Prosecution statements for violation of activists’ offenses before trial. Use of the toilet from a detainee in the presence of a male police officer! Violation of the presumption of innocence and privacy

JUDGMENT

Yunusova and  Yunusov v. Azerbaijan  16.07.202  (no. 2) (app. no. 68817/14)

see here

SUMMARY

Defenders of Human Rights and heaps of violations against them. Protection from the Court.

The applicants are activists, members of NGOs that aim to promote dialogue between civil society. They had been summoned as witnesses in a third-party trial and because they did not show up, they were arrested at the airport while trying to leave the country where they lived. They were temporarily detained for no good reason, their passports were confiscated, the first applicant was forced to use the toilet in the presence of a male police officer, their residence and NGO offices were searched, they were accused by the Public Prosecutor’s Office of serious crimes before being tried, the right to appeal against unlawful pre-trial detention and were deprived of their representation by a lawyer.

Arrest for non-witness testimony. The ECtHR recalled that the arrest of a person who is obliged to testify as a witness must be based on a court decision, and held that in the absence of a court or investigator decision, the applicants’ arrest and deprivation of liberty violated Article 5 par 1 of the ECHR.

Temporary reservation. The ECtHR found that they had been arrested and remanded in custody at a later date on suspicion of having committed serious offenses without just cause, and held that they had been deprived of their liberty for no apparent reason, thus violating Article 5 § 1 and 3 of the ECHR.

Evidence of innocence. Statements by the Public Prosecutor’s Office, which presented the applicants as guilty before their guilt was proven, violated the presumption of innocence according to which no one is guilty before the guilt is proven according to the law. Violation of article 6 par. 2.

Privacy, toilet use and luggage control. With regard to the baggage check, the home search, the search of the club’s offices and the degrading intervention in the applicant’s private sphere who was forced to use the toilet in the presence of a male police officer, while they had not been found guilty of any crime, the ECtHR gross violation of Article 8 of the Convention,

Right to property and freezing of bank accounts. Respectively, the freezing of bank accounts without prior conviction for fraud and abuse of power, violated the right to property (Article 1 of the First Additional Protocol).

The ECtHR also found that the applicants did not have the means to appeal against the seizure of passports and the seizure of bank accounts and therefore found a violation of Article 13 of the ECHR in conjunction with Article 1 of the MAGP and Article 2 of the 4th Additional Protocol,

In addition, the ECtHR found that the authorities’ actions were due to inappropriate reasons, namely to obstruct the work of NGOs, and found that there was a violation of Article 18 of the ECHR and

Finally, the ECtHR found that Article 34 of the ECHR had been infringed because the applicants had been prevented from contacting their lawyer, who had been suspended.

The ECtHR for the above violations awarded monetary satisfaction in the amount of 20,000 euros to each of the applicants.

PROVISIONS

Article 5§1 and 5§4

Article 6§2,

Article 8,

Article  1 of the First Additional Protocol

Article 13,

Article 18,

Article 34

PRINCIPAL FACTS

The case concerned two Azerbaijani nationals, Leyla Islam gizi Yunusova, a well-known human rights
defender and her husband, Arif Seyfulla oglu Yunusov. The applicants are currently living in the
Netherlands. They complained in particular about their arrest and pre-trial detention in Azerbaijan in
2014, alleging that the measures taken against them had been in retaliation for their activism and
criticism of the Government.

At the time the first applicant was the director of an association, the Institute for Peace and
Democracy (“the Association”), a non-governmental organisation, and the second applicant was the
Association’s Head of Department. They had been involved since 2002 in joint projects with their
Armenian counterparts aimed at promoting dialogue between civil societies.

In the context of criminal proceedings brought against a journalist for spying, the applicants were
stopped on 28 April 2014 on trying to leave the country at the airport and escorted to their flat for
questioning. The first applicant was allowed to leave at midnight after searches were carried out of
the flat and the Association’s office. Her husband had in the meantime been taken to hospital with
hypertension.

The applicants subsequently brought a series of court proceedings to complain about this incident.
They complained about the unlawfulness of the search of their luggage and handbags at the airport,
the seizure of their passports, the searches of their flat and office and about being deprived of their
liberty. They also alleged that they had been verbally abused and threatened with rape when
escorted by car from the airport and that a police officer had insisted on being present when the
first applicant had had to go to the toilet during the search at the flat. Lastly, they brought
proceedings concerning the freezing of their bank accounts. The courts either dismissed or refused
to admit the applicants’ claims.

