(Application no. 37138/06)
9 November 2010
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Farhad Aliyev v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
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:
1. The case originated in an application (no. 37138/06) 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, Farhad Shovlet oglu Aliyev (Fərhad Şövlət oğlu Əliyev – “the applicant”), on 8 September 2006.
2. The applicant was represented by Ms L. James and Lord Lester of Herne Hill QC, lawyers practising in London, and Mr E. Guliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. The applicant alleged, in particular, that during his pre-trial detention his rights under Articles 3, 5, 6, 8, 13 and 14 of the Convention had been infringed by various domestic authorities and officials.
4. On 4 April 2007 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).
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1963 and lives in Baku. He was the Minister for Economic Development of Azerbaijan from 2001 until the events of the present case.
A. Criminal proceedings against the applicant
1. The circumstances of the applicant's arrest
(a) The applicant's version of the events
6. Shortly after 2 p.m. on 19 October 2005 the applicant was taken to the Ministry of National Security (“the MNS”) from his office in the Ministry of Economic Development. He was not informed why he was taken there. He was taken to the MNS in his own car driven by his personal driver, accompanied by two deputies to the Minister for National Security.
7. Shortly after that, television channels broadcast a presidential order for the applicant's dismissal from ministerial office. At around 3 p.m. the text of the presidential order was published by AzerTAG, a State-owned news agency.
8. After the arrest, the applicant was taken to the office of one of the MNS investigators inside the MNS building. He was then moved from one office to another until 10 p.m. and was unable to leave the MNS building during this time. He was not allowed to contact his family by phone when he asked to do so. At about 10 p.m. he was informed about his dismissal from ministerial office. He was also briefly informed that he was suspected of being one of the accomplices to organising mass unrest and a coup d'état allegedly planned by a group of current and former high-ranking State officials.
9. From 11.45 p.m. on 19 October to 12.50 a.m. on 20 October 2005, the applicant was questioned for the first time after his arrest earlier that day. A State-appointed lawyer was present during the questioning. The applicant was asked about a loan of 100,000 euros (EUR) that he had allegedly made to Fikret Yusifov, one of the alleged organisers of the coup d'état. He was told that this money had been found in Mr Yusifov's house and that the latter had explained that he had received it from the applicant. The applicant was asked to confirm this and to explain the reason for the loan. The applicant stated that he had indeed lent that amount to Mr Yusifov at the latter's request owing to personal financial difficulties. The applicant was also asked about his relationship with Rasul Guliyev, a former Parliament Speaker, who at the time lived abroad and was sought by the Azerbaijani authorities for a number of crimes allegedly committed by him while in office. The applicant stated that he had never been in touch with Mr Guliyev.
10. Following the questioning, the applicant was informed that he was being detained as a suspect. He was then taken to the MNS Detention Facility.
(b) The Government's version of the events
11. Shortly after 8 p.m. on 19 October 2005 officials of the MNS entered the applicant's office and informed him about the criminal offences of which he was suspected. They then accompanied the applicant to the MNS in his car. The car entered the courtyard of the MNS building at 8.25 p.m.
12. By letter of 19 October 2005 the applicant's family was notified that he was detained in the MNS detention facility on suspicion of having committed a criminal offence under Article 278 of the Criminal Code.
13. At 11 p.m. a State-appointed lawyer was introduced to the applicant, since he had not expressed a wish to be assisted by a lawyer of his choice. The applicant did not object to being assisted by the State-appointed lawyer.
14. From 11.15 to 11.25 p.m. an MNS investigator drew up a record of the applicant's arrest as a person suspected of committing a criminal offence (tutma protokolu), in accordance with, inter alia, Articles 147 and 148 of the Code of Criminal Procedure (“the CCrP”). The record was signed by the applicant at 11.25 p.m. At 11.45 p.m. the applicant signed another record confirming that he had been informed of the nature of the suspicions against him, while adding in handwriting that he denied the accusations. Thereafter, the applicant was questioned, in the presence of his State-appointed lawyer, from 11.45 p.m. on 19 October to 12.50 a.m. on 20 October 2005.
2. Other events around the time of the applicant's arrest
(a) Searches conducted in the applicant's and his relatives' flats and alleged persecution of the applicant's brothers and other relatives
15. According to the applicant, on 19 October 2005, the day of his arrest, some fifteen officials in plain clothes and armed soldiers entered his flat in Baku without a search warrant. The officials produced a search warrant about two hours after the search had begun. The search continued for more than twelve hours and numerous items were seized. Several other flats and houses, registered in the name of the applicant's closest relatives, were also searched and sealed.
16. The applicant's brother Rafig Aliyev, a wealthy businessman, was also arrested at around the same time on similar suspicions. According to the applicant, not only his brother Rafig, but his other brothers were also either arrested or dismissed from their jobs. Alipanah Aliyev, the Head of the Environment Committee of the Baku City Executive Authority, was dismissed from his job. Ashad Aliyev, a CEO of a private company, was prosecuted on charges of tax evasion but was later released after agreeing to pay what was alleged to be due. Sudeef Aliyev, a manager of a small carpet factory, was also accused of tax evasion. Alovsat Aliyev, who intended to stand as a candidate for the forthcoming parliamentary elections, had his candidacy revoked by a court decision. Alovsat's wife was dismissed from her position as a teacher at a State school. A number of his other, more distant relatives, as well as his former colleagues and employees, were also allegedly persecuted in various ways. According to the applicant, all of the above events were directly related to his arrest.
(b) Press releases by law-enforcement authorities concerning the criminal proceedings against the applicant
17. On 20 and 21 October 2005 the official newspapers and other mass media published two press releases with the headline “Special Statement of the Prosecutor General's Office, the Ministry of National Security and the Ministry of Internal Affairs of the Republic of Azerbaijan”. These press releases officially informed the public about the arrest and indictment of a number of well-known current and former State officials and provided a summary of the evidence gathered in respect of their alleged plans for the “forcible capture of power” during the election period, “under the guise of an appeal for democratic changes in the political situation in the country”. The evidence mainly consisted of the testimony of one of the arrested persons concerning secret meetings between them and their sources of financing, as well as large amounts of cash and other valuables found in the homes of some of them. Additionally, some of the arrested persons were suspected of embezzlement of public funds and abuse of authority. Specifically, the press releases mentioned the names of the applicant, the former Parliament Speaker Rasul Guliyev, the former Minister of Finance Fikret Yusifov, the owner of Azpetrol Oil Company Rafig Aliyev (the applicant's brother), the Minister for Health Care Ali Insanov, as well as other, less prominent names. It appears that all of the mentioned persons (except Rasul Guliyev, who was not physically present in Azerbaijan) had been arrested prior to the publication of the press releases.
18. The press release of 20 October 2005 stated, inter alia:
“It was established that former Minister of Finance Fikret Yusifov was the contact responsible for obtaining large amounts of funding for the forcible capture of State power... He was arrested as a suspect on 16 October. ... 100,000 euros and 60,000 US dollars were seized from Fikret Yusifov's flat during a search conducted in the context of the investigation...
On 18 October 2005 Fikret Yusifov wrote to the Prosecutor General... and indicated his willingness to voluntarily provide information about the preparatory actions by Rasul Guliyev and his supporters aimed at usurping State power...
Fikret Yusifov stated in his testimony that, during his visit to St Petersburg in the Russian Federation in July 2005, Rasul Guliyev ... had contacted him on his mobile phone and instructed him to pass on his directions concerning the financing of the process of the capture of State power to the Minister for Economic Development, Farhad Aliyev, and his other supporters who had the necessary financial means.
In this connection, in August of the current year Fikret Yusifov met Farhad Aliyev in the office of the latter's brother Rafig Aliyev and informed him about Rasul Guliyev's directions. Farhad Aliyev promised to provide any kind of assistance in this matter and to take additional measures via his contacts. At the end of August Fikret Yusifov went to St Petersburg and notified Rasul Guliyev by phone about Farhad Aliyev's agreement.
Pursuant to another instruction by Rasul Guliyev, [Fikret Yusifov] returned to Baku on 23 September and again met Farhad Aliyev in the same office ... [Farhad Aliyev] again gave assurances that he would provide any kind of assistance and that he was ready to provide funding in the amount of 3,000,000 US dollars and to organise anything within his capability.
On 3 October 2005 Fikret Yusifov met Rasul Guliyev in Berlin. During the meeting, Rasul Guliyev stated that he was planning to return to Baku in the middle of October and stressed that it was important that he be met by a large group of people, which would prevent his arrest, and that State power be forcibly seized by creating public disorder. Rasul Guliyev also gave a specific instruction that Farhad Aliyev should provide substantial financial assistance for implementing these plans.
Having returned to Baku, Fikret Yusifov met Farhad Aliyev and notified him about this instruction. On 15 October Farhad Aliyev personally gave cash in the amount of 100,000 US dollars to Fikret Yusifov for the purposes of financing the usurpation of State power. This money was found during the search of Fikret Yusifov's flat on 16 October 2005 and was seized as physical evidence.
During the searches conducted in the course of the investigation in houses, dachas and other properties belonging to Farhad Aliyev, [the authorities] seized large amounts of foreign currency, jewellery, works of art and other valuable items obtained in a criminal manner.
As a result of operational measures, it was also established that Farhad Aliyev, having abused his official authority and committed serious breaches of the law during the process of privatisation of State property, had procured documents of title to State property at negligible prices and formally registered the property in the name of his relatives and acquaintances, and thus de facto transferred it into his ownership.
An investigation into breaches of the law is currently under way in numerous commercial companies linked to Farhad Aliyev, including Azpetrol. Rafig Aliyev, the owner of Azpetrol, was arrested at the airport while attempting to leave the country.
Based on the material gathered, the Prosecutor General instituted criminal proceedings under Articles 179.3 (embezzlement), 308.2 (abuse of official authority), 28/220 (preparation to organise public disorder) and 278 (usurpation or forcible retention of State power) of the Criminal Code and on 19 October 2005 Farhad Aliyev was arrested as a suspect in connection with these criminal proceedings.”
19. The press release of 21 October 2005 stated, inter alia:
“As has been notified earlier, during the searches conducted in the course of the investigation in houses, dachas and other properties belonging to the former Minister for Economic Development Farhad Aliyev, arrested as a suspect in connection with the criminal proceedings under Articles 179.3, 308.2, 28/220 and 278 of the Criminal Code, [the authorities] have seized large amounts of foreign currency, jewellery, works of art and other valuable items obtained in a criminal manner.
In particular, [the following were seized during the searches:] 50,500 US dollars, 6,000 euros and 860 UK pounds sterling from Farhad Aliyev's personal office in the administrative building of the Ministry of Economic Development; 30,000 euros and 6,500 US dollars from his flat...; 34 valuable works of art and 500 privatisation vouchers from his dacha; 565,000 US dollars and 5,609,000,000 [old] Azerbaijani manats, which had not been entered in accounting books, from his brother Rafig Aliyev's office at Azpetrol. In addition, jewellery in large amounts, seven firearms of various models, other valuable items, and documents of title to numerous items of real property have been discovered at the mentioned addresses. The investigation continues into offences of corruption and other breaches of the law within numerous commercial companies belonging de facto to Farhad Aliyev. ...”
3. Formal charges against the applicant and his remand in custody
20. From 21 October 2005 the applicant was assisted by two lawyers hired by his family.
21. By a decision of the investigator in charge of the case, issued at an unspecified hour on 21 October 2005 in the presence of the applicant and his lawyers, the applicant was formally accused in the context of criminal case no. 76586. The applicant was one of several accused persons in that case. Specifically, he was charged with criminal offences under Articles 179.3.2 (embezzlement in large amounts), 308.2 (abuse of official authority entailing grave consequences), 28/220 (preparation to organise public disorder) and 278 (actions aimed at usurping State power) of the Criminal Code. Following this, he was questioned from 7.50 p.m. to 8.15 p.m. on 21 October 2005.
22. On the same day, a judge of the Nasimi District Court arrived at the MNS to hold a hearing concerning the prosecution's request to apply the preventive measure of remand in custody (həbs qətimkan tədbiri) in respect of the applicant. The hearing was held in the office of one of the MNS investigators in the presence of the applicant and his lawyers. According to the Government, the hearing commenced at 8.25 p.m. According to the applicant, he was not brought before the judge until 9 p.m.
23. The judge remanded the applicant in custody for a period of three months, calculated from 19 October 2005. The judge substantiated the necessity of this measure as follows:
“Taking into account the possibility of the accused absconding from the authority conducting the criminal proceedings and illegally influencing persons participating in the proceedings, as well as the nature and gravity of the actions imputed to him, I consider it necessary to apply the preventive measure of remand in custody in respect of him.”
24. The applicant appealed, claiming inter alia that, prior to the issuance of a judicial order remanding him in custody, he had been detained as a suspected person for several hours in excess of the maximum forty-eight-hour period prescribed by law, because he had been actually arrested at 2 p.m. on 19 October but had been brought before the judge at 9 p.m. on 21 October. He further claimed that, upon issuing the detention order, the judge had merely relied on the submissions of the prosecution and had not assessed any evidence independently in order to establish whether there had been a reasonable suspicion that he had committed a criminal offence. Lastly, he complained that the judicial hearing had been held in the MNS building and not in a regular courtroom, and in the absence of the public prosecutor.
25. On 26 October 2005, in the presence of the applicant's lawyers but in the absence of the applicant himself, the Court of Appeal upheld the Nasimi District Court's detention order, repeating the lower court's reasoning and finding that it was correct. The Court of Appeal's decision did not address any of the applicant's specific complaints.
26. By a decision of 13 January 2006 the Nasimi District Court extended the period of the applicant's detention by another four months (until 19 May 2006). Both the applicant and his lawyer were absent from this hearing. On 19 January 2006 the Court of Appeal upheld that decision, in the presence of the applicant's lawyer, but in the applicant's absence.
