FIFTH SECTION
 
 
 
CASE OF MIRGADIROV v. AZERBAIJAN AND TURKEY
 
(Application no. 62775/14)
 
 
JUDGMENT
 
Art 8 • Respect for private and family life • Respect for correspondence • Lack of legal basis for restrictions on detainee’s right to receive and subscribe to socio-political magazines and newspapers • Unjustified restrictions on meetings, correspondence and telephone conversations with family members and outside world, imposed on detainee charged with espionage (Azerbaijan)
Art 5 § 1 • Lawful arrest or detention • Minimum standard of “reasonableness” of suspicion not met • 16 hours’ pre-trial detention without any authorising judicial order (Azerbaijan)
Art 5 § 4 • Review of lawfulness of detention • Inadequate review by domestic courts (Azerbaijan)
Art 6 § 2 • Presumption of innocence • Unreserved attribution of criminal acts to applicant in investigating authorities’ statements to press (Azerbaijan) 
Art 18 (+ Art 5) • Restrictions for unauthorised purposes • Unsubstantiated allegations of ulterior purpose behind applicant’s arrest and detention (Azerbaijan)

 
STRASBOURG
 
17 September 2020
 
 
FINAL
 
17/12/2020
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mirgadirov v. Azerbaijan and Turkey,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Gabriele Kucsko-Stadlmayer,
 Ganna Yudkivska,
 Latif Hüseynov,
 Saadet Yüksel,
 Anja Seibert-Fohr,
 Mattias Guyomar, judges,
and Victor Soloveytchik, Section Registrar,
Having deliberated in private on 25 August 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 62775/14) against the Republic of Azerbaijan and the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Rauf Habibula oglu Mirgadirov (Rauf Həbibula oğlu Mirqədirov – “the applicant”), on 11 September 2014. 2. The applicant was represented by Mr F. Agayev and Mr E. Suleymanov, lawyers based in Azerbaijan. The Azerbaijani Government were represented by their Agent, Mr Ç. Əsgərov. The Turkish Government were represented by their Co-Agent, Mr Hacı Ali Açıkgül. 3. The applicant alleged, in particular, that his Convention rights and freedoms had been violated as a result of his arrest and detention in Turkey and his subsequent detention in Azerbaijan following his de facto deportation from Turkey to Azerbaijan. 4. On 11 January 2016 the Azerbaijani Government were given notice of the complaints concerning: the absence of a reasonable suspicion that the applicant had committed a criminal offence (Article 5 § 1 (c) of the Convention); his unlawful detention from 19 to 20 November 2014 (Article 5 § 1 of the Convention); the lack of justification for his pre-trial detention (Article 5 § 3 of the Convention); the domestic courts’ failure to assess his arguments in favour of his release (Article 5 § 4 of the Convention); his lawyers’ absence from the hearing of 20 November 2014 before the Nasimi District Court (Article 5 § 4 of the Convention); the violation of his right to the presumption of innocence (Article 6 § 2 of the Convention); the unlawfulness of the restrictions placed on his rights during the investigation (Article 8 of the Convention); and Article 18 of the Convention in conjunction with Article 5. On the same date the Turkish Government were given notice of the complaints concerning: the applicant’s alleged unlawful detention on 19 April 2014 and the lack of communication regarding the reasons for his detention (Article 5 §§ 1 and 2 of the Convention); the domestic authorities’ failure to bring him before a judge or any other authority authorised by law to decide on his detention (Article 5 § 3 of the Convention); his inability to challenge the lawfulness of his detention (Article 5 § 4 of the Convention); and the alleged violation of his right to freedom of expression as a journalist (Article 10 of the Convention). The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. It was also decided to grant the application priority treatment under Rule 41 of the Rules of Court. 5. The applicant and the respondent Governments each filed observations. In addition, observations were received from the Helsinki Foundation for Human Rights, Human Rights House Foundation and Freedom Now, non-governmental organisations which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). The Azerbaijani Government were informed of their right to intervene in respect of the applicant’s complaints of which the Turkish Government had been given notice (Article 36 § 1 of the Convention and Rule 44 §§ 1 and 4), but did not avail themselves of that right. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1961 and lives in Thalwil, Switzerland. A. Background information