The applicants were also arrested and placed in pre-trial detention in July and August 2014,
respectively, on charges of high treason, as well as various other charges in relation to alleged
financial irregularities, such as illegal entrepreneurship and large-scale tax evasion. The prosecuting
authorities had initiated a criminal case against the applicants in April 2014 for setting up their joint
projects as a cover-up for cooperating with the Armenian secret services, and of failing to register
grants they had received through other NGOs.

They challenged their detention before the domestic courts, arguing that there was no evidence in
support of the accusations, to no avail.

They were convicted in August 2015 and sentenced to eight and a half and seven years’
imprisonment. The sentences were commuted to five years’ imprisonment suspended on probation
in December 2015 and the first applicant was released. Her husband had been released in the
meantime owing to his poor state of health. The applicants’ criminal trial is the subject of a separate
application (no. 51984/19) with the European Court.

Relying in particular on Article 5 §§ 1 and 4 (right to liberty and security / right to have lawfulness of
detention decided speedily by a court) of the European Convention on Human Rights, the applicants
complained that they had been deprived of their liberty unlawfully from 28 to 29 April 2014, without
effective judicial review, and alleged that their arrest and detention during the criminal proceedings
against them had neither been based on a reasonable suspicion nor been justified.

Further relying on Article 6 § 2 (presumption of innocence), they alleged that a joint press statement
published by the law-enforcement authorities about their criminal case left no doubt that they had
committed the crimes with which they were charged.

They also made a number of other complaints under Article 8 (right to respect for private and family
life and the home) and Article 2 of Protocol No. 4 (freedom of movement) about the inspection of
their baggage at the airport and searches of their home and office, resulting in the seizure of various
objects and documents, including their passports, and of being prevented from leaving the country;
and, under Article 1 of Protocol No. 1 (protection of property) about the freezing of their bank
accounts. They complained under Article 13 (right to an effective remedy) that they had had no
effective remedy to challenge the seizure of their passports, being prevented from leaving the
country and the freezing of their bank accounts.

Lastly, they alleged under Article 18 (limitation on use of restrictions on rights) that their arrest and
pre-trial detention had been to punish and silence them as human rights defenders and civil society
activists. They alleged a breach of their rights under Article 34 (right to individual petition) because
they could not meet with their lawyer while in prison as he had been suspended from the bar
pending disciplinary proceedings against him

THE DECISION OF THE COURT…

Article 6 § 2 – Presumption of innocence

The applicants complained under Article 6 § 2 of the Convention that the joint press release of the Attorney General and the Ministry of National Security violated their right to a presumption of innocence. The Court reiterated that the presumption of innocence could be violated if a court decision or a civil servant statement about a person charged with a criminal offense reflects the view that he is guilty before he is found guilty under the law.

The Court considered that the statement, which was assessed as a whole, was not made with the necessary discretion and diligence. The first allegation of a reasonable suspicion was made only in relation to one of the episodes attributed to the first applicant in terms of “abuse of trust” as opposed to other episodes involving both applicants, which were presented in the statement as proven facts. Furthermore, the reference to the applicants’ suspicion was not mentioned at the beginning of the statement, so that an outside reader could understand that the applicants were merely suspected of having committed these crimes, but referred to the end of the statement when a reader had already the applicants committed these crimes. Thus, the overall manner in which the statement was made gave the impression that the applicants had been found guilty before being proved in accordance with the law.

Therefore, there was a violation of the presumption of innocence (Article 6 § 2 of the ECHR).

Article 8 and use of toilet

The first applicant complained under Article 8 that while using the toilet, a male officer had broken into the room. In the present case, the Court notes that, in the internal proceedings brought by the applicants, they submitted to the national courts a list of Internet addresses where the video recordings of the events were published. It was not established by the national court rulings that the examination of these videotapes was excluded or that the latter were inadmissible for any other procedural reason. The rulings of the national courts were completely silent in this regard.

Therefore, in the light of the parties’ submissions and the material available, the Court found that a male officer had invaded the toilet while the first applicant was using the toilet for her own physical use. This clearly infringed the applicant ‘s right to respect for her private life and could not be considered “necessary in a democratic society”.

There has therefore been a breach of the right to privacy (Article 8 of the ECHR).

Violation of Article 8 as regards baggage control

The Court reiterated that the main purpose and purpose of Article 8 of the Convention is to protect the individual from arbitrary interference by public authorities, and the exceptions to the individual’s right to respect for his private and family life, his asylum and residence. of his correspondence referred to in Article 8 (2) must be interpreted strictly. The list of exceptions as referred to in Article 8 § 2 is exhaustive and their definition is restrictive.

