RAFIG ALIYEV v. AZERBAIJAN - 45875/06 [2011] ECHR 2022 (6 December 2011)

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European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> RAFIG ALIYEV v. AZERBAIJAN - 45875/06 [2011] ECHR 2022 (6 December 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/2022.html
Cite as: [2011] ECHR 2022

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FIRST SECTION

CASE OF RAFIG ALIYEV v. AZERBAIJAN

(Application no. 45875/06)

JUDGMENT

STRASBOURG

6 December 2011

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Rafig Aliyev v. Azerbaijan,

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

Nina Vajić, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 15 November 2011,

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

PROCEDURE

The case originated in an application (no. 45875/06) 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 Rafig Shovlet oglu Aliyev (Rafiq Şövlət oğlu Əliyev – “the applicant”), on 13 November 2006.

2. The applicant was represented by Ms L. James and Lord Lester of Herne Hill QC, lawyers practising in London, and Mr M. Mustafayev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicant alleged, in particular, that during his pre-trial detention his rights under Articles 3, 5, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention had been infringed by various domestic authorities and officials.

On 4 April 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1967 and lives in Baku. He was the chief executive officer of various Azerbaijani subsidiaries of Azpetrol International Holdings B.V. (hereafter “Azpetrol”, including its various subsidiaries and subdivisions), one of the largest private companies operating in Azerbaijan.

A. Criminal proceedings against the applicant

1. The circumstances of the applicant’s arrest

(a) The applicant’s version of the events

At approximately 7 a.m. on 19 October 2005 the applicant arrived at Baku International Airport for a business trip to Chişinău, Moldova. When passing through customs and border controls, the applicant reported that he was carrying 900 US dollars (USD) in foreign currency, which was below the minimum threshold of USD 1,000 required at the material time for a customs declaration.

Having passed through customs, the applicant waited for his flight in the VIP area for 25-30 minutes. His luggage was with the VIP staff who were responsible for taking it to the aircraft. After the flight was announced, the passengers from the VIP area were taken to the aircraft in a minibus. However, when boarding the aircraft the applicant was stopped by officers of the State Customs Committee, taken back to the airport customs office and informed that he was suspected of carrying a large amount of foreign currency in his carry-on luggage.

During the inspection of the carry-on luggage, three packs of banknotes for a total amount of USD 30,000 were found in the outer compartment of the bag. The applicant protested, claiming that it was not his money and that it must have been “planted” in his bag when the bag was with the VIP staff.

From 7 a.m. to 4 p.m. the applicant was detained at the airport by the State Customs Committee. During this time, he was not allowed to contact his family or a lawyer of his choosing. At around 4 p.m. the applicant was taken to the Investigation Department of the State Border Service. At 9 p.m. he was allowed to contact one of his brothers, Alipanah Aliyev, to inform him of his whereabouts.

The investigator in charge of the applicant’s case informed him that a criminal case had been instituted against him under Article 206.1 of the Criminal Code (contraband; illegal transfer of large quantities of goods or other valuables through customs without a declaration).

At around 11.55 p.m. the investigator attempted to interrogate the applicant in the presence of a State-appointed lawyer, but the applicant refused to be represented by that lawyer. An entry was made in the investigator’s records concerning this refusal.

(b) The Government’s version of the events

At about 7 a.m. on 19 October 2005 the applicant arrived at the airport. When the applicant passed through the customs control area, the X-ray monitor revealed some paper packets in the applicant’s bag. A customs official asked the applicant whether he had anything undeclared with him. The applicant replied in the negative. After the applicant entered the VIP lounge, the customs official reported his suspicions to his superior. At about 7:30 a.m. a representative of the airport’s customs office, together with the representative of the State Border Service and two witnesses, searched the applicant’s baggage and found USD 30,000 that had not been declared.

The customs officials conducted an initial inquiry, made records of the applicant’s explanation and witness statements and took an inventory of each bank note. These procedures took several hours and lasted until around 5.50 p.m. The customs officials then sent the relevant material to the Prosecutor General’s Office.

At around 9.30 p.m. the applicant made a telephone call to one of his brothers, requesting a lawyer. The lawyer of the applicant’s choosing did not appear and the investigator of the Investigation Department of the State Border Service called a lawyer at the State’s expense. However, the applicant refused the lawyer’s assistance and stated, in writing, that he would conduct his own defence until the moment the lawyer of his own choosing arrived.

At 10.30 p.m. the investigator drew up a record of the applicant’s arrest as a person suspected of committing a criminal offence (tutma protokolu). He was informed of his rights and questioned from 10.50 p.m. to 11.15 p.m.

On 20 October 2005 two lawyers secured by the applicant’s family arrived. The applicant was subsequently charged and questioned in the presence of his lawyers.

2. Other events around the time of the applicant’s arrest

(a) Arrest of the applicant’s brother Farhad Aliyev and alleged persecution of the applicant’s other relatives

On the same day, one of the applicant’s brothers, Farhad Aliyev, the then Minister of Economic Development, was arrested by the Ministry of National Security on suspicion of organising a coup d’état (see Farhad Aliyev v. Azerbaijan, no. 37138/06, 9 November 2010, for more details concerning that case).

According to the applicant, his other brothers were either dismissed from their jobs or arrested. Alipanah Aliyev, the Head of the Environment Committee of the Baku City Executive Authority, was dismissed from his job. Ashad Aliyev, a CEO of a private company, was prosecuted on charges of tax evasion but was later released after agreeing to pay what was alleged to be due. Sudeef Aliyev, a manager of a small carpet factory, was also accused of tax evasion. Alovsat Aliyev, who intended to stand as a candidate for the forthcoming parliamentary elections, had his candidature revoked by a court decision. According to the applicant, a number of his colleagues were also dismissed from their positions.

(b) Searches

According to the applicant, on the day of his arrest, officials of the Ministry of Taxes carried out an inspection in the offices of Azpetrol in Baku and seized large amounts of cash from the company’s cash register after finding some irregularities in the company’s bookkeeping.

At the same time, officials of the Ministry of National Security (hereinafter “MNS”) carried out searches in the applicant’s apartment as well as two office buildings of Azpetrol. According to the applicant, MNS officials seized a number of personal and household items from the applicant’s apartment, including his children’s computers, phonebooks, two videotapes, and a number of valuable items including expensive watches and jewellery belonging to the applicant and his wife. From the Azpetrol offices, they also seized certain documents and officially registered firearms used by the company’s security personnel. Although several months later, in March 2006, the applicant lodged a petition with the prosecution authorities asking for the return of personal items seized from him, this petition was rejected on 27 March 2006 on the ground that under Article 129.4 of the Code of Criminal Procedure (“the CCrP”) the prosecution could retain physical evidence until the trial.

(c) Press releases by law-enforcement authorities concerning the criminal proceedings against the applicant, his brother Farhad Aliyev, and other persons

On 20 and 21 October 2005 the official newspapers and other mass media published two press releases with the headline “Special Statement of the Prosecutor General’s Office, the Ministry of National Security and the Ministry of Internal Affairs of the Republic of Azerbaijan”. These press releases officially informed the public about the arrest and indictment of a number of well-known current and former State officials and provided a summary of the evidence gathered in respect of their alleged plans for the “forcible capture of power” during the election period, “under the guise of an appeal for democratic changes in the political situation in the country”. The evidence mainly consisted of the testimony of one 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. Additionally, some of the arrested persons were suspected of embezzlement of public funds and abuse of authority. Specifically, the press releases mentioned the names of the applicant’s brother Farhad Aliyev, the former Parliament Speaker Rasul Guliyev, the former Minister of Finance Fikret Yusifov, the Minister for Health Care Ali Insanov, as well as other, less prominent names. It appears that all of the mentioned persons (except Rasul Guliyev, who was not physically present in Azerbaijan) had been arrested prior to the publication of the press releases.

The applicant’s name was also mentioned in the press releases, as quoted below, together with the names of other persons suspected of an attempted coup d’état. However, none of these statements disclosed the fact that, as of the time of publication of these statements, the applicant had actually been arrested on suspicion of, and charged with, an unrelated offence.

The press release of 20 October 2005 stated, inter alia:

“It was established that former Minister of Finance Fikret Yusifov was the contact responsible for obtaining large amounts of funding for the forcible capture of State power... He was arrested as a suspect on 16 October. ... 100,000 euros and 60,000 US dollars were seized from Fikret Yusifov’s flat during a search conducted in the context of the investigation...

