BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF MURADVERDIYEV v. AZERBAIJAN
(Application
no. 16966/06)
JUDGMENT
STRASBOURG
9 December
2010
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 Muradverdiyev v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Elisabeth Steiner,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16966/06) 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 Akif Shamsaddin oglu Muradverdiyev (Akif
Şəmsəddin oğlu Muradverdiyev
– “the applicant”), on 27 April 2006.
- The
applicant was represented by Mr F. Ağayev, a lawyer practising
in Baku. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr Ç. Asgarov.
- The
applicant alleged, in particular, that his right to liberty under
Article 5 of the Convention had been breached, because there had been
no relevant or sufficient reasons to justify his continued detention.
He also alleged that his right to the presumption of innocence under
Article 6 § 2 of the Convention had not been respected by the
domestic authorities.
- On
3 July 2007 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Baku.
- The
applicant worked as the Head of the Administrative Department of the
Office of the President of the Republic of Azerbaijan before the
events described below.
- During
a telephone conversation of 20 October 2005, he and the Minister of
National Security agreed to meet the following day to discuss the
case of the attempted but failed coup d’état,
allegedly planned by a number of incumbent and former high-ranking
officials to be carried out immediately after the parliamentary
elections of 6 November 2005. Several persons had already been
arrested in connection with this case.
A. The circumstances of the applicant’s arrest
1. The applicant’s version of the events
- On
the morning of 21 October 2005 the applicant arrived at the building
of the Ministry of National Security (“the MNS”) where he
met with the Minister for about thirty minutes. After this meeting,
he met with several other MNS officers in their offices.
- From
5.20 p.m. to 7.15 p.m. on the same day the applicant was questioned
as a witness. At around 10 p.m. he met with the Deputy Minister of
National Security. That night, he wrote a statement (of unspecified
content) addressed to the Minister of National Security.
- The next day, on 22 October 2005, the applicant was
questioned again. At 10.55 p.m. on 22 October 2005 the investigator
ordered the applicant’s detention as a suspect (tutma
protokolu) for a period of forty eight hours. The
investigator stated that the applicant was suspected of having known
about, but having failed to inform the authorities, contrary to
Article 307.1 of the Criminal Code, of
the attempted coup d’état allegedly organised by
former Speaker Rasul Guliyev, former Minister of Finance Fikret
Yusifov, Minister of Economic Development Farhad Aliyev, Minister of
Healthcare Ali Insanov, and others. The
investigator also gave the possibility of the applicant’s
absconding as a reason for his detention.
2. The Government’s version of the events
- The applicant was invited
to the MNS as a witness within the framework of criminal case no.
76586 and he arrived at the MNS building on 21 October 2005 at 5.10
p.m. On the same day he was questioned as a witness from 5.20 p.m. to
7.15 p.m. and he left the MNS building at 7.25 p.m.
- On
22 October 2005 the applicant was again invited to the MNS, where he
arrived at 1.00 p.m. On the same day, he was questioned as a witness
from 1.10 p.m. to 3.15 p.m. and from 4.20 p.m. to 5.50 p.m. According
to the Government, the applicant left the MNS building during the
break between the above-mentioned questionings and he did the same at
6.00 p.m. after the second questioning. On the same day, the
applicant returned to the MNS building at 9.55 p.m. and at
10.55 p.m. the investigator in charge of the case ordered that the
applicant be detained as a suspect for a period of forty-eight hours.
B. The application of the preventive measure of remand
in custody in respect of the applicant
- On
24 October 2005, by a decision of the investigator of the Prosecutor
General’s Office issued in the presence of the applicant and
his lawyer, the applicant was formally charged in criminal case no.
76586 with the criminal offences of attempted
organisation of mass disorder and attempted usurpation of State power
by force, as provided by Articles 28, 220.1 and 278 of the Criminal
Code.
- At
approximately 5.30 p.m. on 24 October 2005 a judge of 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 (həbs
qətimkan tədbiri), ordered
the applicant’s detention for a period of three months. The
judge substantiated the necessity of this measure as follows:
“Taking into account the nature and gravity of the
offence committed by Akif Muradverdiyev, as well as the
possibility of his absconding from the investigation and the court, I
consider it necessary to apply the preventive measure of remand in
custody in respect of him.”
The
hearing concerning the application of the preventive measure of
remand in custody was held in the MNS building.
- On
26 October 2005 the applicant appealed against the decision of the
Nasimi District Court of 24 October 2005, complaining that the judge
had not independently assessed any evidence in order to
establish whether there had been reasonable suspicion that he had
committed a criminal offence. He also argued that the judge had
failed to provide any reasons justifying his remand in custody and
had not taken into consideration his personality, family status and
other personal circumstances when he had ordered his detention.
- On
28 October 2005 the Court of Appeal upheld the Nasimi District
Court’s decision of 24 October 2005. The court maintained the
applicant’s detention reiterating the first-instance court’s
findings concerning the gravity of the charges
and the possibility of the applicant’s absconding.
C. Joint statement by law-enforcement authorities
concerning the criminal proceedings against the applicant
- On
26 October 2005 the official newspaper Azərbaycan
and other mass media published a joint statement dated 25 October
2005 headlined as “From the Prosecutor General’s Office,
the Ministry of National Security and the Ministry of Internal
Affairs of the Republic of Azerbaijan”. This joint statement
officially informed the public of the arrest and indictment of a
number of well-known current and former state officials, including
the applicant, and provided a summary of the evidence gathered in
respect of their involvement in numerous alleged grave crimes. The
evidence mainly consisted of statements of the arrested persons
concerning secret meetings between them and their sources of
financing, as well as large amounts of cash and other valuables found
in the homes of some of them.
