NOVRUZ ISMAYILOV v. AZERBAIJAN - 16794/05 - Chamber Judgment [2014] ECHR 186 (20 February 2014)

In the case of Novruz Ismayilov v. Azerbaijan,

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

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Linos-Alexandre Sicilianos,
          Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 28 January 2014,

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

PROCEDURE

1. The case originated in an application (no. 16794/05) 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 Novruz Binnat oglu Ismayilov (Novruz Binnət oğlu İsmayılov - “the applicant”), on 3 March 2005.

2. The applicant was represented by Mr F. Agayev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicant alleged, in particular, that his right to liberty under Article 5 of the Convention had been breached because the judicial decisions concerning his pre-trial detention had lacked reasonable grounds. He also complained that the hearings concerning the extension of his pre-trial detention had been held in his absence, that his lawyer had not been informed of the date and place of the hearing of 23 December 2004 before the Khatai District Court, and that the domestic courts had not addressed his specific arguments in support of his release.

4. On 27 August 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1961 and is currently serving a sentence of imprisonment in a prison in Baku.

6. The applicant was a founder of the private Borçalı Bank and of the Borçalı Association. He was also the chairman of the bank’s supervisory board.

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

7. On 19 April 2004 criminal proceedings were instituted under Article 213 of the Criminal Code (tax evasion) by the Ministry of Taxes in connection with the activities of the Borçalı Association.

8. The applicant responded to the investigator’s calls to testify as a witness within the framework of the above-mentioned criminal proceedings and participated in various investigative steps.

9. In particular, on 16 July 2004 the applicant was questioned by the investigator and on 20 July 2004 a confrontation was carried out between the applicant and another witness.

10. On 21 and 27 July 2004 the applicant was again requested to attend to assist with the investigation; however he failed to comply with the request.

11. On 18 and 26 August 2004 the applicant voluntarily appeared before the investigating authorities and two confrontations were conducted by the investigator between the applicant and two other persons.

12. In the beginning of September 2004, the investigator tried to contact the applicant, but he could not determine his whereabouts.

13. On 14 September 2004 the investigator ordered the applicant’s compulsory participation in the investigation.

14. On 28 September 2004 the applicant appeared before the investigating authority. On the same day the investigator in charge of the case informed the applicant that he was charged under Articles 178 (fraud), 179 (embezzlement) and 313 (forgery by an official) of the Criminal Code. The charges against the applicant were based on the results of a financial audit carried out in respect of the Borçalı Association, and on the statements of various persons with whom the applicant had business relationships within the framework of his activities at the Borçalı Bank and the Borçalı Association.

15. Again on the same day, the prosecutor requested the judge to apply the preventive measure of remand in custody (həbs qətimkan tədbiri) in respect of the applicant. The prosecutor gave as the reasons for requesting that measure the seriousness of the applicant’s alleged criminal acts and the possibility of his absconding from and obstructing the investigation.

16. At the hearing before the court, the applicant and his lawyer submitted that the applicant had never absconded from or obstructed the investigation. They also submitted that the applicant’s failure to comply with some of the requests to assist with the investigation had been due to his state of health, because he had been sick at the time.

17. On 28 September 2004 the judge, relying on the official charges brought against the applicant and the prosecutor’s request for the application of the preventive measure of remand in custody, ordered the applicant’s detention for a period of three months. The judge reasoned the necessity for this measure as follows:

“Taking into account that Ismayilov Novruz Binnat oglu has committed a serious crime, the possibility of his absconding from the investigation and illegally influencing persons participating in the criminal proceedings, obstructing the normal functioning of the investigation by hiding or falsification of the items necessary for the prosecution, and that there are sufficient grounds [that he might] fail to comply with calls to attend the investigation without any good reason, or flee from criminal responsibility by other means, ... the preventive measure of remand in custody should be applied in respect of Ismayilov Novruz Binnat oglu.”

18. The applicant appealed against the Khatai District Court’s decision of 28 September 2004, complaining of a lack of evidence that he had committed a criminal offence and lack of justification for the application of the preventive measure of remand in custody. He noted, in particular, that he had always collaborated with the investigating authority before his arrest and that the court had not taken into consideration his family status, state of health or other personal circumstances. The applicant also noted that it would be impossible for him to hide or falsify any document relating to the case, because all the relevant documents had been taken from his office by the investigating authority.