On 18 October 2005 Fikret Yusifov wrote to the Prosecutor General... and indicated his willingness to voluntarily provide information about the preparatory actions by Rasul Guliyev and his supporters aimed at usurping State power...

Fikret Yusifov stated in his testimony that, during his visit to St Petersburg in the Russian Federation in July 2005, Rasul Guliyev ... had contacted him on his mobile phone and instructed him to pass on his directions concerning the financing of the process of the capture of State power to the Minister for Economic Development, Farhad Aliyev, and his other supporters who had the necessary financial means.

In this connection, in August of the current year Fikret Yusifov met Farhad Aliyev in the office of the latter’s brother Rafig Aliyev and informed him about Rasul Guliyev’s directions. Farhad Aliyev promised to provide any kind of assistance in this matter and to take additional measures via his contacts. At the end of August Fikret Yusifov went to St Petersburg and notified Rasul Guliyev by phone about Farhad Aliyev’s agreement.

Pursuant to another instruction by Rasul Guliyev, [Fikret Yusifov] returned to Baku on 23 September and again met Farhad Aliyev in the same office ... [Farhad Aliyev] again gave assurances that he would provide any kind of assistance and that he was ready to provide funding in the amount of 3,000,000 US dollars and to organise anything within his capability.

On 3 October 2005 Fikret Yusifov met Rasul Guliyev in Berlin. During the meeting, Rasul Guliyev stated that he was planning to return to Baku in the middle of October and stressed that it was important that he be met by a large group of people, which would prevent his arrest, and that State power be forcibly seized by creating public disorder. Rasul Guliyev also gave a specific instruction that Farhad Aliyev should provide substantial financial assistance for implementing these plans.

Having returned to Baku, Fikret Yusifov met Farhad Aliyev and notified him about this instruction. On 15 October Farhad Aliyev personally gave cash in the amount of 100,000 US dollars to Fikret Yusifov for the purposes of financing the usurpation of State power. This money was found during the search of Fikret Yusifov’s flat on 16 October 2005 and was seized as physical evidence.

During the searches conducted in the course of the investigation in houses, dachas and other properties belonging to Farhad Aliyev, [the authorities] seized large amounts of foreign currency, jewellery, works of art and other valuable items obtained in a criminal manner.

As a result of operational measures, it was also established that Farhad Aliyev, having abused his official authority and committed serious breaches of the law during the process of privatisation of State property, had procured documents of title to State property at negligible prices and formally registered the property in the name of his relatives and acquaintances, and thus de facto transferred it into his ownership.

An investigation into breaches of the law is currently under way in numerous commercial companies linked to Farhad Aliyev, including Azpetrol. Rafig Aliyev, the owner of Azpetrol, was arrested at the airport while attempting to leave the country.

Based on the material gathered, the Prosecutor General instituted criminal proceedings under Articles 179.3 (embezzlement), 308.2 (abuse of official authority), 28/220 (preparation to organise public disorder) and 278 (usurpation or forcible retention of State power) of the Criminal Code and on 19 October 2005 Farhad Aliyev was arrested as a suspect in connection with these criminal proceedings.”

The press release of 21 October 2005 stated, inter alia:

“As has been notified earlier, during the searches conducted in the course of the investigation in houses, dachas and other properties belonging to the former Minister for Economic Development Farhad Aliyev, arrested as a suspect in connection with the criminal proceedings under Articles 179.3, 308.2, 28/220 and 278 of the Criminal Code, [the authorities] have seized large amounts of foreign currency, jewellery, works of art and other valuable items obtained in a criminal manner.

In particular, [the following were seized during the searches:] 50,500 US dollars, 6,000 euros and 860 UK pounds sterling from Farhad Aliyev’s personal office in the administrative building of the Ministry of Economic Development; 30,000 euros and 6,500 US dollars from his flat...; 34 valuable works of art and 500 privatisation vouchers from his dacha; 565,000 US dollars and 5,609,000,000 [old] Azerbaijani manats, which had not been entered in accounting books, from his brother Rafig Aliyev’s office at Azpetrol. In addition, jewellery in large amounts, seven firearms of various models, other valuable items, and documents of title to numerous items of real property have been discovered at the mentioned addresses. The investigation continues into offences of corruption and other breaches of the law within numerous commercial companies belonging de facto to Farhad Aliyev. ...”

3. Formal charges against the applicant, detention order, and joinder of the applicant’s case with Farhad Aliyev’s case

On 20 October 2005 the investigator of the State Border Service opened a criminal case against the applicant (case no. 76587) and formally charged the applicant under Article 206.1 of the Criminal Code with an attempt to transfer a large amount of undeclared foreign currency through customs.

At 6 p.m. on the same day, the applicant was taken to the Sabail District Court. The hearing lasted about ten to fifteen minutes. Based on the official charges brought against the applicant and the prosecutor’s request for applying the preventive measure of remand in custody, the judge ordered the applicant’s remand in custody (həbs qətimkan tədbiri) for a period of two months. The judge substantiated the necessity of this measure by the gravity of the alleged criminal action of the applicant and by the possibility of his absconding. This was the only court hearing at which the applicant was present himself. He was represented by his lawyers in the subsequent court hearings, but was not permitted to attend them in person.

It appears that, following the Sabail District Court’s detention order, the applicant was taken to Detention Facility No. 1.

The applicant appealed against the Sabail District Court’s order of 20 October 2005, complaining about a lack of evidence and the absence of any relevant and sufficient reasons for his pre-trial detention. On 27 October 2007 the Court of Appeal dismissed his appeal, repeating the lower court’s reasoning and finding that it was correct. The Court of Appeal’s decision did not address any of the applicant’s specific complaints.

On 22 October 2005 the applicant was transferred to the MNS Detention Facility. His lawyer was not informed about this. He made enquiries with the Deputy Head of the Department of Investigation of Serious Crimes at the Prosecutor General’s Office, requesting information as to the applicant’s whereabouts.

On 10 November 2005 the lawyer was officially informed that on 22 October 2005 the applicant’s criminal case no. 76587 had been transferred to the Prosecutor General’s Office and joined with Farhad Aliyev’s criminal case no. 76586. The applicant’s lawyer requested a copy of the decision on the joinder of the criminal cases. On 25 November this request was rejected on the ground that the CCrP did not require such decisions to be made available to the applicant’s lawyer.

On 2 December 2005 the applicant lodged a complaint with the Prosecutor General, claiming that there were no legal grounds for joining the applicant’s case to Farhad Aliyev’s case because they had each been charged with totally unrelated offences. On 8 December 2005 the Prosecutor General rejected this complaint.

4. Extensions of the pre-trial detention period

On 25 November 2005 the applicant applied to the Sabail District Court with a request to substitute house arrest for the preventive measure of remand in custody. He argued that, owing to the questionable nature of the evidence, there could be no reasonable suspicion that he had committed a criminal offence, and that in any event the detention order was not justified in his personal circumstances. On 6 December 2005 the Sabail District Court rejected this request, finding that there were “no circumstances excluding the possibility of the applicant’s absconding, creating danger for society, and failing to appear before the investigating authorities without good reason”.

On 13 December 2005 the Nasimi District Court (which supervised criminal case no. 76586, to which the applicant’s original case was now joined) extended the period of the applicant’s remand in custody by two months (until 19 February 2006). The judge substantiated the necessity of this measure as follows:

“... It is not possible to complete all the [required] investigative steps before [the expiry of the applicant’s initially authorised detention period].

Taking into account the gravity of the actions imputed to [the applicant], the circumstances in which the criminal offence was committed, and the possibility of the accused absconding from the authority conducting the criminal proceedings, the preventive measure of remand in custody chosen in his case should be extended.”

On 20 December 2005 the Court of Appeal upheld this decision.

By a decision of 10 February 2006, the Nasimi District Court extended the period of the applicant’s detention by another two months (until 19 April 2006). On 16 February 2006 the Court of Appeal upheld this decision.

On 13 April 2006 the Nasimi District Court extended the period of the applicant’s detention by another three months (until 19 July 2006). On 21 April 2006 the Court of Appeal upheld this decision.

Prior to each of the extension orders, the applicant lodged a series of applications with the Prosecutor General’s Office, asking the prosecuting authorities not to lodge an extension request with the court, owing to the applicant’s personal circumstances, which made it unlikely that he would flee from investigation. All of these applications were rejected.

