this period, I consider that the request must be granted and the period of remand in custody in respect of N. Ismayilov must be extended for a period of two months, that is, until 28 February 2005.” 23. The hearing of 23 December 2004 on the extension of the detention period was held in the applicant’s absence, but in the presence of the investigator. According to the record of the hearing, the applicant was represented by his lawyer (F.A.) and the latter took the floor and stated that he had no objections to the extension of the applicant’s detention. 24. On 27 December 2004, when the record of the Khatai District Court’s hearing of 23 December 2004 was made available to F.A., he made written comments on the record, stating that false information was included in it, as he had not participated in that hearing and had not pronounced in favour of the extension of the applicant’s detention. On the same day he lodged a request with the judge of the Khatai District Court for the rectification of the record of the hearing of 23 December 2004. He submitted, in particular, that he had not been informed of the date and place of that hearing and that he had not participated in it. He argued that the record of the hearing had been falsified. 25. Moreover, it appears from the transcripts of phone conversations of 28 December 2004 between F.A. and a court clerk, between F.A. and the investigator in charge of the case, and between F.A. and the Khatai District Court judge who ordered the extension of the applicant’s detention, that F.A. did not participate in the hearing, as all the above-mentioned persons confirmed it in their phone conversation with F.A. In particular, although the judge acknowledged in the phone conversation that there had been a mistake in the record of the hearing concerning the lawyer’s presence at the hearing, in the same conversation he also refused to officially rectify the record. 26. By a decision of 28 December 2004, the same Khatai District Court judge rejected F.A.’s rectification request, holding that the lawyer had participated in the hearing of 23 December 2004. 27. On 28 December 2004 the applicant appealed against the Khatai District Court’s decision of 23 December 2004 concerning the extension of his detention. The applicant complained that he had not been taken to the court for the hearing and that his lawyer had not been informed of the date and place of the hearing. He further submitted that there was no justification for the extension of his detention period and that the first-instance court had failed to substantiate its decision. On 5 January 2005 he lodged additional submissions in support of his appeal, reiterating his previous complaints and asking the court to deliver a special ruling with regard to the judge of the Khatai District Court in connection with the falsification of the record of the hearing of 23 December 2004. 28. On 6 January 2005 the Court of Appeal left unchanged the Khatai District Court’s decision on the extension of the detention period, finding no reason for quashing it. As to the justification for the extension of the applicant’s detention, the appellate court stated as follows: “The investigating authority considers it necessary that the records of the documented audit carried out in this case must be obtained, some witnesses, depending on the conclusions of the audit, must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided. At the stage of the carrying out of the said procedural actions, it is not appropriate to release N. Ismayilov from pre-trial detention. The panel of the court considers that the judge of the first-instance court took into account the seriousness of the crime attributed to N. Ismayilov, the possibility of him influencing persons participating in the criminal proceedings if released, as well as obstructing the normal functioning of the investigation or the court proceedings by hiding or falsification of items necessary for the prosecution, and correctly extended the period of his detention. The decision is lawful and justified.” 29. The appellate court did not examine the applicant’s specific complaints concerning his and his lawyer’s absence from the hearing of 23 December 2004 or the alleged falsification of the record of the above-mentioned hearing. 30. The hearing of 6 January 2005 before the Court of Appeal was held in the absence of the applicant, but in the presence of the prosecutor and the applicant’s two lawyers. 31. On 12 May 2005 the prosecutor in charge of the case filed the indictment with the Assize Court. It appears from the indictment that the applicant had been charged with additional offences on 15 April 2005 and that in the meantime his period of detention had been extended by the Khatai District Court until 28 April 2005. The relevant part of the indictment reads as follows: “... on 28 September 2004 Ismayilov Novruz Binnat oglu was charged under Articles 178.2.2., 178.2.3, 178.3.2, 179.2.1, 179.2.2, 179.2.3, 179.3.2 and 313 of the Criminal Code of the Republic of Azerbaijan and the Khatai District Court ordered the application of the preventive measure of remand in custody in respect of him. On 15 April 2005 he was charged with new criminal offences under Articles 178.2.3, 178.3.2, 179.2, 179.2.2, 179.2.3, 179.3.2 and 213.4 of the Criminal Code of the Republic of Azerbaijan. His period of pre-trial detention was extended by the Khatai District Court’s decision until 28 April 2005 ...” 32. However, despite an explicit request by the Court that the Government submit all the judicial decisions concerning the applicant’s detention, no copy of the decision extending his detention until 28 April 2005, nor any other copy related to his detention until 31 January 2006, was submitted. 33. On 31 January 2006 the Assize Court convicted the applicant of fraud, embezzlement and tax evasion and sentenced him to nine years’ imprisonment.