CASE OF HUSEYN AND OTHERS v. AZERBAIJAN

1. The case originated in four applications ( nos. 35485/05, 45553/05, 35680/05 and 36085/05 ) against the Republic of Azerbaijan lodged in September 2005 with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Azerbaijani nationals, Mr Panah Chodar oglu Huseyn ( Pənah Çodar oğlu Hüseyn – “the first applicant ” ), Mr Rauf Arif oglu Abbasov ( Rauf Arif oğlu Abbasov – “the second applicant”), Mr Arif Mustafa oglu Hajili ( Arif Mustafa oğlu Hacılı – “the third applicant”) and Mr Sardar Jalal oglu Mammadov ( Sərdar Cəlal oğlu Məmmədov – “the fourth applicant”), together referred to as “the applicants ”.
2. The first and fourth applicants were represented by Mr F. Agayev. The second applicant was represented by Mr R. Hajili. The third applicant was represented by Mr I. Aliyev. All representatives were lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. The applicants alleged, in particular, that there had been numerous defects in the criminal proceedings against them, resulting in a violation of their right to a fair trial, and that their right to presumption of innocence had been infringed.
4. On 12 July 2007 (applications nos. 35485/05, 35680/05 and 36085/05) and 9 October 2007 (application no. 45553/05) the President of the First Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 1 ).
I. THE CIRCUMSTANCES OF THE CASE
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.
A. Events of 15 and 16 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.
B. Institution of criminal proceedings and pre-trial investigation
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.
2. Alleged ill-treatment of the first, second and fourth applicants
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 ill ‑ treatment 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 ).
3. Pre-trial investigation, severing the applicants ’ case from criminal case no. 80308, and completion of the pre-trial investigation
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.
4. Legal representation of the applicants throughout the proceedings, and their lawyers ’ access to the investigation file upon completion of the pre-trial investigation
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.
1. Applications by the defence during the preliminary hearings and trial hearings
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.
2. Evidence examined during 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.
(a) Witnesses for the prosecution
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.
(i) Evidence concerning the events of 15 and 16 October 2003 in general, which did not directly implicate the applicants
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.
(ii) Statements by police officers directly implicating the applicants
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 pre ‑ trial 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 cross ‑ examination by the defence.
(iii) Statements by previously convicted participants in the demonstration directly implicating the applicants
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.
(iv) Statements by other witnesses directly implicating the applicants
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.
3. The parties ’ closing addresses
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 cross ‑ examination 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.
E. Statements by public officials and authorities concerning the applicants made at various times during the proceedings
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 1 6 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 full ‑ page ‑ long “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:
Article 107. General provisions on objections and self-disqualification
“ 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. ”
Article 109. Objection to a judge
“ 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 .”
Article 339. Beginning of oral arguments
“ 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. ”
Article 340. The parties ’ oral arguments
“ 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.”
Article 341. Replies ( Replikalar )
“ 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. ”
Article 342. The accused ’ s final plea
“ 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).
III. RELEVANT INTERNATIONAL DOCUMENTS
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
... 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.
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. ...
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 cross ‑ examination 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 ill ‑ treatment consisted of ordering medical examinations and calling law enforcement officials as 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.
... 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 ...
... 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.
... 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 6 6 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.
111. Given that the applications concern issues relating to the same set of criminal proceedings, in which all of the applicants were co-defendants, the Court has decided to join the applications in accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
112. The first applicant complained that he had been ill-treated while in custody in the OCD. Furthermore, both the first and second applicants complained about the conditions of their pre-trial detention. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
113. As to the first applicant ’ s allegations concerning ill-treatment in custody, the Government maintained that he had not exhausted the available domestic remedies. In particular, they argued that, under the relevant provisions of the CCrP (Articles 122 and 449), he could have lodged an appeal to a superior prosecutor or a court against the decision of 14 February 2004 rejecting his complaint of ill-treatment. The Government accepted that the first applicant had mentioned his allegations of ill ‑ treatment before the first-instance court during his trial. However, they argued that he had subsequently failed to raise the same complaint in substance in his appeals to the higher courts.