7. The applicant is a well-known journalist and political analyst in Azerbaijan. On several occasions he was awarded the prize for journalist of the year in Azerbaijan. By a presidential order of the Republic of Azerbaijan of 21 July 2005, he was awarded the title of “honoured journalist” (əməkdar jurnalist). The applicant was also awarded the Gerd Bucerius Free Press of Eastern Europe 2008 prize by the German ZEIT Foundation, for his journalistic activity. 8. In July 2010 the applicant left Azerbaijan for Turkey, and at the time of the events described below he was based in Ankara and was working as a correspondent for the Azerbaijani newspaper Zerkalo. He wrote articles which mainly concerned regional foreign policy issues. B. The applicant’s arrest and deportation from Turkey
9. By a letter dated 26 December 2013, the Directorate General of Press and Information attached to the Turkish Prime Minister’s Office (“the BYEGM”) informed the Ankara governor’s office that it had been decided to grant the applicant with a press card valid between 1 January and 31 December 2014. In the same letter, the BYEGM also requested the governor’s office to issue the applicant with a residence permit for the duration of his press card in accordance with section 2 of Law no. 4817 on the Work Permits of Foreign Nationals in force at the material time and the Directorate General of Security’s Circular no. 63 dated 2 April 2004. The applicant was accordingly granted a permit to reside in Turkey until 31 December 2014. 10. On 8 April 2014 the BYEGM decided to annul the applicant’s press card under section 45 of the former Regulation on Press Cards (see paragraph 69 below). On the same date the BYEGM informed the Ankara Security Directorate of its decision, and requested that it take the necessary action to revoke the applicant’s residence permit. 11. On 11 April 2014 information regarding the revocation of the applicant’s residence permit was registered in the Turkish police information network. 12. In the meantime, on 9 April 2014 the applicant had been invited to the offices of the BYEGM in Ankara, where he was verbally informed that his press card had been revoked. The applicant was not provided with any written notification in that respect, nor was he given any explanation as to why his press card had been revoked. 13. On 11 April 2014 the applicant lodged a petition with the BYEGM, requesting written confirmation of the revocation of his press card, along with the reasons for that revocation. 14. On 18 April 2014 the Directorate General of Migration Management informed the Ankara Security Directorate of its decision that the applicant should be deported from Turkey in accordance with section 54 of the Law on Foreigners and International Protection (Law no. 6458), and instructed the security directorate to take the necessary steps to issue the official deportation decision made by the Ankara governor’s office. 15. On 18 April 2014 the applicant and his family took a bus to go to Georgia. Shortly after the bus left Ankara, at approximately midnight, the bus was stopped by the police so that identity checks could be carried out. During those checks, it was noted that the applicant’s residence permit had been revoked, and he was taken by the police to the Ankara Security Directorate. 16. According to a report drawn up shortly after the applicant’s arrest by the police officers who apprehended him, he was informed that he had been arrested as he was no longer legally resident in Turkey following the revocation of his residence permit. The applicant refused to sign that report. 17. According to an information document prepared by the police at 12.30 a.m. on 19 April 2014, the applicant was notified in writing that a procedure had been initiated for his deportation under section 54 of Law no. 6458. It is indicated on the document that the applicant refused to sign it. According to the applicant, he was never notified of this procedure. 18. At the same time, a separate document, which he allegedly also refused to sign, notified the applicant that his presence in Turkey was illegal. The document stated that a deportation decision had been taken in respect of him under section 53 of Law no. 6458, and that a decision had been taken to detain him under section 57 of the same law. The document also provided an explanation as to the procedures for administrative detention and deportation, as well as information on the legal avenues which one could use to object to the deportation and administrative detention decisions. The applicant was reminded of his right to obtain the assistance of a lawyer, either by his own means or through the legal aid mechanism. According to the applicant, he was never notified of this. 19. According to the applicant, he asked the Turkish authorities for the assistance of a lawyer and an opportunity to contact his wife, but both his requests were ignored. 20. On 19 April 2014 the police took the applicant to Ankara Esenboğa Airport. It appears from the applicant’s submissions, and the Government did not contest this, that while at the airport he was informed in writing that a decision had been taken to ban him from entering Turkey for a period of twelve months from that date. The relevant information document was signed by the applicant. He was subsequently placed on a flight to Baku at around midday. He was under police control until the plane departed. 21. On 21 April 2014 the Ankara governor’s office issued an official decision on the applicant’s deportation and administrative detention. C. Institution of criminal proceedings against the applicant in Azerbaijan and his remand in custody
