I correctly predicted that there was a violation of human rights in ALIYEV v. AZERBAIJAN.
Information
- Judgment date: 2017-05-04
- Communication date: 2014-11-19
- Application number(s): 68762/14
- Country: AZE
- Relevant ECHR article(s): 5, 5-1-c, 5-3, 5-4, 8, 8-1, 11, 11-1, 18
- Conclusion:
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture
Degrading treatment) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.92064
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
The applicant, Mr Intigam Kamil oglu Aliyev, is an Azerbaijani national, who was born in 1962 and lives in Saray.
He is represented before the Court by Ms R. Remezaite and Mr J. Javadov, lawyers practising, respectively, in London and 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 human rights advocate and civil society activist.
He is the chairman of the Legal Education Association (“the Association”), a non-governmental organisation specialised in legal education.
The Association organised, in particular, trainings for lawyers, human rights defenders and journalists, prepared reports relating to various human rights issues in Azerbaijan and conducted projects relating to the preparation of complaints to the Court.
The applicant is also the representative of the applicants before the Court in about 130 pending cases, dozens of which concern the alleged irregularities in the parliamentary elections of 2010.
On 13 May 2014 the Prosecutor General’s Office instituted criminal proceedings under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of non-governmental organisations, including the Association.
On 7 July 2014 the Sabail District Court ordered a freezing injunction in respect of the applicant’s and the Association’s bank accounts.
On 7 August 2017 the applicant was invited to the Prosecutor General’s Office for questioning as a witness in connection with the above-mentioned criminal proceedings.
The questioning was scheduled for 8 August 2014.
At 9 a.m. on 8 August 2014 the applicant arrived at the premises of the Prosecutor General’s Office.
According to the applicant, his interrogation lasted about thirty minutes during which he was questioned about his biography and family.
Following the end of the interrogation, the investigator issued a decision charging the applicant under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code.
On the same day the Nasimi District Court, 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 court justified the application of the preventive measure of remand in custody by the gravity of the charges and the likelihood that if released he might abscond from the investigation and influence other participants in the criminal proceedings.
On 11 August 2014 the applicant appealed against this decision, claiming that his detention was unlawful.
He stated, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for the application of the preventive measure of remand in custody.
He pointed out in this respect that the court had failed to justify his detention on remand and to take into account his personal circumstances, such as his social and family status, his state of health and his age, when it ordered his remand in custody.
The applicant further complained relying on Article 18 of the Convention that he had been deprived of his liberty because of his activity as a human rights activist.
He submitted in this connection that the actual reason for his arrest was the fact that he represented numerous applicants before the Court in cases relating to election irregularities.
On 13 August 2014 the Baku Court of Appeal dismissed the applicant’s appeal, finding that the first-instance court’s decision was lawful.
B.
Search at the applicant’s home and at the Association’s office On 7 August 2014 the Nasimi District Court ordered a search at the Association’s office and “other places of storage” (digər saxlanc yerləri) relying on the prosecutor’s request in this respect.
On 8 August 2014 the investigator carried out a search at the applicant’s home on the basis of the Nasimi District Court’s decision of 7 August 2014.
According to the search record of 8 August 2014, the search was carried out in the presence of the applicant’s lawyer, members of his family and two attesting witnesses (hal şahidi).
The investigator seized all the documents, computers, USB flash drives and other electronic data storage devices.
On the same day the investigator also carried out a search at the applicant’s brother’s home where the applicant was officially registered as a resident.
On 9 August 2014 the investigator carried out a search at the Association’s office.
It appears from the search record of 9 August 2014 that all the documents found in the office, including the case files and documents relating to the applications pending before the Court and the domestic courts, were taken by the investigator.
On an unspecified date the applicant lodged a complaint with the Nasimi District Court claiming that the searches had been unlawful.
Relying on Article 8 of the Convention, he complained that there had been no legal basis for carrying out the searches.
He also complained that the investigator had failed to register each seized document as required by the relevant law and had taken the documents without making an inventory.
He further complained about the seizure of numerous documents and files relating to the ongoing court proceedings before the Court and the domestic courts.
On 12 September 2014 the Nasimi District Court dismissed the applicant’s claim.
The first-instance court held that the searches had been conducted in accordance with the relevant law.
As to the seizure of the documents relating to the cases pending before the Court and the domestic court, it found that they could not be returned to the applicant at this stage of the proceedings.
