Communicated on 11 January 2016

FIFTH SECTION

Application no. 62775/14 Rauf MIRGADIROV against Azerbaijan and Turkey lodged on 11 September 2014

STATEMENT OF FACTS

The applicant, Mr Rauf Mirgadirov , is an Azerbaijani national, who was born in 1961 and lives in Baku. He is represented before the Court by Mr F. Agayev and Mr E. Suleymanov , lawyers practising in Azerbaijan.

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

A. Background

The applicant is a well-known journalist and political analyst. He was awarded on several occasions the prize of the best journalist of the year in Azerbaijan. The applicant was awarded the Gerd Bucerius Prize Free Press of Eastern Europe 2008 for his journalistic activity by the German ZEIT Foundation.

At the time of the events described below, the applicant was based in Ankara and was working as a correspondent for the Azerbaijani newspaper Zerkalo .

B. The applicant ’ s deportation from Turkey

On 9 April 2014 the applicant was invited to the Turkish Directorate General of Press and Information in Ankara where he was informed that his accreditation in Turkey was cancelled. The applicant was not provided with any written official document in this respect. He had fifteen days to leave Turkey following the cancellation of his accreditation.

On 18 April 2014 the applicant and his family took a bus in the direction of Georgia. Shortly after the bus left Ankara, it was stopped by the police and the applicant was arrested. The police informed the applicant that he would be deported from Turkey without giving further information. He was not provided with any document concerning his deportation.

Although the applicant requested to be represented by a lawyer, he was denied access to legal assistance. His detention was not documented.

On 19 April 2014 the police took the applicant to Ankara airport, where he was placed on a flight for Baku. He was under police control until the departure of the plane.

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

Following the arrival of the plane at Baku airport at 4.20 p.m. on 19 April 2014, the applicant was arrested by agents of the Azerbaijani Ministry of National Security.

At 5.15 p.m. on 19 April 2019 an investigator from the Serious Crimes Department of the Prosecutor General ’ s Office drew up an official record of the applicant ’ s arrest.

On 21 April 2014 the applicant was charged under Article 274 (high treason) of the Criminal Code. The investigator noted that there was sufficient evidence that the applicant had collaborated with the Armenian intelligence service since April 2008 by providing the latter with political, economic and military information constituting state secrets.

On the same day a judge of the Nasimi District Court, relying on the formal charges brought against the applicant and the prosecutor ’ s request to apply the preventive measure of remand in custody ( h ə bs qətimkan tədbiri ), remanded the applicant in custody for a period of three months. The judge substantiated the necessity of this measure by the gravity of the charges and the likelihood of the applicant absconding from and obstructing the investigation. It appears from the decision that the hearing before the Nasimi District Court was held at 3.15 p.m. in the presence of the applicant and his lawyer.

On 22 April 2014 the applicant appealed against this decision. H e complained, 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 25 April 2014 the Baku Court of Appeal dismissed the appeal, finding that the detention order was justified.

In the meantime, on 22 April 2014 the applicant lodged a complaint with the Nasimi District Court complaining about his alleged unlawful arrest. He claimed that his detention from 4.20 p.m. on 19 April to 5 p.m. on 21 April 2014 had been unlawful. He further complained that he had not been informed of the reasons for his arrest.

On 6 May 2014 the Nasimi District Court dismissed the complaint, finding that the applicant ’ s arrest had been lawful. The court held that a record of the applicant ’ s arrest was drawn up at 5.15 p.m. on 19 April 2014 and a judge ordered his pre-trial detention at 3.15 p.m. on 21 April 2014. Therefore, the applicant had not been detained in excess of the maximum forty-eight-hour period permitted by the domestic law prior to being brought before a judge.

On 16 May 2014 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 6 May 2014.

D. Extension of the applicant ’ s pre-trial detention and further developments

On 7 May 2014 the investigator in charge of the case decided to restrict temporarily the applicant ’ s rights during the investigation in order to protect the confidentiality of the investigation and to prevent the disclosure of the information about the investigation. In particular, he ordered restrictions on the applicant ’ s correspondence and contact other than with his lawyer, use of the telephone and receipt of any political newspaper or review.

On an unspecified date the applicant lodged a complaint against the investigator ’ s decision of 7 May 2014.

On 23 May 2014 a search was conducted at the applicant ’ s parents ’ flat in Baku.

On 27 May 2014 the Sabail District Court dismissed the applicant ’ s complaint, finding that the investigator ’ s decision was lawful and justified.

On 6 June 2014 the Baku Court of Appeal upheld the first-instance court ’ s decision.

Meanwhile, on 12 May 2014 the applicant lodged a request with the investigator asking him to ensure his right to benefit from notary service during his detention. In this connection, he noted that he intended to give a notarised power of attorney to a lawyer in order to defend his violated rights in Turkey.