114. As to the substance of the first applicant ’ s allegations, the Government noted that they were not precise, but instead were too vague and incomplete, and no evidence had been produced to support them. Even though, in the context of the separate investigation into allegations of ill ‑ treatment conducted at domestic level, he had been questioned about his allegations, he had refused to provide any details and had refused to undergo a medical examination. Similarly, the complaint of ill-treatment that he had made before the trial court had been poorly substantiated as he had failed to specify, with concrete details, what had specifically constituted the alleged ill-treatment. Lastly, the Government maintained that the manner in which the first applicant ’ s allegations had been addressed by the domestic authorities had been effective and adequate, and that the repeated failure by the applicant to identify the alleged perpetrators of the alleged ill ‑ treatment and to specify its nature and duration had impeded the domestic investigation into his allegations.
115. As to both the first and second applicants ’ complaints concerning the conditions of their pre-trial detention, the Government noted that they had never complained about this to any domestic authority. As to the substance of the second applicant ’ s allegations, the Government noted that the conditions of his detention, while possibly severe at the very beginning, had not amounted to ill-treatment and that the arrangements for his detention had been gradually relaxed and he had been given access to writing accessories, books, newspapers and a radio, and had even been able to publish a book while in pre-trial detention.
116. In connection with his allegations of ill-treatment in custody at the OCD, the first applicant argued that he had been tortured during the initial questioning and had been threatened with persecution and torture of his close relatives. He insisted that he had raised this complaint before the domestic authorities and all the domestic courts, but that no effective domestic investigation had been carried out. He argued that, once he had raised a complaint of ill-treatment, the burden was on the domestic authorities to prove that he had not been tortured. He referred to a large number of other detainees ’ accounts of ill-treatment following their arrests in connection with the events of 15 and 16 October 2003 and maintained that, in general, domestic investigations into allegations of ill-treatment were inadequate and ineffective.
117. In connection with the conditions of his detention, the first applicant noted briefly that, after his transfer from the OCD to another detention facility, he had been kept in solitary confinement and had not been allowed to possess writing accessories, books, a radio or newspapers, without specifying the duration for which he had been kept in these conditions.
118. The second applicant alleged that, for thirty-six days, he had been held alone in a cell in “isolation” from the outside world, with no access to writing accessories, books, a radio or newspapers. Although he had raised this complaint before the trial court and appeal courts, no effective examination of his allegations had been carried out.
119. The Court finds that it is not necessary to examine whether the applicants have exhausted domestic remedies as, even assuming that they had done so, the complaints are in any event inadmissible for the following reasons.
120. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII). In particular, where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, § § 108-11, Series A no. 241 ‑ A, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V).
121. At the outset, the Court notes that it cannot disregard the reports of various NGOs and international organisations concerning the widespread allegations of ill-treatment in custody of persons arrested in connection with the events of 15 and 16 October 2003, which contained numerous first-hand accounts of ill-treatment given, in various degrees of detail, by the alleged victims. Similarly, the Court notes that, even at the applicants ’ own trial, not only the first applicant but also a number of witnesses had complained that they had been ill-treated in detention. Moreover, the Court refers to its earlier judgment concerning a similar complaint made in a separate application by the fourth applicant in the present case (see Mammadov, cited above ), in which it found that the applicant had been tortured in the OCD ’ s detention facility in circumstances similar to those alleged in the present case. All of the above information supports, albeit indirectly, the first applicant ’ s allegations made in the present case.
