Information Note on the Court’s case-law 237

February 2020

Ibrahimov and Mammadov v. Azerbaijan - 63571/16, 74143/16, 2883/17 et al.

Judgment 13.2.2020 [Section V]

Article 18

Restrictions for unauthorised purposes

Detention of opposition activists in order to punish them for painting anti-government graffiti on statue of former president: violation

Article 5

Article 5-1-c

Reasonable suspicion

Minimum sta ndard of “reasonableness” of suspicion not met in view of applicants’ status, sequence of events, investigations and authorities’ conduct: violation

Article 10

Article 10-1

Freedom of expression

Grossly arbitrary prosecution for drug-related crimes in retaliation for political expression: violation

Facts – Both applicants were members of NIDA, a youth organisation which actively participated in organising and conducting anti-government demonstrati ons, portrayed by authorities as “radically destructive”. One night in May 2016 the applicants, in order to express their opposition to the government, sprayed graffiti with anti-government slogans on the statue of the former president of Azerbaijan and af terwards disseminated photographs thereof on social networks.

The following afternoon, both applicants were taken to police premises. According to the domestic authorities:

i. Earlier that day, the police had received, in a separate and unrelated manner, operational information according to which unidentified persons named “Giyas” and “Bayram” (as the applicants) were involved in drug trafficking in Baku, carried drugs and stored them at their homes (the information did not contain any details capable of identifying those persons);

ii. In order to verify that information and identify the suspects, the police had decided to conduct operational search measures, as the sole means available to identify the aforesaid persons.

The investigative measures carried out into the applicants’ alleged involvement in drug trafficking consisted mainly of personal searches, searches of their flats and the seizure of narcotic substances allegedly discovered as a result of those searches. Af ter their police custody, criminal proceedings were opened against them and they were detained on remand.

Law

Article 5 § 1: Although the criminal proceedings against each of the applicants were not formally interrelated in any way and were based on separa te sets of facts, it is apparent from the documents in the case files that those proceedings followed the same pattern, as regards notably: i. the criminal charges and the description of the way in which the applicants had allegedly acquired and stored the drugs; ii. the investigative measures taken (in substance as well as in scope); iii. the timing of the relevant inquiries and the measures taken against the applicants.

In view of the following elements and the inferences which may be drawn therefrom – in particular, as regards the applicants’ status, the sequence of events, the manner in which the investigations were carried out and the authorities’ conduct –, the material put before the Court does not meet the minimum standard for the reasonableness of a suspicion required for an individual’s arrest.

(a) Operational information leading to the applicants’ arrest – Serious questions as to the credibility of this information and the measures carried out in this context arise seeing as: i. the applicants had no criminal history whatsoever prior to the events at stake; ii. the collection and receipt of the operational information in question (its source, etc.) remained unspecified; iii. most importantly, the fact that the authorities were able to identify the applicants as being the two allegedly suspected traffickers within a matter of hours without any specific measures having been taken (given, especially, the fact that the operational information had not specifically singled out the applicants in a manner c apable of identifying them, for example, by indicating their full name or other personal details).

(b) Investigative measures taken following the applicants’ arrest – The following shortcomings cast doubt on the reliability and accuracy of the evidence ob tained as a result of the searches carried out:

– Personal searches of the applicants – The absence of a personal search on the spot is all the more surprising as the alleged operational information upstream was that the two individuals mentioned therein were carrying illicit drugs.

Moreover, the applicants were subjected to inhuman and degrading treatment in police custody and made confessions while undergoing such treatment; this coincides with the time when they were searched by the police and narcotic substances were found, forming the evidence against them.

– Searches of the applicants’ flats – Whereas the applicants were not merely accused of possessing drugs but rather of being involved in drug trafficking, the only evidence allegedly found and seiz ed were the packets containing heroin. The police did not attempt to search for other potential evidence – such as cash, information concerning possible suppliers or buyers, or items relating to drug paraphernalia, including scales and packaging material.

Even assuming that those searches took place in the presence of attesting witnesses, such argument cannot be given decisive weight in the absence of any other evidence, such as video recordings. Moreover, the Committee for the Prevention of Torture has rep orted a number of consistent accounts when incriminating evidence was introduced into detained persons’ personal belongings before calling in witnesses for official searches and seizure.

Finally, an inconsistency can be discerned in that, whereas the searc hes of the applicants’ flats had taken place without the presence of defence lawyers, the relevant records state the contrary.

– Scope of the criminal investigations – The circumstances relating to the applicants’ alleged acquisition and selling of drugs , the alleged existence of organised criminal groups and the applicants’ alleged role therein were completely left aside by the investigating authorities. Besides, the applicants, who were members of an opposition-oriented movement, constantly complained t hat the drugs in question had been planted by the police in retaliation for their painting political slogans; however, at no stage during the proceedings did the domestic authorities endeavour to verify and investigate those complaints.

Conclusion : violati on (unanimously).

Article 18 in conjunction with Article 5: In the eye of the Court, it is clear that the actual purpose of the restriction of the applicants’ liberty was to punish them for painting graffiti on the statue of the former president of the cou ntry and expressing thereby political slogans against the government. That conclusion was reached in view of the following elements: i. the applicants’ status (members of an opposition-oriented organisation); ii. the sequence of the events (their arrest sh ortly after their painting graffiti with political slogans and dissemination of photographs thereof) without a “reasonable suspicion” of their having committed the crime put forward for that purpose; iii. the fact that the law-enforcement authorities clear ly had targeted NIDA and its members; iv. the events reflecting the pattern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of the criminal law identifi ed in the case of Aliyev v. Azerbaijan ).

Conclusion : violation (unanimously).

Article 10: The applicants’ criminal prosecution was not formally related to their having sprayed graffiti on the statue: instead of acting within the constraints of the law, the authorities chose to prosecute the applicants for drug-related crimes in retaliation for their actions.

In the eyes of the Court, such interference with the applicants’ freedom of expression was not only unlawful, but also grossly arbitrary and incompatib le with the principle of the rule of law which is expressly mentioned in the Preamble to the Convention and is inherent in all the Articles of the Convention.

Conclusion : violation (unanimously).

The Court also found, unanimously, a violation of Article 3 (both in its substantive and procedural limbs) and a violation of Article 5 § 4.

Article 41: EUR 30,000 to each applicant in respect of non-pecuniary damage.

(See also Aliyev v. Azerbaijan , 68762/14 and 71200/14, 20 September 2018, Information Note 221 ; and Rashad Hasanov and Others v. Azerbaijan , 48653/13 et al., 7 June 2018)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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