- The
joint statement of 25 October 2005 stated, inter alia:
“It has been established that Akif Muradverdiyev,
former Head of the Administrative Department of the Office of the
President of the Republic of Azerbaijan, and Fikret Sadygov, former
President of the State Company Azerkimya, conspired with Rasul
Guliyev, who is accused of large-scale embezzlement of public funds
and for which he is currently being investigated, as well as with
former Minister of Healthcare Ali Insanov, former Minister of
Economic Development Farhad Aliyev, former Minister of Finance Fikret
Yusifov and other persons interested in the forcible capture of
power. During their secret meetings held at the restaurant Flagman
situated near the Novkhany-Sumgayit highway, at different apartments
in the capital and its suburbs, and in dachas, they agreed on the
unlawful usurpation of State power, the organisation of sabotage
groups recruited for planned mass disorder and the financial support
for these activities.
...
During the investigation, on 22 October 2005, Akif
Muradverdiyev wrote to the Prosecutor General indicating his
willingness to voluntarily provide information that he knew about the
planned crime against the State power ...
...
The persons accused in the criminal case and those
questioned as suspected persons or witnesses have confirmed in their
statements that Akif Muradverdiyev was a direct participant in
anti-constitutional activities and that ... 32,700 United States
dollars, 14,000 euros, and 9,100 pounds sterling, as well as other
foreign currency, 209 gold coins, 40 gold watches and other pieces of
jewellery have been seized from Akif Muradverdiyev’s dacha
situated in Novkhany during a search conducted within the framework
of the investigation. ...”
D. Subsequent extensions of the applicant’s
detention
- At
the request of the prosecutor in charge of the criminal case, on
14 January 2006 the Nasimi District Court, in the absence of the
applicant and his lawyers, extended the length of the applicant’s
remand in custody by a period of four months, until 22 May 2006.
The judge substantiated the necessity of the extension of the
applicant’s detention as follows:
“As there are sufficient grounds on the
possibility of the applicant’s absconding from the authority
conducting the criminal proceedings, illegally influencing persons
participating in the proceedings, as well as hiding or falsification
of the necessary evidence for prosecution, it is necessary to extend
his remand in custody for a period of four moths”
- The
applicant appealed against this decision claiming that there
was no justification for the extension of the detention period. He
further alleged that neither he nor his lawyers had been
informed of the place or date of the hearing at which the extension
of his detention period had been decided.
- On
10 February 2006 the Court of Appeal upheld the decision of the
Nasimi District Court of 14 January 2006. As to the justification for
the extension of the applicant’s detention, the appellate court
stated as follows:
“The court considers that the conclusion of the
court [of the first-instance] is lawful and justified.
In fact, the investigator R. Huseynov pointed out in his
explanation that, R. Guliyev, the person with whom conspired the
accused person A. Muradverdiyev lives abroad and if he (A.
Muradverdiyev) was released he can go abroad absconding the
investigation with the help of R. Guliyev. Moreover, the accused
person A. Muradverdiyev had occupied for years important positions
and if he was released he has the possibility to influence persons
participating in the proceedings and obstruct the investigation.”
The
court also found that, although the applicant’s lawyers had
been informed of the hearing in the Nasimi District Court and despite
the postponement of this hearing by one day at their request, they
had failed to attend the hearing.
- On
16 May 2006 the investigator in charge of the
criminal case asked the Prosecutor General for an extension to the
deadline for the pre-trial investigation, noting that the
investigation had discovered new evidence concerning the applicant’s
possible involvement in other crimes, such as embezzlement of public
funds and abuse of official power, and that more time was needed to
complete the investigation. On the same day the Prosecutor General
submitted a request asking the court to extend the applicant’s
detention by a period of five months, until 22 October 2006.
- On
16 May 2006 the Nasimi District Court extended the applicant’s
remand in custody until 22 October 2006. The court held that more
time was needed for a comprehensive and objective investigation of
the case, noting that the investigation had recently discovered new
evidence that might implicate the applicant’s involvement in
other crimes such as embezzlement of public funds and abuse of
official power. As to the justification for the extension of the
applicant’s detention, held as follows:
“As there are sufficient grounds on the
possibility of the applicant’s absconding from the authority
conducting the criminal proceedings, illegally influencing persons
participating in the proceedings, as well as obstructing the
investigation by hiding or falsification of the necessary evidence
for prosecution, a request was lodged with the court for extension of
his remand in custody for a period of five moths in connection with
exceptionally complexity of the case.
...
While examining the materials of the case and the
request, it was established that the request on extension of the
remand in custody in respect of the accused person, A. Muradverdiyev,
is justified and must be granted.”
- The
applicant appealed, complaining of a lack of justification for
extension of his detention. On 31 May 2006 the Court of Appeal
dismissed the appeal noting that the decision of the Nasimi District
Court of 16 May 2006 was lawful. The justification for the extension
of his detention was brief and as follows:
“The court, after having discussed the arguments
of the appeal claim and having heard the lawyer’s submission in
favour of the appeal and the prosecutor’s speech against the
appeal, considers that, as the Nasimi District Court’s decision
is lawful and justified, the appeal should be dismissed.”
