Communicated on 17 February 2014

FIRST SECTION

Application no. 36229/11 Ofeliya ISAYEVA against Azerbaijan lodged on 24 May 2011

STATEMENT OF FACTS

The applicant, Ms Ofeliya Isayeva , is an Azerbaijani national, who was born in 1957 and lives in Baku . She is represented before the Court by Mr A. I smayılov , a lawyer practising in Azerbaijan .

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

A. I nstitution of criminal proceedings against the applicant and her r emand in custody

On 7 April 2009 criminal proceedings were instituted under Article 178 (fraud) of the Criminal Code against the applicant.

On 20 August 2009 the criminal proceedings under Article 178 of the Criminal Code were terminated due to the impossibility to determine the applicant ’ s whereabouts.

According to the applicant, on 24 August 2009 she was invited to the Sabail District Police Station as a witness in connection with the above ‑ mentioned criminal proceedings. After her arrival at the police station she had a conversation with the investigator during approximately one hour. Following this, the applicant was taken by three police officers to a drug rehabilitation centre where it was established that the applicant was a drug consumer.

The applicant was then returned to the police station and she was subjected to a body search in the presence of two attesting witnesses and three police officers. During the search, narcotic substances were found on h er person.

At 10.10 p.m. on 24 August 2009 the investigator drew up a record of the applicant ’ s arrest ( tutma protokolu ). It indicated th at the applicant was arrested under Article 234.1 of the Criminal Code on suspicion of illegal possession of narcotic substances in an amount exceeding that necessary for personal use, without intention to sell .

On 26 August 2009 the prosecutor requested the judge to apply the preventive measure of remand in custody ( h ə bs qətimkan tədbiri ) in respect of the applicant. On the same day t he Sabail District Court , relying on the official charges brought against the applicant and the prosecutor ’ s request to apply the preventive measure of remand in custody, ordered the applicant ’ s detention for a period of two months . The judge substantiated the necessity of this measure by the gravity of the applicant ’ s alleged criminal acts and the possibility of h er absconding from and obstructing the investigation. The applicant did not appeal against the Sabail District Court ’ s decision.

B. Extension of the applicant ’ s detention and further developments

On 21 September 2009 the investigator in charge of the case decided to join the two criminal proceedings against the applicant under Articles 178 and 234 of the Criminal Code in the same criminal proceedings.

Following a request from the Sabail District Prosecutor for an extension of the period of the applicant ’ s detention on remand, o n 2 2 October 2009 the Sabail District Court extended the applicant ’ s remand in custody by one month, until 24 November 2009 . The judge su bstantiated the necessity of this extension by the possibility of h er absconding from and obstructing the investigation.

The applicant appealed against this decision alleging that there was no need for extension of her pre-trial detention and that during two last months no investigative steps had been taken by the investigator.

On 2 November 2009 the Baku Court of Appeal dismissed h er appeal, noting that the detention order was justified.

On 24 November 2009 the bill of indictment was sent to the Assize Court for trial .

On 10 December 2009 t he Assize Court hel d a preliminary hearing. At that hearing, the court decided, inter alia , that the preventive measure of remand in custody should be left “unchanged”.

On 25 May 2010 the Assize Court convicted the applicant of fraud and illegal possession of narcotic substances and sentenced her to ten years ’ imprisonment.

The applicant appealed against this judgment complaining of the violation of her defence rights during the investigation. She asked the appellate court to quash the Assize Court ’ s judgment and to remit the case to the first-instance court for a new examination.

On 15 July 2010 the Baku Court of Appeal held a preliminary hearing in which it decided to dismiss the applicant ’ s request. The applicant appealed against this decision.

On 1 September 2010 the Supreme Court granted the applicant ’ s appeal finding that her defence rights had been violated at the investigation stage of the proceedings and quashed the appellate court ’ s decision of 15 July 2010. In particular, the Supreme Court found that the investigator had failed to inform the applicant , in a language that she understands, of the accusations against her. On the same day the Supreme Court delivered a special ruling ( xüsusi qərardad ) informing the Ministry of Internal Affairs of the unlawful action of the investigator.

On 2 November 2010 the Baku Court of Appeal quashed the Assize Court ’ s judgment of 25 May 2010 and remitted the case to the trial court.

On 14 December 2010 the Assize Court held a preliminary hearing. At that hearing the court decided to remit the case for a new investigation to the prosecution authorities finding that the applicant ’ s defence rights had been violated during the investigation. The court also decided that the applicant ’ s remand in custody should be extended for a period of one month, until 14 January 2011. This decision was not subject to an appeal under the domestic law.

Relying on a request from the Sabail District Prosecutor for an extension of the period of the applicant ’ s detention on remand , on 11 January 2011 the Sabail District Court extended the applicant ’ s pre-trial detention until 29 January 2011. The judge substantiated this measure by the gravity and the circumstances of the applicant ’ s alleged criminal acts , as well as by the facts of the case.

On 19 January 2011 the Baku Court of Appeal upheld the first-instance court ’ s decision.

The applicant ’ s pre-trial detention period was subsequently extended by the Sabail District Court ’ s decision of 25 January 2011 for a period of one month. This decision was upheld by the Baku Court of Appeal on 4 February 2011.

On 23 February 2011 the Sabail District Court again decided to extend the applicant ’ s detention on remand until 15 March 2011. On 3 March 2011 the Baku Court of Appeal upheld the first-instance court ’ s extension order.

In the meantime, the applicant lodged a request asking for the replacement of her pre-trial detention by house arrest. On 10 March 20 11 the Sabail District Court dismissed the request and found that the preventive measure should be left “unchanged”. The court substantiated its decision by the gravity of the applicant ’ s alleged criminal acts , the possibility of h er absconding from and obstructing the investigation , as well as by the applicant ’ s personality . On 17 March 2011 the Baku Court of Appeal upheld the first-instance court ’ s decision.

On 10 March 2011 the Sabail District Court decided to extend the applicant ’ s detention on remand until 28 March 2011. On 17 March 2011 the Baku Court of Appeal upheld the first-instance court ’ s extension order.

On 28 March 2011 the Sabail District Court decided to extend the applicant ’ s detention on remand until 7 April 2011. On 5 April 2011 the Baku Court of Appeal upheld the first-instance court ’ s extension order.

On 9 April 2011 the Baku City Deputy Prosecutor filed the indictment with the Baku Assize Court .

On 4 May 2011 the Baku Assize Court held a preliminary hearing. At that hearing, the court decided, inter alia , that the preventive measure of remand in custody should be left “unchanged”.

COMPLAINTS

The applicant complain s under Article 5 § 1 of the Convention that her detention from 7 April 2011 to 4 May 2011 was unlawful, as it was not based on any court order.

The applicant also complains under A rticle 5 § 3 of the Convention that the domestic courts failed to justify the extension s of h er detention period.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention during the period between 7 April 2011 and 4 May 2011 in compliance with Article 5 § 1 of the Convention?

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 the applicant ’ s continued detention?