122. However, this background information, in itself, is not sufficient for finding a violation of Article 3 in the first applicant ’ s particular circumstances. In order for the Court to reach such a finding, the applicant ’ s allegations of ill-treatment must be proved beyond reasonable doubt by appropriate evidence or such evidence should flow from the coexistence of sufficiently strong, clear and concordant inferences or of unrebutted presumptions of fact. However, the Court notes that, unlike, for example, the Mammadov case, where similar allegations of ill ‑ treatment were raised (cited above, § § 18 et seq. ), the first applicant had not made a formal complaint of ill-treatment, had not requested a forensic examination as soon as possible after the alleged ill-treatment, and had not provided any explanation as to his failure to do so. It is true that his access to a lawyer was delayed for several days after his arrest, and that this could have prevented him from taking the above steps during that time; however, nothing was done in this connection after the applicant had been able to meet the lawyer. While he lodged a relevant complaint about four months after the alleged ill-treatment, he expressly refused to undergo the forensic examination offered to him. Nor has he submitted to the Court any other evidence confirming the presence of any injuries on his person. No plausible explanation has been offered for his failure to do so. Moreover, despite the first applicant ’ s arguments to the contrary, it does not appear from the documents in the case file that he ever gave the domestic authorities a detailed and consistent description concerning the method, duration or perpetrators of the alleged ill-treatment or the chronology of the events. On the contrary, it appears that, whenever specifically asked about these matters, each time he refused to provide an answer, confining himself to making general or incomplete statements. Nor has he provided a detailed account of these matters in his submissions to the Court. In the absence of such an account and of any evidence concerning any injuries that the applicant might have sustained, the Court considers that there is insufficient evidence either to prove the first applicant ’ s allegations beyond reasonable doubt or at least to establish a prima facie case of ill-treatment, in which event the burden of proof would be shifted to the Government to provide a satisfactory and convincing explanation.
123. Furthermore, having regard to the substance and the level of detail of the first and second applicants ’ submissions concerning the alleged conditions of their pre-trial detention, the Court considers that they do not disclose an appearance of ill-treatment reaching the minimum level of severity required under Article 3 of the Convention.
124. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION
125. Relying on Article 6 §§ 1 and 3 (b), (c) and (d) and Article 13 of the Convention, all of the applicants complained :
(i) that two of the judges of the Assize Court had lacked impartiality;
(ii) that they had not been given adequate time and facilities for the preparation of their defence, as neither they nor their lawyers had been given adequate access to the prosecution evidence;
(iii) that they had not been able to receive effective legal assistance throughout the criminal proceedings, including the initial stages of the proceedings and the trial hearings;
(iv) that the principle of equality of arms during the trial hearings had not been respected as they had been unable to make their oral arguments under the same conditions as the prosecution; and
(v) that the accusations against them had been based on false evidence, that they had been unable to properly examine witnesses against them and to obtain the attendance and examination of defence witnesses under the same conditions as witnesses against them, and that the domestic court had failed to reply to their objections concerning the witnesses and to provide adequate reasons for its decisions concerning the admissibility and assessment of evidence.
126. The Court considers that this complaint falls to be examined solely under Article 6 of the Convention, the relevant parts of which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ”
127. The Government submitted that the first and third applicants had failed to exhaust domestic remedies in respect of the part of the complaint relating to the alleged lack of impartiality of the Assize Court ’ s judges. They further submitted that the third applicant had failed to exhaust domestic remedies in respect of the parts of the complaint relating to the examination of witnesses, the provision of adequate time and facilities for the preparation of his defence, and the right to effective legal representation.
128. In particular, the Government acknowledged that the applicants had raised the issue of the judges ’ lack of impartiality during the Assize Court ’ s preliminary hearings. The Government noted, however, that later in the course of the proceedings, on 6 September 2004, the first applicant had expressed an intention to raise a new objection to the composition of the court, but had withdrawn his objection the next day. They further submitted that, although the first applicant had complained of a lack of impartiality on the part of the Assize Court ’ s judges in his appeal before the Court of Appeal, he had done so in general terms and had not substantiated his complaint with detailed reasoning. Instead, in his oral submissions before the Court of Appeal, he had complained of the Court of Appeal ’ s lack of impartiality. Lastly, the Government submitted that the third applicant had failed to raise this issue in his appeals before the Court of Appeal and the Supreme Court.
129. Furthermore, the Government argued that the third applicant had failed to raise before the Court of Appeal or the Supreme Court any of the issues relating to the parts of the present complaint falling under Article 6 § 3 (b), (c) and (d).
130. The first applicant submitted that he had duly lodged the requisite applications concerning the judges ’ alleged lack of impartiality at the preliminary hearings in the Assize Court. Subsequently, he had submitted properly substantiated complaints in this regard in his written appeals and oral submissions before the Court of Appeal and the Supreme Court. In particular, in the transcript of his speech before the Court of Appeal, six pages were devoted to this issue.
