Communicated on 30 May 2018

FIFTH SECTION

Application no. 39503/17 Afgan MUKHTARLI against Azerbaijan and Georgia lodged on 3 June 2017

STATEMENT OF FACTS

The applicant, Mr Afgan Mukhtarli , is an Azerbaijani national, who was born in 1974 and detained in Azerbaijan. He is represented before the Court by Mr N. Legashvili , Mr A. Chopikashvili , Mr E. Sadigov and Ms Z. Sadigova , lawyers practising in Tbilisi and Baku.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The applicant ’ s alleged abduction in Georgia and forcible transfer to Azerbaijan

The applicant is an investigative journalist and worked in Azerbaijan for various media outlets which were critical of the Government. In 2009 he was allegedly beaten by the police during the dispersal of a demonstration in Baku. In 2011 he was convicted for participation in another demonstration in the city.

In January 2015, the applicant together with his family moved to Georgia because of the harassment by the Azerbaijani authorities. During his stay in Georgia the applicant wrote various articles criticising the Government, in particular, relating to government corruption.

At about 7:30 p.m. on 29 May 2017 while the applicant was on his way to his apartment in Tbilisi he was stopped by unknown men who wore uniforms allegedly belonging to the Georgian criminal police, spoke Georgian language and presumably drove a silver Opel. The men forced the applicant into the car, handcuffed and started to beat him. According to the applicant, he was first taken to the Tbilisi airport and then to the Sagarejo district. During the rest of the journey, the applicant was blindfolded and could not see.

At some point later on, the abductors stopped the car and forced the applicant into another car. The radio in the car was playing an Azerbaijani song and the applicant realised that he was handed over to the Azerbaijanis across the State border. These men had been reporting every 5-7 minutes by phone to a person to whom they referred as “Mr General”.

At about 10.40 p.m. on the same day they arrived to unknown destination and the applicant was taken to a room where his blindfold was removed. He saw signs of the Azerbaijani State Border Service and realised that he was detained in the military unit of the Service in the Balakan district. The servicemen told the applicant that he had illegally crossed the border and that they had found 10,000 euros in cash in his pocket. The servicemen had also searched and seized his mobile phone. According to the applicant, the money found did not belong to him. He had in his pocket 1 Georgian lari , 25 tetri coins, bank card as well as a transport card. He also did not have his passport on him which was left in Georgia.

B. Institution of criminal proceedings against the applicant and his remand in custody

At about 8.50 p.m. on 30 May 2017 the applicant was brought to the Khatai District Police Office in Baku where he was detained as a suspect and forced to sign a document acknowledging that he did not have any injuries and complaints. According to the decision issued on the same day concerning the applicant ’ s arrest as a suspect ( Ş übhəli şəxsin tutulması haqqında qərar ) , the applicant was accused of illegally crossing the state border from the Georgian territory and smuggling 10,000 euros. He was charged under Articles 206.1 (smuggling) and 318.1 (illegal crossing of the state border) of the Criminal Code.

On 31 May 2017 the applicant was indicted as an accused in the criminal proceedings ( Təqsirləndirilən şəxs qısmində cəlb etmə haqqında qərar ). The applicant was additionally charged under Article 315.2 (resistance to or violence against a public official) of the Criminal Code on account of his having used violence during his arrest against a serviceman and inflicting minor harm to the latter ’ s health.

On the same date the applicant was brought before the Sabail District Court to decide on a preventive measure pending trial. The prosecutor in charge requested the court to apply the preventive measure of remand in custody. The applicant disagreed and complained to the court about his abduction in Georgia and illegal transfer to Azerbaijan and that the evidence found on him was planted by the authorities. The court dismissed the applicant ’ s complaints and relying on the official charges against the applicant ordered his pre-trial detention for a period of three months.

On 2 June 2017 the applicant appealed, reiterating his complaints. He stated, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for the application of the preventive measure of remand in custody.