- In
the meantime, on 1 June 2006 the applicant was taken to the Medical
Treatment Facility of the Ministry of Justice owing to his
deteriorated health condition. After a medical examination, he was
prescribed certain medication. His lawyers were informed that he was
suffering from a number of ailments, such as diffuse atherosclerosis
of the cerebral arteries, circulatory encephalopathy, hypotonia,
chronic pancreatitis, a duodenal ulcer, and a pancreatic tumour.
- On
5 August 2006 the applicant’s lawyers lodged a request with the
Nasimi District Court for the applicant to be placed under house
arrest in lieu of being remanded in custody. On 9 August 2006 the
Nasimi District Court refused the applicant’s request noting
that there was no need to change the preventive measure of remand in
custody. Following the applicant’s appeal, on 16 August 2006
the Court of Appeal upheld the first instance court’s
decision.
E. New criminal charges and the trial
- On
13 September 2006, by a decision given by an investigator of the
Prosecutor General’s Office, the applicant was charged with new
criminal offences within the framework of a new criminal case no.
76844 which was separated from criminal case no. 76586. The applicant
was accused of having committed the criminal offences of embezzlement
of public funds, abuse of official power, bribery, and forgery of
official documents, as provided for by Articles 179.3.2, 308.2,
311.3.1, 311.3.2, 311.3.3 and 313 of the Criminal Code. On 25
September 2006 the Prosecutor General transferred the bill of
indictment to the Assize Court.
- On
6 October 2006 the Assize Court held a preliminary hearing. In that
hearing, the Assize Court decided, inter alia, that the
preventive measure of remand in custody in respect of the
applicant should remain unchanged.
- On
31 October 2006 the Assize Court delivered its judgment, finding the
applicant guilty of criminal offences under Articles 179.3.2, 308.2,
311.3.1, 311.3.2, 311.3.3 and 313 of the Criminal Code and sentencing
him to six years’ imprisonment, confiscation of his property
and a two-year ban from public office.
- On
5 March 2007 the Court of Appeal upheld the Assize Court’s
judgment of 31 October 2006. On 15 January 2008 the Supreme Court
partly quashed the Court of Appeal’s judgment and changed the
applicant’s sentence to a suspended sentence of five years’
imprisonment. The applicant was released from prison.
- As
to the current state of the investigation concerning criminal case
no. 76586, which still carried the charges
against the applicant under Articles 28, 220.1 and 278 of the
Criminal Code, it appears that it was not taken
to sent for trial, but was not
terminated either.
F. Further developments concerning the withdrawal of
the application
- By
a letter of 2 November 2007, signed by the applicant and sent to the
Court by the Prison Service of the Ministry of Justice, the applicant
expressed his wish to withdraw his application.
- By
a letter of 21 December 2007, the applicant’s lawyer informed
the Court that the applicant had written the letter of 2 November
2007 in the absence of his lawyer and on the recommendations of
Government officials.
- Following
the Court’s letter of 18 January 2008 asking for clarification
whether the applicant had indeed intended to withdraw the
application, the applicant’s lawyer informed the Court by a
letter of 27 February 2008 of the applicant’s wish to
continue pursuing his application, noting that the letter of 2
November 2007 had been written when the applicant was in poor health.
II. RELEVANT DOMESTIC LAW
A. Detention on remand
- Chapter
XVII of the Code of Criminal Procedure (“the CCrP”) deals
with preventive measure. Article 154 of the CCrP provides for ten
types of preventive measures imposed pending trial, including remand
in custody (həbs qətimkan tədbiri). Any
preventive measure, including remand in custody, can be applied
taking into account the existence of a risk that the accused may: (a)
hide from the prosecuting authority; (b) interfere with the pre-trial
investigation or trial by illegally influencing the parties to the
proceedings or by tampering with or hiding the relevant evidence;
(c) re offend or pose a danger to the public; (d) fail to
appear before the prosecuting authority without good reason or
otherwise evade criminal responsibility and punishment; or (e) hinder
the execution of a court judgment (Article 155.1). The following
should also be taken into account when deciding upon the need for a
preventive measure and choosing the type of measure to be applied:
(a) the nature and gravity of the criminal charge and circumstances
in which the investigated offence was committed; (b) the accused’s
personality, age, health, occupation, and his or her family,
financial and social situation; and (c) whether the accused has been
convicted or subjected to preventive measures before, and other
relevant circumstances (Article 155.2). Moreover, as a general rule,
the preventive measure of remand in custody can be imposed only with
regard to a person who is charged with an offence which carries a
punishment of more than two years’ imprisonment (Article
155.3).
- The
CCrP distinguishes between two types of detention on remand: (1)
detention “pending investigation”, that is, while the
relevant prosecuting authority conducts pre-trial investigation; and
(2) subsequent detention while the case is being tried in court.
There is no apparent practical difference between these types of
detention except the calculation of the time-limits.
- In
respect of persons accused of especially serious criminal offences,
the maximum length of detention pending investigation (məhkəməyədək
icraat zamanı qətimkan tədbiri qismində həbsdə
saxlama müddəti) cannot exceed eighteen months from the
moment of the arrest, including all possible extensions of the
initial three-month period (Articles 158.1, 159.1, 159.2, 159.7 and
159.8). The calculation of this total period of detention pending
investigation takes into account any periods of actual detention,
house arrest or stay in a medical facility. The running of detention
pending investigation is stopped on the day the case is sent to the
trial court or the day when the preventive measure of remand in
custody is lifted (Article 158.3).
- The
period during which the accused and his lawyers are given access to
the case file (cinayət işinin materialları ilə
tanış olma müddəti) is not taken into account
upon calculation of the period of detention pending investigation
(Article 158.4).