19. On 5 October 2004 the Court of Appeal dismissed the appeal, finding that the detention order was justified. The relevant part of the court’s decision reads as follows:

“After having examined the arguments of the appeal, heard the lawyer’s submissions in support of the appeal and the prosecutor’s submissions against it, the panel of the court considers that the court’s decision of 28 September 2004 should remain unchanged as it is lawful and justified”.

B. Extension of the applicant’s detention and his criminal conviction

20. On 16 December 2004, the investigator requested from the Deputy Prosecutor General an extension of the applicant’s detention, because although a number of statements had been obtained and a financial audit of the Borçalı Bank had been conducted by the National Bank and the Ministry of Taxes, more time was needed to complete the investigation.

21. On 23 December 2004 the Deputy Prosecutor General submitted a request to the court for the extension of the applicant’s detention period until 28 February 2005. The relevant part of the prosecutor’s request reads as follows:

“The records of the documented audit carried out in this case must be obtained, depending on the conclusions of the audit, certain witnesses must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided.

In order to carry out the said investigative actions, no less than two months are needed. However, the period of remand in custody in respect of the accused person Ismayilov Novruz Binnat oglu ends on 28 December 2004. Thus, because of the complexity of the criminal case and the need for at least two months for the carrying out of the above-mentioned investigative actions, the period of remand in custody in respect of N. Ismayilov must be extended until 28 February 2004.”

22. On 23 December 2004 the judge at the Khatai District Court, relying on the prosecutor’s request, extended the length of the applicant’s remand in custody by a period of two months, until 28 February 2005. The court decision, which is almost identical in wording to the prosecutor’s request, reasoned the necessity for the extension of the applicant’s detention as follows:

“The records of the documented audit carried out in this case must be obtained, certain witnesses, depending on the conclusions of the audit, must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided.

The period of remand in custody in respect of Ismayilov Novruz Binnat ... ends on 28 December 2004. However, as it will not have been possible to complete the additional investigative actions during this period, I consider that the request must be granted and the period of remand in custody in respect of N. Ismayilov must be extended for a period of two months, that is, until 28 February 2005.”

23. The hearing of 23 December 2004 on the extension of the detention period was held in the applicant’s absence, but in the presence of the investigator. According to the record of the hearing, the applicant was represented by his lawyer (F.A.) and the latter took the floor and stated that he had no objections to the extension of the applicant’s detention.

24. On 27 December 2004, when the record of the Khatai District Court’s hearing of 23 December 2004 was made available to F.A., he made written comments on the record, stating that false information was included in it, as he had not participated in that hearing and had not pronounced in favour of the extension of the applicant’s detention. On the same day he lodged a request with the judge of the Khatai District Court for the rectification of the record of the hearing of 23 December 2004. He submitted, in particular, that he had not been informed of the date and place of that hearing and that he had not participated in it. He argued that the record of the hearing had been falsified.

25. Moreover, it appears from the transcripts of phone conversations of 28 December 2004 between F.A. and a court clerk, between F.A. and the investigator in charge of the case, and between F.A. and the Khatai District Court judge who ordered the extension of the applicant’s detention, that F.A. did not participate in the hearing, as all the above-mentioned persons confirmed it in their phone conversation with F.A. In particular, although the judge acknowledged in the phone conversation that there had been a mistake in the record of the hearing concerning the lawyer’s presence at the hearing, in the same conversation he also refused to officially rectify the record.

26. By a decision of 28 December 2004, the same Khatai District Court judge rejected F.A.’s rectification request, holding that the lawyer had participated in the hearing of 23 December 2004.

27. On 28 December 2004 the applicant appealed against the Khatai District Court’s decision of 23 December 2004 concerning the extension of his detention. The applicant complained that he had not been taken to the court for the hearing and that his lawyer had not been informed of the date and place of the hearing. He further submitted that there was no justification for the extension of his detention period and that the first-instance court had failed to substantiate its decision. On 5 January 2005 he lodged additional submissions in support of his appeal, reiterating his previous complaints and asking the court to deliver a special ruling with regard to the judge of the Khatai District Court in connection with the falsification of the record of the hearing of 23 December 2004.

