CASE OF NAGIYEV v. AZERBAIJAN
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1980 and lives in Baku. 6. On 15 November 2007 there was a bomb explosion in Moscow. Criminal proceedings were instituted in connection with this explosion and on 13 December 2007 the applicant was charged with unlawful possession of explosive materials under Article 222.2 of the Criminal Code of the Russian Federation. 7. On 21 December 2007 the Preobrazhensky District Court, Moscow City, ordered the application of the preventive measure of remand in custody in respect of the applicant and issued an arrest warrant. 8. On 26 December 2007 the arrest warrant was sent to the Ministry of Internal Affairs (“the MIA”) of Azerbaijan. 9. It appears from a letter of 30 October 2008 signed by the head of the Criminal Investigation Department of the MIA that following the transfer of the arrest warrant to the Azerbaijani authorities the police contacted the applicant, who was in Azerbaijan, sometime in January 2008. The applicant came voluntarily to the MIA and submitted that he had no link with the explosion in question. The MIA established that the applicant was an Azerbaijani national and decided to transfer his statement to the relevant Russian authorities. At the request of the Russian authorities, on 31 January 2008 the applicant was again questioned at the MIA with the participation of two Russian police officers about his possible involvement in the explosion. Following a two-hour interrogation, no action was taken against the applicant and he left the premises of the Ministry. 10. On 30 June 2008 the applicant lodged a complaint with the Organised Crime Department (“the OCD”) of the MIA about an alleged misappropriation of his property by a certain E.H. and others. Dissatisfied with the progress in the case, the applicant subsequently lodged complaints with various State authorities about the failure of the OCD to investigate his complaint. 11. On 18 September 2008 the applicant was summoned to the OCD and on arrival there he was arrested. The applicant was not allowed to contact his family or a lawyer, and his arrest was not documented. 12. As the applicant’s family had no information about his whereabouts, on 21 September 2008 they lodged a criminal complaint with Khatai District Police Station No. 36 related to the applicant’s disappearance, and submitted a photograph of him to the police. 13. On 22 September 2008 the OCD informed the applicant’s family by telephone that the applicant had been arrested and detained in the temporary detention facility of the OCD. 14. On 24 September 2008 the applicant’s brother was allowed to visit him in the temporary detention facility of the OCD. However, the applicant’s family was not informed of the reasons for the applicant’s arrest and detention. 15. On 26 September 2008 the applicant’s family contacted a lawyer for the applicant’s defence and at around 10 a.m. on 27 September 2008 a contract was concluded between them. 16. At around 3 p.m. on 27 September 2008 the lawyer went to the OCD and tried to meet the applicant. However, the lawyer was informed that he could not meet the applicant without the authorisation of the investigator. The lawyer immediately sent telegrams to the MIA, the Prosecutor General’s Office and the Ombudsman complaining that he had been prevented from meeting the applicant. 17. At around 9 p.m. on 27 September 2008 the applicant was brought before a judge of the Narimanov District Court who ordered his detention on remand (see paragraph 22 below). His lawyer was not informed about the hearing; the applicant was represented by a State-appointed lawyer. 18. While detained in the temporary detention facility of the OCD, he was during the period from 18 September to 2 October 2008 forced to change his statement in the criminal case concerning the misappropriation of his property by E.H. and others. 19. As regards the criminal complaint lodged by his family (see paragraph 12 above), by letter of 2 October 2008 the head of Khatai District Police Station No. 36 informed the applicant’s family of the investigator’s refusal to institute criminal proceedings in connection with his disappearance. The relevant part of the decision reads as follows: “On 21 September 2008 citizen B. Nagiyev lodged a complaint with Khatai District Police Station No. 36, stating that his brother, Nagiyev Asif Najaf oglu [the applicant], born in 1980, left his home at around 1.15 p.m. on 19 September 2008 and has not returned. Citizen B. Nagiyev also made a statement confirming the content of his complaint. A report was prepared and transferred to Khatai District Police Station No. 36 in connection with the search for Asif Nagiyev [the applicant]. During the search, all the police stations in Baku were instructed and other measures were taken. During the search, non-official information was received indicating that Asif Nagiyev had been arrested by the OCD of the MIA because he was wanted in Russia. An enquiry in this regard was sent to the OCD, but no response has yet been received. The whereabouts of A. Nagiyev have not yet been clearly established. Taking into account that there is no evidence that a crime has been committed, institution of criminal proceedings in connection with this subject should be rejected.” 20. The applicant was arrested at around noon on 27 September 2008. The relevant part of the official record of the applicant’s arrest (cinayət törətmiş şəxsin tutulması barədə protokol) of 27 September 2008 reads as follows: “... At around noon on 27 September 2008, Nagiyev Asif Najaf oglu [the applicant], whose identity was established later, born on ... and in ... was arrested in the district of Narimanov in Baku and taken to the department. It was established during questioning there that on 21 December 2007 Nagiyev Asif Najaf oglu was charged under Article 222.2 (unlawful possession of explosive materials) of the Criminal Code of the Russian Federation by the Moscow City Prosecutor’s Office ... an arrest warrant was issued, and the application of the preventive measure of remand in custody was ordered ... Nagiyev Asif Najaf oglu was transferred to the temporary detention facility of the OCD ...” 