- Upon
completion of the pre-trial investigation, the investigator notifies
the accused person and other relevant parties about it and determines
the time and place for giving them access to the case file
(Article 284.1). Articles 284-288 of the CCrP set out detailed
rules and procedures for the consultation of the case file by the
relevant parties, including the accused person. After the
consultation of the case file is completed as required by Articles
284-288, the investigator issues the bill of indictment (Article
289). The bill of indictment is then forwarded to the prosecutor
supervising the pre-trial investigation, who has five days to, inter
alia, approve it or return it to the investigator for re-drafting
(Article 290).
- Following
the approval of the bill of indictment by the supervising prosecutor,
the case is sent to the trial court (Article 292). If the accused
person is being detained, the day the case is sent to the trial court
marks the end of his or her detention pending investigation (Article
158.3) and the beginning of detention during the trial.
- Pursuant
to a legislative amendment of 14 June 2005 (repealing former Article
158.5), the CCrP no longer provides for any time-limits for detention
during the trial.
B. Proceedings concerning the application and review of
detention on remand
1. Detention “pending investigation”
- The
preventive measure of remand in custody may be applied and extended
only by means of a court order requested by the prosecutor
supervising the pre-trial investigation (Articles 156.2 and 441.1.2).
- Various
procedural matters relating to pre-trial investigation, including the
application of detention on remand, are examined in camera by
a single judge of the relevant district court within twenty-four
hours of receiving the relevant request (Articles 447.1 and 447.2).
The following persons have a right to attend the hearing: (a) the
person who has lodged the request concerning the particular
procedural matter; (b) the prosecutor supervising the pre-trial
investigation; and (c) the person whose rights are affected by the
request or his or her representative (Article 447.3).
- Both
a court order applying or refusing to apply the preventive measure of
detention on remand and a court order extending or refusing to extend
the detention period may be appealed against. The appeal court’s
decision on this matter is final (Articles 157.6 and 159.6).
- The
appeal must be lodged within three days of the delivery of the
relevant court order (Article 452.1). Within three days of receipt of
the appeal, it is examined in camera by a panel of three judges of
the appeal court (Articles 453.1 and 453.2). The following persons
have a right to attend the hearing: (a) the person lodging the
appeal; (b) the prosecutor supervising the pre-trial investigation;
and (c) the lawyer or representative of the accused person (Article
453.3).
2. Detention during the trial
- The
trial court must hold a preliminary hearing within fifteen days (or
thirty days in complex cases) of receipt of the case file (Article
298.2). At this preliminary hearing, among other things, the court
must determine whether the defendant should remain in custody or be
released pending trial and issue a relevant order (Articles 299.3.5,
300.2, 301.2 and 306).
- At
any time during the trial and upon its own initiative, the court may
order, vary or revoke any preventive measure, including detention on
remand (Articles 156.2 and 320). Any such decision must be given in
the deliberations room and signed by all the judges on the panel
(Article 321.2.2).
- During
the trial, judicial decisions concerning preventive measures cannot
be appealed against to a higher court (Article 173.2).
C. Appeals against the prosecuting authorities’
actions and decisions
- Chapter
LII of the CCrP lays down the procedure by which parties to criminal
proceedings could challenge the actions or decisions of the
prosecuting authorities before a court. Article 449 provides that the
accused (or suspected) person or his counsel can challenge actions or
decisions of the prosecuting authorities concerning, inter alia,
his or her arrest or detention. The judge examining the legality of
the prosecuting authorities’ actions and decisions can quash
them if found to be unlawful (Article 451).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his arrest and detention had not been based
on reasonable grounds for suspecting that he had committed a criminal
offence. He also complained that the deprivation of his liberty had
not been lawful. In particular, he noted that he had been arrested in
an unlawful manner and detained in excess of the maximum forty-eight
hour period permitted by domestic law prior to being brought before a
judge. He further alleged that, after the period of his pre-trial
detention authorised by the Nasimi District Court’s decision of
16 May 2006 had come to an end on 22 October 2006, he had been
unlawfully detained until 31 October 2006. The relevant part of
Article 5 § 1 of the Convention reads as follows:
“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:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so ...”
A. Reasonable suspicion
- The
Government submitted that the applicant had been arrested on a
reasonable suspicion that he had committed a criminal offence. In
particular, the suspicion was based on the statements given in the
criminal case, as well as other evidence.
- The
applicant alleged that there had been no
reasonable suspicion that he had committed a criminal offence and
that the domestic authorities had failed to furnish sufficient
facts and information to create a reasonable suspicion that he had
committed any criminal offence.
- The
Court reiterates that in order for an arrest on reasonable suspicion
to be justified under Article 5 § 1 (c) it is not necessary for
the police to have obtained sufficient evidence to bring charges,
either at the point of arrest or while the applicant is in custody
(see Brogan and Others v. the United Kingdom, 29 November
1988, § 53, Series A no. 145 B, and Erdagöz
v. Turkey, 22 October 1997, § 51, Reports of Judgments
and Decisions 1997 VI). Neither is it necessary that the
person detained should ultimately have been charged or taken before a
court. The object of detention for questioning is to further a
criminal investigation by confirming or discontinuing suspicions
which provide the grounds for detention. Thus, facts which raise a
suspicion need not be of the same level as those necessary to justify
a conviction or even the bringing of a charge, which comes at the
next stage of the process of criminal investigation (see Murray v.
the United Kingdom, 28 October 1994, § 55, Series A no.
