European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF HAZIYEV v. AZERBAIJAN

 

(Application no. 19842/15)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

6 December 2018

 

 

 

 

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 Haziyev v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Yonko Grozev,
André Potocki,
Síofra O'Leary,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 13 November 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 19842/15) 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 Seymur Mashgul oglu Haziyev ( Seymur Məşgül oğlu Həziyev  "the applicant"), on 10 April 2015.

2. The applicant was represented by Ms S. Humbatova a lawyer practising in Azerbaijan. The Azerbaijani Government ("the Government") were represented by their Agent, Mr Ç. Asgarov.

3. The applicant alleged that he had been unlawfully deprived of his liberty from 29 October to 11 November 2014, and that the domestic authorities had failed to justify his detention pending trial.

4. On 12 December 2016 the complaints concerning the lawfulness of the applicant's detention from 29 October to 11 November 2014 and the alleged lack of justification for his pre-trial detention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The Court also posed a question at that stage regarding whether there had been, in the circumstances of the present case, a violation of Article 18 in conjunction with Article 5 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and is currently serving a prison sentence.

6. The applicant was a journalist and an active member of the Popular Front Party, which is one of the opposition parties. At the time of the events he wrote for the newspaper Azadliq and participated in various media projects. In particular, he was the presenter of a satellite TV show "Azerbaijani Hour" which was critical of the government. In 2016 the applicant was awarded that year's "Free Media Awards" by the Fritt Ord Foundation and ZEIT-Stiftung for independent journalism in Eastern Europe.

A. Institution of criminal proceedings against the applicant and his remand in custody

7. At around noon on 29 August 2014, when the applicant was on his way to work, a certain M.H. approached him near a bus stop, asking him why he had not replied to his messages sent via Facebook. The applicant, who did not know M.H., answered that he had not replied to him because he had probably not seen his messages. According to the applicant, immediately after that answer, M.H. physically assaulted him by punching him in the face. At that moment the applicant began defending himself and hit M.H. with a glass water bottle that he had just bought from the market. The applicant then left the scene of the incident and asked for help. At that moment he saw a police car and immediately asked the police officers for help.

8. At around 12.30 p.m. on the same day the applicant and M.H. were taken to the Absheron District Police Office.

9. At 2.40 p.m. on the same day an investigator issued a record of the applicant's detention as a suspect. The applicant was suspected of having committed the criminal offence of hooliganism under Article 221.3 of the Criminal Code.

10. On 30 August 2014 the applicant was charged under Article 221.3 (hooliganism) of the Criminal Code. In particular, he was accused of having caused minor bodily harm to M.H. by hitting the latter on the head with a glass water bottle and also punching and kicking him in the face.

11. On the same day the Absheron District Court, relying on the official charge brought against the applicant and a request by the prosecutor to apply the preventive measure of remand in custody, ordered the applicant's detention pending trial for a period of two months, calculating the period of detention from 29 August 2014. The court justified the application of the preventive measure of remand in custody by referring to the risk of the applicant reoffending and obstructing the investigation's functioning by influencing other participants in the criminal proceedings. The relevant part of the decision reads as follows:

"... having examined the preliminary material of the case file (witness statements and forensic expert reports), the court considers that there are sufficient grounds to believe that there is a likelihood that the accused Haziyev Seymur Mashgul oglu will obstruct the investigation's functioning by influencing other participants in the criminal proceedings and reoffend."

12. On 1 September 2014 the applicant appealed against that decision, claiming that there had been no justification for the application of the preventive measure of detention pending trial, and that his pre-trial detention amounted to a violation of Article 5 of the Convention. In this respect, he submitted that there was no evidence in the case file proving the existence of any risk of his reoffending or obstructing the investigation's functioning. He also argued that he could not in any way obstruct the investigation's functioning, as all the protagonists involved in the incident had already been identified and examined by the forensic expert. He further pointed out that he was a journalist and had always collaborated with the law-enforcement authorities. The applicant also challenged the charge against him, claiming that he had only defended himself against the physical assault by M.H., whom he had not known before the incident.