27. On 13 May 2006 the Nasimi District Court extended the period of the applicant's detention by another five months (until 19 October 2006). Neither the applicant nor his lawyers were informed of this hearing. On 22 May 2006 the Court of Appeal upheld that decision, in the presence of the applicant's lawyer, but in the applicant's absence.
28. On an unspecified date the applicant requested that the preventive measure of remand in custody be substituted by a less restrictive measure, such as release on bail or house arrest. It appears that on 17 July 2006 the Nasimi District Court rejected this request (no copy of this decision was made available to the Court).
29. On 2 October 2006 the Nasimi District Court extended the period of the applicant's detention by another six months (until 19 April 2007). The applicant was absent from the hearing; his lawyer was present. On 9 October 2006 the Court of Appeal upheld that decision.
30. In all of its decisions extending the applicant's detention, the Nasimi District Court's reasoning justifying his continued detention was the same as or similar to that cited in paragraph 23 above. In all of his appeals against those decisions, the applicant complained that there was no evidence giving rise to a reasonable suspicion that he had committed a criminal offence, that the material in the prosecuting authority's possession had not been made available to him, that the extension orders were based only on the submissions of the prosecuting authority, that neither his nor his lawyers' presence at the hearings had been ensured, that there were no reasons to believe that he would abscond or influence the investigation, and that the condition of his health and other personal circumstances had not been taken into account when assessing the necessity of his continued detention. The Court of Appeal's decisions upholding the extension of the applicant's detention repeated the lower court's reasoning and did not contain any assessment of the specific arguments raised by the applicant in his appeals.
31. On 19 January 2007 the investigator issued a new decision charging the applicant with criminal offences under Articles 179.3.1 (embezzlement), 179.3.2 (embezzlement in large amounts), 28/220.1 (preparation to organise public disorder), 278 (actions aimed at usurping State power), 308.2 (abuse of official authority entailing grave consequences), 311.3.1 (bribe-taking by an organised group), 311.3.2 (repeatedly committed bribe-taking), 311.3.3 (bribe-taking in large amounts) and 313 (forgery in public office) of the Criminal Code.
32. On 1 March 2007 the investigator issued yet another decision, charging the applicant with criminal offences under Articles 179.3.1, 179.3.2, 192.2.1 (illegal commercial activity resulting in grave pecuniary damage), 192.2.2 (illegal commercial activity yielding a large amount of profit), 206.4 (smuggling by an organised group), 213.4 (tax evasion in large amounts), 28/220.1, 278, 308.2, 311.3.1, 311.3.2, 311.3.3 and 313 of the Criminal Code.
33. On 5 March 2007 a new criminal case (no. 76961) was severed from criminal case no. 76586. In the context of the new criminal case no. 76961, the applicant was charged under Articles 179.3.1, 179.3.2, 192.2.1, 192.2.2, 206.4, 213.4, 308.2, 311.3.1, 311.3.2, 311.3.3 and 313 of the Criminal Code.
34. On 5 March 2007 the applicant requested the prosecutor to provide him with a copy of the decision to sever the criminal case. This request was refused, on the ground that the applicant would be able to familiarise himself with the contents of the entire case file, including a copy of that decision, after completion of the pre-trial investigation.
35. On 7 March 2007 the applicant was informed that the investigation in criminal case no. 76961 had been completed on 5 March 2007.
36. On 16 April 2007 the investigator issued the final bill of indictment in criminal case no. 76961 under Articles 179.3.2, 192.2.1, 192.2.2, 206.4, 213.4, 308.2, 311.3.1, 311.3.2, 311.3.3 and 313 of the Criminal Code. On the same day, the bill of indictment was signed by the Prosecutor General and the case was referred to the Assize Court for trial.
37. Thus, criminal case no. 76961 was sent for trial in the Assize Court. There were nineteen co-defendants standing trial in this case, including the applicant and his brother Rafig Aliyev, under charges of complicity in various offences involving embezzlement and corruption. It appears that the original criminal case no. 76586, which still carried the charges against the applicant under Articles 28/220.1 and 278, was not sent for trial, but was not terminated either.
38. On 23 April 2007 the applicant's lawyers applied to the Nasimi District Court, seeking the applicant's release on the ground that the latest detention order in respect of him, as well as the statutory maximum period for detention during the pre-trial investigation, had expired on 19 April 2007. It is not clear whether the Nasimi District Court replied to this request.
39. On 15 and 16 May 2007 the applicant's lawyers lodged similar requests with the Assize Court, arguing that the applicant should have been released on 19 April 2007 at the latest. It appears that at least six other co-defendants also requested release pending trial, relying on various grounds.
40. At its preliminary hearing on 21 May 2007 the Assize Court rejected the applicant's and his co-defendants' requests for release and authorised their continued detention pending trial.
41. In particular, in connection with the applicant's specific argument that his detention was unlawful following the expiry of the relevant period on 19 April 2007, the Assize Court noted that the criminal case had been referred to the court a few days before 19 April 2007, and that the running of the applicant's detention “pending investigation” had ended on that day. Therefore, his detention had not exceeded the time-limits specified by law.
42. Furthermore, assessing the situation of all the detained co-defendants collectively, the Assize Court decided that “the preventive measure of remand in custody had been chosen correctly and should remain unchanged”. The court noted that “the accused persons detained on remand” had sufficient financial means, as well as business and other contacts in foreign countries, which could enable them to leave the territory of Azerbaijan and thus abscond from the trial. It further noted that, using those significant financial means, the detained persons could apply illegal pressure on persons participating in the trial.
4. Complaints lodged by the applicant during the pre-trial investigation
43. During the period of the pre-trial investigation, the applicant's lawyers lodged a number of applications and petitions with the prosecuting authorities and courts concerning various procedural aspects of the criminal proceedings and alleged breaches of the applicant's procedural rights.
44. In particular, on 24 November 2005 the applicant's lawyer applied to the Nasimi District Court, complaining that the actions of the prosecuting authorities violated the applicant's rights to liberty, to a fair investigation and to presumption of innocence. He also complained that, owing to the harsh conditions of his detention, the applicant was being subjected to inhuman and degrading treatment. In the application, the applicant's lawyer also complained, in two sentences, that the applicant's rights following his arrest had not been respected because he had not been allowed to contact his family and relatives by telephone in order to inform them of his arrest. On 26 December 2005 the Nasimi District Court rejected these claims, finding them unsubstantiated.
45. On 29 December 2005 the applicant lodged an appeal against this decision, summarising the complaints he had made to the Nasimi District Court, including a complaint that “he had not been allowed to telephone his family upon his arrest”. On 25 January 2006 the Court of Appeal dismissed the applicant's appeal.
5. The applicant's conviction and appeals against it
46. The applicant was tried by the Assize Court together with eighteen other accused persons.
47. On 25 October 2007 the Assize Court convicted the applicant of all the criminal offences he was charged with under criminal case no. 76961 and sentenced him to ten years' imprisonment.
48. On 16 July 2008 the Baku Court of Appeal upheld the applicant's conviction. On 6 July 2009 the Supreme Court upheld the lower courts' judgments in respect of the applicant.
B. The state of the applicant's health and medical treatment provided to him in detention
49. The submissions and documents concerning the applicant's health and medical treatment are voluminous and contain numerous details. While the Court has duly examined the entire medical file, only the main and most relevant points are summarised below for information purposes.
50. The applicant complained mainly of cardiovascular problems. Before his arrest, he had been examined by doctors in Azerbaijan and Germany. In particular, in January 2004 he was examined by Dr Abbasaliyev of the Central Clinical Hospital in Baku and was diagnosed with mild coronary artery disease and stenocardia (angina pectoris), and prescribed a number of medications. It was noted that the applicant complained of pains, shortness of breath, discomfort and occasional feelings of weakness; however, it appears that the examination did not reveal any serious condition.
51. Also prior to his arrest, in June 2005, the applicant underwent a medical examination in a cardiology hospital in Germany (Deutsches Herzzentrum Berlin) and was diagnosed with hyperlipoproteinaemia (elevated concentration of lipoprotein particles in the blood) and arterial hypertension as cardiovascular risk factors. Echocardiography (“echo”) tests did not reveal any serious abnormalities. It was noted that he was in a “good general condition” and that the examination “showed no significant deficit in cardiac function”, although the measurement of heart wall thickness showed a mild septal hypertrophy of the left ventricle. The treatment suggested included three medications (Ramipril for preventing the progression of the left ventricular hypertrophy, and ASS-100 (Aspirin) and Atorvastatin for improving the cardiovascular risk profile) and regular control of blood pressure and cholesterol level.
52. In detention, the applicant continuously complained of his health condition. Specifically, he complained of, inter alia, breathing problems, spasms, headaches, dizziness and heart pain.
53. As to the period after his arrest on 19 October 2005, according to the applicant, he was not examined by a physician upon his arrest and was first seen by a doctor on 21 October 2005. The medical records submitted by the Government contained entries made by MNS doctors on 24, 28 and 29 October 2005. According to those records, the applicant underwent a blood test and outpatient examinations by the MNS doctors, who noted that he complained of chest pains and dizziness. The entry for 29 October 2005 contained a diagnosis of “ischaemic heart disease” (followed by a question mark), “hypertension” (also followed by a question mark), and “neurocirculatory dystonia of hypertonic type”. It was further noted that the applicant had no specific health-related complaints on that occasion and that, although he had been prescribed several medications (including Nitrosorbit, Ramipril, ASS and Persen Forte), he had refused to take them on previous days, but had agreed to do so after he had been informed of their nature.
54. As to the period subsequent to the initial days after the arrest, it appears from the medical records that the applicant was examined by MNS doctors on 9 and 25 November 2005 and 5 and 21 December 2005. While the exact treatment is not fully specified in the available medical records, it appears that a number of medications were prescribed and administered.
55. At an unspecified time on 22 December 2005, while in his cell, the applicant lost consciousness for several minutes as a result of abnormally high blood pressure. Before fainting, he called a warder, who brought a blood-pressure monitor. The applicant used the monitor himself after regaining consciousness. Then a doctor came and gave him some medication, but this did not help. An ambulance was called and at around 11.45 p.m. on the same day the applicant was taken to Baku Central Clinical Hospital suspected of having suffered a stenocardiac attack. At the hospital, he was examined by Dr Abbasaliyev, a cardiologist who had previously seen him prior to his detention. According to the medical record drawn up by Dr Abbasaliyev, an electrocardiogram (“ECG”) and echocardiogram (“echo”) were taken and a blood test was carried out. Apart from the left ventricular hypertrophy diagnosed earlier, no new disorders were discovered and the blood test result did not reveal any anomalies. The applicant was given unspecified medications administered via injections and an intravenous drip, which resulted in normalisation of the blood pressure. It was determined that the applicant had suffered a “hypertonic attack (due to failure to take his medication and emotional stress)”. He was diagnosed with first-stage hypertension and left ventricular hypertrophy.
56. The applicant stayed in the hospital overnight and the next morning he was brought back to his cell. According to the applicant, he was still feeling ill when brought back to his cell and he lay in his bed for several days without medical supervision until the “attack” eventually subsided. Following the attack, different medications were prescribed. According to the applicant, the pills were given to him by medically unqualified warders of the MNS Detention Facility on an irregular basis, usually following a request by the applicant himself.
57. According to the medical records submitted by the Government, during the period from 23 December 2005 to 11 April 2006 the applicant was seen several times by the MNS doctors. On each occasion, his health-related complaints (or lack of them) were recorded and he was prescribed and administered a number of medications to alleviate his condition (Diroton, Dibazol, Papaverine, Dimedrol). While the above-mentioned records are too voluminous and repetitive to be fully summarised, it should be noted that during this period the applicant usually complained of chest pains, dizziness, headaches and weakness, and was repeatedly diagnosed with “neurocirculatory dystonia of hypertonic type” and “neurotic reactions”. However, on 31 March 2006 the chief cardiologist of the Ministry of Health noted that the applicant's ECG and echo test revealed ischaemic heart disease, stenocardia and arterial hypertension.
58. Following several complaints by the applicant's lawyer about the applicant's alleged ill-health, lodged with the MNS Investigation Department in the period from January to March 2006, on 10 April 2006 an MNS investigator took a procedural decision to request a formal medical examination of the applicant within the context of the criminal proceedings. The examination was held on 12 April 2006 by four experts of the Ministry of Health. The medical experts were specifically asked to assess the applicant's state of health and the gravity of any illnesses from which he suffered, and to specify whether outpatient treatment of these illnesses would be adequate.
59. According to the expert report issued on 13 April 2006, the experts noted that the applicant complained of unstable blood pressure, shortness of breath, neck pains, chest pains, weakness and numbness of the left arm and two fingers of the left hand, occasional dizziness and darkening of vision, among other problems. Further, the experts summarised the applicant's medical record during his detention. In response to the specific questions asked by the investigator, the experts diagnosed the applicant with “neurocirculatory dystonia of hypertonic type” and noted that this condition belonged to a group of widespread ordinary illnesses that could be treated on an outpatient basis with calmative medications and vasodilators.
60. According to the applicant, on 23 April 2006 he experienced another attack and it took some four hours for a number of doctors to stabilise his condition. The relevant medical records do not contain any entries relating to this alleged incident.
61. Upon a request by the applicant's British lawyers, on 5 May 2006 Dr Martyn Thomas, a consultant cardiologist at King's College Hospital in London, issued a brief one-page opinion on the applicant's state of health based “on papers ... received from [the applicant's lawyers]”. It is unclear which specific documents were among those “papers”. Dr Thomas noted that, according to those papers, “the medical care of [the applicant] is far from ideal” and that “it is possible that his symptoms relate to some non-cardiac condition [such as] a neurological cause...”. Nevertheless, Dr Thomas concluded that it was difficult for him “to comment on this gentleman's medical situation based merely on the paperwork I have received” and recommended that the applicant be examined by a cardiologist and “a more general physician [in order] to come to a definitive diagnosis as to the causes of his collapses”.
62. Following continued complaints about chest pains, back pains, headaches and heart pains, on 23 July 2006 the applicant was transferred to the Medical Facility of the Ministry of Justice. According to the relevant records, upon his arrival the applicant refused, in writing, to take any medications prescribed to him by doctors of the Ministry of Justice's Medical Facility and noted that he would not take any medications other than those that had been prescribed by the German doctor in 2005.
63. On 25 July 2006 the applicant was examined by Prof. Dr Bakhshiyev of the Azerbaijan Medical University and on 8 August 2006 by Dr Abdullayev of the Cardiology Research Institute (according to the Government, the latter doctor was chosen by the applicant himself because he had previously examined the applicant; the applicant denied this). Among other tests, the applicant underwent a twenty-four-hour Holter monitor procedure for the purpose of excluding the possibility of coronary insufficiency. The tests did not reveal any serious condition. Both doctors diagnosed him with “neurocirculatory dystonia of hypertonic type” and osteochondrosis of the cervical and thoracic regions of the spine. The applicant was prescribed treatment with calmative medications, but he again refused to take anything other than “his own medications”.
64. According to the applicant, on 12 August 2006, while in the Ministry of Justice's Medical Facility, he experienced another attack (of unspecified nature) but was not provided with “timely” medical assistance.
65. It appears that on 23 September 2006 the applicant was checked out of the Ministry of Justice's Medical Facility in a “satisfactory condition” and returned to the MNS Detention Facility.
66. On 11 October 2006 the applicant was examined by three cardiologists (including Dr Abbasaliyev, who had previously examined him on several occasions). It was noted that the applicant was in a generally good condition and that the examination did not reveal any new disorders. It was recommended that the applicant continue taking the prescribed medications and he was also prescribed an additional medication.
67. In November 2006 the applicant's lawyer requested that the applicant again be transferred to the Ministry of Justice's Medical Facility for in-patient treatment. In order to determine whether such treatment was necessary, the applicant was examined by a medical commission consisting of ten doctors specialising in various fields of medicine. The commission confirmed the earlier diagnosis of “neurocirculatory dystonia of hypertonic type” and explained that this was a condition caused by the applicant feeling emotionally distressed because of his arrest. The examination did not reveal any disorders or diseases of the blood, lungs, ear, nose and throat (ENT) or kidneys. Similarly, no injuries, orthopaedic disorders or infectious diseases were discovered. In conclusion, it was noted that the applicant was “practically healthy”. Accordingly, the applicant was not transferred to the Ministry of Justice's Medical Facility for in-patient treatment.
68. On 8 January 2007 the applicant was again examined by Dr Abbasaliyev, who noted that his general condition was good and stable.
69. On 17 January 2007 the applicant's lawyer requested to be provided with copies of all the applicant's medical records for the purpose of submitting them for an “alternative” expert examination, to be carried out at the applicant's expense by experts appointed by the defence. In reply, on 26 January 2007 the MNS investigator ordered a complex medical examination (komisyon məhkəmə tibb ekspertizası) of the applicant by the country's leading medical experts.
70. The complex medical examination was carried out by a commission of ten medical experts, each with between 25 and 55 years' professional experience and holding advanced degrees in medical science. The commission consisted of five cardiologists, one neuropathologist, one haematologist, one pulmonologist and two forensic experts. The expert opinion was issued on 2 February 2007 and consisted of 34 pages. According to the expert opinion, the experts examined in detail the applicant's medical records and concluded that the applicant suffered from neurocirculatory dystonia accompanied by high arterial pressure, a condition which was primarily caused by the emotional stress experienced by him as a result of the drastic change in his lifestyle brought about by his arrest. This diagnosis was confirmed by the fact that arterial pressure was quickly normalised after taking necessary medications and that no serious disorders had been revealed by various tests (ECG, echo tests, blood tests and biochemical tests). The analysis of medical records showed that the applicant's complaints of feeling unwell were often of a “subjective character” and were not confirmed by laboratory tests and examinations carried out in response to his complaints. Since the applicant's condition had not seriously deteriorated during the previous three years and since he could usually be quickly relieved of feelings of discomfort by taking calmative and vasodilator medications, the applicant's condition could be characterised as belonging to a group of widespread ordinary “functional” conditions caused by emotional stress. The experts further dismissed the opinion of Dr Thomas, noting that it was based on misrepresented facts and contained recommendations inconsistent with his own analysis. In conclusion, the experts noted that the applicant's general condition was satisfactory, that he did not suffer from any serious diseases, and that his medical supervision and treatment had been carried out by well-qualified doctors and had been adequate.
71. In an application of 12 February 2007 the applicant's lawyer objected to the complex medical examination and clarified that, in his application of 17 January 2007, he had not requested this type of examination, but had asked to be provided with the applicant's medical records for the purpose of carrying out an “alternative” medical examination at the applicant's own expense.
72. On 21 February 2007 the investigation authorities provided the applicant's lawyer with copies of the requested medical records. According to the Government, although the applicant was allowed to provide the investigation with the results of an “alternative” medical examination carried out by experts of his own choice, the applicant did not submit any “alternative” expert opinions to the investigation authorities.
73. It appears that the applicant forwarded his medical records, as well as his own description of the medical treatment received and the conditions of his detention, to Dr Duncan S. Dymond, based in London, for an expert evaluation. Dr Dymond issued his report on 9 July 2007. He noted that the Azerbaijani cardiologists used terminology (such as “neurocirculatory dystonia” and “stenocardia”) which was not “familiar to contemporary cardiologists” and was not “used conventionally in the medical world in 2007”. He noted that the applicant had “probably rather labile hypertension with some evidence of mild ventricular hypertrophy”, meaning that his blood pressure fluctuated rather widely and that his heart muscle had become slightly thickened in response to high blood pressure. Further, he noted that the applicant had been documented as “having very mild coronary artery disease affecting only one vessel for which no intervention was required” and that, as a result, the applicant had been “quite correctly placed on anti-hypertensives, Aspirin and a Statin”. As to the attacks and loss of consciousness experienced by the applicant, Dr Dymond stated that the causes were unclear to him. Furthermore, he opined that the way in which the applicant's medications had been handled (for example, the fact that they had been administered by unqualified personnel), and the conditions of his detention (locked cell, bad diet and lack of exercise), were unacceptable.
74. In conclusion, Dr Dymond stated that, from the documents examined, he could not conclude whether the applicant's pains “represent[ed] an actual deterioration in his heart condition or [were] the results of stress” and that the medical reports were inconsistent. No conclusion was made as to whether the applicant could actually have a coronary disease, or ischaemic heart disease; it was stated that it was “possible” that the situation had worsened since the applicant's angiographic situation in 2004. Lastly, Dr Dymond criticised the conditions of the applicant's detention and lack of access to “modern cardiological care”.
C. Conditions of detention from 19 October 2005 to 25 October 2007
1. The applicant's version
75. Starting from the moment of his arrest on 19 October 2005 and throughout the pre-trial and trial proceedings until his conviction on 25 October 2007, the applicant was placed in solitary confinement in a two-person cell in the MNS Detention Facility, with the exception of a two-month period from 23 July to 23 September 2006 when he was receiving in-patient treatment in the Medical Facility of the Ministry of Justice. In the MNS Detention Facility, the applicant was initially placed in a cell where there was a leak in the ceiling, causing the applicant to have to place a bucket under the leak, which resulted in excessive noise and disturbance and also increased the humidity within the cell. Following several oral complaints, he was moved to a similar cell where there was no leak in the ceiling. The cell was dirty and measured about 7.5 sq. m. Approximately 4.5 sq. m of the total floor area was occupied by the furniture. The window was 0.7 m high and 1.1 m wide. However, because of the width of the window frames (5 cm), the window pane measured 0.5 m by 1 m. The window was covered, with only its top part open, allowing very little natural light to enter the cell. The ventilation and heating systems did not function properly and, therefore, it was extremely cold in winter and extremely hot in summer. There was a wall lamp which was switched on throughout the day and night, which constantly disturbed the applicant and made it hard for him to sleep.
76. Before September 2006, the applicant was allowed only twenty minutes of out-of-cell exercise per day. From September 2006, his exercise time was increased to two hours per day. However, the exercise area was extremely confined and it caused the applicant to feel dizzy when walking there. The applicant never saw any gym facilities in the MNS Detention Facility and never exercised there.
77. The applicant had to wash and dry all his clothes himself inside his cell. He was allowed to take a shower for twenty minutes once a week and was not allowed to possess a large bath towel. The food was of low quality. A few improvements in the conditions of detention were made after the applicant's health crisis of 23 April 2006; for example, the shower time was extended and extra food was allowed to be sent from home.
78. The applicant was handcuffed for the first time when he was taken from his cell for questioning. After an objection by his lawyers, the handcuffs were removed. The applicant was not allowed to send letters to his wife and family, who were not permitted to write to him or visit him either. The applicant was not allowed to give any written information to his lawyers for the purpose of preparing his defence. Any notes written by the applicant were seized.
79. From 23 July to 23 September 2006 the applicant was kept in the Medical Facility of the Ministry of Justice in a four-person room measuring about 15 sq. m.
2. The Government's version
80. In the MNS Detention Facility, at his own request, the applicant was detained alone in a cell designed for two persons. The area of the cell was about 10 sq. m. The cell had a window that was 1.4 m wide and 1.2 m high. The cell was connected to the MNS building's central heating system and was well lit and ventilated. While the electric lighting was switched on throughout the day and night in accordance with the relevant regulations, the lamp was mounted in a manner that did not disturb inmates' sleep.
81. The applicant was permitted to walk outside his cell for two hours and to use a gym. Food was served three times a day. In addition, like all other detainees, the applicant was allowed to receive from home a food package of up to 5 kg per week. The applicant was provided with clean towels and bedding. Once a week he received clean clothing from his family, so he was always dressed according to season. The applicant was never handcuffed during questioning or any other investigative steps.
82. The Government did not provide any specific information concerning the conditions of detention in the Ministry of Justice's Medical Facility.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure
83. There are two “types”, or periods, of pre-trial detention under the CCrP: (1) initial detention (police custody) of a suspected or accused person without a court order, prior to his being brought before a judge; and (2) detention on remand, following a relevant court order imposing a preventive measure of remand in custody. Both types of detention are described below.
1. Arrest and initial detention on suspicion of having committed a criminal offence
84. 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 having committed a criminal offence; or (b) a person who is 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). The 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 by the prosecuting authority charging a person with a criminal offence (Article 147.2.1).
85. Article 148 of the CCrP concerns the arrest of a person on suspicion 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, or his or her outside appearance, belongings, home or vehicle, bear clearly visible signs of his or her having committed a criminal offence (Article 148.2.1).
86. Article 148.4 states as follows:
“148.4. In cases specified in Articles 148.1 ... of this Code, the arrest may be carried out prior to the institution of the relevant criminal proceedings. If a decision to institute criminal proceedings is not issued within twenty-four hours from the moment 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 from the moment of his or her arrest, the arrested person must be charged with a criminal offence and, in the event that 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 the imposition of the preventive measure of remand in custody or [the arrested person's] release.”
87. Article 153 provides that, in order to ensure the rights of the arrested person, the relevant prosecuting authorities must carry out the following actions, inter alia: immediately after the arrest, to inform the arrested person of the reasons for the arrest and his or her 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 or herself with the record (Article 153.2.2); immediately after the arrest, to ensure that the arrested person can exercise the right to inform his or her relatives of the arrest (Article 153.2.4); and from the moment of the arrest, to allow the arrested person effective access to a lawyer (Articles 153.2.5-153.2.8). Articles 90 and 91 also provide that the same rights are to be enjoyed by a suspect or accused person.
88. 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 the person has committed a criminal offence is not confirmed;
153.3.2. if there is no necessity to further detain the person;
153.3.3. (repealed [by a legislative amendment of 2 July 2001])
153.3.4. ... if no court order remanding the arrested person in custody is issued within 48 hours after the moment of his or her arrest.
153.4. In the cases specified 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, whereas in the cases specified 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].”
2. Detention on remand
89. Article 154 of the CCrP provides for ten types of preventive measures imposed pending trial, including remand in custody (həbs qətimkan tədbiri). Any preventive measure, including remand in custody, can be applied taking into account the existence of a risk that the accused may: (a) hide from the prosecuting authority; (b) interfere with the pre-trial investigation or trial by illegally influencing the parties to the proceedings or by tampering with or hiding the relevant evidence; (c) reoffend or pose a danger to the public; (d) fail to appear before the prosecuting authority without good reason or otherwise evade criminal responsibility and punishment; or (e) hinder the execution of a court judgment (Article 155.1). The following should also be taken into account in deciding on the necessity of a preventive measure and choosing the type of measure to be applied: (a) the nature and gravity of the criminal charge and circumstances in which the investigated offence was committed; (b) the accused's personality, age, health, occupation and family, financial and social situation; and (c) whether the accused has been convicted or subjected to preventive measures before, and other relevant circumstances (Article 155.2). Moreover, as a general rule, the preventive measure of remand in custody can be imposed only with regard to a person who is charged with an offence which carries a punishment of more than two years' imprisonment (Article 155.3).
90. The CCrP distinguishes between two types of detention on remand: (1) detention “pending investigation”, that is, while the relevant prosecuting authority conducts the pre-trial investigation; and (2) subsequent detention while the case is being tried in court (hereafter referred to as “detention during the trial”). There is no apparent practical difference between these types of detention except as regards the calculation of the time-limits.
91. In respect of persons accused of especially serious criminal offences, the maximum length of detention “pending investigation” (məhkəməyədək icraat zamanı qətimkan tədbiri qismində həbsdə saxlama müddəti) cannot exceed eighteen months from the moment of the arrest, including all possible extensions of the initial three-month period (Articles 158.1, 159.1, 159.2, 159.7 and 159.8). The calculation of this total period of detention “pending investigation” takes into account any periods of actual detention, house arrest or stay in a medical facility. The running of detention “pending investigation” stops on the day the case is sent for trial or the day when the preventive measure of remand in custody is lifted (Article 158.3).
92. The period during which the accused and his or her lawyers are given access to the case file (cinayət işinin materialları ilə tanış olma müddəti) is not taken into account in calculating the period of detention “pending investigation” (Article 158.4).
93. Upon completion of the pre-trial investigation, the investigator notifies the accused person and other relevant parties and determines the time and place for giving them access to the case file (Article 284.1). Articles 284-288 of the CCrP set out detailed rules and procedures for consultation of the case file by the relevant parties, including the accused person. After the consultation of the case file is completed as required by Articles 284-288, the investigator issues the bill of indictment (Article 289). The bill of indictment is then forwarded to the prosecutor supervising the pre-trial investigation, who has five days to, inter alia, approve it or return it to the investigator for redrafting (Article 290).
94. Following the approval of the bill of indictment by the supervising prosecutor, the case is sent for trial (Article 292). If the accused person is detained on remand, the date on which the case is sent to the trial court marks the end of his or her detention “pending investigation” (Article 158.3) and the beginning of detention “during the trial”.
95. Pursuant to a legislative amendment of 14 June 2005 (repealing former Article 158.5), the CCrP no longer provides for any time-limits for detention “during the trial”.
3. Proceedings concerning the application and review of detention on remand
(a) During detention “pending investigation”
96. The preventive measure of remand in custody may be applied and extended only by means of a court order upon a request by the prosecutor supervising the pre-trial investigation (Articles 156.2 and 441.1.2).
97. Various procedural matters relating to pre-trial investigation, including the application of detention on remand, are examined in camera by a single judge of the relevant district court within twenty-four hours after receiving the relevant request (Articles 447.1 and 447.2). The following persons have a right to attend the hearing: (a) the person who has lodged the request concerning the particular procedural matter; (b) the prosecutor supervising the pre-trial investigation; and (c) the person whose rights are affected by the request, or his or her representative (Article 447.3).
98. A court order applying or refusing to apply the preventive measure of detention on remand, as well as a court order extending or refusing to extend the detention period, may be appealed against to an appellate court. The appellate court's decision on this matter is final (Articles 157.6 and 159.6).
99. The appeal must be lodged within three days after the delivery of the relevant court order (Article 452.1). Within three days of receipt of the appeal, it is examined in camera by a panel of three judges of the appellate court (Articles 453.1 and 453.2). The following persons have the right to attend the hearing: (a) the person lodging the appeal; (b) the prosecutor supervising the pre-trial investigation; and (c) the lawyer or representative of the accused person (Article 453.3).
(b) During the trial
100. Within fifteen days (or thirty days in complex cases) after the receipt of the case file, the trial court must hold a preliminary hearing (Article 298.2). At this preliminary hearing, among other things, the court must determine whether the defendant should remain in custody or be released pending trial and must issue a relevant order (Articles 299.3.5, 300.2, 301.2 and 306).
101. At any time during the trial and upon its own initiative, the court may order, vary or revoke any preventive measure, including detention on remand (Articles 156.2 and 320). Any such decision must be given in the deliberations room and must be signed by all the judges on the bench (Article 321.2.2).
102. During the trial, judicial decisions concerning preventive measures cannot be appealed against to a higher court (Article 173.2).
III. RELEVANT INTERNATIONAL DOCUMENTS
103. The following are the relevant extracts from the report on the visit to Azerbaijan carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002 (CPT/Inf (2004) 36) (“the 2002 CPT Report”):
61. The Isolator [Detention Facility] of the Ministry of National Security in Baku accommodates persons suspected or accused of offences investigated by the Ministry's competent services (crimes against the State, participation in illegal armed groups, serious organised and economic crime, violations of the border control regulations, etc.). It holds both persons in the custody of the investigation bodies of the Ministry (for up to 72 hours) and persons remanded in custody.
Located in the building of the Ministry, the Isolator had an official capacity of 106 places. ...
62. The delegation did not hear any allegations of ill-treatment of persons detained at the Isolator of the Ministry of National Security by staff working at the establishment, and did not find any other evidence of such treatment.
63. Material conditions at the Isolator were on the whole acceptable and could serve as a model for other establishments accommodating pre-trial detainees in Azerbaijan.
Inmates were accommodated in cells designed for one, two or four inmates. Single cells measured 6 to 8 m², double 10 m² and those for four persons 18 m². All cells were well lit and ventilated, and were maintained in an adequate state of repair and cleanliness. The furniture consisted of beds with full bedding, tables, benches or stools, lockers and shelves. The cells were also equipped with washbasins and floor-level toilets; as regards the latter, the delegation noted that not all of them were screened. However, partial screens were gradually being fitted in the context of the ongoing refurbishment of the establishment.
Detainees could take a hot shower once a week. Those without financial resources were provided with basic hygiene items (soap, towels and toilet paper). Bed sheets were changed weekly and washed in the laundry, which was a well-equipped facility.
The delegation did not hear any complaints about food, which was served three times a day. Detainees were also allowed to receive up to 5 kg of food per week from their families.
64. Inmates had the possibility to take one hour of daily outdoor exercise. However, the exercise yards, which were situated on the roof of the building, were small (9 to 12 m²), bare and of an oppressive design (high walls topped with wire netting). By virtue of their configuration and limited size, these facilities did not facilitate proper physical exertion.
Apart from outdoor exercise and periods of interrogation, detainees spent their time locked up in their cells with virtually nothing to occupy themselves. Radio and television sets were not authorised; the only distractions consisted of playing board games or reading books and newspapers. In their letter of 2 April 2003, the Azerbaijani authorities informed the CPT that a number of inmates had been offered work in the context of the above-mentioned refurbishment programme. The Committee welcomes this initiative, which is a step in the right direction.
65. At the time of the visit, the Isolator did not employ any health-care staff. Recourse was had to the services of general practitioners and specialists working in the nearby polyclinic of the Ministry of National Security, and there seemed to be no particular problems with access to them. Distributing medicines and managing the stock of medication was the task of custodial staff with no medical training. The delegation was informed that the director's request to employ a full-time nurse had been preliminarily approved by the Ministry. Further, in their letter of 2 April 2003, the Azerbaijani authorities informed the CPT that a decision had been taken to employ a doctor at the Isolator.
The delegation was concerned about the poor quality of medical documentation: the register of medical consultations was succinct and incomplete, and there were no individual medical files. Further, confidentiality of medical data was not respected (such data being contained in detainees' administrative files) and consultations normally took place in the presence of a custodial officer.
The delegation was informed that newly arrived inmates underwent an external body check by the duty officer. A medical screening by a doctor took place at the latest on the following day. However, there was no register of medical examinations on arrival; doctors' notes about injuries or health complaints of newly arrived inmates were entered in the inmates' administrative files, and were extremely succinct.
67. The CPT has serious concerns as regards the possibilities for inmates to maintain contacts with the outside world. ... family visits and correspondence had to be expressly authorised by the investigator, prosecutor or court, and detainees had no access to a telephone. ...”
I. SCOPE OF THE CASE
104. The original application was limited to the facts relating to the period prior to the applicant's criminal trial and resulting conviction and the case was communicated to the respondent Government on 4 April 2007 under Articles 3 and 5, Article 6 § 2 and Articles 8 and 13 of the Convention. The Court notes that, after communication, the applicant made a number of new submissions concerning “further new and continuing violations” stemming from the events that occurred during the subsequent criminal trial and the appeals against his criminal conviction. On page 8 of the applicant's observations he noted that complaints concerning these “new and continuing violations” would be the subject of a new application which he intended to lodge with the Court. As it has decided in previous cases, the Court does not find it appropriate to examine any new matters raised after the communication of the application to the Government, as long as they do not constitute a mere elaboration upon the applicant's original complaints to the Court (see Nuray Şen v. Turkey (no. 2), no. 25354/94, § 200, 30 March 2004; Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005; Kovach v. Ukraine, no. 39424/02, § 38, ECHR 2008-...; Kats and Others v. Ukraine, no. 29971/04, § 88, ECHR 2008-...; Yusupova and Others v. Russia, no. 5428/05, § 51, 9 July 2009; Saghinadze and Others v. Georgia, no. 18768/05, § 72, 27 May 2010; and Ruža v. Latvia (dec.), no. 44798/05, § 30, 11 May 2010).
105. Given that no complaints in connection with those subsequent events were raised before the communication of the present application and the decision to examine its merits at the same time as its admissibility, the scope of the present case is limited to the facts as they stood at the time of the communication, which concerned the events that took place during the period of the applicant's pre-trial detention and up to his conviction. However, the applicant has the opportunity to lodge new applications in respect of any other complaints relating to the subsequent events (see Dimitriu and Dumitrache v. Romania, no. 35823/03, §§ 23-24, 20 January 2009).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
106. The applicant complained that the allegedly harsh conditions of his detention from 19 October 2005 to 25 October 2007 and the lack of adequate medical assistance he had received while detained had amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties' submissions
107. The Government submitted that the part of the complaint relating to the period after 25 January 2006 was inadmissible for non-exhaustion of domestic remedies. They noted that, whereas the applicant had complained to the investigation authorities and courts that “his conditions of detention did not correspond to generally accepted standards”, he had not referred to any specific conditions that, in his opinion, had amounted to ill-treatment. Moreover, after 25 January 2006, he had never lodged any complaints concerning this before the domestic courts. Furthermore, he had never raised any complaints before any domestic authority concerning the conditions of his detention in the Medical Facility of the Ministry of Justice.
108. The Government submitted that the conditions of the applicant's detention could not be regarded as inhuman or degrading, that he had been held in standard conditions and that there had been no intention to somehow humiliate or debase him. In this connection, the Government referred to the findings in the 2002 CPT Report in respect of the general conditions of detention in the MNS Detention Facility, which had been considered acceptable by the CPT.
109. The Government further maintained that, throughout his detention, the applicant had had access to prompt, necessary and adequate medical treatment by numerous well-qualified medical practitioners. As to the expert opinion of Dr Thomas, the Government noted that it was unclear on which documents it was based. As to the expert opinion of Dr Dymond, the Government noted that it was irrelevant, as it had never been submitted to the domestic authorities and courts in support of the applicant's complaints under the procedure prescribed by the national courts.
110. The applicant submitted that he had complained to the domestic authorities and courts about the conditions of his detention and the alleged lack of adequate medical treatment on numerous occasions, both before and after 25 January 2006. He argued that, in any event, any of the theoretically available remedies in respect of this complaint were ineffective in practice, that pursuit of these remedies was futile and that the domestic authorities had repeatedly examined his complaints in an unfair manner.
111. The applicant disputed the Government's factual submissions concerning the conditions of his detention in the MNS Detention Facility from 19 October 2005 to 25 October 2007 (see paragraphs 80-82 above) and maintained that the actual conditions of his detention, as described by him (see paragraphs 75-79 above), amounted to ill-treatment under Article 3 of the Convention. He further claimed that the Government had relied selectively on the 2002 CPT Report and that this same report also contained “numerous criticisms” of the conditions in the MNS Detention Facility. In any event, in the applicant's opinion, the 2002 CPT Report was old and outdated and did not provide an accurate representation of the conditions of detention during the period of his detention in the MNS Detention Facility.
112. The applicant complained that the medical attention that he had received in detention had been inappropriate and inadequate and that he had been improperly diagnosed. The domestic authorities continued to falsely describe his state of health as “satisfactory”, although some of the doctors had diagnosed him with serious conditions, such as ischaemic heart disease. In general, the diagnoses made by various doctors had been different and contradictory. The applicant claimed that this demonstrated “the lack of skill and expertise of those examining him, and the inadequacy of the diagnostic tools available to them”. He argued that he should have been given access to “his own doctors, or to other independent doctors” instead of the doctors appointed by the authorities. He relied on the conclusions reached in the reports by Dr Thomas and Dr Dymond, independent experts, arguing that these reports showed that his condition was serious and that he had not received adequate treatment.
B. The Court's assessment
113. The Court finds that it is not necessary to examine the Government's objection as to non-exhaustion of domestic remedies as, even assuming that the applicant has complied with this requirement, the complaint is in any event inadmissible for the following reasons.
114. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III; and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI).
115. It cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention, nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds. It nevertheless imposes an obligation on States to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła, cited above, § 94, and Paladi v. Moldova [GC], no. 39806/05, § 71, ECHR 2009-...). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).
116. Turning to the specific circumstances of the present case, the Court will first examine the conditions of the applicant's detention in the MNS Detention Facility 19 October 2005 to 21 May 2007 and then proceed to review his state of health, its compatibility with incarceration, and the care which he has received in custody.
117. Having regard to the findings in the 2002 CPT Report and the parties' submissions, the Court considers that the material conditions of the applicant's detention, while not entirely satisfactory, were on the whole acceptable. The 2002 CPT Report even stressed that the conditions at the MNS Detention Facility “could serve as a model” for other pre-trial detention establishments in Azerbaijan. Although the parties disagreed as to the exact cell measurements, the Court notes that, in any event, the cell was not smaller than 7.5 sq. m, which is compatible with the relevant standards for pre-trial detention established by the CPT and in the Court's case-law. According to the 2002 CPT Report, all cells at the MNS Detention Facility were well lit and ventilated, maintained in an adequate state of repair and cleanliness, adequately furnished and equipped with the necessary amenities. Clean bed sheets were provided weekly. Detainees could take a hot shower once a week, were provided with basic hygiene items (in the event that they could not afford them financially), had the possibility of at least one hour of daily outdoor exercise, were fed three times a day and could additionally receive weekly food packages from outside. Despite the applicant's claims that, by the time of his detention, the 2002 CPT Report was outdated, the Court finds no convincing evidence to suggest that the material conditions at the MNS Detention Facility had become worse since the time of the CPT visit to Azerbaijan in 2002.
118. However, there were also certain problematic aspects, such as the oppressive and inadequate design of the exercise yards, the lack of sufficient daily activities and distractions available to detainees, the poor quality of the medical registers kept at the Detention Facility, and the restrictions on detainees' contact with the outside world. The Court considers that the latter aspect, in the context of pre-trial detention, does not in itself raise an issue under Article 3 and will be addressed in connection with the applicant's Article 8 complaint below.