300 A). However, the requirement that the suspicion must be
based on reasonable grounds forms an essential part of the safeguard
against arbitrary arrest and detention. The fact that a suspicion is
held in good faith is insufficient. The words “reasonable
suspicion” mean the existence of facts or information which
would satisfy an objective observer that the person concerned may
have committed the offence (see Fox, Campbell and
Hartley v. the United Kingdom, 30 August 1990, § 32, Series
A no. 182, and Cebotari v. Moldova, no. 35615/06, §
48, 13 November 2007).
- In
the present case, the applicant was suspected of complicity in
planning an attempted forcible and illegal usurpation of State power
and the attempted organisation of mass disorder. It is not disputed
that these types of actions qualified as criminal offences under the
domestic law.
- It
appears that the initial suspicion against the applicant was based on
the statements of other persons who were suspected of participation
in an alleged conspiracy by several current and former State
officials aimed at usurping State power by illegal means. Although
the applicant argued that these statements were false and improbable,
the Court holds that, within the meaning of the previously cited
case-law, such evidence objectively linked the applicant to the
alleged criminal offence and was sufficient to have created
“reasonable suspicion” against him.
- For
these reasons, the Court finds that this part of the application is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
B. Lawfulness of the applicant’s initial
detention prior to being brought before a judge
- The
Government submitted that the applicant had never raised before the
domestic courts the complaint concerning his alleged detention in
excess of the maximum forty-eight hours permitted by domestic law
prior to being brought before a judge. Furthermore, the Government
argued that the applicant’s detention had begun
at 10.00 p.m. on 22 October 2005 and that he had been brought before
a judge on 24 October 2005 at 5.40 p.m., thus the forty-eight hour
period permitted by law had been respected.
- The
applicant contested the Government’s submissions. In
particular, he alleged that he had been arrested on 21 October 2005
and had not been brought before a judge until 24 October 2005.
- 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 the Court to use first the
remedies provided by the national legal system, thus dispensing the
States from answering before an international body for their actions
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 (see Aksoy v. Turkey, 18 December 1996, §§ 51-52,
Reports of Judgments and Decisions 1996-VI).
- In
the present case, the Court observes that the applicant did not raise
a complaint in this regard before the judge who decided on his
detention on 24 October 2005. He also failed to raise such a
complaint in his appeal against this detention order, as well as in
the proceedings before the Court of Appeal, which upheld the
detention order in question on 28 October 2005. Moreover, he has
never properly raised this complaint before any other domestic
authority at any other time.
- It
follows that this complaint must be rejected under Article 35 §§
1 and 4 of the Convention for non-exhaustion of domestic
remedies.
C. Lawfulness of the applicant’s detention from
22 October 2006 to 31 October 2006
- The
Government submitted that the applicant had failed to raise this
issue before the domestic authorities. The Government also noted that
the applicant’s detention from 22 October to 31 October had
been lawful and based on the Assize Court’s decision of 6
October 2006.
- The
applicant argued that there had been no legal basis for his detention
from 22 October 2006 to 31 October 2006, because the maximum period
permitted for being remanded in custody, as extended by the Nasimi
District Court’s decision of 16 May 2006, had been exceeded on
22 October 2006.
- The
Court finds that it is not necessary to examine whether the applicant
has exhausted domestic remedies as, assuming that he has done so, the
complaint is in any event inadmissible for the following reasons.
- The
Court observes that the period of the applicant’s pre-trial
detention, authorised by the Nasimi District Court’s last
detention order of 16 May 2006, was to end on 22 October 2006. In the
meantime, on 25 September 2006 the investigation had been
completed and the bill of indictment had been sent to the Assize
Court, which commenced the trial proceedings. Following its
preliminary hearing, on 6 October 2006 the Assize Court ordered,
among other things, that the preventive measure of remand in custody
that had been applied in respect of the applicant remain “unchanged”.
- In
this connection, the Court notes that it has found a violation of
Article 5 § 1 in a number of cases concerning the practice of
holding defendants in custody solely on the basis of the fact that a
bill of indictment had been filed with a trial court. It has held
that detaining defendants without a specific legal basis or clear
rules governing their situation – with the result that they may
be deprived of their liberty for an unlimited period of time without
judicial authorisation – is incompatible with the principles of
legal certainty and the protection from arbitrariness, which are
common threads throughout the Convention and the rule of law (see,
among other cases, Baranowski v. Poland, no. 28358/95, §§
53-57, ECHR 2000 III; Jėčius v. Lithuania, no.
34578/97, §§ 60-63, ECHR 2000-IX; Grauslys v. Lithuania,
no. 36743/97, §§ 39-40, 10 October 2000; and Gigolashvili
v. Georgia, no. 18145/05, §§ 33-36, 8 July 2008).
- However,
unlike in the above-mentioned cases, the applicant in the present
case was not detained after the term of his pre-trial detention had
ended solely on the basis of the fact that a bill of indictment had
been filed with a trial court, but on the basis of the Assize Court’s
decision of 6 October 2006 which was delivered before the period
of pre-trial detention authorised by the Nasimi District Court came
to an end. The Court notes that the Assize Court examined in its
preparatory hearing, inter alia, the application of the
preventive measure of remand in custody in respect of the applicant
as required by the domestic law and decided that it should remain
unchanged. In this regard, the Court reiterates that a period of
detention is, in principle, “lawful” if it is based on a
court order. Even flaws in the detention order do not necessarily
render the underlying period of detention unlawful within the meaning
of Article 5 § 1 (see Benham v. the United Kingdom, 10
June 1996, §§ 42-47, Reports of Judgments and Decisions
1996 III, and Jėčius, cited above, § 68).
- The
Court thus finds that for the period from 22 October to 31 October
2006 there was a valid court order authorising the applicant’s
continued detention. It follows that this part of the complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
- The
applicant complained that he had not been informed promptly of the
reasons for his arrest and of the charges against him. The relevant
part of Article 5 § 2 of the Convention reads as follows:
“Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
- The
Government submitted that the applicant had been informed promptly of
the reasons for his arrest and of the charges against him when he was
arrested as a suspect on 22 October 2005.