21. It appears from the extracts from the logbook of the OCD’s temporary detention facility submitted to the Court by the Government that the applicant arrived at the detention facility at 4 p.m. on 27 September 2008 following a decision of a Narimanov District Court judge. 22. On 27 September 2008 a judge of the Narimanov District Court, relying on the Russian court’s detention order of 21 December 2007, ordered the application of the preventive measure of remand in custody in respect of the applicant for a period of two months. At the hearing the applicant was represented by a State-appointed lawyer. The judge relied on the provisions of the Code of Criminal Procedure (“the CCrP”) of the Republic of Azerbaijan relating to detention with a view to extradition when she ordered the applicant’s detention. The judge justified this measure as follows: “Taking into account the fact that Nagiyev Asif Najaf oglu committed a less serious criminal offence and, if released, would obstruct the objective functioning of the investigation by absconding from it, I consider it necessary to confirm the decision of 21 December 2007 of the Federal Court of Preobrazhensky District, Moscow City, to apply the preventive measure of remand in custody in respect of him for a period of two months. In fact, according to Article 495.1 of the CCrP of the Republic of Azerbaijan, upon receipt of a request for extradition of a person and a copy of a detention order in respect of him from the competent authority of a foreign State, the prosecuting authority of the Republic of Azerbaijan to which the request is addressed may, if necessary, take measures in compliance with the provisions of this Code to have the person arrested and detained before a decision on extradition is taken.” 23. Following a series of complaints to the various domestic authorities, on 8 October 2008 the applicant’s lawyer was provided with a copy of the record of the applicant’s arrest and the Narimanov District Court’s decision of 27 September 2008. 24. On an unspecified date the applicant appealed against the Narimanov District Court’s decision of 27 September 2008, claiming that his arrest and detention had been unlawful. In particular, he submitted that he had been unlawfully arrested on 18 September 2008 and that there were no criminal proceedings pending against him in Azerbaijan. He further argued that as he was an Azerbaijani national he could not be extradited to a foreign State, which followed from Article 53 of the Constitution of the Republic of Azerbaijan and Article 13 of the Criminal Code. He also submitted that his arrest and detention had not been carried out in accordance with domestic and international law, since no official request accompanied by the relevant documents for his detention and extradition was ever submitted by the Russian authorities. The applicant’s lawyer also submitted a request for restoration of the time-limits for lodging an appeal. In this connection, the lawyer stated that although at 10 a.m. on 27 September 2008 the applicant’s family had appointed him as a lawyer for the applicant’s defence, he had not been informed of the Narimanov District Court’s hearing, which was held at around 9 p.m. on 27 September 2008. He further noted that he had been provided with a copy of the detention order only on 8 October 2008. 25. On 3 November 2008 the Narimanov District Court granted the request for restoration of the time-limits for lodging an appeal and forwarded the applicant’s appeal to the appellate court for examination. 26. On 7 November 2008 the Baku Court of Appeal upheld the Narimanov District Court’s decision of 27 September 2008 without considering the applicant’s specific complaints. 27. On 27 November 2008 the Narimanov District Court granted the prosecutor’s request for the extension of the applicant’s detention for a period of two months, relying on Article 159 of the CCrP concerning the extension of detention periods pending criminal proceedings. In its decision, the court noted that as the applicant was an Azerbaijani national he could not be extradited to a foreign State, and for this reason the Azerbaijani Prosecutor General’s Office had requested the Russian Prosecutor General’s Office to transfer the applicant’s criminal case to the Azerbaijani authorities. The court thus justified the extension of the applicant’s detention period by the fact that more time was needed for the submission of relevant documents relating to the applicant’s case from the Russian Prosecutor General’s Office to the Azerbaijani authorities. The relevant part of the decision reads as follows: “As the extradition of Nagiyev Asif Najaf oglu to Russia is impossible because he is a citizen of the Republic of Azerbaijan, a request was sent to the Russian Prosecutor General’s Office for the criminal case to be transferred to the Azerbaijani Prosecutor General’s Office for the criminal inquiry to be continued in the Republic of Azerbaijan. Taking into account the fact that more time is needed for the transfer of the criminal case relating to the accused Nagiyev Asif Najaf oglu from the Russian Prosecutor General’s Office to the Azerbaijani Prosecutor General’s Office, but that the detention period of Nagiyev Asif Najaf oglu ends on 27 November 2008, I consider the request justified in order to ensure the criminal prosecution of Nagiyev Asif Najaf oglu in the future and to prevent him from absconding from the court proceedings. Taking into account the above-mentioned matters and relying on Articles 159, 448 and 454 of the CCrP, I decide that the detention period of Nagiyev Asif Najaf oglu born on ... and in ... must be extended for a period of two months, until 27 January 2009.” 