22. Following the arrival of the plane at Baku Airport at 4.20 p.m. on 19 April 2014, the applicant was arrested by agents of the Azerbaijani Ministry of National Security (“the MNS”). 23. At 5.15 p.m. on 19 April 2014 an investigator from the Serious Crimes Department of the Prosecutor General’s Office issued a record stating that the applicant was being detained as a suspect. The applicant was suspected of having committed the criminal offence of high treason under Article 274 of the Criminal Code. 24. At 5.20 p.m. on the same day the investigator questioned the applicant as a suspect, in the presence of a State-appointed lawyer. The applicant admitted that on various dates in Turkey, Armenia and Georgia, within the framework of various international conferences, he had met with L.B., the head of an Armenian non-governmental organisation, and D.S., the former head of the Armenian intelligence service, with whom he had discussed the prospect of resolving the Nagorno-Karabakh problem and the international situation in the region. However, the applicant denied the accusations of high treason against him, stating that he had not provided the Armenian intelligence services with any information about the military, socio-political or economic situation in the country, or the location of military units. 25. On 21 April 2014 the applicant was charged under Article 274 (high treason) of the Criminal Code. The relevant part of the decision stated:
“... Mirgadirov Rauf Habibula oglu has been charged on the basis of sufficient evidence because, as a citizen of the Republic of Azerbaijan, to the detriment of the Republic of Azerbaijan’s sovereignty, State security, territorial inviolability and defence capacity, he was recruited for secret collaboration by L.B., an agent of the Armenian intelligence services, and [by] others, with whom he has had close ties since April 2008. Upon their instructions, for profit, [he] collected necessary information about the socio-political, economic, [and] military situation in the country and the location of military units, which constitute State secret[s], so that this information could be used in hostilities against the Republic of Azerbaijan. On several occasions [he] met with agents from the Armenian intelligence services – L.B., A.S., and others, from 1 to 4 April 2008 in the city of Tsakhkadzor in Armenia, on 28 September 2008 in Turkey, [and] on 2 February 2009 in the main room of the Marco Polo restaurant situated at 44 Shota Rustavelli Street in the city of Tbilisi in Georgia. [He] committed high treason by espionage, namely by providing [those individuals] with the information [he had] collected, together with photographs and technical drawings (sxemlər), and by deliberately providing them with assistance so that this information could be used against the Republic of Azerbaijan. Through these actions, Mirgadirov Rauf Habibula oglu committed a criminal offence under Article 274 of the Criminal Code of the Republic of Azerbaijan.
...”
26. On the same date, relying on the official charges brought against the applicant and an application by the prosecutor, the Nasimi District Court ordered that the applicant be detained pending trial for a period of three months. The court referred to the risk of his absconding and obstructing the investigation, and the nature of the criminal act, and justified its decision as follows:
“Having examined the application and the material in the case file, and having heard the submissions of the participants in the criminal proceedings, the court considers that the application should be granted and the accused should be remanded in custody.
...
... the court considers that the criminal act under Article 274 of the Criminal Code of the Republic of Azerbaijan attributed to the accused, Mirgadirov Rauf Habibula oglu, is classified as a serious crime. There is a likelihood that the accused will abscond from the investigation, fail to comply with the requests of the investigating authorities without good reason, or avoid his criminal prosecution or sentence by other means.

Outcome for Article 5: violation