The public prosecutor’s statement of guilt violated the presumption of innocence. Prohibition of communication of a detainee with relatives. Violation of privacy

JUDGMENT

Mirgadirov v. Azerbaijan and Turkey 17.09.2020  (app. no.  62775/14)

see here 

SUMMARY

Judicial review of the legality of temporary detention, presumption of innocence and the right to respect for the privacy of a detainee.

The applicant, a political journalist and political analyst, was arrested and detained on his way back to his country of origin, Azerbaijan, after being deported from Turkey.

He was accused of high treason for allegedly providing secret information to Armenian agents. He was sentenced to 6 years in prison.

He was remanded in custody for 16 hours without a court order. During his detention, he was not allowed to have contact with his family other than his lawyer. The Prosecutor made a public statement in July 2014 from which he left the impression without a doubt that he was convinced that the applicant had committed the crime of treason.

The applicant lodged a complaint against the two States, alleging breach of the right to personal liberty and security, breach of privacy and the presumption of innocence.

As regards the action against Azerbaijan:

(a) The ECtHR considered that the Government of Azerbaijan had failed to present any material that met the minimum standard and would convince an objective observer that the applicant might have committed a criminal offense and concluded that there had been a violation of Article 5§1 (c) . He was also remanded in custody without a court order. The ECtHR found a violation of Article 5§1,

(b) The ECtHR also found that the domestic courts had not made a real assessment of the “legality” of his detention and had not responded to any of the applicant’s alleged allegations. It therefore found a violation of Article 5 § 4,

c) He also found a violation of the presumption of innocence (Article 6§2) due to the statements of the Prosecutor which essentially named him as guilty, and

d) Finally, he found a violation of respect for his privacy (Article 8) due to the ban on communication with the outside world while he was in detention.

The action against Turkey:

Strasbourg considered the allegations concerning Turkey unacceptable due to the non-exhaustion of domestic remedies.

PROVISIONS

Article 5§1 and 5§1(c)

Article 5§3,

Article 5§4,

Article 6§2,

Article 8

PRINCIPAL FACTS

The applicant, Rauf Habibula oglu Mirgadirov, is an Azerbaijani national born in 1961. He currently
lives in Thalwil, Switzerland.

While the applicant, a well-known journalist, was working as a correspondent for an Azerbaijani
newspaper in Turkey, the Turkish authorities in April 2014 withdrew his press accreditation and
residence permit and eventually deported him to his home country.

On arrival in Baku airport he was placed under arrest by agents of the Azerbaijani Ministry of
National Security (“the MNS”). Two days later he was charged with high treason for allegedly
providing secret information to Armenian agents.

He was held in detention pending trial from April 2014 until his conviction in December 2015 by the
Baku Court of Serious Crimes, which sentenced him to six years’ imprisonment. In March 2016 the
Baku Court of Appeal suspended the sentence for five years and he was released the same day.

While in pre-trial detention various restrictions were placed on the applicant, including the right to
use the telephone, and to meet or correspond with anyone other than his lawyers. The domestic
courts rejected his appeals against his pre-trial detention and the restrictions.

In July 2014 the MNS and the Prosecutor General’s Office issued a statement which stated, among
other things, that the applicant had supplied various pieces of information relating to Azerbaijan’s
security to a former Minister of National Security of Armenia.

THE DECISION OF THE COURT…

Complaints against Azerbaijan

Article 5 §§ 1 and 3

The Court noted that the applicant had been charged with high treason after meeting L.B., who
according to the authorities was an agent of the Armenian intelligence services, and other people on
various dates in 2008 and 2009. Those meetings had taken place within the framework of
international conferences in which the applicant had participated as a political analyst and journalist.

The Azerbaijani Government had submitted that he had been detained on a reasonable suspicion of
having committed a criminal offence, as corroborated by information and evidence, including
video-recordings of his meetings with representatives of foreign intelligence services and his receipt
of money from them. The Government had also referred to procedural decisions which had shown
that the prosecuting authorities had relevant information and had submitted it to the courts.

However, the Court noted that the applicant had not been charged with high treason because of his
meetings with L.B. and others, but because of his alleged espionage in providing foreign intelligence
services with information collected at their request, along with photographs and technical drawings.

