I correctly predicted that there was a violation of human rights in RASHAD HASANOV v. AZERBAIJAN.

Information

  • Judgment date: 2016-10-11
  • Communication date: 2015-12-14
  • Application number(s): 48653/13
  • Country:   AZE
  • Relevant ECHR article(s): 5, 5-1-c, 5-3, 18
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.899274
  • Prediction: Violation

  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Rashad Hasanov, is an Azerbaijani national, who was born in 1982 and lives in Baku.
He is represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A.
Institution of criminal proceedings against the applicant and his remand in custody The applicant is a well-known civil society activist.
He is a board member and one of the co-founders of NIDA civic movement (“NIDA”), a non-governmental organisation established in 2011.
The applicant and other members of NIDA actively participated in the demonstrations held in Baku in January and March 2013 to protest against death of soldiers in the Azerbaijani Army.
At around 2 p.m. on 14 March 2013 the applicant was arrested by agents of the Ministry of National Security (“the MNS”) and was taken to the Serious Crimes Department of the Prosecutor General’s Office.
He was not informed of the reasons for his arrest during his arrest.
According to the applicant, at around 3 p.m. on 14 March 2013 the investigator in charge of the case contacted a lawyer of the applicant’s choosing and invited him to provide the applicant with legal assistance.
The lawyer expressed his intention to defend the applicant’s rights, but informed the investigator that he could not assist the applicant at that moment because of his workload.
The lawyer noted that he would join the investigator later and asked him not to conduct investigative actions until his arrival.
It appears from the documents in the case file that a few hours after his arrest the applicant was brought before a judge of the Nasimi District Court who ordered the applicant’s detention for a period of three months.
The judge justified the applicant’s detention pending trial by the gravity of the charges and the likelihood that if released the applicant might abscond from and obstruct the investigation.
She further held that the applicant had absconded from the investigation until his arrest on 14 March 2013.
In this connection, the judge noted that the applicant was wanted by the police because he was charged by the investigator’s decision of 10 March 2013 with the criminal offence of illegal possession of weapons (Molotov cocktails) under Article 228.3 of the Criminal Code.
The applicant was represented by a State-appointed lawyer at the hearing before the Nasimi District Court.
On 18 March 2013 the applicant appealed against this decision, claiming that his detention was unlawful.
He complained that the first-instance court failed to justify his detention pending trial.
As regards the court’s argument that he had been wanted since 10 March 2013, the applicant noted that he had never been informed of the investigator’s decision of 10 March 2013 charging him with the criminal offence of illegal possession of weapons.
In this connection, he pointed out that between 10 and 14 March 2013 he had not gone into hiding and had actively participated in the political life of the country, giving an interview to a newspaper and participating in the gathering of a political movement.
On 19 March 2013 the Baku Court of Appeal dismissed the applicant’s appeal, finding that the first-instance court’s decision was justified.
The appellate court’s decision was silent as to the applicant’s submissions that he had not absconded from the investigation between 10 and 14 March 2013.
B.
Extension of the applicant’s pre-trial detention On 26 April 2013 the applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention.
He claimed, in particular, that there was no ground for his continued detention pending trial.
On 27 April 2013 the Nasimi District Court dismissed the request, finding that there was no need to change the preventive measure of remand in custody.
On 3 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision.
On 30 May 2013 the Nasimi District Court extended the applicant’s detention pending trial until 3 September 2013.
The court substantiated the necessity of the extension of the applicant’s detention pending trial by the complexity of the case, the gravity of the charges, and the likelihood that if released the applicant might abscond from and obstruct the investigation by influencing persons participating in the criminal proceedings.
On 3 June 2013 the applicant appealed against this decision.
He complained, in particular, that there was no evidence that he had committed any criminal offence and that the first-instance court had failed to justify the extension of his detention pending trial.
On 6 June 2013 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the Nasimi District Court’s decision of 30 May 2013.
COMPLAINTS The applicant complains under Article 5 § 1 of the Convention that his arrest and detention were unlawful because there was no reasonable suspicion that he had committed a criminal offence.
He further complains under Article 5 § 3 of the Convention that the domestic courts failed to justify his detention pending trial and that there were no relevant and sufficient reasons for his continued detention.

