Last Updated on January 18, 2024 by LawEuro
European Court of Human Rights (Application no. 4854/10)
The applicants were among the founders of two youth organisations, the Alumni Network and OL!. As social activists, the applicants engaged in blogging, with a focus on satirical videos, some of which were critical of the authorities, and uploading them to social networking websites. On 28 June 2009 the applicants uploaded a video named “Interview with a Donkey” to YouTube and disseminated it through various social networking sites such as Facebook. The video criticised, in a satirical manner, alleged corrupt practices by Government officials.
According to the applicants, on 8 July 2009, a few days after the video had been uploaded, they were at a restaurant in Baku with five friends. Two men, sitting at a nearby table, later identified as V.M. and B.H., began arguing with them about critical remarks they had overhead the applicants making about the Government. V.M. approached the applicants’ table and unexpectedly head-butted the second applicant and then assaulted the first applicant. The applicants hastily left the restaurant and headed to Police Station no. 39 of the Sabail District Police Department to report the assault. On their way to the police station, they made telephone calls to friends and informed them about the incident. Several youth activists arrived at Police Station no. 39 and saw the applicants’ injuries. At Police Station no. 39 the applicants were instructed to report the matter to Police Station no. 9, which had territorial jurisdiction. The applicants made their own way to Police Station no. 9; on arrival, they filed a criminal complaint against V.M. and B.H., who were brought to the station in police cars.
On 8 July 2009 the investigator instituted criminal proceedings against the applicants under Article 221.2.1 (hooliganism) of the Criminal Code. He questioned the applicants and also V.M. and B.H., and organised face-to-face confrontations between them. During the initial interviews, the applicants were not informed that a criminal case had been instituted against them.
On 11 July 2009 the Baku City Prosecutor’s Office and the Baku City Chief Police Department, and on 14 July 2009 the Prosecutor General’s Office and the Ministry of Internal Affairs issued joint official statements to the media, stating that the applicants had been arrested for violating public order and committing the criminal offence of hooliganism.
The European Court of Human Rights noted the following:
ALLEGED VIOLATION OF ARTICLE 5 §§ 3 and 4 OF THE CONVENTION
Having examined all the material submitted to it, the European Court of Human Rights has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of this complaint. Having regard to its case-law on the subject, the Court considers that in the present case, by using a standard formula merely listing the grounds for detention without mentioning the specific facts of the applicants’ case, as well as by dismissing their request for the replacement of remand in custody with a non-custodial preventive measure without duly examining the arguments for release put forward by them, the domestic courts failed to give “relevant” and “sufficient” reasons to justify the applicants’ pre-trial detention.
This complaint is therefore admissible and discloses a violation of Article 5 § 3 of the Convention in respect of both applicants.
Having regard to the above finding, the Court does not consider it necessary in the present case to examine separately, under Article 5 § 4 of the Convention, whether the judicial hearings concerning the applicants’ continued pre-trial detention were unfair.
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The applicants also complained under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention that: the criminal proceedings as a whole had been unfair and arbitrary; they had not been provided with adequate time and facilities for the preparation of their defence; they had not been allowed access to legal assistance of their own choosing immediately; and the domestic courts had arbitrarily refused to examine evidence and witnesses on behalf of the defence, had assessed the evidence in an arbitrary manner and had failed to provide a reasoned decision in respect of various aspects of the case.
The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
The Court observes that the applicants’ arguments before the first‑instance court concerned the factual circumstances of their case. From the initial interviews during the pre-trial investigation, the applicants maintained their innocence and argued that it was they who had in fact been the victims in the present case. In support of their claims, the applicants asked the courts to admit and examine as evidence the photographs supporting their account of events, namely, that after the incident at the restaurant they had told their friends about it and had gone to Police Station no. 39 to lodge a complaint against V.M. and B.H. The applicants’ account of events was furthermore supported by the statements of the friends who had been with them at the restaurant and had accompanied them to both police stations. In addition, the applicants requested, albeit unsuccessfully, that the courts hear other witnesses who had allegedly seen them arrive at Police Station no. 39.
The Court notes that the applicants’ version of the events contradicted the prosecution’s version, according to which the applicants, and also V.M. and B.H., had been arrested in the restaurant and taken directly to Police Station No. 9.
It appears that the applicants’ arguments were both important and pertinent since, if proved, they would potentially have trumped the prosecution’s account of events and called into question the plausibility of the victims’ statements and the prosecution’s witnesses, consequently affecting the outcome of the trial and possibly leading to the applicants’ acquittal. The Court considers that these arguments related to the core of the criminal case against them and called for a very specific and explicit reply.
Nevertheless, the domestic courts, without providing any adequate reasoning, rejected the applicants’ arguments and instead accepted without question the prosecution’s account of events. However, they did not provide any plausible explanation as to why the various items of evidence in support of the applicants’ arguments were considered less credible than, inter alia, the statements by the prosecution witnesses. They also failed to explain why they considered it unnecessary to hear the applicants’ additional witnesses, who could potentially have further strengthened the credibility of the applicants’ accounts and consequently weakened that of the prosecution.
It is also not clear why the fact that the defence witnesses had a personal relationship with the applicants would lead to an assumption that they would necessarily give untruthful statements in court and risk committing perjury. In such circumstances, the Court considers that the domestic courts’ conclusion that the witnesses who had testified in the applicants’ favour were untruthful and biased towards the applicants was made without sufficient reasons and without due regard to their individual situations.
Furthermore, the defects of the original trial had not been remedied by either the Court of Appeal or the Supreme Court. Both courts merely reiterated the reasoning of the first-instance court and failed to explain why the prosecution’s evidence was more reliable than that of the applicants.
The Court has previously held, in examining the fairness of criminal proceedings, that by ignoring a specific, pertinent and important point made by the accused, domestic courts fall short of their obligations under Article 6 §1 of the Convention. Taking the view that in the present case the domestic courts’ decisions lacked adequate reasoning, the Court concludes that the criminal proceedings against the applicants, considered as a whole, were not compatible with the guarantees of a fair hearing.
There has accordingly been a violation of the applicants’ right to a fair trial as protected by Article 6 § 1 of the Convention.
CASE OF HAJIZADE AND ABDULLAYEV v. AZERBAIJAN (European Court of Human Rights) 4854/10. Full text of the document.
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