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HUSEYN AND OTHERS v. AZERBAIJAN - 35485/05 [2011] ECHR 1192 (26 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1192.html
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[2011] ECHR 1192
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FIRST
SECTION
CASE OF HUSEYN AND OTHERS v. AZERBAIJAN
(Applications
nos. 35485/05, 45553/05, 35680/05 and 36085/05)
JUDGMENT
STRASBOURG
26 July
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Huseyn and Others
v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
George Nicolaou,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in four applications (nos. 35485/05, 45553/05,
35680/05 and 36085/05) against the Republic of Azerbaijan lodged in
September 2005 with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by four Azerbaijani nationals, Mr Panah Chodar
oglu Huseyn (Pənah Çodar oğlu Hüseyn –
“the first applicant”), Mr Rauf Arif oglu Abbasov (Rauf
Arif oğlu Abbasov – “the second applicant”),
Mr Arif Mustafa oglu Hajili (Arif Mustafa oğlu Hacılı
– “the third applicant”) and Mr Sardar Jalal
oglu Mammadov (Sərdar Cəlal oğlu Məmmədov
– “the fourth applicant”), together referred to as
“the applicants”.
The
first and fourth applicants were represented by Mr F. Agayev.
The second applicant was represented by Mr R. Hajili. The third
applicant was represented by Mr I. Aliyev. All representatives
were lawyers practising in Azerbaijan. The Azerbaijani Government
(“the Government”) were represented by their Agent, Mr
Ç. Asgarov.
The
applicants alleged, in particular, that there had been numerous
defects in the criminal proceedings against them, resulting in a
violation of their right to a fair trial, and that their right to
presumption of innocence had been infringed.
On
12 July 2007 (applications nos. 35485/05, 35680/05 and 36085/05)
and 9 October 2007 (application no. 45553/05) the President of the
First Section decided to give notice of the applications to the
Government. It was also decided to examine the merits of the
applications at the same time as their admissibility (Article 29 §
1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1957, 1966, 1962 and 1957 respectively and
live in Baku.
The
first applicant, Mr Panah Huseyn (also sometimes referred to as Panah
Huseynov), was a prominent member of the Popular Front Party of
Azerbaijan. The second applicant, Mr Rauf Abbasov (commonly known as
Rauf Arifoglu), was a prominent member of the Müsavat Party and
the editor-in-chief of the opposition-oriented newspaper Yeni
Müsavat. The third applicant, Mr Arif Hajili, was a deputy
chairman of the Müsavat Party. The fourth applicant, Mr Sardar
Mammadov (commonly known as Sardar Jalaloglu), was a deputy chairman
of the Democratic Party of Azerbaijan.
The
respective political forces with which the applicants were affiliated
were founders of the election coalition Bizim Azerbaijan, formed with
the aim of supporting the main opposition candidate, Mr Isa Gambar,
the chairman of the Müsavat Party, in the presidential elections
of 15 October 2003.
A. Events of 15 and 16 October 2003
Mr
Gambar lost the elections of 15 October 2003.
On
the evening of election day a group of opposition supporters gathered
in front of the Müsavat Party’s headquarters in the centre
of Baku, claiming victory for their candidate in the election. At
that time there were some violent altercations between opposition
supporters and the security forces.
At
around 2 p.m. on 16 October a number of opposition supporters started
gathering near the State Carpet Museum, in the centre of Baku, to
protest against the election results. The crowd then started moving
towards Azadliq Square, the main square in the city. It was
reported that, on the way, some people in the crowd began damaging
cars, buildings, benches and other urban constructions. It was also
claimed that the organisers of this unauthorised demonstration and
certain leaders of the opposition parties were inciting their
followers to violence.
It
has been claimed that some police officers who had been deployed at
Azadliq Square were attacked by some of the demonstrators. Shortly
thereafter large numbers of riot police and military personnel, fully
equipped with helmets, shields and truncheons, arrived in the square
with the aim of dispersing the demonstration. The situation quickly
escalated into public disorder and violent clashes occurred between
the crowd and the police. It was widely reported that the authorities
used excessive force indiscriminately against anyone who happened to
be in the area in question.
The
applicants, among other persons, were considered by the State
authorities to be the organisers of the demonstration. At around
2.30 p.m. all of the applicants, except Mr Mammadov, had
appeared on a tribune in Azadliq Square. Mr Hajili gave a speech to
the people gathered in the square, while the two other applicants did
not. Mr Mammadov was in the headquarters of his political party at
that time and, according to his own statements, was unable to go to
Azadliq Square (although he wished to do so), because the exits from
the headquarters were reportedly blocked by State security forces.
At
around 6 p.m. the demonstration was completely dispersed. Several
hundred people were arrested during the events of 16 October and in
their aftermath.
B. Institution of criminal proceedings and pre-trial
investigation
1. The applicants’ arrests
On
16 October 2003 the Prosecutor General’s Office instituted
criminal proceedings (case no. 80308) concerning the events of 15 and
16 October 2003. More than a hundred persons arrested in
connection with those events were eventually prosecuted in the
context of those proceedings. The proceedings concerned only the
actions of the organisers of the demonstration and those
participating in it, and it appears that no criminal or other form of
investigation was carried out in connection with the allegations of
excessive use of force by the police and military units during the
dispersal of the demonstration (see Muradova v.
Azerbaijan, no. 22684/05, §§
23 and 114, 2 April 2009).
In
the context of the above-mentioned criminal proceedings, on the dates
specified below all of the applicants were arrested and charged with
criminal offences.
The
first applicant, Mr Panah Huseyn, was arrested at his home on 18
October 2003 by a number of police officers of the Organised Crime
Department of the Ministry of Internal Affairs (“the OCD”).
He was taken to the OCD’s detention facility.
According
to the second applicant, Mr Rauf Abbasov, on 17 October 2003 several
police officers in plain clothes unsuccessfully attempted to arrest
him. Thereafter, in order to avoid being arrested, the applicant
sought refuge in the Norwegian Embassy until 21 October 2003. He left
the Embassy after he received assurances from the police that he
would not be arrested. However, on 27 October 2003 he was arrested
and taken to Detention Facility no. 1.
As
for the third applicant, Mr Arif Hajili, on 21 October 2003 the
Nasimi District Court remanded him in custody, on the basis of a
request by the Prosecutor General’s Office. The applicant was
not present personally and was not represented at that hearing. On 24
October 2003 he was arrested pursuant to the detention order.
The
fourth applicant, Mr Sardar Mammadov, was arrested at his home on 18
October 2003 and taken to the OCD (see Mammadov v. Azerbaijan,
no. 34445/04, §§ 6-14, 11 January 2007, for a more detailed
description of the circumstances of the fourth applicant’s
arrest and detention).
Following
their arrests, the first, third and fourth applicants were not given
immediate access to a lawyer (see section B.4 below).
All
of the applicants were formally charged with offences of “organising
public disorder” and “use of violence against State
officials” under Articles 32.2, 220.1 and 315.2 of the Criminal
Code. On the basis of relevant requests by the Prosecutor General’s
Office, all of them were remanded in custody pursuant to a court
order, with their detention subsequently being extended until the
trial.
2. Alleged ill-treatment of the first, second and
fourth applicants
The
first applicant was kept in the OCD’s detention facility until
22 October 2003. Thereafter, he was transferred to another
detention facility. According to him, during the five days of his
detention in the OCD he was repeatedly ill-treated. He was also
informed that several of his relatives, including his brother, had
been detained. He was not allowed access to a lawyer until 23 October
2003 (see below). After his transfer to another detention facility,
for an unspecified period of time he was kept in solitary confinement
and was not allowed to possess writing accessories, books, a radio or
newspapers.
In
February 2004 the first applicant, together with several other
detained persons (none of whom are applicants in the present case),
lodged a complaint with the Prosecutor General’s Office,
alleging that they had been ill-treated during the first few days of
their detention and seeking to have criminal proceedings opened
against the perpetrators. On 14 February 2004 their complaint was
rejected as unsubstantiated. In particular, in respect of the first
applicant, it was noted that he had not made any allegations of
ill-treatment in the immediate aftermath of his initial questioning,
that the various allegations he had made at different times had been
inconsistent, and that, when given the opportunity to undergo an
examination by a forensic expert, he had refused to do so, stating
that there were no injuries on his person. It was concluded that no
evidence of ill treatment had been produced.
During
the trial proceedings (described in section C. below), the first
applicant complained before the trial court that he had been tortured
in the OCD. Responding to a number of specific questions put to him
in connection with his allegations, he mentioned that he had been
handcuffed and punched in his chest and kidneys and that it had been
hinted to him that his son would be ill-treated, but he expressly
refused to provide any further details of the alleged torture,
stating generally that he had “never seen such cruelty”.
He also refused to mention any names of the alleged perpetrators
because “they were not important people”, and instead
accused the President, the Minister of Internal Affairs and the Head
of the Presidential Administration of “making orders” to
ill-treat him. He also mentioned that, from what he had heard, many
other people had also been ill-treated. It appears that the trial
court dismissed his complaints of ill-treatment as unsubstantiated.
According
to the second applicant, during the first thirty-six days of his
detention in Detention Facility no. 1, he was held in a single cell
and was not given access to writing materials, books, newspapers or a
radio.
The
fourth applicant’s ill-treatment was the subject of an earlier
case examined by the Court (see Mammadov, cited above).
3. Pre-trial investigation, severing the applicants’
case from criminal case no. 80308, and completion of the pre-trial
investigation
Throughout
the period from the beginning of the criminal proceedings until 1
March 2004, the investigation into the accusations against the
applicants, as well as other accused persons, was carried out within
the framework of criminal case no. 80308.
On
1 March 2004 the head of the investigation team issued a decision
severing a new criminal case (no. 80365) from criminal case
no. 80308. The new case concerned seven accused persons in
total, including the four applicants and Mr I. Agazade, Mr I.
Ibrahimov and Mr E. Asadov. The following reasons were
given for the decision:
“The investigation has gathered sufficient
evidence to prove the named persons guilty of having committed the
offences with which they are charged. The criminal prosecution in
respect of the other accused persons is continuing ...
The especially large volume of material in the case file
and the large number of incidents comprising the case would make it
necessary to prolong the pre-trial investigation and pre-trial
detention. This would create difficulties in ensuring the rights and
lawful interests of the accused persons in respect of whom sufficient
evidence has been obtained and, at the same time, would result in an
unacceptable delay in referring the case to the trial court.
Accordingly ... it is appropriate to sever a new
criminal case from criminal case no. 80308 ..., to complete the
pre-trial investigation in respect of the severed case and to refer
it to the trial court.”
It
appears that the pre-trial investigation in respect of criminal case
no. 80365 was formally declared completed on the same day, 1 March
2004.
4. Legal representation of the applicants throughout
the proceedings, and their lawyers’ access to the investigation
file upon completion of the pre-trial investigation
Below
is the information on the legal assistance received by the
applicants, the lawyers who represented them, and the circumstances
in which they were given access to the investigation file after
completion of the pre-trial investigation and before the trial
proceedings, inasmuch as this can be discerned from the material
available in the case file.
(a) The first applicant
Following
his arrest on 18 October 2003, the first applicant, Mr Huseyn,
was not allowed access to a lawyer until 23 October 2003. From that
date on, he was represented by Mr M. Hadi.
Following
the completion of the pre-trial investigation on 1 March 2004, the
applicant and his lawyer, Mr Hadi, were given access to the
prosecution’s case file and on 6 April and 15 April 2004,
respectively, they signed a record on familiarisation with the
material in the case file. According to the applicant, his lawyer was
granted access to the entire case file for only one working day.
Subsequently,
starting from an unspecified date during the trial, Mr Huseyn
was also represented by another lawyer, Mr S. Panahov.
(b) The second applicant
After
his arrest, the second applicant, Mr Abbasov, was represented by a
State-appointed lawyer. The lawyer was subsequently replaced by three
lawyers whom the applicant retained in October and November 2003. One
of these lawyers was Mr T. Karim.
It
appears that, following the termination of the pre-trial
investigation, Mr Karim was given access to the case file and signed
a record on familiarisation with the material in the file, dated 15
April 2004. Mr Abbasov himself was also given access to the case
file. According to him, he was given less than 100 hours to study the
file, which was insufficient to become fully familiar with all the
evidence, consisting of twenty-two volumes of documents (amounting to
more than 6,200 pages) and twenty-two video cassettes (each
containing about two and a half hours of video material).
On
27 May 2004, at one of the preliminary hearings in the Assize Court,
which had commenced on 7 May 2004 (see paragraph 44 below),
Mr Abbasov lodged an application refusing the services of all
three lawyers representing him on the ground that these lawyers had
not been able to defend him adequately. He requested leave to defend
himself in person but, according to the Government, subsequently
asked for a new lawyer. On 4 June 2004 the Assize Court accepted
the application and decided that the applicant should be provided
with a new State-appointed lawyer. The lawyer, Mr S. Panahov, was
appointed at some date around 8 June 2004. During the trial, another
lawyer, Mr E. Guliyev, was retained by the applicant.
(c) The third applicant
Following
his arrest on 24 October 2003, the third applicant, Mr Hajili,
was not allowed access to a lawyer until 27 October 2003. From this
date on, it appears that he was represented by a number of lawyers
throughout the proceedings.
Following
the completion of the pre-trial investigation on 1 March 2004, the
applicant and several of his lawyers (Mr M. Shahmarov, Mr N. Safarov,
Mr M. Hadi and Mr O. Kazimov) were given access to the prosecution’s
case file. On 6 April the applicant, and on 15, 16 and 17 April 2004
each of the lawyers, signed a separate record on familiarisation with
the material in the case file.
(d) The fourth applicant
Mr
V. Khasayev was appointed as Mr Mammadov’s lawyer on 18 October
2003.
On
21 October 2003 Mr Khasayev complained to the Prosecutor General’s
Office, by telegram, that he had not been allowed to meet the
applicant. Eventually, he was able to meet the applicant for the
first time on 22 October 2003.
There
is no information in the case file as to whether Mr Khasayev or the
applicant were given access to the prosecution’s case file
following the completion of the pre-trial investigation.
C. Trial
As
noted above, more than one hundred persons were prosecuted, in the
framework of criminal case no. 80308, for their involvement in the
events of 15 and 16 October 2003. Subsequently, this case was split,
dividing the accused persons into fifteen separate groups (one of
which groups comprised the newly severed criminal case no. 80365
concerning the applicants), and each group was tried separately. The
first fourteen trials concerned the cases of those who were accused
of participating in mass disorder and use of violence against
officials. All those trials were conducted by either the Assize Court
or the Sabail District Court and were completed in March and April
2004. All the defendants in those trials were found guilty and were
sentenced to either imprisonment, suspended periods of imprisonment
or restriction of liberty.
The
fifteenth and last trial in criminal case no. 80365 concerned the
persons who were accused of organising the mass disorder, including
the four applicants in the present case. This trial took place after
the first fourteen trials.
The
trial was conducted by the Assize Court. It commenced with several
preliminary hearings, the first of which took place on 7 May
2004. The three-judge panel hearing the case was composed
of Judges M. Ibayev (presiding), S. Aleskerov and J. Jumaliyev.
1. Applications by the defence during the preliminary
hearings and trial hearings
During
a preliminary hearing on 12 May 2004, the applicants’ lawyers
complained to the Assize Court about an alleged danger to their
personal safety, notifying the court about an incident which had
taken place after the preliminary hearing of 7 May 2004. According to
the lawyers, six of them had been harassed and assaulted by a number
of police officers outside the courthouse when they were giving an
interview to a television journalist. To support this allegation, two
of the lawyers produced some items of clothing damaged during the
altercation and photographs depicting the incident. They
characterised the alleged incident as a form of undue pressure put on
them by the authorities and asked the court to take measures to
ensure their personal safety. The presiding judge replied that the
court could not be concerned with any incidents taking place outside
its courtroom and that the lawyers should use the relevant avenues of
redress if they wished to complain about any alleged harassment
outside the court hearings. The court nevertheless decided to notify
“the relevant authorities” about the lawyers’
allegation. However, from the material available in the case file, it
is unclear which specific steps were taken by the court in this
regard.
Furthermore,
the first applicant, Mr Huseyn, lodged an application objecting to
the participation in the trial of one of the Assize Court’s
judges, Judge Ibayev, noting that the judge’s son worked at the
Prosecutor General’s Office and was subordinate to the head of
the investigation team dealing with his case. The other defendants
joined the application. On 24 June 2004 the Assize Court
rejected the application, finding that, although Judge Ibayev’s
son indeed worked at the Prosecutor General’s Office, he had
never been personally involved in the applicants’ case.
Subsequently,
the first applicant, joined by other defendants, also objected to the
participation in the trial of Judge Aleskerov. They pointed out that
Judge Aleskerov was the brother of Mr N. Aleskerov, an
investigator from the Prosecutor General’s Office who, during
the period from 19 October 2003 to 26 January 2004, had been a
member of the investigation team dealing with the applicants’
case. The first applicant argued that, owing to Judge Aleskerov’s
brother’s direct involvement in the case, he would not be able
to hear the case as an impartial judge. On 28 June 2004 the Assize
Court rejected that application, noting that Mr N. Aleskerov had
indeed been one of the forty-three members of the investigation team
working on criminal case no. 80308. However, he had been removed from
the team on 26 January 2004. Subsequently, after the new case no.
80365 (concerning the applicants) had been severed from case no.
80308, Mr N. Aleskerov had not been included in the
investigation team dealing with this new case. For these reasons, the
Assize Court concluded that claims concerning the lack of
impartiality of Judge Aleskerov could not be objectively justified.
Throughout
the trial in the Assize Court, the applicants lodged a number of
other applications. According to them, the court’s interim
decisions rejecting those applications were either not given to them
or were made available to them only after significant delays.
Moreover, the applicants requested permission to verify the
transcripts of court hearings after each hearing in order to be able
to comment on alleged irregularities and “falsifications”
contained in them. However, they were given access to the transcripts
only at the very end of the trial.
2. Evidence examined during the trial
During
the course of the trial, the Assize Court examined large volumes of
testimonial evidence, as well as video recordings and other
materials. Below is a brief summary of the evidence heard and the
manner in which it was ultimately assessed in the Assize Court’s
judgment.
(a) Witnesses for the prosecution
The
majority of prosecution witnesses were police officers deployed at
Azadliq Square on 16 October 2003. The investigation also produced
records of pre-trial questioning of some of the persons who had been
convicted at earlier trials in connection with the events of 15 and
16 October 2003, and a number of other civilian witnesses.
(i) Evidence concerning the events of 15
and 16 October 2003 in general, which did not directly implicate the
applicants
It
appears that the absolute majority of prosecution witnesses were
called to merely provide a general description of the events of
15 and 16 October 2003 in order to establish the fact
of public disorder. Their testimonies were aimed at showing that the
demonstrators had collected clubs, stones and other objects from the
headquarters of the Müsavat Party and other opposition parties,
that they had used these objects as weapons against the police and
military forces and that they had damaged a variety of public and
private property. These witness testimonies did not directly mention
the applicants as either organisers of or participants in those
violent actions. In addition, the prosecution produced some expert
evaluations of various forms of damage to private and public
property.
(ii) Statements by police officers
directly implicating the applicants
As
to the applicants’ specific role in the events of 16 October,
in order to establish that they had directed and incited the
demonstrators’ violent actions, the prosecution produced
pre-trial depositions of several police officers who had specifically
described, inter alia, how they had seen the applicants
arriving at Azadliq Square on 16 October 2003, publicly proclaiming
the election victory of I. Gambar and inciting the demonstrators
to violence from the tribune in the square.
Prior
to the scheduled examination of these witnesses, on 5 August 2004 the
first applicant, joined by all the other defendants, complained that
the pre-trial depositions of some of those witnesses had been
identical word for word and asked for this evidence to be excluded.
