62775\/14<\/a><\/strong><\/p>\nJudgment 17.9.2020 [Section V]<\/p>\n
Article 8<\/strong><\/p>\nArticle 8-1<\/strong><\/p>\nRespect for correspondence<\/strong><\/p>\nRespect for family life<\/strong><\/p>\nRespect for private life<\/strong><\/p>\nLack of legal basis for restrictions on detainee\u2019s right to receive and subscribe to socio-political magazines and newspapers: violation<\/p>\n
Facts \u2013 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\u2019s 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\u00a0May 2012 (\u201cthe Law of 22 May 2012\u201d). The applicant unsuccessfully challenged these measures.<\/p>\n
Law<\/p>\n
(a) Complaints against Azerbaijan<\/p>\n
Article 8: The impugned measures constituted an interference with the exercise of the applicant\u2019s right to respect for his private and family life and correspondence.<\/p>\n
(i) Restrictions on the applicant\u2019s right to receive and subscribe to any socio-political newspaper or magazine \u2013 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\u2019s 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\u2011political newspapers or magazines. Consequently, it was not possible to establish that the interference with the applicant\u2019s right in this regard had a legal basis in domestic law.<\/p>\n
(ii) Restrictions on the applicant\u2019s right to have telephone calls, correspondence and visits \u2013 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\u2011encompassing 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\u2019s 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.<\/p>\n
Conclusion: violation (unanimously).<\/p>\n
The Court also held, unanimously, that there had been a violation of Article 5\u00a0\u00a7 1 on account of the absence of a reasonable suspicion that the applicant had committed an offence and on account of the applicant\u2019s detention from 19 to 20 November in the absence of a court order;\u00a0 that there had been a violation of Article 5\u00a0\u00a7 4 on account of the domestic courts\u2019 failure to assess the applicant\u2019s arguments in favour of his release, and of Article 6 \u00a7 2 on account of a public statement on July 2014 which had violated the applicant\u2019s right to be presumed innocent until proven guilty according to the law; that there had been no violation of Article 18 \u00a7 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\u2019s arrest and detention had pursued any ulterior purpose.<\/p>\n
(b) Complaints against Turkey \u2013 The Court held that there was no need to examine the applicant\u2019s complaint under Article 5 \u00a7 4 against Turkey, and declared the remainder of his complaints against Turkey inadmissible.<\/p>\n
Article 41: EUR 20,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.<\/p>\n
(See also Khoroshenko v. Russia [GC], 41418\/04, 30 June 2015, Information Note 186; Moiseyev v. Russia, 62936\/00, 9\u00a0October 2008, Information Note 112; and Andrey Smirnov v. Russia, 43149\/10, 13\u00a0February 2018)<\/p>\n