Last Updated on October 2, 2020 by LawEuro
Information Note on the Court’s case-law 243
August-September 2020
Mirgadirov v. Azerbaijan and Turkey – 62775/14
Judgment 17.9.2020 [Section V]
Article 8
Article 8-1
Respect for correspondence
Respect for family life
Respect for private life
Lack of legal basis for restrictions on detainee’s right to receive and subscribe to socio-political magazines and newspapers: violation
Facts – Following deportation from Turkey to Azerbaijan, the applicant was arrested in Azerbaijan and charged with high treason for espionage. He was held in detention pending trial. The investigator decided to restrict the applicant’s rights to use the telephone, to correspond with and meet people other than his lawyers, and to receive and subscribe to any socio-political newspapers or magazines. These measures were imposed temporarily during the preliminary investigation, without any specific time-limit, on the basis of Articles 17.3 and 19.8 of the Law on the Guarantee of the Rights and Freedoms of Individuals Kept in Detention Facilities of 22 May 2012 (“the Law of 22 May 2012”). The applicant unsuccessfully challenged these measures.
Law
(a) Complaints against Azerbaijan
Article 8: The impugned measures constituted an interference with the exercise of the applicant’s right to respect for his private and family life and correspondence.
(i) Restrictions on the applicant’s right to receive and subscribe to any socio-political newspaper or magazine – Neither Article 17.3 nor Article 19.8 of the Law of 22 May 2012 provided for the possibility to impose such a restriction on a detainee. Moreover, Article 23 of the Law of 22 May 2012, which governs a detainee’s right to receive and subscribe to a newspaper or magazine, provided for restrictions only in respect of publications propagandising war, violence, extremism, terror and cruelty, or inciting racial, ethnic and social enmity and hostility, or containing pornography. The Azerbaijani Government had also failed to refer to any legal provision laying down restrictions in respect of receiving and subscribing to socio‑political newspapers or magazines. Consequently, it was not possible to establish that the interference with the applicant’s right in this regard had a legal basis in domestic law.
(ii) Restrictions on the applicant’s right to have telephone calls, correspondence and visits – Those restrictions had a legal basis in domestic law, and the law itself was clear, accessible and sufficiently precise. They had amounted to a de facto outright ban on the applicant having any contact (meetings, telephone calls or correspondence) with the outside world, except for contact with his lawyers. However, neither the investigator nor the domestic courts had put forward any relevant justification in support of the imposition of such harsh and all‑encompassing measures. In particular, the domestic authorities had confined themselves to referring to the necessity to protect the confidentiality of the investigation and prevent the disclosure of information about the investigation, without providing any explanation as to why the impugned measures were appropriate and necessary in the present case. The Court was unable to discern any factual elements which could have warranted such stringent limitations on the family visits in the instant case, since none of the applicant’s family members had been in any way involved in the criminal proceedings in question, and there were no apparent indications that there was a risk of secret information being transferred to foreign intelligence services through his family members. The reasons given by the domestic authorities in support of those restrictions were not relevant and sufficient.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been a violation of Article 5 § 1 on account of the absence of a reasonable suspicion that the applicant had committed an offence and on account of the applicant’s detention from 19 to 20 November in the absence of a court order; that there had been a violation of Article 5 § 4 on account of the domestic courts’ failure to assess the applicant’s arguments in favour of his release, and of Article 6 § 2 on account of a public statement on July 2014 which had violated the applicant’s right to be presumed innocent until proven guilty according to the law; that there had been no violation of Article 18 § 5 taken in conjunction with Article 5, on the basis that that the evidence before the Court did not enable it to find beyond reasonable doubt that the applicant’s arrest and detention had pursued any ulterior purpose.
(b) Complaints against Turkey – The Court held that there was no need to examine the applicant’s complaint under Article 5 § 4 against Turkey, and declared the remainder of his complaints against Turkey inadmissible.
Article 41: EUR 20,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
(See also Khoroshenko v. Russia [GC], 41418/04, 30 June 2015, Information Note 186; Moiseyev v. Russia, 62936/00, 9 October 2008, Information Note 112; and Andrey Smirnov v. Russia, 43149/10, 13 February 2018)
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