He pointed out that, according to the relevant records, some of these
depositions had been taken by the same investigator at the same time
on the same day. He argued that this was either physically impossible
or in breach of Article 230 of the Code of Criminal Procedure, which
required that witnesses be questioned separately, and that, in either
case, this evidence should not be admitted. It is not clear whether
the Assize Court ever gave any decision concerning this objection,
but it admitted the relevant depositions as evidence.
At
the trial hearings, each of the police officers concerned testified
separately and was cross-examined by the applicants and their
lawyers. In particular, police officer V.N. stated, inter alia,
that when the public disturbance had started at Azadliq Square, some
of the defendants, including the second and third applicants, had
been inciting the crowd to violence and making such declarations as
“Isa [Gambar] has been elected President, we are now in power,
do not be afraid of anyone, soon we will overtake the entire city,
resist anyone who confronts you...”.
From
the record of the court hearings, it appears that, during the
cross-examination, the defence were able to reveal a number of
alleged inconsistencies between the accounts given by V.N. during the
hearing and in his pre-trial deposition (concerning such specific
details of his testimony as, for example, whether he had actually
seen any of the defendants appear on the tribune or not, or whether
any of the defendants had actually used any phrases such as “Beat
the police!”). The defence read out V.N.’s pre trial
deposition at the hearing with the aim of pointing out these alleged
inconsistencies. Likewise, according to the defence,
cross-examination of most of the other witnesses of this type
revealed alleged inconsistencies between their statements at the
trial and in their pre-trial depositions. As appears from the
transcript of the trial hearings, when confronted with these alleged
inconsistencies, some of the witnesses stated that their pre-trial
statements had not been properly recorded, while others reverted back
to their pre-trial statements and retracted any inconsistent
statements which they had made during the hearing prior to
cross-examination.
It
appears from the transcript of the court hearings that more than ten
witnesses of this type were heard. In its judgment of 22 October 2004
the Assize Court separately summarised the testimonies of six of
those witnesses and relied on them as proving the applicants’
guilt. The judgment addressed neither the objections raised by the
applicants as to the admissibility of these witness testimonies, nor
any objections concerning the inconsistencies allegedly revealed in
their testimonies during cross examination by the defence.
(iii) Statements by previously convicted
participants in the demonstration directly implicating the applicants
The
prosecution also relied on testimony obtained during pre-trial
questioning from a number of other persons convicted in connection
with the events of 15 and 16 October. These persons had already been
convicted at first-instance trials conducted by the Assize Court in
March 2005. Inasmuch as this can be discerned from the Assize Court’s
judgment of 22 October 2004 in the applicants’ case, the
court relied on testimonies of five witnesses of this type.
According
to the records produced by the prosecution, in the course of
questioning as accused persons at the pre-trial investigation stage
of criminal case no. 80308, these persons had described, in various
degrees of detail, that they had witnessed the applicants at Azadliq
Square inciting the demonstrators to violent resistance during the
events of 16 October 2003.
During
the trial hearings, these witnesses were called to be questioned
about their pre-trial statements. According to the relevant trial
transcripts and the Assize Court’s judgment of 22 October 2004,
having taken to the witness stand at the oral hearings, four of these
witnesses openly retracted their pre-trial statements against the
applicants, noting that they had been forced to make those statements
under torture, ill-treatment and other forms of duress applied to
them during their pre-trial detention.
In
reply to these allegations, the Assize Court noted that the
witnesses’ complaints of ill-treatment had been addressed at
their own respective trials and had been found to be unsubstantiated.
The court found that, since these witnesses’ statements had
already been relied on as sound evidence at those trials, the
assessment of this evidence was a “res judicata matter”.
In such circumstances, the court decided to accept these witnesses’
pre-trial statements as good evidence, and refused to attach weight
to the fact that the witnesses had subsequently retracted them at
their own trials and at the applicants’ trial.
(iv) Statements by other witnesses
directly implicating the applicants
The
prosecution also submitted depositions of several other civilian
witnesses who had not been convicted in connection with the events of
16 October 2003. According to the records produced by the
prosecution, during the pre-trial investigation these witnesses had
made statements similar to those made by the witnesses mentioned
above. However, again, during the questioning at the public hearing,
at least three of those witnesses retracted their earlier statements
and claimed that they had been forced to make them under threat of
ill-treatment or by means of actual ill-treatment.
According
to the trial transcript, witness N.N. noted that he had been detained
for a period of several days after the events of 16 October 2003
and, during that time, had been coerced into giving false testimony
against the defendants (mostly against the second applicant). He
noted that he had been threatened with prosecution and imprisonment
for participating in the events of 16 October 2003, had been refused
any water during his questioning and had otherwise been intimidated
with the purpose of making him sign a pre-printed witness statement
prepared by an investigator.
In
order to assess the allegations of ill-treatment made by these
witnesses, the Assize Court heard evidence from investigators and
police officers who had questioned them. They stated that they had
not ill-treated these witnesses during pre-trial questioning.
Furthermore, the court noted that the witnesses’ pre-trial
statements were corroborated by other evidence. On that basis, the
court found that the allegations of ill-treatment were unfounded and
that, therefore, the statements contained in the pre-trial
depositions of these witnesses should be accepted and relied on as
evidence incriminating the applicants.
(b) Witnesses for the defence
The
Assize Court partially granted the applicants’ requests to
obtain the attendance of witnesses prepared to testify on their
behalf. From the judgment, it appears that more than twenty such
witnesses testified. Most of these witnesses were the applicants’
political companions or other persons affiliated with their political
parties.
In
its judgment, the Assize Court summarised all of these persons’
testimonies noting that all of them denied that the applicants had
carried out the specific acts attributed to them, such as planning
any violent actions in advance, verbally inciting the crowd to
violence or organising the distribution of clubs and stones to
demonstrators. It further noted that the witnesses had insisted that,
on the contrary, the police had used excessive violence against the
demonstrators and that, in their speeches, the applicants had called
the demonstrators to refrain from attacking the police and responding
to any provocation.
The
Assize Court then went on to dismiss these testimonies as unreliable,
using the following reasoning:
“Having examined the testimonies of these
witnesses heard at the request of [the defendants], the court
established that, as indicated above, these persons were members or
employees of the [political] parties headed by the defendants and, as
they worked with [the defendants], they were persons subordinate to
and associated with [the defendants]. Some of their statements were
even contradictory. In particular, while replying to the questions,
[N.H.] stated, on the one hand, that the people speaking from the
tribune had not been inciting people to violence and, on the other
hand, that he had not heard the speeches as he had been standing
70-100 metres away from the tribune and had not been able to even see
who had been speaking. [N.Y.] stated that she had been at the square
by herself, while [E.P.] stated that [N.Y.] had been there with him.
Moreover, the circumstances described by them have been
refuted by the above-mentioned comprehensive, reliable and mutually
corroborative evidence consisting of testimonies of victims and
witnesses, video recordings, material evidence and court judgments in
force. Therefore, the court considers that [the defence witnesses’]
testimonies are groundless.”
(c) Other evidence
In
addition, a number of videos depicting the events of 16 October 2003
were viewed during the court hearings.
The
videos submitted by the prosecution were intended to show the
allegedly violent actions of the demonstrators. Some of the images
seen on the videos contradicted the testimonies of certain
prosecution witnesses. Some of the defendants’ lawyers (for
example, Mr Hadi) claimed that they had seen the video evidence for
the first time at the court hearings, as it had not been made
available to them by the prosecution before the trial, and that they
had therefore been unprepared for the examination of this evidence.
It
appears that, following an application by the defence, the Assize
Court also admitted additional video evidence submitted by the
defence, which was intended to demonstrate the allegedly excessive
use of force by the police and military while suppressing the
demonstration.
Assessing
the video evidence, the Assize Court noted that the video depicted
the violent actions of the demonstrators as well as the distribution
to them of bludgeons, stones and other “weapons” in an
organised manner.
3. The parties’ closing addresses
On
29 September 2004 the Assize Court announced that the presentation of
evidence was complete and that it would proceed to hear the parties’
oral submissions, inviting the prosecution to make their closing
address first. The prosecution asked for an adjournment until 1
October 2004 to prepare their speech. On 1 October the prosecution
asked for another adjournment until 11 October 2004. The prosecution
delivered their closing address during two hearings on 11 and 12
October 2004.
Following
the prosecution’s speech, on 12 October 2004 the court invited
the defendants to deliver their respective closing addresses.
However, in response to this invitation, almost all of the
applicants’ lawyers, taking the floor one after the other,
refused to take part in the oral submissions and make a closing
address for the defence, providing the court with the following
explanations for their refusal.
The
first applicant’s lawyer, Mr Hadi, speaking first, noted that,
throughout the proceedings, he had not been given adequate time and
facilities to prepare his client’s defence. He had not been
allowed to fully study the investigation file before the trial and
had not been given access to some of the prosecution evidence, such
as video recordings, in order to be able to adequately plan his
defence tactics. He further noted that, during the proceedings, the
defence lawyers had come under various forms of pressure and had even
been physically assaulted when arriving at one of the preliminary
hearings. He claimed that the lawyers had regularly received various
threats from unspecified persons aimed at preventing them from
adequately defending the applicants. Although the lawyers had
repeatedly brought this matter to the Assize Court’s attention,
and had even specifically complained about the incident involving the
physical assault on them, the court had failed to take any action and
had ignored the difficulties faced by them. He further argued that,
in reality, the outcome of the trial had been predetermined and
politically motivated and that the trial itself was being held only
as a show, since even before its conclusion the President had
publicly declared that the applicants were criminals and would be
punished. He stated that, in such circumstances, the lawyers
themselves felt vulnerable and frightened. He stated that, for these
reasons, he was unable to adequately defend his client and was
therefore unable to submit an oral argument. He apologised to his
clients, the first applicant and Mr Ibrahimov, and noted that it
would be best if the defendants were allowed to prepare and deliver
the oral arguments themselves.
Mr
Panahov, counsel for the first and second applicants, gave a similar
explanation. He also noted that he was not able to provide effective
assistance to his clients because, inter alia, he had never
been given access to the investigation file. He claimed that after
the completion of the pre-trial investigation the lawyers had been
pressured into signing records on familiarisation with the material
in the case file so that the case could be sent for trial quickly.
Although he had specifically complained about this during the
preliminary hearings, the Assize Court had ignored this matter. Like
Mr Hadi, Mr Panahov also noted that the lawyers were concerned for
their personal safety, and that this affected their ability to
provide adequate assistance to their clients.
Other
lawyers concurred with everything stated by their colleagues and gave
similar explanations for their refusal to give a closing address.
Following
this, the first applicant spoke to the court, on behalf of himself
and the other defendants, asking for permission to make their defence
speeches in person. He noted that, following their lawyers’
refusal to take part in the oral submissions, they were essentially
left without any legal assistance. He requested the court to allow
them sufficient time to prepare their closing addresses.
In
response, Judge Ibayev stated that the defendants would be allowed to
exercise a right of reply (replika). Judge Aleskerov noted
that procedural law allowed a defendant to give a closing address in
person only if he or she was unrepresented by counsel. Judge
Jumaliyev commented that counsel could not shirk their duty to defend
their clients.
At
the next hearing, on 13 October 2004, the first applicant, on behalf
of himself and the other defendants, lodged a formal application in
writing, requesting the court to allow them to make their defence
speeches themselves.
The
court rejected the application as groundless. It noted that the
defence lawyers had provided effective and adequate legal assistance
to their clients. It further noted that the lawyers had been given
ample opportunity to consult the investigation file but had
themselves failed to do so, that it was the lawyers’ duty to
participate in oral arguments, that they could not refuse to assist
their clients at this stage of the proceedings, and that they had no
good reason for shirking their duties.
It
appears that only the fourth applicant’s lawyers delivered a
closing address on behalf of their client, despite the fact that the
fourth applicant had joined the first applicant’s request for
permission to give the closing address in person.
The
Assize Court then proceeded to invite the parties to exercise their
right of reply. The prosecution waived that right.
Prior
to the defendants’ speeches in reply, the third applicant asked
the court not to place any time-limits on them, taking into account
the fact that no closing addresses had been delivered on their behalf
during the oral submissions. The presiding judge noted that this
would be taken into account.
Exercising
his right of reply, the first applicant spoke for about two hours.
The presiding judge interrupted him three times, reminding him that a
reply should be brief (no longer than three to fifteen minutes), and
ultimately cut short his speech despite the applicant’s
protests.
Likewise,
all the other applicants attempted to deliver long speeches while
exercising their right of reply, but were interrupted and ultimately
stopped by the presiding judge after about an hour, on the ground
that a reply should be brief.
Following
this, the trial hearings ended after each of the defendants was
allowed to speak one more time, in order to make their final plea.
4. Conviction and sentences
On
22 October 2004 the Assize Court convicted the applicants of
organising public disorder (Articles 32.3 and 220.1 of the Criminal
Code) and organising acts of violence against State officials
(Articles 32.2 and 315.2 of the Criminal Code).
The
first and fourth applicants were each sentenced to four years and six
months’ imprisonment. The second and third applicants were each
sentenced to five years’ imprisonment.
D. Appeals and pardons
In
October and November 2004 the applicants appealed to the Court of
Appeal against their conviction. In particular, in his appeal, the
first applicant complained of, inter alia, breaches of his
rights to an impartial tribunal, adequate time and facilities for
preparation of his defence, effective representation, equality of
arms and presumption of innocence. He also complained of errors by
the trial court in the procedure for the admission and assessment of
evidence. The second and fourth applicants made similar complaints in
their appeals.
The
third applicant’s appeal was shorter than those of the other
applicants and was phrased in more general language. Among other
things, he complained of the following:
“The conviction should be quashed as being
illegal, unsubstantiated and unfair and I should be acquitted. In
particular:
1. The judicial examination was carried out
in breach of my rights as an accused person.
2. The judicial examination was carried out
in breach of my lawyer’s rights.
3. The judicial examination was carried out
in breach of my right to make a closing statement and in breach of my
lawyer’s right to make a closing statement.
4. The court has not examined all the
relevant factual circumstances necessary for the conclusions reached.
5. The factual findings in the judgment have
not been proven. ...
The grounds for my claims concerning the illegality,
lack of substantiation and unfairness of the conviction will be
presented by me at the [appeal] hearings.”
All
of the appeals were drafted by the applicants themselves in their own
handwriting.
By
a decision of 8 November 2004, delivered after a preliminary hearing,
the Court of Appeal granted the applicants’ request to hold a
public hearing on the merits of their appeals, but rejected their
requests to conduct a fresh “judicial examination” of the
case by means of renewed cross examination of the witnesses and
defendants and admission of new evidence. It also decided to provide
the applicants with State-appointed lawyers for appeal proceedings,
appointing the same lawyers who had represented the applicants at
first instance. The extent of the actual assistance provided by these
lawyers during the appellate proceedings is not clear.
By
a judgment of 19 November 2004 the Court of Appeal upheld the Assize
Court’s judgment. It reiterated the lower court’s
findings and rejected, in one sentence, the complaints made by the
applicants in their appeals as unsubstantiated.
The
first applicant lodged a cassation appeal against that judgment. The
cassation appeal consisted of 206 pages and was drafted by the
applicant himself in his own handwriting. The appeal was very
detailed in respect of all the alleged defects in the proceedings
before the Assize Court and the Court of Appeal. The other applicants
also lodged cassation appeals, drafted by themselves in their own
handwriting.
On
29 March 2005 the Supreme Court upheld the lower courts’
judgments.
In
March 2005 all of the applicants were released from serving the
remainder of their prison sentences pursuant to a presidential pardon
decree.
E. Statements by public officials and authorities
concerning the applicants made at various times during the
proceedings
The
applicants submitted a number of publications containing statements
by high-ranking State officials and public authorities, which
allegedly breached their presumption of innocence. Some of those
statements are summarised below.
On
17 October 2003 the Milli Majlis (Parliament) adopted a resolution
“on Unconstitutional Actions of the Müsavat, Ümid and
Azerbaijan Democratic Parties, and Certain Political Opposition
Groups”, denouncing the above-mentioned parties and holding
them responsible for “unlawful actions” and mass
disturbances resulting in loss of life and injuries inflicted on
civilians and members of law-enforcement authorities, as well as for
damage to public and private property. Among others, the resolution
identified Isa Gambar (the leader of Müsavat), Igbal Agazade
(one of the defendants tried together with the applicants) and “a
group of other members and supporters of the opposition” as
organisers of the above disturbances. The resolution was published in
official newspapers.
On
23 October 2003 the official newspaper Xalq Qəzeti
published a report by the State-owned press agency AzerTAG concerning
a press conference held by the Ministry of Internal Affairs on 22
October 2003. During this press conference, the Head of the Press
Service of the Ministry of Internal Affairs conveyed the Ministry’s
official position concerning the events of 15 and 16 October 2003 and
informed the media that criminal proceedings had been instituted in
this connection and that a number of persons had been arrested. Among
other things, he stated as follows:
“...on 15 and 16 October 2003
the destructive opposition, at the direct instigation of the leaders
of the Müsavat, Ümid and Azerbaijan Democratic
Parties Isa Gambar, Rasul Guliyev, Sardar Jalaloglu [Mammadov], Igbal
Agazade and others, began committing pre-planned unlawful actions
which resulted in mass disorder.”
The
same issue of the newspaper contained a declaration by the Head of
the Sabail District Police Office, denouncing the opposition. The
following was stated:
“On 15 and 16 October 2003 certain riotous
anarchist and extreme reactionary groups, following direct orders by
Isa Gambar, Igbal Agazade and Sardar Jalaloglu [Mammadov], committed
terrible criminal acts in Baku. ...
... we are confident that ... the persons who committed
crimes ... and oversaw these extreme reactionary acts will bear
criminal responsibility and receive deserved punishment. Moreover, we
are assured that the Müsavat, Ümid and Azerbaijan
Democratic Parties, which organised these criminal actions, will be
banned and that the leaders of those political entities (I. Gambar,
R. Guliyev, S. Jalaloglu, I. Agazade) will be held
criminally liable.”
On
25 October 2003 Xalq Qəzeti
published a declaration by the Ombudsperson, in which she criticised
the opposition and the actions of the demonstrators during the events
of 15 and 16 October 2003 and called upon all compatriots to adhere
to civil unity and peaceful behaviour. The declaration was silent
about the alleged reports of excessive and repressive use of force by
the law-enforcement authorities during or in the aftermath of the
events of 15 and 16 October 2003.
On
27 October 2003 Xalq Qəzeti
published an almost full page long “Press statement
by the Ministry of Internal Affairs and the Prosecutor General’s
Office of the Republic of Azerbaijan concerning the events that took
place in Baku on 15 and 16 October”. The statement began with
praise for the law-enforcement authorities’ success in
combating crime in recent years and the Government’s progress
in building a democratic State governed by the rule of law. It
continued with words of disapproval about the “radical
opposition”, which did not “want to accept the positive
developments and existing realities” and was attempting to
“cast a shadow” on the Government’s successes and
to disrupt stability in the country. It further continued:
“The extremist circles of the opposition, having
realised in advance that they would lose in the free and fair
elections and having become fully assured of this during the voting
conducted in a democratic and transparent manner, once again resorted
to destructive actions. Leaders of the Müsavat and Ümid
Parties Isa Gambar and Igbal Agazade, their supporters, and leaders
of the ADP, including Rasul Guliyev, who is under an international
search warrant for the crimes committed by him, and Sardar Jalaloglu
[Mammadov], as well as other members of that party, have particularly
distinguished themselves in this undertaking.
It must be noted that, starting from 1 October, for the
purpose of participating in the mass disturbances planned by the
[above-mentioned] persons, active members of those parties as well as
persons predisposed to crime were brought to [Baku], and money was
distributed to some of them in exchange [for their participation].