28. On 6 January 2005 the Court of Appeal left unchanged the Khatai District Court’s decision on the extension of the detention period, finding no reason for quashing it. As to the justification for the extension of the applicant’s detention, the appellate court stated as follows:

“The investigating authority considers it necessary that the records of the documented audit carried out in this case must be obtained, some witnesses, depending on the conclusions of the audit, must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided.

At the stage of the carrying out of the said procedural actions, it is not appropriate to release N. Ismayilov from pre-trial detention.

The panel of the court considers that the judge of the first-instance court took into account the seriousness of the crime attributed to N. Ismayilov, the possibility of him influencing persons participating in the criminal proceedings if released, as well as obstructing the normal functioning of the investigation or the court proceedings by hiding or falsification of items necessary for the prosecution, and correctly extended the period of his detention. The decision is lawful and justified.”

29. The appellate court did not examine the applicant’s specific complaints concerning his and his lawyer’s absence from the hearing of 23 December 2004 or the alleged falsification of the record of the above-mentioned hearing.

30. The hearing of 6 January 2005 before the Court of Appeal was held in the absence of the applicant, but in the presence of the prosecutor and the applicant’s two lawyers.

31. On 12 May 2005 the prosecutor in charge of the case filed the indictment with the Assize Court. It appears from the indictment that the applicant had been charged with additional offences on 15 April 2005 and that in the meantime his period of detention had been extended by the Khatai District Court until 28 April 2005. The relevant part of the indictment reads as follows:

“... on 28 September 2004 Ismayilov Novruz Binnat oglu was charged under Articles 178.2.2., 178.2.3, 178.3.2, 179.2.1, 179.2.2, 179.2.3, 179.3.2 and 313 of the Criminal Code of the Republic of Azerbaijan and the Khatai District Court ordered the application of the preventive measure of remand in custody in respect of him. On 15 April 2005 he was charged with new criminal offences under Articles 178.2.3, 178.3.2, 179.2, 179.2.2, 179.2.3, 179.3.2 and 213.4 of the Criminal Code of the Republic of Azerbaijan. His period of pre-trial detention was extended by the Khatai District Court’s decision until 28 April 2005 ...”

32. However, despite an explicit request by the Court that the Government submit all the judicial decisions concerning the applicant’s detention, no copy of the decision extending his detention until 28 April 2005, nor any other copy related to his detention until 31 January 2006, was submitted.

33. On 31 January 2006 the Assize Court convicted the applicant of fraud, embezzlement and tax evasion and sentenced him to nine years’ imprisonment.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Code of Criminal Procedure (“the CCrP”)

34. Article 51.7 of the CCrP provides that the record of the hearing must be signed by the presiding judge and the registrar within three days of the end of the court hearing. The record of the hearing must be made available to those who are entitled to consult with it within three days. If they have made written comments on the record, the presiding judge, after examining these comments, is to sign them if he agrees with them, or deliver the relevant decision if he does not. Regardless of whether he agrees with the comments or not, the comments themselves and the decision adopted must be attached to the record of the hearing (Article 51.7).

35. The relevant provisions of the CCrP concerning pre-trial detention and the application of the preventive measure of remand in custody are described in detail in the Court’s judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83-102, 9 November 2010) and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35-49, 9 December 2010).

B. Decisions of the Plenum of the Supreme Court

1. Decision “on the Application of the Provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Case-law of the European Court of Human Rights in the Administration of Justice” of 30 March 2006

36. The relevant part of this decision reads as follows:

“13. ... the preventive measure of remand in custody must be considered an exceptional measure to be applied in absolutely necessary cases, where the application of another preventive measure is not possible.

14. The courts should take into account that persons whose right to liberty has been restricted are entitled, in accordance with Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to trial within a reasonable time, as well as to release pending trial if it is not necessary to apply the preventive measure of remand in custody in respect of them.”