13. On 12 September 2014 the Sumgayit Court of Appeal dismissed the appeal, finding that the first-instance court's decision was justified. In particular, the appellate court dismissed the applicant's complaint relating to the legal classification of his action as hooliganism, but remained silent as to his above-mentioned specific complaints concerning the lack of justification for his pre-trial detention.

B. Further developments

14. On 30 September 2014 the applicant lodged an application with the Absheron District Court, asking to be released on bail or put under house arrest rather than being held in pre-trial detention. He claimed, in particular, that his pre-trial detention was not justified and that there was no reason for it to continue. In support of his application, he pointed out that he had a permanent place of residence, that he had no criminal record, and that there was no proof that he could obstruct the investigation and reoffend.

15. On 2 October 2014 the Absheron District Court dismissed the application, finding it unfounded.

16. On 13 October 2014 the Sumgayit Court of Appeal upheld the first-instance court's decision.

17. On 27 October 2014 the prosecutor in charge of the case filed the bill of indictment with the Absheron District Court for trial.

18. On 11 November 2014 the applicant lodged an application with the Absheron District Court, asking to be placed under house arrest instead of in pre-trial detention. He also complained that despite the fact that his pre-trial detention period had expired on 29 October 2014, he had not been released from detention.

19. On 11 November 2014 the Absheron District Court dismissed the applicant's application, finding that his detention was lawful. The first-instance court's decision was not amenable to appeal.

20. On 20 November 2014 the Absheron District Court held a preliminary hearing in which it decided, inter alia , that the preventive measure of remand in custody in respect of the applicant should remain unchanged, without citing any grounds. The first-instance court's decision was not amenable to appeal.

21. On 29 January 2015 the Absheron District Court found the applicant guilty under Article 221.3 of the Criminal Code and sentenced him to five years' imprisonment.

22. On 29 September 2015 the Sumgayit Court of Appeal upheld that judgment. It was further upheld on 15 April 2016 by the Supreme Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Code of Criminal Procedure ("the CCrP")

23. A detailed description of the relevant provisions of the CCrP concerning pre-trial detention and proceedings concerning the application and review of detention pending trial can be found 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).

B. Decisions of the Plenum of the Supreme Court

24. A detailed description of the relevant parts of the decisions of the Plenum of the Supreme Court on the application of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights in the administration of justice, dated 30 March 2006, and on the application of the legislation by the courts during the consideration of applications for the preventive measure of remand in custody in respect of an accused, dated 3 November 2009, can be found in Rasul Jafarov v. Azerbaijan (no. 69981/14, §§ 50-76 and §§ 79-80, 17 March 2016).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

25. The applicant complained that his detention from 29 October to 11 November 2014 had been unlawful. The relevant part of Article 5 § 1 of the Convention reads:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ..."

A. Admissibility

26. 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.

B. Merits

1. The parties' submissions

27. The applicant reiterated that his detention from 29 October to 11 November 2014 had been unlawful, as he had been detained during that period in the absence of a court order.

28. The Government did not make any observations on the merits.

2. The Court's assessment

29. The Court notes that the period of the applicant's pre-trial detention authorised by the Absheron District Court's detention order of 30 August 2014 expired on 29 October 2014. On 27 October 2014 the investigation was completed and the indictment was sent to the Absheron District Court for trial. At a preliminary hearing on 11 November 2014 the Absheron District Court dismissed the applicant's application to be placed under house arrest rather than being held in pre-trial detention, finding that his detention was lawful. Accordingly, during the period from 29 October to 11 November 2014 the applicant was detained in the absence of any judicial order authorising his detention.

