European Court of Human Rights

 

 

FIFTH SECTION

CASE OF ISGANDAROV v. AZERBAIJAN

(Application no. 77612/11)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

17 March 2022

 

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

In the case of Isgandarov v. Azerbaijan,

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

          Mārtiņš Mits, President,
          Ivana Jelić,
          Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 77612/11) 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”) on 11 November 2011 by an Azerbaijani national, Mr Vidadi Isgandar oglu Isgandarov (Vidadi İsgəndər oğlu İsgəndərov - “the applicant”), born in 1962 and represented by Mr K. Bagirov, a lawyer based in Azerbaijan;

the decision to give notice of the complaints concerning the applicant’s conditions of detention between 17 and 18 April 2011 in the Nasimi District Police Office (Article 3), the alleged lack of justification for his pre-trial detention (Article 5 § 3), and the alleged unfairness of the criminal proceedings against him (Article 6 §§ 1 and 3) to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;

the decision of the President of the Section to give Mr. K. Bagirov leave to represent the applicant in the proceedings before the Court (Rule 36 § 4 (a) in fine of the Rules of Court);

the parties’ observations;

Having deliberated in private on 24 February 2022,

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

SUBJECT MATTER OF THE CASE

1.  The present application concerns the conditions of detention, pre-trial detention and subsequent criminal conviction of the applicant who alleges that his rights protected under Articles 3, 5 § 3 and 6 §§ 1 and 3 (d) of the Convention were breached by the domestic authorities.

2.  On 17 April 2011 the applicant was arrested on the street for disobeying an order of a police officer, asking the applicant and other participants of a picket to stop their unauthorised gathering, and he was taken to the Nasimi District Court. On 18 April 2011 he was brought before a judge who found him guilty of the administrative offence of deliberate failure to comply with the lawful order of a police officer (Article 310 of the Code of Administrative Offences), and sentenced to fifteen days of administrative detention.

3.  The applicant subsequently lodged a criminal complaint with the prosecuting authorities, arguing that he had been placed in a two-person cell with up to seven people in the Nasimi District Police Office, and that he had not been provided with food and drinking water between around 9 p.m. on 17 April and 10 a.m. on 18 April. On 18 June 2011 the prosecuting authorities decided to refuse to institute criminal proceedings, finding, inter alia, that all detainees including the applicant had been detained in two or four-person cells corresponding to the number of detainees, and that the applicant had been provided with food and drinking water. The applicant subsequently contested the prosecuting authorities’ decision of 18 June 2011 before the domestic courts, which upheld the decision in question, the last domestic decision being issued by the Baku Court of Appeal on 7 December 2011.

4.  On 2 May 2011, the last day of his administrative detention, the applicant was charged with the criminal offences of hindering the exercise of electoral rights, and interfering with the functioning of the electoral commissions under Articles 159.4.1 and 160.2.1 of the Criminal Code.

5.  On the same date the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody, ordered the applicant’s detention for a period of two months. The judge substantiated the necessity of this measure by the gravity of the applicant’s alleged criminal acts and the possibility of his absconding and obstructing the investigation. On 10 May 2011 the Baku Court of Appeal dismissed an appeal by the applicant and upheld the Nasimi District Court’s decision of 2 May 2011. No further decision concerning the extension of the applicant’s pre-trial detention is available in the case file.

6.  On 6 June 2011 the applicant was additionally charged with the criminal offence of assault under Article 132 of the Criminal Code. On 27 August 2011 the Goychay District Court convicted the applicant under Articles 132 (assault), 159 (hindering the exercise of electoral rights) and 160 (interfering with the functioning of the electoral commissions) of the Criminal Code and sentenced him to three years’ imprisonment.

7.  In an appeal and a cassation appeal lodged by the applicant, he argued that the domestic courts had not ensured the participation of most of the defence witnesses, that he had not had the benefit of adversarial proceedings, and that his right to a reasoned judgment had been violated.

8.  On 2 November 2011 the Shaki Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the first-instance court. In particular, the appellate court found that the first-instance court had examined the material evidence submitted by the prosecutor and had relied on the forensic medical examination report confirming the injuries on the body of the victim, A.A., had heard witnesses requested by the prosecution and by the defendant, had given the applicant an opportunity to participate in adversarial oral hearings and had made a thorough and detailed comparative analysis of the testimonies given by victims and witnesses, and its judgment was not arbitrary or unreasoned. On 10 April 2012 the Supreme Court upheld the appellate court’s judgment of 2 November 2011.

9.  The applicant complained under Article 3 of the Convention that between around 9 p.m. on 17 April and 10 a.m. on 18 April 2011 he had been kept in the Nasimi District Police Office’s two-person cell with up to seven people and had not been provided with food and drinking water and that this had caused him additional suffering as a diabetic. The applicant also complained under Article 5 § 3 of the Convention that the domestic courts had failed to justify the need for his pre-trial detention. The applicant further complained under Article 6 §§ 1 and 3 (d) of the Convention that he had not been able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, and the domestic courts’ judgments had been unreasoned.

THE COURT’S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

10.  The Court refers to its well-established case-law principles regarding the assessment of whether the treatment complained of attained the minimum level of severity to fall within the scope of Article 3 of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90, ECHR 2015, and Korban v. Ukraine, no. 26744/16, § 104, 4 July 2019).

