Judgment of the ECHR of 13 February 2020 in the case of Ibrahimov and Mammadov v. Azerbaijan (application no. 63571/16).
In 2016, the complainants were assisted in preparing their application. Subsequently, the application was communicated to Azerbaijan.
The case successfully examined an application about the circumstances of the conduct of operational-search measures in connection with the alleged involvement in drug trafficking and the initiation of a criminal case against the applicants who applied graffiti with anti-government slogans on the monument and did not have any criminal past prior to the relevant events. There has been a violation of the requirements of Articles 3, 10, 18 in conjunction with Article 5, as well as paragraph 4 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
Both complainants are members of NIDA, a youth organization that was actively involved in organizing and conducting anti-government demonstrations and was portrayed by the authorities as “radically destructive”. On one night in May 2016, the applicants painted graffiti with anti-government slogans on the monument of the former President of Azerbaijan to express their disagreement with the policy of the authorities, and then circulated photographs of this action on social networks.
On the following day, both applicants were taken to the police station. According to the Azerbaijani authorities:
(i) earlier that day, the police received, in a separate and unrelated to the present case, operational information that unidentified persons named "Giyas" and "Bayram" (as well as the applicants) were involved in the drug trade in Baku , transported and stored drugs at home (the information did not contain detailed information that would allow identifying these persons);
(ii) in order to verify this information and establish the identities of the suspects, the police decided to carry out operational-search measures as the only means of identifying the above-mentioned persons.
The investigative steps that were carried out in connection with the applicants' alleged involvement in drug trafficking consisted mainly of conducting personal searches, searches of their apartments and the seizure of drugs found as a result of these searches. Following the applicants' arrest, criminal proceedings were instituted against them and they were remanded in custody.
QUESTIONS OF LAW
With regard to compliance with paragraph 1 of Article 5 of the Convention. Although the criminal cases against each of the applicants were not formally linked and were based on different facts, it followed from the case file that both proceedings followed the same pattern as regards (i) the charges of crimes and the description of exactly how the applicants allegedly acquired and possessed the drugs, (ii) how the investigative steps were carried out (in substance and scope), (iii) the timing of the relevant checks and action against the applicants.
In view of the following elements and the inferences that could be drawn from them, in particular as regards the applicants' status, the sequence of events, the manner in which the investigation was conducted and the conduct of the authorities, the materials submitted to the Court did not reach the minimum standard of substantiation of the suspicion that served as the basis for the arrest.
(a) The operational information that led to the applicants' arrest. Serious questions arose regarding the reliability of the information and the measures taken in this context, since (i) the applicants did not have any criminal history prior to the relevant events, (ii) the collection and receipt of relevant intelligence (its source, etc.) was not specified, (iii) and also, most importantly, taking into account the fact that the authorities were able to identify the applicants as two suspected drug traffickers within a few hours without any special measures (especially given the fact that the intelligence did not allow immediately " calculate "applicants in such a way as to identify them, for example, by indicating their full names or other personal data).
(b) Investigative measures following the applicants' arrest. The following shortcomings raise doubts about the reliability and accuracy of the evidence obtained as a result:
- personal searches of the applicants. The failure to conduct a personal search at the place of detention was all the more surprising since, according to the operational information, the persons mentioned in it had drugs with them. In addition, the applicants were subjected to inhuman and degrading treatment by the police after their arrest and as a result made confessions. This coincided with the time of their searches and the discovery of drugs on them, which were used as evidence against them;
- searches in the applicants' apartments. Despite the fact that the applicants were accused not only of drug possession, but rather of involvement in drug trafficking, the only evidence allegedly found and seized was packets of heroin. The police did not seek other potential evidence, such as cash, information about possible suppliers or buyers, or items used in the drug trade, including scales and packaging material. Even assuming that these searches were carried out in the presence of attesting witnesses, this argument could not be decisive in the absence of any other evidence, for example, video recordings. In addition, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has reported cases where incriminating evidence was planted on detainees prior to inviting attesting witnesses for an official search and seizure.
Finally, the inconsistency was also manifested in the fact that, although the searches in the applicants' apartments were carried out in the absence of lawyers, the opposite was indicated in the relevant protocols;
- the limits of criminal investigations. The circumstances surrounding the alleged purchase and sale of drugs by the applicants, the alleged existence of criminal groups and the applicants' role in them were of absolutely no interest to the investigating authorities. At the same time, the applicants, who were members of the opposition movement, constantly complained that drugs were planted on them in retaliation for their graphic application of political slogans, but at no stage of the proceedings did the Azerbaijani authorities try to check and investigate these complaints.
There was a violation of Article 5 § 1 of the Convention in the case (adopted unanimously).
Regarding compliance with Article 18 of the Convention in conjunction with Article 5 of the Convention. In the Court's opinion, it was clear that the real purpose of restricting the applicants' freedom was to punish them for graffitiing a monument to the former President of Azerbaijan and thereby expressing political slogans against the government. This conclusion was drawn on the basis of the following elements: (i) the status of the applicants (their membership in an opposition organization), (ii) the sequence of events (the arrest of the applicants shortly after they had painted graffiti with political slogans and disseminated photographs about it) without “reasonable suspicion” of the commission of a crime, (iii) the fact that NIDA and its members were clearly targeted by law enforcement agencies, (iv) actions that indicated the existence of a practice of arbitrary arrest and detention of individuals who criticize the government, civil society activists and human rights defenders through criminal prosecutions for their actions and abuse of the criminal law, which was established in the case Aliyev v. Azerbaijan (Judgment of the European Court of September 20, 2018, applications nos. 68762/14 and 71200/14).
There was a violation of the requirements of Article 18 of the Convention in conjunction with Article 5 of the Convention (adopted unanimously).
Compliance with Article 10 of the Convention. The criminal prosecution of the applicants was not formally linked to their graffiti on the monument: instead of acting in accordance with the restrictions of the law, the authorities preferred to prosecute the applicants for drug-related crimes in retaliation for their actions.
In the Court's opinion, such interference with the applicants' right to freedom of expression was not only unlawful, but manifestly arbitrary and incompatible with the principle of the rule of law, which is clearly mentioned in the Preamble to the Convention and is inseparable from all its articles.
There was a violation of Article 10 of the Convention in the case (adopted unanimously).
The Court also held unanimously that there had been a violation of Article 3 of the Convention (both substantively and procedurally) and Article 5 § 4 of the Convention.
Application of Article 41 of the Convention. The Court awards each of the applicants EUR 30,000 in respect of non-pecuniary damage.