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FIRST
SECTION
CASE OF SALAYEV v. AZERBAIJAN
(Application
no. 40900/05)
JUDGMENT
STRASBOURG
9
November 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Salayev v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40900/05) against the Republic
of Azerbaijan lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Azerbaijani national,
Mr Eldar Salayev (“the applicant”), on 10 November 2005.
- The
applicant, who had been granted legal aid, was represented by Mr M.
Mustafayev, a lawyer practising in Baku. The Azerbaijani Government
(“the Government”) were represented by their Agent,
Mr Ç. Asgarov.
- The
applicant alleged, in particular, that he had been deprived of his
right to liberty under Article 5 of the Convention, as the period of
his initial detention as a suspect had exceeded the statutory
forty-eight-hour period.
- On
28 November 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1933 and lives in Baku.
- The
applicant was a member and former President of the National Academy
of Sciences of Azerbaijan. He has been awarded a number of Soviet and
Azerbaijani prizes and honours for his scientific achievements in the
fields of physics and mathematics. He was elected to the Supreme
Soviet of the USSR several times and between 1995 and 2000 was a
member of the Milli Mejlis (Parliament) of the Republic of
Azerbaijan.
- At
the time of the events in question the applicant was in retirement.
- On
27 October 2005 the applicant was summoned to the Ministry of
National Security (“the MNS”) as a witness in a criminal
case concerning an attempted coup d'état by several
incumbent and former high-ranking government officials, as well as
the incumbent Ministers of Healthcare and Economic Development and
the self-exiled former Speaker of the Milli Mejlis. The alleged
means by which this attempted coup d'état were to be
accomplished was to overthrow the current Government by organising
mass disorder after the parliamentary elections of 6 November 2005.
A. The circumstances of the applicant's arrest
1. The applicant's version of the events
- At
approximately 10 a.m. on 27 October 2005 the applicant arrived
voluntarily at the MNS building.
- According
to the applicant, he was forcibly kept inside the MNS building after
his arrival there and was not allowed to leave it even for lunch.
During this time he was not allowed to contact his family or a lawyer
of his choosing and he was subsequently provided with a
State-appointed lawyer.
- At
8.15 p.m. the Chief Investigator of the Investigation Department of
the MNS issued a record of the applicant's forty-eight-hour detention
as a suspect (tutma protokolu) in the presence of the
applicant and a State-appointed lawyer. The investigator noted that
the applicant was suspected of the crimes of attempted organisation
of mass disorder and attempted usurpation of state power by force, as
provided by Articles 28, 220 and 278 of the Criminal Code.
- According
to the applicant, he wrote by hand on the second page of the document
that he denied all the accusations. However, his lawyer was given
only a copy of the first page of this two-page document.
2. The Government's version of the events
- The
applicant was summoned to the MNS as a witness within the framework
of a criminal case and he arrived at the MNS building at
approximately 10.45 a.m.
- His
questioning by an investigator began at 11.40 a.m. and lasted until
2.30 p.m. Following this questioning, the investigator decided to
hold a face-to-face confrontation between the applicant and an
accused person in the criminal case in question. This confrontation
began at 5.10 p.m. and continued until 6 p.m. The applicant's
State-appointed lawyer entered the MNS building at 7.57 p.m. and the
record of the applicant's forty-eight-hour detention as a suspect was
issued at 8.15 p.m.
- From
the moment of the applicant's arrival at the MNS building to the end
of the confrontation, there was no restriction on the applicant's
liberty. He was not held in a special room or cell and he was not
prohibited from leaving the MNS building. Moreover, he was in a room
for witnesses in which there was a telephone line and, despite the
investigator's explicit suggestion that he go for lunch after the end
of questioning at approximately 2.30 p.m., the applicant did not want
to go for lunch, noting that he was keeping a religious fast.
B. The application of the preventive measure of remand in custody
in respect of the applicant
- On
29 October 2005, by a decision of the prosecutor of the Prosecutor
General's Office, the applicant was formally charged with criminal
offences under Articles 28, 220.1 and 278 of the Criminal Code.
- On
29 October 2005 at 5.30 p.m. a judge of the Nasimi District Court,
relying on the official charges brought against the applicant and the
prosecutor's request to apply the preventive measure of remand in
custody (həbs
qətimkan tədbiri), remanded the
applicant in custody for a period of three months. The judge gave as
grounds for this measure the gravity of the applicant's alleged
criminal acts and the possibility of his absconding and obstructing
the investigation. The hearing concerning the application of
the preventive measure of remand in custody
was held in the MNS building.
- On
31 October 2005 the applicant appealed against the Nasimi District
Court's decision of 29 October 2005, complaining that he had been
detained as a suspected person for several hours in excess of the
maximum forty-eight-hour period prescribed by law. He further alleged
that the holding of the hearing in the MNS building was a breach of
the relevant law, and that the judge had merely relied on the
prosecution's submissions and had not assessed any evidence
independently in order to establish whether there was a reasonable
suspicion that he had committed a criminal offence. He also noted
that the court had not taken into consideration his age, state of
health and other personal circumstances when it had ordered his
detention.
- On
2 November 2005 the Court of Appeal upheld the Nasimi District
Court's order. The Court of Appeal upheld the applicant's detention,
reiterating the first-instance court's findings
concerning the gravity of the applicant's alleged criminal acts and
the possibility that he would abscond from the investigation.
- On
16 November 2005, at the request of the Prosecutor General's Office,
the Nasimi District Court replaced the applicant's remand in custody
with the preventive measure of police supervision pending trial.
- In
the meantime, as the applicant was suffering from a serious eye
problem, he requested the Prosecutor General's Office to grant him
permission to travel to the USA to receive urgent medical treatment
which was not available in Azerbaijan. By a letter of 15 February
2006 the Prosecutor General's Office informed the applicant that he
was prohibited from leaving Azerbaijan pending trial.
- Following
requests by several well-known scientists from Russia and Azerbaijan
on the applicant's behalf to the Azerbaijani authorities, arguing
that the applicant was at imminent risk of going blind, and asking
the authorities to grant him permission to leave the country to
receive medical treatment, by a letter of 26 May 2006 the Prosecutor
General's Office informed the applicant that he was exceptionally
granted permission to travel abroad for the purposes of receiving
necessary medical treatment.
- By
the time of the most recent communication with the parties no
information had been provided to the Court as to the subsequent
stages of the criminal proceedings against the applicant.
II. RELEVANT DOMESTIC LAW
- A
suspect is a person detained with a view to criminal charges or on
suspicion of committing of an offence or to whom the
preventive measure of remand in custody is applied (Article 90.1
of the Code of Criminal Procedure (“CCrP”)).
A person who is aware of any important circumstances may be summoned
and questioned as a witness by the prosecution during the
investigation and the witness must, inter
alia, participate in the
investigation or other procedural actions at the request of the
prosecuting authority and reply fully and correctly to questions on
all matters known to him (Articles 95.1 and 95.1.4).
- Chapter
XVI of the CCrP deals with, inter alia, arrest on suspicion of
a criminal offence (tutulma; hereinafter also referred to as “initial
detention”, sometimes also referred to as “police
custody”). The following persons, inter alia, may be
subject to arrest: (a) a person suspected of a criminal offence; or
(b) a person to be officially charged with a criminal offence or an
accused person breaching the terms of a preventive measure previously
imposed on him or her (Article 147.1). Arrest and initial detention
may be effected when, inter alia, a suspicion arises that a
person has committed a criminal offence, or there already exists a
relevant decision of the prosecuting authority to charge a person
with a criminal offence (Article 147.2.1).
26. Article
148 of the CCrP concerns arrest of a person on suspision of having
committed a criminal offence (cinayət törətməsinə
şübhə yarandıqda şəxsin tutulması).
A preliminary investigator, investigator or prosecutor may arrest a
person if, inter alia: the person was caught in the process of
committing a criminal offence or at the crime scene immediately after
committing a criminal offence; a victim of the criminal offence or a
witness to it specifically referred to that person as the one who had
committed the offence; or in other circumstances when the person, his
appearance, his belongings, his home or his vehicle bear clearly
visible signs of his having committed a criminal offence (Article
148.2.1).
