FIRST SECTION

DECISION

Application no . 58904/08 Emil Beybala Oglu GAFAROV against Azerbaijan

The European Court of Human Rights (First Section), sitting on 2 December 2014 as a Chamber composed of:

Isabelle Berro-Lefèvre , President, Elisabeth Steiner , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Linos-Alexandre Sicilianos , Erik Møse , Dmitry Dedov , judges, and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 10 November 200 8 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

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 .

A. C ircumstances of the case

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. H e submitted that t he 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.

B. Relevant domestic law

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 act ion s or decisions of the prosecuting authorities before a cour t. Article 449 provides that a victim or his counsel may challenge act ion s 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 .

COMPLAINT

15. The applicant complained under Article 5 of the Convention that he had been unlawfully deprived of his liberty, as he had been detained in excess of the maximum forty ‑ eight-hour period permitted by domestic law prior to being brought before a judge.

THE LAW

16. The applicant complained under Article 5 of the Convention that he had been unlawfully deprived of his liberty, as he had been detained in excess of the maximum forty ‑ eight-hour period permitted by domestic law prior to being brought before a judge.

17. The Government submitted that the applicant had failed to exhaust domestic remedies, as he had not raised this complaint before the competent domestic authorities . In particular, the Government pointed out that on 15 September 2008 when the applicant had been brought before the judge who ordered his detention on remand, the applicant had failed to complain that he had been detained for longer than the maximum forty ‑ eight hours. Moreover, he had failed to appeal against the decision of 15 September 2008. The Government further submitted that the applicant had raised that complaint for the first time in his appeal in the context of the proceedings concerning the replacement of the detention on remand by house arrest.

18. T he applicant disputed the Government ’ s submissions . In particular, he stated that there had been no need to lodge a separate complaint about his excessive detention prior to being brought before a judge, because the judge who decided to apply the preventive measure should also have examined the lawfulness of the detention. In this connection, he relied on a decision of the Sumgayit City Court in which that court, having examined the question of the application of a preventive measure in respect of an arrested person at his first appearance before a judge, had acknowledged that the person ’ s rights had been violated because he had been detained for more than forty ‑ eight hours. The applicant further argued that the domestic courts should have examined the complaint he had raised within the context of the proceedings concerning the replacement of the detention on remand by house arrest. On 26 September 2008 the Sumgayit Court of Appeal had unlawfully ignored his complaint of excessive detention .

19 . The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey , 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996 ‑ IV, and Aksoy v. Turkey , 18 December 1996, §§ 51-52, Reports 1996-VI ).

20 . As regards the distribution of the burden of proof, i t is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one , available both in theory and in practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others , cited above, § 68, and Muradova v. Azerbaijan , no. 22684/05, § 84, 2 April 2009). The Court further notes that the rule of exhaustion of domestic remedies does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time ‑ limits laid down in domestic law (see Cardot v. France , 19 March 1991, § 34 , Series A no. 200 ) .

21 . Turning to the circumstances of the present case, the Court notes that it has already found in similar cases against Azerbaijan that raising a complaint of detention in excess of the maximum forty ‑ eight-hour period when the arrested person appeared for the first time before a judge constituted an effective remedy to be exhausted before lodging such a complaint with the Court (see Farhad Aliyev v. Azerbaijan , no. 37138/06 , § § 154-69 , 9 November 2010 , and Salayev v. Azerbaijan , no. 40900/05 , § § 34-48 , 9 November 2010 ) . The Court further observes that under Azerbaijani law the CCrP also entitles p arties to criminal proceedings to complain to a supervising court about procedural actions or decisions by the criminal prosecution authority , including those which have violated the rights of an arrested person (see paragraph 14 above).

22. The applicant did not argue that there was no effective domestic remedy in Azerbaijani law. On the contrary, he relied on a decision of the Sumgayit City Court in which the latter in examining the question of the application of a preventive measure in respect of an arrested person during his first appearance before a judge acknowledged that the person ’ s rights had been violated on account of detention in excess of the maximum forty ‑ eight-hour period.

23. The Court reiterates that the applicant appeared before a judge on 15 September 2008 for the first time after his arrest. Although the applicant alleged that his lawyer had complained that he had been detained for longer than the statutory maximum forty-eight -hour period , it appears from the undisputed record of the hearing that no such complaint was raised at the hearing of 15 September 2008, held in the presence of the applicant and his lawyer. Furthermore, the applicant did not appeal against the Sumgayit City Court ’ s decision of 15 September 2008.

24. The Court also observes that the applicant did not lodge a separate complaint with a court , under the procedure set forth in Chapter LII of the CCrP , complaining that he had been detained in excess of the maximum forty ‑ eight-hour period prior to being brought before a judge.

25. As to the applicant ’ s argument that he had raised a complaint concerning his excessive detention in the appeal that he lodged with the Sumgayit Court of Appeal on 19 September 2008, the Court observes that the applicant raised that complaint within the framework of the proceedings concerning the replacement of his detention on remand by house arrest. It is clear from the case file that the subject matter of those proceedings was not the applicant ’ s detention in excess of the maximum forty ‑ eight-hour period or the alleged violation of his rights while in detention, but the request to be placed under house arrest in lieu of being remanded in custody. In these circumstances the appellate court was not called upon to examine the applicant ’ s complaint concerning his detention in excess of the maximum forty ‑ eight-hour period, but only had to examine his request to be placed under house arrest.

26. The Court thus finds that the applicant failed to exhaust effective domestic remedies available under domestic law and that therefore th e application must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President