- The
applicant reiterated his complaint.
- The
Court notes that Article 5 § 2 contains the elementary safeguard
that any person arrested should know why he is being deprived of his
liberty. This provision is an integral part of the scheme of
protection afforded by Article 5: by virtue of paragraph 2 any person
arrested must be told, in simple, non-technical language that he can
understand, the essential legal and factual grounds for his arrest,
so as to be able, if he sees fit, to apply to a court to
challenge its lawfulness in accordance with Article 5 § 4.
Whilst this information must be conveyed “promptly”, it
need not be related in its entirety by the arresting officer at the
very moment of the arrest. Whether the content and promptness of the
information conveyed were sufficient is to be assessed in each case
according to its special features (see Fox, Campbell
and Hartley, cited above, § 40).
- Turning
to the circumstances of the present case, the Court notes that it is
not disputed that the applicant was informed of the reasons for his
arrest on 22 October 2005 when the investigator issued a protocol on
his forty-eight hour detention as a suspected person. He was also
informed of the charges brought against him on 24 October 2005 by a
decision of the investigator in charge of the criminal case.
- The
Court further observes that, despite two different versions of events
concerning the circumstances of the applicant’s arrest as
submitted by the parties, it is clear that the applicant had been
aware of the criminal case in connection with which he had been
summoned to the MNS when he had a conversation on the telephone with
the Minister of National Security. The Court notes that after his
arrival at the MNS building the applicant was questioned about his
alleged links with other persons already arrested in connection with
the criminal case in question and he could have gained some idea of
what he was suspected of (compare, mutatis
mutandis, Dikme v. Turkey, no. 20869/92, § 56,
ECHR 2000 VIII).
- For
these reasons, the Court finds that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained under Article 5 § 1 of the Convention that
his pre-trial detention had been unreasonably long and that no
relevant and sufficient reasons had been offered to justify his
continued detention. The Court considers that this complaint falls to
be examined under Article 5 § 3 of the Convention, which
provides as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article 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
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government contested the applicant’s arguments. The Government
submitted that the subsequent extensions of the applicant’s
pre trial detention had been justified.
- The
applicant reiterated his complaint.
- According to the Court’s established case-law,
the presumption under Article 5 is in favour of release. The second
limb of Article 5 § 3 does not give judicial authorities a
choice between bringing an accused to trial within a reasonable time
and granting him provisional release pending trial. Until conviction,
he must be presumed innocent, and the purpose of the provision under
consideration is essentially to require his provisional release once
his continuing detention ceases to be reasonable (see McKay
v. the United Kingdom [GC], no. 543/03, § 41, ECHR
2006 X, and Bykov v. Russia [GC], no.
4378/02, § 61, ECHR 2009 ...).
- The
question whether or not a period of detention is reasonable cannot be
assessed in the abstract. Whether it is reasonable for an accused to
remain in detention must be assessed in each case according to its
special features. Continued detention can be justified in a given
case only if there are specific indications of a genuine requirement
of public interest which, notwithstanding the presumption of
innocence, outweighs the rule of respect for individual liberty laid
down in Article 5 of the Convention (see Labita v. Italy
[GC], no. 26772/95, § 152, ECHR 2000 IV, and Kudła
v. Poland [GC], no. 30210/96, § 110, ECHR 2000 XI).
- The responsibility falls in the first place to the
national judicial authorities to ensure that, in a given case, the
pre-trial detention of an accused person does not exceed a reasonable
time. To this end they must, paying due regard to the principle of
the presumption of innocence, examine all the facts arguing for or
against the existence of the above-mentioned demand of public
interest justifying a departure from the rule in Article 5 and must
set them out in their decisions on the applications for release. It
is essentially on the basis of the reasons given in these decisions
and of the established facts stated by the applicant in his appeals
that the Court is called upon to decide whether or not there has been
a violation of Article 5 § 3 (see, for example, Weinsztal v.
Poland, no. 43748/98, § 50, 30 May 2006; Labita,
cited above, § 152; and McKay, cited above, § 43).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but with the lapse of time
this no longer suffices and the Court must then establish whether the
other grounds given by the judicial authorities continued to justify
the deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings (see, among other authorities,
Letellier v. France, 26 June 1991, § 35, Series
A no. 207, and Yağcı and Sargın v. Turkey,
8 June 1995, § 50, Series A no. 319-A). The burden of proof in
these matters should not be reversed by making it incumbent on the
detained person to demonstrate the existence of reasons warranting
his release (see Ilijkov v. Bulgaria, no. 33977/96, § 85,
26 July 2001).
- Turning to the circumstances of the instant case, the
Court notes that the period to be taken into consideration for the
purposes of Article 5 § 3 begins on the day the accused is taken
into custody and ends on “the day when the charge is
determined, even if only by a court of first instance” (see
Kalashnikov v. Russia, no. 47095/99, § 110, ECHR 2002 VI,
and Labita, cited above, § 147). In the present case this
period commenced on 22 October 2005, when the applicant was
arrested, and ended on 31 October 2006, when the Assize Court
delivered its judgment convicting him. Thus, the applicant’s
pre-trial detention lasted one year and nine days in total.
