FIFTH SECTION
CASE OF MAMMADOV AND ABBASOV v. AZERBAIJAN
(Application no. 1172/12)
 
 
 
JUDGMENT
 
Art 5 § 1 • Lawful detention • Undocumented deprivation of liberty of first applicant for around one hour in a car by plain clothes police officers 
Art 10 • Freedom of expression • Unjustified seizure of journalistic equipment and unlawful detention during performance of applicants’ professional duties

 
STRASBOURG
8 July 2021
 
FINAL
 
08/10/2021
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mammadov and Abbasov v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Mārtiņš Mits,
 Lətif Hüseynov,
 Lado Chanturia,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 1172/12) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Azerbaijani nationals, Mr Elnur Akif oglu Mammadov (Elnur Akif oğlu Məmmədov - “the first applicant”) and Mr Idrak Telman oglu Abbasov (İdrak Telman oğlu Abbasov - “the second applicant”) (“the applicants”), on 7 December 2011;
the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints Articles 5, 10 and 13 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 15 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. Relying on Articles 10 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants allege that their right to freedom of expression was breached on account of an unjustified interference of the police with their journalistic activity. Relying on Articles 5 and 13 of the Convention, the first applicant also alleges that he was unlawfully deprived of his liberty by the police. THE FACTS
2. The applicants were born in 1984 and 1976 respectively and at the material time lived in Baku. They were represented by Mr R. Hajili and Mrs Z. Zakaryayeva (Sadigova), lawyers based in France and Azerbaijan respectively. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov. 3. At the time of the events described below, the applicants were reporters of the Institute for Reporters’ Freedom and Safety (“the IRFS”), a Baku-based non-governmental organisation specialised in the protection of journalists’ rights. THE APPLICaNTS’ ACCOUNT OF THE Events of 8 October 2009
4. On 8 October 2009 the editor in chief of Milli Yol newspaper (“the newspaper”), S.A., informed the IRFS that a reporter (R.M.) of the newspaper had been apprehended and taken to the Ministry of Internal Affairs (“the MIA”) where he had been questioned about the publication of an article. S.A. also informed the IRFS that an operation led by police officers in plain clothes was ongoing on the newspaper’s premises. 5. At around 7.30 p.m. on 8 October 2009 the applicants arrived at the newspaper’s office to collect information about the ongoing police operation. When they arrived, the building was surrounded by police officers in plain clothes who were searching the office and questioning S.A. When the applicants began video recording the event, the police officers in plain clothes prevented them from filming and seized their equipment (two video cameras and one photo camera). The police officers in plain clothes dragged the first applicant into a car together with S.A. and drove off to an unknown direction. 6. Immediately after this incident, at around 7.45 p.m. the president of the IRFS, E.H., contacted the spokesperson of the MIA and informed him of the actions taken against the applicants by the police officers in plain clothes. The spokesperson of the MIA answered that he would deal with the issue. 7. According to the first applicant, after a ride of approximately an hour in the car, the police officers in plain clothes dropped him at an unspecified location unknown to him at the material time and then took S.A to the MIA. When in the car, the first applicant was not allowed to contact anyone. During the ride, the police officers in plain clothes were reporting about the operation to their superiors and, after consultation with their superiors, dropped him on the way, without returning the video and photo cameras to him. 8. According to the applicants, at around 10 p.m. on the same day S.A. and R.M. were released from the MIA and the applicants’ equipment was handed over to S.A. in order to be returned to the applicants. The equipment was in good condition, but all video footage and photos, including the ones taken during the police operation in respect of the newspaper, had been removed from the memory cards of the cameras. 9. The events of 8 October 2009 were widely covered in the media. 10. The Government did not make any submissions on the applicants’ account of the events of 8 October 2009. Remedies used by the applicants
11. On 3 December 2009 the applicants lodged a complaint with the MIA, asking that criminal proceedings be instituted on account of the interference with their journalistic activity by the police officers in plain clothes on 8 October 2009. The first applicant also complained of his unlawful deprivation of liberty for a period of one hour. 12. By a decision of 30 December 2009, an investigator at the Organised Crime Department (“the OCD”) of the MIA refused to institute criminal proceedings for lack of criminal element. The investigator found that the applicants’ allegations had not been proven and that the applicants had failed to specify the identity of the persons involved in the alleged actions against them. The investigator also found that there was no interference with the applicants’ property rights, as they themselves had submitted that their equipment had been returned to them in good condition. The applicants were not provided with a copy of that decision. 13. On 29 March 2010 the applicants lodged a complaint with the Sabail District Court, asking the court to declare unlawful the inaction of the MIA in connection with their complaint of 3 December 2009. 14. According to the applicants, on 26 May 2010, in the course of the proceedings before the Sabail District Court, they learned for the first time about the investigator’s decision of 30 December 2009 refusing to institute criminal proceedings. 15. On 2 June 2010 the applicants lodged a complaint with the Narimanov District Court against the investigator’s decision of 30 December 2009. In their complaint, the applicants described the circumstances of the events of 8 October 2009 and reiterated their complaints. They also challenged the investigator’s findings, arguing that the fact that their equipment had been returned to them in good condition could not be interpreted as meaning that there had been no interference with their journalistic activities. In that connection, they pointed out that the fact that their equipment had been handed over to S.A. upon his release from the MIA confirmed that those who had taken their equipment had been the police officers. They also asked the court to question S.A., R.M., E.H. and the spokesperson of the MIA about the events of 8 October 2009. 16. On 17 June 2010 the Narimanov District Court declared unlawful the investigator’s decision of 30 December 2009 and quashed it. It ordered the OCD of the MIA to conduct further investigation in connection with the applicants’ complaints. In particular, the court found that the investigator in charge of the case had not conducted a thorough investigation and had failed to question even the applicants. The court also noted that despite its explicit request the investigator had failed to submit the relevant case material on which the decision of 30 December 2009 had been based. 17. On 19 July, 12 August and 27 September 2010 the applicants asked for information about the progress of the investigation following the Narimanov District Court’s decision of 17 June 2010 but did not receive any response. 18. On 11 October 2010 the applicants lodged an action with the Narimanov District Court, asking the court to declare unlawful the investigator’s failure to investigate their complaints and to order him to investigate further. 19. On 1 November 2010 the Narimanov District Court refused to admit the complaint on the grounds that the applicants had not paid the relevant court fees. 20. On 29 December 2010 the applicants resubmitted their complaint, together with a receipt of payment of court fees. 21. By a decision of 10 January 2011, the Narimanov District Court dismissed the complaint, finding that the applicants should have lodged a criminal complaint with the court in accordance with the judicial review procedure under the Code of Criminal Procedure. 22. On 15 February 2011 the applicants lodged a criminal complaint with the Narimanov District Court under the judicial review procedure, reiterating their previous request (see paragraph 18 above). 23. By a decision of 4 March 2011, the Narimanov District Court rejected the complaint on the grounds that it had been lodged against the investigator of the OCD, not the OCD itself. 24. On 11 April 2011 the applicants re-lodged the same criminal complaint, but indicating the OCD and the investigator as the respondents. 25. On 3 May 2011 the Narimanov District Court rejected the complaint on the grounds that the applicants did not indicate the OCD, but the investigator of the OCD as a respondent in their complaint. 26. On 6 May 2011 the applicants appealed against that decision, submitting that they had mentioned the OCD as a respondent in their complaint. 27. On 10 June 2011 the Baku Court of Appeal upheld the first-instance court’s decision of 3 May 2011. The appellate court’s decision was not amenable to appeal. RELEVANT LEGAL FRAMEWORK
The Code of Criminal Procedure
28. In accordance with Article 37 of the Code of Criminal Procedure (“the CCrP”), criminal proceedings are instituted on the basis of a complaint by the victim of an alleged criminal offence. 29. In accordance with Article 207 of the CCrP, an investigator or the prosecutor in charge of the case, after the examination of information about the commission of a criminal offence, should adopt a decision instituting criminal proceedings, a decision refusing to institute criminal proceedings or a decision transmitting the information to the relevant investigating authority or the court, in case of private criminal prosecution. 30. In accordance with Article 212.2 of the the CCrP, a copy of a decision to refuse the institution of criminal proceedings shall be provided to the person who had submitted information about an alleged criminal offence within twenty-four hours of the decision having been taken. 31. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings may challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or counsel may challenge such actions or decisions concerning, inter alia, a refusal to institute criminal proceedings, or the suspension or termination of criminal proceedings. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). The judge’s decision may be challenged before an appellate court in accordance with the procedure set out in Articles 452 and 453 of the CCrP. The Criminal Code
32. Obstruction of the lawful professional activity of journalists by subjecting them to violence or threatening such violence is a crime punishable by a fine or correctional work for a term up to one year (Article 163.1). If the same act was committed by an official performing his service position, it is punishable by correctional work for a term up to two years or imprisonment for a term up to one year (Article 163.2). THE LAW
ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
33. Relying on Articles 5 §§ 1 and 2 and 13 of the Convention, the first applicant complained that his arrest and detention on 8 October 2009 had been unlawful and that he had had no effective remedy in that connection. The Court considers that the present complaint falls to be examined solely under Article 5 § 1 of the Convention (see Mammadov and Others v. Azerbaijan, no. 35432/07, § 81, 21 February 2019), which, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)  the lawful detention of a person after conviction by a competent court;
(b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”
AdmissibilityThe parties’ submissions

34. The Government submitted that the first applicant had failed to exhaust domestic remedies. In particular, the domestic courts had refused to examine his complaint since he had failed to comply with procedural rules on lodging a complaint in accordance with the judicial review procedure. 35. The first applicant disagreed with the Government’s submissions and maintained his complaint.

Outcome for Article 5: violation