CASE OF YUNUSOVA AND YUNUSOV v. AZERBAIJAN

Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The applicants were born in 1955 and live in Baku.

The first applicant is a well-known human rights defender and civil society activist. She is the director of the Institute for Peace and Democracy (“the Institute”), a non-governmental organisation specialising in human rights protection and conflict resolution.

The second applicant, the first applicant’s husband, is a researcher and the head of the Conflict Resolution Department of the Institute.

On 30 July 2014 the first applicant was arrested by the police and was taken to the Serious Crimes Department (“the SCD”) of the Prosecutor General’s Office. On the same day she was charged under Articles 178.3.2 (large-scale fraud), 192.2.2 (illegal entrepreneurship), 213.2.2 (large-scale tax evasion), 274 (high treason), 320.1 and 320.2 (falsification of official documents) of the Criminal Code.

On 30 July 2014 the Nasimi District Court, relying on the official charges brought against the first applicant and the prosecutor’s request for application of the preventive measure of remand in custody (həbs qətimkan tədbiri), ordered her detention pending trial for a period of three months. The court justified its application of the preventive measure by the gravity of the charges and the likelihood that if released, she might abscond from the investigation.

On 1 August 2014 the first applicant appealed against this decision, claiming that her detention was unlawful. She submitted, in particular, that there was no reasonable suspicion that she had committed a criminal offence, and that there was no justification for the application of the preventive measure of remand in custody. She pointed out in this connection that her detention was related to her activities as a human rights defender and that she had been punished for her activities. She further complained that the court had failed to take into account her personal circumstances, such as her state of health and age, when it had ordered her detention pending trial.

On 6 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the first-instance court’s decision was lawful.

On 24 October 2014 the Nasimi District Court extended the first applicant’s detention pending trial by four months, until 28 February 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed.

On the same day the Nasimi District Court also dismissed the first applicant’s request to be released on bail or placed under house arrest instead of in pre-trial detention.

On 27 October 2014 she appealed against these decisions, reiterating her previous complaints.

On 30 October 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court’s decisions of 24 October 2014.

No further extension decisions were included in the case file.

On 30 July 2014 the second applicant was questioned by an investigator at the SCD. Following the interrogation, he was charged under Articles 178.3.2 (large-scale fraud) and 274 (high treason) of the Criminal Code.

On the same day the investigator decided to apply the preventive measure of placement under police supervision (polisin nəzarəti altına vermə qətimkan tədbiri), taking into account his state of health, in particular the fact that he suffered from chronic hypertension. The relevant part of the decision reads as follows:

“Taking into consideration the state of health of the accused, Arif Yunusov, who was diagnosed with grade 3 hypertension and hypertensive crisis, and given medical treatment in the Central Oil Workers’ Hospital and Baku City Clinical Hospital No. 1 ... it was appropriate to choose the preventive measure of placement under police supervision.”

It appears from the documents submitted by the Government that on 30 July 2014 the second applicant was examined by two experts, who issued forensic medical report no. 185/KES dated 31 July 2014. The report confirmed that the second applicant suffered from chronic hypertension. The report also indicated that “considering A. Yunusov’s current state of health, it is possible to carry out investigative actions with him” (“A. Yunusovun hal-hazırkı sağlamlıq durumu ilə əlaqədar onunla istintaq hərəkətlərinin aparılması mümkündür”).

On 5 August 2014 the second applicant was arrested by the police. On the same day the prosecutor lodged a request with the Nasimi District Court asking it to replace the second applicant’s placement under police supervision with detention pending trial. The prosecutor justified his request by the second applicant’s failure to comply with the requirements of the preventive measure of placement under police supervision. The request also indicated that forensic medical report no. 185/KES dated 31 July 2014 did not reveal anything that would prevent the second applicant from participating in the investigation.

On 5 August 2014 the Nasimi District Court ordered the second applicant’s detention pending trial for a period of three months. The court justified the detention by the gravity of the charges and the likelihood that if released he might abscond from the investigation.

