ITEMID: 001-105823
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HUSEYN AND OTHERS v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 6-1 and 6-3-b;Violation of Art. 6-1 and 6-3-c;Violation of Art. 6-1 and 6-3-d;Violation of Art. 6-2;Non-pecuniary damage - award
JUDGES: Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicants were born in 1957, 1966, 1962 and 1957 respectively and live in Baku.
6. The first applicant, Mr Panah Huseyn (also sometimes referred to as Panah Huseynov), was a prominent member of the Popular Front Party of Azerbaijan. The second applicant, Mr Rauf Abbasov (commonly known as Rauf Arifoglu), was a prominent member of the Müsavat Party and the editor-in-chief of the opposition-oriented newspaper Yeni Müsavat. The third applicant, Mr Arif Hajili, was a deputy chairman of the Müsavat Party. The fourth applicant, Mr Sardar Mammadov (commonly known as Sardar Jalaloglu), was a deputy chairman of the Democratic Party of Azerbaijan.
7. The respective political forces with which the applicants were affiliated were founders of the election coalition Bizim Azerbaijan, formed with the aim of supporting the main opposition candidate, Mr Isa Gambar, the chairman of the Müsavat Party, in the presidential elections of 15 October 2003.
8. Mr Gambar lost the elections of 15 October 2003.
9. On the evening of election day a group of opposition supporters gathered in front of the Müsavat Party’s headquarters in the centre of Baku, claiming victory for their candidate in the election. At that time there were some violent altercations between opposition supporters and the security forces.
10. At around 2 p.m. on 16 October a number of opposition supporters started gathering near the State Carpet Museum, in the centre of Baku, to protest against the election results. The crowd then started moving towards Azadliq Square, the main square in the city. It was reported that, on the way, some people in the crowd began damaging cars, buildings, benches and other urban constructions. It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence.
11. It has been claimed that some police officers who had been deployed at Azadliq Square were attacked by some of the demonstrators. Shortly thereafter large numbers of riot police and military personnel, fully equipped with helmets, shields and truncheons, arrived in the square with the aim of dispersing the demonstration. The situation quickly escalated into public disorder and violent clashes occurred between the crowd and the police. It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question.
12. The applicants, among other persons, were considered by the State authorities to be the organisers of the demonstration. At around 2.30 p.m. all of the applicants, except Mr Mammadov, had appeared on a tribune in Azadliq Square. Mr Hajili gave a speech to the people gathered in the square, while the two other applicants did not. Mr Mammadov was in the headquarters of his political party at that time and, according to his own statements, was unable to go to Azadliq Square (although he wished to do so), because the exits from the headquarters were reportedly blocked by State security forces.
13. At around 6 p.m. the demonstration was completely dispersed. Several hundred people were arrested during the events of 16 October and in their aftermath.
14. On 16 October 2003 the Prosecutor General’s Office instituted criminal proceedings (case no. 80308) concerning the events of 15 and 16 October 2003. More than a hundred persons arrested in connection with those events were eventually prosecuted in the context of those proceedings. The proceedings concerned only the actions of the organisers of the demonstration and those participating in it, and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration (see Muradova v. Azerbaijan, no. 22684/05, §§ 23 and 114, 2 April 2009).
15. In the context of the above-mentioned criminal proceedings, on the dates specified below all of the applicants were arrested and charged with criminal offences.
16. The first applicant, Mr Panah Huseyn, was arrested at his home on 18 October 2003 by a number of police officers of the Organised Crime Department of the Ministry of Internal Affairs (“the OCD”). He was taken to the OCD’s detention facility.
17. According to the second applicant, Mr Rauf Abbasov, on 17 October 2003 several police officers in plain clothes unsuccessfully attempted to arrest him. Thereafter, in order to avoid being arrested, the applicant sought refuge in the Norwegian Embassy until 21 October 2003. He left the Embassy after he received assurances from the police that he would not be arrested. However, on 27 October 2003 he was arrested and taken to Detention Facility no. 1.
18. As for the third applicant, Mr Arif Hajili, on 21 October 2003 the Nasimi District Court remanded him in custody, on the basis of a request by the Prosecutor General’s Office. The applicant was not present personally and was not represented at that hearing. On 24 October 2003 he was arrested pursuant to the detention order.
19. The fourth applicant, Mr Sardar Mammadov, was arrested at his home on 18 October 2003 and taken to the OCD (see Mammadov v. Azerbaijan, no. 34445/04, §§ 6-14, 11 January 2007, for a more detailed description of the circumstances of the fourth applicant’s arrest and detention).
20. Following their arrests, the first, third and fourth applicants were not given immediate access to a lawyer (see section B.4 below).
21. All of the applicants were formally charged with offences of “organising public disorder” and “use of violence against State officials” under Articles 32.2, 220.1 and 315.2 of the Criminal Code. On the basis of relevant requests by the Prosecutor General’s Office, all of them were remanded in custody pursuant to a court order, with their detention subsequently being extended until the trial.
22. The first applicant was kept in the OCD’s detention facility until 22 October 2003. Thereafter, he was transferred to another detention facility. According to him, during the five days of his detention in the OCD he was repeatedly ill-treated. He was also informed that several of his relatives, including his brother, had been detained. He was not allowed access to a lawyer until 23 October 2003 (see below). After his transfer to another detention facility, for an unspecified period of time he was kept in solitary confinement and was not allowed to possess writing accessories, books, a radio or newspapers.
23. In February 2004 the first applicant, together with several other detained persons (none of whom are applicants in the present case), lodged a complaint with the Prosecutor General’s Office, alleging that they had been ill-treated during the first few days of their detention and seeking to have criminal proceedings opened against the perpetrators. On 14 February 2004 their complaint was rejected as unsubstantiated. In particular, in respect of the first applicant, it was noted that he had not made any allegations of ill-treatment in the immediate aftermath of his initial questioning, that the various allegations he had made at different times had been inconsistent, and that, when given the opportunity to undergo an examination by a forensic expert, he had refused to do so, stating that there were no injuries on his person. It was concluded that no evidence of illtreatment had been produced.
24. During the trial proceedings (described in section C. below), the first applicant complained before the trial court that he had been tortured in the OCD. Responding to a number of specific questions put to him in connection with his allegations, he mentioned that he had been handcuffed and punched in his chest and kidneys and that it had been hinted to him that his son would be ill-treated, but he expressly refused to provide any further details of the alleged torture, stating generally that he had “never seen such cruelty”. He also refused to mention any names of the alleged perpetrators because “they were not important people”, and instead accused the President, the Minister of Internal Affairs and the Head of the Presidential Administration of “making orders” to ill-treat him. He also mentioned that, from what he had heard, many other people had also been ill-treated. It appears that the trial court dismissed his complaints of ill-treatment as unsubstantiated.
25. According to the second applicant, during the first thirty-six days of his detention in Detention Facility no. 1, he was held in a single cell and was not given access to writing materials, books, newspapers or a radio.
26. The fourth applicant’s ill-treatment was the subject of an earlier case examined by the Court (see Mammadov, cited above).
27. Throughout the period from the beginning of the criminal proceedings until 1 March 2004, the investigation into the accusations against the applicants, as well as other accused persons, was carried out within the framework of criminal case no. 80308.
28. On 1 March 2004 the head of the investigation team issued a decision severing a new criminal case (no. 80365) from criminal case no. 80308. The new case concerned seven accused persons in total, including the four applicants and Mr I. Agazade, Mr I. Ibrahimov and Mr E. Asadov. The following reasons were given for the decision:
“The investigation has gathered sufficient evidence to prove the named persons guilty of having committed the offences with which they are charged. The criminal prosecution in respect of the other accused persons is continuing ...
The especially large volume of material in the case file and the large number of incidents comprising the case would make it necessary to prolong the pre-trial investigation and pre-trial detention. This would create difficulties in ensuring the rights and lawful interests of the accused persons in respect of whom sufficient evidence has been obtained and, at the same time, would result in an unacceptable delay in referring the case to the trial court.
Accordingly ... it is appropriate to sever a new criminal case from criminal case no. 80308 ..., to complete the pre-trial investigation in respect of the severed case and to refer it to the trial court.”
29. It appears that the pre-trial investigation in respect of criminal case no. 80365 was formally declared completed on the same day, 1 March 2004.
30. Below is the information on the legal assistance received by the applicants, the lawyers who represented them, and the circumstances in which they were given access to the investigation file after completion of the pre-trial investigation and before the trial proceedings, inasmuch as this can be discerned from the material available in the case file.
31. Following his arrest on 18 October 2003, the first applicant, Mr Huseyn, was not allowed access to a lawyer until 23 October 2003. From that date on, he was represented by Mr M. Hadi.
32. Following the completion of the pre-trial investigation on 1 March 2004, the applicant and his lawyer, Mr Hadi, were given access to the prosecution’s case file and on 6 April and 15 April 2004, respectively, they signed a record on familiarisation with the material in the case file. According to the applicant, his lawyer was granted access to the entire case file for only one working day.
33. Subsequently, starting from an unspecified date during the trial, Mr Huseyn was also represented by another lawyer, Mr S. Panahov.
34. After his arrest, the second applicant, Mr Abbasov, was represented by a State-appointed lawyer. The lawyer was subsequently replaced by three lawyers whom the applicant retained in October and November 2003. One of these lawyers was Mr T. Karim.
35. It appears that, following the termination of the pre-trial investigation, Mr Karim was given access to the case file and signed a record on familiarisation with the material in the file, dated 15 April 2004. Mr Abbasov himself was also given access to the case file. According to him, he was given less than 100 hours to study the file, which was insufficient to become fully familiar with all the evidence, consisting of twenty-two volumes of documents (amounting to more than 6,200 pages) and twenty-two video cassettes (each containing about two and a half hours of video material).
36. On 27 May 2004, at one of the preliminary hearings in the Assize Court, which had commenced on 7 May 2004 (see paragraph 44 below), Mr Abbasov lodged an application refusing the services of all three lawyers representing him on the ground that these lawyers had not been able to defend him adequately. He requested leave to defend himself in person but, according to the Government, subsequently asked for a new lawyer. On 4 June 2004 the Assize Court accepted the application and decided that the applicant should be provided with a new State-appointed lawyer. The lawyer, Mr S. Panahov, was appointed at some date around 8 June 2004. During the trial, another lawyer, Mr E. Guliyev, was retained by the applicant.
37. Following his arrest on 24 October 2003, the third applicant, Mr Hajili, was not allowed access to a lawyer until 27 October 2003. From this date on, it appears that he was represented by a number of lawyers throughout the proceedings.
38. Following the completion of the pre-trial investigation on 1 March 2004, the applicant and several of his lawyers (Mr M. Shahmarov, Mr N. Safarov, Mr M. Hadi and Mr O. Kazimov) were given access to the prosecution’s case file. On 6 April the applicant, and on 15, 16 and 17 April 2004 each of the lawyers, signed a separate record on familiarisation with the material in the case file.
39. Mr V. Khasayev was appointed as Mr Mammadov’s lawyer on 18 October 2003.
40. On 21 October 2003 Mr Khasayev complained to the Prosecutor General’s Office, by telegram, that he had not been allowed to meet the applicant. Eventually, he was able to meet the applicant for the first time on 22 October 2003.
41. There is no information in the case file as to whether Mr Khasayev or the applicant were given access to the prosecution’s case file following the completion of the pre-trial investigation.
42. As noted above, more than one hundred persons were prosecuted, in the framework of criminal case no. 80308, for their involvement in the events of 15 and 16 October 2003. Subsequently, this case was split, dividing the accused persons into fifteen separate groups (one of which groups comprised the newly severed criminal case no. 80365 concerning the applicants), and each group was tried separately. The first fourteen trials concerned the cases of those who were accused of participating in mass disorder and use of violence against officials. All those trials were conducted by either the Assize Court or the Sabail District Court and were completed in March and April 2004. All the defendants in those trials were found guilty and were sentenced to either imprisonment, suspended periods of imprisonment or restriction of liberty.
43. The fifteenth and last trial in criminal case no. 80365 concerned the persons who were accused of organising the mass disorder, including the four applicants in the present case. This trial took place after the first fourteen trials.
44. The trial was conducted by the Assize Court. It commenced with several preliminary hearings, the first of which took place on 7 May 2004. The three-judge panel hearing the case was composed of Judges M. Ibayev (presiding), S. Aleskerov and J. Jumaliyev.
45. During a preliminary hearing on 12 May 2004, the applicants’ lawyers complained to the Assize Court about an alleged danger to their personal safety, notifying the court about an incident which had taken place after the preliminary hearing of 7 May 2004. According to the lawyers, six of them had been harassed and assaulted by a number of police officers outside the courthouse when they were giving an interview to a television journalist. To support this allegation, two of the lawyers produced some items of clothing damaged during the altercation and photographs depicting the incident. They characterised the alleged incident as a form of undue pressure put on them by the authorities and asked the court to take measures to ensure their personal safety. The presiding judge replied that the court could not be concerned with any incidents taking place outside its courtroom and that the lawyers should use the relevant avenues of redress if they wished to complain about any alleged harassment outside the court hearings. The court nevertheless decided to notify “the relevant authorities” about the lawyers’ allegation. However, from the material available in the case file, it is unclear which specific steps were taken by the court in this regard.
46. Furthermore, the first applicant, Mr Huseyn, lodged an application objecting to the participation in the trial of one of the Assize Court’s judges, Judge Ibayev, noting that the judge’s son worked at the Prosecutor General’s Office and was subordinate to the head of the investigation team dealing with his case. The other defendants joined the application. On 24 June 2004 the Assize Court rejected the application, finding that, although Judge Ibayev’s son indeed worked at the Prosecutor General’s Office, he had never been personally involved in the applicants’ case.
47. Subsequently, the first applicant, joined by other defendants, also objected to the participation in the trial of Judge Aleskerov. They pointed out that Judge Aleskerov was the brother of Mr N. Aleskerov, an investigator from the Prosecutor General’s Office who, during the period from 19 October 2003 to 26 January 2004, had been a member of the investigation team dealing with the applicants’ case. The first applicant argued that, owing to Judge Aleskerov’s brother’s direct involvement in the case, he would not be able to hear the case as an impartial judge. On 28 June 2004 the Assize Court rejected that application, noting that Mr N. Aleskerov had indeed been one of the forty-three members of the investigation team working on criminal case no. 80308. However, he had been removed from the team on 26 January 2004. Subsequently, after the new case no. 80365 (concerning the applicants) had been severed from case no. 80308, Mr N. Aleskerov had not been included in the investigation team dealing with this new case. For these reasons, the Assize Court concluded that claims concerning the lack of impartiality of Judge Aleskerov could not be objectively justified.
48. Throughout the trial in the Assize Court, the applicants lodged a number of other applications. According to them, the court’s interim decisions rejecting those applications were either not given to them or were made available to them only after significant delays. Moreover, the applicants requested permission to verify the transcripts of court hearings after each hearing in order to be able to comment on alleged irregularities and “falsifications” contained in them. However, they were given access to the transcripts only at the very end of the trial.
49. During the course of the trial, the Assize Court examined large volumes of testimonial evidence, as well as video recordings and other materials. Below is a brief summary of the evidence heard and the manner in which it was ultimately assessed in the Assize Court’s judgment.
50. The majority of prosecution witnesses were police officers deployed at Azadliq Square on 16 October 2003. The investigation also produced records of pre-trial questioning of some of the persons who had been convicted at earlier trials in connection with the events of 15 and 16 October 2003, and a number of other civilian witnesses.
51. It appears that the absolute majority of prosecution witnesses were called to merely provide a general description of the events of 15 and 16 October 2003 in order to establish the fact of public disorder. Their testimonies were aimed at showing that the demonstrators had collected clubs, stones and other objects from the headquarters of the Müsavat Party and other opposition parties, that they had used these objects as weapons against the police and military forces and that they had damaged a variety of public and private property. These witness testimonies did not directly mention the applicants as either organisers of or participants in those violent actions. In addition, the prosecution produced some expert evaluations of various forms of damage to private and public property.
52. As to the applicants’ specific role in the events of 16 October, in order to establish that they had directed and incited the demonstrators’ violent actions, the prosecution produced pre-trial depositions of several police officers who had specifically described, inter alia, how they had seen the applicants arriving at Azadliq Square on 16 October 2003, publicly proclaiming the election victory of I. Gambar and inciting the demonstrators to violence from the tribune in the square.
53. Prior to the scheduled examination of these witnesses, on 5 August 2004 the first applicant, joined by all the other defendants, complained that the pre-trial depositions of some of those witnesses had been identical word for word and asked for this evidence to be excluded. He pointed out that, according to the relevant records, some of these depositions had been taken by the same investigator at the same time on the same day. He argued that this was either physically impossible or in breach of Article 230 of the Code of Criminal Procedure, which required that witnesses be questioned separately, and that, in either case, this evidence should not be admitted. It is not clear whether the Assize Court ever gave any decision concerning this objection, but it admitted the relevant depositions as evidence.
54. At the trial hearings, each of the police officers concerned testified separately and was cross-examined by the applicants and their lawyers. In particular, police officer V.N. stated, inter alia, that when the public disturbance had started at Azadliq Square, some of the defendants, including the second and third applicants, had been inciting the crowd to violence and making such declarations as “Isa [Gambar] has been elected President, we are now in power, do not be afraid of anyone, soon we will overtake the entire city, resist anyone who confronts you...”.
55. From the record of the court hearings, it appears that, during the cross-examination, the defence were able to reveal a number of alleged inconsistencies between the accounts given by V.N. during the hearing and in his pre-trial deposition (concerning such specific details of his testimony as, for example, whether he had actually seen any of the defendants appear on the tribune or not, or whether any of the defendants had actually used any phrases such as “Beat the police!”). The defence read out V.N.’s pretrial deposition at the hearing with the aim of pointing out these alleged inconsistencies. Likewise, according to the defence, cross-examination of most of the other witnesses of this type revealed alleged inconsistencies between their statements at the trial and in their pre-trial depositions. As appears from the transcript of the trial hearings, when confronted with these alleged inconsistencies, some of the witnesses stated that their pre-trial statements had not been properly recorded, while others reverted back to their pre-trial statements and retracted any inconsistent statements which they had made during the hearing prior to cross-examination.
56. It appears from the transcript of the court hearings that more than ten witnesses of this type were heard. In its judgment of 22 October 2004 the Assize Court separately summarised the testimonies of six of those witnesses and relied on them as proving the applicants’ guilt. The judgment addressed neither the objections raised by the applicants as to the admissibility of these witness testimonies, nor any objections concerning the inconsistencies allegedly revealed in their testimonies during crossexamination by the defence.
57. The prosecution also relied on testimony obtained during pre-trial questioning from a number of other persons convicted in connection with the events of 15 and 16 October. These persons had already been convicted at first-instance trials conducted by the Assize Court in March 2005. Inasmuch as this can be discerned from the Assize Court’s judgment of 22 October 2004 in the applicants’ case, the court relied on testimonies of five witnesses of this type.
58. According to the records produced by the prosecution, in the course of questioning as accused persons at the pre-trial investigation stage of criminal case no. 80308, these persons had described, in various degrees of detail, that they had witnessed the applicants at Azadliq Square inciting the demonstrators to violent resistance during the events of 16 October 2003.
59. During the trial hearings, these witnesses were called to be questioned about their pre-trial statements. According to the relevant trial transcripts and the Assize Court’s judgment of 22 October 2004, having taken to the witness stand at the oral hearings, four of these witnesses openly retracted their pre-trial statements against the applicants, noting that they had been forced to make those statements under torture, ill-treatment and other forms of duress applied to them during their pre-trial detention.
60. In reply to these allegations, the Assize Court noted that the witnesses’ complaints of ill-treatment had been addressed at their own respective trials and had been found to be unsubstantiated. The court found that, since these witnesses’ statements had already been relied on as sound evidence at those trials, the assessment of this evidence was a “res judicata matter”. In such circumstances, the court decided to accept these witnesses’ pre-trial statements as good evidence, and refused to attach weight to the fact that the witnesses had subsequently retracted them at their own trials and at the applicants’ trial.
61. The prosecution also submitted depositions of several other civilian witnesses who had not been convicted in connection with the events of 16 October 2003. According to the records produced by the prosecution, during the pre-trial investigation these witnesses had made statements similar to those made by the witnesses mentioned above. However, again, during the questioning at the public hearing, at least three of those witnesses retracted their earlier statements and claimed that they had been forced to make them under threat of ill-treatment or by means of actual ill-treatment.
62. According to the trial transcript, witness N.N. noted that he had been detained for a period of several days after the events of 16 October 2003 and, during that time, had been coerced into giving false testimony against the defendants (mostly against the second applicant). He noted that he had been threatened with prosecution and imprisonment for participating in the events of 16 October 2003, had been refused any water during his questioning and had otherwise been intimidated with the purpose of making him sign a pre-printed witness statement prepared by an investigator.
63. In order to assess the allegations of ill-treatment made by these witnesses, the Assize Court heard evidence from investigators and police officers who had questioned them. They stated that they had not ill-treated these witnesses during pre-trial questioning. Furthermore, the court noted that the witnesses’ pre-trial statements were corroborated by other evidence. On that basis, the court found that the allegations of ill-treatment were unfounded and that, therefore, the statements contained in the pre-trial depositions of these witnesses should be accepted and relied on as evidence incriminating the applicants.
64. The Assize Court partially granted the applicants’ requests to obtain the attendance of witnesses prepared to testify on their behalf. From the judgment, it appears that more than twenty such witnesses testified. Most of these witnesses were the applicants’ political companions or other persons affiliated with their political parties.
65. In its judgment, the Assize Court summarised all of these persons’ testimonies noting that all of them denied that the applicants had carried out the specific acts attributed to them, such as planning any violent actions in advance, verbally inciting the crowd to violence or organising the distribution of clubs and stones to demonstrators. It further noted that the witnesses had insisted that, on the contrary, the police had used excessive violence against the demonstrators and that, in their speeches, the applicants had called the demonstrators to refrain from attacking the police and responding to any provocation.
66. The Assize Court then went on to dismiss these testimonies as unreliable, using the following reasoning:
“Having examined the testimonies of these witnesses heard at the request of [the defendants], the court established that, as indicated above, these persons were members or employees of the [political] parties headed by the defendants and, as they worked with [the defendants], they were persons subordinate to and associated with [the defendants]. Some of their statements were even contradictory. In particular, while replying to the questions, [N.H.] stated, on the one hand, that the people speaking from the tribune had not been inciting people to violence and, on the other hand, that he had not heard the speeches as he had been standing 70-100 metres away from the tribune and had not been able to even see who had been speaking. [N.Y.] stated that she had been at the square by herself, while [E.P.] stated that [N.Y.] had been there with him.
Moreover, the circumstances described by them have been refuted by the above-mentioned comprehensive, reliable and mutually corroborative evidence consisting of testimonies of victims and witnesses, video recordings, material evidence and court judgments in force. Therefore, the court considers that [the defence witnesses’] testimonies are groundless.”
67. In addition, a number of videos depicting the events of 16 October 2003 were viewed during the court hearings.
68. The videos submitted by the prosecution were intended to show the allegedly violent actions of the demonstrators. Some of the images seen on the videos contradicted the testimonies of certain prosecution witnesses. Some of the defendants’ lawyers (for example, Mr Hadi) claimed that they had seen the video evidence for the first time at the court hearings, as it had not been made available to them by the prosecution before the trial, and that they had therefore been unprepared for the examination of this evidence.
69. It appears that, following an application by the defence, the Assize Court also admitted additional video evidence submitted by the defence, which was intended to demonstrate the allegedly excessive use of force by the police and military while suppressing the demonstration.
70. Assessing the video evidence, the Assize Court noted that the video depicted the violent actions of the demonstrators as well as the distribution to them of bludgeons, stones and other “weapons” in an organised manner.
71. On 29 September 2004 the Assize Court announced that the presentation of evidence was complete and that it would proceed to hear the parties’ oral submissions, inviting the prosecution to make their closing address first. The prosecution asked for an adjournment until 1 October 2004 to prepare their speech. On 1 October the prosecution asked for another adjournment until 11 October 2004. The prosecution delivered their closing address during two hearings on 11 and 12 October 2004.
72. Following the prosecution’s speech, on 12 October 2004 the court invited the defendants to deliver their respective closing addresses. However, in response to this invitation, almost all of the applicants’ lawyers, taking the floor one after the other, refused to take part in the oral submissions and make a closing address for the defence, providing the court with the following explanations for their refusal.
73. The first applicant’s lawyer, Mr Hadi, speaking first, noted that, throughout the proceedings, he had not been given adequate time and facilities to prepare his client’s defence. He had not been allowed to fully study the investigation file before the trial and had not been given access to some of the prosecution evidence, such as video recordings, in order to be able to adequately plan his defence tactics. He further noted that, during the proceedings, the defence lawyers had come under various forms of pressure and had even been physically assaulted when arriving at one of the preliminary hearings. He claimed that the lawyers had regularly received various threats from unspecified persons aimed at preventing them from adequately defending the applicants. Although the lawyers had repeatedly brought this matter to the Assize Court’s attention, and had even specifically complained about the incident involving the physical assault on them, the court had failed to take any action and had ignored the difficulties faced by them. He further argued that, in reality, the outcome of the trial had been predetermined and politically motivated and that the trial itself was being held only as a show, since even before its conclusion the President had publicly declared that the applicants were criminals and would be punished. He stated that, in such circumstances, the lawyers themselves felt vulnerable and frightened. He stated that, for these reasons, he was unable to adequately defend his client and was therefore unable to submit an oral argument. He apologised to his clients, the first applicant and Mr Ibrahimov, and noted that it would be best if the defendants were allowed to prepare and deliver the oral arguments themselves.
74. Mr Panahov, counsel for the first and second applicants, gave a similar explanation. He also noted that he was not able to provide effective assistance to his clients because, inter alia, he had never been given access to the investigation file. He claimed that after the completion of the pre-trial investigation the lawyers had been pressured into signing records on familiarisation with the material in the case file so that the case could be sent for trial quickly. Although he had specifically complained about this during the preliminary hearings, the Assize Court had ignored this matter. Like Mr Hadi, Mr Panahov also noted that the lawyers were concerned for their personal safety, and that this affected their ability to provide adequate assistance to their clients.
75. Other lawyers concurred with everything stated by their colleagues and gave similar explanations for their refusal to give a closing address.
76. Following this, the first applicant spoke to the court, on behalf of himself and the other defendants, asking for permission to make their defence speeches in person. He noted that, following their lawyers’ refusal to take part in the oral submissions, they were essentially left without any legal assistance. He requested the court to allow them sufficient time to prepare their closing addresses.
77. In response, Judge Ibayev stated that the defendants would be allowed to exercise a right of reply (replika). Judge Aleskerov noted that procedural law allowed a defendant to give a closing address in person only if he or she was unrepresented by counsel. Judge Jumaliyev commented that counsel could not shirk their duty to defend their clients.
78. At the next hearing, on 13 October 2004, the first applicant, on behalf of himself and the other defendants, lodged a formal application in writing, requesting the court to allow them to make their defence speeches themselves.
79. The court rejected the application as groundless. It noted that the defence lawyers had provided effective and adequate legal assistance to their clients. It further noted that the lawyers had been given ample opportunity to consult the investigation file but had themselves failed to do so, that it was the lawyers’ duty to participate in oral arguments, that they could not refuse to assist their clients at this stage of the proceedings, and that they had no good reason for shirking their duties.
80. It appears that only the fourth applicant’s lawyers delivered a closing address on behalf of their client, despite the fact that the fourth applicant had joined the first applicant’s request for permission to give the closing address in person.
81. The Assize Court then proceeded to invite the parties to exercise their right of reply. The prosecution waived that right.
82. Prior to the defendants’ speeches in reply, the third applicant asked the court not to place any time-limits on them, taking into account the fact that no closing addresses had been delivered on their behalf during the oral submissions. The presiding judge noted that this would be taken into account.
83. Exercising his right of reply, the first applicant spoke for about two hours. The presiding judge interrupted him three times, reminding him that a reply should be brief (no longer than three to fifteen minutes), and ultimately cut short his speech despite the applicant’s protests.
84. Likewise, all the other applicants attempted to deliver long speeches while exercising their right of reply, but were interrupted and ultimately stopped by the presiding judge after about an hour, on the ground that a reply should be brief.
85. Following this, the trial hearings ended after each of the defendants was allowed to speak one more time, in order to make their final plea.
86. On 22 October 2004 the Assize Court convicted the applicants of organising public disorder (Articles 32.3 and 220.1 of the Criminal Code) and organising acts of violence against State officials (Articles 32.2 and 315.2 of the Criminal Code).
87. The first and fourth applicants were each sentenced to four years and six months’ imprisonment. The second and third applicants were each sentenced to five years’ imprisonment.
88. In October and November 2004 the applicants appealed to the Court of Appeal against their conviction. In particular, in his appeal, the first applicant complained of, inter alia, breaches of his rights to an impartial tribunal, adequate time and facilities for preparation of his defence, effective representation, equality of arms and presumption of innocence. He also complained of errors by the trial court in the procedure for the admission and assessment of evidence. The second and fourth applicants made similar complaints in their appeals.
89. The third applicant’s appeal was shorter than those of the other applicants and was phrased in more general language. Among other things, he complained of the following:
“The conviction should be quashed as being illegal, unsubstantiated and unfair and I should be acquitted. In particular:
1. The judicial examination was carried out in breach of my rights as an accused person.
2. The judicial examination was carried out in breach of my lawyer’s rights.
3. The judicial examination was carried out in breach of my right to make a closing statement and in breach of my lawyer’s right to make a closing statement.
4. The court has not examined all the relevant factual circumstances necessary for the conclusions reached.
5. The factual findings in the judgment have not been proven. ...
The grounds for my claims concerning the illegality, lack of substantiation and unfairness of the conviction will be presented by me at the [appeal] hearings.”
90. All of the appeals were drafted by the applicants themselves in their own handwriting.
91. By a decision of 8 November 2004, delivered after a preliminary hearing, the Court of Appeal granted the applicants’ request to hold a public hearing on the merits of their appeals, but rejected their requests to conduct a fresh “judicial examination” of the case by means of renewed crossexamination of the witnesses and defendants and admission of new evidence. It also decided to provide the applicants with State-appointed lawyers for appeal proceedings, appointing the same lawyers who had represented the applicants at first instance. The extent of the actual assistance provided by these lawyers during the appellate proceedings is not clear.
92. By a judgment of 19 November 2004 the Court of Appeal upheld the Assize Court’s judgment. It reiterated the lower court’s findings and rejected, in one sentence, the complaints made by the applicants in their appeals as unsubstantiated.
93. The first applicant lodged a cassation appeal against that judgment. The cassation appeal consisted of 206 pages and was drafted by the applicant himself in his own handwriting. The appeal was very detailed in respect of all the alleged defects in the proceedings before the Assize Court and the Court of Appeal. The other applicants also lodged cassation appeals, drafted by themselves in their own handwriting.
94. On 29 March 2005 the Supreme Court upheld the lower courts’ judgments.
95. In March 2005 all of the applicants were released from serving the remainder of their prison sentences pursuant to a presidential pardon decree.
96. The applicants submitted a number of publications containing statements by high-ranking State officials and public authorities, which allegedly breached their presumption of innocence. Some of those statements are summarised below.
97. On 17 October 2003 the Milli Majlis (Parliament) adopted a resolution “on Unconstitutional Actions of the Müsavat, Ümid and Azerbaijan Democratic Parties, and Certain Political Opposition Groups”, denouncing the above-mentioned parties and holding them responsible for “unlawful actions” and mass disturbances resulting in loss of life and injuries inflicted on civilians and members of law-enforcement authorities, as well as for damage to public and private property. Among others, the resolution identified Isa Gambar (the leader of Müsavat), Igbal Agazade (one of the defendants tried together with the applicants) and “a group of other members and supporters of the opposition” as organisers of the above disturbances. The resolution was published in official newspapers.
98. On 23 October 2003 the official newspaper Xalq Qəzeti published a report by the State-owned press agency AzerTAG concerning a press conference held by the Ministry of Internal Affairs on 22 October 2003. During this press conference, the Head of the Press Service of the Ministry of Internal Affairs conveyed the Ministry’s official position concerning the events of 15 and 16 October 2003 and informed the media that criminal proceedings had been instituted in this connection and that a number of persons had been arrested. Among other things, he stated as follows:
“...on 15 and 16 October 2003 the destructive opposition, at the direct instigation of the leaders of the Müsavat, Ümid and Azerbaijan Democratic Parties Isa Gambar, Rasul Guliyev, Sardar Jalaloglu [Mammadov], Igbal Agazade and others, began committing pre-planned unlawful actions which resulted in mass disorder.”
99. The same issue of the newspaper contained a declaration by the Head of the Sabail District Police Office, denouncing the opposition. The following was stated:
“On 15 and 16 October 2003 certain riotous anarchist and extreme reactionary groups, following direct orders by Isa Gambar, Igbal Agazade and Sardar Jalaloglu [Mammadov], committed terrible criminal acts in Baku. ...
... we are confident that ... the persons who committed crimes ... and oversaw these extreme reactionary acts will bear criminal responsibility and receive deserved punishment. Moreover, we are assured that the Müsavat, Ümid and Azerbaijan Democratic Parties, which organised these criminal actions, will be banned and that the leaders of those political entities (I. Gambar, R. Guliyev, S. Jalaloglu, I. Agazade) will be held criminally liable.”
100. On 25 October 2003 Xalq Qəzeti published a declaration by the Ombudsperson, in which she criticised the opposition and the actions of the demonstrators during the events of 15 and 16 October 2003 and called upon all compatriots to adhere to civil unity and peaceful behaviour. The declaration was silent about the alleged reports of excessive and repressive use of force by the law-enforcement authorities during or in the aftermath of the events of 15 and 16 October 2003.
101. On 27 October 2003 Xalq Qəzeti published an almost fullpagelong “Press statement by the Ministry of Internal Affairs and the Prosecutor General’s Office of the Republic of Azerbaijan concerning the events that took place in Baku on 15 and 16 October”. The statement began with praise for the law-enforcement authorities’ success in combating crime in recent years and the Government’s progress in building a democratic State governed by the rule of law. It continued with words of disapproval about the “radical opposition”, which did not “want to accept the positive developments and existing realities” and was attempting to “cast a shadow” on the Government’s successes and to disrupt stability in the country. It further continued:
“The extremist circles of the opposition, having realised in advance that they would lose in the free and fair elections and having become fully assured of this during the voting conducted in a democratic and transparent manner, once again resorted to destructive actions. Leaders of the Müsavat and Ümid Parties Isa Gambar and Igbal Agazade, their supporters, and leaders of the ADP, including Rasul Guliyev, who is under an international search warrant for the crimes committed by him, and Sardar Jalaloglu [Mammadov], as well as other members of that party, have particularly distinguished themselves in this undertaking.
It must be noted that, starting from 1 October, for the purpose of participating in the mass disturbances planned by the [above-mentioned] persons, active members of those parties as well as persons predisposed to crime were brought to [Baku], and money was distributed to some of them in exchange [for their participation].
[The narration continues with a description of the opposition demonstration held on 15 October 2003, where claims of election irregularities and unfairness were first voiced.]
The false accusations and lies deliberately disseminated by the above-mentioned party leaders after the election, as well as their call to [demonstrators] to commit illegal actions, provided an impetus for further actions resulting in a grave breach of public order in the capital. ...”
102. The statement continued with a detailed description of the events of 15 and 16 October and with a flat denial of any allegations of excessive and repressive use of force by the police during the dispersal of the demonstration, as well as any allegations of torture and ill-treatment of arrested persons. It also stated that only a small number of arrested persons, consisting of the main organisers and perpetrators of the illegal actions referred to, had eventually been prosecuted.
103. On 30 October 2003 Xalq Qəzeti published an article by the Deputy Minister of Internal Affairs, entitled “Stability and tranquility in Azerbaijan will be protected, the rule of law will be firmly respected”. Almost the entire article consisted of condemnation and harsh criticism of the political opposition’s actions during the events of 15 and 16 October. The author repeatedly used such descriptions as “criminal”, “reactionary”, “destructive”, “radical” and “violent” with reference to the opposition in general, and in particular to the Müsavat Party and its leader I. Gambar. The author expressly stated that the Müsavat Party, its leaders and other opposition forces supporting them had engaged in “actions of criminal character”, had openly declared their intention to capture State power by unlawful means, had distributed bludgeons to their supporters and had ordered them to engage in violent actions and vandalism and to disrupt the stability of the country. Within the above account, the article contained the following statements:
“... Panah Huseyn[ov] ... threatened bloodshed, and attempted to create a situation of mass psychosis. Not only Panah Huseyn[ov] engaged in such subversive action. While delirious ideas of ‘ripening a revolutionary situation’ came from Isa Gambar and Rasul Guliyev, they were conveyed to society by the likes of Sardar Jalaloglu [Mammadov], Igbal Agazade, Ibrahim Ibrahimli, Arif Haji[li], Rauf Arifoglu [Abbasov] and Flora Kerimova.”
104. On 5 October 2004, before the Assize Court’s judgment in the applicants’ case was delivered, the official newspaper Azərbaycan published a long interview given by the President to Reuters. Among a wide range of other issues discussed during the interview, the President also made the following statement:
“The attempt of the opposition to change the election results by means of violence was a criminal act. I stress again that the detained persons who are referred to as the opposition are being tried not for being members of the opposition, but for having committed unlawful acts.”
105. The relevant provisions of the Code of Criminal Procedure of 2000 (“the CCrP”) provided as follows:
“107.2. In the circumstances provided for in Articles 109, 110 and 112-118 of this Code that preclude the participation in criminal proceedings of a judge, juror, prosecutor, investigator, preliminary investigator, defence counsel, victim (private prosecutor), civil claimant, civil defendant, representative of a witness or a witness, court clerk, interpreter, specialist or expert, they shall request to withdraw.”
“109.1. An objection to a judge (or judicial formation) must state reasons. If an objection is not supported by specific reasons, it shall be left unexamined by the court. An objection to a judge may be considered justified and be granted unconditionally if there exists at least one of the following grounds precluding a person’s participation in the criminal proceedings as a judge:
...
109.1.7. if the judge has any relationship of kinship or other dependence with any participant in the criminal proceedings or with a representative or counsel of such participant;
...
109.2. In any of the cases covered by Article 109.1 of this Code, the judge shall disqualify himself or herself.”
“339.1. Upon completion of the judicial examination, the presiding judge shall announce the beginning of the oral arguments.
339.2. If any of the participants in the oral arguments requests time for preparation of the arguments, the presiding judge shall announce an adjournment and specify its duration.”
“340.1. The oral arguments shall consist of speeches made successively by the public prosecutor, the victim (or private prosecutor) or his or her representative, the civil claimant or his or her representative, the accused (only if there is no defence counsel participating in the proceedings) or his or her defence counsel, and the civil defendant or his or her representative.
...
340.3. In their oral arguments, the parties may not refer to evidence which has not been examined during the judicial examination of the case. If the party needs new evidence in order to justify a conclusion reached [in its closing address], it shall submit an application to reopen the judicial examination, indicating which facts require additional investigation and on the basis of what evidence. ...
340.4. The court may not set a time-limit on the oral arguments, however the presiding judge may interrupt a party delivering an oral argument if that party’s submissions concern circumstances irrelevant to the criminal charge in question.”
“After the oral arguments of all participants in the proceedings have been submitted, the public prosecutor, the victim (or private prosecutor), the accused and his or her defence counsel shall have the right to speak one more time each in order to make brief objections or observations in response to the arguments put forward by the parties.”
“342.1. Upon completion of the closing addresses and replies, the accused shall be allowed a final plea. No questions can be put to the accused during the final plea.
342.2. The court may not set a time-limit on the accused’s final plea. The presiding judge may interrupt the accused if he or she refers to circumstances clearly irrelevant to the criminal charge in question.
342.3. If the accused, in his or her final plea, discloses new circumstances which are significant for the comprehensive, thorough and objective determination of the criminal charge by the court, the court shall reopen the judicial examination.”
106. Under Article 455 of the CCrP, the finding of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights is a ground for reopening the proceedings. Pursuant to Article 456, in this case, the Plenum of the Supreme Court examines the case exclusively on points of law. After the examination of the case, the Plenum of the Supreme Court may decide to quash the lower courts’ rulings and remit the case to the relevant lower court, or to vary the decision of the courts of cassation or other courts, or to quash the decision of the courts of cassation or other courts and deliver a new decision (Article 459 of the CCrP).
107. The following are the relevant extracts from the report by the Organization for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR), on the Trial Monitoring Project in Azerbaijan 2003-2004 (“the OSCE Report”):
“2. SUMMARY OF POST-ELECTION DEVELOPMENTS
Post-election violence
... In the immediate aftermath of the elections, demonstrations took place on 15 and 16 October, which resulted in violent clashes between security forces and demonstrators in Baku.
On the evening of 15 October in front of the Musavat Party Headquarters, members of the OSCE/ODIHR Election Observation Mission witnessed police attacking peaceful pro-opposition supporters. On 16 October, several thousand demonstrators and pro-opposition supporters gathered in Azadlig Square in the centre of Baku to protest what they considered to have been a stolen election. On their way to the square demonstrators were witnessed vandalizing buildings and vehicles, and attacking police forces with metal bars and stones. At the square, demonstrators were rapidly surrounded by police and security forces, which used overwhelming force to disperse the crowd. Security forces were witnessed beating demonstrators with truncheons after they had been detained and no longer posed any danger or as they were fleeing the area. Video tape recordings provide evidence of the scale of excessive force and brutality used by government forces to overwhelm the demonstrators.
The violence was followed by a wave of detentions. According to officials, the detainees were persons involved in the violent activities or responsible for organizing the violence. However, the detentions took place in all parts of the country and included many individuals with no clear connection to the violence. The Minister of Interior reported that over 600 persons were detained following the violent clashes. ...
Administrative and criminal charges
The majority of the people detained in connection with the elections were later released without charge. In total, 129 persons were charged with criminal offences in connection with the post-election clashes, of whom 125 had been brought to trial at the time this report was prepared.
...
Among the people charged with criminal offences were several prominent members of the opposition including [among others, Mr Huseyn, Mr Abbasov, Mr Hajili and Mr Mammadov]...
At the time of the writing of this report, the OSCE/ODIHR was unaware of any cases of charges having been brought against police officers or other officials for brutality or excessive use of force against demonstrators.
3. AIM AND METHOLOGY
The cases of all 125 persons tried in connection with the post-election violence were monitored under the OSCE Trial Monitoring Programme. ...
OSCE-trained trial monitors observed all first instance hearings and two appeals. The OSCE-trained trial monitors participated in two training sessions on national and international fair trial standards and trial monitoring techniques in December 2003 and May 2004. In addition, an international expert, Paul Garlick, Queen’s Counsel, Judge (United Kingdom), observed the final set of trials, which began on 7 May. The information contained in this report stems mainly from the direct observations of the trial monitors and the international expert. However, the information on arrest and the pre-trial period is based upon submissions made in court by the defendants and defence counsel and interviews with defendants and defence counsel. In the case of Trial Group 15, a detailed questionnaire was prepared by the international expert and completed by defence counsel.
...
4. BASIC INFORMATION ON THE POST-ELECTION CASES
... The cases of the 125 persons that were brought to trial were heard in 15 groups. For the purpose of this report they are referred to as Trial Groups 1-15. ...
Trials concerning the events of 16 October
The trials in the other Trial Groups all concerned the events that took place on Azadlig Square on 16 October and were all tried before the Court for Serious Crimes. The defendants in Trial Groups 1-6 and 8-14 were charged with participating in mass disturbances, organization of, or active participation in, actions causing a breach of public order and resistance to, or acts of violence against, a State Agent.
The defendants in the final Trial Group, Trial Group 15, included the most prominent members of the opposition parties who were tried in connection with the post-election violence. Whereas the defendants in all the other Trial Groups were charged with participating in mass disturbances, the defendants in Trial Group 15 were charged with organizing mass disturbances. In addition, they were also charged with resistance to, or acts of violence against, a State Agent. ...
5. FINDINGS AND ANALYSIS
...
C. RIGHT TO LEGAL COUNSEL BEFORE TRIAL
... [S]pecific examples exist where defendants claim that they were not provided with access to legal counsel until after having been charged or remanded in custody. ... In Trial Group 15, defendant Panah Huseynov [Huseyn] made a written statement to the effect that he did not have access to his lawyer from his arrest on 18 October 2003 until 23 October 2003. He complained that he had been forced to renounce his right to legal counsel. In this case the defendant stated in court that during his detention in Gazakh Police Division he was forced to sign a paper rejecting the services of a lawyer and a paper confessing that he had used force against police officers.
In respect of Trial Group 15, whilst it appears that some defendants did have access to legal representation within a short period of time after being taken into custody, in some cases access was denied after the initial meeting.
...
F. RIGHT TO ADEQUATE TIME AND FACILITIES TO PREPARE A DEFENCE
...
In Trial Group 15, the evidence comprised 22 volumes of criminal case materials, testimonial evidence, data on the cause of damage, testimonies of the victims, and 22 video cassettes. The material was not made available to the defence lawyers until March 2004. Even then, only one copy of the case materials was made available to the defendants, thus restricting the preparation of their defences, particularly during the trial when the defendants were kept apart from each other in separate cells. On numerous occasions during the hearing of Trial Group 15, the defendants complained to the court about the difficulties that they were encountering in preparing crossexamination of witnesses as a result of being in isolation and having to share the single copy of case materials.
In addition to difficulties created by only one copy of the case materials being made available to the defendants, the defence lawyers complained that they had been denied copies of the rulings which the court had made in the preliminary stages of the trial. The defence advocates reported that of 31 motions that had been lodged by the defence, copies of only 8 decisions were provided by the court.
G. FREEDOM FROM TORTURE AND ILL-TREATMENT, AND THE RIGHT NOT TO BE COMPELLED TO TESTIFY OR CONFESS GUILT
...
Allegations of Torture and Ill-Treatment of Defendants
Allegations of torture and ill-treatment were made in all but two of the 15 Trial Groups. In Trial Groups 1-14 the allegations were made primarily against law enforcement officials in temporary detention, although there were also allegations of mistreatment at the time of detention. The types of ill-treatment described either in court or directly to OSCE trial monitors included threatening to harm close relatives, denying food and water, tying to chairs, interrogating and video recording detainees whilst they were naked, threatening with firearms, hitting, punching, kicking, beating with truncheons, bottles and sticks, forcing detainees to stand outside in the rain for hours, burning with cigarettes, injecting with unknown substances, and threats of rape...
Allegations of Torture and Ill-Treatment of Witnesses
In addition to reported torture and mistreatment of defendants, there were numerous allegations of torture and ill-treatment of witnesses: [summary of alleged first-hand accounts of ill-treatment follows]. ...
As a result of the alleged ill-treatment several witnesses claimed during the trials that their statements were to be considered falsified ...
I. PROHIBITION OF THE USE OF EVIDENCE OBTAINED BY TORTURE OR OTHER ILL-TREATMENT
... Allegations of torture and ill-treatment were made in all the Trial Groups except Trial Group 11 and Trial Group 12. In every instance, the judgments state that the allegations were not proved. The only exception was Trial Group 5 in which the judgment does not even refer to the allegations of torture.
In addition, statements that were alleged to have been made under duress were expressly relied upon as evidence in Trial Groups 2, 3, 4, 7, 8, 10 and 13 and 15. In general, the response of the courts to the numerous motions by the defence that statements made in temporary detention facilities were obtained by torture or other illtreatment consisted of ordering medical examinations and calling law enforcement officials as witnesses.
...
Witnesses
... The approach of the court in Trial Group 15 to determining whether to admit the evidence of witnesses who alleged that they had been tortured was flawed. On the evidence given to the court by these witnesses, no reasonable tribunal should have come to the conclusion that it was sure, beyond reasonable doubt, that such torture did not take place. The court did not ... carry out any proper investigation into the allegations of torture and placed far too much reliance on the findings of other courts in previous trials. In effect, the court considered itself bound to come to the same conclusions as the other courts, without questioning the reasoning behind those other decisions or examining in detail all the evidence that was available to the other courts when determining the issues and comparing that evidence with the evidence which was available to it in the case of Trial Group 15.
J. RIGHT TO A PUBLIC HEARING
... All court hearings in the post-election related cases were, ostensibly, held in public. However, numerous restrictions and impediments interfered with this right.
In Trial Group 15, for example, access to the court room was strictly monitored and limited by the court security staff. On numerous occasions during the trial the defendants and their lawyers protested to the court that members of the public were being prevented from entering the court room, despite the obvious availability of seats in the court room.
...
Although the trials were held in public, a number of factors contributed detrimentally to public access to the trials:
• The public galleries were far too small to accommodate all those who wished to observe the hearings and, in a number of trials, relatives of the defendants could not gain access. Trying defendants together in groups of seven to ten aggravated this problem.
• People were generally admitted to the public gallery of the Court for Serious Crimes only after they had provided court officials with a copy of their identification cards and their personal details had been written down by court officials.
• The Court for Serious Crimes did not post information about scheduled hearings or otherwise make this information available to the public. As a result, the OSCE had to contact the court by phone in order to obtain information about the date and time of pending hearings. In two instances, court secretaries stated that they were not authorized to provide such information.
• In some instances, members of opposition newspapers, including Yeni Musavat and the Baku News were not admitted to the courtroom by court officials. In some cases, journalists were refused entry without grounds and in other cases lack of space in the public gallery was cited as the reason.
K. RIGHT TO TRIAL BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL
... In respect of Trial Group 15, two members of the court had not disclosed that they were related to people who were, or had been, involved in the preliminary investigation or prosecution of the offences. Whilst no evidence was adduced to show that the judges were biased as a result of this relationship, it was unsatisfactory that the judges concerned had not disclosed their relationships with others involved in the investigation and prosecution of the offences. The failure to make this disclosure, until it was brought to the attention of the court by the defendants and their lawyers, did not engender confidence as to the impartiality of the judges.
...
In respect of Trial Group 15, the judges rarely refused a motion by the prosecutor for an adjournment, when on occasion there seemed no justification for granting one. In particular, the court granted an application made by the prosecution to adjourn the case for ten days, so that he could prepare his closing speech, without calling upon the prosecutor to give reasons for such a long delay. The defendants objected strongly to such a long adjournment, but the court seemed to pay no attention to the concerns of the defendants or to any prejudice that such a long adjournment might cause them.
Again, in respect of Trial Group 15, on many occasions the court declined to give rulings in respect of motions made by the defendants or their advocates, ruling instead that it would postpone consideration of such motions until later in the case. Of particular concern was the decision of the judges to postpone consideration of crucial questions such as the number of witnesses that the court would allow to be called at the request of the defence. This left the defendants in a state of uncertainty as to which evidence they would be allowed to present in their defence. Plainly, this may have prejudiced the way in which the defendants were able to present their cases. Moreover, the court did limit the number of witnesses called at the request of the defence ...
L. RIGHT TO A FAIR HEARING
... In respect of Trial Group 15, the defendants frequently complained to the court that the fact that they were segregated when taken back to prison at the end of the court hearing, together with the limitation of having only one copy of the court materials among them, made it very difficult for them to prepare their cases, particularly cross-examinations of the witnesses. In the questionnaires completed by the defence lawyers, many complaints were made in relation to the refusal by the court to provide copies of documents and video tape recordings to the defendants and lawyers. The lawyers also complained that they were not given an opportunity of viewing the video tapes together with their clients.
Presumption of Innocence
... In the days following the post-election violence, statements were made to the press by the President-elect and by representatives of the Ministry of Interior, Baku Main Police Department, the Office of the General-Prosecutor and the Ministry of National Security, in which unlawful acts were attributed to the leaders and members of the Musavat, ADP and Umid parties. ...
Disclosure by prosecution of material information
... In respect of Trial Group 15, on numerous occasions the defence lawyers complained to the court that the prosecution had concealed from the court video tape recordings of the events on 16 October which would have assisted the defence. In particular, it was argued that the prosecution had failed to disclose recordings which would have shown that some of the defendants did not make speeches from the tribune and were not responsible for inciting or inflaming the demonstrators. No proper enquiry was made by the court into this issue. The prosecution was not called upon by the court to provide any evidence to rebut the defence suggestion. The matter should have been investigated thoroughly by the court, and the prosecution should have been required to satisfy the court that full disclosure of all material had been made.
...
The right to call and examine witnesses
... In most of the trials observed the judges examined only evidence submitted by the prosecution, including tens of witnesses (mainly soldiers and law enforcement officials) and videotape and photographs of groups of people breaking windows, damaging cars and beating law enforcement officials. At the same time, in breach of the principle of equality of arms and adversarial proceedings, defence lawyers were not given an equal possibility to rebut criminal charges, to bring attention to circumstances releasing the defendant from criminal responsibility or mitigating circumstances. The court dismissed almost all motions of the defence for consideration of additional evidence on behalf of the defendant. ...
In respect of Trial Group 15, the court did allow the defence to adduce tape recordings showing that violence had been used by the police and other government forces towards the demonstrators. However, the court severely restricted the number of witnesses called at the request of the defence. The defendants indicated to the court that they wished for as many as 600 witnesses to be called to give evidence to prove, amongst other things, that the defendants had not been responsible for providing articles to be used as weapons by the demonstrators, that the defendants had not addressed the crowd in the Square except to call upon them not to use violence and not to react to provocation by the police, and, more generally, that the defendants had not planned or orchestrated the civil disorder which broke out on the 16 October. In addition, the defendants requested the court to call a number of senior officials from the police and other government agencies, including the Baku Administration and the Ministry of Internal Affairs. The defendants submitted that these witnesses should be examined by the court with a view to showing that it was the police and government authorities who had initiated the violence and who had, in effect, incited the demonstrators to react in the way that they did. The court refused to call these senior officials ...
M. RIGHT TO A PUBLIC AND REASONED JUDGMENT
...
The right to a reasoned judgment
... In respect of Trial Group 15, OSCE observers assessed that there was not sufficient evidence upon which the court could base a reasoned conclusion that it was certain the defendants organized, orchestrated or were parties to the disorder which took place on the 16 October 2003. The evidence of witnesses who purported to identify the various defendants as being involved in inciting the crowds to violence and other particular acts was so poor and so discredited in the trial that no reasonable tribunal could have relied upon it. More particularly, the evidence of those prosecution witnesses who purportedly saw the defendants participating in the disturbance and carrying out particular acts to incite the crowd was so discredited in the course of cross-examination that it could not possibly be relied upon to found the convictions. In its judgment, the court failed to consider the overwhelming number of previous inconsistent statements that the majority of the prosecution witnesses had made in the course of the investigation. So many of the prosecution witnesses gave evidence which was wholly inconsistent with the accounts that they had previously given, that it became impossible to view the evidence of the witnesses implicating the defendants as credible. Conversely, the court failed to attach sufficient importance to the evidence that was called on behalf of the defendants, dismissing the evidence of many of the defence witnesses on spurious and inadequate grounds.
The approach of the court to the evidence of defence witnesses was flawed and demonstrated a biased and prejudiced attitude against them. The evidence presented by defence witnesses was crucial to the defence case and yet, in its judgment, the court dealt with the evidence in a superficial manner and rejected the evidence of all the witnesses without giving any separate or detailed analysis of the grounds for rejecting the evidence of each witness. ...”
108. Annex 4 of the OSCE Report concerned specific observations relating to Trial Group 15 only. At the beginning, the annex reproduced the allegations of torture and ill-treatment made by the defendants and witnesses during the trial, including the allegations made by the first applicant, Mr Huseyn, during the trial (see paragraph 24 above). The annex then continued with the observers’ direct observations and remarks concerning the trial itself:
“... In respect of Trial Group 15, OSCE observers and the independent expert assessed that there was not sufficient evidence upon which the court could base a reasoned conclusion that it was certain the defendants organized, orchestrated or were parties to the disorder which took place on the 16 October 2003. The evidence of witnesses for the prosecution was so poor and so discredited in the trial that no reasonable tribunal could have relied upon it to found the convictions. In its judgment, the court failed to consider the overwhelming number of previous inconsistent statements given by the majority of the prosecution witnesses, making it impossible to view their evidence against the defendants as credible.
For example, one of the key questions for the court to determine was whether the defendant Igbal Agazade made a speech from the tribune in Azadlig Square on 16 October. If the court could not be satisfied about the veracity and accuracy of the prosecution evidence on this question, then the case against this defendant was fundamentally flawed and no reasonable tribunal could have convicted him. One of the witnesses relied upon by the prosecution to prove that Igbal Agazade made a speech from the tribune gave evidence to the court that Agazade came to the Square from the port side of the Square in a white car. However, a video recording shown to the court made it clear that defendants Agazade and Panah Huseynov came to the Square in a black Mercedes car and that the car came from the side of the Square where the Intourist Hotel was and not from the port side. The court failed to give this matter any proper consideration and failed to take it into account when assessing the probative value, if any, that should be attached to the evidence of the witness. In all the evidence in the case, no reasonable tribunal could have been satisfied that the defendants Agazade or Huseynov acted in the way suggested by the prosecution.
...
Many of the witnesses relied upon by the prosecution made pre-trial statements to investigators which were identically worded, and had identical punctuation and typographical errors. This raises serious concern as a clear indication that the investigators were preparing the statements themselves, rather than recording faithfully the evidence of the witness. Another concern was that according to records of interrogations, investigators seemed to have interrogated more than one witness at the same time on the same date. Accordingly, this meant that either: (1) the records of interrogation were inaccurate or that they had been falsified; or (2) if the records were correct, that witnesses had been interrogated together, in breach of the Criminal Procedure Code. Although no satisfactory explanation was given for this, the court failed to carry out any adequate investigation of this matter and failed to give it any proper consideration when assessing the probative value of the evidence.
At the request of the defendants, the court summoned a great number of witnesses, all of whom gave evidence which, if accepted, materially assisted the defendants and cast a real doubt on the prosecution case. In its judgment, however, having summarised the evidence of the defence witnesses in a wholly inadequate manner, the court dismissed their evidence in its entirety by stating as follows: [a quotation of the text quoted in paragraph 66 above follows.]
This brief judgment failed to attach sufficient importance to the evidence on behalf of the defendants, dismissing it on spurious and inadequate grounds. The approach of the court to the evidence of defence witnesses was flawed and demonstrated a biased and prejudiced attitude against them. The evidence presented by defence witnesses was crucial to the defence case and yet, in its judgment, the court dealt with the evidence in a superficial manner and rejected the evidence of all the witnesses without giving any separate or detailed analysis of the grounds for rejecting the evidence of each witness.”
109. Extracts from a number of reports by international bodies and human rights NGOs, describing the violent clashes between demonstrators and law-enforcement authorities during the events of 15 and 16 October 2003, have previously been quoted in the Muradova case (cited above, §§ 71-77).
110. Among other similar reports by international NGOs, the report by Human Rights Watch, entitled Crushing Dissent: Repression, Violence and Azerbaijan’s Elections (January 2004 Vol. 16, No. 1(D)), contains lengthy summaries of numerous first-hand accounts by persons arrested in connection with the events of 15 and 16 October 2003 concerning the alleged acts of torture and ill-treatment they had been subjected to while in detention. The relevant statements were made by the alleged victims in interviews personally conducted by Human Rights Watch researchers during the organisation’s two missions to Azerbaijan from September to November 2003.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-4886
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: PEREE v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch national, born in 1924, and resides in Maastricht.
summarised as follows.
On 6 October 1992, an article appeared in the Dutch regional newspaper "De Dordtenaar" concerning a protest action against the planned housing of asylum seekers from Yugoslavia in an empty school building in Zwijndrecht. In response to this article the local Dordrecht Anti-Discrimination Council (Anti Discriminatie Raad) sent a letter to this newspaper in which it criticised the apparently underlying motives for the protest action, i.e. intolerance and discrimination.
In reaction to this letter, the applicant addressed a letter to the Anti-Discrimination Council which read, inter alia:
<Translation>
"A privileged top with slaves at the bottom. And, which includes your group, with an absolute control apparatus to take judicial proceedings against anyone who does not remain in line. The name SA is not unfitting for you ..."
On 17 December 1992, the Anti-Discrimination Council filed a criminal complaint against the applicant for insult and criminal proceedings were subsequently instituted against the applicant.
By judgment of 8 November 1993, the Magistrate (politierechter) of the Regional Court (Arrondissementsrechtbank) of Dordrecht convicted the applicant of having insulted the Anti-Discrimination Council and imposed a fine of NLG. 500. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of The Hague.
On 21 November 1993, the applicant noticed his conviction being discussed in a local television programme. He contacted the television station, went there and gave an interview, which was broadcast on the same day. In this interview, the applicant in fact repeated the statements, which had formed the basis of his conviction of 8 November 1993. He stated, inter alia:
<Translation>
"The Anti-Discrimination Council Dordrecht, for instance, makes door-to-door visits and makes people afraid, at registering for elections threats follow, I have experienced myself in my house that the SA troops, I say it again on purpose, were standing in front of my house, masked, armed, carrying weapons, I was arrested, the police did nothing about these persons and it is a system which belongs to it, not all members of the NSB (former Dutch National Socialist Party), not a single one I think, have killed Jews in the last World War, but they belonged to a system which enabled it and this is how I see the Anti-Discrimination Council Dordrecht, very clearly ... if one wishes to fight Nazis with Nazi-symptoms uh, methods, that has been often enough in the newspaper, they act in the same manner and also use that name..."
On 1 December 1993 the Anti-Discrimination Council filed a criminal complaint with the police in relation to this interview and the applicant was subsequently charged with slander.
On 24 October 1994, the Magistrate of the Regional Court of Dordrecht convicted the applicant of slander and sentenced him to three weeks' imprisonment, suspended pending a probation period of two years, and payment of a fine of NLG. 1,500, to be replaced by thirty days' imprisonment in case of non-payment. The applicant filed an appeal with the Court of Appeal of The Hague.
In its judgment of 29 March 1995, the Court of Appeal noted that the Dordrecht Anti-Discrimination Council’s aim was to fight racism and fascism. After having examined the case, it quashed the judgment of 8 November 1993, convicted the applicant of insult and imposed a fine of NLG. 500, to be replaced by ten days' imprisonment in case of non-payment. This sentence was suspended pending a probation period of two years.
In a separate judgment of 29 March 1995, the Court of Appeal quashed the judgment of 24 October 1994, convicted the applicant of slander and imposed a fine of NLG. 1,000, to be replaced by twenty days' imprisonment in case of non-payment.
The applicant's subsequent appeals in cassation were both rejected by the Supreme Court (Hoge Raad) on 20 February 1996. As regards the applicant's complaint in both appeals that the Court of Appeal had violated his rights under Article 10 of the Convention, the Supreme Court held that the Court of Appeal, by finding the applicant guilty of, respectively, insult within the meaning of Article 266 of the Criminal Code (Wetboek van Strafrecht) and slander within the meaning of Article 261 of the Criminal Code, had not acted contrary to Article 10 of the Convention as paragraph 2 of this provision allows sanctions foreseen by law and insofar as this is necessary in a democratic society for the protection of the reputation or rights of others. The Supreme Court further held that, as no explicit complaint relating to the right to freedom of expression had been raised before the trial courts in the respective proceedings, the Court of Appeal was not obliged to give any explicit reasons in this respect.


ITEMID: 001-101533
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: WIKSTEDT v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Stig Alfred Wikstedt, is a Finnish national who was born in 1947 and lives in Esbo. He was represented before the Court by Mr Leo R. Hertzberg, a lawyer practising in Helsingfors. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 October 2004 the Helsingfors Bailiff unsuccessfully tried to recover debts from the applicant.
On 15 October 2004 a property company petitioned the Helsingfors District Court (tingsrätten, käräjäoikeus) for the applicant to be declared bankrupt.
The Bailiff tried to reach the applicant six times at his registered home address in order to serve the notice on the bankruptcy proceedings. The applicant's telephone number could not be found by the directory service and he did not answer the door intercom. The Bailiff managed to get into the staircase and saw light coming from the applicant's apartment but he did not answer the doorbell. The Bailiff left a meeting request in his post box, to which the applicant also failed to react.
As the applicant could not be reached during the service period set by the District Court and running from 8 November to 21 December 2004, a letter was sent to the applicant's address on 22 December 2004, confirming that the notice had been served and that the documents were kept available at the local police station.
On 4 January 2005 the applicant submitted a letter to the District Court requesting that the case documents be translated from Finnish into Swedish. The letter was sent from the same address where the Bailiff had attempted to serve the notice.
On an unspecified date the applicant requested that the District Court extend the deadline for his written reply. The deadline was accordingly extended until 18 February 2005.
On 15 February 2005 the applicant applied for an adjustment of his debts. As required by the domestic legislation, the bankruptcy proceedings were postponed and were continued only after the District Court had refused to grant the debt adjustment. Thereafter, on 21 February 2006, the applicant was again requested to submit a written reply by 23 March 2006.
When attempting to serve the above-mentioned request at the applicant's address, the Bailiff learned that the applicant had moved. He tried to reach the applicant at his new address in February 2006.
Following a request made by the Bailiff on 21 February 2006, the service period was extended until 16 March 2006. On 15 March 2006 the applicant was informed by letter that the request had been served and that the documents were again made available at the local police station.
The District Court resumed the bankruptcy proceedings. The applicant did not request that the deadline for his written reply be extended, nor did he submit any reply. According to the Government, the applicant was personally present at the District Court when swearing to the accuracy of the inventory of the estate.
On 30 March 2006 the District Court declared the applicant bankrupt. It noted that the applicant, who had been invited to reply to the petition within a given time, had failed to do so. It also noted that the claim was based on a final default judgment and on the fact that the claims mentioned therein had been transferred to the company. The company also had in its possession promissory notes signed by the applicant and which he had not contested. The court found that the applicant was insolvent since the debt recovery on 13 October 2004 had been unsuccessful and the petition for bankruptcy had been lodged within six months from that date.
The file does not disclose whether or not the District Court held an oral hearing.
On 10 April 2006 the applicant appealed, applying for an injunction and an oral hearing in the appellate court with a view to hearing witnesses as to whether he was insolvent. He argued that although he had moved to a new address in the spring of 2005, the court had sent to his old address a letter dated 21 February 2006 in which he was invited to submit his reply by 23 March 2006. This letter had never reached the applicant. On 15 March 2006 the Bailiff had sent a letter to the applicant informing him that documents to be served had been deposited at the police station. The letter did not mention what those documents concerned. The applicant claimed that he had received the letter at the earliest on 16 March 2006 but as he had been travelling he had learned about the documents and the fact that they related to the bankruptcy proceedings only on 26 March 2006 when he contacted the police station.
As to the merits of the appeal, he relied on Chapter 2, section 4, of the Bankruptcy Act (konkurslagen, konkurssilaki; Act no. 120/2004) according to which a debtor cannot be declared bankrupt if the creditor has a protective lien. He also argued that the creditor had failed to produce evidence of his insolvency as the Helsinki Bailiff's attestation was not sufficient for the purposes of the Bankruptcy Act. At the material time, the applicant had assets outside the Helsingfors Bailiff's district which did not appear in the attestation.
On 9 May 2006 the Court of Appeal (hovrätten, hovioikeus) dismissed the request for an injunction. On 29 May 2006 it dismissed the applicant's renewed request to the same effect.
In its decision of 28 June 2006 the Court of Appeal noted first that the applicant had been able to establish a probability, in accordance with Chapter 25, section 17, of the Code of Judicial Procedure (rättegångsbalken, oikeudenkäymiskaari), that he had not been able to refer to the circumstances and evidence relied on in his appeal in the District Court. For this reason the court considered all circumstances and evidence relied on in the applicant's appeal. As concerned the serving of the documents, the Court of Appeal noted that in January 2006 the Bailiff had looked for the applicant at the address which the latter had communicated to the District Court. Subsequently, the Bailiff had found out that the applicant had moved to another municipality following which he had unsuccessfully looked for the applicant at his new address in February and March 2006. In the circumstances, the Bailiff could assume that the applicant was trying to avoid the service of the documents. The court also observed that the Supreme Court in a precedent (KKO 1992:71) had taken the view that it was irrelevant for the purposes of the application of Chapter 11, section 7, of the Code of Judicial Procedure whether the person concerned later shows that he was not avoiding trial. The Court of Appeal therefore concluded that, in the present case, it had been justified to serve the documents by leaving them with the local police and rejected the applicant's view that there had been a procedural error.
As to whether the conditions for declaring the applicant bankrupt were met, it endorsed the lower court's reasons, adding, inter alia, that it was clear from the appeal documents that the unemployed applicant's assets amounted to some 19,000 euros (EUR) whereas his debts ran to some EUR 81,000. It was therefore unnecessary to hold an oral hearing in order to examine whether the applicant was insolvent.
The applicant sought leave to appeal, maintaining the grounds for his appeal. On 16 October 2006 the Supreme Court (högsta domstolen, korkein oikeus) refused such leave.
According to Chapter 5, section 11, subsection 1, of the Code of Judicial Procedure (rättegångsbalken, oikeudenkäymiskaari; as amended by Act no. 1052/1991):
“The summons shall state that the written response is to be delivered to the court registry before a deadline counted from the service of the summons. An extension may be granted for a special reason, if the request for this has been submitted before the end of the period.”
Chapter 11, section 7, of the same Code (as amended by Act no. 1056/1991) provides the following:
“(1) When a process server, for the purpose of service of a notice, has sought a person with a known residence in Finland, but has not found him or her or any person competent to receive service in his or her stead, and on the basis of the circumstances it may be assumed that he or she is evading the service of the notice, the process server may serve the notice by delivering the documents to a household member who has attained fifteen years of age, or, if the said person conducts a business, to a person employed in this business. If none of the above can be found, service of the notice may be performed by delivering the documents to a local police authority.
(2) When the process server has performed the service of the notice pursuant to subsection 1, he or she shall notify the recipient of the same by a letter sent to the home address of the recipient.
(3) The service of the notice shall be deemed to have taken place when the letter referred to in subsection 2 has been given to be delivered by post.
(4) The summons in a criminal case may not be served on the defendant in the manner provided in this section. (690/1997)”
Chapter 11, section 11, of the same Code regulates service procedure in a civil matter with multiple respondents the following manner:
“In a civil case involving two or more parties jointly, the notices shall be separately served on each party as provided in sections 1—10. If a notice is to be served on so many recipients that separate service on each of them cannot be done without difficulty, the court may order that the notice is to be served on one of them. A summary of the contents and the name of the person on whom the notice has been served, as well as information on the place where the documents to be served are kept available, shall be published as provided in section 10. The service shall be deemed to have been performed when the public notice has been published in the Official Gazette.”
As concerns the possibility to present new material in the Court of Appeal, according to Chapter 25, section 17, subsection 1, of the same Code (as amended by Act no. 165/1998):
“In a civil case, the appellant may not refer in the Court of Appeal to other circumstances or evidence than those presented in the District Court, unless he or she establishes a probability that he or she had not been able to refer to the circumstance or evidence in the District Court or that he or she has had a justifiable reason for not doing so.”
In its judgment of 25 May 1992 (KKO 1992:71), the Supreme Court addressed the issue of serving a notice on a presumably absent applicant in a civil case. In that precedent case the applicant had not been reached by the Bailiff but had for legitimate reasons been temporarily residing abroad and had notified the Population Registry of his temporary place of residence. A certificate on the applicant's domicile issued by the registry office did not however include information on his temporary address. As relatives and neighbours had not known about the applicant's temporary address either, the Supreme Court held that the Bailiff had rightly assumed, for the purposes of the serving of the notice, that the applicant was attempting to hide from the authorities. The applicant's later clarification of the issue was not relevant in this regard. It followed that the notice could legitimately have been served on the applicant in accordance with the requirements of Chapter 11, Section 11, of the Code of Judicial Procedure.