The Court examines the substance of the case, assesses testimonies and evidence, and estimates that national decisions are obviously unreasonable!
JUDGMENT
Ilgar Mammadov v. Azerbaijan (no. 2) 16.11.2017 (no. 919/15)
SUMMARY
The case concerned the criminal proceedings brought against a prominent Azerbaijani opposition
politician, Ilgar Eldar oglu Mammadov, following protests in the town of Ismayilli in 2013.
Mr Mammadov was subsequently charged and convicted of mass disorder. This is the second case
he has brought before the European Court of Human Rights; the first concerned his arrest and
pre-trial detention following the same events.
In today’s Chamber judgment1 in the case of Ilgar Mammadov v. Azerbaijan (No. 2) (application
no. 919/15) the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights.
The Court found that the domestic courts had either not addressed or remained silent about a
number of inconsistencies in the evidence used to convict Mr Mammadov, despite the defence’s
repeated objections about flawed or misrepresented evidence. In particular, as concerned the
witness statements for the prosecution: some of the police officers who testified that
Mr Mammadov had incited protestors to violence had only been questioned five months after the
protests and one had retracted his pre-trial statement saying that he had signed it without even
reading it. As concerned certain video recordings used to convict him: one had shown clashes
between protestors whereas another had shown footage of calm streets with very few protestors.
Furthermore, Mr Mammadov’s blog posts and social media posts as well as a transcript of a radio
interview, used to prove that he had planned the mass disorder, had dated either from when he had
been in Ismayilli or after leaving it, and had contained no incitement to violence. Indeed, in the news
coverage on the riots, which the courts found to be in support of the prosecution’s case, there had
been no express reporting of any actual outbreak of violence during the afternoon of 24 January
2013 when Mr Mammadov had been present in Ismayilli.
In conclusion, there had been serious shortcomings in the manner in which the evidence used to
convict Mr Mammadov had been admitted, examined and/or assessed. Equally, the manner in which
the courts had dealt with the defence’s objections concerning that evidence had been inadequate.
Indeed, any evidence favourable to him had been systematically dismissed in an inadequately
reasoned or manifestly unreasonable manner.
PROVISION
Article 6§1
COMMENT
This decision is particularly important as the ECtHR reviews the evidence presented to the national courts, which is rarely done. It considers that the decision of the domestic courts is arbitrary and absurd and reviews and evaluates all the evidence produced (witnesses, documents, videos, radio interviews, blog posts, etc.). It also considers every kind of evidence and concludes, unlike the national courts.
This decision is particularly useful for cases where arbitrariness or paralysis prevails in the assessment of evidence by the courts, and where the court decision in a hypothetical version of the facts without evidence.
PRINCIPAL FACTS
Ilgar Eldar oglu Mammadov, an Azerbaijani national born in 1970, is currently serving a seven-year
prison sentence following his conviction in 2014 of mass disorder.
Mr Mammadov has a history of criticising the Azerbaijani Government and had announced his
intention to stand as candidate in the November 2013 presidential elections. However, he was
unable to do so because he was arrested and placed in pre-trial detention following protests in the
town of Ismayilli on 24 January 2013. He was in particular accused of organising public disorder (subsequently replaced with the charge of mass disorder) and violent resistance to the police,
apparently for having told protestors to throw stones at the police.
In March 2014 Mr Mammadov was convicted as charged at first instance. After a series of appeals,
his conviction and sentence were eventually upheld in November 2016 by the Supreme Court. In
convicting him, the domestic courts essentially relied on statements by witnesses for the
prosecution (mainly police officers testifying that they had seen Mr Mammadov organising and
inciting the protestors to violence and that they had then themselves been attacked), letters written
by the law-enforcement authorities (accusing Mr Mammadov of having incited the local Ismayilli
residents against the State, government bodies and the police), video recordings and
contemporaneous news coverage. In addition, the courts relied on Mr Mammadov’s blog posts and
social media posts as well as a transcript of an interview with Azadliq Radio, all allegedly showing
that he had planned the mass disorder. The courts dismissed the statements of all the defence
witnesses (most of them journalists) as untruthful, finding that they knew Mr Mammadov personally
and therefore wanted to help him. Throughout the proceedings Mr Mammadov repeatedly
complained about flawed or misrepresented evidence, which were all dismissed.
Mr Mammadov has lodged a previous application with the European Court of Human Rights to
complain about his arrest and pre-trial detention following the Ismayilli riots. In 2014 the Court
delivered a judgment, Ilgar Mammadov v. Azerbaijan (no. 15172/13), finding that Mr Mammadov
had been arrested and detained without any evidence to reasonably suspect him of having
committed a criminal offence and concluding that the actual purpose of his detention had been to
silence or punish him for criticising the Government. The enforcement of this judgment, in particular
with regard to Mr Mammadov’s release, is still currently underway before the Committee of
Ministers of the Council of Europe.
THE DECISION OF THE COURT
Article 6 (right to a fair hearing within a reasonable time)
The criminal proceedings against Mr Mammadov had lasted slightly longer than three years and nine
months at three levels of judicial instance; the higher two instances (the Court of Appeal and the
Supreme Court) had examined the case two times each. Given the complexity of the case, the Court
considered that the overall length of the proceedings had not been excessive and therefore declared
that part of Mr Mammadov’s complaint inadmissible.
However, the Court found that there had been serious shortcomings in the domestic courts’
reasoning and in the manner in which the evidence used to convict Mr Mammadov had been
admitted, examined and/or assessed. Equally, the manner in which the courts had dealt with the
defence’s objections concerning that evidence had been inadequate.