Judgment

THIRD SECTION

CASE OF PLOTNIKOV v. RUSSIA

(Application no. 22727/08)

JUDGMENT

STRASBOURG

11 October 2016

This judgment is final but it may be subject to editorial revision. In the case of Plotnikov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 20 September 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 22727/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksey Nikolayevich Plotnikov (“the applicant”), on 5 April 2008. 2. The applicant was represented by Mr Y. Kruchinin, a lawyer practising in Cheboksary. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. On 3 November 2011 the complaint concerning the length of the applicant’s pre-trial detention was communicated to the Government. THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1960 and lived, prior to arrest and conviction, in Cheboksary. 5. On 27 January 2004 the applicant was arrested. He remained in custody pending investigation and trial. 6. On 7 October 2005 the Leninskiy District Court of Cheboksary convicted the applicant of fraud and sentenced him to six years and nine months’ imprisonment. 7. On 13 December 2005 the Supreme Court of the Chuvash Republic upheld his conviction on appeal. The court reduced the applicant’s sentence to five years and ten months. 8. On 22 June 2007 the Presidium of the Supreme Court of the Chuvash Republic quashed the judgments of 7 October and 13 December 2005 and remitted the case for a fresh examination. The applicant was remanded in custody. 9. On 11 July 2007 the Leninskiy District Court ordered the applicant to stay in prison pending trial. 10. On 22 November 2007 the Leninskiy District Court extended the applicant’s pre-trial detention, having noted that:
“... Taking into account the seriousness of the charges against [the applicant], his health condition, personal profile, a possibility that he might abscond, the court considers that the previous measure of restraint should remain unchanged ...”
11. On 5 February 2008 the Supreme Court of the Chuvash Republic upheld this decision on appeal. 12. By decision of 24 December 2007, as upheld on appeal, the Leninskiy District Court extended the applicant’s pre-trial detention for three months. Having heard the parties, the court ruled that:
“... As it can be seen from the case file, [the applicant] has been accused of a serious crime, which is punishable with an imprisonment exceeding two years. The grounds, which were used to put him in custody ..., have not ceased to apply. Being at large, [the applicant] may abscond and continue his criminal activity...”
13. On 27 March 2008 the Leninskiy District Court convicted the applicant of fraud and sentenced him to five years and ten months’ imprisonment. 14. On 1 July 2008 the Supreme Court of the Chuvash Republic upheld his conviction appeal. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
15. The applicant complained that the duration of his pre-trial detention had been excessive and therefore in breach of Article 5 § 3 of the Convention, which reads 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.”
16. The Government contested that argument, stating that the courts had given relevant and sufficient reasons for the applicant’s pre-trial detention. A. Admissibility
17. The Court observes that in the present case the applicant’s pre-trial detention comprised two distinct periods: (1) from 27 January 2004, when the applicant was arrested, to 7 October 2005, when he was convicted, and (2) from 22 June 2007, when the Presidium of the of the Supreme Court quashed the judgments in his case, to his conviction on 27 March 2008. In between those two periods the applicant’s first conviction became final, when upheld by the appellate court, and the applicant, for about two years, served a prison sentence. 18. The Court finds that the fact that the applicant’s first conviction became final once upheld on appeal and he started serving a prison sentence had the effect of triggering the application of the six-month rule (see Nasakin v. Russia, no. 22735/05, §§ 81 – 85, 18 July 2013). 19. Accordingly, the applicant’s complaint with regard to the detention period from 27 January 2004 to 7 October 2005 should be declared inadmissible as being lodged out of time. However, the fact that an applicant has already spent time in custody pending the same set of criminal proceedings, should, in a given case, be taken into account by the Court in its assessment of the sufficiency and relevance of the grounds justifying the subsequent period of pre-trial detention, which the Court is competent to examine (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 130, 22 May 2012). 20. In the circumstances of the present case, the Court considers that the applicant’s complaint under Article 5 § 3 of the Convention in respect of his detention from 22 June 2007 to 27 March 2008 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. As it is not inadmissible on any other grounds, the Court declares it admissible. B. Merits
21. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention, relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many other examples, Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012; Romanova v. Russia, no. 23215/02, 11 October 2011; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Makarenko v. Russia, no. 5962/03, 22 December 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Belov v. Russia, no. 22053/02, 3 July 2008; and Shukhardin v. Russia, no. 65734/01, 28 June 2007). 22. Turning to the circumstances of the present case, the Court notes that there is no reason to arrive at a different finding. The applicant spent in pre‐trial detention nine months and five days on the ground of detention orders with stereotyped reasoning or no reasoning at all. These reasons, although “relevant”, cannot be regarded as “sufficient”. In these circumstances, it is not necessary to examine whether the proceedings were conducted with “special diligence”. 23. There has accordingly been a violation of Article 5 § 3 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
24. The applicant complained about conditions of detention and transport, unfairness and the outcome of criminal proceedings against him. He referred to Articles 3 and 6 of the Convention. 25. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
26. 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
27. The applicant claimed 100,000 euros (EUR) as just satisfaction. 28. The Government considered the applicant’s claims excessive and incompatible with the Court’s case-law. 29. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this sum. B. Costs and expenses
30. The applicant did not claim any costs or expenses. C. Default interest
31. 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 complaint concerning the excessive duration of pre-trial detention from 22 June 2007 to 27 March 2008 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
(a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident