FIRST SECTION

Application no. 15172/13 Ilgar MAMMADOV against Azerbaijan lodged on 25 February 2013

STATEMENT OF FACTS

The applicant, Mr Ilgar Mammadov , is an Azerbaijani national, who was born in 1970 and lives in Baku . He is represented before the Court by Mr F. AÄŸayev , a lawyer practising in Azerbaijan .

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

The applicant has been involved in various political organisations and local and international non-governmental organisations for a number of years. In 2008 he became one of the founders of the Republican Alternative Civic Movement (“REAL”) and in 2012 was elected its chairman. He is the Director of the Baku School of Political Studies, which is part of the network of schools of political studies affiliated with the Council of Europe. He has held this position for several years. Prior to the events described below, the applicant was considering standing as a candidate in the upcoming presidential election of November 2013.

A. The Ismayilli events of January 2013

On 23 January 2013 rioting broke out in the town of Ismayilli , located to the northwest of Baku . According to media reports quoting local residents, the rioting was sparked by an incident involving V.A., son of the Minister of Labour and nephew of the Head of the Ismayilli District Executive Authority (“IDEA”). It was claimed that after getting into a car accident, V.A. insulted and physically assaulted passengers of the other car, who were local residents. Having heard of this incident, hundreds (perhaps thousands) of local residents took to the streets and destroyed a number of commercial establishments (including a hotel named Chirag ) and other property in Ismayilli thought to be owned by V.A. ’ s family.

On 24 January 2013 the Ministry of Internal Affairs and the Prosecutor General ’ s Office issued a joint press statement, placing the blame for the rioting on E.S., a hotel manager, and his relative E.M., who had allegedly been drunk and who, it was claimed, had committed acts of hooliganism by damaging local residents ’ property and causing people to riot.

Meanwhile, the Head of IDEA, V.A. ’ s uncle, publicly denied that the Chirag Hotel belonged to his family.

B. The applicant ’ s role in the Ismayilli events

On 24 January 2013 the applicant travelled to Ismayilli to get a first-hand account of the events. On 25 January 2013 he described his impressions from this trip on his blog, noting that there were more than 500 police officers gathered around the IDEA office. He expressed his belief that the underlying reason for the rioting was the tension caused by corruption and abuse of power by the region ’ s public officials, and opined that the popular discontent was just and that the responsibility for the situation lay on the shoulders of the President. He called on the Government to take political action to rectify this political problem.

On 28 January 2013 the applicant posted more information on his blog concerning the events, citing the official websites of the Ministry of Culture and Tourism and the Ministry of Taxes and publishing screenshots of those sites. In particular, he noted that, according to those sources and to information posted on V.A. ’ s Facebook account, the Chirag Hotel was actually owned by V.A. This directly contradicted the earlier denial by the Head of IDEA. The information cited by the applicant was removed from the aforementioned Government websites and V.A. ’ s Facebook page within one hour of the applicant publishing his blog entry. However, the blog entry itself was extensively quoted in the media.

On 29 January 2013 the Prosecutor General ’ s Office and the Ministry of Internal Affairs issued a new joint press statement concerning the events in Ismayilli. According to this statement, on 24 January 2013 the applicant and Mr Tofiq Yaqublu , the deputy chairman of the Musavat Party, visited Ismayilli and made appeals to local residents aimed at disrupting the social and political order, such as calls for resistance to the police, not to obey officials and to block roads. It further stated: “[t]heir illegal actions calculated to inflame the situation in the country will be fully and thoroughly investigated and subjected to a legal assessment.”

C. The applicant ’ s arrest and detention

On the same date, 29 January 2013, the applicant received a phone call from the Serious Crimes Department of the Prosecutor General ’ s Office and was orally invited to come to the department for questioning as a witness. Although this did not constitute a formal summons, the applicant went to the Prosecutor General ’ s Office and, after the questioning ended, left and returned home.

In the evening of 3 February 2013 the applicant received another phone call and was asked to come in for further questioning.

In the morning of 4 February 2013 the applicant voluntarily appeared at the Prosecutor General ’ s Office. The questioning ended at 11:10 a.m., but the applicant was not allowed to leave the building. From 12:50 p.m. to 1:10 p.m. he was questioned again and was again not allowed to leave after the questioning ended. At 3:25 p.m., following the arrival of his defence lawyer, the applicant was charged with criminal offences under Articles 233 (organising or actively participating in actions causing a breach of public order) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Criminal Code. Following this, he was again questioned, this time as an accused.

At around 6 p.m. the applicant was taken to the Nasimi District Court. At this time both the Head of the Serious Crimes Department and the Deputy Prosecutor General lodged applications with the Nasimi District Court asking it to order the applicant ’ s remand in custody.

The court hearing commenced at around 7 p.m. in the presence of the applicant, his lawyers, a member of the investigation team, and one of the prosecutors working in the Serious Crimes Department of the Prosecutor General ’ s Office. The prosecution did not submit the case file or the records of the applicant ’ s questioning to the court; accordingly, this material was not reviewed by the court before or during the hearing.

By a decision of 4 February 2013, the Nasimi District Court ordered the applicant ’ s remand in custody for a period of two months. It noted that his detention was necessary in view of the gravity of the criminal offences he was charged with and the risk that he would abscond from the investigation or disrupt the investigation by illegally influencing other people involved in the criminal proceedings.

On 5 February 2013 the applicant lodged a complaint with the Nasimi District Court, claiming that he had been unlawfully deprived of his liberty during the period from 11:10 a.m. to 7 p.m. on 4 February 2013. This complaint was rejected on 22 February 2013.

On 6 February 2013 the applicant lodged an appeal against the detention order of 4 February 2013. He complained that, although the text of the detention order stated that the court had reviewed (among other things) “preliminary evidence” collected by the prosecution, no evidence or any other information giving rise to a reasonable suspicion that the applicant had committed a criminal offence had been presented by the prosecution to the first-instance court, and that the court had issued the order solely on the basis of the decision charging the applicant with the criminal offences and the prosecution ’ s request to order his remand in custody, without independently verifying whether there was a reasonable suspicion against him. He further complained that the court had not provided relevant and sufficient reasons to justify his detention by finding that he might abscond from the investigation or attempt to obstruct the proceedings.

On the same date the applicant submitted to the Nasimi District Court observations on the minutes of that court ’ s hearing of 4 February 2013, to be included in the case file. The observations mainly concerned the public prosecutor ’ s inability or refusal to answer the defence ’ s questions posed during the oral hearing concerning the prosecution ’ s failure to produce any evidence on which its suspicions against the applicant were based or to identify the specific circumstances which had led the prosecution to believe that the applicant, if released, would abscond or obstruct the proceedings.

The Baku Court of Appeal ’ s hearing was scheduled to be held on 8 February 2013. The hearing was delayed for several hours, owing to the Nasimi District Court ’ s failure to examine the applicant ’ s observations on the minutes of the hearing and to include them in the documents related to the applicant ’ s pre-trial detention which were forwarded to the Baku Court of Appeal. During the delay, the Nasimi District Court took a decision refusing to incorporate the applicant ’ s observations into the minutes of the hearing.

On 8 February 2013 the Baku Court of Appeal rejected the applicant ’ s appeal and upheld the Nasimi District Court ’ s detention order of 4 February 2013. According to the applicant, as at the first-instance hearing, the prosecution ’ s case materials were not made available to the court at the appellate hearing.

COMPLAINTS

1. The applicant complains under Article 5 §§ 1 and 2 of the Convention that he was unlawfully and arbitrarily deprived of his liberty during the period from 11:10 a.m. to 7 p.m. on 4 February 2013, and that he was not informed of the reasons for his arrest during that time period.

2. The applicant complains under Article 5 §§ 1 (c) and 3 of the Convention that he was detained despite the absence of a “reasonable suspicion” that he had committed a criminal offence. He further complains that, upon ordering his pre-trial detention, the domestic court failed to verify whether such “reasonable suspicion” existed, breached a number of domestic procedural rules, and failed to provide relevant and sufficient reasons justifying the necessity for his detention pending trial.

3. The applicant complains under Article 5 § 4 of the Convention that the Baku Court of Appeal failed to correct the mistakes committed by the first-instance court and did not properly assess the arguments stated in the appeal.

4. The applicant complains under Article 6 § 2 of the Convention that the joint press statement of the Prosecutor General ’ s Office and the Ministry of Internal Affairs made on 29 January 2013 was in breach of his right to the presumption of innocence.

5. Relying on Articles 13 and 14 of the Convention in conjunction with his complaints under Articles 5 and 6 of the Convention, the applicant complains that there were no effective remedies against the alleged violations and that he was discriminated against on political grounds.

6. Relying on Article 18 of the Convention, the applicant complains that his Convention rights were restricted for purposes other than those prescribed in the Convention: in particular, the restrictions were intended to “remove” him as a critic of the Government and as a potentially serious opponent in the upcoming presidential election, as well as to discourage others from criticising the Government.

QUESTIONS TO THE PARTIES

1. During the period between 11:10 a.m. and 7 p.m. on 4 February 2013, was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? The parties are requested to submit copies of all documents concerning the applicant ’ s questioning and other procedural steps taken on that day.

2. Was the applicant promptly informed of the reasons for his arrest and of any charges against him, as required by Article 5 § 2 of the Convention?

3. Did the deprivation of the applicant ’ s liberty by means of the imposition of a pre-trial detention order comply with the requirements of Article 5 §§ 1 (c) and 3 of the Convention? In particular, was he detained “on reasonable suspicion of having committed an offence”? What material was examined by the courts to verify if such reasonable suspicion existed? Were the requirements of Article 5 § 3 respected by the domestic courts when ordering the applicant ’ s remand in custody?

4. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention?

5. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? The parties are requested to submit full original texts of the joint press statements of the Prosecutor General ’ s Office and the Ministry of Internal Affairs of 24 and 29 January 2013.

6. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?

7. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the grounds of his political opinions, contrary to Article 14 of the Convention read in conjunction with the other Articles relied on by the applicant?

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 that provision, contrary to Article 18 of the Convention?