[The narration continues with a description of the
opposition demonstration held on 15 October 2003, where claims of
election irregularities and unfairness were first voiced.]
The false accusations and lies deliberately disseminated
by the above-mentioned party leaders after the election, as well as
their call to [demonstrators] to commit illegal actions, provided an
impetus for further actions resulting in a grave breach of public
order in the capital. ...”
102. The
statement continued with a detailed description of the events of 15
and 16 October and with a flat denial of any allegations of excessive
and repressive use of force by the police during the dispersal of the
demonstration, as well as any allegations of torture and
ill-treatment of arrested persons. It also stated that only a small
number of arrested persons, consisting of the main organisers and
perpetrators of the illegal actions referred to, had eventually been
prosecuted.
103. On
30 October 2003 Xalq Qəzeti
published an article by the Deputy Minister of Internal Affairs,
entitled “Stability and tranquility in Azerbaijan will be
protected, the rule of law will be firmly respected”. Almost
the entire article consisted of condemnation and harsh criticism of
the political opposition’s actions during the events of 15 and
16 October. The author repeatedly used such descriptions as
“criminal”, “reactionary”, “destructive”,
“radical” and “violent” with reference to the
opposition in general, and in particular to
the Müsavat Party and its leader I. Gambar. The
author expressly stated that the Müsavat Party, its leaders and
other opposition forces supporting them had engaged in “actions
of criminal character”, had openly declared their intention to
capture State power by unlawful means, had distributed bludgeons to
their supporters and had ordered them to engage in violent actions
and vandalism and to disrupt the stability of the country. Within the
above account, the article contained the following statements:
“... Panah Huseyn[ov] ... threatened bloodshed,
and attempted to create a situation of mass psychosis. Not only Panah
Huseyn[ov] engaged in such subversive action. While delirious ideas
of ‘ripening a revolutionary situation’ came from Isa
Gambar and Rasul Guliyev, they were conveyed to society by the likes
of Sardar Jalaloglu [Mammadov], Igbal Agazade, Ibrahim Ibrahimli,
Arif Haji[li], Rauf Arifoglu [Abbasov] and Flora Kerimova.”
104. On
5 October 2004, before the Assize Court’s judgment in the
applicants’ case was delivered, the official newspaper
Azərbaycan
published a long interview given by the President to Reuters. Among a
wide range of other issues discussed during the interview, the
President also made the following statement:
“The attempt of the opposition
to change the election results by means of
violence was a criminal act. I stress again that the detained persons
who are referred to as the opposition are being tried not for being
members of the opposition, but for having committed unlawful acts.”
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Code of Criminal Procedure of 2000 (“the
CCrP”) provided as follows:
Article 107. General provisions on
objections and self-disqualification
“107.2. In the circumstances provided
for in Articles 109, 110 and 112-118 of this Code that preclude the
participation in criminal proceedings of a judge, juror, prosecutor,
investigator, preliminary investigator, defence counsel, victim
(private prosecutor), civil claimant, civil defendant, representative
of a witness or a witness, court clerk, interpreter, specialist or
expert, they shall request to withdraw.”
Article 109. Objection to a judge
“109.1. An objection to a judge (or
judicial formation) must state reasons. If an objection is not
supported by specific reasons, it shall be left unexamined by the
court. An objection to a judge may be considered justified and be
granted unconditionally if there exists at least one of the following
grounds precluding a person’s participation in the criminal
proceedings as a judge:
...
109.1.7. if the judge has any relationship of
kinship or other dependence with any participant in the criminal
proceedings or with a representative or counsel of such participant;
...
109.2. In any of the cases covered by Article 109.1 of
this Code, the judge shall disqualify himself or herself.”
Article 339. Beginning of oral arguments
“339.1. Upon completion of the judicial
examination, the presiding judge shall announce the beginning of the
oral arguments.
339.2. If any of the participants in the oral
arguments requests time for preparation of the arguments, the
presiding judge shall announce an adjournment and specify its
duration.”
Article 340. The parties’ oral
arguments
“340.1. The oral arguments shall
consist of speeches made successively by the public prosecutor, the
victim (or private prosecutor) or his or her representative, the
civil claimant or his or her representative, the accused (only if
there is no defence counsel participating in the proceedings) or his
or her defence counsel, and the civil defendant or his or her
representative.
...
340.3. In their oral arguments, the parties
may not refer to evidence which has not been examined during the
judicial examination of the case. If the party needs new evidence in
order to justify a conclusion reached [in its closing address], it
shall submit an application to reopen the judicial examination,
indicating which facts require additional investigation and on the
basis of what evidence. ...
340.4. The court may not set a time-limit on
the oral arguments, however the presiding judge may interrupt a party
delivering an oral argument if that party’s submissions concern
circumstances irrelevant to the criminal charge in question.”
Article 341. Replies (Replikalar)
“After the oral arguments of all participants in
the proceedings have been submitted, the public prosecutor, the
victim (or private prosecutor), the accused and his or her defence
counsel shall have the right to speak one more time each in order to
make brief objections or observations in response to the arguments
put forward by the parties.”
Article 342. The accused’s final
plea
“342.1. Upon completion of the closing
addresses and replies, the accused shall be allowed a final plea. No
questions can be put to the accused during the final plea.
342.2. The court may not set a time-limit on
the accused’s final plea. The presiding judge may interrupt the
accused if he or she refers to circumstances clearly irrelevant to
the criminal charge in question.
342.3. If the accused, in his or her final
plea, discloses new circumstances which are significant for the
comprehensive, thorough and objective determination of the criminal
charge by the court, the court shall reopen the judicial
examination.”
Under
Article 455 of the CCrP, the finding of a violation of the provisions
of the Convention for the Protection of Human Rights and Fundamental
Freedoms by the European Court of Human Rights is a ground for
reopening the proceedings. Pursuant to Article 456, in this case, the
Plenum of the Supreme Court examines the case exclusively on points
of law. After the examination of the case, the Plenum of the Supreme
Court may decide to quash the lower courts’ rulings and remit
the case to the relevant lower court, or to vary the decision of the
courts of cassation or other courts, or to quash the decision of the
courts of cassation or other courts and deliver a new decision
(Article 459 of the CCrP).
III. RELEVANT INTERNATIONAL DOCUMENTS
The
following are the relevant extracts from the report by the
Organization for Security and Cooperation in Europe, Office for
Democratic Institutions and Human Rights (OSCE/ODIHR), on the Trial
Monitoring Project in Azerbaijan 2003-2004 (“the OSCE Report”):
“2. SUMMARY OF
POST-ELECTION DEVELOPMENTS
Post-election violence
... In the
immediate aftermath of the elections, demonstrations took place on
15 and 16 October, which resulted in violent clashes
between security forces and demonstrators in Baku.
On the evening of 15 October in front of
the Musavat Party Headquarters, members of the
OSCE/ODIHR Election Observation Mission witnessed police attacking
peaceful pro-opposition supporters. On 16 October, several thousand
demonstrators and pro-opposition supporters gathered in Azadlig
Square in the centre of Baku to protest what they considered to have
been a stolen election. On their way to the square demonstrators were
witnessed vandalizing buildings and vehicles, and attacking police
forces with metal bars and stones. At the square, demonstrators were
rapidly surrounded by police and security forces, which used
overwhelming force to disperse the crowd. Security forces were
witnessed beating demonstrators with truncheons after they had been
detained and no longer posed any danger or as they were fleeing the
area. Video tape recordings provide evidence of the scale of
excessive force and brutality used by government forces to overwhelm
the demonstrators.
The violence was followed by a wave of
detentions. According to officials, the detainees were persons
involved in the violent activities or responsible for organizing the
violence. However, the detentions took place in all parts of the
country and included many individuals with no clear connection to the
violence. The Minister of Interior reported that over 600 persons
were detained following the violent clashes. ...
Administrative and criminal charges
The majority of the people detained in
connection with the elections were later released without
charge. In total, 129 persons were charged with criminal offences in
connection with the post-election clashes, of whom 125 had been
brought to trial at the time this report was prepared.
...
Among the people charged with criminal
offences were several prominent members of the opposition including
[among others, Mr Huseyn, Mr Abbasov, Mr Hajili and Mr Mammadov]...
At the time of the writing of this report, the
OSCE/ODIHR was unaware of any cases of charges having been brought
against police officers or other officials for brutality or excessive
use of force against demonstrators.
3. AIM
AND METHOLOGY
The cases of all 125 persons tried in
connection with the post-election violence were monitored under
the OSCE Trial Monitoring Programme. ...
OSCE-trained trial monitors observed all
first instance hearings and two appeals. The OSCE-trained trial
monitors participated in two training sessions on national and
international fair trial standards and trial monitoring techniques in
December 2003 and May 2004. In addition, an international expert,
Paul Garlick, Queen’s Counsel, Judge (United Kingdom), observed
the final set of trials, which began on 7 May. The information
contained in this report stems mainly from the direct observations of
the trial monitors and the international expert. However, the
information on arrest and the pre-trial period is based upon
submissions made in court by the defendants and defence counsel and
interviews with defendants and defence counsel. In the case of Trial
Group 15, a detailed questionnaire was prepared by the international
expert and completed by defence counsel.
...
4. BASIC
INFORMATION ON THE POST-ELECTION CASES
... The cases of
the 125 persons that were brought to trial were heard in 15 groups.
For the purpose of this report they are referred to as Trial Groups
1-15. ...
Trials concerning the events of 16 October
The trials in the other Trial Groups all
concerned the events that took place on Azadlig Square on 16
October and were all tried before the Court for Serious Crimes. The
defendants in Trial Groups 1-6 and 8-14 were charged with
participating in mass disturbances, organization of, or active
participation in, actions causing a breach of public order and
resistance to, or acts of violence against, a State Agent.
The defendants in the final Trial Group,
Trial Group 15, included the most prominent members of the opposition
parties who were tried in connection with the post-election violence.
Whereas the defendants in all the other Trial Groups were charged
with participating in mass disturbances, the defendants in Trial
Group 15 were charged with organizing mass disturbances. In addition,
they were also charged with resistance to, or acts of violence
against, a State Agent. ...
5. FINDINGS AND ANALYSIS
...
C. RIGHT TO LEGAL
COUNSEL BEFORE TRIAL
... [S]pecific
examples exist where defendants claim that they were not provided
with access to legal counsel until after having been charged or
remanded in custody. ... In Trial Group 15, defendant Panah Huseynov
[Huseyn] made a written statement to the effect that he did not have
access to his lawyer from his arrest on 18 October 2003 until 23
October 2003. He complained that he had been forced to renounce his
right to legal counsel. In this case the defendant stated in court
that during his detention in Gazakh Police Division he was forced to
sign a paper rejecting the services of a lawyer and a paper
confessing that he had used force against police officers.
In respect of Trial Group 15, whilst it
appears that some defendants did have access to legal representation
within a short period of time after being taken into custody, in some
cases access was denied after the initial meeting.
...
F. RIGHT TO ADEQUATE TIME AND
FACILITIES TO PREPARE A DEFENCE
...
In Trial Group 15, the evidence
comprised 22 volumes of criminal case materials, testimonial
evidence, data on the cause of damage,
testimonies of the victims, and 22 video cassettes. The material was
not made available to the defence lawyers until March 2004. Even
then, only one copy of the case materials was made available to the
defendants, thus restricting the preparation of their defences,
particularly during the trial when the defendants were kept apart
from each other in separate cells. On numerous occasions during the
hearing of Trial Group 15, the defendants complained to the court
about the difficulties that they were encountering in preparing
cross examination of witnesses as a result of being in isolation
and having to share the single copy of case materials.
In addition to difficulties created by
only one copy of the case materials being made available to the
defendants, the defence lawyers complained that they had been denied
copies of the rulings which the court had made in the preliminary
stages of the trial. The defence advocates reported that of 31
motions that had been lodged by the defence, copies of only 8
decisions were provided by the court.
G. FREEDOM FROM TORTURE AND ILL-TREATMENT, AND THE
RIGHT NOT TO BE COMPELLED TO TESTIFY OR CONFESS GUILT
...
Allegations of Torture and
Ill-Treatment of Defendants
Allegations of torture and ill-treatment
were made in all but two of the 15 Trial Groups. In Trial Groups
1-14 the allegations were made primarily against law enforcement
officials in temporary detention, although there were also
allegations of mistreatment at the time of detention. The types of
ill-treatment described either in court or directly to OSCE trial
monitors included threatening to harm close relatives, denying food
and water, tying to chairs, interrogating and video recording
detainees whilst they were naked, threatening with firearms, hitting,
punching, kicking, beating with truncheons, bottles and sticks,
forcing detainees to stand outside in the rain for hours, burning
with cigarettes, injecting with unknown substances, and threats of
rape...
Allegations of Torture and
Ill-Treatment of Witnesses
In addition to reported torture and
mistreatment of defendants, there were numerous allegations of
torture and ill-treatment of witnesses: [summary of alleged
first-hand accounts of ill-treatment follows]. ...
As a result of the alleged ill-treatment
several witnesses claimed during the trials that their statements
were to be considered falsified ...
I. PROHIBITION OF THE USE OF
EVIDENCE OBTAINED BY TORTURE OR
OTHER ILL-TREATMENT
... Allegations
of torture and ill-treatment were made in all the Trial Groups except
Trial Group 11 and Trial Group 12. In every instance, the judgments
state that the allegations were not proved. The only exception was
Trial Group 5 in which the judgment does not even refer to the
allegations of torture.
In addition, statements that were
alleged to have been made under duress were expressly relied upon as
evidence in Trial Groups 2, 3, 4, 7, 8, 10 and 13 and 15. In general,
the response of the courts to the numerous motions by the defence
that statements made in temporary detention facilities were obtained
by torture or other ill treatment consisted of ordering medical
examinations and calling law enforcement officials as witnesses.
...
Witnesses
... The approach
of the court in Trial Group 15 to determining whether to admit the
evidence of witnesses who alleged that they had been tortured was
flawed. On the evidence given to the court by these witnesses, no
reasonable tribunal should have come to the conclusion that it was
sure, beyond reasonable doubt, that such torture did not take place.
The court did not ... carry out any proper investigation into the
allegations of torture and placed far too much reliance on the
findings of other courts in previous trials. In effect, the court
considered itself bound to come to the same conclusions as the other
courts, without questioning the reasoning behind those other
decisions or examining in detail all the evidence that was available
to the other courts when determining the issues and comparing that
evidence with the evidence which was available to it in the case of
Trial Group 15.
J. RIGHT TO A PUBLIC HEARING
... All court
hearings in the post-election related cases were, ostensibly, held in
public. However, numerous restrictions and impediments interfered
with this right.
In Trial Group 15, for example, access
to the court room was strictly monitored and limited by the court
security staff. On numerous occasions during the trial the defendants
and their lawyers protested to the court that members of the public
were being prevented from entering the court room, despite the
obvious availability of seats in the court room.
...
Although the trials were held in public,
a number of factors contributed detrimentally to public access to the
trials:
• The public galleries were far too
small to accommodate all those who wished to observe the
hearings and, in a number of trials, relatives of the defendants
could not gain access. Trying defendants together in groups of seven
to ten aggravated this problem.
• People were generally admitted to
the public gallery of the Court for Serious Crimes only after they
had provided court officials with a copy of their identification
cards and their personal details had been written down by court
officials.
• The Court for Serious Crimes did
not post information about scheduled hearings or otherwise make this
information available to the public. As a result, the OSCE had to
contact the court by phone in order to obtain information about the
date and time of pending hearings. In two instances, court
secretaries stated that they were not authorized to provide such
information.
• In some instances, members of
opposition newspapers, including Yeni Musavat and the Baku News were
not admitted to the courtroom by court officials. In some cases,
journalists were refused entry without grounds and in other cases
lack of space in the public gallery was cited as the reason.
K. RIGHT TO TRIAL BY AN INDEPENDENT AND
IMPARTIAL TRIBUNAL
... In respect of
Trial Group 15, two members of the court had not disclosed that they
were related to people who were, or had been, involved in the
preliminary investigation or prosecution of the offences. Whilst no
evidence was adduced to show that the judges were biased as a result
of this relationship, it was unsatisfactory that the judges concerned
had not disclosed their relationships with others involved in the
investigation and prosecution of the offences. The failure to make
this disclosure, until it was brought to the attention of the court
by the defendants and their lawyers, did not engender confidence as
to the impartiality of the judges.
...
In respect of Trial Group 15, the judges
rarely refused a motion by the prosecutor for an adjournment,
when on occasion there seemed no justification for granting one. In
particular, the court granted an application made by the prosecution
to adjourn the case for ten days, so that he could prepare his
closing speech, without calling upon the prosecutor to give reasons
for such a long delay. The defendants objected strongly to such a
long adjournment, but the court seemed to pay no attention to the
concerns of the defendants or to any prejudice that such a long
adjournment might cause them.
Again, in respect of Trial Group 15, on
many occasions the court declined to give rulings in respect of
motions made by the defendants or their advocates, ruling instead
that it would postpone consideration of such motions until later in
the case. Of particular concern was the decision of the judges to
postpone consideration of crucial questions such as the number of
witnesses that the court would allow to be called at the request of
the defence. This left the defendants in a state of uncertainty as to
which evidence they would be allowed to present in their defence.
Plainly, this may have prejudiced the way in which the defendants
were able to present their cases. Moreover, the court did limit the
number of witnesses called at the request of the defence ...
L. RIGHT TO A FAIR HEARING
... In respect of
Trial Group 15, the defendants frequently complained to the court
that the fact that they were segregated when taken back to prison at
the end of the court hearing, together with the limitation of having
only one copy of the court materials among them, made it very
difficult for them to prepare their cases, particularly
cross-examinations of the witnesses. In the questionnaires completed
by the defence lawyers, many complaints were made in relation to the
refusal by the court to provide copies of documents and video tape
recordings to the defendants and lawyers. The lawyers also complained
that they were not given an opportunity of viewing the video tapes
together with their clients.
Presumption of Innocence
... In the days
following the post-election violence, statements were made to the
press by the President-elect and by representatives of the Ministry
of Interior, Baku Main Police Department, the Office of the
General-Prosecutor and the Ministry of National Security, in which
unlawful acts were attributed to the leaders and members of the
Musavat, ADP and Umid parties. ...
Disclosure by prosecution of material information
... In respect of
Trial Group 15, on numerous occasions the defence lawyers complained
to the court that the prosecution had concealed from the court video
tape recordings of the events on 16 October which would have assisted
the defence. In particular, it was argued that the prosecution had
failed to disclose recordings which would have shown that some of the
defendants did not make speeches from the tribune and were not
responsible for inciting or inflaming the demonstrators. No proper
enquiry was made by the court into this issue. The prosecution was
not called upon by the court to provide any evidence to rebut the
defence suggestion. The matter should have been investigated
thoroughly by the court, and the prosecution should have been
required to satisfy the court that full disclosure of all material
had been made.
...
The right to call and examine witnesses
... In most of
the trials observed the judges examined only evidence submitted by
the prosecution, including tens of witnesses (mainly soldiers and law
enforcement officials) and videotape and photographs of groups of
people breaking windows, damaging cars and beating law enforcement
officials. At the same time, in breach of the principle of equality
of arms and adversarial proceedings, defence lawyers were not given
an equal possibility to rebut criminal charges, to bring attention to
circumstances releasing the defendant from criminal responsibility or
mitigating circumstances. The court dismissed almost all motions of
the defence for consideration of additional evidence on behalf of the
defendant. ...