- Article
148.4 states as follows:
“148.4. In cases stipulated in Articles
148.1and 148.2 of this Code, the arrest can be carried out prior to
institution of the relevant criminal proceedings. If a decision on
institution of criminal proceedings is not issued within twenty-four
hours of the person's arrest, the arrested person must be immediately
released. Even if such a decision is issued, the arrested person may
not be so detained for a period longer than forty-eight hours. Within
forty-eight hours of the moment of his or her arrest the arrested
person must be charged with a criminal offence and, in the event the
prosecutor requests his or her further detention, must be brought
before a court; the court must examine the case without delay and
issue a decision on imposition of the preventive measure of remand in
custody or [the arrested person's] release.”
- According
to Article 153, in order to ensure the rights of the arrested person,
the relevant prosecuting authorities shall carry out the following
actions, inter alia: immediately after the arrest, to inform
the arrested person about the reasons for the arrest and his rights
to remain silent and to receive legal assistance (Article 153.2.1);
without delay, to take the arrested person to the relevant detention
facility, to draw up a record of the arrest and to allow the arrested
person to familiarise himself with this record (Article 153.2.2);
immediately after the arrest, to ensure that the arrested person can
exercise his right to inform his relatives about the arrest (Article
153.2.4); from the moment of the arrest, to allow the arrested person
effective access to a lawyer (Articles 153.2.5-153.2.8), etc.
- Articles
153.3-153.4 state as follows:
“153.3. The arrested person shall be released
by the prosecuting authority in the following cases:
153.3.1. if the suspicion that this person has
committed a criminal offence is not confirmed;
153.3.2. if there is no necessity to detain the
person further;
153.3.3. ([by a legislative amendment of 2 July
2001])
153.3.4. ... if no court order on the arrested
person's remand in custody is issued within forty-eight hours of his
or her arrest.
153.4. In cases stipulated in Articles 153.3.1 and
153.3.2 of this Code, the arrested person may be released by the
preliminary investigator, investigator or prosecutor supervising the
preliminary investigation, while in a case stipulated in Article
153.3.4 of this Code [he or she] may also be released by the head of
the temporary detention facility [where he or she is detained].”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that he had been unlawfully deprived of his
liberty because he had been detained in excess of the maximum
forty eight-hour period permitted by the domestic law prior to
being brought before a judge. The relevant part of Article 5 § 1
(c) of the Convention reads as follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government contested the applicant's allegations. They noted that the
applicant arrived at the MNS building at 10.45 a.m. and was
questioned as a witness by the investigator in charge from 11.40 a.m.
to 2.30 p.m. Subsequently the applicant participated in another
investigative action (face-to-face confrontation) from 5.10 p.m. to
6.00 p.m. According to the Government, the applicant was free to
leave the MNS building and he had the opportunity to make contact
freely with the outside. However, the Government accepted that the
applicant's liberty might be restricted before the issue of the
official record at 8.15 p.m., as following the end of the
confrontation at about 6 p.m. the applicant was not free to leave the
MNS building. The Government further submitted that even assuming
that the applicant's detention had begun at 6 p.m., the
forty-eight-hour period permitted by law had been respected, because
the applicant had been brought before a judge on 29 October 2005 at
5.30 p.m.
- The
applicant contested the Government's submissions. In particular, he
alleged that he had had no opportunity to contact members of his
family or a lawyer of his own choosing and that he had not been
permitted to leave the MNS building after his arrival there. In
support of this claim, the applicant submitted a signed statement by
the State-appointed lawyer who represented him before the domestic
courts. In that statement, the State appointed lawyer stated
that he had been invited to the MNS on 27 October 2005 at
about 6 p.m. as a lawyer on duty, that he had not known the applicant
before and that the applicant had not been allowed to call members of
his family or a lawyer that he knew. He also stated that the
applicant's mobile phone had been taken away.