In all of the hearings concerning the extension of his detention and the related appeal hearings, the applicant was represented by his lawyer (or lawyers). The applicant himself was absent.

In all of its decisions extending the applicant’s detention, the Nasimi District Court’s reasoning justifying his continued detention was the same as or similar to that cited in paragraph 33 above. In his appeals against those decisions, the applicant complained that there was no reliable evidence giving rise to a reasonable suspicion that he had committed a criminal offence, that in any event the investigation for the rather simple charge against him was proving unreasonably long and he should already have been committed for trial, that the extension orders were based only on the submissions of the prosecuting authority and without an independent review by the court of the evidentiary material, that there were no reasons to believe that he would abscond or influence the investigation, and that his personal circumstances had not been taken into account when assessing the necessity of his continued detention. The Court of Appeal’s decisions upholding the extension of the applicant’s detention repeated the lower court’s reasoning and did not contain any assessment of the specific arguments raised by the applicant in his appeals.

5. Attachment of the applicant’s assets

On an unspecified date in June 2006 the Prosecutor General’s Office requested the Nasimi District Court to impose a measure of restraint on some of the applicant’s assets, based on the prosecution’s discovery of evidence that in June and September 2005 the applicant, as the head of some of the companies belonging to him and with the help of a number of accomplices forming an organised criminal group, had smuggled large quantities of petroleum products belonging to the State out of the country across the Azerbaijani-Georgian border, evading customs control by means of forging documentation and misrepresenting the true nature of the transaction. The prosecution also claimed that they had discovered evidence of tax evasion committed by Prestige LLC, a company “actually controlled” by the applicant, as well as of embezzlement of others’ property in large amounts. By the time of this request by the Prosecutor General’s Office, no formal charges had been brought against the applicant in connection with any of the above incidents involving the alleged criminal offences of petroleum smuggling, tax evasion or embezzlement.

Following the above-mentioned injunction request by the Prosecutor General’s Office, on 8 June 2006 the Nasimi District Court issued a restraint order (attachment order) in respect of 381,310 shares owned personally by the applicant in the registered capital of the Bank of Baku JSC (11.215% of the registered capital), as well as another 336,430 shares in the same bank (9.895% of the registered capital) owned by Azinvest LLC, a company “de facto owned by the applicant”. The court noted that the illegal activities described in the prosecution’s request for attachment of property constituted criminal offences for which the relevant provisions of the Criminal Code prescribed inter alia a sanction of confiscation of property. The court further noted that the prosecution possessed information that the applicant had acquired the shares in the Bank of Baku using the funds obtained from these illegal activities. Therefore, there was a basis for attaching the applicant’s assets under Articles 248, 249 and 250 of the CCrP in order to guarantee the sanction of confiscation of property that might subsequently be imposed by the trial court.

The applicant subsequently lodged a belated appeal against this decision, which was accepted for examination owing to the finding that the applicant had good reasons for having missed the appeal deadline. However, on 10 October 2006 the Court of Appeal dismissed the applicant’s appeal and upheld the Nasimi District Court’s decision of 8 June 2006.

6. New charges against the applicant and further extension of the pre-trial detention

On 5 July 2006 the investigator issued a new decision bringing formal criminal charges against the applicant. Under this decision, the applicant was now charged with criminal offences under Articles 206.3.1 (contraband, committed repeatedly), 206.4 (contraband, committed by an organised group) and 313 (forgery in public office) of the Criminal Code. Specifically, these charges related to the alleged smuggling of large quantities of petroleum to Georgia in June and September 2005, as described in paragraph 40 above, and to the original accusation of smuggling the undeclared amount of USD 30,000 through customs on 19 October 2005.

Later, on an unspecified date, the investigator lodged a request with the Nasimi District Court for the extension of the period of the applicant’s pre-trial detention. In addition to the new formal charges of 5 July 2006, the request also mentioned that the investigation had evidence of the applicant’s complicity in the attempted coup d’état, an offence with which his brother Farhad Aliyev and other persons had been charged.

On 14 July 2006, based on the new criminal charges against the applicant and the investigator’s extension request, the Nasimi District Court extended the period of the applicant’s detention by another three months (until 19 October 2006). The court’s reasoning justifying the applicant’s continued detention was similar to that given in previous extension orders.

On 28 September 2006 the investigator issued a new decision bringing formal criminal charges against the applicant. Under this decision, the applicant was now charged with criminal offences under Articles 206.4, 206.3.1, 28/220.1 (preparation to organise public disorder), 278 (actions aimed at usurping State power) and 313 of the Criminal Code. In addition to the criminal offences with which he had already been charged, the applicant was also accused of organising, together with a number of other persons including his brother Farhad Aliyev, massive unrest and a coup d’état after the parliamentary elections of 6 November 2005. More specifically, he had allegedly undertaken to provide necessary funding for preparation of the coup d’état and arranged secret meetings between its organisers in his office.

On 2 October 2006 the Nasimi District Court extended the period of the applicant’s detention by another six months (until 19 April 2007). On 10 October 2006 the Court of Appeal upheld that decision.

On 1 March 2007 the investigator issued a new decision bringing formal criminal charges against the applicant. By this decision, the applicant was now charged with criminal offences under Articles 179.3.1 (embezzlement by an organised group), 179.3.2 (embezzlement in large amounts), 188 (violation of the right of ownership to land), 192.2.1 (illegal commercial activity resulting in grave pecuniary damage), 192.2.2 (illegal commercial activity yielding a large amount of profit), 206.3.1, 206.4, 213.4 (tax evasion in large amounts), 28/220.1, 278, 259 (illegal damage to forests) and 313 of the Criminal Code.

On 5 March 2007 a new criminal case (no. 76961) was severed from criminal case no. 76586. In the context of the new criminal case no. 76961, the applicant was charged under Articles 179.3.1, 179.3.2, 188, 192.2.1, 192.2.2, 206.3.1, 206.4, 213.4, 259 and 313 of the Criminal Code.

The investigation in criminal case no. 76961 was completed on 5 March 2007.

On 16 April 2007 the investigator issued the final bill of indictment in criminal case no. 76961. On the same day, the bill of indictment was signed by the Prosecutor General and the case was referred to the Assize Court for trial.

Thus, criminal case no. 76961 was sent for trial in the Assize Court. There were nineteen co-defendants standing trial in this case, including the applicant and his brother Farhad Aliyev, on charges of complicity in various offences involving embezzlement and corruption. It appears that the original criminal case no. 76586, which still carried the charges against the applicant under Articles 28/220.1 (preparation to organise public disorder) and 278 (actions aimed at usurping State power) of the Criminal Code, was not sent for trial, but was not terminated either.

On 15 May 2007 the applicant’s lawyers applied to the Assize Court, seeking his release on the ground that the latest detention order in respect of him, as well as the statutory maximum period for detention during the pre-trial investigation, had expired on 19 April 2007. It appears that at least six other co-defendants also requested release pending trial, relying on various grounds.

At its preliminary hearing on 21 May 2007 the Assize Court rejected the requests by the applicant and his co-defendants for release and authorised their continued detention pending trial. In particular, in connection with the applicant’s specific argument that his detention was unlawful following the expiry of the relevant period on 19 April 2007, the Assize Court noted that the criminal case had been referred to the court a few days before 19 April 2007, and that the period of the applicant’s detention “pending investigation” had ended on that day. Therefore, his detention had not exceeded the time-limits specified by law.

Furthermore, assessing the situation of all the detained co-defendants collectively, the Assize Court decided that “the preventive measure of remand in custody had been chosen correctly and should remain unchanged”. The court noted that “the accused persons detained on remand” had sufficient financial means, as well as business and other contacts in foreign countries, which could enable them to leave the territory of Azerbaijan and thus abscond from the trial. It further noted that, using those significant financial means, the detained persons could apply illegal pressure on persons participating in the trial.

7. The applicant’s conviction and appeals against it

The applicant was tried by the Assize Court together with eighteen other accused persons, including his brother Farhad Aliyev.

On 25 October 2007 the Assize Court convicted the applicant of all the criminal offences he was charged with under criminal case no. 76961 and sentenced him to nine years’ imprisonment, with confiscation of property.

On 16 July 2008 the Baku Court of Appeal upheld the Assize Court’s judgment. On 6 July 2009 the Supreme Court upheld the lower courts’ judgments in respect of the applicant.

B. Conditions of detention

1. The applicant’s version

Starting from 22 October 2005 and throughout the pre-trial and trial proceedings until his conviction on 25 October 2007, the applicant was detained in the MNS Detention Facility. The applicant was kept in a cell which had sufficient space for only one person, although it might have been designated as a double-occupancy cell. He was detained alone for a period of approximately one year before the authorities offered to place a second inmate in his cell; the applicant refused this offer. The cell was dirty and measured about 8 sq. m. Approximately 4.2 sq. m of the total floor area was occupied by the furniture. The window was 0.7 m high and 1.1 m wide. However, because of the width of the window frames (5 cm), the window pane measured 0.5 m by 1 m. The window was covered, with only its top part open, allowing very little natural light to enter the cell. The ventilation and heating systems did not function properly and, therefore, it was extremely cold in winter and extremely hot in summer. There was a wall lamp which was switched on throughout the day and night, which constantly disturbed the applicant and made it hard for him to sleep.

The applicant was allowed one hour of out-of-cell exercise per day. The exercise area was extremely confined. The gym facilities in the MNS Detention Facility were not freely available during the applicant’s exercise time, as their use was dependent on a warder being available to supervise the applicant.

There was no proper laundry and the applicant had to send his dirty clothes home for washing. He was allowed to take a shower once a week in a shower area where the temperature of the water was regulated from the outside by warders. The food was of poor quality. The applicant had no television set in his cell and had limited access to radio and literature and was provided only with “pro-Government” newspapers.

The applicant was handcuffed when he was taken to meet with his lawyers and to interrogations. The handcuffs were removed during those meetings and interrogations. The applicant was not allowed to make telephone calls or write to his wife and family, who were not permitted to write to him or visit him either. The applicant’s requests to be allowed to correspond or be visited by his family during the pre-trial investigation were rejected.

2. The Government’s version

In the MNS Detention Facility, at his own request, the applicant was detained alone in a cell designed for two inmates. The area of the cell was about 10 sq. m. The cell had a window that was 1.4 m wide and 1.2 m high. The cell was connected to the MNS building’s central heating system and was well lit and ventilated. While the electric lighting was switched on throughout the day and night in accordance with the relevant regulations, the lamp was mounted in a manner that did not disturb inmates’ sleep.

The applicant was permitted to walk outside his cell for two hours a day and to use a gym. Food was served three times a day. In addition, like all other detainees, the applicant was allowed to receive from home a food package of up to 5 kg per week. The applicant was provided with clean towels and bedding, which were washed in the detention facility’s laundry. Once a week he received clean clothing from his family, so he was always dressed according to the season. The applicant was never handcuffed during questioning or any other investigative steps.

II. RELEVANT DOMESTIC LAW

A. Pre-trial detention

The relevant provisions of the Code of Criminal Procedure (CCrP) concerning police custody, detention on remand and proceedings concerning application and review of detention on remand are summarised in the Farhad Aliyev case (cited above, §§ 83-102).

B. Attachment of property in criminal proceedings

According to Articles 248 and 249 of the CCrP, in order to ensure execution of a judgment in a part pertaining to a civil claim or an eventual confiscation of property in circumstances provided for under criminal law, an investigator or prosecutor can apply to a court for attachment of property of the alleged perpetrator of a criminal offence. Attachment of property prohibits the proprietor or owner from disposing of and, if necessary, using the property. In particular, Article 248 provides as follows:

Article 248. Nature of attachment of property

“248.1. Attachment of property:

248.1.1. shall be carried out with the aim of securing a civil claim or the confiscation of property in circumstances provided for under criminal law;

248.1.2. shall consist of making an inventory of the property and prohibiting the owner or possessor from disposing of this property and, where necessary, making use of the same;

248.1.3. where applied to bank deposits, shall prevent any further transactions on them.

248.2. Property of the accused person or property of persons who may be held materially liable, irrespective of what comprises this property or in whose possession it is, may be subject to attachment.

248.3. Attachment shall apply to the accused person’s share in the joint property of the accused and his or her spouse or in the property owned by the accused persons jointly with other persons. If there is sufficient evidence that the property [was an instrument of a criminal offence or constitutes proceeds of crime], the whole property or the greater part thereof shall be attached.

[If the instrument or proceeds of crime has been used, disposed of or is unavailable for confiscation for other reasons], money or other property belonging to the accused person, which is equivalent in value [to the instrument or proceeds of crime], shall be subject to attachment. ...”

Article 249 (grounds for attachment of property) of the CCrP provides that property may be attached if this measure is justified by sufficient evidentiary material and, as a general rule, on the basis of a court order. The investigator may take a decision to attach property without a court order only in exceptional circumstances. Article 250 of the CCrP contains rules for valuation of the attached property.

68. The following are the relevant extracts from The Commentary on the Code of Criminal Procedure of the Republic of Azerbaijan, Volume I (scientific editor: Prof. J. Movsumov, Baku 2003, p. 166) concerning Article 248 of the CCrP:

“6. Attachment of property with a view to guaranteeing confiscation of property can be ordered only in cases where the Criminal Code provides for a possibility of confiscation of property as an additional sanction for the criminal offence with which the accused person is charged ...

7. The factual basis for the attachment of property is ... the existence of a substantiated belief that the property could be hidden, disposed of or destroyed. ...

8. According to the annotated Article 248.2 of the CCrP, attachment can be ordered in respect of property of the following persons: (a) accused persons; (b) persons who could be held materially liable. The latter refers to persons who could be liable with their property for the actions of the accused person. This category of persons includes: (a) the accused person’s employer (Article 1099 of the Civil Code); (b) financial departments of the relevant authorities liable for actions of their officials (Articles 1100 and 1102 of the Civil Code); (c) legal representatives of minors between fourteen to eighteen years of age or of legally incapacitated persons (Articles 1104 and 1105 of the Civil Code); (d) the owner of a source of special danger (Article 1108 of the Civil Code). The above-mentioned persons are designated as civil defendants in the civil claim [lodged in the criminal proceedings].”

According to Article 91.1 of the CCrP, an accused person is an individual charged with a criminal offence by a decision taken by an investigator, prosecutor or court.

THE LAW

I. SCOPE OF THE CASE

69. The original application was limited to the facts relating to the period prior to the applicant’s criminal trial and resulting conviction and the case was communicated to the respondent Government on 4 April 2007 under Articles 3, 5, 6 § 2, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention. The Court notes that, after communication, the applicant made a number of new submissions concerning “further new and continuing violations” stemming from the events that occurred during the subsequent criminal trial and the appeals against his criminal conviction. On page 6 of the applicant’s observations he noted that complaints concerning these “new and continuing violations” would be the subject of a new application which he intended to lodge with the Court. As it has decided in previous cases, the Court does not find it appropriate to examine any new matters raised after the communication of the application to the Government, as long as they do not constitute a mere elaboration upon the applicant’s original complaints to the Court (see Nuray Şen v. Turkey (no. 2), no. 25354/94, § 200, 30 March 2004; Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005; Kovach v. Ukraine, no. 39424/02, § 38, ECHR 2008-...; Kats and Others v. Ukraine, no. 29971/04, § 88, ECHR 2008-...; Yusupova and Others v. Russia, no. 5428/05, § 51, 9 July 2009; Saghinadze and Others v. Georgia, no. 18768/05, § 72, 27 May 2010; and RuZa v. Latvia (dec.), no. 44798/05, § 30, 11 May 2010).

70. Given that no complaints in connection with those subsequent events were raised before the communication of the present application and the decision to examine its merits at the same time as its admissibility, the scope of the present case is limited to the facts as they stood at the time of the communication, which concerned the events that took place during the period of the applicant’s pre-trial detention and up to his conviction. However, the applicant has the opportunity to lodge new applications in respect of any other complaints relating to the subsequent events (see Dimitriu and Dumitrache v. Romania, no. 35823/03, §§ 23-24, 20 January 2009).

II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

A. Article 5 § 1 of the Convention

Relying on Article 5 §§ 1 and 3 and Articles 6 and 13 of the Convention, the applicant complained that his arrest and detention had not been based on reasonable grounds for suspicion that he had committed a criminal offence. He argued that the cash in question had been “planted” in his bag at the airport and that there were numerous shortcomings in the procedure of obtaining and documenting the initial incriminating evidence against him.

The Court considers that these complaints fall to be examined under Article 5 § 1 of the Convention, which reads as follows, in the relevant part:

“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 ...”