- The
Court accepts that the existence of a reasonable suspicion that the
applicant had committed serious criminal offences may have initially
sufficed to warrant his detention. However, with the passage of time
that ground inevitably became less and less relevant and his
continued detention had to be justified by other relevant reasons,
taking into account his personal situation (see, among other
authorities, Łaszkiewicz v. Poland, no. 28481/03, §
57, 15 January 2008, and Matyush v. Russia,
no. 14850/03, § 87, 9 December 2008).
- During
the pre-trial investigation stage of the proceedings, the applicant’s
detention was extended twice by the Nasimi District Court, by its
decisions of 14 January and 16 May 2006. Both decisions were upheld
by the Court of Appeal following the applicant’s appeals in
which he argued for his release. Moreover, the
Nasimi District Court and the Court of Appeal,
on 9 and 16 August 2006 respectively, refused the applicant’s
request to be placed under house arrest in lieu of being remanded in
custody. Lastly, at the trial stage of the proceedings, the
applicant’s detention was extended by the decision of the
Assize Court of 6 October 2006.
- As for the decision of the Nasimi District Court of 14
January 2006, as upheld by the decision of the Court of Appeal of 10
February 2006 ordering the first extension of the applicant’s
pre-trial detention by a period of four months, the applicant’s
continued detention was justified on the grounds of the gravity of
the charges and the likelihood of his absconding using his alleged
contacts abroad and exerting pressure on persons participating in the
proceedings. In this connection, the Court notes that, while the
severity of the sentence faced is one of the relevant elements in the
assessment of the risk of absconding, the gravity of the charges
cannot by itself serve to justify long periods of detention on remand
(see Ilijkov, cited above, §§ 80-81). Moreover, the
risk of absconding, which may justify detention, cannot be gauged
solely on the basis of the severity of the sentence faced. It must be
assessed with reference to a number of other relevant factors which
may either confirm the existence of a danger of absconding or make it
appear so slight that it cannot justify detention pending trial (see
Panchenko v. Russia, no. 45100/98, § 106, 8 February
2005, and Letellier, cited above, § 43). In the present
case, however, the judicial decisions did not go any further than
listing the above-mentioned grounds, including the risk of
absconding, using a standard formula paraphrasing the terms of the
CCrP (compare Giorgi Nikolaishvili,
cited above, §§ 23-24, 28, 76 and 79). They failed
to mention any case-specific facts relevant to those grounds and to
substantiate them with relevant and sufficient reasons.
- As
to the Nasimi District Court’s decision of 16 May 2006 and the
Court of Appeal’s decision of 31 May 2006 on the second
extension of the applicant’s detention for a period of five
months, the applicant’s continued detention was justified by
the fact that, following the discovery of new evidence concerning the
applicant’s possible involvement in other crimes, more time was
needed to complete the investigation and that there were sufficient
grounds to believe that the applicant would abscond, influence the
persons involved in the criminal process and interfere with the
administration of justice. However, the Court observes that in May
2006, when the domestic courts extended the applicant’s
continued detention relying on the discovery of “new evidence”
concerning his alleged involvement in other crimes, there were no new
criminal charges against him in connection with such other alleged
crimes. The applicant was not charged with new criminal offences
until 13 September 2006, almost four months after the extension
order. Therefore, the reasons provided by the domestic courts in
their decisions of 16 May and 31 May 2006 for the applicant’s
continued detention for a period of five months were irrelevant, as
they justified his detention with reference to a suspicion of
criminal offences with which the applicant was not even charged.
- Accordingly,
the Court notes that the domestic courts continued to use the same
standard formula and their reasoning did not evolve with the passing
of time to reflect the developing situation and to verify whether
these grounds remained valid at the later stages of the proceedings.
They did not describe in detail either the grounds retained in
respect of the applicant’s pre-trial detention or his personal
situation, such as his permanent residence and family ties, positive
work references and the absence of a criminal record. Moreover, as
stated above, the decisions of 16 May and 31 May 2006 relied on
irrelevant reasons to justify the applicant’s continued
detention.
- The
Court is not denying that there may have existed specific, relevant
facts warranting the applicant’s deprivation of liberty.
However, even if such facts existed, they were not set out in the
relevant domestic decisions. It is not the Court’s task to take
the place of the national authorities and establish such facts in
their stead (see Ilijkov, cited above, § 86;
Panchenko, cited above, § 105; and Giorgi
Nikolaishvili, cited above, § 77).
- In
view of the foregoing considerations, the Court concludes that, by
using a standard formula merely listing the grounds for detention
without addressing the specific facts of the applicant’s case,
as well as relying on irrelevant grounds, the authorities failed to
give “relevant” and “sufficient” reasons to
justify extending the applicant’s pre-trial detention by one
year and nine days.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicant complained that the joint statement made by the Prosecutor
General’s Office, the MNS and the Ministry of Internal Affairs
to the press on 25 October 2005 had amounted to an infringement of
his right to the presumption of innocence. He also complained that,
in the decisions of 14 January 2006 of the Nasimi District Court and
of 10 February 2006 of the Court of Appeal ordering and
extending his pre-trial detention, the domestic courts had also
breached his presumption of innocence by prejudging his guilt before
he was proved guilty at the outcome of the criminal trial. Article 6
§ 2 of the Convention 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 applicant had not exhausted all
available and effective domestic remedies in respect of the impugned
joint statement of law enforcement authorities. In this regard, the
Government submitted that the applicant could make use of the
procedure concerning appeals against the prosecution authorities’
actions and decisions set out in Articles 449-451 of the CCrP or
lodge a criminal complaint for defamation. The Government did not
comment on the part of the complaint concerning the alleged breach of
the presumption of innocence by the domestic courts.