119. Despite certain shortcomings mentioned above, the Court, having assessed all of the above elements as a whole and the cumulative effects of the conditions of the applicant's detention, does not consider that those conditions were so bad as to amount to inhuman or degrading treatment.
120. Turning to the part of the complaint concerning the applicant's state of health and alleged lack of adequate medical treatment, the Court notes that his grievances primarily concerned the alleged lack of medical expertise of the doctors who had examined him during his detention, which had allegedly resulted in incorrect and inconsistent diagnoses failing to acknowledge the seriousness of his ailments and, therefore, in inadequate medical treatment. In particular, the applicant suspected that he had a serious heart condition which the doctors had either failed or had deliberately refused to identify.
121. An assessment of the adequacy of medical treatment provided in detention becomes necessary if it is established that the applicant's medical condition was serious (see, mutatis mutandis, Paladi, cited above, § 72). Accordingly, before addressing any issues concerning the compatibility of the applicant's detention with Article 3 and the adequacy of the medical treatment provided to him, it is first necessary to establish whether the applicant actually suffered from any serious ailments which posed major health risks and required special medical attention.
122. The Court notes that, while in detention, the applicant suffered two or three attacks involving abnormally high arterial pressure and loss of consciousness. These attacks were the primary cause of the applicant's suspicion that he might have had a heart condition.
123. Having regard to the medical files in its possession, the Court observes that, indeed, at first sight it may appear that the diagnoses given to the applicant after his arrest were inconsistent. For example, at the beginning of the applicant's detention, two doctors (an MNS doctor on 29 October 2005 and the Ministry of Health cardiologist on 31 March 2006) diagnosed him with ischaemic heart disease based on the symptoms that he was complaining of (chest pains, dizziness, and so on). It is to be noted that the MNS doctor put a question mark next to his diagnosis, arguably indicating that it was tentative pending further confirmation. However, subsequent examinations did not confirm this disease, and the applicant was consistently diagnosed with neurocirculatory dystonia.
124. In this connection, the Court cannot overlook the fact that a large number of symptoms can be common for a variety of medical conditions, which can occasionally result in a mistake in a diagnosis or a need for several tests and examinations in order to make the diagnosis precise. The Court notes that although some earlier medical examinations suggested that the symptoms complained of may have been due to ischaemic heart disease, the applicant subsequently underwent a number of more comprehensive medical examinations, involving ECG, echo and other necessary tests, and was examined by a number of different doctors with the aid of the results of these tests. None of these subsequent examinations revealed any serious heart condition. In particular, the Court observes that in April 2006 the applicant was examined by four experts from the Ministry of Health; in July 2006 he was transferred, for a period of two months, to the Medical Facility of the Ministry of Justice, where he was regularly examined by different physicians; in November 2006 he was examined by a medical commission of ten doctors; and, lastly, in January 2007 a complex medical examination by ten experts in various fields of medicine was carried out.
125. It was found that the causes of the applicant's attacks were not pathological, but were due to emotional distress resulting from the sudden change in lifestyle owing to his arrest, giving rise to feelings of discomfort and sudden rises in blood pressure. This condition was known as “neurocirculatory dystonia” (a form of anxiety disorder classified as a somatoform autonomic dysfunction, also known as Da Costa's syndrome or neurocirculatory asthenia). The attacks could easily be dissipated, and the applicant could be quickly relieved of the feeling of discomfort, by taking ordinary calmative and vasodilator medications. As appears from the documents in the file and the parties' submissions, this was indeed the case, as the applicant appeared to feel better soon after taking the necessary medications. It also does not appear that the attacks had any serious or lasting pathological consequences.
126. The Court notes that the applicant disagreed with the above findings and, in support of his claims, attempted to rely on opinions by Dr Thomas and Dr Dymond (see paragraphs 61 and 73-74 above). While having no doubts as to these experts' high level of medical qualification, the Court nevertheless considers that this evidence is not devoid of problematic aspects. In particular, the opinion of Dr Thomas, who had never seen the applicant personally, is very brief and vague, and lacks any specific conclusions as to the applicant's medical condition. Most importantly, neither Dr Thomas himself nor the applicant specified on which medical records or other documents the opinion was based. It appears that, at best, Dr Thomas had been provided by the applicant's lawyers with only part of the applicant's medical file.
127. As to the opinion of Dr Dymond, the Court notes that, like Dr Thomas, he had never examined the applicant personally and based his opinion solely on translations (of unspecified quality) of the applicant's medical records and the applicant's own description of the conditions of his detention. It appears that the documents in Dr Dymond's possession were translations of the same documents that were submitted by the parties to the Court and were summarised in paragraphs 49-74 above. However, it does not appear that Dr Dymond was aware of the medical practices and terminology used by Azerbaijani doctors, which may have affected the comprehensiveness of his opinion. In particular, the Court notes that Dr Dymond criticised the Azerbaijani doctors for the use of terminology which, according to him, was not “familiar to contemporary cardiologists” and which, therefore, limited his understanding of the applicant's medical records. Specifically, he criticised the use of the terms “stenocardia” (otherwise known as angina pectoris, denoting a symptom of chest pain) and “neurocirculatory dystonia” (explained above). The Court notes, however, that both of these terms are widely used and understood by medical practitioners across the entire area of the former Soviet Union (see, for example, Kalashnikov, cited above, § 30; Nevmerzhitsky v. Ukraine, no. 54825/00, § 43, ECHR 2005-II; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 41, 29 November 2007; and Katcheishvili v. Georgia (dec.), no. 55793/09, 24 November 2009). The Court also notes that medical terminology used by practitioners in different countries is not uniform and accepts that a qualified physician in one country may not necessarily be familiar with certain terminology used in foreign countries. The mere fact that Dr Dymond was unfamiliar with most of the medical terms in the applicant's medical file could not justify a conclusion that the doctors who had examined the applicant were underqualified or that he was deprived of “modern cardiological care”.
128. Moreover, in any event, Dr Dymond concluded that the applicant suffered from “labile hypertension” and “very mild coronary artery disease”, which had been treated “quite correctly”, but refrained from making any definitive conclusions that the applicant suffered from any specific serious heart disease warranting special intervention.
129. Moreover, the Court cannot agree with the rather generally worded blanket criticism concerning the level of professional qualification of all the doctors who had examined and treated the applicant. The Court notes that the majority of the experts who examined the applicant were not prison doctors, but general practitioners and cardiologists, and finds no specific grounds to doubt their medical competence, qualification or integrity as physicians. Moreover, the Court reiterates that Article 3 does not require the medical assistance available in custody or in prison hospitals to be at a level which is better than that of the best medical institutions for the general public; it does not even necessarily require such medical assistance to be always at the same level as the general level nationwide (see, mutatis mutandis, Testa v. Croatia, no. 20877/04, § 46, 12 July 2007). In the present case, it appears that the applicant has been examined by some of the best specialists available in the country.
130. In sum, the Court finds that, from the material available in the case file, it can be sufficiently established that the applicant's attacks were caused by neurocirculatory dystonia, which is a minor medical condition treatable on an outpatient basis (see Katcheishvili, cited above), and that he did not suffer from any serious diseases which required special medical care. Moreover, it does not appear that, apart from the attacks described in the present application, the applicant experienced any subsequent emergencies or was otherwise exposed to severe or prolonged pain owing to a lack of adequate medical assistance. Since the time of his most recent communication to the Court concerning the merits of this complaint, the applicant has not made any submissions reporting any subsequent deterioration in his state of health.
131. Furthermore, in any event, having regard to the medical care received by the applicant, the Court cannot conclude that it was inadequate to such a degree as to amount to “ill-treatment”. It is true that there were certain shortcomings in the manner in which the applicant was provided with medical assistance. For example, the Court notes that, on some occasions, medications were given to him by unqualified warders, that there were certain delays in responding to some of his health-related complaints, and that a full copy of his medical file was provided to him only belatedly. On the other hand, the Court cannot lose sight of the applicant's own uncooperative behaviour towards medical personnel, seeing that on several occasions he refused to take medications prescribed to him. Having regard to the relevant circumstances as a whole, the Court considers that, despite certain shortcomings, the applicant received an acceptable level of attention from a number of qualified experts, was prescribed the necessary medications, was hospitalised for a period of two months, and was examined at reasonably regular intervals when not hospitalised.
132. In view of the above, the Court cannot conclude that the conditions of the applicant's detention were so bad as to amount to inhuman or degrading treatment, or that he suffered from any serious disease incompatible with his detention, or that the medical care available to him was inadequate to such a degree as to cause him suffering reaching the minimum level of severity required by Article 3 of the Convention.
133. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
134. The applicant complained that his arrest and detention had not been based on reasonable grounds for suspecting that he had committed a criminal offence.
135. He also complained that the deprivation of his liberty was not lawful. In particular, he noted that he had been arrested in an unlawful manner and detained in excess of the maximum forty-eight-hour period permitted by domestic law prior to being brought before a judge. He also noted that, after the expiry on 19 April 2007 of the period for his pre-trial detention authorised by the Nasimi District Court's latest extension order of 2 October 2005, he had been detained without any lawful basis.
136. The applicant relied on Article 5 §§ 1 and 3 and Articles 6 and 13 of the Convention. The Court considers that these complaints fall to be examined under Article 5 § 1 of the Convention, which reads as follows, in the relevant part:
“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 ...”
1. Reasonable suspicion
137. The Government argued that the applicant had been arrested on a reasonable suspicion that he had committed a criminal offence. In particular, the suspicion was based on the testimony of another person (Fikret Yusifov) suspected of being involved in the same criminal offence.
138. The applicant argued that the domestic authorities and the Government had failed to furnish sufficient facts and information to found a reasonable suspicion that he had committed any criminal offence. He claimed that his detention was justified by vague assertions and, in reality, was motivated by political considerations. As to Mr Yusifov's statements, the applicant appeared to argue that they had been false or misinterpreted and claimed that, later in the course of the criminal investigation, Mr Yusifov had retracted some of his statements.
139. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c) it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145-B, and Erdagöz v. Turkey, 22 October 1997, § 51, Reports of Judgments and Decisions 1997-VI). Neither is it necessary that the person detained should ultimately have been charged or taken before a court. The object of detention for questioning is to further a criminal investigation by confirming or discontinuing suspicions which provide the grounds for detention. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300-A). However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182).
140. In the present case, the applicant was suspected of complicity in planning the forcible and illegal usurpation of State power and of having engaged in actions involving corruption and abuse of his official position. It is not disputed that these types of actions qualified as criminal offences under the domestic law.
141. It appears that the initial suspicion against the applicant was based on statements by Mr Yusifov, which implicated the applicant as one of the participants in an alleged conspiracy by several current and former State officials aimed at usurping State power by illegal means. Although the applicant argued that these statements were false and improbable, the Court considers that, within the meaning of the previously cited case-law, such evidence objectively linked the applicant to the alleged criminal offence and was sufficient to have created a “reasonable suspicion” against him. Even though, owing to the apparent inability to come up with sufficient evidence to justify conviction, the prosecution did not ultimately press for the applicant's trial under Articles 278 (actions aimed at usurping State power) and 28/200 (preparation to organise public disorder), the suspicion created by the initial information received by the authorities could be considered to have been reasonable at the time of his arrest and initial detention.
142. Furthermore, during the searches in the applicant's flats and office conducted shortly after his arrest, large amounts of cash in different currencies and a number of valuable items were discovered. While this information alone was highly unlikely to suffice for a finding of guilt during a criminal trial, the Court considers that it could nevertheless have raised a reasonable suspicion in an objective observer that the applicant might have committed criminal offences resulting in his personal enrichment by abusing his official authority. From the material in the case file, it appears that, with time, further evidence was obtained by the investigation to sustain this suspicion.
143. For these reasons, the Court finds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Lawful detention
144. The Court notes that this part of the application 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.
1. General principles
145. 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). A period of detention is, in principle, “lawful” if it is based on a court order (see Benham v. the United Kingdom, 10 June 1996, §§ 42 et seq., Reports 1996-III).
146. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty is satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law are clearly defined and that the law itself is foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland, no. 28358/95, §§ 51-52, ECHR 2000-III, with further references).
147. 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-... ).
2. Circumstances surrounding the applicant's arrest and initial detention prior to the Nasimi District Court's detention order of 21 October 2005
(a) The parties' submissions
148. The Government maintained that the applicant had been brought before a judge within the forty-eight-hour period prescribed by law. They argued that the applicant had entered the MNS building at 8.25 p.m. on 19 October 2005, whereas the court hearing on the application of the preventive measure of remand in custody had started at 8.25 p.m. on 21 October 2005, exactly forty-eight hours after he had been arrested.
149. In support of this argument, the Government produced a record of the questioning of the applicant's former assistant. According to the record, the questioning was conducted on 12 February 2007 in the context of the criminal proceedings against the applicant. According to this document, the applicant's former assistant testified that on 19 October 2005 she and the applicant had stayed in the office until 8 p.m., at which time some MNS officers had come to the office, had a short conversation with the applicant and then left together with him. The Government also submitted a statement dated 13 February 2007 and signed by an officer of the entrance-exit checkpoint of the MNS building, according to which the car belonging to the applicant had entered the MNS courtyard at 8.25 p.m. on 19 October 2005. The statement also noted that the judge of the Nasimi District Court had entered the MNS building at 8.20 p.m. on 21 October 2005 and exited it at 9.40 p.m.
150. The applicant argued that the documents submitted by the Government concerning the time of his arrest were fabricated. He insisted that he had been taken to the MNS shortly after 2 p.m. on 19 October 2005. Once inside the MNS building, he had not been permitted to leave. Only after about eight hours had he been informed of the reasons for his arrest and his dismissal from ministerial office. He had been brought before the judge at 9 p.m. on 21 October 2005, that is, about seven hours after the expiry of the forty-eight-hour period prescribed by law.