The Government contested the applicant’s arguments and maintained that the applicant had been caught in the act of committing an offence of smuggling and that, therefore, his detention was based on a reasonable suspicion that he committed a criminal offence.

The applicant argued that the USD 30,000 found in his bag had not belonged to him and had been placed there during the time that the bag had been with the airport employees. He claimed that, despite his persistent requests, no video tapes from the X-ray security monitor, which had allegedly been the initial source of suspicion, had been produced. He further argued that the paperwork documenting the search was flawed. According to the applicant, the grounds for his arrest had been fabricated and premeditated, as confirmed inter alia by the fact that some of the officials that participated in his arrest had been at work earlier than their normal working hours. The applicant concluded that the domestic authorities had failed to demonstrate that there had been any lawfully obtained evidence against him that was sufficient to found 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).

In the present case, the applicant was suspected of having attempted to carry a large amount of cash in foreign currency through customs without the requisite declaration. It is not disputed that this action was classified as a criminal offence under the domestic law.

The suspicion was based on a finding of cash in an amount of USD 30,000 in the applicant’s carry-on bag. The Court considers that, within the meaning of the previously cited case-law, the fact that the cash was found in the applicant bag and was undeclared, in itself, objectively linked the applicant to the alleged criminal offence and was sufficient to have created a “reasonable suspicion” against him.

In so far as the applicant argued that the manner in which this evidence had been allegedly “discovered” and documented had been subject to serious flaws giving rise to a strong indication that the evidence might have been “planted”, the Court considers that these arguments relate to the lawfulness of the manner in which the evidence was obtained and its admissibility and reliability, which issues fall to be examined under Article 6 of the Convention in the context of fairness of criminal proceedings (see paragraph 138 below for Article 6 issues).

It follows that, from the standpoint of Article 5 § 1 of the Convention, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

In addition, the Court observes that in the Farhad Aliyev case, it found a violation of Article 5 § 1 of the Convention in respect of the fact that the applicant’s brother (who was the applicant in that case) was detained without a lawful basis during the period from 19 April to 21 May 2007, as there was no valid court order authorising his detention during that period (see Farhad Aliyev, cited above, §§ 172-79). In the present case, it appears from the material in the case file that the applicant was in the same situation during the same period. However, having examined the applicant’s submissions, the Court notes that he has not raised any complaints in this respect in his application before the Court. Accordingly, there is no call to examine this particular issue in the present case.

B. Article 5 § 3 of the Convention

The applicant complained under Article 5 §§ 1 and 3 and Articles 6 and 13 of the Convention that his pre-trial detention had been unreasonably long and that no relevant and sufficient reasons had been offered to justify its continuation. 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.”

1. Admissibility

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.

2. Merits

(a) The parties’ submissions

The Government argued that the applicant’s detention was justified by the reasonable suspicion that he had committed a criminal offence and that, in deciding on the prosecuting authorities’ requests concerning his detention, the courts had had regard to the reasons given by them to justify those requests and had assessed both parties’ arguments.

The applicant reiterated his complaint and argued that it was arbitrary and irrational to continue detaining him rather than order his release pending trial, if necessary conditioned by guarantees to appear for trial. He contended that there had been no risk that he would abscond or seek to interfere with the criminal proceedings and that, even if there had been such a risk, non-custodial preventive measures should have been considered.

(b) The Court’s assessment

According to the Court’s settled 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 either bringing an accused to trial within a reasonable time or 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-...).

Continued detention can therefore 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, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., 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 v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV; and McKay, cited above, § 43).

The persistence of 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).

As for the total period to be taken into consideration for the purposes of Article 5 § 3, such period 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 19 October 2005, when the applicant was arrested, and ended on 25 October 2007, when the Assize Court delivered its judgment convicting him. Thus, the applicant’s pre-trial detention lasted two years and six days in total.

Even if the existence of a reasonable suspicion that the applicant had committed a criminal offence might have initially sufficed to warrant his detention, with the passage of time that ground inevitably became less and less relevant (see paragraph 88 above), and his continued detention had to be justified by other relevant reasons, taking into account his personal situation.

During the pre-trial investigation stage of the proceedings, the applicant’s detention was extended by the Nasimi District Court five times, by its decisions of 13 December 2005, 10 February 2006, 13 April 2006, 14 July 2006 and 2 October 2006. All of these decisions were upheld by the Court of Appeal following appeals by the applicant in which he argued in favour of his release. Lastly, at the trial stage of the proceedings, the applicant’s detention was extended by the Assize Court’s decision of 21 May 2007 (which, by virtue of Article 173.2 of the CCrP, could not be appealed against).

As to the first-instance and appellate courts’ decisions extending the applicant’s detention during the pre-trial investigation, his continued detention was justified each time on the grounds of either the gravity of the charges or the likelihood of his absconding and exerting pressure on persons participating in the proceedings, or both. 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 stereotyped formula paraphrasing the terms of the CCrP (compare Giorgi Nikolaishvili v. Georgia, no. 37048/04, §§ 23-24, 28, 76 and 79, 13 January 2009, and Farhad Aliyev, cited above, § 191). They failed to mention any case-specific facts relevant to those grounds or to substantiate them with relevant and sufficient reasons. The Court also notes that the courts extending the applicant’s detention repeatedly used the same stereotyped formula and their reasoning did not evolve with the passing of time to reflect the developing situation or to verify whether these grounds remained valid at the later stages of the proceedings.

The Court does not deny 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).

As to the Assize Court’s decision of 21 May 2007, the Court notes that it mentioned certain factors in assessing the risk that the defendants might abscond and exert pressure on witnesses (such as the defendants’ wealth and their contacts abroad). However, the Assize Court’s analysis concerned several defendants collectively, without a case-by-case assessment of the grounds justifying the continued detention of each individual detainee, including the applicant. Such practice of issuing “collective” extension orders is, in itself, incompatible with the guarantees enshrined in Article 5 § 3 of the Convention, as it fails to take into account the personal circumstances of each detained person (see Khudoyorov v. Russia, no. 6847/02, § 186, ECHR 2005 X (extracts), and Farhad Aliyev, cited above, § 193).

In view of the foregoing considerations, the Court concludes that, by using a stereotyped formula merely listing the grounds for detention without addressing the specific facts of the applicant’s case, the authorities failed to give “relevant” and “sufficient” reasons to justify extending the applicant’s pre-trial detention to two years and six days.

There has accordingly been a violation of Article 5 § 3 of the Convention.

C. Article 5 § 4 of the Convention

Relying on Articles 5, 6 and 13 of the Convention, the applicant complained that the judicial proceedings concerning his detention had not been adversarial in nature and had been unfair. In particular, he noted that the courts had examined the question of his continued detention in his absence, that there had been no public hearings, that he had not been given access to the material that the prosecuting authorities had submitted to the courts to justify their requests for his continued detention, that the courts had not addressed his specific arguments in favour of his release, and that, generally, he had been denied equality of arms.

In so far as the present complaint concerns only the proceedings concerning the applicant’s pre-trial detention and not the criminal proceedings as a whole, it does not fall within the ambit of Article 6 (see, for example, Guliyev v. Azerbaijan (dec.), no. 35584/02, 27 May 2004), and the Court considers that it falls to be examined under Article 5 § 4 of the Convention, which reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

1. Admissibility

The Court notes that, among other arguments raised in connection with this complaint, the applicant complained that the hearings in the proceedings concerning his pre-trial detention had not been public. In this connection, the Court has previously held that Article 5 § 4, although requiring a hearing for the review of the lawfulness of pre-trial detention (see paragraph 104 below), does not as a general rule require such a hearing to be open to the public (see Reinprecht v. Austria, no. 67175/01, §§ 34-41, ECHR 2005-XII, and Farhad Aliyev, cited above, § 198). The Court does not find any special circumstances in the present case that could have required a public hearing in the proceedings concerning the review of the lawfulness of the applicant’s detention. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

As to the remainder of the complaint, the Court notes that it 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.

2. Merits

(a) The parties’ submissions

The Government submitted that the applicant had had at his disposal an effective procedure by which he could challenge the lawfulness of his detention. In the Government’s view, this procedure was provided for by the provisions of the CCrP concerning an accused person’s right to lodge complaints with the domestic courts against any procedural steps or decisions taken by the prosecuting authorities.

