Lexploria

Information Note on the Court’s case-law 242

July 2020

Yunusova and Yunusov v. Azerbaijan (no. 2) - 68817/14

Judgment 16.7.2020 [Section V]

Article 8

Article 8-1

Respect for private life

Unjustified intrusion of a male police officer into the toilet resulting in a female applicant being exposed to him in a state of undress: violation

Article 18

Restrictions for unauthorised purposes

Detention of human-rights de fenders for the purpose of silencing and punishing them for their NGO activities: violation

Facts – The first applicant was a well-known Azerbaijani human-rights defender and civil-society activist, and the director of an association named the “Institute f or Peace and Democracy” and the second applicant, her husband, was a researcher and the head of department in the association. In 2005 the first applicant launched a joint project with a non-governmental organisation based in Armenia to focus on peace and reconciliation between the two countries.

On 25 April 2014 the applicants’ bank accounts were frozen within the framework of a criminal case against a third party. On the evening of 28 April 2014, the State Border Service at the airport did not allow the a pplicants to board a flight. Their luggage and handbags were searched and their passports and various documents seized. The applicants were kept at the airport from 10.30 p.m. on 28 April 2014 until 3.40 a.m. on 29 April 2014 and then taken to their home a ddress. Their flat and the association’s office were searched.

In July 2014 the first applicant was charged with large-scale fraud, illegal entrepreneurship, large-scale tax evasion, high treason and falsification of official documents and the second applicant with large-scale fraud and high treason. They were remande d in custody. In August 2015 they were convicted and sentenced to eight and a half and seven years’ imprisonment respectively. In December 2015 the applicants’ sentences were commuted to five years’ imprisonment suspended on probation.

Law – Article 8

(a) With regard to the intrusion on the first applicant while using the toilet and in a state of undress – The first applicant had complained that a male police officer had intruded whilst she was using the toilet, and observed her in a state of undress. She had submitted video recordings showing that the superior officer, to whom she had complained about that incident, had condoned the intrusion by indicating that the police officer in question had been protecting her from self-harm. There had therefore been prima facie evidence in favour of the first applicant’s account of events. There was nothing in the national courts’ decisions suggesting that they had been precluded from examining those video recordings or that the latter had been inadmissible on any ot her procedural grounds: the domestic courts’ decisions had been totally silent in this regard. The impugned intrusion had clearly amounted to an interference with the first applicant’s right to respect for her private life. The interference could not be re garded as “necessary in a democratic society”: there had been no emergency situation requiring the officer in question to take any imminent action in order to protect the first applicant; nor had she presented a risk of self-harm.

Conclusion : violation (u nanimously).

(b) With regard to the searches and seizures to which both applicants were subjected – The inspection of the applicants’ luggage and handbags, the searches of their home and the association’s office and seizure of various materials had been carried out in the context of criminal proceedings against a third party. However, it had not been e xplained why the domestic authorities had considered that carrying out the impugned searches and seizures would help to further that investigation and/or to protect national security. The mere fact that the third party in issue knew the applicants well and had cooperated with the association could not be considered, in the absence of any concrete purpose for those measures, as reasonable grounds for suspecting that a specific piece of evidence relevant for the investigation of that criminal case might have been found as a result.

Furthermore, several days prior to the applicants’ arrest at the airport, the authorities had instituted criminal proceedings in connection with alleged irregularities in the financial activities of a number of NGOs following which several notable NGO activists had been arrested, whose offices and premises had also been searched. Therefore, in the light of the specific context of the present case and the lack of any concrete reasons put forward either in the domestic or in the Conve ntion proceedings justifying the measures at stake, the Government had failed to convincingly demonstrate that the authorities had been guided by the legitimate aims relied on, that is to say the investigation of the criminal case against the third party o r the prevention of the crime of high treason and the protection of national security. Accordingly, the impugned interference had not pursued any of the legitimate aims enumerated in paragraph 2 of Article 8.

Conclusion : violation (unanimously).

Article 18 , taken together with Article 5 § 1: The applicants’ arrest and pre-trial detention had not been carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention, as the charges against them had not been based on a “reasonable suspicion”. The refore, no issue had arisen with respect to a plurality of purposes, as set out in Merabishvili v. Georgia [GC].

In this connection, in the case of Aliyev v. Azerbaijan , the Court had found that its judgments in a series of similar cases had reflected a pa ttern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of the criminal law in breach of Article 18. The present case had constituted a part of that patte rn since the combination of the relevant case-specific facts in the applicants’ case had been similar to that in the previous ones, where proof of an ulterior purpose had derived from a juxtaposition of the lack of suspicion with contextual factors.

Firstl y, as regards the applicants’ status, the first applicant had been a well-known human-rights defender and the second applicant had been closely involved in her activities.

Secondly, the applicants had been charged with serious criminal offences whose core constituent elements could not reasonably be found in the existing facts.

Thirdly, the applicants’ arrest had been accompanied by stigmatising statements made by public officials against the local NGOs and their leaders, including the applicants, who had b een labelled as “traitors”. Those statements had not simply concerned an alleged breach of domestic legislation on NGOs and grants, but rather had the purpose of delegitimising their work.

Fourthly, the general context of the increasingly harsh and restric tive legislative regulation of NGO activity and funding could not be simply ignored in a case like the present one, where such a situation had led to NGO activists being prosecuted for alleged failures to comply with legal formalities of an administrative nature while carrying out their work.

Fifthly, the applicant’s situation had to be viewed against the backdrop of arrests of other notable civil society activists and human-rights defenders who had been detained and charged to a large extent with similar c riminal offences.

Thus, the authorities’ actions had been driven by improper reasons and the actual purpose of the impugned measures had been to silence and to punish the applicants for their NGO activities. In the light of these considerations, the restri ction of the applicants’ liberty had been imposed for purposes other than those prescribed by Articles 5 § 1 (c).

Conclusion : violation (unanimously).

The Court also found, unanimously, violations of Article 5 § 1 on account of the applicants’ unlawful dep rivation of liberty at the airport, and their subsequent detention in the absence of a “reasonable suspicion” of their having committed a criminal offence; of Article 5 § 4 on account of the lack of adequate judicial review of the lawfulness of their deten tion; of Article 6 § 2 because the press statement of the national authorities had contained declaration of their guilt; of Article 1 of Protocol No. 1 on account of the unlawful freezing of their bank accounts, of Article 13 in conjunction with Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 on account of the inability to challenge the seizure of their passports and the freezing of their bank accounts before the domestic courts; and of Article 34 on account of the impediments to communication b etween the applicants and their representative, whose licence to practise law had been suspended.

Article 41: EUR 20,000 in respect of both pecuniary and non-pecuniary damage.

(See also under Article 8: Buck v. Germany , 41604/98, 28 April 2005, Information Note 74 ; Ivashchenko v. Russia , 61064/10, 13 February 2018, Information Note 215 ; and under Article 18: Rasul Jafarov v. Azerbaijan , 69981/1 4, 17 March 2016, Information Note 194 ; Merabishvili v. Georgia [GC], 72508/13, 28 November 2017, Information Note 212 ; Aliyev v. Azerbaijan , 68762/14 and 71200/14, 20 September 2018, Information Note 221 )

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