In respect of Trial Group 15, the court
did allow the defence to adduce tape recordings showing that violence
had been used by the police and other government forces towards the
demonstrators. However, the court severely restricted the number of
witnesses called at the request of the defence. The defendants
indicated to the court that they wished for as many as 600 witnesses
to be called to give evidence to prove, amongst other things, that
the defendants had not been responsible for providing articles to be
used as weapons by the demonstrators, that the defendants had not
addressed the crowd in the Square except to call upon them not to use
violence and not to react to provocation by the police, and, more
generally, that the defendants had not planned or orchestrated the
civil disorder which broke out on the 16 October. In addition, the
defendants requested the court to call a number of senior officials
from the police and other government agencies, including the Baku
Administration and the Ministry of Internal Affairs. The defendants
submitted that these witnesses should be examined by the court with a
view to showing that it was the police and government authorities who
had initiated the violence and who had, in effect, incited the
demonstrators to react in the way that they did. The court refused to
call these senior officials ...
M. RIGHT TO A PUBLIC AND REASONED
JUDGMENT
...
The right to a reasoned judgment
... In respect of
Trial Group 15, OSCE observers assessed that there was not sufficient
evidence upon which the court could base a reasoned conclusion that
it was certain the defendants organized, orchestrated or were parties
to the disorder which took place on the 16 October 2003. The evidence
of witnesses who purported to identify the various defendants as
being involved in inciting the crowds to violence and other
particular acts was so poor and so discredited in the trial that no
reasonable tribunal could have relied upon it. More particularly, the
evidence of those prosecution witnesses who purportedly saw the
defendants participating in the disturbance and carrying out
particular acts to incite the crowd was so discredited in the course
of cross-examination that it could not possibly be relied upon to
found the convictions. In its judgment, the court failed to consider
the overwhelming number of previous inconsistent statements that the
majority of the prosecution witnesses had made in the course of the
investigation. So many of the prosecution witnesses gave evidence
which was wholly inconsistent with the accounts that they had
previously given, that it became impossible to view the evidence of
the witnesses implicating the defendants as credible. Conversely, the
court failed to attach sufficient importance to the evidence that was
called on behalf of the defendants, dismissing the evidence of many
of the defence witnesses on spurious and inadequate grounds.
The approach of the court to the
evidence of defence witnesses was flawed and demonstrated a biased
and prejudiced attitude against them. The evidence presented by
defence witnesses was crucial to the defence case and yet, in its
judgment, the court dealt with the evidence in a superficial manner
and rejected the evidence of all the witnesses without giving any
separate or detailed analysis of the grounds for rejecting the
evidence of each witness. ...”
Annex
4 of the OSCE Report concerned specific observations relating to
Trial Group 15 only. At the beginning, the annex reproduced the
allegations of torture and ill-treatment made by the defendants and
witnesses during the trial, including the allegations made by the
first applicant, Mr Huseyn, during the trial (see paragraph 24
above). The annex then continued with the observers’ direct
observations and remarks concerning the trial itself:
“... In respect of Trial Group 15,
OSCE observers and the independent expert assessed that there was not
sufficient evidence upon which the court could base a reasoned
conclusion that it was certain the defendants organized, orchestrated
or were parties to the disorder which took place on the 16 October
2003. The evidence of witnesses for the prosecution was so poor and
so discredited in the trial that no reasonable tribunal could have
relied upon it to found the convictions. In its judgment, the court
failed to consider the overwhelming number of previous inconsistent
statements given by the majority of the prosecution witnesses, making
it impossible to view their evidence against the defendants as
credible.
For example, one of the key questions
for the court to determine was whether the defendant Igbal Agazade
made a speech from the tribune in Azadlig Square on 16 October.
If the court could not be satisfied about the veracity and accuracy
of the prosecution evidence on this question, then the case against
this defendant was fundamentally flawed and no reasonable tribunal
could have convicted him. One of the witnesses relied upon by the
prosecution to prove that Igbal Agazade made a speech from the
tribune gave evidence to the court that Agazade came to the Square
from the port side of the Square in a white car. However, a video
recording shown to the court made it clear that defendants Agazade
and Panah Huseynov came to the Square in a black Mercedes car and
that the car came from the side of the Square where the Intourist
Hotel was and not from the port side. The court failed to give this
matter any proper consideration and failed to take it into account
when assessing the probative value, if any,
that should be attached to the evidence of the witness. In all the
evidence in the case, no reasonable tribunal could have been
satisfied that the defendants Agazade or Huseynov acted in the way
suggested by the prosecution.
...
Many of the witnesses relied upon by the
prosecution made pre-trial statements to investigators which
were identically worded, and had identical punctuation and
typographical errors. This raises serious concern as a clear
indication that the investigators were preparing the statements
themselves, rather than recording faithfully the evidence of the
witness. Another concern was that according to records of
interrogations, investigators seemed to have interrogated more than
one witness at the same time on the same date. Accordingly, this
meant that either: (1) the records of interrogation were inaccurate
or that they had been falsified; or (2) if the records were correct,
that witnesses had been interrogated together, in breach of the
Criminal Procedure Code. Although no satisfactory explanation was
given for this, the court failed to carry out any adequate
investigation of this matter and failed to give it any proper
consideration when assessing the probative value of the evidence.
At the request of the defendants, the
court summoned a great number of witnesses, all of whom gave evidence
which, if accepted, materially assisted the defendants and cast a
real doubt on the prosecution case. In its judgment, however, having
summarised the evidence of the defence witnesses in a wholly
inadequate manner, the court dismissed their evidence in its entirety
by stating as follows: [a quotation of the text quoted in paragraph
66 above follows.]
This brief judgment failed to attach
sufficient importance to the evidence on behalf of the defendants,
dismissing it on spurious and inadequate grounds. The approach of the
court to the evidence of defence witnesses was flawed and
demonstrated a biased and prejudiced attitude against them. The
evidence presented by defence witnesses was crucial to the defence
case and yet, in its judgment, the court dealt with the evidence in a
superficial manner and rejected the evidence of all the witnesses
without giving any separate or detailed analysis of the grounds for
rejecting the evidence of each witness.”
Extracts
from a number of reports by international bodies and human rights
NGOs, describing the violent clashes between demonstrators and
law-enforcement authorities during the events of 15 and 16 October
2003, have previously been quoted in the Muradova case (cited
above, §§ 71-77).
Among
other similar reports by international NGOs, the report by Human
Rights Watch, entitled Crushing Dissent: Repression, Violence and
Azerbaijan’s Elections (January 2004 Vol. 16,
No. 1(D)), contains lengthy summaries of numerous first-hand
accounts by persons arrested in connection with the events of 15 and
16 October 2003 concerning the alleged acts of torture and
ill-treatment they had been subjected to while in detention. The
relevant statements were made by the alleged victims in interviews
personally conducted by Human Rights Watch researchers during the
organisation’s two missions to Azerbaijan from September to
November 2003.
THE LAW
I. JOINDER OF THE APPLICATIONS
Given
that the applications concern issues relating to the same set of
criminal proceedings, in which all of the applicants were
co-defendants, the Court has decided to join the applications in
accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
The
first applicant complained that he had been ill-treated while in
custody in the OCD. Furthermore, both the first and second applicants
complained about the conditions of their pre-trial detention. Article
3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
As
to the first applicant’s allegations concerning ill-treatment
in custody, the Government maintained that he had not exhausted the
available domestic remedies. In particular, they argued that, under
the relevant provisions of the CCrP (Articles 122 and 449), he could
have lodged an appeal to a superior prosecutor or a court against the
decision of 14 February 2004 rejecting his complaint of
ill-treatment. The Government accepted that the first applicant had
mentioned his allegations of ill treatment before the
first-instance court during his trial. However, they argued that he
had subsequently failed to raise the same complaint in substance in
his appeals to the higher courts.
As
to the substance of the first applicant’s allegations, the
Government noted that they were not precise, but instead were too
vague and incomplete, and no evidence had been produced to support
them. Even though, in the context of the separate investigation into
allegations of ill treatment conducted at domestic level, he had
been questioned about his allegations, he had refused to provide any
details and had refused to undergo a medical examination. Similarly,
the complaint of ill-treatment that he had made before the trial
court had been poorly substantiated as he had failed to specify, with
concrete details, what had specifically constituted the alleged
ill-treatment. Lastly, the Government maintained that the manner in
which the first applicant’s allegations had been addressed by
the domestic authorities had been effective and adequate, and that
the repeated failure by the applicant to identify the alleged
perpetrators of the alleged ill treatment and to specify its
nature and duration had impeded the domestic investigation into his
allegations.
As
to both the first and second applicants’ complaints concerning
the conditions of their pre-trial detention, the Government noted
that they had never complained about this to any domestic authority.
As to the substance of the second applicant’s allegations, the
Government noted that the conditions of his detention, while possibly
severe at the very beginning, had not amounted to ill-treatment and
that the arrangements for his detention had been gradually relaxed
and he had been given access to writing accessories, books,
newspapers and a radio, and had even been able to publish a book
while in pre-trial detention.
In
connection with his allegations of ill-treatment in custody at the
OCD, the first applicant argued that he had been tortured during the
initial questioning and had been threatened with persecution and
torture of his close relatives. He insisted that he had raised this
complaint before the domestic authorities and all the domestic
courts, but that no effective domestic investigation had been carried
out. He argued that, once he had raised a complaint of ill-treatment,
the burden was on the domestic authorities to prove that he had not
been tortured. He referred to a large number of other detainees’
accounts of ill-treatment following their arrests in connection with
the events of 15 and 16 October 2003 and maintained that, in general,
domestic investigations into allegations of ill-treatment were
inadequate and ineffective.
In
connection with the conditions of his detention, the first applicant
noted briefly that, after his transfer from the OCD to another
detention facility, he had been kept in solitary confinement and had
not been allowed to possess writing accessories, books, a radio or
newspapers, without specifying the duration for which he had been
kept in these conditions.
The
second applicant alleged that, for thirty-six days, he had been held
alone in a cell in “isolation” from the outside world,
with no access to writing accessories, books, a radio or newspapers.
Although he had raised this complaint before the trial court and
appeal courts, no effective examination of his allegations had been
carried out.
B. The Court’s assessment
The
Court finds that it is not necessary to examine whether the
applicants have exhausted domestic remedies as, even assuming that
they had done so, the complaints are in any event inadmissible for
the following reasons.
The Court reiterates that allegations of
ill-treatment must be supported by appropriate evidence. In assessing
evidence, the Court has generally applied the standard of proof
“beyond reasonable doubt” (see Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25). However,
such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact. Where the events in issue lie wholly, or in large part,
within the exclusive knowledge of the authorities, as in the case of
persons within their control in custody, strong presumptions of fact
will arise in respect of injuries occurring during such detention.
Indeed, the burden of proof may be regarded as resting on the
authorities to provide a satisfactory and convincing explanation (see
Ribitsch v. Austria, 4 December 1995, § 34, Series A
no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100,
ECHR 2000 VII). In particular, where an individual, when taken
into police custody, is in good health, but is found to be injured at
the time of release, it is incumbent on the State to provide a
plausible explanation of how those injuries were caused, failing
which a clear issue arises under Article 3 of the Convention (see
Tomasi v. France, 27 August 1992, §§ 108-11, Series
A no. 241 A, and Selmouni v. France [GC], no. 25803/94, §
87, ECHR 1999 V).
At
the outset, the Court notes that it cannot disregard the reports of
various NGOs and international organisations concerning the
widespread allegations of ill-treatment in custody of persons
arrested in connection with the events of 15 and 16 October 2003,
which contained numerous first-hand accounts of ill-treatment given,
in various degrees of detail, by the alleged victims. Similarly, the
Court notes that, even at the applicants’ own trial, not only
the first applicant but also a number of witnesses had complained
that they had been ill-treated in detention. Moreover, the Court
refers to its earlier judgment concerning a similar complaint made in
a separate application by the fourth applicant in the present case
(see Mammadov, cited above), in which it found that the
applicant had been tortured in the OCD’s detention facility in
circumstances similar to those alleged in the present case. All of
the above information supports, albeit indirectly, the first
applicant’s allegations made in the present case.
However,
this background information, in itself, is not sufficient for finding
a violation of Article 3 in the first applicant’s particular
circumstances. In order for the Court to reach such a finding, the
applicant’s allegations of ill-treatment must be proved beyond
reasonable doubt by appropriate evidence or such evidence should flow
from the coexistence of sufficiently strong, clear and concordant
inferences or of unrebutted presumptions of fact. However, the Court
notes that, unlike, for example, the Mammadov case, where
similar allegations of ill treatment were raised (cited above,
§§ 18 et seq.), the first applicant had not made a formal
complaint of ill-treatment, had not requested a forensic examination
as soon as possible after the alleged ill-treatment, and had not
provided any explanation as to his failure to do so. It is true that
his access to a lawyer was delayed for several days after his arrest,
and that this could have prevented him from taking the above steps
during that time; however, nothing was done in this connection after
the applicant had been able to meet the lawyer. While he lodged a
relevant complaint about four months after the alleged ill-treatment,
he expressly refused to undergo the forensic examination offered to
him. Nor has he submitted to the Court any other evidence confirming
the presence of any injuries on his person. No plausible explanation
has been offered for his failure to do so. Moreover, despite the
first applicant’s arguments to the contrary, it does not appear
from the documents in the case file that he ever gave the domestic
authorities a detailed and consistent description concerning the
method, duration or perpetrators of the alleged ill-treatment or the
chronology of the events. On the contrary, it appears that, whenever
specifically asked about these matters, each time he refused to
provide an answer, confining himself to making general or incomplete
statements. Nor has he provided a detailed account of these matters
in his submissions to the Court. In the absence of such an account
and of any evidence concerning any injuries that the applicant might
have sustained, the Court considers that there is insufficient
evidence either to prove the first applicant’s allegations
beyond reasonable doubt or at least to establish a prima facie case
of ill-treatment, in which event the burden of proof would be shifted
to the Government to provide a satisfactory and convincing
explanation.
Furthermore,
having regard to the substance and the level of detail of the first
and second applicants’ submissions concerning the alleged
conditions of their pre-trial detention, the Court considers that
they do not disclose an appearance of ill-treatment reaching the
minimum level of severity required under Article 3 of the
Convention.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1
AND 3 OF THE CONVENTION
Relying
on Article 6 §§ 1 and 3 (b), (c) and (d) and Article 13 of
the Convention, all of the applicants complained:
(i) that
two of the judges of the Assize Court had lacked impartiality;
(ii) that
they had not been given adequate time and facilities for the
preparation of their defence, as neither they nor their lawyers had
been given adequate access to the prosecution evidence;
(iii) that
they had not been able to receive effective legal assistance
throughout the criminal proceedings, including the initial stages of
the proceedings and the trial hearings;
(iv) that
the principle of equality of arms during the trial hearings had not
been respected as they had been unable to make their oral arguments
under the same conditions as the prosecution; and
(v) that
the accusations against them had been based on false evidence, that
they had been unable to properly examine witnesses against them and
to obtain the attendance and examination of defence witnesses under
the same conditions as witnesses against them, and that the domestic
court had failed to reply to their objections concerning the
witnesses and to provide adequate reasons for its decisions
concerning the admissibility and assessment of evidence.
The
Court considers that this complaint falls to be examined solely under
Article 6 of the Convention, the relevant parts of which read as
follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law. ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. Admissibility
1. The parties’ submissions
The
Government submitted that the first and third applicants had failed
to exhaust domestic remedies in respect of the part of the complaint
relating to the alleged lack of impartiality of the Assize Court’s
judges. They further submitted that the third applicant had failed to
exhaust domestic remedies in respect of the parts of the complaint
relating to the examination of witnesses, the provision of adequate
time and facilities for the preparation of his defence, and the right
to effective legal representation.
In
particular, the Government acknowledged that the applicants had
raised the issue of the judges’ lack of impartiality during the
Assize Court’s preliminary hearings. The Government noted,
however, that later in the course of the proceedings, on 6 September
2004, the first applicant had expressed an intention to raise a new
objection to the composition of the court, but had withdrawn his
objection the next day. They further submitted that, although the
first applicant had complained of a lack of impartiality on the part
of the Assize Court’s judges in his appeal before the Court of
Appeal, he had done so in general terms and had not substantiated his
complaint with detailed reasoning. Instead, in his oral submissions
before the Court of Appeal, he had complained of the Court of
Appeal’s lack of impartiality. Lastly, the Government submitted
that the third applicant had failed to raise this issue in his
appeals before the Court of Appeal and the Supreme Court.
Furthermore,
the Government argued that the third applicant had failed to raise
before the Court of Appeal or the Supreme Court any of the issues
relating to the parts of the present complaint falling under Article
6 § 3 (b), (c) and (d).
The
first applicant submitted that he had duly lodged the requisite
applications concerning the judges’ alleged lack of
impartiality at the preliminary hearings in the Assize Court.
Subsequently, he had submitted properly substantiated complaints in
this regard in his written appeals and oral submissions before the
Court of Appeal and the Supreme Court. In particular, in the
transcript of his speech before the Court of Appeal, six pages were
devoted to this issue.
The
third applicant noted that, while his appeals had not specifically
touched upon the issue of the judges’ lack of impartiality, he
had complained about this matter in his oral submissions to the
appellate courts. As to the alleged non-exhaustion of domestic
remedies in respect of other complaints, the third applicant argued,
firstly, that he had complained about these matters in his appeals,
albeit briefly. Secondly, he noted that he had raised more detailed
arguments in his oral submissions before the appeal courts. Thirdly,
he noted that he and his co-defendants had always taken a joint and
uniform position on all matters relating to their defence. Since his
co-defendants had made very detailed complaints regarding every
problematic aspect of the trial in their respective appeals, he was
dispensed from the requirement to make the same submissions in the
same degree of detail in his written appeal, especially in the light
of the fact that the domestic courts consistently treated any
applications or submissions by any of the defendants as common and
applicable to all of the defendants.
2. The Court’s assessment
The Court reiterates that the rule of exhaustion of
domestic remedies referred to in Article 35 of the Convention obliges
those seeking to bring their case against the State before an
international judicial or arbitral organ to use first the remedies
provided by the national legal system, thus dispensing the States
from answering before an international body for their acts before
they have had an opportunity to put matters right through their own
legal systems. In order to comply with this rule, normal recourse
should be had by an applicant to remedies which are available and
sufficient to afford redress in respect of the breaches alleged. The
Court notes that the application of this rule must make due allowance
for the context of the individual case including, among other things,
the personal circumstances of the applicant. Accordingly, the Court
has recognised that Article 35 § 1 must be applied with
some degree of flexibility and without excessive formalism (see
Akdivar and Others v. Turkey, 16 September 1996, §§
65-66 and 69, Reports of Judgments and Decisions 1996 IV).
As
to the Government’s objection in respect of the first
applicant, the Court observes that he lodged formal applications with
the Assize Court objecting to the participation of Judges Ibayev and
Aleskerov on the ground of their lack of impartiality. The
applications were properly substantiated with relevant reasoning.
Moreover, these applications were joined by all the other applicants,
including the second and fourth applicants, in respect of whom the
Government did not raise a similar objection, thus implicitly
accepting that they had properly raised this issue before the
relevant domestic authority. Accordingly, the Court sees no reason
justifying the Government’s assertion that the first applicant
had somehow failed to do so. The Court cannot accept the Government’s
argument concerning the applicant’s alleged failure to lodge a
repeated objection in respect of those judges at a later stage of the
proceedings. Once the first applicant had raised this objection at
the preliminary hearings in accordance with the formal requirements
of the domestic law and obtained an unsuccessful outcome, neither the
Convention nor the domestic law required him to keep raising the same
objection repeatedly before the same court.
Furthermore,
having regard to the content of the first applicant’s appeals
and transcripts of his oral submissions before the appellate courts,
the Court is satisfied that the applicant has raised before those
courts, in sufficient detail and with sufficient substantiation, the
essence of his complaint concerning the alleged impartiality of the
Assize Court’s judges.