The applicant reiterated his complaint, arguing that equality of arms and the requirements of fairness had not been ensured in the proceedings in which he had challenged the lawfulness of his detention.

(b) The Court’s assessment

Having regard to the specific circumstances complained of, the Court notes that the scope of the present complaint is limited to facts relating to the proceedings for the review of the lawfulness of the applicant’s detention during the pre-trial investigation.

The Court reiterates that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, within the meaning of Article 5 § 1, of his or her deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest, and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Brogan and Others, cited above, § 65). Although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. The proceedings must be adversarial and must always ensure equality of arms between the parties. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Assenov and Others v. Bulgaria, 28 October 1998, § 162, Reports 1998-VIII). The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B). Moreover, equality of arms is not ensured where a detainee or his or her counsel is denied access to those documents in the investigation file which are essential in order to challenge effectively the lawfulness of the detention (see Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151).

Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of applications for release from detention. Nevertheless, where domestic law provides for a system of appeal, the appellate body must also comply with Article 5 § 4 (see Toth v. Austria, 12 December 1991, § 84, Series A no. 224). As for court decisions ordering or extending detention, Article 5 § 4 guarantees no right, as such, to an appeal against those decisions, but the intervention of a judicial body at least at one level of jurisdiction must comply with the guarantees of Article 5 § 4 (see, mutatis mutandis, Ječius v. Lithuania, no. 34578/97, § 100, ECHR 2000 IX).

Turning to the facts of the present case, the Court notes that the applicant’s detention was ordered when he was brought before the judge of the Nasimi District Court on 20 October 2005. The domestic law gave him a right of appeal against that decision. The requirements of Article 5 § 4 of the Convention can be said to apply to these appeal proceedings, which resulted in the Court of Appeal’s decision of 27 October 2005 and in which the applicant was represented by his lawyer.

Subsequently, the applicant’s detention “pending investigation” was extended five times by the Nasimi District Court, on 13 December 2005, 10 February 2006, 13 April 2006, 14 July 2006 and 2 October 2006. As the applicant appealed against all of these extension orders challenging the lawfulness of his continued detention, all of these proceedings at the Court of Appeal also attracted the guarantees of Article 5 § 4 of the Convention. The Court notes that the applicant was represented by his lawyers during the examination of these appeals, but was absent himself.

While by virtue of the above proceedings the applicant’s detention “pending investigation” was extended for significant periods of time, he was unable to attend personally any of those court sessions, which took place months after the original detention order. The Court considers that, given what was at stake for the applicant – that is, his liberty – as well as the lapse of time between the original hearing and the subsequent extension orders, the courts could have taken steps to ensure that the applicant was heard in person and was afforded an opportunity to convey to the courts his personal situation and arguments for his release (compare, mutatis mutandis, GrauZinis v. Lithuania, no. 37975/97, §§ 33-34, 10 October 2000; Mamedova v. Russia, no. 7064/05, § 91, 1 June 2006; and Farhad Aliyev, cited above, § 207). While this was not done, efforts should have been made to ensure that the applicant’s position was conveyed through effective representation by counsel. However, the Court is not convinced that this took place in the present case either. Although the applicant’s lawyers attended the court sessions held in connection with the examination of his appeals, the Court notes, having regard to the material in its possession, that those court sessions were held as a matter of formality and did not take the form of genuinely adversarial hearings. It is true that the applicant’s lawyers could make their submissions in writing by lodging their complaints on appeal, but this fact does not, in itself, mean that equality of arms was ensured. The Court notes that the prosecuting authority’s submissions in support of the applicant’s detention were not made available either to the applicant or his lawyers, depriving them of the opportunity to comment on those submissions, either in writing or orally, in order to effectively contest the reasons invoked by the prosecuting authority to justify his detention.

In any event, the courts did not address any of the specific arguments advanced by the applicant in his written submissions challenging his continued detention (see paragraph 39 above), although those arguments did not appear to be irrelevant or frivolous. The Court reiterates that, while Article 5 § 4 of the Convention does not impose an obligation to address every argument contained in the detainee’s submissions, the judge examining appeals against pre-trial detention must take into account concrete facts which are referred to by the detainee and are capable of casting doubt on the existence of those conditions essential for the “lawfulness”, for Convention purposes, of the deprivation of liberty (see Nikolova v. Bulgaria [GC], no. 31195/96, § 61, ECHR 1999-II). By not taking into account the applicant’s specific arguments against his continued detention, the domestic courts failed to carry out a judicial review of the scope and nature required by Article 5 § 4 of the Convention.

There has accordingly been a violation of Article 5 § 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

The applicant complained about the seizure, during the searches of his apartment and offices, of a number of personal items belonging to him and various members of his family, including a number of valuable items and jewellery belonging to him and his wife, two notebook computers, some personal documents, phonebooks and two videotapes. He argued that those items had been irrelevant for the criminal proceedings in question and did not constitute physical evidence.

He also complained about the authorities’ decision to attach his assets (in particular, shares in the Bank of Baku) in the absence of a decision formally charging him with the relevant criminal offences.

Article 1 of Protocol No. 1 to the Convention reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

In so far as the applicant complained about the allegedly unjustified seizure as physical evidence of a number of personal items belonging to him and his family members, the Court notes that, as can be seen from the case file, the applicant has not challenged before the supervising domestic courts the prosecution authorities’ procedural actions in connection with the searches conducted in his apartment and office or the seizure of those items. It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

As to the remainder of the complaint, the Court considers it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

The Government submitted that the applicant’s shares in the Bank of Baku had not been confiscated pursuant to the court order of 8 June 2006, but attached with the aim of guaranteeing a possible confiscation of property in circumstances provided for by the criminal law. Accordingly, that decision in itself, in the absence of a final court verdict in the criminal case, did not deprive the applicant of his property. The Government argued that this measure was lawful and that the applicable provisions of domestic law (in particular, Article 248 of the CCrP) were sufficiently accessible, precise and foreseeable in their application. They further maintained that the freezing of the applicant’s assets constituted a restriction made in the public interest, with a view to ensuring the proper administration of justice.

The applicant submitted that the measure complained of had been unlawful, arbitrary, unjustified and failed to satisfy the requirements of legal certainty. In particular, he stressed that while the assets had been attached in connection with alleged criminal offences for which the Criminal Code envisaged confiscation of property as a penalty, he had not actually been charged with any of those offences at the time the attachment order had been made. Accordingly, in the applicant’s submission, in the absence of the relevant criminal charges, the attachment order was unlawful.

2. The Court’s assessment

The Court observes that on 8 June 2006 the Nasimi District Court ordered the attachment of a number of shares in the Bank of Baku owned by the applicant, on the ground that the prosecution possessed evidence that the applicant had committed the criminal offences of smuggling petroleum products, tax evasion and embezzlement, and that he had used the proceeds of these offences to acquire shares in the Bank of Baku. Noting that commission of such criminal offences could entail a sanction of confiscation of property under the Criminal Code, the court ordered the attachment of the applicant’s shares, relying on Articles 248-250 of the CCrP as the basis for such decision. At the time of this attachment order, the applicant was not charged with either of the criminal offences mentioned in the order. Up to that point, he had only been charged in connection with an unrelated offence of attempting to transfer undeclared currency through customs at the airport. After the attachment order of 8 June 2006, he was later formally charged with the offence of smuggling petroleum products on 5 July 2006 (Articles 206.3.1 and 206.4 of the Criminal Code) and with the offences of embezzlement and tax evasion on 1 March 2007 (Articles 179.3.1, 179.3.2 and 213.4 of the Criminal Code).

It is common ground between the parties that the applicant was the owner of the attached shares; in other words, these assets constituted his “possessions”. Nor is it disputed that the attachment order amounted to an interference with the applicant’s right to peaceful enjoyment of his possessions or that Article 1 of Protocol No. 1 is therefore applicable.

The Court notes that the attachment of the applicant’s shares in the Bank of Baku, in itself, did not deprive him of his possessions, but provisionally prevented him from using them and from disposing of them, with a view to securing a possible penalty of confiscation imposed at the outcome of the criminal proceedings. The Court reiterates that the seizure of property for legal proceedings normally relates to the control of the use of property, which falls within the ambit of the second paragraph of Article 1 of Protocol No. 1 to the Convention (see, among other authorities, Raimondo v. Italy, 22 February 1994, § 27, Series A no. 281 A, and Borzhonov v. Russia, no. 18274/04, § 57, 22 January 2009).