On 19 May 2014 the investigator dismissed the request. He substantiated his decision by the fact that the delivery of a notarised power of attorney to a lawyer authorising him to act on behalf of the applicant in Turkey might lead to tampering with evidence.

On an unspecified date the applicant lodged a complaint against the investigator ’ s decision, claiming its unlawfulness.

On 9 June 2014 the Nasimi District Court found the investigator ’ s decision lawful and dismissed the complaint.

On 17 June 2014 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 9 June 2014.

On 15 July 2014 the Nasimi District Court extended the applicant ’ s pre ‑ trial detention for a period of four months, namely until 19 November 2014. As justification for the extension of the detention period, the court limited itself to refer to the relevant domestic law and court practice authorising a court to extend pre-trial detention period for a period of four months.

On 16 July 2014 the applicant appealed against this decision. He argued that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to substantiate the extension of his detention.

On 25 August 2014 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court ’ s decision of 15 July 2014.

On 20 November 2014 the applicant ’ s lawyer went to the detention centre where the applicant was detained. He asked the administration of the detention centre to release immediately the applicant. In particular, the lawyer noted that the latest order concerning the extension of the applicant ’ s pre-trial detention had expired on 19 November 2014 and, in the absence of any other court order, the applicant should be immediately released. The lawyer further asked the administration of the detention centre to meet the applicant. However, the lawyer was told that he could not meet the applicant because the latter was undergoing a medical examination. The applicant ’ s lawyer also sent telegrams to the Prosecutor General ’ s Office, the Ministry of National Security and the Ombudsman asking for the applicant ’ s immediate release.

On the same day in the afternoon, when the applicant ’ s lawyer was still in the detention centre waiting for a meeting with the applicant, the latter was taken to the Nasimi District Court which ordered the extension of his pre-trial detention until 19 April 2015. The court substantiated the necessity of this extension on the grounds of the complexity of the case and the fact that a number of investigative steps needed to be carried out and thus more time was needed to complete the investigation. The applicant ’ s lawyer was not informed of the hearing and the applicant was represented by a State-appointed lawyer before the Nasimi District Court.

On 22 November 2014 the applicant appealed against this decision, claiming that he had been unlawfully detained from 19 to 20 November 2014 without any court order. He also argued that the first-instance court had failed to justify the extension of his pre-trial detention.

On 28 November 2014 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 20 November 2014. The appellate court made no mention of the applicant ’ s complaint concerning the lawfulness of his detention from 19 to 20 November 2014.

In the meantime, on 21 November 2014 the applicant had lodged two separate complaints with the court. In his first complaint he asked the court to declare unlawful the failure of the detention centre ’ s administration to allow him to meet his lawyer on 20 November 2014. In his second complaint he asked the court to declare unlawful his detention from 19 to 20 November 2014 in the absence of any court order in this respect.

On 9 December 2014 the Sabail District Court dismissed the applicant ’ s complaints in two separate decisions, finding them unsubstantiated.

On 18 December 2014 the Baku Court of Appeal upheld the Sabail District Court ’ s decisions of 9 December 2014.

On 8 April 2015 the Nasimi District Court decided to extend the applicant ’ s pre-trial detention until 19 May 2015. The court substantiated the necessity of this extension on the grounds of the complexity of the case and the fact that a number of investigative steps needed to be carried out and thus more time was needed to complete the investigation.

On 16 April 2015 the applicant appealed against the decision. He claimed that there was no reasonable suspicion that he had committed a criminal offence and that the first-instance court had failed to justify the extension of his detention.

On 23 April 2015 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court ’ s decision of 8 April 2015.

On 6 May 2015 the Nasimi District Court ordered the extension of the applicant ’ s pre-trial detention for a period of four months, namely until 19 September 2015. The court justified the extension of the applicant ’ s detention by the necessity to carry out further investigative steps.

On 12 May 2015 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 6 May 2015.

E. Joint statement of 17 July 2014 by law-enforcement authorities concerning the criminal proceedings against the applicant

On 17 July 2014 a joint statement was made by the Prosecutor General ’ s Office and the Ministry of National Security. This joint statement officially informed the public of the progress of criminal proceedings against the applicant. It was noted in the joint statement that it had been established that the applicant had cooperated with the Armenian intelligence service since 2008 by providing the latter with the political, economic and military information constituting state secrets.

COMPLAINTS

A. Complaints against Azerbaijan

1. The applicant complains under Article 5 § 1 of the Convention that his arrest and detention were unlawful because there was no reasonable suspicion that he had committed a criminal offence.

2. He further complains under Article 5 § 1 of the Convention that he was unlawfully held in detention from 19 to 20 November 2014 without any court order.

