Communicated on 7 December 2016

FIFTH SECTION

Application no 38239/16 Ilkin Bakir oglu RUSTAMZADE against Azerbaijan lodged on 20 June 2016

STATEMENT OF FACTS

The applicant, Mr Ilkin Rustamzade , is an Azerbaijani national, who was born in 1992 and is currently detained in a prison in Baku. He is represented before the Court by Mr N. Karimli , a lawyer practising in Azerbaijan.

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

The applicant is a well-known civil society activist. He is one of the founders of an association named “Free Youth”, a non-governmental organisation established in 2011. The applicant actively participated in the demonstrations held in Baku in January and February 2013 to protest against death of soldiers in the Azerbaijani Army.

In March 2013 criminal proceedings were instituted against some members of NIDA civic movement, who had actively participated in the organisation of the above-mentioned demonstrations, for illegal possession of weapons, mass disorder and illegal possession of narcotic substances. The applicant was questioned twice as a witness within the framework of those criminal proceedings.

On 1 March 2013 the applicant together with a group of his acquaintances went to the seaside park, in the city centre of Baku, where his acquaintances performed a “Harlem Shake” dance and a video-recording of their dance was carried out. According to the applicant, he did not dance and just observed those who were dancing. On an unspecified date the video recording was uploaded to the YouTube online video platform.

On 30 April 2013 the applicant was arrested by the police because of his participation in a gathering in front of the Azerbaijani State Oil Academy. On the same day the Nasimi District Court found the applicant guilty under Article 298.2 ( violation of the rule regulating the organisation and holding of gatherings) of the Code of Administrative Offences and sentenced him to fifteen days ’ administrative arrest.

Following his release, on 17 May 2013 the applicant was again arrested and charged under Articles 221.2.1 (hooliganism committed together with a group of persons) and 221.2.2 (hooliganism committed with resistance to a public official) of the Criminal Code. The description of the charges consisted of a single sentence which was more than half a page long. In particular, the applicant was accused of preparing a “Harlem Shake” dance at around 3 p.m. on 1 March 2013 in the seaside park by violating public order and moral. In that connection, it was noted that the dance consisted in doing immoral acts in respect of a bronze statute, as well as performing other chaotic hand and foot moves violating public order. The applicant was further accused of failing to comply with lawful requests of police officers by not stopping his actions. He was lastly accused of uploading that video recording to the YouTube online video platform.

On the same day the Nasimi District Court, relying on the official charge brought against the applicant and the prosecutor ’ s request to apply the preventive measure of remand in custody, ordered the applicant ’ s detention pending trial for a period of two months, calculating the period of detention from 17 May 2013. The court justified the applicant ’ s detention pending trial by citing the gravity of the charges, the risk of re-offending and absconding from the investigation.

On an unspecified date the applicant appealed against that decision, claiming that there had been no justification for the application of the preventive measure of detention pending trial. He also claimed that there was no evidence that he had committed any criminal offence. He further claimed that the court had ordered his detention pending trial without examining any evidence as even the video recording of the dance had not been available in the case file.

On 24 May 2013 the Baku Court of Appeal dismissed the appeal, finding that the first-instance court ’ s decision was justified.

On an unspecified date in June 2013 the applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention, claiming that there was no ground for his continued detention.

On 28 June 2013 the Nasimi District Court dismissed the request, finding that there was no need to change the preventive measure of detention pending trial.

On 4 July 2013 the Baku Court of Appeal upheld the first-instance court ’ s decision.

COMPLAINTS

The applicant complains under Article 5 of the Convention that his arrest and detention were unlawful because there was no reasonable suspicion that he had committed a criminal offence. He also complains that the domestic courts failed to justify his detention pending trial and that there were no relevant and sufficient reasons for his continued detention.

QUESTIONS

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant ’ s detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion? What material was examined by the courts to verify if such reasonable suspicion existed?

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 his continued detention?

3. Were the restrictions imposed by the State in the present case, purportedly pursuant to Article 5 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention?

4. The Government are requested to submit copies of all documents relating to the proceedings concerning the applicant ’ s pre-trial detention, including all documents and decisions relating to extensions (if any) of the applicant ’ s pre-trial detention which have taken place after the lodging of the present application.