2. Decision “on the Practice of the Application of the Legislation by the Courts during the Examination of Requests for the Application of the Preventive Measure of Remand in Custody in Respect of an Accused” of 3 November 2009

37. The relevant part of this decision reads as follows:

“3. ... when deciding to apply the preventive measure of remand in custody, the courts must not be content with only listing the procedural grounds provided for by Article 155 of the CCrP, but must verify whether each ground is relevant in respect of the accused and whether it is supported by the materials in the case file. In so doing, the nature and gravity of the offence committed by the accused, information about his personality, age, family situation, occupation, health and other circumstances of that kind must be taken into consideration.

6. Requests for application of the preventive measure of remand in custody, extension of the detention period and replacement of detention by house arrest or release on bail must be examined in camera by a single judge in the court building within twenty-four hours of their receipt (regardless of whether it is a public holiday or after the end of working hours). The presence at the hearing of the person whose rights may be restricted by the request is compulsory.

The courts must take into account that the examination of requests for application of the preventive measure of remand in custody or for extension of the detention period in the absence of the accused is allowed only in exceptional circumstances where it is not possible to ensure his presence at the hearing. These circumstances may be where the accused has absconded from the investigation, is being treated in a psychiatric hospital or for a serious illness, emergency circumstances, a declaration of quarantine, or other similar circumstances.

13. ... the courts are reminded that although the legislator determined the same material and procedural grounds and rules for the examination of requests for application of the preventive measure of remand in custody and extension of a detention period, since the extension of the detention period restricts for a long period a person’s right to liberty as well as his right to the presumption of innocence, the courts when examining requests of this kind must be careful, verify the grounds and reasons for the extension of the period, and justify in their decisions the necessity to extend the detention period in a different manner from the necessity for the application of the preventive measure of remand in custody.

During the examination of requests for extension of the accused’s detention period, the courts must verify in detail the arguments in the request concerning why it is not possible to terminate the preliminary investigation within the period previously established. In so doing, it must take into account that, in accordance with the case-law of the European Court of Human Rights, relying on the same grounds which were the basis for the application of the preventive measure of remand in custody in respect of the accused when ordering the extension of his detention period is considered as a violation of the right to liberty and security from the point of view of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms”.

THE LAW

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

38. The applicant complained, relying on Article 5 of the Convention, that there had been no reasonable suspicion that he had committed a criminal offence. The relevant part of Article 5 § 1 of the Convention reads as follows:

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

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...”

39. The Government submitted that the applicant had been arrested on reasonable suspicion of having committed a criminal offence following the preliminary investigation carried out by the Ministry of Taxes. The Government also submitted that the applicant’s arrest and detention had been carried out in accordance with the procedure provided in the relevant law.

40. The applicant alleged that there had been no reasonable suspicion that he had committed a criminal offence, and that the domestic authorities had failed to furnish sufficient facts and information to establish such a suspicion.

41. 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). Nor 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 dispelling the suspicions which provide the grounds for the detention. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300-A). However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182, and Cebotari v. Moldova, no. 35615/06, § 48, 13 November 2007).

42. In the present case, the applicant was suspected of fraud, embezzlement and forgery carried out by an official when the first-instance court ordered his pre-trial detention. It is not disputed that actions of this type qualify as criminal offences under the domestic law.

43. It appears that the initial suspicion against the applicant was based on the results of the financial audit carried out at the Borçalı Association, as well as on the statements of other persons with whom the applicant had business relationships within the framework of his activities at the Borçalı Bank and the Borçalı Association. Although the applicant argued that there was no evidence, the Court holds that, within the meaning of the previously cited case-law, there was evidence objectively linking the applicant to the alleged criminal offence that was sufficient to have created “reasonable suspicion” against him.

44. For these reasons, the Court finds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

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

45. The applicant complained under Article 5 of the Convention that the domestic courts had failed to give reasons to justify his detention, and that there had not been relevant and sufficient reasons for the extension of the detention period. The Court considers that this complaint falls to be examined under Article 5 § 3 of the Convention, which provides as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

46. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

47. The Government contested the applicant’s submissions, stating that reasons had been given by the domestic courts to justify the applicant’s detention. The Government submitted in this connection that the applicant had failed to comply with some of the requests to assist with the investigation without any good reason and, if at liberty, he could obstruct the investigation by hiding or falsifying evidence or by influencing other participants in the criminal proceedings. The Government also relied on the gravity of the charges brought against the applicant.

48. The applicant disagreed with the Government’s submissions. In particular, he stated that the domestic courts had failed to give reasons to substantiate their judicial decisions concerning the application of the preventive measure of remand in custody and the extension of his pre-trial detention.

2. The Court’s assessment

49. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 58, ECHR 2003-IX (extracts), and Khodorkovskiy v. Russia, no. 5829/04, § 182, 31 May 2011). According to the Court’s established case-law, the presumption under Article 5 is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between bringing an accused to trial within a reasonable time and granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X, and Bykov v. Russia [GC], no. 4378/02, § 61, 10 March 2009).

50. The persistence of a reasonable suspicion that the person arrested has committed an offence is a 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 Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000-IV).

51. The domestic courts must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release (see Letellier v. France, 26 June 1991, § 35, Series A no. 207). Arguments for and against release must not be general and abstract (see Clooth v. Belgium, 12 December 1991, § 44, Series A no. 225).

52. The Convention case-law has developed four basic acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: the risk that the accused would fail to appear for trial (see Stögmüller v. Austria, 10 November 1969, § 15, Series A no. 9); the risk that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7); the risk that he would commit further offences (see Matznetter v. Austria, 10 November 1969, § 9, Series A no. 10); and the risk that he would cause public disorder (see Letellier, cited above, § 51).

53. In this connection, the Court reiterates 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 pre-trial detention (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001). 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, § 105, 8 February 2005, and Letellier, cited above, § 43).

54. The Court notes that the period to be taken into consideration for the purposes of Article 5 § 3 begins on the day the accused is taken into custody and ends on “the day when the charge is determined, even if only by a court of first instance” (see Kalashnikov v. Russia, no. 47095/99, § 110, ECHR 2002-VI, and Labita, cited above, § 147). In the present case this period commenced on 28 September 2004, when the applicant was arrested, and ended on 31 January 2006, when the Assize Court delivered its judgment convicting him. Thus, the applicant’s pre-trial detention lasted one year, four months and three days in total.

55. The Court observes that the applicant’s detention was ordered for the first time when he was brought before the judge of the Khatai District Court on 28 September 2004. That decision was upheld by the Court of Appeal on 5 October 2004.

56. In this connection, the Court observes that the Khatai District Court referred mainly to the gravity of the charges and the risk of the obstruction of the investigation, mentioning case-specific facts in response to the applicant’s arguments concerning the justification of his detention. In particular, the first-instance court relied on the applicant’s failure to comply with the investigator’s requests without any good reason (see paragraph 17 above). Although the applicant disputed that finding, stating that he had always cooperated with the investigation, it appears from the facts of the case that the applicant did fail to comply with some of the investigator’s requests (see paragraphs 10, 12 and 13 above). In these circumstances, the Court accepts that the existence of a reasonable suspicion that the applicant had committed serious criminal offences and the fact that he had failed to comply with some of the investigator’s requests may have initially sufficed to warrant his detention. However, with the passage of time those grounds inevitably became less and less relevant and his continued detention had to be justified by other relevant reasons, taking into account his personal situation.

57. The Court notes that during the investigation the applicant’s detention was subsequently extended for a period of two months, that is, until 28 February 2005, by the Khatai District Court’s decision of 23 December 2004. That decision was upheld by the Court of Appeal’s decision of 6 January 2005.

58. As to the Khatai District Court’s decision concerning the extension of the applicant’s detention period, it justified the applicant’s continued detention on the grounds that a number of investigative steps needed to be carried out, the applicant was to be charged with additional criminal offences, and the issue of the responsibility of other persons involved in the crimes had to be decided, and thus more time was needed to complete the investigation (see paragraph 22 above).

59. However, the Court notes at the outset that grounds such as the need to carry out further investigative measures or that the proceedings have not yet been completed are not acceptable reasons for detaining a person pending trial under Article 5 § 3 (see Piruzyan v. Armenia, no. 33376/07, § 98, 26 June 2012).