28. The applicant appealed against this decision, claiming that the extension of his detention was unlawful. He noted in particular that although the court had relied on Article 159 of the CCrP concerning the extension of detention periods pending criminal proceedings when it ordered the extension of his detention, there were no criminal proceedings pending against him in Azerbaijan, and therefore his detention could not be extended on this basis. He also submitted that the court had failed to justify the extension of his detention, and that his continued detention was in breach of the relevant international conventions. The applicant further reiterated the complaint concerning his unlawful detention from 18 to 27 September 2008 in the OCD, noting that the main reason for his detention was his complaint concerning misappropriation of his property by E.H. and others. In this connection he disputed the content of the official record of his arrest, stating that his family could not possibly have known about his arrest at 10 a.m. on 27 September 2008 and concluded a contract with his lawyer for his defence, if he had been arrested at noon on 27 September 2008 as indicated in the official record. 29. On 5 December 2008 the Baku Court of Appeal dismissed the applicant’s appeal. The appellate court made no mention of the applicant’s particular complaints. 30. On 12 December 2008 the applicant lodged a request with the Narimanov District Court, asking the court to replace his remand in custody with the preventive measure of house arrest. He claimed, in particular, that his detention had not been justified and that there was no reason for his continued detention. In support of his request, the applicant pointed out that he had a permanent place of residence and that there was no risk of his absconding from or obstructing the investigation. 31. On 19 December 2008 the Narimanov District Court dismissed the request. 32. On 27 January 2009 the Narimanov District Court extended the applicant’s detention for a period of one month, relying on Article 159 of the CCrP concerning the extension of detention periods pending criminal proceedings. As to the justification for the extension of the applicant’s detention, the court relied on an almost identical wording as that of the court’s decision of 27 November 2008. 33. On 29 January 2009 the applicant appealed against this decision, reiterating his previous complaints. He noted in this regard that the domestic courts had ignored his complaint concerning his unlawful detention in the temporary detention facility of the OCD from 18 to 27 September 2008. He further stated that although the Russian authorities had never submitted any extradition request or a request for institution of criminal proceedings against him in Azerbaijan, he had been detained in breach of the domestic and international law. In particular, he referred to Article 497.1 of the CCrP, which provides that a person arrested with a view to extradition must be released if no official request for his extradition is received by the Azerbaijani prosecuting authority within forty-eight hours of his arrest. 34. On 2 February 2009 the Baku Court of Appeal upheld the first-instance court’s decision. The appellate court made no mention of the applicant’s specific complaints. 35. On 27 February 2009 the Narimanov District Court again extended the applicant’s detention for a period of one month. The court’s decision was almost identical in its wording to the decisions of 27 November 2008 and 27 January 2009. 36. On 2 March 2009 the applicant appealed against this decision. He reiterated that the domestic courts had ignored his complaint concerning his unlawful detention in the temporary detention facility of the OCD from 18 to 27 September 2008. He further stated that it was not legitimate for the domestic courts to order the extension of his detention on the ground that more time was needed for the transfer of relevant documents from the Russian authorities to their Azerbaijani counterparts. 37. On 10 March 2009 the Baku Court of Appeal granted the applicant’s appeal and ordered his release. The appellate court quashed the Narimanov District Court’s decision of 27 February 2009, holding that the first-instance court had erred in extending the applicant’s continued detention. The relevant part of the decision reads as follows: “It appears from the OCD’s decision of 22 September 2008, concerning an operational-search measure and which was added to the case file, that a decision concerning an operational-search measure in respect of Nagiyev Asif Najaf oglu, who was wanted for a crime committed in Russia, was taken. The record of the applicant’s arrest, drawn up by ..., indicates that Nagiyev Asif Najaf oglu was arrested on 27 September 2008. In accordance with the requirements of Article 495.1 of the CCrP of the Republic of Azerbaijan, upon receipt of a request for extradition of a person and a copy of a detention order in respect of him from the competent authority of a foreign State, the prosecuting authority of the Republic of Azerbaijan to which the request is addressed may, if necessary, take measures in compliance with the provisions of this Code to have the person arrested and detained before the decision on extradition is taken ... In accordance with paragraph II of Article 53 of the Constitution of the Republic of Azerbaijan, a citizen of the Republic of Azerbaijan may under no circumstances be extradited to a foreign state. In accordance with Article 13 of the Criminal Code, a citizen of the Republic of Azerbaijan who has committed a crime on the territory of a foreign state shall not be extradited to that foreign state ... In accordance with the requirements of Article 75 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 13 January 2004, if a request for extradition, as provided for in Article 67 of the Convention, and accompanying documents were not transferred within forty days of the date of arrest of the person arrested, the person must be immediately released. It appears that A. Nagiyev has been in detention for five months and thirteen days, or one hundred and sixty-three days, and that during this period no additional material concerning him was sent from the Russian Federation to the Azerbaijani authorities ... Therefore, taking into account the above-mentioned findings, the panel of the court considers that the appeal of the lawyer must be granted and that the Narimanov District Court’s decision on extension of A. Nagiyev’s detention period must be quashed.”