On 15 September 2014 the applicant appealed against this decision reiterating his previous complaints.
He asked, in particular, the appellate court to declare the searches unlawful, to order the return of the documents relating to the cases pending before the Court and the domestic courts, and to provide him with a copy of all the seized documents in order to prepare his defence.
On 23 September 2014 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision of 12 September 2014.
C. The applicant’s request for release on bail or replacement of his pre-trial detention by house arrest On 3 September 2014 the applicant lodged a request with the Nasimi District Court asking the court to release him on bail or to place him under house arrest in lieu of being remanded in custody.
He argued that his continued detention was unjustified and that he had been detained because of his activity as a human rights activist.
On 12 September 2014 the Nasimi District Court dismissed the request, finding that there was no need to change the preventive measure of remand in custody.
On 22 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision.
COMPLAINTS 1.
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.
2.
The applicant complains under Article 5 § 3 of the Convention that the domestic courts failed to justify the application of the preventive measure of remand in custody in his respect and that there were no relevant and sufficient reasons for his continued detention.
3.
The applicant complains under Article 5 § 4 of the Convention that the domestic courts failed to address his specific arguments in support of his release.
4.
The applicant complains under Article 8 of the Convention that his right to respect for his private and family life, his home and his correspondence was violated because the search at his home and at the Association’s office, and the seizure of all the documents and electronic items were unlawful.
5.
The applicant complains under Article 11 of the Convention that his right to freedom of association was violated because his arrest and detention were intended to silence him as an NGO activist.
6.
Relying on Article 18 of the Convention, the applicant complains that his Convention rights were restricted for purposes other than those prescribed in the Convention.
In particular, he argued that his deprivation of liberty and the seizure of the files relating to the pending cases before the Court were intended to prevent him from representing numerous applicants before the Court in high-profile cases relating to election irregularities and deprivations of property.
Judgment
THIRD SECTIONCASE OF BIRYUKOV AND OTHERS v. RUSSIA
(Application no. 36006/11 and 8 others - see appended list)
JUDGMENT
STRASBOURG
4 May 2017
This judgment is final but it may be subject to editorial revision. In the case of Biryukov and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Luis López Guerra, President,Dmitry Dedov,Branko Lubarda, judges,and Karen Reid, Section Registrar,
Having deliberated in private on 30 March 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The applications were communicated to the Russian Government (“the Government”). THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. THE LAW
I. JOINDER OF THE APPLICATIONS
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
6. The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‐law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90‐94, ECHR 2000‐XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‐65, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36–40, 7 April 2005). 8. In the leading case of Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate. 10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. REMAINING COMPLAINTS
11. In applications nos. 36006/11, 37211/11, 53965/12, 53969/12, 55356/12 and 74792/12, the applicants submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Sergey Babushkin case (cited above, §§ 38-45). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. 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.”
13. Regard being had to the documents in its possession, to its case‐law and the long delay for some of the applicants in filing the application, the Court considers it reasonable to award the sums indicated in the appended table. 14. 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. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that these applications disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention;
4. Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table);
5. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 4 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Karen ReidLuis López GuerraRegistrarPresident
APPENDIX
List of applications raising complaints under Article 3 of the Convention
(inadequate conditions of detention)
No. Application no.Date of introduction
Applicant name
Date of birth
Representative name and location
Facility
Start and end date
Duration
Sq. m. per inmate
Specific grievances
Other complaints under well‐established case-law
Amount awarded for pecuniary and non‐pecuniary damage and costs and expenses
per applicant
(in euros)[1]
36006/11
12/05/2011
Aleksandr Aleksandrovich Biryukov
18/01/1977
IK-5 Republic of Mordovia
13/03/2009
pending
More than 8 year(s) and 18 day(s)
1.3 m2
No hot water, 4-6 sinks for more than 100 inmates, toilet (holes dug out in the ground) is a separately standing facility, same temperature inside it as outside, low quality of clothes, footgear, coverings, tuberculosis-infected inmates in the dormitory, poor sanitary conditions, rodents, insects, poor quality of food and running water, no ventilation, no access to natural light. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
22,800
37211/11
04/04/2011
(4 applicants)
Rizvan Magomedovich Akhmedov
12/10/1983
Vladimir Nikolayevich Kachayev
01/09/1974
Aram Kamoyevich Gekchan
12/09/1987
Vitaliy Viktorovich Rodin
Maryin Sergey Trofimovich
Saransk
IK-7 Republic of Mordovia
04/04/2011
pending
More than 5 year(s) and 11 month(s) and 27 day(s)
2 m2
One hour of daily outdoor exercises, poor sanitary conditions, poor lighting, high humidity and mould, insects, no drinking water, tuberculosis and hepatitis-infected inmates in the cell
Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
20,000
53965/12
26/06/2012
Sergey Mikhaylovich Kolesnikov
27/07/1981
IK-29 Kirov Region
15/09/2010
pending
More than 6 year(s) and 6 month(s) and 16 day(s)
1.5 m2
Tuberculosis-infected inmates in the dormitory. Toilet outside, with no heating, stench, poor quality of food and running water. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
19,500
53969/12
07/07/2012
Sergey Nikolayevich Ivanov
17/04/1977
IK-29 Kirov Region
15/08/2009 to
22/08/2013
4 year(s) and
8 day(s)
1.8 m2
Tuberculosis-infected inmates in the dormitory. Toilet outside, with no heating, stench, insects. Poor quality of food and running water. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
8,500
55356/12
25/07/2012
Dmitriy Anatolyevich Shatalov
24/05/1973
IK-18 Novosibirsk
24/06/2010 to
24/04/2014
3 year(s) and
10 month(s) and
1 day(s)
1.3 m2
Fewer sleeping places than inmates, 6-7 sinks and 5-6 pans for 140-165 inmates, no hot water, no curtains to separate the lavatory. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
10,300
74792/12
02/11/2012
Vladimir Valeryevich Partionov
16/08/1973
Gordeyeva Margarita Vladimirovna
Astrakhan
IK-1 Rostov Region
15/11/2010
pending
More than 6 year(s) and 4 month(s) and 16 day(s)
1.7 m2
Fewer sleeping places than inmates, sleeping in turns. 5 pans and 5 sinks for 137-152 inmates, no privacy when using lavatory, poor quality of food. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
18,300
76153/12
10/10/2012
Aleksey Nikolayevich Uzilov
17/09/1976
IK-18 Kharp Yamalo-Nenetskiy Autonomous Region
10/08/2012 to
10/09/2012
1 month(s) and
1 day(s)
IK-18 Kharp Yamalo-Nenetskiy Autonomous Region
22/10/2012 to
18/11/2012
28 day(s)
3.2 m2
3.2 m2
No space to move in the cell, 4.5 sq. m. of space for three inmates for outdoor exercise, sub-zero temperature in winter time. The lavatory pan is next to the bed, no partition. No space to move in the cell, 4.5 sq. m. of space for three inmates for outdoor exercise, sub-zero temperature in winter time, the lavatory pan is next to the bed, no partition. 1,400
77937/12
04/12/2012
Ivan Yuryevich Tsymbarevich
19/08/1970
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-4 Kostroma Region
15/07/2012 to
15/04/2013
9 month(s) and
1 day(s)
1.9 m2
Cracks in the walls. High humidity, mould on the walls, rodents, insects, poor lighting, no artificial ventilation, poor quality of water, sanitary conditions, tuberculosis-infected inmates in the dormitory,
insufficient space for outdoor exercise. 4,300
56384/13
15/08/2013
Konstantin Eduardovich Garifullin
19/06/1974
IK-1 Nizhniy Novgorod Region
27/04/2013 to
12/07/2015
2 year(s) and
2 month(s) and
16 day(s)
1.4 m2