60. The Court further observes that on 23 December 2004, when the first-instance court extended the applicant’s continued detention by relying on the fact that the applicant was to be charged with additional offences, there were no new criminal charges against him in connection with such other offences. The applicant was not charged with new criminal offences until 15 April 2005, almost four months after the extension order. Moreover, the Court does not see how the need to decide the issue of the involvement of other persons in the crimes could be considered a relevant reason for the continuation of the applicant’s detention. Therefore, the reasons provided by the first-instance court in its decision of 23 December 2004 for the applicant’s continued detention for a period of two months were irrelevant, as they justified his detention with reference to criminal offences with which he had not even been charged, and suspected criminal offences involving other persons (see Muradverdiyev, cited above, § 88).

61. Moreover, the Court cannot overlook the fact that the text of the first-instance court’s decision of 23 December 2004 was almost identical in wording to the prosecutor’s request for the extension of the applicant’s detention, and that the judge did not in any way address the grounds for the applicant’s continued detention or his personal situation.

62. As regards the Court of Appeal’s decision of 6 January 2005, also reiterating the reasoning of the first-instance court’s decision of 23 December 2004, the appellate court further justified the applicant’s continued detention on grounds of the gravity of the charges and the likelihood of his absconding from the investigation or obstructing the functioning of the investigation (see paragraph 28 above). However, the judicial decision did not go any further than listing the above-mentioned grounds, including the risk of absconding, using a standard formula paraphrasing the terms of the CCrP (compare Giorgi Nikolaishvili, cited above, §§ 76-79, and Sefilyan v. Armenia, no. 22491/08, § 89, 2 October 2012). Therefore, the domestic courts failed to describe in detail either the grounds relied on in respect of the applicant’s pre-trial detention or his personal situation, such as his permanent residence and family ties, positive work references and the absence of a criminal record, and as stated above, in the decisions of 23 December 2004 and 6 January 2005 they also relied on irrelevant reasons to justify the applicant’s continued detention.

63. Finally, the Court observes that in the present case, despite the Court’s explicit request, the Government failed to submit the relevant information concerning the legal basis for the applicant’s remand in custody during the period from 28 February 2005, that is, the end of the period of the applicant’s detention in custody after its extension by the Khatai District Court’s decision of 23 December 2004, to 31 January 2006, the day on which the applicant was convicted by the Assize Court (see paragraph 32 above). In these circumstances, the Court cannot but conclude that there were no “relevant and sufficient” reasons to justify the applicant’s continued pre-trial detention during this period.

64. In view of the foregoing considerations, the Court concludes that the authorities failed to give “relevant” and “sufficient” reasons justifying the need for the applicant’s continued pre-trial detention.

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

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

66. Relying on Articles 5 and 13 of the Convention, the applicant complained that the judicial proceedings concerning his detention had not been adversarial, and that they had been unfair. In particular, he noted that the courts had examined the question of his continued detention in his absence, that his lawyer had not been informed of the date and place of the Khatai District Court’s hearing of 23 December 2004, that the record of the hearing had been falsified by that court, and that the domestic courts had not addressed his specific arguments in support of his release. The Court considers that this complaint 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.”

A. Admissibility

67. The Government submitted that the applicant’s complaint was inadmissible in the part concerning the alleged falsification of the record of the court hearing. In this connection, the Government submitted that the applicant had failed to appeal against the decision of the Khatai District Court judge refusing to rectify the record of the hearing. The Government further stated that the applicant had failed to raise the complaint in his appeal against the Khatai District Court’s judgment of 23 December 2004.

68. The applicant contested the Government’s submissions. He noted in particular that the judge’s refusal to rectify the record of the hearing was not subject to appeal under the domestic law. He further submitted that he had complained of the falsification of the record in his appeal against the Khatai District Court’s decision of 23 December 2004.

69. The Court notes at the outset that, for the purposes of this complaint, it is not called upon to determine whether the record of the hearing of 23 December 2004 was falsified or not. However, in so far as the Government’s submissions concerning the alleged falsification of the record may be understood as an objection of non-exhaustion of domestic remedies in respect of the complaint relating to the absence of the applicant’s lawyer at the hearing of 23 December 2004, the Court observes that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports of Judgments and Decisions 1998-VIII).

70. In this connection, the Court firstly notes that the applicant complained of the first-instance court’s failure to inform his lawyer of the date and place of the hearing in his appeal against the Khatai District Court’s decision of 23 December 2004, availing himself of the relevant domestic remedy in respect of procedural flaws in the proceedings before the first-instance court (see paragraph 27 above).