On 6 June 2017 the Baku Court of Appeal dismissed the applicant ’ s appeal.

On 12 June 2017 the applicant applied to the Nasimi District Court, requesting the substitution of remand with either house arrest or release on bail.

On 20 June 2017 the Nasimi Dsitrict Court dismissed the applicant ’ s request. The decision was upheld on appeal on 29 June 2017.

C. Proceedings concerning the unlawfulness of the applicant ’ s arrest and initial detention

On 31 May 2017 the applicant complained to the Sabail District Court about the unlawfulness of his arrest and detention from the moment of his actual apprehension on 29 May 2017 until the moment when he was detained on remand pursuant to the Sabail District Court ’ s order of 31 May 2017.

On 16 June 2017 the Sabail District Court dismissed the applicant ’ s complaint. The decision was upheld on appeal on 23 June 2017.

D. Proceedings concerning the unlawfulness of the applicant ’ s search

On 5 July 2017 the applicant brought proceedings complaining about the unlawfulness of his personal search and search and seizure of digital contents of his mobile phone.

On 6 July 2017 the Nasimi District Court rejected the applicant ’ s complaint without examination on the merits. The applicant lodged an appeal. There is no information about the outcome of the proceedings.

E. Criminal investigation into the applicant ’ s abduction and ill ‑ treatment in Georgia

On 30 May 2017 the applicant ’ s wife informed the police about her husband ’ s disappearance. On the same date a lawyer acting on her behalf wrote a letter to the police requesting to establish the whereabouts of the first applicant. The next day he additionally informed the police that the applicant had apparently been abducted and transferred to Azerbaijan, and that he had been beaten. The lawyer inquired whether an investigation had already been initiated and if so, whether the alleged suspects had been identified. No reply followed. However, as it appears from the case file, on an unidentified date criminal proceedings were initiated into the circumstances of the applicant ’ s disappearance under Article 143 of the Criminal Code (unlawful deprivation of liberty).

By a letter of 1 June 2017 the lawyer provided the police with additional details concerning the applicant ’ s apparent abduction. He requested the relevant authorities to grant him access to the investigation file. He also requested the authorities to seize CCTV footage from several cameras installed on the street where the applicant had last been seen and to question the applicant ’ s wife. The letter was left unanswered.

On 5 June 2017 the applicant ’ s lawyer requested the Chief Prosecutor of Georgia to withdraw the case from the district police department due to the alleged involvement of police officers in the applicant ’ s abduction and entrust the investigation to the Prosecutor ’ s office.

In the absence of a reply, on 9 June 2017 the lawyer reiterated his request with the Chief Prosecutor of Georgia for the case to be investigated by the prosecutor ’ s office. In support he submitted an extract of a radio interview of one of the members of the Parliament of Azerbaijan. In that interview the latter stated that the arrest of the applicant was the result of joint efforts and steps undertaken by the Georgian and Azerbaijani special services.

In the meantime, on 7 June 2017 the lawyer requested the district prosecutor to grant the applicant and his wife victim status in the proceedings. He also requested an access to the case file. The request remained unanswered.

On 9 June 2017 the lawyer complained to the Tbilisi prosecutor about inactions of the district prosecutor. He reiterated his request concerning the access to the case file and the grant of victim status. His letter was forwarded on 14 June 2014 to the district prosecutor ’ s office, but no reply followed.

It appears that on 13 June 2017 the lawyer was granted access to the case file. The file contained testimonies of about 200 witnesses and incomplete CCTV video recordings. On the same date he filed an application with the Tbilisi City Court. He requested that the court recognise as unlawful the tacit refusal of the prosecutor ’ s office to grant the applicant and his wife victim status and rule on granting such status. The application was dismissed by the Tbilisi City Court on 28 June 2017. The court concluded that the request was unsubstantiated, and that in any event it had no jurisdiction to entertain it. No appeal lay against the court decision.

Subsequently, the applicant ’ s lawyer filed various requests with the responsible investigator, asking for concrete investigative actions to be taken. All the requests were apparently left unanswered.