In this context, as regards the control of the applicants’ assets at the airport, the Court considered it important to emphasize that this measure was not carried out in the context of customs controls on “goods” or in the context of criminal proceedings against a third party.

Furthermore, the Court could not ignore the fact that several days before the applicants were arrested at the airport and investigated by the authorities, criminal proceedings were instituted for alleged irregularities in the financial activities of certain NGOs, after which a number of whose offices and facilities were also searched. Therefore, in view of the specific context of the present case and the lack of specific reasons set out in either domestic law or the Convention justifying such measures, the Court found that the Government had failed to show convincingly that the authorities had been guided by legitimate objectives in based on the investigation of the criminal case against the applicant and the protection of national security.

There has therefore been a violation of Article 8 of the ECHR.

Article 5§1

The Court notes at the outset that the Government may be understood as arguing that the measures taken against the applicants did not amount to deprivation of liberty. Howeverit has not been disputed by the Government that throughout the events in question the applicants were under the exclusive control of the authorities and were not free in their movement. Specifically, both applicants were stopped at the airport at about 10.30 p.m. on 28 April 2014. The second applicant was under the control of the authorities until the moment of his hospitalisation during the night of 28 to 29 April 2014 while the first applicant was allowed to leave following the searches carried out in her apartment and the Associationoffice at about midnight on 29 April 2014 In this connection, the Court reiterates that in order to determine whether there has been a deprivation of liberty within the meaning of Article 5, the context in which action was taken is an important factor to be taken into account. Where a passenger has been stopped by border officials at border control in an airport in order to clarify his or her situation and where this detention has not exceeded the time strictly necessary to comply with the relevant formalities, no issue arises under Article 5 of the ConventionBy contrast, in the present case the applicants were not stopped in the context of security checks to be carried out prior to admission to an aircraft, but were obliged to accompany the police for the purpose of questioning as witnesses in the context of the criminal proceedings against a third partyThus, having regard to the fact that the restriction of the applicants freedom of movement lasted for many hours, excluded any possibility for them to leave and served the purpose of bringing them for questioning, the Court concludes that the applicants were deprived of their liberty within the meaning of Article 5 § 1 

Detention may be authorised under the second limb of Article 5 § 1 (b) in order to “secure the fulfilment of any obligation prescribed by law”. This concerns cases where the law permits the detention of a person to compel him or her to fulfil a specific and concrete obligation already incumbent on him or her, and which he or she has until then failed to satisfy. In order to be covered by Article 5 § 1 (b), an arrest and detention must also be aimed at or directly contribute to securing the fulfilment of that obligation and not be punitive in character 

Turning to the present case, the Court notes that the Government argued that the applicants had failed to appear before the investigating officer for questioning, which was not disputed by the applicants. In this connection, the Court reiterates that the statutory obligation to give evidence as a witness could be regarded as sufficiently specific and concrete for the purposes of Article 5 § 1 

In the present case the procedure under Article 178 of the CCrP, of which the applicants were warned in the summonses served on them, provides that bringing a person by force with a view to conducting an investigative measure with his or her participation must be carried out in accordance with a reasoned decision of an investigating body or a court. However, it does not appear that there was a decision taken in this context ordering the applicants escort for questioningThe Government has not argued otherwise. In these circumstances, the applicants deprivation of liberty cannot be deemed as “lawful” within the meaning of Article 5 § 1.

There has accordingly been a violation of Article 5 § 1 of the Convention on account of the applicants deprivation of liberty from 28 to 29 April 2014.

Alleged breach of Article 5 §§ 1 and 3 of the Convention on account of the lack of reasonable suspicion and the domestic courts failure to give relevant and sufficient reasons for the applicants continued detention between 30 July 2014 and an unspecified date in 2015

In the light of these principles, the Courts task is to satisfy itself that the applicants arrest and pre-trial detention were based on a reasonable suspicion that they had committed the offences of which they were accusedThe Court observes that the applicants arrest and pre-trial detention were based on charges relating to two separate sets of facts attributed to them: the first set of facts formed the basis for the charge of high treason, while the second one concerned various charges in relation to the grants received by the applicants through NGOsIn order to assess the existence of a reasonable suspicion for the applicants arrest and detention, the Court will proceed to examine the facts giving rise to the above charges in turn.