2. The Court's assessment
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. While it is
normally in the first place for the national authorities, notably the
courts, to interpret and apply domestic law, it is otherwise in
relation to cases where, as under Article 5 § 1,
failure to comply with that law entails a breach of the Convention.
In such cases the Court can and should exercise a certain power to
review whether national law has been observed (see, among other
authorities, Douiyeb v. the Netherlands [GC], no. 31464/96, §§
44-45, 4 August 1999).
- Compliance
with national law is not, however, sufficient: Article 5 § 1
requires in addition that any deprivation of liberty should be
consistent with the purpose of Article 5, namely to protect
individuals from arbitrariness. What is at stake here is not only the
“right to liberty” but also the “right to security
of person” (see, among other authorities, Bozano v. France,
18 December 1986, § 54, Series A no. 111, and Wassink v.
the Netherlands, 27 September 1990, § 24, Series A no.
185 A). It is a fundamental principle that no detention which is
arbitrary can be compatible with Article 5 § 1 and the notion of
“arbitrariness” in Article 5 § 1
extends beyond lack of conformity with national law, so that a
deprivation of liberty may be lawful in terms of domestic law but
still arbitrary and thus contrary to the Convention (see Saadi v.
the United Kingdom [GC], no. 13229/03, § 67, ECHR
2008-...).
- In
so far as the applicant complained that he had been brought before a
judge after the expiry of the maximum forty-eight-hour period allowed
by the domestic law and had not been released at the expiry of that
period as required by the domestic law, the Court notes that this
complaint does not as such raise a question whether the applicant was
“brought promptly before a judge” within the meaning of
Article 5 § 3 of the Convention. Rather, the primary question
raised is whether the applicant's detention during the period before
the court's detention order had been in compliance with the specific
requirements of domestic law applicable to that period of detention.
Therefore, in so far as the complaint concerns the “lawfulness”
of the applicant's detention during that period, it falls to be
examined under Article 5 § 1 of the Convention.
- In
this regard, the Court will therefore firstly determine when exactly
the applicant entered the MNS building. Secondly, it will determine
whether he was in fact “deprived of his liberty” during
the period in question. If so, lastly, it will determine whether such
deprivation conformed to the requirements of “lawfulness”.
- The
parties appeared to agree that the applicant came voluntarily to the
MNS building in the morning of 27 October 2005. However, the parties
were in dispute as to the exact time the applicant entered the MNS
building, with the applicant maintaining that he entered at 10 a.m.
and the Government arguing that he entered at 10.45 a.m.
- In
determining the time of the applicant's entry into the MNS premises,
the Court considers that, in the absence of any official document in
support of the Government's position, the benefit of the doubt should
be given to the applicant, as it falls primarily to the Government to
provide a detailed hour-by-hour account supported by relevant and
convincing evidence. The Court notes that despite its explicit
request in this regard the Government failed to produce any copies of
the relevant documents, such as summons to the applicant for
questioning at the MNS building, the record of interview and the
confrontation in question, the full copy of the record of the
applicant's detention as a suspected person, or any other document
relating to the applicant's detention. Accordingly, in view of the
Government's inability to provide convincing and relevant evidence in
support of their factual claim, the Court accepts that the applicant
in fact entered the MNS building at about 10 a.m. on 27 October
2005.
- It
is to be determined next whether he was “deprived of his
liberty” during this period. In this connection, the Court
reiterates that, in order to determine whether there has been a
deprivation of liberty, the starting point must be the specific
situation of the individual concerned, and account must be taken of a
whole range of factors arising in a particular case, such as the
type, duration, effects and manner of implementation of the measure
in question (see Guzzardi v. Italy, 6 November 1980, §
92, Series A no. 39). The Court must look behind appearances and
investigate the realities of the situation complained of (see Van
Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no.
50). The right to liberty is too important for a person to lose the
benefit of the protection of Article 5 even if he or she has given
himself or herself up to be taken into detention (see De Wilde,
Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no.
12).
