ECHR Judgment of 17 September 2020 in the case "Mirgadirov v. Azerbaijan and Turkey" (aplication No. 62775/14).
In 2014, the applicant was assisted in the preparation of the aplication. Subsequently, aplication was communicated to Azerbaijan and Turkey.
The case successfully considered an aplication about the lack of legal grounds for restricting the right of a person in custody to receive and subscribe to socio-political newspapers and magazines. The case involved a violation of the requirements of article 8 of the Convention.
CIRCUMSTANCES OF THE CASE
After the applicant was expelled from Turkey to Azerbaijan, he was detained in Azerbaijan and charged with high treason in the form of espionage. The applicant was held in pre-trial detention as part of the chosen preventive measure. The investigator decided to restrict the applicant's rights to use the telephone, to correspond, to meet with persons other than his lawyers, and to receive and subscribe to socio-political newspapers and magazines. These measures were applied temporarily during the preliminary investigation, without specifying a time frame, on the basis of articles 17.3 and 19.8 of the Law of Azerbaijan "On Ensuring the Rights and Freedoms of Persons Held in Places of Detention" of 22 May 2012.The applicant unsuccessfully appealed against the application of this preventive measure to him.
(a) A complaint against the Azerbaijani authorities. Regarding compliance with article 8 of the Convention. The measures complained of interfered with the exercise of the applicant's right to respect for his private and family life and correspondence.
(i) Restriction of the applicant's rights to subscribe to and receive any socio-political magazines and newspapers. Neither article 17.3 nor article 19.8 of the Law of Azerbaijan" On Ensuring the Rights and Freedoms of Persons Held in Places of Detention " of May 22, 2012 provided for the possibility of applying these restrictions to a person in custody. Moreover, article 23 of this Law, which regulates the rights of a detained person to subscribe to and receive newspapers or magazines, provides for restrictions only on publications that promote war, violence, extremism, terror or cruelty, contain incitement to racial, political and social hostility or cruelty, or contain pornographic materials. The Azerbaijani authorities also did not cite any legal norms that establish restrictions on the subscription and receipt of socio-political magazines or newspapers. Consequently, it was not possible to establish that the interference with the applicant's right in this respect was based on the norms of Azerbaijani law.
(ii) Restriction of the applicant's right to use the telephone, the right to correspondence and to visit. These restrictions were based on the legislation of Azerbaijan, and the relevant legal norms were clearly formulated, accessible and fairly accurate. These rules constituted a de facto direct prohibition for the applicant to have any contact with the outside world (meetings, telephone calls, sending and receiving correspondence, etc.), with the exception of contacts with his lawyers. However, neither the investigator nor the Azerbaijani courts gave any relevant reasons for the application of such strict and comprehensive restrictive measures. In particular, the Azerbaijani courts limited themselves to referring to the need to protect the secrecy of the investigation and prevent the disclosure of information about the investigation, without explaining why the appealed measures were applicable and necessary in this case. The Court did not find any factual evidence in the case that would justify the imposition of such strict restrictions on family visits in the applicant's case, since none of them were in any way involved in the criminal case against the applicant, and there was no clear indication that there would be a risk of secret data being transmitted to foreign intelligence services through the applicant's family members. The reasons given by the Azerbaijani authorities in support of the application of restrictive measures were not relevant and sufficient.
(b) A complaint against the Turkish authorities. The Court held that there was no need to examine the applicant's complaint of a violation of article 5, paragraph 4, of the Convention against the Turkish authorities, and found the remainder of the applicant's complaints in this respect inadmissible on the merits.
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
The Court also held unanimously that there had been a violation of article 5, paragraph 1, of the Convention in the absence of a reasonable suspicion that the applicant had committed a crime and as a result of the applicant's detention from 19 to 20 November in the absence of a court decision, and that there had been a violation of article 5, paragraph 4, of the Convention, since the Azerbaijani courts had not considered the applicant's arguments in favour of his release from custody, and that there had been a violation of article 6, paragraph 2, of the Convention concerning the public statement of July 2014, which violated the applicant's right to the presumption of innocence provided for by law. The Court also held unanimously that there had been no violation of article 18, paragraph 5, of the Convention, considered in conjunction with article 5 of the Convention, since the evidence before the Court did not allow it to establish beyond a reasonable doubt that the applicant's detention and detention would have had an ulterior purpose.
In the application of article 41 of the Convention. The Court awarded the applicant 20,000 euros in respect of non-pecuniary damage, but the claim for pecuniary damage was rejected.