As
to the Government’s objection in respect of the third
applicant, the Court, having regard to the content of his appeal (see
paragraph 89 above), finds that it was indeed very generally worded
and did not address any of the specific allegations he made before
the Court in his complaint under Article 6 §§ 1 and 3 (b),
(c) and (d) of the Convention. Nevertheless, the Court considers
that, in the specific context of the present case, the situation of
the third applicant calls for the rule of exhaustion of domestic
remedies to be applied with a certain degree of flexibility, for the
following reasons.
The
Court notes that the third applicant was in a situation very similar
to that of the other applicants. In particular, all of the applicants
were defendants in the same criminal proceedings facing the same
criminal charges based on the same incriminating evidence. All of the
applicants were affected by the same or similar alleged breaches of
their defence rights. All of the applicants consistently joined and
supported each other’s objections, applications, arguments and
complaints before the domestic courts. Moreover, as correctly pointed
out by the third applicant, even the domestic courts often addressed
any objections and complaints lodged by one of the applicants as if
they were applicable to all of the defendants.
As
noted above, the first applicant has, to a sufficient degree, brought
all of the matters raised in the present complaint to the attention
of the domestic courts in his applications and appeals. Moreover, by
not raising a similar objection in respect of the second and fourth
applicants, the Government can be considered to have implicitly
accepted that they had likewise exhausted domestic remedies.
Accordingly, in so far as the third applicant was in the same
situation as the other applicants and raised the same complaints
before the Court, the domestic appeals lodged by the other applicants
sufficiently brought to the domestic authorities’ attention all
of the alleged defects in the trial that affected all of them,
including the third applicant. In view of the above considerations,
it cannot be argued that his written appeals would have had any more
prospects of success had they been substantiated to the same degree
as the other applicants’ appeals. Moreover, the Court takes
note of the third applicant’s assertion that, in any event, his
oral submissions before the appellate courts were more specific and
detailed than his written appeals.
For
these reasons, the Court dismisses the Government’s objection
in respect of the first and third applicants. It further notes that,
in so far as all four applicants are concerned, their complaints are
not manifestly ill founded within the meaning of Article 35 §
3 (a) of the Convention and are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
As
to the alleged lack of impartiality of the tribunal, the Government
maintained that the applicants’ fears about the lack of
impartiality of Judges Aleskerov and Ibayev had not been objectively
justified. In respect of Judge Aleskerov, the Government submitted
that the Assize Court had examined the applicants’ complaint
about his alleged lack of impartiality and found that the judge’s
brother had indeed been a member of the investigation team in
criminal case no. 80308. However, on 26 January 2004, he had
been excluded from that team and, subsequently, had not been included
in the investigation team for criminal case no. 80365, in which the
applicants had been defendants. Accordingly, Judge Aleskerov’s
brother had not personally carried out any investigative steps or
otherwise been involved with the applicants’ specific criminal
case.
The
Government further submitted that the mere fact that Judge Ibayev’s
son worked at the Prosecutor General’s Office was insufficient
to justify any fears that his father would not be impartial. Judge
Ibayev’s son had never been involved with the applicants’
case at any stage of the proceedings.
As
to the applicant’s grievances concerning the ineffectiveness of
the legal assistance provided to them, the Government submitted that
the applicants’ lawyers had been appointed in October 2003, had
participated in the case from the very beginning and that therefore
they had been able to represent their clients effectively. Moreover,
during the trial some of the applicants had also been represented by
additional lawyers hired by their relatives.
The
Government maintained that the applicants and their lawyers had been
given access to the investigation material for a sufficient period of
time necessary for the preparation of their defence. All of them had
signed relevant records on familiarisation with the material in the
case file without making any remarks as to the alleged inadequacy of
the time and facilities afforded to them in order to prepare their
defence.
The
Government further noted that the preliminary hearings of the Assize
Court had been extended for a period of more than a month owing to
the applicants’ and their lawyers’ failures to appear. In
view of this, the Government concluded that the defence had been
given sufficient time to prepare their defence before the trial
hearings. Subsequently, the applicants’ lawyers had conducted
the defence during the entire trial. Although the lawyers had refused
to deliver closing addresses for the defence, they had not refused to
continue providing their legal services to the applicants. Under
Article 360.1 of the CCrP, the accused could be allowed to make a
closing address in person only if no defence lawyer participated in
the proceedings. As the applicants had lawyers, the Assize Court had
correctly dismissed their request to make oral submissions in person.
On the other hand, they had been allowed to make what actually
amounted to a defence speech during the exercise of their right of
reply and in their final pleas.
As
to the applicants’ claim that the Assize Court had not provided
them with copies of its interim decisions in a timely manner (see
paragraph 157 below), the Government noted that the applicants had
been duly informed of those decisions at the time when they had been
publicly announced during the hearings and that copies of the
decisions had been given to the applicants afterwards. The time of
delivery of the written text of the interim decisions rejecting the
applicants’ various applications was of no importance, as in
any event those decisions could not be challenged at that stage of
the proceedings and became open to challenge only at the appellate
stage of proceedings in the Court of Appeal.
In
respect of the examination of witnesses, the Government submitted
that the rights of the defence had been adequately secured at the
trial. The applicants had been able to cross-examine the prosecution
witnesses. Almost all of the applicants’ requests to obtain the
attendance of defence witnesses had been granted. In particular, by
its decisions of 8, 22, 27 and 28 September 2004 the Assize Court had
granted the applicants’ requests to that effect. In their
request of 29 September 2004 to complete the judicial examination of
the evidence, the applicants had admitted that the defence had been
able to obtain the attendance of about forty witnesses who had
testified on their behalf.
As
to the assessment of evidence produced during the trial, the
Government maintained that it was not the Court’s task to take
the place of the domestic courts. The domestic court was better
placed to assess the competing versions of information provided by
witnesses and, in doing so, had the advantage of hearing the
witnesses and observing their demeanour at the witness stand. The
applicants had been convicted following adversarial proceedings on
the basis of the evidence examined at the hearings.
The
Government maintained that, when dismissing the applicants’
objections on various points of contention, the domestic courts had
provided detailed reasons for their decisions. The applicants had
been given the opportunity to put forward their arguments. Their
arguments, even if ultimately rejected by the domestic courts, had
nevertheless been duly taken into account and rejected on the basis
of reasoning which appeared consistent and devoid of arbitrariness.
Lastly,
the Government submitted that, even if there had been any defects in
the original trial, they had been subsequently corrected by the
appeal proceedings before the Court of Appeal and the Supreme Court.
Accordingly, if considered as a whole, the criminal proceedings had
been conducted in a manner compatible with the requirements of a fair
trial.
(b) The applicants
As
to the alleged impartiality of the Assize Court’s judges, the
applicants submitted that Article 109.1.7 of the CCrP unconditionally
required that a judge should be disqualified from hearing a case if
he or she was related to or personally dependent on any participants
in the proceedings, including those from the prosecution side. The
applicants noted that Judge Aleskerov’s brother, as a member of
the investigation team in criminal case no. 80308, had been
directly involved in the investigative steps taken from 16 October
2003 and had signed a number of procedural documents, and that the
evidence relating to their case had been gathered with his active
involvement. For a period of more than three months (until his
removal from the investigation team), he had personally conducted
numerous interviews and had actively worked on the case in other
ways. Although on 26 January 2004 Judge Aleskerov’s brother had
been removed from the criminal case, the majority of the evidence
against the defendants had been gathered and the majority of the
investigative steps had been carried out prior to that date. The
evidence gathered during the time when he had participated in the
investigation had eventually been produced during the trial.
The
applicants disagreed with the Government’s contention that
Judge Aleskerov’s brother had never been involved in the
applicants’ specific cases, which had been grouped together as
criminal case no. 80365. The applicants noted that criminal case no.
80365 had merely been part of the original criminal case no. 80308,
which had eventually been divided into fifteen different parts, and
that it had not been a new independent case. The applicants noted
that case no. 80365 had been severed from the original criminal case
on 1 March 2004 and that, shortly thereafter, they had been informed
that the investigation had been completed. Accordingly, very little
investigative activity had been carried out in respect of this newly
created case, since the vast majority of the evidence serving as the
foundation for the applicants’ indictment had already been
gathered in the context of the original case no. 80308. The mere fact
that the applicants had been separated from the other defendants and
their criminal case had been assigned a new number did not mean that
they had become the subject of a completely different criminal case.
Relying
on the above considerations, the applicants maintained that Judge
Aleskerov’s brother had been formally involved in and made a
significant contribution to the prosecution’s work, that Judge
Aleskerov by his own admission had been aware of his brother’s
role in the proceedings and that, in view of such close family
kinship with a member of the prosecution team, he could not have been
impartial when hearing their case.
As
to the alleged lack of impartiality on the part of Judge Ibayev, the
applicants noted not only that his son had worked as an investigator
at the Prosecutor General’s Office, but also that he was
directly subordinate to Mr Kazimov, the head of the investigation
team in the applicants’ case. This fact raised serious doubts
as to the impartiality of Judge Ibayev, even though his son had not
been personally involved in their criminal case.
As
to the effectiveness of the legal assistance received, the first,
third and fourth applicants noted the delays in their access to a
lawyer at the initial stages of the proceedings. Furthermore, all of
the applicants maintained that their lawyers had been unable to
familiarise themselves to a sufficient extent with the investigation
material and had been put under unprecedented physical and moral
pressure from outside the courtroom. In such conditions, they had
been unable to defend the applicants effectively. In particular, the
obstacles faced by the lawyers had prevented them from preparing an
adequate closing address on behalf of the defence and they had
therefore refused to give an address altogether. The applicants had
had no other choice but to request leave to deliver their closing
addresses themselves, but their request had been rejected, depriving
them of the opportunity to exercise one of the most important defence
rights. Although they had been allowed to exercise their right of
reply to the prosecution’s submissions, this “right of
reply” was not tantamount to a comprehensive closing address,
as it was defined as a right to make a brief objection to or
observation on various specific submissions made by the opposing
party during the oral arguments. Moreover, the restriction of the
rights of the defence was exacerbated by the fact that the
prosecution had been granted two separate extensions of the period to
prepare their oral argument.
As
to the examination of witnesses and other evidence, the applicants
maintained that the Assize Court had made manifest errors in its
legal reasoning and the assessment of evidence. They submitted that
the Convention did not merely require verification of whether certain
witnesses had been called and cross-examined by the defence, but that
it required that any assessment of evidence be devoid of unfairness
and arbitrariness.
The
applicants pointed out that, although the Assize Court had allowed
them to have a number of defence witnesses examined, it had
nevertheless rejected their applications to call a number of other
witnesses whom they had wished to question.
The
applicants noted that, when dealing with the witnesses who had
retracted their earlier pre-trial statements incriminating the
applicants, the Assize Court had often relied on the judgments
adopted in previous trials concerning the events of 15 and 16 October
2003 (in which the applicants had not participated), where various
evidentiary issues had been assessed, citing those judgments’
res judicata character, and had thus essentially deprived the
applicants of a fair assessment of the evidence at their own trial.
The Assize Court had not given due attention to numerous statements
by various witnesses to the effect that their pre-trial statements
had been extracted from them by means of ill-treatment.
The
applicants submitted that there had been a number of other procedural
shortcomings during the trial. In particular, they claimed that the
Assize Court had not provided them with copies of its various interim
decisions in a timely manner. They also claimed that the transcripts
of court hearings had often been incorrect and incomplete and that
they had been unable to request the court to correct them, as the
transcripts had not been made available for their review within three
days after the record of each hearing had been signed by the
presiding judge and the court clerk, as required by law.
2. The Court’s assessment
As
the requirements of paragraph 3 of Article 6 are to be seen as
particular aspects of the right to a fair trial guaranteed by
paragraph 1, the Court will examine the complaint under both
provisions taken together (see, among many other authorities, F.C.B.
v. Italy, 28 August 1991, § 29, Series A no. 208 B;
Poitrimol v. France, 23 November 1993, § 29, Series A no.
277 A; Lala v. the Netherlands, 22 September 1994, §
26, Series A no. 297 A; and Krombach v. France, no.
29731/96, § 82, ECHR 2001 II). In doing so, the Court will
examine, in turn, each of the various grounds giving rise to the
present complaint, in order to determine whether the proceedings,
considered as a whole, were fair (compare Barberà,
Messegué and Jabardo v. Spain, 6 December 1988, §§
68 et seq., Series A no. 146).
(a) Impartiality of the Assize Court’s
judges
The
Court reiterates that the existence of impartiality for the purposes
of Article 6 § 1 must be determined according to a subjective
test, that is, on the basis of the personal conviction of a
particular judge in a given case, and also according to an objective
test, that is, ascertaining whether the judge offered guarantees
sufficient to exclude any legitimate doubt in this respect (see Fey
v. Austria, 24 February 1993, § 28, Series A no. 255 A).
As to the subjective test, the personal impartiality
of a judge must be presumed until there is proof to the contrary (see
Hauschildt v. Denmark, 24 May 1989, § 47, Series A
no. 154). As regards the type of proof required, the Court has, for
example, sought to ascertain whether a judge has displayed hostility
or ill-will for personal reasons (see De Cubber v. Belgium,
26 October 1984, § 25, Series A no. 86).
Under
the objective test, it must be determined whether, quite apart from
the judge’s personal conduct, there are ascertainable facts
which may raise doubts as to his impartiality. In this respect even
appearances may be of a certain importance. What is at stake is the
confidence which the courts in a democratic society must inspire in
the public and, above all, in the accused. This implies that in
deciding whether in a given case there is a legitimate reason to fear
that a particular judge lacks impartiality, the standpoint of the
accused is important but not decisive. What is decisive is whether
this fear can be held to be objectively justified (see Fey,
cited above, § 30).
Moreover, the existence of national procedures for
ensuring impartiality, namely rules regulating the withdrawal of
judges, is a relevant factor. Such rules manifest the national
legislature’s concern to remove all reasonable doubts as to the
impartiality of the judge or court concerned and constitute an
attempt to ensure impartiality by eliminating the causes of such
concerns. In addition to ensuring the absence of actual bias, they
are directed at removing any appearance of partiality and so serve to
promote the confidence which the courts in a democratic society must
inspire in the public (see MeZnarić v. Croatia,
no. 71615/01, § 27, 15 July 2005). The Court may take
such rules into account when making its own assessment as to whether
a tribunal was impartial and, in particular, whether the applicant’s
fears can be held to be objectively justified (see, mutatis
mutandis, Pescador Valero v. Spain, no. 62435/00,
§§ 24-29, ECHR 2003 VII, and Pfeifer and Plankl v.
Austria, 25 February 1992, § 36, Series A no. 227).
Turning to the present case, the Court considers
that, under the subjective test, there is insufficient evidence that
either of the two challenged judges of the Assize Court displayed
personal bias. However, although in many cases it may be difficult to
procure evidence with which to rebut the presumption of the judge’s
subjective impartiality, it must be remembered that the requirement
of objective impartiality provides a further important guarantee.
Accordingly, the Court will proceed to examine the complaint under
the objective test.
As
to the alleged lack of objective impartiality on the part of Judge
Aleskerov, the Court considers that the applicants reasonably
construed the situation as one requiring withdrawal within the
meaning of Article 109.1.7 of the CCrP, on the ground that the judge
had a family relationship with a representative of one of the parties
to the criminal proceedings. Moreover, it notes that Article 109.2 of
the CCrP obliges a judge falling within the scope of one of the
grounds for withdrawal or challenge set out in Article 109.1 to
withdraw from the case without waiting to be challenged.
The
Court notes that both the prosecution and the judges of the Assize
Court, including Judge Aleskerov himself, acknowledged the fact that
Judge Aleskerov’s brother had been an active member of the
investigation team working on the applicants’ criminal case
until 26 January 2004. However, in the Court’s view, the
decision to reject the applicants’ challenge on the ground that
the judge’s brother was no longer involved in the investigation
of case no. 80308 and had never been formally involved in case no.
80365 was overly formalistic and ignored a number of relevant
factors.
The
Court notes, firstly, that case no. 80365 was not a separate and
unrelated criminal case, but merely an offshoot of the original
criminal case no. 80308. The applicants had the status of accused
persons in criminal case no. 80308 from the very beginning of the
proceedings. As appears from the Prosecutor General’s decision
of 1 March 2004, the only discernible reason offered by the
prosecution for severing case no. 80365 from case no. 80308 was to
ensure the conclusion of the investigation in respect of those
accused whose individual cases were ready for trial and their speedy
committal for trial, as it was considered too difficult in practice
to hold a single trial for more than one hundred defendants. It was
specifically stated in that decision that, by the time case no. 80365
was severed, the prosecution had essentially gathered, in the context
of the investigation in criminal case no. 80308, all the evidence
necessary to bring the applicants to trial. Accordingly, the Court
considers that both Judge Aleskerov and his brother were de facto
involved in the same criminal case concerning the same defendants
and the same criminal charges, notwithstanding any regrouping of
defendants into separate sets of proceedings and formal reassignments
of case numbers that had taken place in the meantime.
Secondly, although the judge’s brother was
removed from the investigation team on 26 January 2004, it appears
from the case file that the majority, if not all, of the main
incriminating evidence subsequently used against the applicants at
the trial had been collected by the investigation team prior to that
date. While it could be argued that, given that at some point the
investigation team consisted of as many as forty-three investigators,
the involvement of the judge’s brother in the case had not been
substantial, the Court nevertheless notes that he had contributed a
share of the work in collecting evidence that his brother, Judge
Aleskerov, would subsequently be called upon to examine at the trial.
Moreover, at the trial, the judge would be called upon not only to
assess the prosecution’s submissions on their merits, but also
to examine the defence’s numerous objections and arguments
concerning the conduct of the investigation team and the allegedly
faulty manner in which the evidence had been collected at the
pre-trial stage of the proceedings. In such circumstances, the Court
is of the view that the close family ties between a member of a
prosecution team and Judge Aleskerov sufficed to objectively justify
the applicants’ fears that the judge lacked an appearance of
objective impartiality (compare, mutatis mutandis, Micallef
v. Malta [GC], no. 17056/06, §
102, ECHR 2009 ...).
As
to the alleged lack of impartiality on the part of Judge Ibayev, the
Court observes that the applicants’ fears were based on the
fact that his son was an employee of the Prosecutor General’s
Office who was directly subordinate to the prosecutor who had served
as a head of the investigation team in the applicants’ case.
Given that Judge Ibayev’s son had never been assigned to work
on the applicants’ case, the Court considers that this part of
the complaint, if viewed separately, concerns a situation where Judge
Ibayev’s link with one of the parties to the proceedings might
be seen as too remote to objectively justify any fears of lack of
impartiality on his part. However, taking into account the fact that
both Judges Aleskerov and Ibayev were members of the same three-judge
panel of the Assize Court that heard the applicants’ case, the
Court considers it inappropriate to view the applicants’
objections in respect of each of these judges independently of each
other. The Court considers that, however insignificant and remote the
link of Judge Ibayev with the prosecution might have been considered
if viewed separately, in the specific context of the present case his
situation at least compounded the justified fears mentioned above as
to the Assize Court’s lack of impartiality arising from the
situation of Judge Aleskerov.
The
foregoing considerations are sufficient to enable the Court to
conclude that the composition of the Assize Court was not such as to
guarantee the appearance of its impartiality and that it failed to
meet the Convention standard under the objective test.
(b) Legal assistance at the initial stage
of the proceedings
The
Court observes that the first, third and fourth applicants were not
allowed contact with a lawyer during the first few days of the
pre-trial investigation. Specifically, the first applicant was
allowed to meet his lawyer for the first time five days after his
arrest, the third applicant three days after his arrest, and the
fourth applicant four days after his arrest.
