FIFTH SECTION

CASE OF PANAHLI v. AZERBAIJAN

(Application no. 48255/11)

JUDGMENT

STRASBOURG

19 October 2017

This judgment is final but it may be subject to editorial revision.

In the case of Panahli v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	André Potocki, President,
	Mārtiņš Mits,
	Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 26 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 48255/11) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Nemat Ahad oglu Panahli (Nemət Əhəd oğlu Pənahlı - “the applicant”), on 25 July 2011.
2.  The applicant was represented by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3.  On 10 June 2016 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1962 and lives in Baku.
5.  He was the chairman of the Azerbaijani National Statehood Party.
6.  In December 2010 the applicant sold his car to a certain E.R., who encountered a number of technical problems with it.
7.  On 7 January 2011 E.R. contacted the applicant and they agreed to meet on the same day. During the meeting E.R. expressed his dissatisfaction with the car and requested that the applicant return his money and take the car back. The applicant got angry, started to insult E.R. and then assaulted him together with a certain C.
8.  A passer-by intervened and stopped the altercation. E.R. reported the incident to the police on the same day.
9.  On 8 January 2011 criminal proceedings were instituted against the applicant by the Nasimi District Police Office under Article 221.3 (hooliganism) of the Criminal Code. The investigator’s decision stated that at around 8.30 p.m. on 7 January 2011 the applicant and a certain C. had insulted and assaulted E.R. on the street in Baku.
10.  On 8 January 2011 the police compiled a record of the applicant’s arrest as a suspect.
11.  On 10 January 2011 the applicant was charged under Articles 127.2.3 (deliberate infliction of less serious injury to health) and 221.3 (hooliganism) of the Criminal Code.
12.  On the same day the Nasimi District Court, relying on the charges brought against the applicant and an application from the prosecutor to apply the preventive measure of remanding the applicant in custody, ordered his detention pending trial for a period of two months. The court justified the application of the preventive custodial measure by the gravity of the offences imputed to him, the risk of his reoffending and the likelihood that he might abscond if released.
13.  On 12 January 2011 the applicant appealed against that decision, stating that there was no justification for the application of the preventive measure of remand in custody and that the court had failed to substantiate the necessity for his detention pending trial. He also submitted that the court had failed to take account of his personal situation and to consider the possibility of another preventive measure, such as house arrest or release on bail.
14.  On 17 January 2011 the Baku Court of Appeal dismissed the appeal, finding that there were no grounds to quash the first-instance decision.
15.  On 2 March 2011 the prosecutor in charge of the criminal case applied to the court for an extension of the applicant’s pre-trial detention for a period of one month. He submitted that more time was needed to complete the investigation.
16.  On 3 March 2011 the Nasimi District Court extended the applicant’s detention pending trial by one month, until 8 April 2011. The court justified its decision by the need for more time to carry out further investigative actions, the complexity of the criminal case and the likelihood that the applicant might abscond and obstruct the investigation if released.
17.  On 4 March 2011 the applicant appealed against that decision, arguing that the first-instance court had failed to substantiate its decision on his continued detention.
18.  On 9 March 2011 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 3 March 2011.
19.  No further extension decisions are available in the case file.
20.  On 17 June 2011 the Nasimi District Court found the applicant guilty on all counts and sentenced him to six years’ imprisonment.
21.  The applicant was released from serving the remainder of his sentence by a presidential pardon issued on 17 March 2016.
Article II.	II. RELEVANT DOMESTIC LAW AND PRACTICE
22.  The relevant provisions of the Code of Criminal Procedure concerning the application of the preventive measure of remand in custody and pre-trial detention are described in detail in the Court’s judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83-102, 9 November 2010) and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35-49, 9 December 2010). The relevant decisions of the Plenum of the Supreme Court concerning the application of the preventive measure of remand in custody and pre-trial detention are described in detail in the Court’s judgment in Allahverdiyev v. Azerbaijan (no. 49192/08, §§ 31-32, 6 March 2014).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
23.  Relying on Articles 5 and 13 of the Convention, the applicant complained that the domestic courts had failed to justify the need for his detention and provide reasons for its continuation. The Court considers that this complaint falls to be examined solely under Article 5 § 3 of the Convention, which reads:
“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
Section 3.01	A.  Admissibility
24.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  The parties’ submissions
25.  The applicant maintained his complaint, arguing that the domestic courts had failed to provide relevant and sufficient reasons for his pre-trial detention.
26.  The Government submitted that the domestic courts had given sufficient and relevant reasons for the applicant’s pre-trial detention. They further submitted that the applicant had failed to ask the domestic courts to consider the possibility of the application of an alternative preventive measure.
(b)	2.  The Court’s assessment
27.  The Court refers to the summaries of its case-law set out in the Allahverdiyev judgment (cited above, §§ 51-55), which are equally pertinent to the present case.
28.  As regards the period to be taken into consideration for the purposes of Article 5 § 3, in the present case this period commenced on 8 January 2011, when the applicant was arrested, and ended on 17 June 2011, when the first-instance court convicted him. Thus, the applicant’s pre-trial detention lasted five months and nine days in total.
29.  The Court observes that the applicant’s detention was first ordered when he was brought before the judge at the Nasimi District Court on 10 January 2011. That decision was upheld by the Baku Court of Appeal on 17 January 2011. His detention was subsequently extended by the Nasimi District Court’s decision of 3 March 2011 for a period of one month. That decision was upheld by the Baku Court of Appeal’s decision of 9 March 2011.
30.  The Court observes that both the Nasimi District Court and the Baku Court of Appeal used a standard template when ordering and extending the applicant’s pre-trial detention (see paragraphs 12-18 above). In particular, the Court notes that both courts limited themselves to repeating a number of grounds for detention in an abstract and stereotyped way, without giving any reasons why they considered those grounds relevant to the applicant’s case. They failed to mention any case-specific facts relevant to those grounds and to substantiate them with relevant and sufficient reasons (see Farhad Aliyev, cited above, §§ 191-94, and Muradverdiyev, cited above, §§ 87-91).
31.  The Court further observes that the domestic courts also relied on irrelevant grounds when they extended the applicant’s pre-trial detention. In particular, they substantiated their decisions by stating that more time was needed to complete the investigation. However, the Court reiterates that under Article 5 § 3 grounds such as the need to implement further investigative measures, or the fact that proceedings have not yet been completed, do not correspond to any of the acceptable reasons for detaining a person pending trial (see Allahverdiyev, cited above, § 60).
32.  The Court also cannot accept the Government’s argument that the applicant failed to apply to the domestic courts for the application of other preventive measures in place of pre-trial detention. It is clear from the applicant’s appeal dated 12 January 2011 against the Nasimi District Court’s detention order of 10 January 2011 that he expressly complained about the first-instance court’s failure to consider the possibility of other preventive measures, such as house arrest or release on bail (see paragraph 13 above).
33.  In view of the foregoing considerations, the Court concludes that by using a standard formula, which merely listed the grounds for detention without addressing the specific facts of the applicant’s case, and by relying on irrelevant grounds, the authorities failed to give “relevant” and “sufficient” reasons to justify the need for the applicant’s pre-trial detention.
34.  Accordingly, there has been a violation of Article 5 § 3 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 4 OF THE CONVENTION
35.  In observations dated 16 November 2016, lodged with the Court in reply to the Government’s observations of 30 September 2016, the applicant complained under Article 5 § 1 of the Convention that his arrest and detention had not been based on a reasonable suspicion that he had committed a criminal offence. In the same observations he complained under Article 5 § 4 of the Convention that he had not had at his disposal an effective procedure by which he could challenge the lawfulness of his pre‑trial detention because the domestic courts had not properly assessed his arguments in favour of release.
36.  The Government did not make any comment on those issues.
37.  Having examined the applicant’s initial submissions in his application lodged with the Court on 25 July 2011, the Court notes that he only complained about the domestic courts’ failure to justify his pre-trial detention and did not raise the above-mentioned complaints. He raised them for the first time in his observations of 16 November 2016, which were lodged in reply to those of the Government. Taking into consideration that the date of the “final decision” for the purposes of Article 35 § 1 of the Convention in connection with a period of pre-trial detention is to be taken as the date on which the charge is determined by a court at first instance, which was 17 June 2011 in the present case, the Court notes that these complaints were lodged with the Court out of time and do not comply with the six‑month rule (compare Zayidov v. Azerbaijan, no. 11948/08, § 49, 20 February 2014).
38.  Accordingly, the complaints must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
39.  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.”
Section 5.01	A.  Damage
40.  The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
41.  The Government did not submit any comment regarding the non‑pecuniary damage claimed by the applicant.
42.  The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 3,000 under this head, plus any tax that may be chargeable on this amount.
Section 5.02	B.  Costs and expenses
43.  The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court. In support of his claim, he submitted a contract with his lawyer. He also asked the Court to order the payment of the compensation in respect of costs and expenses directly into his representative’s bank account.
44.  The Government did not make any comment regarding the costs and expenses claimed by the applicant.
45.  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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, as well as the amount of work done by the representative, the Court considers it reasonable to award the sum of EUR 1,000 in respect of costs and expenses, to be paid directly into the bank account of the applicant’s representative.
Section 5.03	C.  Default interest
46.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the complaint under Article 5 § 3 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the applicant’s representative’s bank account;
(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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Anne-Marie Dougin	André Potocki
	Acting Deputy Registrar	President