30. In this connection, the Court notes that it has already examined a similar complaint in numerous cases against Azerbaijan concerning the practice of holding applicants in custody solely on the basis of the fact that an indictment has been filed with a trial court. In those cases, the Court concluded that there had been a violation of Article 5 § 1 of the Convention, in that the applicants' detention had not been based on a court decision and had therefore been unlawful within the meaning of that provision (see, among other cases, Farhad Aliyev , cited above, §§ 174-179; Allahverdiyev v. Azerbaijan , no. 49192/08, §§ 45-46, 6 March 2014; and Isayeva v. Azerbaijan , no. 36229/11, §§ 69-70, 25 June 2015). The Court sees no reason to reach a different conclusion in the present case, and concludes that the applicant's detention from 29 October to 11 November 2014, which was not based on a court order, was unlawful within the meaning of Article 5 § 1.

31. There has accordingly been a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

32. The applicant complained under Article 5 of the Convention that the domestic courts had failed to justify the need for his pre-trial detention. The Court considers that this complaint falls to be examined 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."

A. Admissibility

33. 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.

B. Merits

1. The parties' submissions

34. The applicant maintained his complaint, arguing that the domestic courts had failed to provide relevant and sufficient reasons for his pre-trial detention.

35. The Government submitted that the domestic courts had given sufficient and relevant reasons for the applicant's pre-trial detention.

2. The Court's assessment

36. The Court refers to the general principles established in its case-law set out in the Allahverdiyev judgment (cited above, §§ 51-55), which are equally pertinent to the present case.

37. The Court notes that it has already found that some periods of the applicant's detention were not in accordance with Article 5 § 1 of the Convention (see paragraphs 29-31 above). As to the period to be taken into consideration for the purposes of Article 5 § 3, in the present case, this period commenced on 29 August 2014, when the applicant was arrested, and ended on 29 January 2015, when the first-instance court convicted him. Thus, the applicant's pre-trial detention lasted exactly five months in total.

38. The Court observes that the applicant's detention was ordered when he was brought before the judge at the Absheron District Court on 30 August 2014. That decision was upheld by the Sumgayit Court of Appeal on 12 September 2014. On 20 November 2014 the Absheron District Court decided that the preventive measure of remand in custody in respect of the applicant should remain unchanged. Moreover, on 2 and 13 October 2014 respectively, the Absheron District Court and the Sumgayit Court of Appeal dismissed the applicant's application for other preventive measures in place of pre-trial detention. On 11 November 2014 the Absheron District Court again dismissed a similar application.

39. The Court observes that both the Absheron District Court and the Sumgayit Court of Appeal used a standard template when ordering the applicant's pre-trial detention. In particular, the Court notes that both courts, in an abstract and stereotyped way, limited themselves to repeating the risk of the applicant reoffending and obstructing the investigation as grounds for detention, without giving any reasons why they considered those grounds relevant to the applicant's case (see paragraphs 11-13 above). They failed to mention any case-specific facts relevant to those grounds and substantiate them with relevant and sufficient reasons (see Farhad Aliyev , cited above, §§ 191-94, and Muradverdiyev , cited above, §§ 87-91).

40. As regards the Absheron District Court's decision of 20 November 2014 which constituted the legal basis for the applicant's continued detention until his conviction on 29 January 2015, the Court notes that the Absheron District Court limited itself to holding that the preventive measure of remand in custody in respect of the applicant should remain unchanged, without specifying concrete grounds for his detention (see paragraph 20 above). In this connection, the Court reiterates that court decisions extending detention without any reasoning are contrary to Article 5 of the Convention (see Allahverdiyev , cited above, § 61).

41. The foregoing considerations are sufficient to enable the Court to conclude 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 failing to give any reasons for the extension of the applicant's continued detention, the authorities failed to give "relevant" and "sufficient" reasons to justify the need for his pre-trial detention.