71. As to the Government’s argument that the applicant should have lodged an appeal against the judge’s refusal to rectify the record of the hearing, the Court notes that Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996-IV, and Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V). However, in the present case the Government failed to provide any explanation as to how a complaint could be lodged against such a decision. In particular, the Government did not refer to any provision in domestic law enabling the applicant to lodge an appeal against the refusal of the judge to rectify the record of the hearing. In such circumstances, the Court concludes that the applicant availed himself of all the available domestic remedies in respect of his complaint concerning the absence of his lawyer at the hearing of 23 December 2004 and therefore the Government’s objection must be dismissed.

72. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

73. The Government submitted that the proceedings concerning the extension of the applicant’s detention had been adversarial and that the applicant’s lawyer had participated in the hearing of 23 December 2004 before the Khatai District Court. In this connection, the Government noted that the transcripts of the phone conversations submitted to the Court by the applicant could not be used because they had been recorded without the knowledge of the persons involved and had therefore been obtained unlawfully.

74. The Government lastly submitted that in any event the presence of the applicant’s lawyers at the hearing of 6 January 2005 concerning the extension of the applicant’s detention before the Court of Appeal had remedied any shortcomings in the proceedings before the first-instance court, as they had then had the opportunity to submit their arguments.

75. The applicant reiterated his complaint, arguing that the proceedings concerning the extension of his pre-trial detention had been held in his absence and that his lawyer had not been informed of the date and place of the hearing of 23 December 2004. In this connection, he principally relied on the transcripts of the phone conversations. He also submitted that the domestic courts had not addressed any of his specific arguments in support of his release.

2. The Court’s assessment

76. 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, cited above, § 162). 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).

77. 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 to 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, Jėčius v. Lithuania, no. 34578/97, § 100, ECHR 2000-IX).

78. Turning to the circumstances of the present case, the Court notes that the applicant’s detention was ordered when he was brought before the judge of the Khatai District Court on 28 September 2004. The applicant was present at that hearing and was represented by his lawyer. The domestic law gave him a right of appeal against that decision. The requirements of Article 5 § 4 of the Convention can thus be said to apply to the appeal proceedings, which resulted in the Court of Appeal’s decision of 5 October 2004 and from which the applicant was absent, but his lawyer attended.

79. Subsequently, the applicant’s detention was extended by the Khatai District Court on 23 December 2004. On 6 January 2005 the Court of Appeal upheld the extension order. The proceedings before both the Khatai District Court and the Court of Appeal were held in the absence of the applicant but in the presence of a representative of the prosecuting authority.

80. In this connection, the Court observes that it is undisputed by the parties that the applicant was unable to attend personally any of the court hearings concerning the extension of his detention, 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 should 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, Graužinis 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).

81. Moreover, the Court notes that the hearings concerning the extension of the applicant’s detention were held in the applicant’s absence despite the fact that he had the right to attend them under the domestic law (see paragraph 35 above). The Court wishes in this regard to draw attention to the decision of the Plenum of the Supreme Court of 3 November 2009, which clearly established that the examination of requests for the application of the preventive measure of remand in custody or for the extension of the detention period in the absence of the accused was allowed only in exceptional circumstances, and the presence of the person whose rights were affected was compulsory at the hearing (see paragraph 37 above). However, there is nothing in the material before the Court to suggest that either the Khatai District Court or the Court of Appeal considered the question whether the applicant had been summoned to the hearing and whether his personal participation was required for the effective review of the lawfulness of his continued detention (see Idalov v. Russia [GC], no. 5826/03, § 162, 22 May 2012).

82. That being the case, 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.

83. The Court notes that the applicant submitted that his lawyer had not been informed of the date and place of the hearing of 23 December 2004 concerning the extension of his detention. Although these submissions by the applicant were disputed by the Government and contradicted by the record of the hearing, the Court observes that the applicant submitted the transcripts of the phone conversations in which the judge who ordered the extension of his detention, as well as the court clerk and the investigator in charge of the case, acknowledged the absence of the applicant’s lawyer from the hearing in question. It appears that the Government did not contest the content of these transcripts, but considered their use unacceptable because they had been obtained, in their view, unlawfully.