The
Court reiterates that, although not absolute, the right of everyone
charged with a criminal offence to be effectively defended by a
lawyer, assigned officially if need be, is one of the fundamental
features of a fair trial (see Krombach, cited above, §
89). In this regard, Article 6 may also be relevant before a case is
sent for trial and in so far as the fairness of the trial is likely
to be prejudiced by an initial failure to comply with it (see
Imbrioscia v. Switzerland, 24 November 1993, § 36, Series
A no. 275, and Öcalan v. Turkey [GC], no. 46221/99, §
131, ECHR 2005-IV). The manner in which Article 6 §§ 1 and
3 (c) are applied during the investigation depends on the special
features of the proceedings and the facts of the case. Article 6 will
normally require that the accused be allowed to benefit from the
assistance of a lawyer from the initial stages of police
interrogation (see John Murray v. the United Kingdom, 8
February 1996, § 63, Reports 1996 I, and Öcalan,
cited above, § 131). As the Court has further clarified, in
order for the right to a fair trial to remain sufficiently “practical
and effective”, Article 6 § 1 requires that, as a rule,
access to a lawyer should be provided from the first interrogation of
a suspect by the police, unless it is demonstrated in the light of
the particular circumstances of each case that there are compelling
reasons to restrict this right. Even where compelling reasons may
exceptionally justify denial of access to a lawyer, such restriction
– whatever its justification – must not unduly prejudice
the rights of the accused under Article 6. The rights of the defence
will in principle be irretrievably prejudiced when incriminating
statements made during police interrogation without access to a
lawyer are used for a conviction (see Salduz v. Turkey [GC],
no. 36391/02, § 55, ECHR 2008-...). Even in cases where an
accused person remained silent and was not questioned in detention, a
restriction of his or her right to legal assistance from the time of
the arrest may fall short of the requirements of Article 6 §§
1 and 3 (c) of the Convention (see Dayanan v.
Turkey, no. 7377/03, §§
32-33, ECHR 2009 ...).
In
the present case, it appears that, in the first few days of their
detention, the first, third and fourth applicants were questioned
without the benefit of legal assistance and made certain statements
that were included in the criminal case file. It does not appear that
any of them had expressly waived their right to a lawyer after their
arrest. Having regard to the information available on this matter,
the Court cannot speculate on the exact impact which the applicants’
access to a lawyer during that period would have had on the ensuing
proceedings and whether the absence of a lawyer during that period
irretrievably affected their defence rights. Nevertheless, the Court
notes that such a restriction on initial access to legal assistance
affected the applicants’ defence rights.
Consequently,
the Court considers that the restriction on the first, third and
fourth applicants’ right of access to a lawyer during the first
few days of the pre-trial investigation infringed their defence
rights.
(c) Access of the defence to the
investigation file
The
Court notes that all of the applicants complained that their lawyers
had not been given sufficient time and facilities to study the
investigation file. This eventually resulted in the lawyers’
subsequent inability to effectively defend the applicants and to
properly formulate defence arguments during the trial.
More specifically, all of the applicants consistently
claimed that neither they nor their counsel had been given sufficient
access to the prosecution evidence after the pre-trial investigation
had been completed and before the trial commenced, nor had they
enjoyed such access after the trial had commenced, despite their
repeated complaints to that effect. The Court reiterates that the
right to an adversarial trial under Article 6 § 1 of the
Convention means, in a criminal case, that both prosecution and
defence must be given the opportunity to have knowledge of and
comment on the observations filed and the evidence adduced by the
other party. Various ways are conceivable in which national law may
meet this requirement. However, whatever method is chosen, it should
ensure that the other party will be aware that observations have been
filed and will have a real opportunity to comment on them (see
Brandstetter v. Austria, 28 August 1991, §§ 66-67,
Series A no. 211). Article 6 § 3 (b) guarantees the accused
“adequate time and facilities for the preparation of his
defence” and therefore implies that the substantive defence
activity on his behalf may comprise everything which is “necessary”
to prepare the main trial. The accused must have the opportunity to
organise his defence in an appropriate way and without restriction as
to the possibility of putting all relevant defence arguments before
the trial court and thus of influencing the outcome of the
proceedings (see Can v. Austria, no. 9300/81, Commission
report of 12 July 1984, § 53, Series A no. 96; Connolly
v. the United Kingdom, no. 27245/95, Commission decision of
26 June 1996; and Mayzit v. Russia, no. 63378/00, § 78,
20 January 2005). The facilities which everyone charged with a
criminal offence should enjoy include the opportunity to acquaint
himself for the purposes of preparing his defence with the results of
investigations carried out throughout the proceedings (see C.G.P.
v. the Netherlands, no. 29835/96, Commission decision of 15
January 1997, and Foucher v. France, 18 March 1997, §§
31-38, Reports 1997-II). The issue of the adequacy of the time
and facilities afforded to an accused must be assessed in the light
of the circumstances of each particular case.
The
Court observes that the prosecution’s case file was rather
large, consisting, inter alia, of more than 6,200 pages of
documents in twenty-two volumes and video evidence recorded on
twenty-two video cassettes. Examination of such a large volume of
evidence by the defence inevitably required a substantial amount of
time (compare Öcalan, cited above, §§ 142-47).
The Government maintained that the defence had been given sufficient
time to examine the case file, relying merely on the fact that each
of the defence lawyers and applicants had signed a record on
familiarisation with the material in the case file without making any
remarks as to the inadequacy of the time and facilities afforded to
them for doing so. The Court cannot accept this argument. It notes
that signing a record on familiarisation with the material in the
case file appears to be a procedural formality of minor legal
significance, aimed at documenting the fact that the persons
concerned have indeed been given access to the case file, but it does
not necessarily follow from this that the signing of such a record
may somehow attest in any way whether the time and facilities for
such access were sufficient or may serve as an unequivocal waiver of
any substantive or procedural grievances the defence may have had in
connection with the process of consulting the investigation file.
Moreover, the Court observes that the lawyers repeatedly complained
during the criminal trial that they had not been given adequate time
to examine the investigation file to a sufficient extent; some of
them even complained that they had been pressured into signing
records on familiarisation with material in the case file without
having ever been given access to the material at all. Although the
Court is not obliged to accept these allegations at face value, it
nevertheless considers that the allegations should be given a
considerable amount of credit because they were serious, repeatedly
made and mutually concordant, and because of the apparent fact that
the domestic courts avoided addressing them in any reasonable detail.
Moreover,
apart from the above-mentioned argument, the Government have not
submitted any relevant information as to the exact period of time or
the manner in which the defence were allowed to consult the
investigation file, that is, whether each lawyer or applicant was
given a copy of the relevant material or whether they had to consult
the file on the premises of the investigation authorities. As a
notable exception, the Government submitted information as to the
schedule of access to the prosecution evidence by one of the second
applicant’s lawyers, Mr Karim; however, as the case stands,
this information is irrelevant, as Mr Karim was dismissed as the
second applicant’s lawyer and did not represent him during the
trial. Otherwise, the Court notes that neither the exact period of
time, nor the exact schedule and manner of the defence’s access
to the case file is possible to discern from the documents submitted
by the parties. The Court takes note of the observations made in the
OSCE Report that “only one copy of the case
materials was made available to the defendants, thus restricting the
preparation of their defense ...”.
178. In
view of this, and in view of the applicants’ and their lawyers’
consistent and repeated complaints made before the domestic courts on
this matter, and the lack of any relevant or discernible factual
information in the Government’s submissions, the Court finds
that the circumstances of the case disclose serious problems as to
the adequacy of the time and facilities afforded to the defense for
acquainting themselves with the investigation file in preparation for
the applicants’ trial.
(d) Effective legal assistance during the
trial
The
Court observes that, starting from the Assize Court’s very
first preliminary hearings and at various times throughout the trial
proceedings, all of the applicants’ lawyers repeatedly
complained that they had not been able to provide their clients with
adequate legal assistance owing to the limited time and facilities
for the preparation of their defence and the alleged pressure applied
on them outside the courtroom. These complaints eventually culminated
in the refusal by the lawyers for the first three applicants to
deliver closing addresses on their behalf. The lawyers did not
formally terminate their services and remained as the applicants’
formal representatives, but did not actively participate in the trial
from that moment.
In
this connection, the Court reiterates that, under Article 6 § 3
(c) of the Convention, an accused is entitled to legal assistance
which is practical and effective and not theoretical or illusory.
This Convention provision speaks of “assistance” and not
of “nomination”: mere nomination does not ensure
effective assistance since a lawyer may be prevented from providing
such assistance owing to various practical reasons, or shirk his or
her duties. A State cannot be held responsible for every shortcoming
on the part of a lawyer appointed for legal-aid purposes. However, if
a failure by legal-aid counsel to provide effective representation is
manifest or is sufficiently brought to the authorities’
attention in some other way, the authorities must take steps to
ensure that the accused effectively enjoys the right to legal
assistance (see Artico v. Italy, 13 May 1980, §§
33-37, Series A no. 37, and Kamasinski v. Austria, 19
December 1989, § 65, Series A no. 168). Moreover,
where it is clear that the lawyer representing the accused before the
domestic court has not had the time and facilities to organise a
proper defence, the court should take measures of a positive nature
to ensure that the lawyer is given an opportunity to fulfil his
obligations in the best possible conditions (see, mutatis
mutandis, Goddi v. Italy, 9 April 1984, § 31,
Series A no. 76).
In
so far as some of the lawyers representing the applicants were
State-appointed, the Court considers that, irrespective of whether
any or all of the lawyers’ claims about alleged obstacles to
the adequate performance of their job had any merit, their eventual
refusal to give closing addresses and to actively participate in the
trial in other ways from that moment clearly resulted in a situation
where the accused were left without any effective legal assistance
during a considerable portion of the trial. The applicants’
inability to receive effective representation was thus manifest and
was brought to the Assize Court’s attention in a clear manner,
namely by way of repeated complaints and applications in this regard
made by both the applicants and their lawyers and by the very fact of
the lawyers’ refusal to take part in the oral submissions.
It could be argued that the Assize Court addressed the matter in its
ruling of 13 October 2004, rejecting the applicants’
application to make oral submissions in person owing to their
lawyers’ de facto withdrawal (see paragraphs 78-79
above). However, in the Court’s opinion, the Assize Court’s
ruling of 13 October 2004 was superficial and contradictory. Thus,
the Assize Court firstly stated, without any relevant explanation,
that the lawyers had provided the applicants with adequate and
effective assistance throughout the entire proceedings. However, it
immediately followed up that statement with the contradictory remark
that the lawyers had allegedly failed to perform their duty to avail
themselves of the allegedly ample opportunities allowed to them for
consulting the investigation file. This remark obviously contradicted
the court’s own proclaimed view that the legal assistance
provided by the lawyers had been effective. The Court considers that
such a perfunctory approach to the matter reveals an apparent lack of
concern by the domestic court about the effectiveness of legal
representation available to the applicants. There is no indication in
the case file that the domestic court attempted to independently and
comprehensively assess the alleged problems repeatedly raised by the
applicants and their lawyers.
In
the Court’s view, the situation at hand called for at least a
certain level of examination by the Assize Court of the specific
allegations made by the lawyers; for example, the Assize Court should
have requested and had regard to detailed information on the time and
facilities afforded to them for consulting the prosecution evidence.
Should the Assize Court have concluded that there had indeed been
obstacles preventing the lawyers from doing their work properly, it
should have attempted to remedy the situation by removing those
obstacles. For example, it could have adjourned the hearings for a
certain period in order to allow the lawyers to familiarise
themselves with the case file to a sufficient extent. Alternatively,
having regard to the fact that, at various points during the trial,
some of the applicants expressed a wish to defend themselves in
person because of the perceived ineffectiveness of the legal
representation they were receiving, the domestic court could have at
least taken this into account and afforded them time to prepare their
defence in person. However, this was not done either (see also
section (e) below).
In
so far as some of the lawyers were hired by the applicants
themselves, the Court considers that in the present case the
situation is no different from that of legal representation by
State-appointed lawyers. While the State cannot be held responsible
for the quality of representation by a lawyer of the applicant’s
own choosing, it should nevertheless ensure that such a lawyer has an
opportunity to fulfil his or her obligations in the best possible
conditions. Where it is clear that the lawyer is unable to represent
his client effectively owing to the lack of time and facilities to
organise a proper defence, appropriate positive measures should be
taken to remedy the situation.
The
Court notes that the fourth applicant’s lawyers, unlike the
other applicants’ lawyers, gave closing addresses on behalf of
their client. However, these lawyers joined their colleagues in their
complaints concerning the alleged obstacles to organising the
applicants’ proper defence. The fourth applicant himself joined
the other applicants’ application for leave to defend
themselves in person, arguing that the legal representation he was
receiving was ineffective. Accordingly, the domestic court was
likewise sufficiently informed of the problems regarding effective
representation in the fourth applicant’s case and, as in the
cases of the other applicants, did not take adequate steps to address
the matter.
In
view of the above considerations, the Court considers that, although
the applicants’ inability to benefit from effective legal
representation was manifest and was sufficiently brought to the
domestic courts’ attention, no adequate steps were taken to
ensure that they effectively enjoyed their right to legal assistance
as guaranteed by the Convention.
(e) Deficiencies in ensuring the
defendants’ rights to give closing addresses at the concluding
hearings of the trial
The
Court notes that, as discussed above, the lawyers for the first,
second and third applicants refused to participate in the oral
arguments on their clients’ behalf and the applicants applied
to the court for leave to deliver their closing addresses in person.
Their application was not granted, on the ground that the domestic
law did not allow defendants to deliver a closing address for the
defence if they were formally represented by counsel in the
proceedings. As a result, the applicants found themselves in a
situation where their lawyers did not give closing addresses on their
behalf and they themselves were not allowed to do so in person. The
Court is not concerned with the manner in which the domestic law
regulated this matter or if it was correctly applied in the
applicants’ case. Rather, the Court’s task is to verify
whether the actual situation at hand, namely the applicants’
inability to give a closing address before the domestic court, was in
breach of their rights under the Convention.
The
Court reiterates that the principle of equality of arms, as one of
the fundamental elements of the broader concept of a fair trial,
requires each party to be given a reasonable opportunity to present
his or her case under conditions that do not place him or her at a
substantial disadvantage vis à vis his
opponent (see Nideröst-Huber v. Switzerland, 18 February
1997, § 23, Reports 1997-I). That right means, inter
alia, the opportunity for the parties to a trial to present their
own legal assessment of the case and to comment on the observations
made by the other party, with a view to influencing the court’s
decision (see, mutatis mutandis, Lobo Machado v. Portugal,
20 February 1996, § 31, Reports 1996 I, with further
references). The requirement of equality of arms, in the sense of a
“fair balance” between the parties, applies in principle
to both criminal and civil cases; in criminal cases a lesser degree
of latitude is allowed for any deviations from that requirement (see
Dombo Beheer B.V. v. the Netherlands, 27 October 1993, §§
32-33, Series A no. 274).
The
Court further reiterates that one of the most important aspects of
hearings in criminal trials is the opportunity for the defence, as
well as for the prosecution, to present their closing arguments, this
being the only occasion when both parties can orally present their
view of the entire case and of all the evidence produced at the trial
and submit legal arguments concerning their assessment of its outcome
(see, mutatis mutandis, HanZevački
v. Croatia, no. 17182/07, §
25, 16 April 2009).
The
Court notes that, in the present case, the hearings were adjourned
twice in order to allow the prosecution to prepare their closing
address, which they subsequently delivered in full during two
hearings, without any interruption or objection by the court or the
defence. On the other hand, the first, second and third applicants
were not able to exercise their right to give a closing address,
because their lawyers refused to do so on their behalf. As discussed
above, the lawyers’ refusal was indicative of their inability
to provide effective legal assistance, a matter which was
inadequately addressed by the domestic court. As such, the lawyers’
de facto withdrawal cannot be considered to amount to a waiver
by the applicants of the right to a closing address. On the contrary,
the applicants insisted on exercising this right in person, but their
request was denied. Accordingly, in the absence of any express or
implicit waiver of the right to give a closing address, the
applicants cannot be held responsible for this defect in the
proceedings.
The
Government argued that, in practice, the applicants were allowed to
present all their arguments in person when exercising their right of
reply and their right to a final plea. However, the Court cannot
accept this argument, for the following reasons.
It
notes, firstly, that a party’s right to give a closing address
is clearly distinguishable from the right of reply, both in substance
and procedurally. The domestic law clearly regulated these different
forms of submissions as separate stages of oral arguments by the
parties. Only in the closing address was a party supposed to deliver
a full overview of its legal and factual assessment of the entire
case, whereas the right of reply was merely an additional opportunity
to make brief comments on the closing arguments of another party,
thus being essentially a rebuttal rather than a full
address. Secondly, in any event, while it is true that in the
present case the applicants were actually able to speak for much
longer and address a much broader range of issues than usual during
the exercise of their right of reply (see paragraphs 82-84 above),
the Court notes that they were repeatedly interrupted by the
presiding judge, who reminded them that the reply should be brief,
and that their speeches were eventually cut short after several such
interruptions. This also shows, contrary to the Government’s
point of view, that even the Assize Court itself did not regard the
applicants’ speeches in reply as fully equivalent to or a
substitute for the closing address for the defence.
Furthermore,
the Court considers that, likewise, the final plea, a right which the
defendant is entitled to exercise in person at the very end of the
trial in any event, independently of the closing address made earlier
by his or her counsel, does not appear to be equivalent to and
mutually interchangeable with the defence’s closing address and
constitutes a substantially distinct stage of the criminal trial from
the stage of the parties’ oral submissions.
Lastly,
the Court notes that, after the lawyers’ withdrawal, the
applicants requested not only to be allowed to present their closing
address in person, but also noted that they needed time to prepare it
in view of their lawyers’ sudden withdrawal. Even assuming that
they were allowed to use the opportunity presented by the right of
reply and the right to a final plea in order to deliver a full de
facto closing address, it appears that, contrary to Article 339.2
of the Code of Criminal Procedure, which requires an adjournment of
hearings in such cases, they were not allowed adequate time for
the preparation of their defence speeches.
In
view of the above, the Court considers that the applicants, having
been unable to exercise their right to a closing address for the
defence, were put at a significant disadvantage vis-à-vis
the prosecution, who were able to exercise this right to the fullest
extent possible. Accordingly, the applicants’ defence rights
were restricted in that they were not given an opportunity to present
their case under the same conditions as the prosecution.
(f) Admission and examination of evidence
and the right to a reasoned judgment
At
the outset, the Court notes that the prosecution’s case was
based to a large degree on numerous witnesses whose pre-trial
statements were produced in court. However, it appears that all of
these witnesses were called to testify at the trial and that, in
principle, the applicants were given an opportunity to question them.
As to the defence witnesses, it is true that the Assize Court allowed
the examination of only some of the witnesses requested by the
defence, but refused to call all of the persons whom the defence
sought to examine. While Article 6 § 3 (d) of the Convention is
aimed at ensuring equality in criminal proceedings between the
defence and the prosecution as regards the calling and examination of
witnesses, it does not give an accused person an unlimited right to
obtain the attendance of witnesses in court. The domestic law may
thus lay down conditions for the admission and examination of
witnesses provided that such conditions are identical for witnesses
on both sides. Similarly, the domestic court is free, subject to
compliance with the terms of the Convention, to refuse to call
witnesses proposed by the defence, for instance on the ground that
the court considers their evidence unlikely to assist in ascertaining
the truth (see X v. Austria, no. 4428/70, Commission
decision of 1 June 1972). Having regard to the available material,
the Court finds that it has not been clearly shown how any of the
witnesses whom the Assize Court refused to examine would have been
able to assist the applicants’ defence against the specific
accusations put forward against them.