151. In support of this claim, the applicant submitted signed statements by his two personal bodyguards and his personal driver, who had taken him and two MNS officers to the MNS building in the applicant's car. In the statement dated 28 August 2007, the applicant's driver stated that the car had entered the MNS building at around 2 p.m. on 19 October 2005. In the statements signed on 23 August 2007, the applicant's bodyguards stated that they had followed the applicant's car in another car and that the applicant's car had entered the MNS building at around 2 to 2.20 p.m.
152. The applicant also submitted a signed statement by a former official of the Ministry of Economic Development, Mr Huseynov, who stated that he had been due to meet the applicant at 3 p.m. on 19 October 2005 concerning a business matter, but had been informed by the applicant's secretary that the applicant had left the Ministry at 2 p.m. Mr Huseynov was one of the persons accused and convicted together with the applicant in the context of the same criminal proceedings.
153. Lastly, the applicant noted that the fact of his dismissal from ministerial office and his arrest had been intrinsically linked. He had been arrested before the information on his dismissal had become public, and the news about his dismissal had been disseminated by State-owned media at around 3 p.m. For this reason, contrary to the Government's argument, it was impossible that he could have remained working in his office until 8 p.m.
(b) The Court's assessment
154. In so far as the applicant complained, among other things, that he had been brought before a judge after the expiry of the maximum forty-eight-hour period allowed by domestic law and had not been released on the expiry of that period as required by domestic law, the Court notes that this complaint does not, as such, raise the 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 was 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.
155. Both parties appeared to agree that the applicant had been brought to the MNS building several hours before the formal record of his arrest as a suspect was drawn up at 11.15 p.m. on 19 October 2005. However, the parties were in dispute as to the exact time at which the applicant was brought into the MNS building, with the applicant maintaining that it had happened at around 2 p.m. and the Government arguing that it had been at 8.25 p.m.
156. The Court will therefore first determine when exactly the applicant was taken to the MNS building. Secondly, it will determine whether he was in fact “deprived of his liberty” during the period in question. Lastly, it will determine whether, if he was deprived of his liberty, such deprivation conformed to the requirements of “lawfulness”.
157. In determining the time of the applicant's entry into the MNS premises, the Court considers that, in the present case, in so far as the Government did not dispute that he had been taken to the MNS premises prior to the drawing up of the formal record of his arrest as a suspected person at 11.15 p.m., the benefit of the doubt should be given to the applicant and that it falls primarily to the Government to provide a detailed hour-by-hour account, supported by relevant and convincing evidence.
158. Having regard to the parties' submissions, the Court is not convinced by the evidence submitted by the Government in support of their contention that the applicant entered the MNS building at 8.25 p.m. As to the record of the questioning of the applicant's former assistant, the Court notes that the questioning concerned only the events relating to the applicant's arrest and was conducted on 12 February 2007, more than a year after the applicant had been arrested on 19 October 2005. In view of the fact that in October 2005 the applicant had already complained, in a timely manner but unsuccessfully, about this matter before the domestic courts (see paragraph 24 above), the Government failed to explain the aim pursued by the prosecuting authorities in questioning the applicant's assistant about this matter such a considerable time after the applicant's arrest, when this matter was no longer reviewable under the domestic procedure. In such circumstances, as it appears that the record of this questioning cannot be placed in any context relevant to the stage reached in the domestic criminal proceedings by February 2007, the Court doubts that it was procured for bona fide purposes and does not find this evidence to be convincing.
159. As to the statement by an officer of the entrance-exit checkpoint of the MNS building, the Court has similar doubts as to its reliability. This statement was issued on 13 February 2007, also more than a year after the date of the applicant's arrest. Apparently, this statement purports to show that, in February 2007, the records of persons who had entered the MNS building on 19 October 2005 were still intact and in the authorities' possession. In such circumstances, the Court finds it suspicious that, instead of the above statement of 13 February 2007, the Government failed to submit any official records contemporaneous to the time of the applicant's arrest, such as copies of the relevant extracts of the original record book of the MNS checkpoint containing the original entry relating to the time of the applicant's entrance into the MNS building. In the absence of such relevant primary evidence, the Court does not find the above statement by the MNS official to be convincing.
160. Furthermore, the Court notes that the witness statements submitted by the applicant were also dated as late as August 2007. However, these statements had been requested by the applicant's lawyers in an attempt to rebut the above evidence produced by the Government. Moreover, the applicant was consistent in his claims concerning the time of his initial arrest throughout the domestic proceedings. He first raised this claim in detail in his appeal against the Nasimi District Court's detention order of 21 October 2005, as soon as practicably possible in the circumstances. However, this claim was ignored by the Court of Appeal, resulting in its failure to establish in a timely manner the factual details relating to the time of the applicant's arrest.
161. Lastly, regard being had to the fact that the applicant held a high-ranking official post and to the other circumstances of the present case, it is apparent that the applicant's arrest and his dismissal from ministerial office were linked and closely followed each other, with his arrest preceding the news of his dismissal. The fact that the news of his dismissal was published by State-owned media at 2.57 p.m. adds more credibility to the applicant's version of the events.
162. Accordingly, in view of the Government's inability to provide convincing and relevant evidence in support of their version of events and the consistent and plausible nature of the applicant's submissions and evidence, the Court accepts that the applicant was, in fact, taken to the MNS building at around or shortly after 2 p.m. on 19 October 2005 and that he remained there from that time.
163. 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 gave 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). In the present case, the Court notes that, although the applicant was not handcuffed, placed in a locked cell or otherwise physically restrained within several hours after entering the MNS premises, he had been accompanied there by two senior MNS officers and, once inside, was no longer free to leave. Moreover, a letter informing the applicant's family about his arrest had been sent out several hours before the formal record of his arrest was drawn up. He was not questioned for several hours after he had been brought to the MNS building and, therefore, it could not be argued that his presence during this period was required by the obligation to appear for questioning as a witness (contrast, mutatis mutandis, Iliya Stefanov v. Bulgaria, no. 65755/01, §§ 71-75, 22 May 2008). The Court also observes that, although the Government disputed the time of the applicant's de facto arrest, they appeared to accept, and in any event did not expressly dispute, that the applicant had in fact been “deprived of his liberty” from the moment he had entered the MNS building. Accordingly, the Court considers that, from around 2 p.m. on 19 October 2005, the domestic authorities apparently considered the applicant to have been arrested and that he was “deprived of his liberty” within the meaning of Article 5 § 1.
164. That being so, it remains to be seen whether, during the period prior to the judicial order of 21 October 2005 remanding him in custody, the applicant's arrest and initial detention were devoid of arbitrariness and complied with the “lawfulness” requirements of Article 5 § 1.
165. The Court notes that, although the applicant was de facto arrested at around 2 p.m. on 19 October 2005, a formal record of his arrest was drawn up only at 11.15 p.m. on the same day. It appears that when he was asked to go to the MNS building by two MNS officers, he was not clearly apprised of the authorities' intention to arrest him on suspicion of committing a criminal offence. In this connection, referring to the general principles stated above (see paragraphs 145-47 above), the Court further reiterates that national authorities which are competent to deprive a person of his or her liberty are normally expected to act in good faith in their dealings with the latter. Thus, the intention to deprive or otherwise affect an individual's physical liberty should not, in the normal course of events, be consciously hidden by the authorities (see, mutatis mutandis Čonka v. Belgium, no. 51564/99, § 41-42, ECHR 2002-I, and Bozano, cited above, § 55), and the individual should be able to resort, if need be, to the available and legitimate remedies aimed at opposing the authorities' actions and preserving his or her liberty (see Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 53, ECHR 2009-..., with further references). Even accepting that a short period may elapse between a person's de facto arrest and the formalising of that person's status as an arrested person (compare, mutatis mutandis, I.I. v. Bulgaria, no. 44082/98, § 90, 9 June 2005), and that there was a reasonable suspicion against the applicant in the present case, the Court cannot overlook the fact that for several hours the applicant was de facto deprived of his liberty in the absence of a formal decision confirming his status as an arrested person, apparently without a lawyer's assistance, the possibility of immediately informing his family, or any sense of certainty as to his personal liberty and security. No explanation has been forthcoming from the Government or the domestic authorities as to whether the delay in formalising the applicant's arrest and ensuring his rights as an arrested person was in any way compatible with “a procedure prescribed by law” (see, in this connection, the requirements of Articles 90, 91 and 153.2 of the CCrP). Having regard to these considerations, the Court finds that the circumstances of the applicant's arrest and the first few hours of his detention were not devoid of arbitrariness.
166. Moreover, the Court notes that, where there was a suspicion that a person had committed a crime, the domestic law authorised the law-enforcement authorities to arrest and detain the suspected or accused person in the absence of a judicial order, with the purpose of instituting criminal proceedings and bringing him or her before a judge authorised to rule on his or her continued detention. Article 148.4 of the CCrP stated that, within forty-eight hours after his or her arrest, a person so detained must be brought before a judge who should either remand the person in custody or release him or her. Furthermore, Article 153.3.4 of the CCrP unequivocally required the arrested person's release, if no court order remanding him or her in custody was issued within forty-eight hours after the 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 submit any arguments or evidence to that end (contrast, mutatis mutandis, Kaiser v. Switzerland, no. 17073/04, §§ 20 and 33, 15 March 2007).
167. In the present case, the applicant was arrested at around 2 p.m. on 19 October 2005, whereas the judicial hearing concerning his remand in custody took place at some time between 8.25 p.m. and 9 p.m. on 21 October 2005 (see paragraph 22 above). Accordingly, prior to being brought before the judge, the applicant was detained for approximately fifty-four to fifty-five hours, about six to seven hours in excess of the maximum period permitted by domestic law. Neither the Government nor the domestic authorities have attempted to explain the legal basis for the applicant's continued detention beyond the period authorised by the mentioned provisions of the CCrP.
168. For the reasons stated above, the Court finds that the circumstances in which the applicant was arrested and initially detained were not devoid of arbitrariness. Moreover, the applicant's continued detention without a judicial order for the time exceeding the forty-eight-hour period prescribed by Articles 148.4 and 153.3.4 of the CCrP was incompatible with the domestic law and, therefore, not “lawful” within the meaning of Article 5 § 1 of the Convention.
169. There has accordingly been a violation of Article 5 § 1 of the Convention.
3. The applicant's detention from 19 April to 21 May 2007
(a) The parties' submissions
170. The Government noted that on 16 April 2007, before the detention order of 2 October 2006 had expired on 19 April 2007, the applicant's criminal case had been sent to the Assize Court for trial. In this connection, the Government referred to Article 158.3 of the CCrP, which provided that the running of the period of detention during the pre-trial investigation ended on the day when the case was sent to the Assize Court. They further noted that, following the sending of the case for trial and until the Assize Court's preliminary hearings, the applicant and his lawyers had been given access to the case file. According to Article 158.4 of the CCrP, the period during which the applicant and his lawyers had consulted the contents of the case file could not be taken into consideration in calculating the length of his pre-trial detention. In sum, the Government maintained that the applicant had been detained lawfully at all times before the trial stage of the proceedings had begun.
171. The applicant reiterated that the detention order of 2 October 2006, as well as the maximum overall period for detention during the pre-trial investigation, had expired on 19 April 2007 and that he had been entitled to be released on that date.
(b) The Court's assessment
172. The Court notes that the period of the applicant's pre-trial detention, authorised by the Nasimi District Court's most recent detention order of 2 October 2006, expired on 19 April 2007. This date also marked the expiry of the maximum overall period of “detention pending investigation”, allowed by Articles 158 and 159 of the CCrP. In the meantime, the investigation had been completed and the case had been sent to the Assize Court. Following its preliminary hearing, on 21 May 2007 the Assize Court ordered, among other things, that the preventive measure of remand in custody applied in respect of the applicant remain “unchanged”. Accordingly, during the period from 19 April 2007 to 21 May 2007 the applicant was detained without any judicial order authorising his detention.
173. In this connection, the Court notes that it has found a violation of Article 5 § 1 in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment had been filed with a trial court. It has held that detaining defendants without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period without judicial authorisation – is incompatible with the principles of legal certainty and the protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see, among other cases, Baranowski, cited above, §§ 53-57, ECHR 2000-III; Jėčius v. Lithuania, no. 34578/97, §§ 60-63, ECHR 2000-IX; Grauslys v. Lithuania, no. 36743/97, §§ 39-40, 10 October 2000; and Gigolashvili v. Georgia, no. 18145/05, §§ 33-36, 8 July 2008).
174. The Court observes that Azerbaijani law requires the trial court to examine the issue of extension of a defendant's detention ordered at the pre-trial stage. In accordance with the relevant provisions of the CCrP, within thirty days (at the latest) of receipt of the case file the trial court has to hold a preliminary hearing and determine whether the case is ready for trial and, if so, fix the hearing date and order the defendant's continued detention or release (see paragraph 100 above). Thus, in the event of the expiry of the last detention order issued at the investigation stage and following the referral of the case file to the trial court, the period of detention without a court order appears to be limited in principle to a maximum of thirty days. Therefore, at least in theory, it cannot be said that detention without judicial authorisation could potentially last for an unlimited or unpredictable time (compare, for example, Baranowski and Jėčius, both cited above, where there were no such time-limits).
175. However, without overlooking the fact that in any event this thirty-day time-limit was not complied with in practice in the present case, the Court considers that the existence of such a time-limit is not of primary significance for the matter under examination and does not distinguish the present case from the cases cited above (see Khudoyorov v. Russia, no. 6847/02, §§ 147-48, ECHR 2005-X). What is crucial is whether there was a lawful basis for the applicant's detention during the relevant period.