The Court examined, in turn, the different categories of evidence, noting first of all that the domestic
courts’ reliance on the prosecution witness statements to convict Mr Mammadov could only qualify
as manifestly unreasonable or arbitrary.
In particular, the courts had never addressed in their judgments the defence’s strong and factually
substantiated objections calling into question the credibility of the police officers’ witness
statements. The defence had argued that some of the officers had been questioned for the first time
as late as five months after the riots, that they had failed to report the events immediately after they
had occurred and that there had been no medical evidence of their injuries. Nor did the courts
address in an adequate manner the fact that one of the police officers had retracted his pre-trial
statement because he had signed it without even reading it, and the implications that that could
have had on the credibility of the other police officers’ statements. At no point did the courts inquire
either whether the officers’ statements could have been obtained through undue pressure.
Documents submitted to the Court even suggested that two of the police officers, whose statements
had been relied upon to convict Mr Mammadov, could not have actually seen him: one testified that
he had been in his office during Mr Mammadov’s visit to Ismayilli; and another, injured by a stone,
had been in hospital before Mr Mammadov had even arrived in the town.
Furthermore, the courts had accepted certain witness statements made by civilians as proof of the
accusations against Mr Mammadov, despite the fact that the defence had produced documents
showing that one of them had lied. Moreover, another civilian witness, according to the case file,
had not mentioned Mr Mammadov at all in her testimony.
In contrast, the courts had refused to give any weight to the defence witness statements they had
heard. It was not clear why and on what particular basis the domestic courts had found that most of
the defence witnesses, who were journalists, had close relations with Mr Mammadov, or why such a
finding would lead the courts to assume that they would lie in court and risk committing perjury. The
Court therefore considered that the conclusion that all of the witnesses who had testified in Mr
Mammadov’s favour had been untruthful and biased had been made without sufficient reasons and
without due regard to the individual situation of each witness.
The letters written by the law-enforcement authorities, also used to convict Mr Mammadov, had
given brief and vague factual statements, with no substantiating material (such as investigative
documents, videos, reports of search operations). Despite Mr Mammadov’s repeated objections to
the use of those letters as evidence, he had never been given the opportunity to challenge the
authors of those letters during the criminal proceedings.
The Court examined the full content of Mr Mammadov’s blog posts and social media posts as well
as a transcript of his interview with Azadliq Radio and, unlike the domestic courts, did not find that
they proved that he had planned the mass disorder. On the contrary, the posts had been made and
the interview given either in Ismayilli or after leaving it, and, although strongly critical of the
authorities, had contained no intention to commit a criminal offence or incitement to violence.
Using Mr Mammadov’s public statements as evidence to convict him had therefore clearly been
arbitrary.
Similarly the courts’ assessment of the news coverage on the riots, finding that it had supported the
prosecution’s case, had been arbitrary. Although there had been reports of a general situation of
tension, none of the media sources had expressly reported any actual outbreak of violence during
the afternoon of 24 January 2013.
Finally, as concerned the video recordings, one had shown clashes between protestors and the
police whereas another had shown footage of calm streets with very few protestors. The firstinstance
court had relied on the footage showing clashes, but on appeal the court – apparently
recognising that that footage had been of events in the morning and therefore before
Mr Mammadov had arrived in town – had agreed to allow the footage taken during the afternoon by
a camera installed on a building along the alleged route of the protestors. However, this recording
showed that the situation had been calm. The appeal court held that this could have been because
the protestors had been going along the street one-by-one or had arrived from other directions. The
courts thus created a purely hypothetical version of events which had never even been argued by
the prosecution and which had not been supported by any evidence.
Indeed, the higher instances had remained silent about the defence’s allegations of the prosecution
having tried to pass off one video recording showing clashes as having taken place in the afternoon
(when Mammadov had been present), whereas the footage had actually been recorded in the
morning. In support of their allegations, they had submitted the full version of the video as well as
another video of a similar nature. The courts should have examined such strong evidence, and all the
more so in a case where the main point of contention between the parties had been whether any
mass disorder had actually taken place while Mr Mammadov had been in Ismayilli.
In conclusion, Mr Mammadov’s conviction had been based on flawed or misrepresented evidence
and his objections in this respect had been inadequately addressed. The evidence favourable to him
had been systematically dismissed in an inadequately reasoned or manifestly unreasonable manner.
Even though the case had been remitted once for a new examination by the Supreme Court and an
attempt had been made to address some of the defence’s requests and objections, none of the
above shortcomings had ultimately been remedied. The criminal proceedings against Mr Mammadov, taken as a whole, had not therefore complied with the guarantees of a fair trial.
There had accordingly been a violation of Article 6 § 1 of the Convention.
Given that conclusion, the Court considered that it was not necessary to further examine in detail
Mr Mammadov’s arguments concerning the allegedly inadequate facilities for the preparation of the
defence. It was also unnecessary to examine the issue concerning the disbarment of one of his
lawyers.
Other articles
The Court further held that it was not necessary to examine separately the complaints under
Articles 13 and 14 or to examine the admissibility and merits of the complaint under Article 18 in
conjunction with Article 6. Mr Mammadov’s complaint under Article 17 was declared inadmissible.
Article 41 (just satisfaction)
The Court held that Azerbaijan was to pay Mr Mammadov 10,000 euros (EUR) in respect of nonpecuniary
damage.
Separate opinion
Judges Nussberger, Tsotsoria, O’Leary and Mits expressed a joint concurring opinion which is
annexed to the judgment(echrcaselaw.com editing).