In this connection, the Court notes that the applicants consistently claimed before the domestic courts and this Court that the authorities had failed to produce any evidence in support of the suspicion that they had committed this offence. The Government argued on the contrary that this accusation [had been] supported by evidence collected during the criminal investigation. Howeverthe Court notes that unspecified evidence referred to by the Government did not appear in the material available before it, either in the official documents of the prosecuting authorities or the decisions of the domestic courts .

Having regard to the above, the Court finds that there is nothing in the material before it that would satisfy an objective observer to conclude that the applicants may have committed these acts. The Court therefore concludes that it has not been demonstrated that during the period under consideration the applicants were deprived of their liberty on a “reasonable suspicion” of having committed the criminal offence of high treason.

As regards the charges related to receipt and operation of grants by the first applicant and their misuse by both applicants, the Court observes that the charges brought against the applicants in relation to the grants received through NGOs are similar to large extent to those against the applicant in the case of Rasul Jafarov (cited above, §§ 16 and 30). Notably, as far as the charges of illegal entrepreneurship and large-scale tax evasion are concerned, the misconduct attributed to the first applicant stemmed from the failure to register grants received through NGOsThis failure, in the authorities view, resulted in de facto commercial activity.

Taking into account the above considerations and the case law of the Court on the matter, it concluded that during the period between 30.07.2014 and an unspecified date of 2015, the applicants were deprived of their liberty due to a “reasonable suspicion” that they had committed a criminal offense.

Consequently, there has been a violation of Article 5 § 1 of the Convention.

Alleged breach of Article 5 § 4 of the Convention on account of the lack of an effective judicial review of the lawfulness of the applicants detention

In the light of its case-law, the Court considers that the applicants were not given adequate judicial review of the lawfulness of their detention. Consequently, there has been a violation of Article 5 § 4 of the Convention.

Article 1 of the First Additional Protocol 

The Court observes that the applicants’ bank accounts were frozen in a criminal case against a third party. However, it does not appear that such a reasoned decision was taken in the present case, either by a court or by an investigator, which would have demonstrated the existence of reasonable grounds for freezing the applicants’ bank accounts.

Therefore, there was a violation of the right to respect for their property (Article 1 of the First Additional Protocol to the Convention).

Article 13 in conjunction with Article 1 of the First Additional Protocol and Article 2 of the Fourth Additional Protocol

The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy for enforcing the substance of the Convention’s rights and freedoms in any form that may occur.

In this context, the Court noted that the domestic courts refused to consider the merits of the applicants’ complaints concerning the seizure of their passports and the seizure of their bank accounts, as such actions by the investigating authorities were not subject to judicial review.

In the light of the foregoing, the Court concluded that the applicants had not had an effective remedy in respect of their complaints under Article 1 of the First Additional Protocol and Article 2 of Protocol No. 4. There has therefore been a violation of Article 13 of the Convention in conjunction with Article 1 of the First Additional Protocl  and Article 2 of Protocol No. 4.

Article 18

The Court notes at the outset that it has already found that the applicants arrest and pre-trial detention between 30 July 2014 and an unspecified date in 2015 were not carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention, as the charges against them were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention. Therefore, no issue arises in the present case with respect to a plurality of purposes, where a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention

The Court found that the applicants had been charged with serious criminal offenses, the basic elements of which could not be established in the existing facts.

The Court noted that the applicants’ arrest was accompanied by stigmatized statements by civil servants against local NGOs and their members, who were described as “traitors”.

The Court also noted that the general context of increasingly stringent and restrictive legislation on the activities and funding of NGOs could not simply be ignored in a case such as the present, and that the applicants’ situation should be considered in the context of arrests of other notables. civil society activists and human rights defenders who have been detained and largely charged with similar crimes.

Thus, all the above circumstances show that the actions of the authorities were due to inappropriate reasons and the real purpose of the measures in question was the silence and punishment of the applicants for the activities of the NGOs.

There has accordingly been a violation of Article 18 of the Convention in conjunction with Article 5.

Article 34

The applicants complained that the suspension of their lawyer’s leave and the inability to meet with him while he was in prison amounted to a violation of his right of individual appeal under Article 34 of the Convention. The Court found that the defendant had not complied with its obligations under Article 34 of the Convention.

The Court therefore found that the respondent State had failed to fulfill its obligations under Article 34 of the Convention.

Just satisfaction: 20,000 euros (EUR) each to Ms Yunusova and Mr Yunusov in respect of pecuniary
and non-pecuniary damage, and EUR 11,438 to them jointly in respect of costs and expenses


ECHRCaseLaw

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