Accordingly,
in view of the above and having regard to the parties’ further
submissions in connection with this grievance, the Court considers
that the main issue raised by this part of the complaint is not
whether the applicants were able to examine prosecution witnesses or
to obtain the attendance of defence witnesses, but whether the manner
in which the evidence used against the applicants was taken and the
manner in which it was ultimately assessed by the Assize Court were
compatible with the Convention requirements. In particular, the Court
notes that the applicants complained that their conviction was based
to a large extent on allegedly false evidence and witness testimonies
obtained illegally or under duress, and that the Assize Court made
manifest errors in the manner in which it dealt with this evidence.
In
this connection, the Court reiterates that, according to Article 19
of the Convention, its duty is to ensure the observance of the
engagements undertaken by the Contracting States in the Convention.
In particular, it is not its function to deal with errors of fact or
of law allegedly committed by a national court unless and in so far
as they may have infringed rights and freedoms protected by the
Convention (see Schenk v. Switzerland, 12 July 1988, §
45, Series A no. 140).
It
is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law – may be
admissible or, indeed, whether the applicants were guilty or not. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair. This involves an examination of the “unlawfulness”
in question and, if a violation of another Convention right is
concerned, the nature of the violation found (see, among other
authorities, Khan v. the United Kingdom, no. 35394/97, §
34, ECHR 2000 V; Allan v. the United Kingdom, no.
48539/99, § 42, ECHR 2002-IX; and Jalloh v. Germany [GC],
no. 54810/00, § 95, ECHR 2006 IX).
In
determining whether the proceedings as a whole were fair, regard must
also be had to whether the rights of the defence have been respected.
It must be examined in particular whether the applicants were given
the opportunity to challenge the authenticity of the evidence and to
oppose its use. In addition, the quality of the evidence must be
taken into consideration, including whether the circumstances in
which it was obtained cast doubt on its reliability or accuracy (see
Khan, cited above, §§ 35 and 37, and Allan,
cited above, § 43). Where the reliability of evidence is in
dispute the existence of fair procedures to examine the admissibility
of the evidence takes on an even greater importance (see Allan,
cited above, § 47, and Bykov v. Russia [GC], no.
4378/02, § 95, ECHR 2009 ...).
All
the evidence must normally be produced in the presence of the accused
at a public hearing with a view to adversarial argument. The use in
evidence of statements obtained at the stage of the police inquiry
and investigation is not in itself inconsistent with paragraphs 1 and
3 (d) of Article 6, provided that the rights of the defence have been
respected. As a general rule, these rights require that the defendant
be given an adequate and proper opportunity to challenge and question
a witness against him, either when he makes his statements or at a
later stage (see, among other authorities, Asch v. Austria, 26
April 1991, § 27, Series A no. 203; Lüdi v. Switzerland,
15 June 1992, § 47, Series A no. 238; and Saïdi v.
France, 20 September 1993, § 43, Series A no. 261 C).
Furthermore,
an issue arises under Article 6 § 1 of the Convention where any
submissions obtained in violation of Article 3 of the Convention are
used as evidence against a defendant in criminal proceedings, as any
statement obtained in breach of Article 3 is inherently unreliable
(see, mutatis mutandis, Söylemez v. Turkey, no.
46661/99, § 122, 21 September 2006). This is so even if the
admission of such evidence was not decisive in securing the
conviction (see, for example, Özcan Çolak
v. Turkey, no. 30235/03, §
43, 6 October 2009, and Örs and Others v. Turkey,
no. 46213/99, § 60, 20 June 2006). Moreover, even in the
absence of an Article 3 complaint, the Court is not precluded
from taking into consideration allegations of ill-treatment for the
purposes of deciding on compliance with the guarantees of Article 6
(see, mutatis mutandis, Örs and Others, cited
above, § 58, and Kolu v. Turkey, no. 35811/97,
§ 54, 2 August 2005). While the cases cited above, on the facts,
primarily concerned situations involving self-incriminating
statements by defendants, the same principles naturally apply in
respect of any statements obtained in breach of Article 3, including
those made not only by defendants themselves but also by witnesses
whose testimony is used as incriminating evidence.
Lastly, the Court reiterates that the effect of
Article 6 § 1 is, inter alia, to place a “tribunal”
under a duty to conduct a proper examination of the submissions,
arguments and evidence, without prejudice to its assessment or to
whether they are relevant for its decision, given that the Court is
not called upon to examine whether arguments are adequately
addressed. Article 6 § 1 obliges courts to give
reasons for their decisions, although this cannot be understood as
requiring a detailed answer to every argument (see Van de Hurk v.
the Netherlands, 19 April 1994, §§ 59 and 61, Series A
no. 288, and García Ruiz v. Spain [GC], no. 30544/96, §
26, ECHR 1999 I). The extent to which this duty to give reasons
applies may vary according to the nature of the decision and must be
determined in the light of the circumstances of the case (see Ruiz
Torija v. Spain, 9 December 1994, § 29, Series A no. 303 A,
and Hiro Balani v. Spain, 9 December 1994, § 27, Series A
no. 303 B).
The
Court observes that in the present case, the majority of the
prosecution witnesses were asked to give a general description of the
events of 16 October 2003 with the aim of establishing the existence
of mass disturbances and the violent intentions and actions of the
demonstrators. These testimonies did not directly implicate the
applicants. The evidence directly implicating the applicants, on
which their conviction rested to a decisive degree, consisted of the
testimonies of a minority of the prosecution witnesses, namely a
number of police officers, several demonstrators who had also been
convicted, and several other eyewitnesses (see paragraphs 52-63
above).
As
to the police officers who testified against the applicants, the
Court notes that their testimony was first obtained at the pre-trial
stage in the form of depositions. The defence raised a fairly strong
and substantiated objection as to the manner in which these
depositions had been taken and their contents, noting that some of
them appeared to have been taken by the same investigator at the same
time (which was either impossible or illegal) and were identical,
almost word for word. It appears, however, that the Assize Court did
not address this objection and did not take it into account when
relying on these witnesses’ testimonies as a basis for the
applicants’ conviction. It thus failed to assess both the
question of the admissibility of the depositions and the reliability,
credibility and personal integrity of those witnesses who had
allegedly signed identical statements. Both of these matters raised
in the applicants’ objection, had the latter been successful,
would have been capable of influencing a fair tribunal’s
overall assessment as to whether there had been sufficiently strong
evidence to prove the applicants guilty.
When
called to testify at the court hearings, most of the police and
military officers allegedly made statements inconsistent with their
own pre trial depositions, as well as with the video evidence
produced by the prosecution (see paragraphs 54-56 and 68 above; see
also the relevant extracts from the OSCE report quoted in paragraphs
107-108 above). As appears from the trial transcript, the defence
repeatedly pointed out these inconsistencies to the court and argued
that the witnesses were lying. The Court notes that inconsistencies
between a witness’s own statements given at various times, as
well as serious inconsistencies between different types of evidence
produced by the prosecution, give rise to a serious ground for
challenging the credibility of the witness and the probative value of
his or her testimony; as such, this type of challenge constitutes an
objection capable of influencing the assessment of the factual
circumstances of the case based on that evidence and, ultimately, the
outcome of the trial. The Court notes, however, that in its judgment
the Assize Court remained silent as to the defence’s objections
in this regard and, as appears from the documents in the case file,
never attempted to take into account any of the defence’s
allegations concerning the inconsistencies in the testimonies of
those prosecution witnesses. This omission was even more conspicuous
in view of the fact that in its judgment the Assize Court actually
analysed certain inconsistencies in the testimonies of defence
witnesses (see paragraph 66 above), whereas it failed to provide any
reasons as to why the defence’s objections concerning the
prosecution witnesses were left unexamined and why it considered the
alleged inconsistencies in the testimonies of prosecution witnesses
to be immaterial.
In
such circumstances, the Court cannot but conclude that, given the
nature and substance of the defence’s objections raised against
the above-mentioned group of witnesses, the domestic court was
required to give answers to those objections and that, in the absence
of any such answers, the applicants’ rights to an adequate
opportunity to challenge the witnesses against them and to receive a
reasoned judgment were breached.
As
to the statements of other witnesses directly implicating the
applicants (see paragraphs 57-63 above), the Court notes that the
majority of the witnesses who had made pre-trial statements to that
effect made completely different statements when summoned to testify
at the court hearings, retracted their previous incriminating
statements as being false and alleged that they had been forced to
make those statements by means of ill treatment or threats of
ill-treatment. The Assize Court refused to attach weight to these
persons’ retraction of the statements made in their pre-trial
depositions, relying on the “res judicata character”
of the existing judgments where the same depositions had been
admitted as good evidence and where those persons’ complaints
of ill-treatment had been found to be unsubstantiated. The Court,
however, is not convinced by the approach taken by the domestic court
on this matter, for the following reasons.
It
refers, firstly, to its judgment in the Mammadov case (cited
above), in which it found that the applicant had been tortured in
custody with the aim of extracting information from him and that the
domestic authorities had failed to carry out an adequate and
effective investigation of his complaints of ill-treatment. The
applicant in that case, who is also the fourth applicant in the
present case, was in a similar situation to the witnesses in question
in the present case, as he was also a person detained in connection
with the events of 16 October 2003. While the Mammadov case
cannot be of direct relevance to the issue examined in the present
case, it nevertheless demonstrates that situations similar to those
complained of by the witnesses in the present case arose in the
context of the whole group of interconnected criminal proceedings
concerning the events of 16 October 2003. It also demonstrates that
the mere fact that some form of domestic examination of the
witnesses’ complaints of ill-treatment took place does not
necessarily mean that it was effective in establishing the truth.
Secondly, having regard to the available material, including the
relevant and very detailed reports of highly reputable international
organisations and NGOs such as, among others, the OSCE and Human
Rights Watch, the Court notes the existence of numerous, consistent
and credible allegations of systematic ill-treatment by the
law-enforcement authorities of detainees and witnesses questioned in
connection with the events of 15 and 16 October 2003. In particular,
those reports contain quotations of first-hand accounts by a large
number of detained persons concerning their own alleged ill-treatment
and ill-treatment that they had witnessed being used against other
detainees. The Court considers that the consistency and level of
detail of the information in this regard is so overwhelming that it
gives rise to serious concerns in respect of the interrogation
methods used by the domestic authorities in the course of the
investigations carried out in respect of the events of
15 and 16 October 2003. While the Court is not in a
position to accept the information contained in those reports as
established proof of ill-treatment of the relevant witnesses in the
present case or other persons mentioned in those reports, it
nevertheless considers that the credibility of their authors and
their consistent and detailed nature give rise to a considerable
degree of distrust towards the manner in which the domestic
authorities dealt with those allegations of ill-treatment in various
proceedings, including the Assize Court proceedings in the present
case.
In
the light of the above information revealing repeated reports of
widespread ill-treatment of persons arrested and questioned in
connection with criminal case no. 80308, the Court considers that,
given the sheer number of witnesses who alleged that they had
testified under duress in the present case, the Assize Court should
have been especially alert in dealing with those allegations. The
mere fact that so many witnesses claimed to have been forced to
testify against the applicants under duress obliged the domestic
court to deal with the issue of admissibility and credibility of
their testimonial evidence in much more detail and with an especially
high degree of scrutiny.
The
Court considers that the notion of a fair and adversarial trial
presupposes that, in principle, a tribunal should attach more weight
to a witness’s testimony given at the trial hearing than to a
record of his or her pre-trial questioning produced by the
prosecution, unless there are good reasons to find otherwise. Among
other reasons, this is because pre-trial questioning is primarily a
process by which the prosecution gather information in preparation
for the trial in order to support their case in court, whereas the
tribunal conducting the trial is called upon to determine a
defendant’s guilt following a fair assessment of all evidence
actually produced at the trial, based on the direct examination of
evidence in court. Although it is not the Court’s task to
verify whether the domestic courts made any substantive errors in
that assessment, it is nevertheless required to review whether the
courts gave reasons for their decisions in respect of any objections
concerning the evidence produced.
In
the present case, the Court considers that, in accepting the
witnesses’ pre-trial statements as good evidence and
disregarding the retraction of those statements at the trial, solely
on the ground of the existence of previous judgments in which the
witnesses’ complaints of ill treatment had been rejected
as unsubstantiated, the Assize Court deprived the applicants of the
opportunity of a full and comprehensive assessment of the evidence
used against them. Although the relevant judgments relied on by the
Assize Court had acquired legal effect, the Court considers that the
decisions reached by other courts in respect of the same or similar
submissions by the witnesses could not be said to have a “res
judicata effect” in respect of the applicants, or to
prevent them from raising the same objections again at their own
trial. The Court notes that, in the light of the principle of
presumption of innocence and a defendant’s right to challenge
any evidence against him or her, a criminal court must conduct a
full, independent and comprehensive examination and assessment of the
admissibility and reliability of evidence pertaining to the
determination of the defendant’s guilt, irrespective of how the
same evidence may have been assessed in any other proceedings
concerning other defendants. In this connection, it is of particular
importance that the applicants in the present case had not been
parties to the earlier proceedings referred to by the Assize Court
and, thus, had been unable to challenge any decisions reached in them
concerning any claim or particular issue. Moreover, the witnesses’
submissions in those proceedings were assessed in a context different
from that of the applicants’ case. Thus, in those proceedings,
where the witnesses themselves were defendants, their allegations of
having testified under duress appeared to have been examined for the
purposes of establishing the existence of ill-treatment and assessing
whether the defendants had made self-incriminating statements under
duress. On the other hand, in the applicants’ case the same or
similar submissions by the witnesses were relevant for the purpose of
assessing the admissibility and probative value of evidence
incriminating a third party (the applicants).
In
view of the above, the Court concludes that the domestic court failed
to address the substantiated objections raised by the applicants in
respect of the admissibility and probative value of the evidence
against them and to provide adequate reasons for the manner in which
it assessed evidence of a contradictory and highly questionable
nature. It follows that the applicants’ right to the
examination of witnesses and their right to a reasoned judgment were
infringed.
(g) Appeals
The
Court notes that proceedings, viewed as a whole, can be considered
fair if any defects of the original trial are subsequently remedied
by the appeal courts (see, mutatis mutandis, Edwards v. the
United Kingdom, 16 December 1992, § 39, Series A no. 247 B,
and De Cubber, cited above, § 33, Series A no. 86, with
further reference to Adolf v. Austria, 26 March 1982, §§
38-40, Series A no. 49). However, contrary to the Government’s
argument in the present case, the Court considers that none of the
defects of the original trial were remedied either by the Court of
Appeal or the Supreme Court, since those courts either refused (the
Court of Appeal) or had no competence (the Supreme Court) to conduct
a new hearing on points of both fact and law entailing a fresh
judicial examination of the evidence and the parties’ legal and
factual arguments. Moreover, both courts merely reiterated the trial
court’s findings and did not address the numerous complaints
made by the applicants concerning the various defects in the trial,
summarily rejecting those complaints as unsubstantiated without
giving any reasoning.
(h) Conclusion
The
Court notes that although it could be argued that the breaches of
defence rights found above did not affect all of the applicants to
the same degree, it is nevertheless clear that each of the applicants
was affected, if not by all, at least by several of those defects in
the trial. In view of the above findings, the Court concludes that
the proceedings in question, taken as a whole, did not satisfy the
requirements of a fair trial.
Accordingly,
there has been a violation of Article 6 § 1 taken together with
Article 6 § 3 (b), (c) and (d) of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The
applicants further complained that the various public statements made
by the State authorities and high-ranking State officials prior to
their conviction by the competent court had infringed their right to
the presumption of innocence secured in Article 6 § 2 of
the Convention, which provides as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
A. Admissibility
The
Government submitted that the applicants had failed to exhaust
available domestic remedies, as they had not taken any proper steps
to bring this complaint to the attention of the relevant authorities.
In particular, the Government argued that, under domestic law, the
applicants could have lodged a criminal complaint alleging defamation
under Article 147 of the Criminal Code and Chapter 27 of the CCrP, or
a civil action for damages, against the public officials who had
allegedly violated their presumption of innocence.
The
applicants submitted that no effective remedies existed in practice
in respect of their complaint alleging a breach of the presumption of
innocence. Even if such remedies existed in theory, they did not
offer any reasonable prospects of success in their particular case,
as the domestic authorities had “clearly shown their tolerance
towards the persistent and blatant violations” by the
prosecution authorities of the applicants’ Convention rights.
They maintained that the provisions of the Criminal Code and the CCrP
mentioned by the Government were irrelevant to this particular type
of complaint and noted that there existed no court decisions in
domestic judicial practice concerning a violation of the right to
presumption of innocence.
The
Court reiterates that the purpose of the domestic-remedies rule in
Article 35 § 1 of the Convention is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged before they are submitted to the Court. However,
the only remedies to be exhausted are those that relate to the
breaches alleged and that, at the same time, are available and
sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness; it falls to
the respondent State to establish that these various conditions are
satisfied (see Vernillo v. France, 20 February 1991, §
27, Series A no. 198).
Although
the Government argued that the domestic law provided for effective
remedies in the form of a criminal complaint alleging defamation or a
civil action for damages, which were in theory capable of providing
redress in respect of the alleged breach of the presumption of
innocence, the Court notes that the Government have not submitted any
specific examples of previous successful use of the above-mentioned
avenues of redress in connection with complaints alleging a breach of
the presumption of innocence. Nor have the Government been able to
demonstrate, by means of specific examples, that any complaints
concerning this particular substantive subject matter have ever been
even accepted for examination by the relevant criminal authorities or
civil courts under the procedures they mentioned. As to the
possibility of making a complaint concerning an alleged breach of the
presumption of innocence directly before the court conducting the
complainant’s criminal trial, the Court is aware of one example
where such a complaint was summarily rejected without any reasoning
(see Fatullayev v. Azerbaijan,
no. 40984/07, §§ 45 and 153, 22 April 2010), an outcome
which cannot be considered to satisfy the requirement of practical
effectiveness of remedies. In such circumstances, the Court
cannot conclude that any of the remedies mentioned by the Government
could be used specifically in relation to the breaches alleged or
that the existence of such remedies, in practice, was sufficiently
certain.
Accordingly,
the Court dismisses the Government’s objection and notes
further that this complaint is not otherwise manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
The
Government submitted that Article 6 § 2 of the Convention could
not prevent the authorities from informing the public about any
criminal investigations in progress. They maintained that the
applicants’ presumption of innocence had not been breached and
that neither any preliminary court decisions nor any public
statements pointed to by the applicants had depicted them as
criminals or established their guilt prior to their criminal
conviction.
The
applicants reiterated their complaint and insisted that they had been
declared as criminals in numerous public statements made by various
public authorities and high-ranking officials prior to their
conviction by the competent court.
2. The Court’s assessment
The
Court reiterates that Article 6 § 2, in its relevant
aspect, is aimed at preventing the undermining of a fair criminal
trial by prejudicial statements made in close connection with those
proceedings. The presumption of innocence enshrined in paragraph 2 of
Article 6 is one of the elements of the fair criminal trial that is
required by paragraph 1 (see Allenet de Ribemont v. France,
10 February 1995, § 35, Series A no. 308). It not only prohibits
the premature expression by the tribunal itself of the opinion that
the person “charged with a criminal offence” is guilty
before he has been so proved according to law (see Minelli v.
Switzerland, 25 March 1983, § 38, Series A no. 62), but also
covers statements made by other public officials about pending
criminal investigations which encourage the public to believe the
suspect guilty and prejudge the assessment of the facts by the
competent judicial authority (see Allenet de Ribemont, cited
above, § 41, and Daktaras v. Lithuania,
no. 42095/98, §§ 41-43, ECHR 2000-X). The Court
stresses that Article 6 § 2 cannot prevent the
authorities from informing the public about criminal investigations
in progress, but it requires that they do so with all the discretion
and circumspection necessary if the presumption of innocence is to be
respected (see Allenet de Ribemont, cited above, § 38).