176. The Court reiterates that, for the detention to meet the standard of “lawfulness”, it must have a basis in domestic law and this law itself must be in conformity with the Convention (see paragraphs 145-46 above). In the present case, the Government appeared to rely on Article 158.4 of the CCrP to justify the applicant's continued detention after 19 April 2007 by the fact that he had been given access to the case file during the period in question. The Court cannot accept this argument. Firstly, it appears that, pursuant to Articles 284-289 and 292 of the CCrP, defendants were given access to the case file following the termination of the pre-trial investigation, but prior to the issuance of the bill of indictment and the referral of the case to the trial court (see paragraphs 93-94 above). The Government did not explain how, in such circumstances, the applicant's detention following the sending of the case for trial could be justified by Article 158.4 of the CCrP. Secondly, in any event, having analysed this provision, the Court does not see how it could be interpreted as providing for the applicant's detention without a court order. Lastly, even assuming that this provision permitted the applicant's continued detention, it did so by reference to matters wholly extraneous to Article 5 § 1 (see Jėčius, cited above, § 59, and Gigolashvili, cited above, § 33). Therefore, detention based on that provision cannot be considered compatible with the requirements of Article 5 § 1.
177. The Court stresses that detention which extends over a significant period of time and which has not been ordered by a court or by a judge or any other person “authorised ... to exercise judicial power” cannot be considered “lawful” within the meaning of Article 5 § 1 (see Baranowski, cited above, § 57). The Court notes that, in the present case, under the domestic rules of criminal procedure only the courts had the power to order or prolong detention on remand. No exception to that general rule was permitted or provided for, no matter how short the duration of the detention. However, the domestic law apparently lacked clear rules governing the situation of a detainee following the referral of the case file to the trial court, and more specifically during the period before the trial court's preliminary hearing, but after the expiry of the last detention order issued at the investigation stage. As demonstrated in the present case, this statutory lacuna resulted in situations where defendants were detained without judicial authorisation.
178. It follows that during the period from 19 April to 21 May 2007 there was no valid court order or any other “lawful” basis for the applicant's detention. By itself, the fact that the case had been sent to the court for trial did not constitute a “lawful” basis, within the meaning of Article 5 § 1 of the Convention, for the applicant's detention until the Assize Court's decision of 21 May 2007 ordering his continued detention.
179. There has accordingly been a violation of Article 5 § 1 of the Convention in respect of that period.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
180. The applicant complained under Article 5 §§ 1 and 3 and Articles 6 and 13 of the Convention that his pre-trial detention had been unreasonably long and that no relevant and sufficient reasons had been offered to justify its continuation. The Court considers that this complaint falls to be examined under Article 5 § 3 of the Convention, which provides 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.”
181. 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.
1. The parties' submissions
182. The Government argued that the applicant's detention was justified by the reasonable suspicion that he had committed a criminal offence and that, in deciding on the prosecuting authorities' requests concerning his detention, the courts had had regard to the reasons given by them to justify those requests and had assessed both parties' arguments.
183. The applicant reiterated his complaint and argued that it was arbitrary and irrational to continue detaining him rather than order his release pending trial, if necessary conditioned by guarantees to appear for trial. He contended that there had been no risk that he would abscond or seek to interfere with the criminal proceedings and that, even if there had been such a risk, non-custodial preventive measures should have been considered.
2. The Court's assessment
184. According to the Court's settled case-law, the presumption under Article 5 is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X, and Bykov v. Russia [GC], no. 4378/02, § 61, ECHR 2009-...).
185. Continued detention can therefore be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła, cited above, §§ 110 et seq.).
186. The responsibility falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned demand of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Weinsztal v. Poland, no. 43748/98, § 50, 30 May 2006; Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV; and McKay, cited above, § 43).
187. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (see, among other authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207, and Yağcı and Sargın v. Turkey, 8 June 1995, § 50, Series A no. 319-A). The burden of proof in these matters should not be reversed by making it incumbent on the detained person to demonstrate the existence of reasons warranting his release (see Ilijkov v. Bulgaria, no. 33977/96, § 85, 26 July 2001).
188. Turning to the instant case, the Court notes that it has already found that some periods of the applicant's detention were not in accordance with Article 5 § 1 of the Convention. As for the total period to be taken into consideration for the purposes of Article 5 § 3, such period begins on the day the accused is taken into custody and ends on “the day when the charge is determined, even if only by a court of first instance” (see Kalashnikov, cited above, § 110, and Labita, cited above, § 147). In the present case this period commenced on 19 October 2005, when the applicant was arrested, and ended on 25 October 2007, when the Assize Court delivered its judgment convicting him. Thus, the applicant's pre-trial detention lasted two years and six days in total.
189. The Court accepts that the existence of a reasonable suspicion that the applicant had committed serious criminal offences may have initially sufficed to warrant his detention. However, with the passage of time that ground inevitably became less and less relevant (see paragraph 187 above), and his continued detention had to be justified by other relevant reasons, taking into account his personal situation.
190. During the pre-trial investigation stage of the proceedings, the applicant's detention was extended by the Nasimi District Court three times, by its decisions of 13 January, 13 May and 2 October 2006. All of these decisions were upheld by the Court of Appeal following appeals by the applicant in which he argued in favour of his release. In addition, on 17 July 2007 the Nasimi District Court rejected the applicant's request to be released on bail. Lastly, at the trial stage of the proceedings, the applicant's detention was extended by the Assize Court's decision of 21 May 2007 (which, by virtue of Article 173.2 of the CCrP, could not be appealed against).
191. As to the first-instance and appellate courts' decisions extending the applicant's detention during the pre-trial investigation, his continued detention was justified each time on the grounds of the gravity of the charges and the likelihood of his absconding and exerting pressure on persons participating in the proceedings. In this connection, the Court notes that, while the severity of the sentence faced is one of the relevant elements in the assessment of the risk of absconding, the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Ilijkov, cited above, §§ 80-81). Moreover, the risk of absconding, which may justify detention, cannot be gauged solely on the basis of the severity of the sentence faced. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Panchenko v. Russia, no. 45100/98, § 106, 8 February 2005, and Letellier, cited above, § 43). In the present case, however, the judicial decisions did not go any further than listing the above-mentioned grounds, including the risk of absconding, using a stereotyped formula paraphrasing the terms of the CCrP (compare Giorgi Nikolaishvili, cited above, §§ 23-24, 28, 76 and 79). They failed to mention any case-specific facts relevant to those grounds and to substantiate them with relevant and sufficient reasons. The Court also notes that the courts extending the applicant's detention repeatedly used the same stereotyped formula and their reasoning did not evolve with the passing of time to reflect the developing situation and to verify whether these grounds remained valid at the later stages of the proceedings.
192. The Court does not deny that there may have existed specific, relevant facts warranting the applicant's deprivation of liberty. However, even if such facts existed, they were not set out in the relevant domestic decisions. It is not the Court's task to take the place of the national authorities and establish such facts in their stead (see Ilijkov, cited above, § 86; Panchenko, cited above, § 105; and Giorgi Nikolaishvili, cited above, § 77).
193. As to the Assize Court's decision of 21 May 2007, the Court notes that it mentioned certain factors in assessing the risk that the defendants might abscond and exert pressure on witnesses (such as the defendants' wealth and their contacts abroad). However, the Assize Court's analysis concerned several defendants collectively, without a case-by-case assessment of the grounds justifying the continued detention of each individual detainee, including the applicant. Such practice of issuing “collective” extension orders is, in itself, incompatible with the guarantees enshrined in Article 5 § 3 of the Convention, as it fails to take into account the personal circumstances of each detained person (see Khudoyorov, cited above, § 186).
194. In view of the foregoing considerations, the Court concludes that, by using a stereotyped formula merely listing the grounds for detention without addressing the specific facts of the applicant's case, the authorities failed to give “relevant” and “sufficient” reasons to justify extending the applicant's pre-trial detention to two years and six days.
195. There has accordingly been a violation of Article 5 § 3 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
196. Relying on Articles 5, 6 and 13 of the Convention, the applicant complained that the judicial proceedings concerning his detention had not been adversarial in nature and had been unfair. In particular, he noted that the courts had examined the question of his continued detention in his absence, that there had been no public hearings, that he had not been given access to the material that the prosecuting authorities had submitted to the courts to justify their requests for his continued detention, that the courts had not addressed his specific arguments in favour of his release, that the first-instance judges ordering and extending his detention had not delivered their respective decisions in an ordinary courtroom, and that, generally, he had been denied equality of arms.
197. In so far as the present complaint concerns only the proceedings concerning the applicant's pre-trial detention and not the criminal proceedings as a whole, it does not fall within the ambit of Article 6 (see, for example, Guliyev v. Azerbaijan (dec.), no. 35584/02, 27 May 2004), and the Court considers that it falls to be examined under Article 5 § 4 of the Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
198. The Court notes that, among other arguments raised in connection with this complaint, the applicant complained that the hearings in the proceedings concerning his pre-trial detention had not been public. In this connection, the Court has previously held that Article 5 § 4, although requiring a hearing for the review of the lawfulness of pre-trial detention (see paragraph 203 below), does not as a general rule require such a hearing to be open to the public (see Reinprecht v. Austria, no. 67175/01, §§ 34-41, ECHR 2005-XII). The Court does not find any special circumstances in the present case that could have required a public hearing in the proceedings concerning the review of the lawfulness of the applicant's detention. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
199. As to the remainder of the complaint, the Court notes that it 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.
1. The parties' submissions
200. The Government submitted that the applicant had had at his disposal an effective procedure by which he could challenge the lawfulness of his detention. In the Government's view, this procedure was provided for by the provisions of the CCrP concerning an accused person's right to lodge complaints with the domestic courts against any procedural steps or decisions taken by the prosecuting authorities.
201. The applicant reiterated his complaint, arguing that equality of arms and the requirements of fairness had not been ensured in the proceedings in which he had challenged the lawfulness of his detention.
2. The Court's assessment
202. Having regard to the specific circumstances complained of, the Court notes that the scope of the present complaint is limited to facts relating to the proceedings for the review of the lawfulness of the applicant's detention during the pre-trial investigation.
203. The Court reiterates that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, within the meaning of Article 5 § 1, of his or her deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest, and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Brogan and Others, cited above, § 65). Although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. The proceedings must be adversarial and must always ensure equality of arms between the parties. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Assenov and Others v. Bulgaria, 28 October 1998, § 162, Reports 1998-VIII). The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B). Moreover, equality of arms is not ensured where a detainee or his or her counsel is denied access to those documents in the investigation file which are essential in order to challenge effectively the lawfulness of the detention (see Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151).
204. Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of applications for release from detention. Nevertheless, where domestic law provides for a system of appeal, the appellate body must also comply with Article 5 § 4 (see Toth v. Austria, 12 December 1991, § 84, Series A no. 224). As for court decisions ordering or extending detention, Article 5 § 4 guarantees no right, as such, to an appeal against those decisions, but the intervention of a judicial body at least at one level of jurisdiction must comply with the guarantees of Article 5 § 4 (see, mutatis mutandis, Ječius, cited above, § 100).
205. Turning to the facts of the present case, the Court notes that the applicant's detention was ordered when he was brought before the judge of the Nasimi District Court on 21 October 2005. The domestic law gave him a right of appeal against that decision. The requirements of Article 5 § 4 of the Convention can be said to apply to these appeal proceedings, which resulted in the Court of Appeal's decision of 26 October 2005 and in which the applicant was represented by his lawyer.
206. Subsequently, the applicant's detention “pending investigation” was extended three times by the Nasimi District Court, on 13 January, 13 May and 2 October 2006, each time in the absence of the applicant or his lawyers. As the applicant appealed against all of these extension orders challenging the lawfulness of his continued detention, all of these appeal proceedings, resulting in the Court of Appeal's decisions of 19 January, 22 May and 9 October 2006, also attracted the guarantees of Article 5 § 4 of the Convention. The Court notes that the applicant was represented by his lawyers during the examination of these appeals, but was absent himself.
207. While by virtue of the above proceedings the applicant's detention “pending investigation” was extended for significant periods of time, he was unable to attend personally any of those court sessions, which took place months after the original detention order. The Court considers that, given what was at stake for the applicant – that is, his liberty – as well as the lapse of time between the original hearing and the subsequent extension orders, the courts should have taken steps to ensure that the applicant was heard in person and was afforded an opportunity to convey to the courts his personal situation and arguments for his release (compare, mutatis mutandis, Graužinis v. Lithuania, no. 37975/97, §§ 33-34, 10 October 2000, and Mamedova v. Russia, no. 7064/05, § 91, 1 June 2006).
208. Although this was not done, efforts should have been made to ensure that the applicant's position was conveyed through effective representation by counsel. However, the Court is not convinced that this took place in the present case either. Although the applicant's lawyers attended the court sessions held in connection with the examination of his appeals, those court sessions were held as a matter of formality and did not take the form of genuinely adversarial hearings involving, inter alia, oral submissions by the parties. It is true that the applicant's lawyers could make their submissions in writing by lodging their complaints on appeal, but this fact does not, in itself, mean that equality of arms was ensured. The Court notes that the prosecuting authority's submissions in support of the applicant's detention were not made available either to the applicant or his lawyers, depriving them of the opportunity to comment on those submissions, either in writing or orally, in order to effectively contest the reasons invoked by the prosecuting authority to justify his detention.
209. In any event, the courts did not even address any of the specific arguments advanced by the applicant in his written submissions challenging his continued detention (see paragraph 30 above), although those arguments did not appear to be irrelevant or frivolous. The Court reiterates that, while Article 5 § 4 of the Convention does not impose an obligation to address every argument contained in the detainee's submissions, the judge examining appeals against pre-trial detention must take into account concrete facts which are referred to by the detainee and are capable of casting doubt on the existence of those conditions essential for the “lawfulness”, for Convention purposes, of the deprivation of liberty (see Nikolova v. Bulgaria [GC], no. 31195/96, § 61, ECHR 1999-II). By not taking into account the applicant's specific arguments against his continued detention, the domestic courts failed to carry out a judicial review of the scope and nature required by Article 5 § 4 of the Convention.
210. As the above considerations are sufficient for finding a violation, the Court considers it unnecessary to examine the applicant's other arguments advanced in support of this complaint.
