Published on 3 October 2022

FIFTH SECTION

Application no. 43107/19 Elchin GASIMOV and Others against Azerbaijan lodged on 6 August 2019 communicated on 12 September 2022

SUBJECT MATTER OF THE CASE

The present application concerns the alleged unfairness of criminal proceedings against the applicants.

The applicants are either members of the board of an unregistered religious movement, “ Müsəlman Birliyi ” (“the MB”), or are perceived by the authorities as members or supporters of the MB . 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 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 Elchin Gasimov was additionally convicted of hooliganism, resistance against a representative of the authorities, and fabrication and use of fabricated documents. Applicant Aga ‑ Ali Yahyayev was additionally convicted of organisation of and participation in actions to breach public order by a group of people and resistance or violence against a representative of the authorities.

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

On 8 January 2019 the Supreme Court delivered a final decision in the criminal proceedings (which was made available to the applicants’ lawyer on 7 February 2019).

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

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 of the Convention.

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 complain under Article 9 of the Convention and Article 18 of the Convention taken in conjunction with Article 6 that their arrest and charges against them were in breach of their right to freedom of religion; and that they were arrested and charged for political reasons, their criticism of the authorities, and their link with the MB.

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 case, 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?

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

7. In the circumstances of the present case, 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)?

8. Were the restrictions imposed by the State on the applicants, purportedly pursuant to Article 6 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention?

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.

APPENDIX

List of applicants:

No.

Applicant’s Name

Year of birth,

Nationality,

Place of residence

Represented by

1.Elchin Kamal oglu GASIMOV

1985Azerbaijani

Baku

Fariz Namazli

2.Aga-Ali Eldar oglu YAHYAYEV

1983Azerbaijani

Absheron

Fariz Namazli

3.Nahid Nasib oglu GAHRAMANOV

1979Azerbaijani

Absheron

Fariz Namazli

4.Seyfaddin Nurulla oglu SHIRVANOV

1982Azerbaijani

Absheron

Fariz Namazli

5.Farhad Mirzahasan oglu MURADOV

1979Azerbaijani

Baku

Fariz Namazli

6.Ramil Zabil oglu ALIYEV

1982Azerbaijani

Jalilabad

Fariz Namazli

7.Vusal Nadir oglu ALISH

1984Azerbaijani

Baku

Fariz Namazli

8.Isa Tofig oglu IBRAHIMOV

1989Azerbaijani

Lankaran

Fariz Namazli

9.Ali Atabala oglu SHAHBAZOV

1993Azerbaijani

Baku

Fariz Namazli

10.Amirali Ismayil oglu ALIYEV

1959Azerbaijani

Baku

Fariz Namazli