The Court further emphasises that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be “lawful”: the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. The issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights only becomes relevant once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary (see, among other authorities, Baklanov v. Russia, no. 68443/01, § 39, 9 June 2005, and Frizen v. Russia, no. 58254/00, § 33, 24 March 2005).

When speaking of “law”, Article 1 of Protocol No. 1 alludes to the same concept that is to be found elsewhere in the Convention (see Špaček, s.r.o. v. the Czech Republic, no. 26449/95, § 54, 9 November 1999, and Baklanov, cited above, § 40). This concept requires firstly that the impugned measures should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned, precise, and foreseeable (see Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000-I).

The applicant’s primary argument in connection with the present complaint is that the attachment order was unlawful because, at the material time, he had not been formally charged with any of the criminal offences which served as a ground for the attachment. The Court notes that, in the context of the present case, it is not called upon to decide in general whether attachment of a person’s property for criminal proceedings prior to that person being formally charged with a criminal offence could, in itself, be considered compatible with Article 1 of Protocol No. 1 of the Convention. What is necessary to determine is whether, in this specific case, such interference was permitted, and thus “lawful” under the Azerbaijani law in force at the material time.

The Court observes that the provisions of Article 248 et seq. of the CCrP dealing with the attachment of property provided that attachment could be ordered only in respect of property of the “accused person” or “other persons who could be held materially liable” for the criminal actions of the accused (see paragraph 66 above for the text of Article 248 of the CCrP and paragraph 68 above for the commentary on that Article). An “accused person” was defined by the CCrP as a person charged with a criminal offence (Article 91.1 of the CCrP). Article 248 of the CCrP contained no reference to property of other categories of persons such as, for example, “suspected persons” who had not yet been formally charged with a criminal offence.

As mentioned above, in relation to the criminal offences described in the attachment order, the applicant was not an “accused person” at the material time, as he had not been formally charged with any of those criminal offences. Moreover, he did not appear to be a “person who could be held materially liable” for the criminal actions of another accused person, since he himself was regarded as the prime suspect and since at the material time there were no other persons charged in connection with those specific criminal actions.

In such circumstances, the Court notes that, based on the literal meaning of Article 248 et seq. of the CCrP, it appears that at the time of issuance of the attachment order the applicant did not fall into either of the two categories of persons whose property could be subject to attachment. Accordingly, it appears that, at the material time, the applicant’s property rights could not be restricted under this legal provision. No other legal provision was cited by the domestic courts as a basis for the interference.

The Court accepts that its power to review compliance with domestic law is limited as it is in the first place for the national authorities to interpret and apply that law. However, the Court notes that neither the Nasimi District Court, in its attachment order, nor the Court of Appeal, when reviewing the lawfulness of the attachment order, provided an explanation as to how Article 248 of the CCrP could be applied in the applicant’s situation. They did not attempt to provide any interpretation of this provision or to rely on any existing or accessible jurisprudence that would interpret that provision, in a precise and foreseeable manner, as being applicable to the property of suspects who had not yet been charged with the relevant criminal offence.

Likewise, the Government, while arguing that the interference was lawful under Article 248 of the CCrP, did not attempt to explain how that provision could be applied in respect of persons who had not been charged with the relevant criminal offence, given that the text of that provision did not expressly provide for such a possibility. Nor did the Government argue that this provision was applicable to such persons by virtue of any extensive interpretation of its text by the higher courts, and they did not rely on any specific domestic jurisprudence, complying with the requirements of accessibility and foreseeability, in support of such interpretation.

In such circumstances, the Court concludes that the interference with the applicant’s property could not be considered lawful within the meaning of Article 1 of Protocol No. 1 to the Convention. This conclusion makes it unnecessary to ascertain whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

A. Article 3 of the Convention

The applicant complained under Article 3 of the Convention of the allegedly harsh conditions of his detention in the MNS Detention Facility. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government argued that the applicant had not exhausted domestic remedies, as he had never raised this issue before the national courts.

The Government further submitted that the conditions of the applicant’s detention could not be regarded as inhuman or degrading, that he had been held in standard conditions and that there had been no intention to somehow humiliate or debase him. In this connection, the Government referred to the findings in the 2002 CPT Report in respect of the general conditions of detention in the MNS Detention Facility, which had been considered acceptable by the CPT.

The applicant argued that he should be exempted from the requirement to exhaust domestic remedies because any theoretically available remedies in respect of this complaint were ineffective in practice and therefore the pursuit of these remedies was futile, and because the domestic authorities had repeatedly examined all of his other complaints in an unfair manner.

The applicant disputed the Government’s factual submissions concerning the conditions of his detention in the MNS Detention Facility (see paragraphs 63-64 above) and maintained that the actual conditions of his detention, as described by him (see paragraphs 59-62 above), amounted to ill-treatment under Article 3 of the Convention. He further claimed that the Government had relied selectively on the 2002 CPT Report and that this same report also contained “numerous criticisms” of the conditions in the MNS Detention Facility. In any event, in the applicant’s opinion, the 2002 CPT Report was old and outdated and did not provide an accurate representation of the conditions of detention during the period of his detention in the MNS Detention Facility.

The Court finds that it is not necessary to examine the Government’s objection as to non-exhaustion of domestic remedies as, even assuming that the applicant has complied with this requirement, the complaint is in any event inadmissible for the following reasons.

The Court notes that, while the parties provided differing descriptions of the applicant’s conditions of detention, each party’s submissions in this regard were very similar to those made in the Farhad Aliyev case (cited above, §§ 75-82). Having regard to the material in its possession, the Court concludes that the applicant’s conditions of detention were essentially very similar to the conditions of detention of his brother Farhad Aliyev, who was also detained in the MNS Detention Facility in a similar cell and during the same time period.

The Court further notes that, in the Farhad Aliyev case, based on the parties’ submissions and the findings in the 2002 CPT Report, it assessed the material conditions of the applicant’s detention and found that those conditions, while not entirely satisfactory, were on the whole acceptable and were not so bad as to amount to inhuman or degrading treatment (see Farhad Aliyev, cited above, §§ 117-19). Having regard to the fact that the conditions of the applicant’s detention in the present case were essentially very similar to those in the Farhad Aliyev case, the Court finds no reason to depart from its findings in that case and considers that, despite certain problematic aspects, the conditions of the applicant’s detention in the MNS Detention Facility did not amount to inhuman or degrading treatment under Article 3 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Article 6 §§ 1 and 3 of the Convention

Relying on Article 6 §§ 1 and 3 of the Convention, the applicant raised a number of complaints concerning the proceedings relating to his pre-trial detention, which the Court has already examined under the relevant paragraphs of Article 5 above. In so far as some of the applicant’s submissions under Article 6 can be construed as a complaint about the alleged unfairness of the criminal proceedings against him as a whole, the Court notes that the scope of the present application is limited to the facts relating to the period prior to the applicant’s trial, conviction and appeals against this conviction, and that therefore it does not cover the entirety of the proceedings concerning the determination of criminal charges against him (see paragraphs 69-70 above). Even if some factual events that took place prior to the trial may be relevant for the assessment of the fairness of the proceedings as a whole, this part of the complaint must be rejected as having been raised prematurely in the context of the present application

C. Article 6 § 2 of the Convention

The applicant complained that, in the decisions ordering and extending his pre-trial detention, the domestic courts had breached his right to be presumed innocent by prejudging his guilt before he had been proved guilty following a criminal trial. He further complained that the joint statements made by the Prosecutor General’s Office, the MNS and the Ministry of Internal Affairs to the press on 20 and 21 October 2005 had amounted to an infringement of his right to the presumption of innocence. 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.”

The Government submitted that the applicant had not exhausted domestic remedies in respect of this complaint, arguing that there were several avenues of redress available to him at the domestic level. The Government further submitted that, in any event, none of the decisions rendered by the domestic courts on various matters relating to the pre-trial investigation had declared the applicant guilty of any criminal offence. They also argued that the impugned press statements of 20 and 21 October 2005 made by the law-enforcement authorities had not depicted the applicant as a criminal. Rather, they had informed the public about the fact of his arrest and referred to the available evidence and various items found during the searches of the premises belonging to him. This information had been provided “without making any legal assessment of those facts”.

The applicant reiterated his complaint and argued that, while he had not expressly been called a “criminal”, the purpose and effect of those statements had been to portray him as such.