131. The third applicant noted that, while his appeals had not specifically touched upon the issue of the judges ’ lack of impartiality, he had complained about this matter in his oral submissions to the appellate courts. As to the alleged non-exhaustion of domestic remedies in respect of other complaints, the third applicant argued, firstly, that he had complained about these matters in his appeals, albeit briefly. Secondly, he noted that he had raised more detailed arguments in his oral submissions before the appeal courts. Thirdly, he noted that he and his co-defendants had always taken a joint and uniform position on all matters relating to their defence. Since his co-defendants had made very detailed complaints regarding every problematic aspect of the trial in their respective appeals, he was dispensed from the requirement to make the same submissions in the same degree of detail in his written appeal, especially in the light of the fact that the domestic courts consistently treated any applications or submissions by any of the defendants as common and applicable to all of the defendants.
132. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing the States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with this rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The Court notes that the application of this rule must make due allowance for the context of the individual case including, among other things, the personal circumstances of the applicant. Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey, 16 September 1996, § § 65-66 and 69, Reports of Judgments and Decisions 1996 ‑ IV).
133. As to the Government ’ s objection in respect of the first applicant, the Court observes that he lodged formal applications with the Assize Court objecting to the participation of Judges Ibayev and Aleskerov on the ground of their lack of impartiality. The applications were properly substantiated with relevant reasoning. Moreover, these applications were joined by all the other applicants, including the second and fourth applicants, in respect of whom the Government did not raise a similar objection, thus implicitly accepting that they had properly raised this issue before the relevant domestic authority. Accordingly, the Court sees no reason justifying the Government ’ s assertion that the first applicant had somehow failed to do so. The Court cannot accept the Government ’ s argument concerning the applicant ’ s alleged failure to lodge a repeated objection in respect of those judges at a later stage of the proceedings. Once the first applicant had raised this objection at the preliminary hearings in accordance with the formal requirements of the domestic law and obtained an unsuccessful outcome, neither the Convention nor the domestic law required him to keep raising the same objection repeatedly before the same court.
134. Furthermore, having regard to the content of the first applicant ’ s appeals and transcripts of his oral submissions before the appellate courts, the Court is satisfied that the applicant has raised before those courts, in sufficient detail and with sufficient substantiation, the essence of his complaint concerning the alleged impartiality of the Assize Court ’ s judges.
135. As to the Government ’ s objection in respect of the third applicant, the Court, having regard to the content of his appeal (see paragraph 89 above), finds that it was indeed very generally worded and did not address any of the specific allegations he made before the Court in his complaint under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention. Nevertheless, the Court considers that, in the specific context of the present case, the situation of the third applicant calls for the rule of exhaustion of domestic remedies to be applied with a certain degree of flexibility, for the following reasons.
136. The Court notes that the third applicant was in a situation very similar to that of the other applicants. In particular, all of the applicants were defendants in the same criminal proceedings facing the same criminal charges based on the same incriminating evidence. All of the applicants were affected by the same or similar alleged breaches of their defence rights. All of the applicants consistently joined and supported each other ’ s objections, applications, arguments and complaints before the domestic courts. Moreover, as correctly pointed out by the third applicant, even the domestic courts often addressed any objections and complaints lodged by one of the applicants as if they were applicable to all of the defendants.
137. As noted above, the first applicant has, to a sufficient degree, brought all of the matters raised in the present complaint to the attention of the domestic courts in his applications and appeals. Moreover, by not raising a similar objection in respect of the second and fourth applicants, the Government can be considered to have implicitly accepted that they had likewise exhausted domestic remedies. Accordingly, in so far as the third applicant was in the same situation as the other applicants and raised the same complaints before the Court, the domestic appeals lodged by the other applicants sufficiently brought to the domestic authorities ’ attention all of the alleged defects in the trial that affected all of them, including the third applicant. In view of the above considerations, it cannot be argued that his written appeals would have had any more prospects of success had they been substantiated to the same degree as the other applicants ’ appeals. Moreover, the Court takes note of the third applicant ’ s assertion that, in any event, his oral submissions before the appellate courts were more specific and detailed than his written appeals.
138. For these reasons, the Court dismisses the Government ’ s objection in respect of the first and third applicants. It further notes that, in so far as all four applicants are concerned, their complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.