211. There has accordingly been a violation of Article 5 § 4 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
212. The applicant complained that the joint statements made by the Prosecutor General's Office, the MNS and the Ministry of Internal Affairs to the press on 20 and 21 October 2005 had amounted to an infringement of his right to the presumption of innocence. He also complained that, subsequently during the course of the pre-trial investigation, various public officials, including the President of Azerbaijan and the Prosecutor General, had made public statements describing him as a criminal. Lastly, he complained that, in the decisions ordering and extending his pre-trial detention, the domestic courts had also breached his presumption of innocence by prejudging his guilt before he had been proved guilty following a criminal trial. Article 6 § 2 of the Convention provides as follows:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
213. In so far as the applicant complained of a breach of the presumption of his innocence by the domestic courts in their decisions ordering and extending his pre-trial detention, the Court, having carefully examined the original texts of the relevant decisions (rather than the English translations procured by and relied on by the applicant), finds that none of them contained any wording that could be interpreted as prematurely declaring the applicant guilty of the offences that he was charged with. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
214. As to the remainder of the complaint, the Court notes that it 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.
1. The parties' submissions
215. The Government argued that the impugned statements of 20 and 21 October 2005 had not depicted the applicant as a criminal. Rather, they had informed the public about the fact of his arrest and referred to the available evidence and various items found during the searches of the premises belonging to him. This information had been provided “without making any legal assessment of those facts”.
216. The applicant reiterated his complaint and argued that, while he had not been expressly called a “criminal”, the purpose and effect of those statements had been to depict him as such. He also noted that the Government had failed to address in their submissions the other statements by public officials of which he had also complained.
2. The Court's assessment
217. The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308). It not only prohibits the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Minelli v. Switzerland, 25 March 1983, § 38, Series A no. 62), but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, cited above, § 41, and Daktaras v. Lithuania, no. 42095/98, §§ 41-43, ECHR 2000-X). The Court stresses that Article 6 § 2 cannot prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Allenet de Ribemont, cited above, § 38).
218. It has been the Court's consistent approach that the presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty. A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court has consistently emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence (see Khuzhin and Others v. Russia, no. 13470/02, § 94, 23 October 2008, with further references). Whether a statement by a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Butkevičius v. Lithuania, no. 48297/99, § 49, ECHR 2002-II).
219. Article 6 § 2 governs criminal proceedings in their entirety and a person charged with a criminal offence has a right to be presumed innocent throughout the proceedings, irrespective of whether he or she is ultimately found guilty or not by the competent court (see, mutatis mutandis, Minelli, cited above, § 30, and Matijašević v. Serbia, no. 23037/04, § 49, ECHR 2006-X).
220. The Court notes that in the present case the impugned statements were made to the press, in a context independent of the criminal proceedings themselves. The Court acknowledges that the fact that the applicant, as Minister for Economic Development, was a high-ranking State official may have required the authorities to keep the public informed of the criminal accusations against him and the ensuing criminal proceedings. However, this circumstance cannot justify the lack of caution in the choice of words used by the authorities in their statements. Moreover, in the present case, the statements at issue were made at a time when the criminal investigation in respect of the applicant had just been started. It was particularly important at this initial stage, even before the applicant had been formally charged, not to make any public allegations which could have been interpreted as confirming the guilt of the applicant in the opinion of a State law-enforcement authority.
221. The Court accepts that the primary purpose of the impugned statements may have been to inform the public about the fact of, and the reasons for, the institution of criminal proceedings against the applicant and several other State officials. However, the Court considers that the specific content of those statements, including the choice of words used in them, is problematic from the standpoint of Article 6 § 2.
222. As to the statement of 20 October 2005, the Court notes, firstly, that it contained a long and detailed account of the contents of the witness testimony given by Fikret Yusifov, which at the relevant time appeared to be, at least formally, the only piece of evidence incriminating the applicant in connection with the alleged attempted coup d'état. While this evidence could have formed the basis for a reasonable suspicion against the applicant, at that stage various factual allegations made by Mr Yusifov were uncorroborated by any other evidence and were far from being established as true. In such circumstances, the Court finds unclear and questionable the actual reasons that made it necessary to disclose this (still unconfirmed) testimony to the public in such great detail and at such an early stage in the course of the investigation. In the Court's opinion, at the relevant time, a brief description of this evidence would have sufficed for the declared purpose of merely informing the public about the nature of the accusations against the applicant. Having examined the text of the impugned statement of 20 October 2006, the Court considers that, although at the beginning it clearly attributed the allegations to Mr Yusifov, the wording used subsequently to convey the content of his testimony was set out as though describing facts that had actually taken place. It should be kept in mind that the impugned statements were intended for the general public, consisting largely of lay people who could find it difficult to differentiate between descriptions of established facts and mere allegations simply from the context of the impugned statements. As the detailed narrative of this information continued through several paragraphs, it lacked sufficient qualification or reservation to sustain the notion that these were merely allegations by a single witness which were yet to be confirmed by the investigation, and not established facts.
223. Secondly, the Court notes that the statement of 20 October 2005 went on to declare that “... it was also established that Farhad Aliyev, having abused his official authority and committed serious breaches of the law during the process of privatisation of State property, had procured documents of title to State property at negligible prices and formally registered the property in the name of his relatives and acquaintances, and thus de facto transferred it into his ownership”. Even leaving aside the question whether, on 20 October 2005, the prosecuting authority had any concrete evidence to back up these specific remarks, the Court considers that the remarks were in complete disregard of the applicant's presumption of innocence, as they constituted an unequivocal declaration that he had committed criminal acts and were made without the necessary discretion and circumspection.
224. Similarly, both statements of 20 and 21 October 2005 declared that, as a result of the searches of various premises belonging to the applicant, the authorities had “seized large amounts of foreign currency, jewellery, works of art and other valuable items obtained in a criminal manner”. By the use of this wording, the impugned statements explicitly and unreservedly declared the applicant guilty of a criminal offence, although at that time the applicant had not yet been convicted and it had not been proved according to law that he had obtained those items “in a criminal manner”.
225. Given that the above official statements were made jointly by three different law-enforcement bodies competent to conduct a criminal prosecution on behalf of the State, particular caution should have been exercised by them in the choice of words to describe the pending criminal proceedings. The Court considers that those statements, made without the necessary qualifications or reservations, contained wording amounting to a declaration that the applicant had committed certain criminal offences. As such, they prejudged the assessment of the facts by the competent judicial authority and could not but have encouraged the public to believe the applicant guilty before he had been proved guilty according to law.
226. In view of the above finding, the Court considers it unnecessary to examine the applicant's further arguments concerning other statements made by various officials.
227. The Court finds that there has been a violation of Article 6 § 2 of the Convention.
VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 6 of the Convention
228. Relying on Article 6 §§ 1 and 3 of the Convention, the applicant raised a number of complaints concerning the proceedings relating to his pre-trial detention, which the Court has already examined under the relevant paragraphs of Article 5 above. In so far as some of the applicant's submissions under Article 6 can be construed as a complaint about the alleged unfairness of the criminal proceedings against him as a whole, the Court notes that the scope of the present application is limited to the facts relating to the period prior to the applicant's trial, conviction and appeals against this conviction, and that therefore it does not cover the entirety of the proceedings concerning the determination of criminal charges against him (see paragraphs 104-05 above). Even if some factual events that took place prior to the trial may be relevant for the assessment of the fairness of the proceedings as a whole, this part of the complaint must be rejected as having been raised prematurely in the context of the present application.
B. Article 8 of the Convention
229. The applicant complained of a restriction of correspondence and visits from his family and his British lawyer during the period of his pre-trial detention. He claimed that his letters had been intercepted and censored, and that any legal basis for such restrictions had not been disclosed to him. Article 8 of the Convention provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
230. The Government submitted that the applicant had failed to exhaust the domestic remedies, as he had never raised any of the specific allegations in the present complaint before any domestic authority and had never relied on Article 8 of the Convention, or provisions of domestic law of the same or a similar nature, in his applications to the domestic authorities. The Government noted that, under the CCrP, it was open to the applicant to complain to the domestic courts about any actions of the prosecuting or investigating authorities violating his rights. The Government acknowledged that visits to the applicant by his family (but not his lawyers) had indeed been restricted during the pre-trial investigation in the interests of justice, and that the CCrP provided a relevant legal basis for this. However, according to the Government, neither the applicant nor his family members had been prohibited from corresponding in writing.
231. The applicant argued that he had raised this complaint before the domestic authorities and that, in any event, seeking any effective redress from the domestic authorities was futile. In particular, the applicant noted that he had raised this complaint in his appeals of 24 November 2005 and 29 December 2005 lodged with the Nasimi District Court and the Court of Appeal respectively. The applicant further argued that he had been prohibited not only from receiving visits from his family, but also from corresponding with them.
232. The Court reiterates that the purpose of the domestic-remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the alleged violations before they are submitted to the Court (see, among other authorities, Hajibeyli v. Azerbaijan, no. 16528/05, § 35, 10 July 2008). The Court accepts the Government's submission that it was open to the applicant to complain to the domestic courts about the actions or omissions of the prosecuting authorities that had allegedly breached his rights. Having regard to the content of the applicant's appeals of 24 November and 29 December 2005, the Court notes that the applicant complained solely that he had not been able to call his family immediately after his arrest. This state of affairs was described by his lawyer as a breach of the applicant's procedural rights as an arrested person (this issue was discussed in paragraph 165 above in the context of the complaint under Article 5 § 1 of the Convention), but not as a breach of his right to respect for his private and family life. Other than this specific matter, neither of the two appeals referred to by the applicant contained any grievances raised by him in the present complaint before the Court concerning the alleged general bans on family visits and correspondence throughout the entire detention period. It does not appear that the applicant raised any of these grievances at any later time during his pre-trial detention.
233. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Other alleged violations
234. The applicant complained under Article 5 § 2 of the Convention that he had not been informed promptly of the reasons for his arrest and of the charges against him. The applicant also complained under Articles 13 and 14 of the Convention, in conjunction with all of his other complaints, that there were no effective remedies to redress the violation of his Convention rights and that he had been “singled out” for discriminatory treatment owing to his political opinions.
235. 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 finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
236. 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.”
1. Pecuniary damage
237. The applicant claimed that, as a result of his unlawful detention, he had been prevented from working and had sustained a loss of income. He claimed 28,800 new Azerbaijani manats (AZN) for loss of salary during the period from 1 October 2005 to 1 October 2007, calculated on the basis of his former ministerial salary, plus any further loss of income during the period from 1 October 2007 to the date of the Court's judgment, to be calculated on the same basis.
238. The Government noted that on 19 October 2005 the applicant had been dismissed from ministerial office and could not therefore claim a ministerial salary. They submitted that the applicant's claim was unsubstantiated.
239. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore dismisses this claim.
2. Non-pecuniary damage
240. The applicant submitted that the violations of his Convention rights had caused him pain, suffering, anxiety and distress and damaged his reputation. Without specifying any amount, the applicant requested the Court to make an award that it considered to be “just and equitable in this case”.
241. The Government submitted that the finding of violations would constitute sufficient reparation in respect of any non-pecuniary damage suffered.
242. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations and that compensation has thus to be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of 16,000 euros (EUR) under this head, plus any tax that may be chargeable on this amount.
B. Costs and expenses
243. The applicant claimed 368,632.79 pounds sterling (GBP) for the legal fees incurred in connection with the proceedings before the Court, and an additional amount of GBP 25,440.50 for “unbilled work in progress”. These legal fees were claimed in connection with the work done by Ms Lucy James of Trowers & Hamlins Solicitors, and Lord Lester of Herne Hill QC of Blackstone Chambers. In support of this claim, the applicant submitted a number of time sheets and invoices prepared by the above-mentioned lawyers. These invoices included fees for more than 200 hours of work by Ms James and other solicitors of Trowers & Hamlins, fees for an unspecified number of hours of work by Lord Lester, and a number of various other disbursements and charges.
244. The Government submitted that the amounts claimed were excessive and had not been reasonably or necessarily incurred. They noted that a significant number of entries in the submitted invoices were of a very general nature and did not specify the concrete work done by the relevant lawyer. Moreover, the invoices also contained entries relating to work done by persons who had no authorisation to represent the applicant before the Court.
245. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.
246. The Court notes that a significant portion of the submissions made by the applicant's lawyers concerned complaints that were either declared inadmissible or were outside the scope of the present case. Therefore, no award can be made in respect of the costs and expenses incurred in connection with those submissions.
247. The Court also notes that the claims in respect of a number of costs and expenses were not supported by the relevant evidence. Furthermore, the Court is not persuaded that all of the fees claimed by the applicant's lawyers were necessarily and reasonably incurred. Deciding on an equitable basis and having regard to the details of the claims submitted by the applicant and the amounts awarded to British lawyers in cases of comparable complexity, the Court awards the applicant the sum of EUR 25,000 in respect of legal fees and other costs and expenses, plus any tax that may be chargeable to him.
C. Default interest
248. The Court considers it appropriate that the default interest 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 complaints under Articles 5 § 1 (in the part relating to the lawfulness of the applicant's arrest and initial detention prior to being brought before a judge and the period of detention from 19 April to 21 May 2007), 5 § 3, 5 § 4 (in the part relating to the fairness of judicial review of the lawfulness of the applicant's continued detention) and 6 § 2 (in the part relating to the law-enforcement authorities' statements to the press) of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the circumstances of the applicant's arrest and initial detention prior to being brought before a judge;
3. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant's detention during the period from 19 April to 21 May 2007;
4. Holds that there has been a violation of Article 5 § 3 of the Convention;
5. Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the judicial review of the applicant's continued detention;
6. Holds that there has been a violation of Article 6 § 2 of the Convention in respect of the public statements about the applicant made by the law-enforcement authorities;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into new Azerbaijani manats at the rate applicable at the date of settlement; and
(ii) EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into his representatives' bank account in the United Kingdom;
(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;
8. Dismisses the remainder of the applicant's claim for just satisfaction.
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
FARHAD ALIYEV v. AZERBAIJAN JUDGMENT
FARHAD ALIYEV v. AZERBAIJAN JUDGMENT