Poor sanitary conditions. 4 pans and 5 sinks for 130 inmates, poor lighting, no ventilation, tuberculosis and hepatitis-infected inmates in the dormitory. 8,800
No. Application no.Date of introduction
Applicant name
Date of birth
Representative name and location
Facility
Start and end date
Duration
Sq. m. per inmate
Specific grievances
Other complaints under well‐established case-law
Amount awarded for pecuniary and non‐pecuniary damage and costs and expenses
per applicant
(in euros)[1]
36006/11
12/05/2011
Aleksandr Aleksandrovich Biryukov
18/01/1977
IK-5 Republic of Mordovia
13/03/2009
pending
More than 8 year(s) and 18 day(s)
1.3 m2
No hot water, 4-6 sinks for more than 100 inmates, toilet (holes dug out in the ground) is a separately standing facility, same temperature inside it as outside, low quality of clothes, footgear, coverings, tuberculosis-infected inmates in the dormitory, poor sanitary conditions, rodents, insects, poor quality of food and running water, no ventilation, no access to natural light. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
22,800
37211/11
04/04/2011
(4 applicants)
Rizvan Magomedovich Akhmedov
12/10/1983
Vladimir Nikolayevich Kachayev
01/09/1974
Aram Kamoyevich Gekchan
12/09/1987
Vitaliy Viktorovich Rodin
Maryin Sergey Trofimovich
Saransk
IK-7 Republic of Mordovia
04/04/2011
pending
More than 5 year(s) and 11 month(s) and 27 day(s)
2 m2
One hour of daily outdoor exercises, poor sanitary conditions, poor lighting, high humidity and mould, insects, no drinking water, tuberculosis and hepatitis-infected inmates in the cell
Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
20,000
53965/12
26/06/2012
Sergey Mikhaylovich Kolesnikov
27/07/1981
IK-29 Kirov Region
15/09/2010
pending
More than 6 year(s) and 6 month(s) and 16 day(s)
1.5 m2
Tuberculosis-infected inmates in the dormitory. Toilet outside, with no heating, stench, poor quality of food and running water. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
19,500
53969/12
07/07/2012
Sergey Nikolayevich Ivanov
17/04/1977
IK-29 Kirov Region
15/08/2009 to
22/08/2013
4 year(s) and
8 day(s)
1.8 m2
Tuberculosis-infected inmates in the dormitory. Toilet outside, with no heating, stench, insects. Poor quality of food and running water. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
8,500
55356/12
25/07/2012
Dmitriy Anatolyevich Shatalov
24/05/1973
IK-18 Novosibirsk
24/06/2010 to
24/04/2014
3 year(s) and
10 month(s) and
1 day(s)
1.3 m2
Fewer sleeping places than inmates, 6-7 sinks and 5-6 pans for 140-165 inmates, no hot water, no curtains to separate the lavatory. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
10,300
74792/12
02/11/2012
Vladimir Valeryevich Partionov
16/08/1973
Gordeyeva Margarita Vladimirovna
Astrakhan
IK-1 Rostov Region
15/11/2010
pending
More than 6 year(s) and 4 month(s) and 16 day(s)
1.7 m2
Fewer sleeping places than inmates, sleeping in turns. 5 pans and 5 sinks for 137-152 inmates, no privacy when using lavatory, poor quality of food. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -
18,300
76153/12
10/10/2012
Aleksey Nikolayevich Uzilov
17/09/1976
IK-18 Kharp Yamalo-Nenetskiy Autonomous Region
10/08/2012 to
10/09/2012
1 month(s) and
1 day(s)
IK-18 Kharp Yamalo-Nenetskiy Autonomous Region
22/10/2012 to
18/11/2012
28 day(s)
3.2 m2
3.2 m2
No space to move in the cell, 4.5 sq. m. of space for three inmates for outdoor exercise, sub-zero temperature in winter time. The lavatory pan is next to the bed, no partition. No space to move in the cell, 4.5 sq. m. of space for three inmates for outdoor exercise, sub-zero temperature in winter time, the lavatory pan is next to the bed, no partition. 1,400
77937/12
04/12/2012
Ivan Yuryevich Tsymbarevich
19/08/1970
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-4 Kostroma Region
15/07/2012 to
15/04/2013
9 month(s) and
1 day(s)
1.9 m2
Cracks in the walls. High humidity, mould on the walls, rodents, insects, poor lighting, no artificial ventilation, poor quality of water, sanitary conditions, tuberculosis-infected inmates in the dormitory,
insufficient space for outdoor exercise. 4,300
56384/13
15/08/2013
Konstantin Eduardovich Garifullin
19/06/1974
IK-1 Nizhniy Novgorod Region
27/04/2013 to
12/07/2015
2 year(s) and
2 month(s) and
16 day(s)
1.4 m2
Poor sanitary conditions. 4 pans and 5 sinks for 130 inmates, poor lighting, no ventilation, tuberculosis and hepatitis-infected inmates in the dormitory. 8,800
[1]. Plus any tax that may be chargeable to the applicants.