It
has been the Court’s consistent approach that the presumption
of innocence will be violated if a judicial decision or a statement
by a public official concerning a person charged with a criminal
offence reflects an opinion that he is guilty before he has been
proved guilty according to law. It suffices, even in the absence of
any formal finding, that there is some reasoning suggesting that the
court or the official regards the accused as guilty. A fundamental
distinction must be made between a statement that someone is merely
suspected of having committed a crime and a clear declaration, in the
absence of a final conviction, that an individual has committed the
crime in question. The Court has consistently emphasised the
importance of the choice of words by public officials in their
statements before a person has been tried and found guilty of a
particular criminal offence (see Khuzhin and Others v. Russia,
no. 13470/02, § 94, 23 October 2008, with further references).
Whether a statement of a public official is in breach of the
principle of the presumption of innocence must be determined in the
context of the particular circumstances in which the impugned
statement was made (see Butkevičius v. Lithuania, no.
48297/99, § 49, ECHR 2002-II).
In
the present case, the applicants complained of various statements
made by numerous authorities and State officials. The Court considers
that, for the purposes of the analysis under Article 6 § 2 of
the Convention, it will be sufficient to have regard only to the
statements made by the law enforcement authorities, namely the
press statements by the Ministry of Internal Affairs and the
Prosecutor General’s Office (see paragraphs 98 and 101-102
above) and the declarations made by two high-ranking police officials
(see paragraphs 99 and 103 above).
As
to the statements made by the Head of the Press Service of the
Ministry of Internal Affairs during the press conference of 22
October 2003 and the joint press release of 27 October 2003 issued by
the Ministry of Internal Affairs and the Prosecutor General’s
Office, the Court notes that they were made in a context independent
of the criminal proceedings themselves. It acknowledges that the
gravity of the events of 15 and 16 October 2003 may have
required the authorities to keep the public informed of any criminal
proceedings instituted in connection with those events. However, this
circumstance cannot justify a lack of caution in the choice of words
used in their statements in reference to the accused persons in those
proceedings. The statements at issue were made at a time when the
criminal investigation in respect of the applicants had just been
started. It was particularly important at this initial stage not to
make any public allegations which could have been interpreted as
confirming the guilt of the applicants in the opinion of a State
law-enforcement authority. The Court notes, in particular, that these
statements specifically mentioned, among other things, the fourth
applicant’s name and also referred to “other”
persons unidentified by name, and declared, without any qualification
or reservation, that the persons concerned had instigated, and
ordered the demonstrators to commit, unlawful actions resulting in
mass disorder.
As
to the newspaper articles authored by the Head of the Sabail District
Police Office (see paragraph 99 above) and the Deputy Minister of
Internal Affairs (see paragraph 103 above), it is clear from the
content of those articles that neither of them was aimed at informing
the public about the criminal investigations in progress. From the
content and rhetoric of those statements, it is evident that their
primary purpose was to express political criticism and condemnation
of the political opposition and the violent actions attributed to it.
Seeing that the authors of the statements were high-ranking
functionaries of the law-enforcement authorities and not politicians,
their statements, which were made in their official capacity, could
not be considered part of a legitimate political debate, which might
arguably allow a certain degree of exaggeration and liberal use of
value judgments with reference to political rivals.
In
his different statements, the Head of the Sabail District Police
Office unequivocally asserted that the demonstrators had “committed
terrible criminal acts” under direct orders from the fourth
applicant and two other opposition leaders, all of whom were clearly
identified by their name. For his part, the Deputy Minister of
Internal Affairs clearly mentioned all of the applicants by name as
persons who had overseen the “actions of criminal character”
committed by the “radical”, “reactionary” and
“destructive” opposition and aimed at usurping State
power by unlawful means. The entire article authored by the Deputy
Minister of Internal Affairs was notable for the repeated and
persistent use of the words “crime” and “criminal”
in referring to the opposition and its leaders and the specific
actions attributed to them.
The
Court notes that only the Deputy Minister of Internal Affairs clearly
named all of the applicants in his statements, whereas the other
above-mentioned statements specifically named only the fourth
applicant and also referred to some unidentified “other”
persons. However, in the context of all the circumstances in which
these statements made, the word “others” used in those
statements was merely a thinly veiled reference to, inter alios,
the other three applicants, as it was commonly known to the public
from news reports which specific opposition leaders had been arrested
in connection with the events of 15 and 16 October 2003.
Given
that the above statements were made by law-enforcement authorities
and their high-ranking officials, particular caution should have been
exercised by them in the choice of words to describe the pending
criminal proceedings and the events that led to the applicants’
prosecution. The Court considers that those statements, made without
necessary qualifications or reservations, contained wording amounting
to an express and unequivocal declaration that the applicants had
committed criminal offences. As such, they prejudged the assessment
of the facts by the competent judicial authority and could not but
have encouraged the public to believe the applicants guilty before
they had been proved guilty according to law.
In
view of the above conclusion, the Court considers it unnecessary to
examine the applicants’ further arguments concerning other
statements made by various State officials and authorities.
There
has accordingly been a violation of Article 6 § 2 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
The
first, second and third applicants complained that their unfair
criminal conviction had been aimed at suppressing their freedom of
peaceful assembly with others, guaranteed by Article 11 of the
Convention, which reads as follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the state.”
A. The parties’ submissions
The
Government argued that the applicants had not exhausted domestic
remedies, as none of them had lodged any formal complaints with the
domestic authorities alleging a violation of their rights under
Article 11 of the Convention.
The
Government further noted that there was sufficient eyewitness and
video evidence proving the violent intentions and violent actions of
the demonstrators, as a result of which a number of police officers
and civilians had been injured and a significant amount of public and
private property had been damaged. On the basis of the above, the
Government argued that the demonstration could not be considered a
“peaceful assembly” and, accordingly, could not be
afforded the protection of Article 11 of the Convention.
Lastly,
the Government submitted that, in any event, even if Article 11
applied and the Court were to consider that there had been an
interference with the applicants’ rights under that Article,
the interference had been prescribed by law, had pursued the
legitimate aim of protecting public safety and the rights and
freedoms of others, and had been “necessary in a democratic
society” because the applicants had received punishment
proportionate to their misdeeds, namely organising a mass disorder
resulting in injuries to numerous people and damage to property.
The
applicants did not comment on the Government’s objections as to
the admissibility of the complaint.
The
applicants complained that, in addition to amounting to a violation
of Article 6 of the Convention, their conviction for “organising
mass disorder” following an unfair trial had also constituted
an unjustified interference with their rights under Article 11 of the
Convention. They submitted that the main motivation behind their
conviction was the fact that they were leaders of the opposition who
had called for a public protest against the results of the
presidential election.
As
to the events of 16 October 2003, the applicants noted that, despite
the fact that Mr I. Gambar’s electoral representatives had
requested prior authorisation to hold a demonstration in accordance
with the law, they had been unlawfully refused permission. The
applicants argued that they and other demonstrators had a right to
assemble peacefully even without formal authorisation by the
Government authorities. The applicants disagreed with the
Government’s contention that the demonstration had been
violent. They argued that only a handful of “saboteurs”
had been deployed to create trouble, whereas the law-enforcement
authorities had been unnecessarily and excessively violent during the
unjustified dispersal of the demonstration by force.
In
the applicants’ opinion, the authorities’ use of force
against the demonstrators, and the arrests and unfair convictions of
numerous demonstrators for various offences, including the applicants
themselves, constituted an unjustified interference with their right
to freedom of peaceful assembly.
B. The Court’s assessment
1. Scope of the complaint raised before the Court
The
Court cannot overlook the fact that the proceedings instituted
against the applicants and all other events related to the present
case are directly linked to the mass protests of 15 and 16 October
2003. Thus, at their core, the events would concern the exercise of
the freedom of assembly, one of the fundamental freedoms serving as
the foundation of a democratic society. The Court reiterates that the
freedom to take part in a peaceful assembly is of such importance
that a person ought not to be subjected to a sanction for
participation in a demonstration which has not been prohibited, so
long as this person does not himself commit any reprehensible act on
such an occasion (see Ezelin v. France, 26 April 1991, §
53, Series A no. 202). Furthermore, it is important for the public
authorities to show a certain degree of tolerance towards peaceful
gatherings if the freedom of assembly guaranteed by Article 11 of the
Convention is not to be deprived of all substance (see Oya Ataman
v. Turkey, no. 74552/01, §§ 38-42, ECHR
2006 XIII). However, the Court notes that it is primarily called
upon to decide on the issues which have been raised before it either
expressly or in substance.
In
this connection, having carefully examined the applicants’
original complaints made in their respective applications, the Court
considers that they did not complain that their rights under Article
11 of the Convention had been violated as such by the fact that the
holding of the demonstration had not been formally permitted, or that
the demonstration had been dispersed or the manner in which it had
been dispersed. Accordingly, the Court finds that these issues are
outside of the scope of the present applications. In any event, it
does not appear that any one of the applicants, as participants in
the demonstration, ever lodged any complaints with the domestic
courts alleging that the authorities’ refusal to grant
permission for the demonstration had been unlawful, or that their
decision to disperse it by force had violated their and other
demonstrators’ right to freedom of peaceful assembly. Thus, any
complaints about the above mentioned issues, even assuming they
had been intended to be raised before the Court, would in any event
be inadmissible for non-exhaustion of domestic remedies.
However,
in their original applications, in addition to their primary
complaints under Article 6, the applicants complained that their
unfair criminal conviction for “organising mass disorder”
also amounted to a violation of their rights under Article 11,
relying in this respect on the same arguments as those raised under
Article 6. Accordingly, the scope of the present complaint is limited
to the question whether the fact that, following the unauthorised
demonstration, the applicants were convicted of “organising
mass disorder” in breach of the requirements of a fair trial
could in itself be regarded as an interference with their right under
Article 11 and, if so, whether it was justified.
2. Admissibility
Bearing
in mind the above scope of this particular complaint, the Court
rejects the Government’s objection as to the inapplicability of
Article 11. Furthermore, the Court considers that the
Government’s objection as to the non-exhaustion of domestic
remedies should also be dismissed. In so far as the applicants
alleged that their criminal conviction had been unfair, they duly
lodged all the ordinary appeals available to them under domestic law
and their submissions were substantively similar to those raised
before the Court. The Government have not explained, and the Court
cannot see, how any separate domestic appeal by the applicants
raising the same substantive complaints but made specifically under
Article 11 of the Convention could have had any prospect of
success, after the relevant criminal courts had already found them
guilty of organising mass disorder.
No
other ground for declaring the complaint inadmissible has been
established. The Court therefore declares this complaint admissible
within the scope defined in paragraph 245 above.
3. Merits
The Court notes that a careful distinction may be
necessary in situations where applicants are not punished for
participation in a demonstration as such, but for particular
behaviour in the course of the demonstration, such as violence or
incitement to violence (compare, mutatis mutandis, G. v.
the Federal Republic of Germany, no. 13079/87, Commission
decision of 6 March 1989). Accordingly, the subject matter of this
complaint hinges on the determination of whether the applicants
indeed engaged in incitement to violence, a question which is
normally to be decided by the relevant domestic courts in proceedings
offering the guarantees of a fair trial. The Court has already found
that the criminal proceedings in the present case did not comply with
the required guarantees of fairness. Furthermore, the applicants’
submissions in respect of the complaint under Article 11, as declared
admissible, are essentially the same as under Article 6.
In
such circumstances, as the applicants’ arguments concerning the
unfairness of the trial have already been covered by the finding of a
violation of Article 6, the Court considers that there is no need for
a separate examination of the same arguments under Article 11.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying
on Article 8 of the Convention, the first applicant complained that,
during his arrest, the police officers had entered his flat without a
search warrant and had violated his right to respect for his home.
Relying on 14 of the Convention in conjunction with their other
complaints, all of the applicants complained that, as members of the
political opposition, they had been persecuted based on their
political views and that the domestic courts had disregarded the
statements of the witnesses for the defence solely on the ground that
these witnesses had also been members of the opposition parties.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or the Protocols thereto. It
follows that this part of the applications is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
The
first applicant claimed a total amount of 670,000 euros (EUR) in
respect of pecuniary damage, including expenses he had incurred for
medical treatment and food packages brought to him by his family
while he had been imprisoned, as well as the damage caused to him by
corruption at “all levels of the State system”.
The
second applicant claimed EUR 45,000, including expenses for food and
medication brought to him by his family members while he had been
imprisoned, as well as loss of income during his imprisonment.
The
third applicant claimed EUR 17,000 in respect of pecuniary damage
incurred as a result of expenses on food packages delivered to him by
his family during his imprisonment.
The
fourth applicant claimed a total amount of EUR 620,000 including
expenses he had incurred for medical treatment and food packages
brought to him by his family while he had been imprisoned, as well as
the damage caused to him by corruption at “all levels of the
State system”.
The
Government argued that the applicants’ claims were unjustified
and unsupported by any documentary evidence.
The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged by each of the applicants. In any
event, none of the above claims was supported by any evidence.
Therefore, the Court dismisses the applicants’ claims in
respect of pecuniary damage.
2. Non-pecuniary damage
All
of the applicants made claims in respect of non-pecuniary damage
suffered as a result of the violations of their rights under the
Convention. The first applicant claimed EUR 70,000, the second
applicant EUR 250,000, the third applicant EUR 50,000, and the fourth
applicant EUR 400,000.
The
Government submitted that the amounts claimed were unjustified and
excessive and argued that findings of violations would constitute
sufficient reparation in respect of any non-pecuniary damage
suffered.
The
Court considers that the applicants must have endured moral suffering
which cannot be compensated solely by the finding of violations.
Making its assessment on an equitable basis, as required by Article
41 of the Convention, the Court awards each applicant the sum of EUR
10,000 under this head, plus any tax that may be chargeable on this
amount.
The
Court reiterates that when an applicant has been convicted despite a
potential infringement of his rights as guaranteed by Article 6 of
the Convention, he should, as far as possible, be put in the position
in which he would have been had the requirements of that provision
not been disregarded (see Piersack v. Belgium (Article 50),
26 October 1984, § 12, Series A no. 85). As has been found
above, the criminal proceedings in the present case did not comply
with the requirements of fairness. In such circumstances, the most
appropriate form of redress would, in principle, be the reopening of
the proceedings in order to guarantee the conduct of the trial in
accordance with the requirements of Article 6 of the Convention (see,
mutatis mutandis, Somogyi v. Italy, no. 67972/01, §
86, ECHR 2004 IV; Shulepov v. Russia, no. 15435/03, §
46, 26 June 2008; Maksimov v. Azerbaijan, no. 38228/05, §
46, 8 October 2009; and Abbasov v. Azerbaijan, no.
24271/05, §§ 41-42, 17 January 2008). The Court notes in
this connection that Articles 455 and 456 of the Code of Criminal
Procedure of the Republic of Azerbaijan provide that criminal
proceedings may be reopened by the Plenum of the Supreme Court if the
Court finds a violation of the Convention.
B. Costs and expenses
The
first applicant claimed EUR 12,500 for costs and expenses, including
EUR 7,000 for legal fees and other expenses incurred before the
domestic courts and EUR 5,500 for those incurred before the Court
(consisting of EUR 4,500 for legal fees and EUR 1,000 for postal
expenses). In support of his claim for legal fees in the proceedings
before the Court, he submitted a contract for legal services
concluded with Mr F. Agayev.
The
second applicant claimed approximately EUR 6,500 for legal fees
incurred before both the domestic courts and the Court, including the
sum of “approximately” EUR 1,500 that he had paid to Mr
R. Hajili for legal services rendered in the proceedings before the
Court. In support of the latter part of the claim, he submitted an
invoice for 2,000 new Azerbaijani manats paid to his lawyer.
The
third applicant claimed EUR 7,500 for legal fees, including EUR 3,000
for legal fees incurred in the domestic proceedings and EUR 4,500
for legal fees incurred in the proceedings before the Court. He also
claimed EUR 2,592 for translation expenses and EUR 1,000 for postal
expenses. He submitted a contract for legal services to be rendered
by Mr I. Aliyev in the proceedings before the Court, a
contract for translation services and an invoice certifying payment
of additional translation costs.
The
fourth applicant claimed EUR 15,500 for costs and expenses, including
EUR 10,000 for legal fees and other expenses incurred before the
domestic courts and EUR 5,500 for those incurred before the Court
(consisting of EUR 4,500 for legal fees and EUR 1,000 for postal
expenses). In support of his claim for legal fees in the proceedings
before the Court, he submitted a contract for legal services
concluded with Mr F. Agayev.
The
Government submitted that the amounts claimed were excessive and
unreasonable and had not been actually incurred. They noted that the
applicants had either failed to submit relevant evidence in support
of their claims or had submitted insufficient evidence.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum.
As
to the claims in respect of the legal fees incurred in the domestic
proceedings and claims in respect of postal expenses, the Court notes
that none of the applicants has submitted any documents in support of
those claims or given convincing reasons for failing to do so.
Therefore, the Court dismisses the applicants’ claims in
respect of postal expenses and the costs and expenses incurred before
the domestic courts.
As
to the remainder of the claims, having regard to the documents in its
possession and the criteria mentioned in paragraph 268 above, the
Court decides as follows:
(i) The
Court notes that the first and the fourth applicants were represented
by the same lawyer (Mr F. Agayev) in the proceedings before the Court
and each claimed EUR 4,500 for his services. Having regard to the
services stipulated in the relevant contracts between the applicants
and Mr Agayev and the services actually rendered, the Court considers
that the amounts claimed do not correspond to the legal assistance
that was actually provided and was necessary in the present case. The
Court further notes the similarity of the complaints and legal
arguments submitted in both cases and observes that substantial parts
of the lawyer’s submissions in both cases were either identical
or very similar. In view of the above considerations, the Court
awards the first and the fourth applicants, jointly, the total amount
of EUR 3,200 in respect of the legal services rendered by Mr
F. Agayev.
(ii) The
Court accepts the second applicant’s claim in respect of the
legal fees incurred in the proceedings before the Court and awards
him EUR 1,500.
(iii) Having
regard to the services stipulated in the relevant contract concluded
between the third applicant and his lawyer, Mr I. Aliyev, and the
services actually rendered, the Court considers that the amounts
claimed do not correspond to the legal assistance that was actually
provided and was necessary in the present case. Moreover, taking into
account the total volume of documents actually translated in the
present case, the Court considers that the claim in respect of
translation expenses is excessive and that therefore only a partial
award can be made under this head. In view of the above
considerations, the Court awards the third applicant the sum of EUR
3,000 in respect of the costs and expenses in the proceedings before
the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to join the applications;
Declares the applicants’ complaints under
Article 6 §§ 1, 2 and 3 (b), (c) and (d) of the
Convention and the first, second and third applicants’
complaint under Article 11 of the Convention admissible and the
remainder of the applications inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention taken together with Article 6 § 3
(b), (c) and (d);
Holds that there has been a violation of Article
6 § 2 of the Convention;
Holds that there is no need to examine
separately the complaint under Article 11 of the Convention;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, which are to be converted
into new Azerbaijani manats at the rate applicable at the date of
settlement:
(i) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable, to
each applicant in respect of non-pecuniary damage;
(ii) EUR
3,200 (three thousand two hundred euros), plus any tax that may be
chargeable to the applicants, to the first and fourth applicants, Mr
Huseyn and Mr Mammadov, jointly, in respect of the legal services
provided by Mr F. Agayev;
(iii) EUR
1,500 (one thousand five hundred euros), plus any tax that may be
chargeable to the applicant, to the second applicant, Mr Abbasov,
in respect of the legal fees incurred in the proceedings before the
Court; and
(iv) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicant, to the third applicant, Mr Hajili, in respect of
the costs and expenses in the proceedings before the Court;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 26 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