- The
Court notes that the applicant had voluntarily appeared for
questioning. As to the events that occurred after the applicant's
arrival at the MNS building, the Court observes that, in the absence
of any records of the applicant's questioning and confrontation or
documents relating to any other procedural actions carried out after
his arrival at the MNS building, it is difficult to determine the
exact circumstances of these events.
- The
Court further notes that although the applicant was not handcuffed,
placed in a locked cell or otherwise physically restrained after
entering the MNS premises, it appears that he had no opportunity to
contact members of his family or lawyer of his own choosing. In this
regard, the Court cannot accept the Government's argument that the
applicant had been placed in a witness room in which there was a
telephone line. This version of the events contradicts the fact that
he was provided with a State appointed lawyer and the latter
lawyer's submissions concerning the applicant's situation (see
paragraph 33 above). Moreover, the Government did not submit any
evidence in support of their argument. The Court also finds
unrealistic the Government's submission that the applicant was free
to leave the MNS building before the issuance of the record of the
applicant's forty-eight-hour detention as a suspect. In particular,
the Government did not provide a reasonable explanation as to why the
applicant stayed in the MNS building without any reason from 2.30
p.m. to 5.10 p.m. (the period of time between the end of the
questioning and the beginning of the confrontation, according to the
Government's version of the events) if he was really free to leave
the MNS building.
- Accordingly,
the Court considers that from about 10 a.m. on 27 October 2005
the applicant was “deprived of his liberty” within the
meaning of Article 5 § 1.
- That
being so, it remains to be seen whether, during the period prior to
the judicial order remanding him in custody issued on 29 October
2005, the applicant's arrest and initial detention complied with the
“lawfulness” requirements of Article 5 § 1.
- The
Court notes that, where there existed a suspicion that a person had
committed a crime, the domestic law authorised the law-enforcement
authorities to arrest and detain a suspected or accused person in the
absence of a judicial order, with a purpose of instituting criminal
proceedings and bringing him or her before a judge authorised to
decide on his or her continued detention. The law stated that within
forty-eight hours of his or her arrest a person so detained must be
brought before a judge, who should either remand the person in
custody or order their immediate release (see paragraphs 27-29
above). Furthermore, Article 153.3.4 of the CCrP unequivocally
required the arrested person's release, if no court order on his or
her remand in custody was issued within forty-eight hours of arrest.
Accordingly, beyond the initial forty-eight-hour period, an arrested
person could be detained only on the basis of a judicial order
remanding him or her in custody. It does not appear that this period
could be extended under any circumstances, or that it was simply a
non-mandatory indicative deadline and the Government did not
demonstrate or argue the opposite (contrast, mutatis mutandis,
Kaiser v. Switzerland, no. 17073/04, §§ 20 and 33,
15 March 2007).
- In
the present case, the applicant was de facto deprived of his
liberty at around 10 a.m. on 27 October 2005, while the judicial
hearing on his remand in custody took place at about 5.30 p.m. on 29
October 2005. Accordingly, prior to being taken before the judge, the
applicant was detained for approximately fifty-five hours, about
seven hours in excess of the maximum period permitted by the domestic
law.
- Thus,
the applicant's continued detention without a judicial order for a
time period exceeding the forty-eight-hour period prescribed by
Articles 148 and 153 of the CCrP was incompatible with the
domestic law and therefore not “lawful” within the
meaning of Article 5 § 1 of the Convention.
- There
has accordingly been a violation of Article 5 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Articles 5 and 6 of the Convention, the applicant complained in a
general manner that his arrest and detention had been unlawful and
that the domestic proceedings concerning his detention had not been
fair. He further complained under Articles 13 and 14 of the
Convention that the domestic remedies had been ineffective and that
he had been discriminated against due to his political opinions.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court
considers that this part of the application does not disclose any
appearance of a violation of the Convention. It follows that it is
inadmissible under Article 35 § 3 as manifestly ill-founded and
must be rejected pursuant to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant did not submit a claim for just satisfaction in the manner
required by Rule 60 of the Rules of Court. Accordingly, the Court
considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 5 § 1
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention.
Done in English, and notified in writing on 9 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
