FIRST SECTION

Application no. 4358/09 Rafail MURADOV against Azerbaijan lodged on 6 January 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Rafail Muradov , is an Azerbaijani national who was born in 1984 and lives in Baku . He was represented befor e the Court by Mr Y. Khankishiyev , a lawyer practising in Azerbaijan .

A. The circumstances of the case

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

At around 9 p.m. on 11 February 2008 the applicant and two other people (M.M. and E.H.) were caught in the act of committing theft and arrested by officers of the Absheron District Police Office in the town of Khirdalan . They were held in police custody at the detention facility of the Absheron District Police Office.

According to the applicant, the record of his detention as a suspect ( tutma protokolu ) was only drawn up on 13 February 2008.

On 14 February 2008 the applicant was formally charged under Article 177.2.1 of the Criminal Code. At this time, the applicant waived his right to be represented by a lawyer and expressed the wish to defend himself.

On the same day, 14 February 2008, the applicant was taken to the Absheron District Court, which ordered his pre-trial detention for a period of two months, to be calculated from 13 February 2008.

During the investigation, it was determined that there had already been a criminal investigation instituted against one of the applicant ’ s alleged accomplices, M.M., in connection with the unrelated offence of desertion from his army unit. On 30 March 2008 the criminal case against the applicant, M.M. and E.H. was joined to the earlier criminal case against M.M. This joint criminal case was ultimately transferred to the Sumgayit City Military Prosecutor ’ s Office.

On 11 April 2008 the Absheron District Court extended the period of the applicant ’ s pre-trial detention by one month (until 13 May 2008).

On 23 April 2008 the relevant prosecutor extended the investigation period until 27 June 2008.

It appears that, on an unspecified date, the applicant requested to be represented by a lawyer. By an investigator ’ s decision of 6 May 2008 the applicant was provided with a State-appointed lawyer.

On the same day, 6 May 2008, following a request by the prosecution, the Sumgayit Military Court extended the applicant ’ s pre-trial detention by another two months (until 13 July 2008). The hearing was held in the absence of the applicant and his lawyer.

On 19 May 2008 the applicant ’ s lawyer lodged an application with the Sumgayit Military Court , requesting that the preventive measure of detention be substituted by the less restrictive measure of house arrest. Among other things, he complained that the extension order of 6 May 2008 had been taken in the absence of the applicant and himself, that the court had not considered the applicant ’ s personal circumstances, which made it unlikely that he would abscond, and that the pre-trial proceedings had been unreasonably delayed as the investigation in respect of the criminal offence allegedly committed by the applicant had already been completed, making his continued detention unjustified.

On 27 May 2008 the Sumgayit Military Court rejected this application, noting that the investigators were working on collecting new evidence and that there was a risk that, if released from detention and placed under house arrest, the applicant could hinder the collection of new evidence, abscond or commit another criminal offence.

The applicant ’ s lawyer appealed. Initially, the appeal was not admitted as having been lodged outside the relevant time-limit, but ultimately it was accepted for examination.

On 24 June 2008 the Sumgayit Court of Appeal upheld the Sumgayit Military Court ’ s decision of 27 May 2008.

By the end of June 2008, the investigation had been completed and the case was forwarded to the Sumgayit Military Court for trial.

At its preliminary hearing on 25 June 2008 the Sumgayit Military Court rejected the applicant ’ s request for release and authorised his continued detention pending trial.

By a judgment of 22 July 2008 the Sumgayit Military Court convicted the applicant as charged. Taking into account the fact that he had already spent more than five months in detention, the court sentenced the applicant to a fine of 500 Azerbaijani manats and ordered his immediate release.

COMPLAINTS

1. Relying on Article 5 of the Convention, t he applicant complains that, during the period from 11 to 13 February 2008, his detention was not “lawful”, as he was detained without any formal record to that effect, and that he was brought before a judge after the expiry of the maximum forty ‑ eight hour period allowed by law for holding a person in detention without a judicial authorisation . He also complains that his pre-trial detention was unreasonably long and that, in their relevant extension orders and the decisions rejecting his requests for release, the domestic courts did not offer any relevant and sufficient reasons to justify his continued detention.

2. Relying on Article 6 of the Convention, the applicant complains that, despite the fact that he was provided with a State-appointed lawyer, the Sumgayit District Court ’ s hearing of 6 May 2008 concerning the extension of his pre-trial detention was held in his and his lawyer ’ s absence. He also complains that the procedure for review of his continued detention was ineffective because the courts unlawfully delayed the examination of his request to substitute detention with house arrest.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies in connection with each of his complaints , as required by Article 35 § 1 of the Convention?

2. Has the applicant appealed against the Absheron District Court ’ s decisions of 14 February and 11 April 2008 and the Sumgayit Military Court ’ s decision of 6 May 2008? If so, the parties are requested to submit copies of these appeals or any other appeals, as well as copies of the relevant decisions of the appellate courts taken in connection with those appeals.

The parties are further requested to submit copies of (a) the record of the applicant ’ s detention as a suspect ( tutma protokolu ); (b) all procedural decisions by the prosecution authorities relating to the applicant ’ s criminal case (such as decisions on charging the applicant with a criminal offence, joinder of criminal cases, etc.); (c) the Absheron District Court ’ s decisions of 14 February and 11 April 2008; (d) the applicant ’ s appeal against the Sumgayit Military Court ’ s decision of 27 May 2008; (e) the Sumgayit Military Court ’ s judgment of 22 July 2008; and (f) any other judicial decisions which have not been previously submitted to the Court.

3 . During the period between 11 and 14 February 2008, w as the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, on which date and at what time was the applicant arrested, and at what time on 14 February 2008 was he brought before a judge of the Absheron District Court?

4. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

5. 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?