42. Accordingly, there has been a violation of Article 5 § 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 5 OF THE CONVENTION

43. On the basis of the same facts and in response to a question posed by the Court in relation to Article 18 of the Convention in conjunction with Article 5, the applicant argued that his Convention rights had been restricted for purposes other than those prescribed in the Convention. Article 18 provides:

"The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

44. However, having regard to the conclusions reached above under Article 5 of the Convention, in the circumstances of the present case the Court does not consider it necessary to examine this complaint separately (see Mehmet Hasan Altan v. Turkey , no. 13237/17, § 216, 20 March 2018, and Şahin Alpay v. Turkey , no. 16538/17, § 186, 20 March 2018).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

45. 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

46. The applicant claimed 6,409 euros (EUR) in respect of pecuniary damage for his loss of earnings during his pre-trial detention lasting five months. In support of his claim, he submitted two statements from the newspaper Azadliq and an association named Cenlibart confirming that he received a monthly salary of 750 Azerbaijani manats (AZN) and 1,000 United States dollars (USD) from them respectively. The applicant further claimed EUR 2,419 in respect of pecuniary damage. He submitted that his family had spent that sum on sending food to him and regularly visiting him in prison.

47. The Government contested the claim, submitting that the applicant had failed to substantiate it. In particular, they pointed out that the applicant had failed to submit any official document establishing that he had indeed received the amounts claimed as his salary before his arrest and paid the relevant taxes.

48. As regards the applicant's claim for loss of earnings, the Court reiterates that, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. In the present case, even assuming that there is a causal link between the damage claimed and the violations found, the Court observes that the applicant did not submit the relevant documentary evidence supporting this claim. In particular, in the absence of any employment contract, payslip, bank account statement or other document confirming the applicant's loss of salary, the Court cannot accept the two statements in question as relevant documentary evidence. Moreover, the applicant failed to make submissions as to whether there were any particular circumstances preventing him from submitting one of the above-mentioned documents confirming his loss of salary.

49. As regards the part of the claim concerning the food and visit expenses, the Court does not find any causal link between the damage claimed and the violations found (see Fatullayev v. Azerbaijan , no. 40984/07, § 186, 22 April 2010; Efendiyev v. Azerbaijan , no. 27304/07, § 60, 18 December 2014; and Yagublu v. Azerbaijan , no. 31709/13, § 68, 5 November 2015).

50. For the above reasons, the Court rejects the applicant's claims in respect of pecuniary damage.

2. Non-pecuniary damage

51. The applicant claimed EUR 30,000 in respect of non-‘pecuniary damage.

52. The Government contested the amount claimed as unsubstantiated and submitted that, in any event, a finding of a violation would constitute sufficient just satisfaction.

53. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations, 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 13,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

54. The applicant claimed EUR 4,681 in total for costs and expenses incurred before the domestic courts and the Court. In particular, he claimed AZN 1,500 for legal services incurred in the domestic proceedings, EUR 3,000 for legal services incurred before the Court, EUR 800 for translation expenses and EUR 90 for postal expenses. In support of his claim, he submitted a contract concluded with his representative before the Court and five invoices confirming payments to the lawyer who had represented him in the domestic proceedings.

55. The Government argued that the claim was excessive. In particular, they pointed out that the amount claimed for legal expenses incurred before the Court was excessive, as this amount was only in respect of the preparation of the applicant's observations in reply to those of the Government, and the applicant's representative had already made identical submissions before the Court in another case. They also noted that only two of the five invoices, totalling AZN 800, concerned the domestic proceedings relating to the applicant's pre-trial detention.

56. 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, the Court observes that the applicant did not submit any document in support of his claims for translation and postal expenses. The Court further notes that only two of the five invoices, totalling AZN 800, concerned the domestic proceedings relating to the applicant's pre-trial detention, and the amount of work done by the applicant's representative before the Court was limited to the preparation of his observations. Therefore, having regard to these facts, as well as to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,500 to cover costs under all heads.

C. Default interest

57. 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 application admissible;

 

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

 

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

 

4. Holds that there is no need to examine separately the complaint under Article 18 of the Convention taken in conjunction with Article 5 of the Convention;

 

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:

(i) EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

 

6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 6 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia Westerdiek Angelika Nußberger
Registrar President