84. In any event, the Court observes that the Government failed to submit, apart from the disputed record of the hearing, any evidence, such as a summons, letter or any other document, proving that the applicant’s lawyer had been informed of the date and place of that hearing.

85. The Court also notes that once the record of the hearing was made available to the applicant’s lawyer, the latter immediately asked for its rectification. However, his request was rejected by the same Khatai District Court judge. As to the Court of Appeal, it ignored the applicant’s specific complaint on this point in its decision of 6 January 2005. In these circumstances, the Court does not find that the applicant’s submission that the hearing of 23 December 2004 was held in the absence of his lawyer is inconsistent or has been contradicted.

86. As regards the hearing before the Court of Appeal, the Court observes that the applicant was represented by two lawyers who were able, in principle, to develop legal arguments calling for his release. However, the Court cannot accept the Government’s argument that the presence of the applicant’s lawyers at that hearing remedied any shortcomings in the proceedings before the first-instance court. While the Court usually examines the proceedings as a whole, this rule is not without exceptions, especially in the case of pre-trial detention. Thus, the Court notes that the detention order of 23 December 2004 became effective immediately and it was the only legal basis for the applicant’s continued detention after 28 December 2004. Therefore, even if the Court of Appeal ultimately heard the applicant’s lawyers on 6 January 2005, by that time the applicant had already spent nine days in detention since 28 December 2004. Given that lapse of time, the Court cannot accept such a retroactive validation of the procedurally flawed detention order issued by the Khatai District Court. The Court concludes that the presence of the defence lawyers before the Court of Appeal did not remedy the defects of the procedure before the Khatai District Court (see Lebedev v. Russia, no. 4493/04, § 90, 25 October 2007).

87. The Court lastly reiterates that it has previously found a violation of Article 5 § 4 of the Convention in cases where, as in the present one, the domestic courts did not address any of the specific arguments advanced by the applicant in his submissions challenging his continued detention, even though those arguments did not appear to be irrelevant or frivolous (compare Farhad Aliyev, cited above, § 207). The Court reiterates that, while Article 5 § 4 of the Convention does not impose an obligation to address every argument contained in a detainee’s submissions, a 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.

88. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

89. 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

90. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage on account of expenses for his medical treatment, as he developed tuberculosis during his pre-trial detention.

91. The Government contested the claim, noting that the applicant had failed to substantiate his allegation.

92. The Court points out that under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.

93. In the present case, even assuming that there is a causal link between the damage claimed and the violations found, the Court observes that the applicant did not submit any documentary evidence supporting this claim. In particular, he has not submitted receipts, prescriptions or any other documents certifying his expenses for medical treatment.

94. For the above reasons, the Court rejects the applicant’s claim in respect of pecuniary damage.

2. Non-pecuniary damage

95. The applicant claimed EUR 10,000 in respect of non-pecuniary damage.

96. The Government contested the amount claimed as unsubstantiated and excessive.

97. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violation and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 4,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

98. The applicant claimed EUR 1,000 for the costs and expenses incurred before the domestic courts, EUR 1,500 for the costs and expenses incurred before the Court and EUR 100 for postal expenses.

99. The Government considered that the claim was unsubstantiated and lacked documentary evidence.

100. 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 the applicant was represented before the domestic courts and the Court and it is undisputed that the representative provided relevant documentation and observations, as requested by the Court. In these circumstances, the Court finds it appropriate to award the applicant EUR 2,500 in respect of costs and expenses (see Rzakhanov v. Azerbaijan, no. 4242/07, § 92, 4 July 2013).

C. Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints under Articles 5 § 3 (lack of sufficient reasons for the applicant’s detention) and 5 § 4 (fairness of the judicial review of the lawfulness of the applicant’s continued detention) admissible and the remainder of the application inadmissible;

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

3. Holds that there has been a violation of Article 5 § 4 of the Convention;

4. Holds

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

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

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

Done in English, and notified in writing on 20 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> NOVRUZ ISMAYILOV v. AZERBAIJAN - 16794/05 - Chamber Judgment [2014] ECHR 186 (20 February 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/186.html Cite as: [2014] ECHR 186