COMPLAINTS

A. Complaints against Georgia

The applicant complains about his abduction and ill-treatment in Georgia and forcible transfer to Azerbaijan. The applicant also complains that no effective investigation into the matter has been conducted by the authorities. He invokes Articles 1, 3, 5, 6, 8 and 13 of the Convention, Article 2 of Protocol No. 4 to the Convention, Article 1 of Protocol No. 7 and Article 1 of Protocol No. 12.

B. Complaints against Azerbaijan

The applicant complains that his arrest and detention were unlawful and unjustified, that there was no reasonable suspicion that he had committed a criminal offence and that the domestic courts failed to carry out an effective judicial review of his detention and to justify it by relevant and sufficient reasons. He invokes Articles 1, 5 and 6 of the Convention.

The applicant complains under Article 8 of the Convention about the unlawfulness of the search of his person and his mobile phone.

C. Complaints against Azerbaijan and Georgia

The applicant complains under Articles 10, 14 and 18 of the Convention that his abduction in Georgia and his subsequent arrest in Azerbaijan on the basis of false grounds were intended to silence and punish him for his journalistic activities.

QUESTIONS TO THE PARTIES

A. Questions to the Georgian Government and the applicant

1. Was the applicant deprived of his liberty, within the meaning of Article 5 § 1 of the Convention? In particular, did the applicant leave Georgia against his own will on 29 May 2017? If so, were the Georgian authorities responsible under the Convention on account of the passive or active involvement of their agents in the applicant ’ s forcible transfer to Azerbaijan (see Savriddin Dzhurayev v. Russia , no. 71386/10 , §§ 197-204, ECHR 2013 (extracts)? If such deprivation of liberty took place, was it in compliance with the guarantees of Article 5 the Convention?

2. Was the applicant subjected to ill-treatment contrary to Article 3 of the Convention in the context of his alleged forcible transfer from Georgia to Azerbaijan? If so, having regard to the procedural protection from torture, inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was there an effective investigation into the alleged ill-treatment?

3. Has there been an interference with the applicant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention on account of the applicant ’ s alleged forcible transfer to Azerbaijan? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

4. Was the applicant ’ s alleged forcible transfer to Azerbaijan in compliance with the requirements of paragraphs 1 and 2 of Article 1 of Protocol No. 7?

5. Has there been a violation of the applicant ’ s right to liberty of movement, contrary to Article 2 of Protocol No. 4?

6. Has the applicant had at his disposal effective domestic remedies in relation to the alleged violations of his Convention rights on account of his alleged abduction and ill-treatment in Georgia, as required by Article 13 of the Convention?

In support of their answers the Government are requested to provide a copy of the investigation file into the applicant ’ s alleged abduction and ill ‑ treatment and copies of all other relevant materials, including the photo and video evidence available in the file.

B. Questions to the Azerbaijani Government and the applicant

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? Was his deprivation of liberty from the moment of his factual apprehension until the moment of his detention on remand compatible with the guarantees of Article 5 § 1 of the Convention? Was his detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion?

2. Did the domestic courts give sufficient and relevant reasons for the applicant ’ s detention for the purposes of Article 5 § 3 of the Convention? Did they consider alternative measures to their continued detention?

3. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?

4. Was there an interference with the applicant ’ s right to respect for his private and family life, home or correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? In particular, were the searches of the applicant ’ s person and mobile phone circumscribed by the safeguards against abuse?

In support of their answers the Government are requested to provide a detailed account of the circumstances of the applicant ’ s arrest and copies of all the relevant documents and materials, including photo and video evidence available in the file.

C. Questions to the Azerbaijani and Georgian Governments and the applicant

1. Was the applicant deprived of his liberty for a purpose other than those mentioned in Article 5 of the Convention, contrary to Article 18 of the Convention?

2. Has there been an interference with the applicant ’ s freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 of the Convention?