Published on 27 November 2023

FIRST SECTION

Application no. 3183/16 Omar Aliyar oglu MAMMADOV against Azerbaijan and 3 other applications (see list appended) communicated on 6 November 2023

SUBJECT MATTER OF THE CASE

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

At the material time the applicants were civil society activists and members of a civic movement Nida (applications nos. 3183/16 and 31384/16), an executive in an oppositional political party (application no. 69161/16), and an entrepreneur and perceived member of the oppositional political group Milli Shura (application no. 5878/17).

On various dates in 2013-2014 criminal cases were instituted against the applicants and they were formally arrested as suspects.

The applicants in applications nos. 3183/16 and 69161/16 were charged with a criminal offence under Article 234.4.3 of the Criminal Code (illegally holding of drugs with an intent to sell), the applicant in application no. 31384/16, under Article 315.1 of the Criminal Code (resistance to or violence against a public official), and the applicant in application no. 5878/17, under Article 228.1 of the Criminal Code (illegal holding of weapons).

On various dates the applicants were convicted as charged and sentenced to various terms of imprisonment. The relevant appellate courts upheld the convictions. The Supreme Court in most of the cases also upheld the convictions. In application no. 69161/16 the Supreme Court changed the legal ground for the conviction to Article 234.1 (illegally holding of drugs without an intent to sell) of the Criminal Code and reduced the applicant’s sentence.

Relying on Article 6 of the Convention, the applicants complain, in particular, that their convictions were based on fabricated and otherwise unlawful evidence and that the criminal proceedings against them were in breach of various fair-trial guarantees.

The applicants in applications nos. 3183/16 and 31384/16 allege that the proceeding against them were brought in order to punish them for and to prevent them from continuing their civil activism, invoking Articles 10, 11 and 18 of the Convention. The applicant in application no. 5878/17 alleges that the proceedings against him were aimed at punishing him for his perceived membership in Milli Shura, invoking Article 18 of the Convention.

Furthermore, the applicant in application no. 3183/16 complains under Article 3 of the Convention that during his detention he had been subjected to ill-treatment and that no effective investigation was carried out in that regard. He also complains under Article 8 of the Convention that a search of his person conducted during the criminal proceedings against him, the seizure of his laptop computer, and interference with his electronic accounts were in breach of the relevant domestic law and of his right to private life and correspondence.

The applicant in application no. 5878/17 also complains under Article 8 of the Convention that a search of his house and seizure of weapons were carried out in breach of the relevant domestic law and of his right to respect for his home. He further complains under Article 13 of the Convention that during the criminal proceedings against him he had no effective remedies to challenge the text of the transcript of the first ‑ instance court hearings.

QUESTIONS TO THE PARTIES

Concerning all applicants:

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:

(i) was the applicants’ right to a reasoned decision respected?

(ii) was the principles of equality of arms and adversarial proceedings respected?

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

The parties are requested to provide 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.

Concerning specific applicants:

Application no. 3183/16

3. Was the applicant subjected to inhuman or degrading treatment during his detention, in breach of Article 3 of the Convention?

4. Having regard to the procedural protection from inhuman or degrading treatment ( Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation into the alleged ill-treatment by the domestic authorities in breach of Article 3 of the Convention?

Applications nos. 69161/16 and 5878/17

5. Was the applicants’ right to legal assistance at the pre-trial stage of the proceedings respected? Were they able to defend themselves through legal assistance of their own choosing, as required by Article 6 § 3 (c) of the Convention?

Applications nos. 3183/16 and 31384/16

6. Were the restrictions imposed by the State on the applicants, purportedly pursuant to Articles 10 and 11 of the Convention, applied for a purpose other than those envisaged by those provisions, contrary to Article 18 of the Convention?

Applications nos. 3183/16 and 5878/17

7. Has there been a violation of the applicants’ right to respect for their private life, home or correspondence, contrary to Article 8 of the Convention, on account of the search and seizure measures conducted during the criminal proceedings against them?

Application no. 5878/17

8. Did the applicant have at his disposal an effective domestic remedy to challenge the text of the transcript of the first ‑ instance court hearings, as required by Article 13 of the Convention?

9. In the present application, 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)? If so, were the restrictions imposed by the State on the applicant, 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?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

3183/16

Omar Mammadov v. Azerbaijan

29/12/2015

Omar Aliyar oglu MAMMADOV 1995 Baku Azerbaijani

Khalid BAGIROV

2.

31384/16

Ayyubzade v. Azerbaijan

20/05/2016

Orkhan Ibrahimajdar oglu AYYUBZADE 1994 Baku Azerbaijani

Asabali MUSTAFAYEV

3.

69161/16

Karimov v. Azerbaijan

21/11/2016

Faraj Ragif oglu KARIMOV 1985 Baku Azerbaijani

Nemat KARIMLI

4.

5878/17

Guliyev v. Azerbaijan

10/01/2017

Nijat Amir oglu GULIYEV 1963 Baku Azerbaijani

Fuad AGAYEV

List of cases: