FIFTH SECTION
 
 
 
 
 
 
CASE OF MAMMADLI v. AZERBAIJAN
 
(Application no. 47145/14)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
19 April 2018
 
FINAL
 
19/07/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mammadli v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Erik Møse,
 André Potocki,
 Yonko Grozev,
 Síofra O’Leary,
 Gabriele Kucsko-Stadlmayer,
 Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 27 March 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 47145/14) 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 an Azerbaijani national, Mr Anar Asaf oglu Mammadli (Anar Asəf oğlu Məmmədli − “the applicant”), on 17 June 2014. 2. The applicant was represented by Mr E. Sadigov and Mr R. Hajili, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. The applicant alleged that his right to liberty had been breached because he had been unlawfully detained in the absence of any reasonable suspicion that he had committed a criminal offence. He also alleged that the domestic courts had failed to justify his pre-trial detention, and that they had not addressed his specific arguments in support of his release. 4. On 3 December 2014 the application was communicated to the Government. It was also decided to grant the application priority treatment under Rule 41 of the Rules of Court. In addition, third-party comments were received from the Council of Europe Commissioner for Human Rights, who exercised his right to intervene in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2 of the Rules of Court). Observations were also received from the Helsinki Foundation for Human Rights, the Human Rights House Foundation, and Freedom Now, 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). 5. On 14 June 2016 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, to invite the parties to submit further written observations under Article 18 of the Convention taken in conjunction with Article 5. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1978 and lives in Baku. A. Background
7. The applicant is a well-known civil society activist and human rights defender. He is the Chairman and one of the co-founders of the Election Monitoring and Democracy Studies Centre (Seçkilərin Monitorinqi və Demokratiyanın Tədrisi Mərkəzi − “the Centre”), a non-governmental organisation specialising in the monitoring of elections. 8. The applicant has actively taken part in election observation in Azerbaijan. He was also the Chairman and one of the co-founders of the Election Monitoring Centre (Seçkilərin Monitorinqi Mərkəzi), a non‑governmental organisation specialising in the monitoring of elections which was established on 19 February 2006. Following numerous attempts to acquire status as a legal entity under domestic law, the Election Monitoring Centre was finally registered by the Ministry of Justice on 1 February 2008. However, a few months later, in May 2008, the domestic courts ordered its dissolution at the request of the same ministry. The domestic proceedings relating to the registration and dissolution of the Election Monitoring Centre are the subject of an application pending before the Court (see application no. 64733/09). 9. Following the dissolution of the Election Monitoring Centre, on 1 December 2008 the applicant and some of his colleagues founded the Centre (see paragraph 7 above), which has made several unsuccessful attempts to obtain State registration through applications to the Ministry of Justice. The domestic authorities’ refusal to register the Centre is the subject of another application pending before the Court (see application no. 70981/11). 10. The applicant has been involved in the preparation of various reports relating to the organisation of elections and general human rights situation in Azerbaijan. In particular, he has been a speaker at Council of Europe events and has cooperated with UN institutions. B. Institution of criminal proceedings against the applicant and his detention pending trial
11. The Centre conducted both short-term and long-term observations of the last presidential elections, held on 9 October 2013, in cooperation with its partner organisation, the Volunteers International Cooperation Public Union (Könüllülərin Beynəlxalq Əməkdaşlığı İctimai Birliyi – “the Public Union”) which has been registered as a legal entity by the Ministry of Justice. The Centre’s preliminary report concerning the results of the elections, published on 21 October 2013, concluded that the presidential elections had failed to comply with democratic standards. 12. On 29 October 2013 the Prosecutor General’s Office instituted criminal proceedings in connection with alleged irregularities in the financial activities of the Centre and the Public Union. 13. On 31 October 2013 a search was conducted at the Centre’s office, during the course of which all the organisation’s documents and electronic data storage devices were taken away by the prosecuting authorities. 14. On 16 December 2013 the applicant was arrested and charged under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code. The description of the charges consisted of a single sentence which was one page long. In particular, the applicant was accused of receiving since May 2013, as co‑founder and Chairman of the Centre, an “organisation lacking State registration” − with the complicity of S.B. and E.M., through the Public Union, which was a registered NGO − a number of grants, in the amount of 215,287 Azerbaijani manats (AZN) from the United States of America’s National Democratic Institute resulting from certain grant agreements. He was accused of generating profit, “by paying money to himself and other people involved in the projects in the guise of salaries and service fees” despite the fact that the Centre did not have status as a legal entity. It was also stated that “as an official, he had failed to register these grants with the relevant executive authority, even though he had a professional obligation to do so”. Furthermore, he was accused of avoiding payment of taxes under Article 219 of the Tax Code in the amount of AZN 19,535, thus causing “significant damage to State interests protected by law, entailing grave consequences”. 15. On the same day the prosecutor lodged a request with the Nasimi District Court seeking the applicant’s detention pending trial. The prosecutor justified his request by citing the gravity of the charges against the applicant, the fact that he did not live at the address where he was officially registered as a resident, and that there was a risk of his absconding from the investigation and obstructing the investigation’s functioning by influencing other participants in the criminal proceedings. In particular, the fact that the applicant had studied abroad, had frequently travelled to foreign countries, and was in constant contact with people living abroad constituted grounds for believing there was a risk of his absconding from the investigation. 16. On 16 December 2013 the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s request, ordered the applicant’s detention for a period of three months. The court cited the gravity of the charges and the risk of re-offending and justified its decision as follows:
“After having examined the request with the material of the case file and having heard the submissions of the investigator and the prosecutor in favour of the request and the submissions of the accused and his representative against the request, the court considers that the request should be granted. The accused has been charged under Article 308.2 of the Criminal Code of the Republic of Azerbaijan which constitutes a serious crime. The accused Anar Mammadli has also been charged with a criminal offence punishable by more than three years’ imprisonment, and there is a strong likelihood that he will re-offend.”
17. On 18 December 2013 the applicant appealed against that decision, claiming that his detention was unlawful. He complained, in particular, that there was no “reasonable suspicion” that he had committed a criminal offence and that no proof in this respect had been produced, that he had not been involved in any entrepreneurial activity, and that it was not forbidden by law to receive grants. He also pointed out that he had registered all the grants received with the relevant authorities as required by the domestic law. The applicant also complained that there was no justification for the application of the preventive measure of detention pending trial. He had complied with the investigation’s requests all along and that the court had failed to justify his detention pending trial. Moreover, he was unable to obstruct the functioning of the investigation as all the documents relating to his activities had been in the possession of the investigation since the search of the Centre’s office on 31 October 2013. 18. On 23 December 2013 the Baku Court of Appeal dismissed the appeal, finding that the first-instance court’s decision was lawful. The appellate court was silent as to the applicant’s above-mentioned specific complaints and confined itself to noting that the applicant’s personal situation ‒ that he had a permanent place of residence, that he was married, that his family was financially dependent on him, and that he had a good reputation ‒ did not constitute grounds for lifting the detention pending trial. C. Extension of the applicant’s pre-trial detention and further developments
19. On 20 December 2013 the applicant lodged a request to be released on bail or placed under house arrest instead of in pre-trial detention, arguing that there was no “reasonable suspicion” that he had committed a criminal offence. He also claimed that there were no grounds justifying his continued detention. In particular, he had cooperated with the investigation all along and, although he often travelled abroad, he had never intended to abscond from the investigation. The applicant also pointed out that the domestic courts had failed to take into account his personal situation, namely that he had no criminal record, had a permanent place of residence, and that his family were financially dependent on him. 20. On 25 December 2013 the Nasimi District Court dismissed the request, finding that the grounds justifying his detention, as specified in its decision of 16 December 2013, “had not ceased to exist”. 21. On 26 December 2013 the applicant appealed against this decision, reiterating his previous complaints. 22. On 30 December 2013 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court’s decision of 25 December 2013, relying essentially on the same reasoning. 23. Following a request dated 4 March 2014 from the Prosecutor General’s Office for an extension of the period of the applicant’s pre-trial detention, on 6 March 2014 the Nasimi District Court extended the applicant’s detention pending trial by three months, until 16 June 2014. The court justified its decision by citing the complexity of the case and the fact that a number of investigative steps still needed to be carried out, meaning that more time was needed to complete the investigation. 24. On 7 March 2014 the applicant appealed against this decision. He claimed, in particular, that there was no “reasonable suspicion” that he had committed a criminal offence and that the first-instance court had failed to justify the extension of his pre-trial detention. 25. On 14 March 2014 the Baku Court of Appeal dismissed the appeal, upholding the Nasimi District Court’s decision of 6 March 2014. The appellate court provided the same reasoning as the first-instance court. 26. On 19 March 2014 the Prosecutor General’s Office charged the applicant under Articles 179.3.2 (high-level embezzlement) and 313 (forgery in public office) of the Criminal Code, in addition to the original charges under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code. The description of the allegations against him was slightly expanded, but essentially remained the same as that given on 16 December 2013 (see paragraph 14 above), with additional information alleging that the applicant had falsified various pieces of paperwork and minor contracts for services provided by a number of individuals (presumably in connection with various grant projects) and had not paid them in full as stipulated in the contracts. 27. On 31 March 2014 the applicant again lodged a request with the court, asking the substitution of his detention pending trial with either house arrest or release on bail. In support of his request, he reiterated his previous arguments. 28. On 1 April 2014 the Nasimi District Court dismissed the request. The court substantiated its decision by citing the gravity of the criminal charges against the applicant and the risk of his absconding from the investigation and obstructing its functioning. 29. On 7 April 2014 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 1 April 2014, providing the same reasoning as the first-instance court. 30. In the meantime, on 5 April 2014 the applicant’s case was sent to the Baku Court of Serious Crimes for trial. 31. On 26 May 2014 the Baku Court of Serious Crimes found the applicant guilty on all counts and sentenced him to five and a half years’ imprisonment. 32. On 10 December 2014 the Baku Court of Appeal upheld this judgment. It was further upheld on 26 August 2015 by the Supreme Court. 33. Following a presidentially decreed pardon on 17 March 2016, the applicant was released from serving the remainder of his sentence. D. Public reaction to the applicant’s arrest and institution of criminal proceedings against him
34. The applicant’s arrest and institution of criminal proceedings against him attracted significant public and media interest both inside the country and internationally. Immediately after his arrest, a number of domestic NGOs, as well as international NGOs such as Amnesty International and Human Rights Watch, condemned the authorities’ actions, calling on them to drop “all politically motivated charges against him”. 35. On 17 December 2013, Janez Lenarčič, Director of the OSCE Office for Democratic Institutions and Human Rights, expressed his concern over the applicant’s arrest. He noted that “the reported arrest of Anar Mammadli is disturbing as it endangers citizen election observation, the role of which in ensuring the integrity of electoral processes has been recognised by all OSCE participating States, including the Republic of Azerbaijan”. 36. On 20 December 2013 the Monitoring Committee co-rapporteurs for Azerbaijan of the Parliamentary Assembly of the Council of Europe (PACE) expressed their concern about the arrest and pre-trial detention of the applicant. They stated that they had met him on several occasions during their fact-finding visits to Baku and at the Parliamentary Assembly in Strasbourg, pointing out that “this decision on pre-trial detention may raise suspicions about politically-motivated justice which we denounced in our recent report on the honouring of obligations and commitments by Azerbaijan”. 37. On 9 May 2014 Maina Kiai, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, and Margaret Sekaggya, UN Special Rapporteur on the situation of human rights defenders, condemned the arrest and criminal prosecution of the applicant. In particular, the UN Special Rapporteurs stated that they were seriously concerned that three human rights defenders, including the applicant, were being prosecuted in retaliation for their legitimate work documenting alleged widespread irregularities and human rights violations around the presidential elections of 9 October 2013. “All charges brought against them should be dropped and Mr. Mammadli should be released immediately”. E. Statements by public officials and politicians from the ruling party concerning the cases of arrested human rights activists
38. Following the arrest of the applicant and other human rights activists, a number of politicians from the ruling political party made comments about recently arrested NGO activists and human rights defenders in Azerbaijan, describing them as spies or as being a “fifth column” for foreign interests and traitors, without specifically naming the applicant. Some examples of such comments can be found in the Court’s judgment in Rasul Jafarov v. Azerbaijan (no. 69981/14, §§ 38-42, 17 March 2016). II. RELEVANT DOMESTIC LAW AND PRACTICE
39. A detailed description of the relevant provisions of the domestic law concerning the criminal proceedings instituted against the applicant, pre‑trial detention and proceedings concerning the application and review of the preventive measure of detention pending trial, and the relevant extracts from the decisions of the Plenum of the Supreme Court can be found in the Court’s judgment in Rasul Jafarov (cited above, §§ 50-76 and §§ 79-80). III. RELEVANT INTERNATIONAL DOCUMENTS
40. The relevant extracts from the Opinions adopted by the European Commission for Democracy Through Law (Venice Commission) with respect to Azerbaijan can be found in the Court’s judgment in Rasul Jafarov (cited above, §§ 81-82). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION
41. Relying on Article 5 §§ 1 (c) and 3 of the Convention, the applicant complained that he had been arrested and detained in the absence of any “reasonable suspicion” that he had committed a criminal offence. He also complained that the domestic courts had failed to provide relevant and sufficient reasons justifying the necessity of his continued detention. Article 5 §§ 1 (c) and 3 of the Convention reads:
“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:
... (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;
... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
42. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a)  The applicant
43. The applicant submitted that there was no “reasonable suspicion” that he had committed a criminal offence. He noted that although in their observations the Government had referred to “the expert opinions and testimonies” as evidence proving the existence of a “reasonable suspicion”, neither the prosecuting authorities nor the domestic courts had referred to such evidence when they ordered the applicant’s arrest and detention. In this connection, he claimed that he had been arrested and charged because of the Centre’s reports on election irregularities in Azerbaijan. 44. The applicant further argued that his detention had not been in compliance with the requirements of Article 5 § 3 of the Convention, because the domestic courts had failed to provide “relevant and sufficient” reasons justifying his pre-trial detention, and had also failed to properly consider whether alternative preventive measures could have been applied. (b)  The Government
45. The Government submitted that the applicant had been arrested on the basis of the investigative measures taken following the institution of criminal proceedings. The investigation was able to collect initial evidence proving the applicant’s participation in the misappropriation of a large amount of money and tax evasion in the amount of AZN 19,000 (approximately EUR 17,850 at the material time). That material and information had been further corroborated by the expert opinions and testimonies of other defendants in the criminal case, which had been sufficient to justify the applicant’s arrest under domestic law. In this connection, the Government referred to documents, dated 16 December 2013 and 19 March 2014, indicating that various expert opinions had been passed on to the applicant by the investigation. Accordingly, the Government argued that there had been sufficiently specific information to justify a reasonable suspicion that the applicant had committed an offence. 46. The Government also argued that the courts had given relevant and sufficient reasons for their decisions establishing that there had been a risk that, if not detained, the applicant would abscond from the investigation or hinder the proper conduct of the proceedings. (c)  The third parties
47. Third-party comments submitted by the Council of Europe Commissioner for Human Rights, as well as by the Helsinki Foundation for Human Rights, the Human Rights House Foundation and Freedom Now concerned the situation of human rights defenders in Azerbaijan and the difficulties faced by NGOs as a result of the recent legislative amendments. A detailed description of the above-mentioned comments can be found in the Court’s judgment in Rasul Jafarov (cited above, §§ 99-113). 2. The Court’s assessment
(a)  General principles
48. Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty, which must be interpreted strictly. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him before the competent legal authority on “reasonable suspicion” of “having committed an offence” (see Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000‑IX). 49. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c), it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145‑B). Nor is it necessary that the person detained should ultimately have been charged or brought before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling the suspicions which provided the grounds for detention. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of the criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300‑A). 50. However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Gusinskiy v. Russia, no. 70276/01, § 53, ECHR 2004‑IV). What may be regarded as “reasonable” will depend upon all the circumstances (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The length of the deprivation of liberty may also be material to the level of suspicion required (see Murray, cited above, § 56). 51. When assessing the “reasonableness” of the suspicion, the Court must be in a position to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured. Consequently, the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence (see Fox, Campbell and Hartley, cited above, § 34 in fine). 52. Apart from its factual aspect, which is most often in issue, the existence of such a suspicion additionally requires that the facts relied on can reasonably be considered criminal behaviour under domestic law. Thus, clearly there could not be a “reasonable suspicion” if the acts held against a detained person did not constitute an offence at the time they were committed (see Włoch v. Poland, no. 27785/95, §§ 108-09, ECHR 2000‑XI). 53. The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a prerequisite for the lawfulness of the continued detention (see, among many other authorities, Stögmüller v. Austria, 10 November 1969, p. 40, § 4, Series A no. 9, and McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006‑X). Accordingly, while reasonable suspicion must exist at the time of the arrest and initial detention, it must also be shown, in cases of prolonged detention, that the suspicion persisted and remained “reasonable” throughout the detention (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 90, 22 May 2014). (b)  Application of those principles to the present case
54. The Court observes that the applicant in the present case complained of the lack of “reasonable” suspicion against him throughout the entire period of his pre-trial detention, including both the initial period following his arrest and the subsequent periods when his remand in custody was authorised and extended by court orders. In this connection,

Outcome for Article 18: violation