THE DECISION OF THE COURT…

The Azerbaijani Government had also referred in a general way to information and evidence which
allegedly corroborated the existence of a reasonable suspicion against the applicant of high treason,
without specifying the content of that information and evidence. The only particular pieces of
evidence to which the Government had expressly referred were the video-recordings and the
alleged receipt of money. However, it did not appear from the first court decision on the applicant’s
detention in April 2014 or any subsequent decision on that question that any video-recording had
been submitted to the courts as their decisions had not referred to that kind of material.

In addition, the Government had not demonstrated that the requirements set down in a decision of
the Plenum of the Supreme Court of 3 November 2009 for courts to subject prosecuting authorities’
applications for remand decisions to close scrutiny had been taken into account.

Furthermore, none of the court decisions extending the applicant’s pre-trial detention had referred
to the alleged new fact of Internet correspondence between the applicant and L.B. as confirmation
of a reasonable suspicion of high treason. The Azerbaijani Government had also failed, even in the
proceedings before the Court, to present any material that would satisfy an objective observer that
the applicant might have committed a criminal offence.

The Court concluded that the material put before it had not met the minimum standard set by
Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual’s
arrest and continued detention and there had been a violation of that provision. Given that finding,
it did not consider it necessary to examine separately the complaint under Article 5 § 3.

It was also clear from the case file that the applicant had been detained for 16 hours, from midnight
on 19 November to 4 p.m. on 20 November 2014, without any judicial order authorising his
detention. The detention had thus been unlawful and had violated Article 5 § 1.

Article 5 § 4

The applicant submitted that the domestic courts had failed to respond to any of the relevant
arguments against detention that he had repeatedly raised. His lawyers had also not been informed
of a district court hearing on 20 November 2014. The Government rejected those allegations.

The Court noted that the courts had used short, vague and stereotyped formulae for rejecting the
applicant’s complaints about his pre-trial detention, limiting their role to the automatic
endorsement of the prosecution’s applications. They had not therefore conducted a genuine review
of the “lawfulness” of his detention and there had been a violation of Article 5 § 4. It did not
consider it necessary to examine separately the complaint about the November 2014 hearing.

Article 6 § 2

The Court held that the statement released in July 2014 by the MNS and the prosecutor’s office had
not been made with the necessary discretion and circumspection and that the overall way it had
bene formulated had left the reader in no doubt that the applicant had committed the criminal
offence of high treason. There had thus been a violation of Article 6 § 2 of the Convention.

Article 8

The applicant relied on Article 8 and Article 10 in his complaint about the restrictions placed on him
in pre-trial detention, but the Court dealt with the issues raised only under Article 8.
It first found that the interference with the applicant’s right to receive and subscribe to
socio-political newspapers or magazines was not in accordance with the law within the meaning of
paragraph 2 of Article 8.

The measures had also amounted de facto to an outright ban on him having any contact (meetings,telephone calls or correspondence) with the outside world, except for with his lawyers. Neither the investigator who had asked for the restrictions nor the courts had put forward any relevant justification to support such harsh and all-encompassing measures. The Government had also failed
to submit any relevant explanation for why it had been necessary to separate the applicant from his
family and the outside world.

The Court concluded that the reasons given by the domestic authorities in support of the restriction
of the applicant’s rights were not relevant and sufficient and there had been a violation of Article 8.

Article 18 in conjunction with Article 5

The applicant submitted that the restrictions imposed on him had been linked to his work as a
journalist and political analyst. The Azerbaijani Government submitted that the restrictions had not
been applied for any purpose other than one envisaged by Article 5.

The Court observed that the applicant had complained briefly and in a general way that the
restrictions in question had been applied by the Azerbaijani Government with the intention of
isolating him, as a journalist and political analyst, from his professional activity. However, he had
failed to specify what in his work could have been behind the restrictions placed on him.

Having regard to the applicant’s submissions and all the material in its possession, the Court could
not find beyond reasonable doubt that his arrest and detention had pursued any ulterior purpose.
There had accordingly been no violation of Article 18 taken in conjunction with Article 5.

Complaints against Turkey

Article 5 and Article 10

The Court found that the applicant’s complaints under Article 5 §§ 1, 2, 3 and 4 were either
inadmissible (under Article 5 § 3), that an examination was not required (Article 5 § 4), or that he
had not exhausted domestic remedies (complaints under Article 5 §§ 1 and 2 and Article 10).

Just satisfaction (Article 41)

The Court held that Azerbaijan was to pay the applicant 20,000 euros (EUR) in respect of
non-pecuniary damage.


ECHRCaseLaw

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