On November 5, 2015, the European Court of Human Rights (ECtHR) released its judgment in Yagublu v. Azerbaijan, a case that has drawn international attention as representative of Azerbaijan’s crackdown on political dissent and freedom of expression. See ECtHR, Yagublu v. Azerbaijan, no. 31709/13, Judgment of 5 November 2015. The application concerned Tofig Yagublu, an independent Azerbaijani journalist and the deputy chair of the opposition Musavat party, who was detained and accused of inciting the violent anti-government riots he was covering for his newspaper. The Court held that by depriving the applicant of his liberty without having reasonable suspicion of a criminal offense, Azerbaijan violated his rights under Article 5 (right to liberty and security) of the European Convention on Human Rights (Convention).
Facts and Domestic Procedure
On January 23, 2013 rioting broke out in the small Azerbaijani town of Ismayilli, which reportedly occurred after an incident between local residents and government officials. After the incident, numerous local residents destroyed a number of commercial establishments and other properties in Ismayilli presumed to be owned by the Minister for Labour and Social Protection. See Yagublu v. Azerbaijan, Judgment of 5 November 2015, at paras. 7-8.
According to the applicant, the following day, the Yeni Musavat newspaper sent him to cover the events in Ismayilli and within twenty minutes of his arrival, police arrested him and forced him to leave Ismayilli for Baku under police escort. On January 29, 2013, the Prosecutor General’s Office and the Ministry of Internal Affairs issued a joint press statement concerning the events in Ismayilli which stressed that the applicant urged local residents to commit social and political destabilization, to resist the police, not to obey officials and to block roads. The applicant was charged with criminal offences under articles 233 (organizing or actively participating in actions causing a breach of public order) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Azerbaijan Criminal Code. See id. at paras. 9-17.
On February 4, 2013 the prosecutor lodged a request with the Nasimi District Court asking for the application of the preventive measure of remand in custody in respect of the applicant, arguing that the applicant could escape from custody and interfere with the investigation. The prosecution did not refer to any evidence with regard to this claim. The court ordered a two-month detention, stressing the presumption that applicant committed the acts of which he was accused. The Baku Court of Appeal upheld the lower court’s decision. See id. at paras. 18-22.
Later, the applicant asked the first instance court to change the remand in custody to house arrest. The request was dismissed and the Court of Appeal upheld the decision. The prosecutor then lodged a request with the court to extend the applicant’s pre-trial detention by two months, which the court granted. The applicant’s appeal concerning the extension was dismissed. See id. at paras. 27-33.
On April 25, 2013 the applicant was charged with new criminal offences under articles 220.1 (mass disorder) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Criminal Code, which did not allow him to apply for bail due to seriousness of the offences attributed to him. The applicant’s pre-trial detention was extended two more times by periods of three months each, and the applicant’s related appeals were rejected. See id. at paras. 34-44.
The applicant lodged an application with the European Court of Human Rights (ECtHR) alleging violations of article 5 (right to liberty and security) of the European Convention on Human Rights (Convention) stating that he had been arrested and detained in the absence of a “reasonable suspicion” of criminal wrongdoing. [ECtHR Press Release]
Violation of Article 5
Article 5.1.(c) of the Convention states: “[T]he lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.” The Court noted that reasonable suspicion requirement under Article 5 is an important element for preventing arbitrary arrest and detention. In this regard, the respondent State must submit some facts showing that there was a reasonable basis for the arrest, both at the time it occurred and during the individual’s detention. See id. at paras. 54-56.
The Court indicated that, while the Government referred to the materials which purportedly proved reasonable suspicion that the applicant committed an offence, it failed to provide the Court with those materials. Moreover, the domestic courts’ decisions regarding the restrictive measure did not indicate that any such material or information had been submitted to the courts. See id. at paras. 59-60.
Thus, the European Court found the references to reasonable suspicion to be vague and insufficient to justify applicant’s arrest and continued detention. Based on this analysis, the Court found a violation of Article 5.1(c) of the Convention. The Court did not consider Article 5.3 of the Convention separately in terms of whether the domestic authorities provided relevant and sufficient reasons justifying the necessity of the applicant’s continued pre-trial detention. See id. at paras. 61-64.
Emblematic and High Profile Case
The Court referred to public and media interest in the case at the domestic and international levels. Among others, the European Court referred to statements by organizations such as Amnesty International and Human Rights Watch, which repeatedly condemned the authorities’ actions and connected Yagublu’s arrest with his political view. See id. at paras. 23-24.
Human Rights Watch in its World Report 2015 emphasized the case of Yagublu and stressed that his arrest was politically motivated. Amnesty International recognized him as prisoner of conscience.
The Court also mentioned concerns raised by Pedro Agramunt and Joseph Debono Grech, PACE Monitoring Committee co-rapporteurs on Azerbaijan and by Thorbjorn Jagland, the Secretary General of the Council of Europe about the arrest of the applicant. See id. at paras. 25-26.
The Court referred several times in its judgment to its prior decision in Ilgar Mammadov v. Azerbaijan, no. 15172/13, Judgment of 22 May 2014. Ilgar Mammadov is a political analyst and chair of the opposition group REAL in Azerbaijan and, as the European Court mentioned, he was arrested on the same day as the applicant and charged with the same criminal offences connected to the rioting. The prosecution’s decision concerning the acts attributed to the applicant and Ilgar Mammadov were identical in the wording and the witnesses who testified against them were the same people. See id. at para. 57.
In Mammadov v. Azerbaijan, the Court also stressed that the government did not submit any material or information proving that there was a “reasonable” suspicion that the applicant committed the criminal offences attributed to him. Similarly, the Court found the general and vague references of the government insufficient for reasonable suspicion and, along with other articles, recognized a violation of Article 5.1(c). See ECtHR, Ilgar Mammadov v Azerbaijan no. 15172/13, Judgment of 22 May 2014, paras. 87-101.