- The
applicant reiterated his complaints.
- In
so far as the applicant complained about the alleged breach of his
right to the presumption of innocence by the domestic courts in their
decisions of 14 January and 10 February 2006 ordering and extending
his pre-trial detention, the Court, having carefully examined the
relevant texts, finds that none of them
contains any wording that could be interpreted as prematurely
declaring the applicant guilty of the offences with which he was
charged. It follows that this part of the complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
- As
for the remainder of the complaint, the Court reiterates that Article
35 § 1 of the Convention, which sets out the rule on exhaustion
of domestic remedies, provides for a distribution of the burden of
proof. It is incumbent on the Government claiming non-exhaustion to
satisfy the Court that the remedy was an effective one available in
theory and in practice at the relevant time, that is to say that it
was accessible, was capable of providing redress in respect of the
applicant’s complaints and offered reasonable prospects of
success (see Akdivar and Others v. Turkey, 16 September
1996, § 68, Reports of Judgments and Decisions 1996 IV,
and Selmouni v. France [GC], no. 25803/94, § 76, ECHR
1999 V). The Court further emphasises that the domestic remedies
must be “effective” in the sense either of preventing the
alleged violation or its continuation, or of providing adequate
redress for any violation that has already occurred (see Kudła,
cited above, § 158).
- Although
the Government argued that the domestic law provided for effective
remedies in the form of the procedure set out in Articles
449-451 of the CCrP or a criminal complaint for
defamation, 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 (see, mutatis mutandis,
Matijašević v. Serbia, no. 23037/04, § 32,
ECHR 2006 X). 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. 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.
- Therefore,
the Government’s objection should be dismissed. The
Court considers that this part of the complaint is not otherwise
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention or inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government did not make any submission on the merits of this
complaint.
- The
applicant maintained his complaint.
- The
Court reiterates that Article 6 § 2, in its relevant aspect, is
aimed at preventing a fair criminal trial being undermined 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 is 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).
- Article 6 § 2 governs criminal proceedings in
their entirety and a person charged with a criminal offence has a
right to be presumed innocent throughout the proceedings,
irrespective of whether or not he or she is ultimately found guilty
by the competent court (see, mutatis mutandis, Minelli,
cited above, § 30, and Matijašević, cited
above, § 49).
- The
Court notes that in the present case the impugned statement was made
to the press, in a context independent of the criminal proceedings
themselves. The Court acknowledges that the fact that the applicant,
as former Head of the Administrative Department of the Office of the
President, was a high-ranking State official may have required the
authorities to keep the public informed of the criminal accusations
against him and the ensuing criminal proceedings. However, this
circumstance cannot justify a lack of caution in the choice of words
used by the authorities in their statement. Moreover, in the
present case, the statement at issue was made at the time when the
criminal investigation against the applicant had just been started.
- The
Court accepts that the primary purpose of the impugned statement may
have been to inform the public of, and the reasons for, the
institution of criminal proceedings against the applicant and several
other State officials. However, the Court considers that the specific
content of that statement, including the choice of words used in it,
is not acceptable from the standpoint of Article 6 § 2.
- The
Court observes that the joint statement in question described the
alleged involvement of the applicant and other arrested persons in a
criminal offence relying on the testimony of several arrested
persons. Having examined the text of the joint statement, the Court
considers that, from the very beginning, the wording used was
imperative and affirmative. In particular, it was stated that “it
has been established that Akif Muradverdiyev ... and Fikret Sadygov
... conspired with Rasul Guliyev ..., as well as with ... Ali
Insanov, ... Farhad Aliyev, ... Fikret Yusifov and other persons
interested in capturing power by force. During their secret meetings
..., they agreed on the unlawful usurpation of State power, the
organisation of sabotage groups recruited for planned mass disorder
and the financial support for these activities”. The Court
considers that these remarks made by three law-enforcement
authorities in their joint statement, made without any reservation or
circumspection, were in disregard of the applicant’s
presumption of innocence.
- Given
that the above official statement was made jointly by three different
law-enforcement bodies competent to conduct criminal prosecution on
behalf of the State, particular caution should have been exercised by
them in the choice of words used to describe the pending criminal
proceedings. The Court considers that that statement, made without
the necessary qualifications or reservations, contained wording
amounting to a declaration that the applicant had committed certain
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 applicant guilty before he had
been proved guilty according to law.
- The
Court finds that there has been a violation of Article 6 § 2 of
the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
conjunction with Article 5 of the Convention, the applicant
complained under Articles 13 and 14 of the Convention that the
domestic remedies had been ineffective and that he had been
discriminated against owing to his political opinions.
- However,
Iin the
light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under
Article 5 § 3 and Article 6 § 2 concerning the lawfulness
of the applicant’s continued pre-trial detention and his right
to the presumption of innocence in respect of the joint statement of
three law-enforcement authorities admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
6 § 2 of the Convention;
- Holds that there is no
call to award any just satisfaction.
Done in English, and notified in writing on 9 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
