Published on 3 October 2022

FIFTH SECTION

Application no. 23070/19 Elman AGAYEV against Azerbaijan and 2 other applications (see list appended) communicated on 12 September 2022

SUBJECT MATTER OF THE CASES

The present applications concern the alleged unfairness of criminal proceedings against the applicants.

The applicants in the present cases are either members or supporters of an unregistered religious movement, “ Müsəlman Birliyi ” (“the MB”), or are perceived by the authorities as such. The MB was established in the beginning of 2015 by Taleh Bagirov (who is one of the applicants in application no. 47347/18 pending before the Court).

On 26 November 2015 so-called “Nardaran events” occurred. On that day armed police officers of the Ministry of Internal Affairs (“the MIA”) carried out an operation during which members and supporters of the MB, including Taleh Bagirov, were arrested. Later the arrested people were convicted for a number of grave crimes (the mentioned operation, arrests and convictions are the subject of application no. 47347/18 pending before the Court).

The applicants in the present applications were arrested in connection with the MB and the “Nardaran events”, in the aftermath of those events.

According to the police records, during searches conducted on the applicants’ person or in their homes were found and seized, inter alia , weapons, explosive substances, and booklets containing calls for violence.

All the applicants were convicted of a number of grave crimes as members or supporters of the MB, including preparation to commit terrorism, public calls to commit terrorism, calls to commit mass disorder, unlawfully obtaining, keeping and carrying weapons, explosives, etc., violent capture of power, creation of armed units or groups, public calls against the State by a group of people, and incitement of national, racial or religious hostility by an organised criminal group. Applicant Ruzi Ismayilov (the first applicant in application no. 35436/19) was additionally convicted of resistance or violence against a government representative, and of obtaining, holding and carrying narcotic substances for purposes of sale. Applicant Jabir Aliyev (the third applicant in application no. 35436/19) was additionally convicted of obtaining, holding and carrying narcotic substances for purposes of sale.

All the applicants were prosecuted in the framework of the same criminal proceedings and were sentenced to imprisonment sentences varying between twelve and fifteen years.

On 16 November 2018 the Supreme Court delivered a final decision in the criminal proceedings (which, in applications nos. 35436/19 and 35442/19, made available to the applicants’ lawyers on 22 December 2018).

Before the applicants were convicted, the MIA and the General Prosecutor’s Office made statements to the media about the Nardaran events.

All the applicants argue before the Court that their conviction was based on fabricated and otherwise unlawful evidence, such as self-incriminating statements obtained under ill-treatment, and complain that the criminal proceedings against them were in breach of various fair-trial guarantees under Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention.

All the applicants also complain under Article 6 § 2 of the Convention that their presumption of innocence was violated because the MIA and the General Prosecutor’s Office in their statements to the media had called or portrayed them as criminals, before they were convicted of a criminal offence.

Furthermore, the applicants in applications nos. 35436/19 and 35442/19 complain under Articles 9 and 11 of the Convention and Article 18 of the Convention taken in conjunction with Articles 6, 9 and 11 that their arrest and charges against them were in breach of their right to freedom of religion, freedom of assembly and association; and that they were arrested and charged for political reasons and their link with the MB. The applicants in application no. 35442/19 raise a similar complaint also under Article 18 of the Convention taken in conjunction with Article 10.

COMMON QUESTIONS TO THE PARTIES

1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, was the applicants’ right to a reasoned decision and the principles of equality of arms and adversarial proceedings respected? Were the applicants afforded an adequate opportunity to contest the evidence against them, and to adduce evidence in support of their line of defence and to have such evidence assessed by the court?

2. Was the applicants’ right to legal assistance at the pre-trial stage of the proceedings respected?

3. Were the applicants able to defend themselves through legal assistance of their own choosing, as required by Article 6 § 3 (c) of the Convention?

4. Were the applicants able to examine witnesses against them, as required by Article 6 § 3 (d) of the Convention? Were the applicants able to obtain the attendance of witnesses on their behalf, as required by Article 6 § 3 (d) of the Convention?

5. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present cases, in particular, in view of the statements made to the media by the MIA and the General Prosecutor’s Office? Regarding this complaint, have the applicants complied with the requirement of exhaustion of domestic remedies and the six-month rule?

The parties are requested to provide necessary documentary evidence in support of their replies and submissions, including copies of the judgments and decisions of the domestic courts, transcripts of the court hearings and the applicants’ appeals and requests.

CASE SPECIFIC QUESTIONS TO THE PARTIES IN APPLICATIONS Nos. 35436/19 AND 35442/19

1. Has there been a public hearing in the present cases, as required by Article 6 § 1 of the Convention?

2. Were the applicants informed promptly and in sufficient detail of the nature and cause of the accusation against them, as required by Article 6 § 3 (a) of the Convention? In particular, did the indictment state clearly both the factual and legal basis of the charges against the applicants?

3. Were the applicants afforded adequate time and facilities to prepare their defence, as required by Article 6 § 3 (b) of the Convention?

4. Were the applicants afforded an adequate opportunity to communicate confidentially with their lawyers during the trial and to effectively participate in the court hearings?

5. Has there been an interference with the applicants’ freedom of religion, assembly, and association within the meaning of Articles 9 § 1 and 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Articles 9 § 2 and 11 § 2?

6. In the circumstances of the present cases, does Article 18 apply in conjunction with Article 6 of the Convention (see Ilgar Mammadov v. Azerbaijan (no. 2) , no. 919/15, § 261, 16 November 2017)?

7. Were the restrictions imposed by the State on the applicants, purportedly pursuant to Articles 6, 9 and 11 of the Convention, applied for a purpose other than those envisaged by those provisions, contrary to Article 18 of the Convention?

8. Were the restrictions imposed by the State on the applicants in 35442/19, purportedly pursuant to Article 10 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention?

APPENDIX

List of applications

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

23070/19

Agayev v. Azerbaijan

17/04/2019

Elman Seyidamir oglu AGAYEV 1979 Lankaran Azerbaijani

Akif ALIYEV

2.

35436/19*

Ismayilov and Others v. Azerbaijan

17/06/2019

Ruzi Khalig oglu ISMAYILOV 1983 Ganja Azerbaijani Ramil Suliddin oglu SEYFULLAYEV 1983 Baku Azerbaijani Jabir Sabir oglu ALIYEV 1975 Baku Azerbaijani Mehman Sudef oglu MAMMADOV 1980 Baku Azerbaijani

Shahla HUMBATOVA

3.

35442/19*

Guliyev and Others v. Azerbaijan

17/06/2019

Mehman Abulfaz oglu GULIYEV 1982 Baku Azerbaijani Ali Humat oglu HUSEYNOV 1955 Baku Azerbaijani

Faig Arif oglu ALLAHVERDIYEV 1969 Baku Azerbaijani

Mubariz Eyyub oglu IBRAHIMOV 1979 Baku Azerbaijani

Zibeyda SADIGOVA