3. The applicant complains under Article 5 § 3 of the Convention that the domestic courts failed to justify the application of the preventive measure of remand in custody in his respect and that there were no relevant and sufficient reasons for his continued pre-trial detention. [A1]

4. The applicant complains under Article 5 § 4 of the Convention that the domestic courts did not address his specific arguments in support of his release.

5. Relying on Article 6 of the Convention, the applicant complains that the hearing of 20 November 2014 before the Nasimi District Court concerning the extension of his pre-trial detention was held in the absence of his lawyer. In particular, he complains that his lawyer was not informed of the date and place of this hearing and tha t he was represented by a State ‑ appointed lawyer.

6 . The applicant complains under Article 6 § 2 of the Convention that the joint statement made by the Prosecutor General ’ s Office and the Ministry of National Security to the press on 17 July 2014 amounted to an infringement of his right to the presumption of innocence.

7 . Relying on Articles 8 and 10 of the Convention, t he applicant complains that the restrictions placed on his contacts with his family members and on his right to receive newspapers during the investigation amounted to a violation of his right to respect for family life and his freedom of expression.

8. Relying on Article 18 of the Convention in conjunction with Article 5 of the Convention, the applicant complains that his Convention rights were restricted for purposes other than those prescribed in the Convention. [A2]

B. Complaints against Turkey

1. The applicant complains under Article 5 § 1 that he was kept in unregistered detention from 18 to 19 April 2014.

2. Relying on Article 5 § 2, the applicant complains that he was not informed of the reasons for his detention.

3. He complains under Article 5 § 3 that he was not brought before a judge or any other authority authorised by law to decide on his detention.

4. The applicant further complains under Article 5 § 4 of the Convention that he was not given an opportunity to challenge the lawfulness of his detention.

5 . The applicant lastly alleges that the cancellation of his accreditation and his subsequent expulsion from Turkey amounted to a violation of Article 10 of the Convention.

QUESTIONS TO THE PARTIES

A. 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? In particular, was his detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion?

2. Was the applicant ’ s detention during the period from 19 to 20 November 2014 compatible with Article 5 § 1 of the Convention?

3 . 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?

4. 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?

5. Was the applicant ’ s chosen lawyer able to be present at the hearing on the extension of the applicant ’ s detention before the Nasimi District Court on 20 November 2014? Did his absence amount to a breach of Article 5 § 4 of the Convention?

6. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, did the joint statement made by the Prosecutor General ’ s Office and the Ministry of National Security to the press dated 17 July 2014 amount to an infringement of the applicant ’ s right to the presumption of innocence?

7. Has there been an interference with the applicant ’ s right to respect for his private and family life, or correspondence, within the meaning of Article 8 § 1 of the Convention on account of the restrictions placed on his rights by the investigator ’ s decision of 7 May 2014? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

8. 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 those provisions, contrary to Article 18 of the Convention?

9 . The parties are requested to submit copies of all documents (including the record of the applicant ’ s arrest of 19 April 2014, the applicant ’ s appeals against the domestic courts ’ decisions, the records of the questioning of the applicant, etc.) relating to the proceedings concerning the applicant ’ s arrest and pre-trial detention.

B. Questions to the Turkish Government and the applicant

1. Was the applicant deprived of his liberty within the meaning of Article 5 of the Convention? In particular, was the applicant placed under police control between 18 and 19 April 2014 as he alleged?

2. If so, did the applicant ’ s deprivation of liberty fall within any subparagraph of Article 5 § 1 of the Convention?

The Government are invited to comment in detail on the applicant ’ s allegations and to submit all documents relating to the applicant ’ s alleged detention, showing the dates on which the applicant was apprehended by the police officers and was deported to Azerbaijan.

3. Was the applicant informed promptly, and in a language which he understood of the reasons for his detention as required by Article 5 § 2 of the Convention?

The Government are invited to submit the relevant documents in support of their response.

4. Did the applicant ’ s detention comply with the requirements of Article 5 § 3?

5 . Did the applicant have at his disposal a remedy by which he could challenge the lawfulness of his deprivation of liberty, as required by Article 5 § 4 of the Convention? In this connection, did the domestic authorities reject his request for access to a lawyer as alleged by the applicant? If yes, does such restriction have a bearing on the exercise of the rights enshrined in Article 5 § 4?

6. Did the applicant ’ s removal from Turkey constitute expulsion or de facto extradition?

If the national authorities attempted to deport the applicant on the basis of a deportation order, was the applicant notified of this order? If so, the Government are invited to submit the documents demonstrating the notification, as well as a copy of the order.

7. Has there been an interference with the applicant ’ s freedom of expression within the meaning of Article 10 § 1 of the Convention, on account of the cancellation of his accreditation, his apprehension by police officers, administrative detention and removal from Turkey?

If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

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