11.  In the present case, the Government submitted that the applicant’s conditions of detention had met all the standards and that the prosecuting authorities and the domestic courts thoroughly examined them and had not found any fact supporting the applicant’s allegations. The applicant disagreed as regards the overcrowding of the cell and the lack of provision of food and drinking water. However, he failed to submit any evidence or details in support of his account of the conditions of detention, either in the domestic proceedings or before the Court (compare Mehdiyev v. Azerbaijan, no. 59075/09, § 80, 18 June 2015, and Yagublu v. Azerbaijan [Committee], no. 69686/12, §§ 32‑43, 15 July 2021). The Court has held in its case-law that in cases which concern conditions of detention, the applicants are expected in principle to submit detailed and consistent accounts of the facts complained of and to provide, as far as possible, some evidence in support of their complaints (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010, and Korban, cited above, § 106). In the present case, the Court observes that the period in question largely covered the night-time, during which no food is served in general in a detention facility. In any event, the applicant did not provide any evidence proving that he was a diabetic and any evidence or details as regards the fact that he had not been provided with food and drinking water or the overcrowding of the cell.

12.  Therefore, having regard to all the material in its possession, the Court finds that this complaint is inadmissible as manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

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

13.  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.

14.  The Court refers to the general principles established in its case-law and set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84‑91, 5 July 2016), which are equally pertinent to the present case.

15.  The Court observes that the domestic courts, in their decisions on the applicant’s detention (see paragraph 5 above), used a standard template and 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 also failed to mention any case-specific facts relevant to those grounds and to substantiate them with relevant and sufficient reasons. The Court has repeatedly found violations of Article 5 § 3 in previous Azerbaijani cases where similar shortcomings were noted and analysed in detail (see Farhad Aliyev v. Azerbaijan, no. 37138/06, §§ 191‑94, 9 November 2010, and Zayidov v. Azerbaijan, no. 11948/08, §§ 64-68, 20 February 2014).

16.  In view of the foregoing considerations, the Court considers that the authorities failed to give “relevant” and “sufficient” reasons to justify the need for the applicant’s pre-trial detention. Accordingly, there has been a violation of Article 5 § 3 of the Convention.

III.   ALLEGED VIOLATION OF Article 6 §§ 1 and 3 (D) of THE CONVENTION

17.  The Court refers to the applicable general principles under Article 6 §§ 1 and 3 (d) which have been set out in Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 150-68, 18 December 2018), which are equally pertinent to the present case.

18.  In the present case, the Court firstly observes that the applicant submitted in his observations before the Court that only eight out of twenty-seven witnesses on his behalf were questioned in the domestic proceedings and the domestic courts failed to ensure the presence of the remaining witnesses at the hearings. However, the Court notes that when the applicant requested the trial court to ensure the presence of those defence witnesses, he did not provide any particular factual or legal arguments, and did not elaborate in concrete terms, even briefly, as to why their attendance was important for his line of defence or how their testimony would serve to exonerate him or, at a minimum, strengthen his position in any way (see Dorokhov v. Russia, no. 66802/01, § 72, 14 February 2008, and Polyakov v. Russia, no. 77018/01, § 34, 29 January 2009). Accordingly, having regard to the absence of any specific legal or factual arguments as to the necessity of hearing them (contrast Mehdiyev v. Azerbaijan [Committee], no. 59090/12, §§ 37-41, 31 October 2019), the Court considers that the domestic courts cannot be criticised for not providing sufficient reasons for the decision not to examine them at the trial (see Madatov v. Azerbaijan (dec.)[Committee], no. 29656/07, § 72, 20 June 2007). Furthermore, the Court would stress that the applicant, assisted by a professional lawyer, was able to conduct his defence effectively, confront and examine witnesses testifying against him, comment without hindrance on the incriminating evidence, adduce evidence he considered relevant, and present his account of the events to the domestic courts. Having regard to these circumstances, the Court concludes that the domestic courts’ decision not to examine those particular witnesses at trial did not undermine the overall fairness of the proceedings.

19.  Having regard to all the information in its possession, and given its limited role concerning the assessment of evidence by the national courts, the Court sees no grounds which would allow it to conclude that the domestic courts’ findings were arbitrary or inadequately reasoned, or that the proceedings were otherwise contrary to Article 6 of the Convention.

20.  Therefore, having regard to all the material in its possession, the Court finds that this complaint is inadmissible as manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

21.  The applicant claimed 45,000 euros (EUR) in respect of non‑pecuniary damage and EUR 5,000 in respect of costs and expenses incurred before the domestic courts and the Court.

22.  The Government submitted that the applicant’s claims were unsubstantiated.

23.  The Court awards the applicant EUR 3,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

24.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 500 covering costs under all heads, plus any tax that may be chargeable to the applicant, to be paid directly into the bank account of the applicant’s representative, Mr K. Bagirov.

25.  The Court further 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 (the alleged lack of justification for the pre-trial detention) of the Convention admissible and the reminder 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 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account of the applicant’s representative;

(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 17 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                     Mārtiņš Mits
          Deputy Registrar                                                      President