65583\/13 and 70106\/13<\/a><\/p>\nJudgment 18.2.2021 [Section V]<\/p>\n
Article 18<\/strong>
\nRestrictions for unauthorised purposes<\/strong><\/p>\nPre-trial detention of opposition activists predominantly aiming to punish and silence them for active involvement in anti-government demonstrations: violation<\/p>\n
Facts \u2013 Both applicants, members of NIDA, a non-governmental youth organisation, participated in peaceful anti-government demonstrations concerning the deaths of soldiers in the army in non-combat situations. They were arrested and remanded in custody on charges of illegal possession of narcotic substances and Molotov cocktails (second applicant), following searches of their flats and a day before another demonstration was planned. Their pre-trial detention was extended pursuant to a number of domestic court decisions, and their requests for alternative house arrest were dismissed. Additional criminal charges ensued.<\/p>\n
Law \u2013 Article 5 \u00a7 3:\u00a0 The domestic courts had failed to give \u201crelevant\u201d and \u201csufficient\u201d reasons to justify the need for extending the applicants\u2019 pre-trial detention: they had used a standard template merely listing the detention grounds without addressing case-specific facts; they had cited irrelevant grounds and had disregarded the fact that the second applicant was a minor.<\/p>\n
Conclusion: violation (unanimously)<\/p>\n
Article 18 taken together with Article 5 \u00a7 3:\u00a0 The complaint under this Article constituted a fundamental and distinct aspect of the case which merited separate examination.<\/p>\n
The applicants in the present case and those in the case of Rashad Hasanov and Others had been prosecuted and convicted within the framework of the same criminal proceedings. However, unlike the case of Rashad Hasanov and Others, in the present case the Court was not called upon to examine whether the applicants had been deprived of their liberty in the absence of a \u201creasonable suspicion\u201d of their having committed a criminal offence, as the applicants had not exhausted domestic remedies in this regard. The present case had therefore to be distinguished from cases in which an applicant\u2019s right or freedom had been restricted solely for a purpose that was not prescribed by the Convention (compare, for example, Rashad Hasanov and Others v.\u00a0Azerbaijan, Aliyev v.\u00a0Azerbaijan, and Navalnyy v. Russia), notably the Court had to address the issue of a potential plurality of purposes. In doing so, the Court found as follows:<\/p>\n
First, there were sufficient elements to find that the applicants\u2019 pre-trial detention had pursued an ulterior motive; namely, punishing and silencing NIDA members for their active involvement in the anti-government demonstrations. In particular, the prosecuting authorities: (i)\u00a0as found in Rashad Hasanov and Others v. Azerbaijan, had clearly targeted NIDA and its members; (ii)\u00a0had tried from the very beginning of the criminal proceedings to link the applicants\u2019 alleged possession of narcotic substances and Molotov cocktails to their NIDA membership; (iii)\u00a0had used the institution of the criminal proceedings (bearing in mind their timing \u2013 on the eve of another demonstration) and the applicants\u2019 subsequent pre-trial detention to prevent the organisation of further demonstrations; and (iv)\u00a0had tried to portray leaflets found in the second applicant\u2019s flat and worded \u201cdemocracy urgently needed, tel: + 994, address: Azerbaijan\u201d as illegal material in an attempt to establish intention for incitement to violence and civil unrest at the demonstration planned the next day.<\/p>\n
Secondly, this ulterior motive had been the predominant purpose of the restriction of their liberty.\u00a0 In reaching this conclusion, the Court took into account: (i)\u00a0the backdrop and pattern of arbitrary arrest and detention of government critics, human-rights defenders and civil society activists, including NIDA members, through retaliatory prosecutions and misuse of the criminal law (as identified in the case of Aliyev v. Azerbaijan and reaffirmed in subsequent judgments); (ii)\u00a0the particular targeting of NIDA as an organisation and its administration with a view to paralysing its activities (Rashad Hasanov and Others v. Azerbaijan) and the attempt to prevent further protests via the institution of criminal proceedings against the applicants and their pre-trial detention; and lastly, (iii)\u00a0the failures of the domestic courts when examining the applicants\u2019 pre-trial detention as found under Article 5 \u00a7 3.<\/p>\n
Conclusion: violation (unanimously)<\/p>\n
Article 41: EUR 20,000 to each applicant in respect of non-pecuniary damage. Second applicant\u2019s claim for pecuniary damage dismissed.<\/p>\n
(See also Selahattin Demirta\u015f v. Turkey (no. 2) [GC], no. 14305\/17, 22 December 2020, Legal Summary; Navalnyy v. Russia [GC], nos. 29580\/12 and 4 others, 15 November 2018, Legal Summary; Aliyev v. Azerbaijan, nos. 68762\/14 and 71200\/14, 20 September 2018, Legal Summary; Rashad Hasanov and Others v. Azerbaijan, nos. 48653\/13 and 3 others, 7 June 2018; Merabishvili v. Georgia [GC], no. 72508\/13, 28 November 2017, Legal Summary; Buzadji v. the Republic of Moldova [GC], no. 23755\/07, 5 July 2016, Legal Summary)<\/p>\n