The Court finds that it is not necessary to examine the Government’s objection as to non-exhaustion of domestic remedies as, even assuming that the applicant has complied with this requirement, the complaint is in any event inadmissible for the following reasons.

In so far as the applicant complained of a breach of his right to the presumption of his innocence by the domestic courts in their decisions ordering and extending his pre-trial detention, the Court, having carefully examined the original texts of the relevant decisions, finds that none of them contained any wording that could be interpreted as prematurely declaring the applicant guilty of the offences that he was charged with.

In so far as the applicant complained about the joint statements made by the Prosecutor General’s Office, the MNS and the Ministry of Internal Affairs to the press on 20 and 21 October 2005, the Court observes that in the Farhad Aliyev case it found that those same statements were in breach of Mr Farhad Aliyev’s right to presumption of innocence under Article 6 § 2 of the Convention, because they contained wording amounting to a declaration, made without the necessary qualifications or reservations, that he had committed criminal offences (see Farhad Aliyev, cited above, §§ 217-27). However, having examined these statements in the framework of the present case, the Court considers that the parts of those statements referring specifically to the applicant could not be considered incompatible with the requirements of Article 6 § 2. In respect of the applicant in the present case, the statements merely contained brief information that he had been arrested and that certain items and cash had been seized from his office. They also mentioned that his office had been used for meetings between Farhad Aliyev and Fikret Yusifov. It is true that the statements did not clarify that, at that time, the applicant had been detained on suspicion of an offence unrelated to the offences allegedly committed by other persons mentioned in those statements. Accordingly, the statements might have been misleading as to the real reasons for the applicant’s arrest. Nevertheless, no wording contained in those statements went as far as declaring the applicant guilty of any criminal offence.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

D. Article 8 of the Convention

The applicant complained of a restriction of correspondence and visits from his family and his British lawyer during the period of his pre-trial detention. He claimed that his letters had been intercepted and censored, and that any legal basis for such restrictions had not been disclosed to him. Article 8 of the Convention provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government submitted that the applicant had failed to exhaust the domestic remedies, as he had never raised any of the specific allegations in the present complaint before any domestic authority and had never relied on Article 8 of the Convention, or provisions of domestic law of the same or a similar nature, in his applications to the domestic authorities. The Government noted that, under Article 449 of the CCrP, it was open to the applicant to complain to the domestic courts about any actions of the prosecuting or investigating authorities that violated his rights.

The applicant contested the Government’s objection, arguing that the domestic courts were not independent and impartial and that it was “futile to seek to obtain effective remedies from them in politically-driven cases of this kind”.

The Court reiterates that the purpose of the domestic-remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the alleged violations before they are submitted to the Court (see, among other authorities, Hajibeyli v. Azerbaijan, no. 16528/05, § 35, 10 July 2008, and Farhad Aliyev, cited above, § 232). Mere doubts about the effectiveness of a remedy are not sufficient to dispense with the requirement to make normal use of the available avenues for redress (see, among other authorities, Mammadov v. Azerbaijan, no. 34445/04, § 52, 11 January 2007). The Court accepts the Government’s submission that it was open to the applicant to complain to the domestic courts about the actions or omissions of the prosecuting authorities that had allegedly breached his rights. However, the applicant has not applied to the courts with any of the grievances raised by him in the present complaint before the Court concerning the general bans on family visits and correspondence throughout the entire detention period. While he argued that attempting to seek redress from the courts would be futile, he has not shown convincingly that such steps were bound to be ineffective.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

E. Other alleged violations

The applicant complained under Article 5 § 2 of the Convention that he had not been informed promptly of the reasons for his arrest and of the charges against him. The applicant also complained under Articles 13 and 14 of the Convention, in conjunction with all of his other complaints, that there were no effective remedies by which to seek redress for the violation of his Convention rights and that he had been subjected to discriminatory treatment for political reasons, as punishment for being a brother of Farhad Aliyev.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

1. Pecuniary damage

The applicant claimed at least 4,500,184.58 United States Dollars (USD) in respect of pecuniary damage, including (a) USD 428,451.84 for loss of salary during the period from 1 October 2005 to 1 October 2007, calculated on the basis of his salaries at Azpetrol and Azertrans Ltd, plus any further loss of income during the period from 1 October 2007 to the date of the Court’s judgment, to be calculated on the same basis; (b) USD 1,300,000 of his “personal savings unlawfully seized from his office” at Azpetrol; (c) USD 1,686,815.51 for the value of the attached shares in Bank of Baku and USD 1,048,306.23 for unpaid dividends on those shares accruing from 2004 to 2007; and (d) USD 36,611 for the value of various items seized from his apartment.

The Government submitted that the amount claimed for the loss of salary was excessive, unsubstantiated and based on insufficient documentary evidence. They further submitted that the documents presented in support of the claims for pecuniary damage were not “detailed and exhaustive”. Lastly, the Government argued that, at the time of the lodging and communication of the application, the applicant had not been deprived of any property and the issue of possible confiscation was still to be determined by the courts.

The Court does not discern any causal link between the violations found and the pecuniary damage alleged in respect of the loss of salary. As for the claims in respect of various seized possessions, the Court notes that part of the complaints concerning those possessions were declared inadmissible. As to the complaint concerning the attachment of shares in the Bank of Baku, the Court notes that the scope of that complaint was limited solely to the unlawfulness of the measure temporarily restricting the applicant’s property rights, and did not concern any measures completely depriving him of his ownership of those shares. In such circumstances, within the scope of the present application, no causal link can be discerned between the violation found and the claim for the entire value of the attached shares and dividends.

The Court therefore rejects the claims in respect of pecuniary damage.

2. Non-pecuniary damage

The applicant submitted that the violations of his Convention rights had caused him pain, suffering, anxiety and distress and damaged his reputation. Without specifying any amount, the applicant requested the Court to make an award that it considered to be “just and equitable in this case”.

The Government submitted that the finding of violations would constitute sufficient reparation in respect of any non-pecuniary damage suffered.

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 has thus to 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 7,000 euros (EUR) under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

The applicant claimed 172,737 pounds sterling (GBP) for the legal fees incurred in connection with the proceedings before the Court, and an additional amount of GBP 9,619.50 for “unbilled work in progress”. These legal fees were claimed in connection with the work done by various lawyers of Trowers & Hamlins Solicitors, and Lord Lester of Herne Hill QC of Blackstone Chambers. In support of this claim, the applicant submitted a number of time sheets and invoices prepared by the above-mentioned lawyers, including charges for lawyers’ hourly fees and a number of various other disbursements and charges.

The Government submitted that the amounts claimed were excessive and had not been reasonably or necessarily incurred. They noted that a significant number of entries in the submitted invoices were of a very general nature and did not specify the actual work done by the relevant lawyer. Moreover, the invoices also contained entries relating to work done by persons who had no authorisation to represent the applicant before the Court.

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.

The Court notes that a significant portion of the submissions made by the applicant’s lawyers concerned complaints that were either declared inadmissible or were outside the scope of the present case. Therefore, no award can be made in respect of the costs and expenses incurred in connection with those submissions.

The Court also notes that the claims in respect of a number of costs and expenses were not supported by the relevant evidence. Furthermore, the Court is not persuaded that all of the fees claimed by the applicant’s lawyers were necessarily and reasonably incurred. Deciding on an equitable basis and having regard to the details of the claims submitted by the applicant and the amounts awarded to British lawyers in cases of comparable complexity, the Court awards the applicant the sum of EUR 25,000 in respect of legal fees and other costs and expenses, plus any tax that may be chargeable to him.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the complaints under Articles 5 § 3 and 5 § 4 (in the part relating to the fairness of judicial review of the lawfulness of the applicant’s continued detention) of the Convention and Article 1 of Protocol No. 1 to the Convention (in the part relating to the attachment order concerning the applicant’s shares in the Bank of Baku) 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 5 § 4 of the Convention in respect of the judicial review of the applicant’s continued detention;

Holds that that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of the lawfulness of the attachment order concerning the applicant’s shares in the Bank of Baku;

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:

(i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Azerbaijani manats at the rate applicable at the date of settlement; and

(ii) EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into his representatives’ bank account in the United Kingdom;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Nina Vajić
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> RAFIG ALIYEV v. AZERBAIJAN - 45875/06 [2011] ECHR 2022 (6 December 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/2022.html Cite as: [2011] ECHR 2022