On 8 August 2014 the second applicant appealed against this decision. He submitted, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for replacing the preventive measure of placement under police supervision with detention pending trial. He also pointed out that his detention was related to his and his wife’s activities as a civil society activist and human rights defender and that the court had failed to take into account his personal circumstances, such as his state of health and age, when it had ordered his detention pending trial.

On 11 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the detention order was justified.

On 29 October 2014 the Nasimi District Court extended the second applicant’s detention pending trial by four months, until 5 March 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed.

On 30 October 2014 the Nasimi District Court also dismissed the second applicant’s request to be released on bail or placed under house arrest instead of in pre-trial detention.

On 3 November 2014 the second applicant appealed against these decisions, reiterating his previous complaints and arguing that the firstinstance court had failed to justify his continued detention.

On 6 November 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court’s decisions of 29 and 30 October 2014.

The medical documentation submitted by the parties shows that the first applicant suffers from a number of illnesses. In particular, she has suffered from chronic hepatitis (hepatitis C) since 1997. People with hepatitis C usually suffer from constant exhaustion, joint, muscle and abdominal pain, general sickness and weakness, and often depression. A low-fat diet is required to reduce liver damage. The disease is potentially fatal. The first applicant regularly underwent medical treatment in Germany before her arrest.

Since 2009 she has also had type 2 diabetes, which is non-insulin dependent and requires sufferers to follow a special diabetic diet and take regular exercise. In addition, she suffers from myogelosis (muscle stiffness), arterial hypertension and a single cyst in the left kidney.

It also appears from the medical documents in the case file that she underwent surgery on both eyes in Germany before her arrest and needs specialist medical care as a follow-up, to avoid any risk of damage to her eyesight. The relevant part of a letter dated 5 September 2014 from the head of the Department of Ophthalmology at the Asklepios Clinic in Hamburg reads as follows:

“Mrs Yunusova’s right and left eyes were both myopic with cataracts.

It is absolutely necessary that she undergoes a repeat consultation and examination for the development of capsular fibrosis, which can lead to visual impairment and needs surgical laser treatment.

It is also absolutely necessary that she undergoes a complete bilateral examination of her retina since she has had myopia and her risk of retinal detachment is substantially higher than in normal eyes and is further increased by the previous surgery. Any signs of retinal tears must be treated early with a laser retinopexy to prevent further damage and minimise the risk of permanent visual impairment.”

The medical documentation submitted by the parties shows that the second applicant suffers from grade 3 chronic hypertension and hypertensive crisis, with an increased risk of cardiovascular complications. He regularly underwent medical treatment in Germany before his arrest. He was also hospitalised from 25 to 28 April 2014 in the Central Oil Workers’ Hospital and from 29 April to 6 May 2014 in Baku City Clinical Hospital No. 1.

The first applicant was detained in a cell with four other detainees, two of whom were extremely noisy. Heating was available but inadequate. The electricity was cut off from 2 to 3 p.m. and from 1 to 8 a.m., which made it impossible to use a heater. The temperature inside the cell and in the walking area was very low in winter. There was no proper ventilation inside the cell and the temperature was very high in summer. There was a problem with hot water distribution in the cell. In particular, she was not informed of the distribution time for the hot water and could not obtain more when necessary. Moreover, there was only one refrigerator for all the detainees on her floor which was not sufficient.

According to the first applicant, upon her arrival at the detention facility, she was examined by a doctor who confirmed that she had type 2 diabetes and chronic hepatitis C.

From 31 July to 5 August 2014 she was provided with the necessary diabetic food and medicine by the second applicant who, as a close family member, was entitled to deliver her parcels. However, following his arrest on 5 August 2014, she was deprived of the necessary diabetic food and medicine. In particular, the detention facility administration did not allow her lawyer or friends to deliver her parcels until 23 August 2014, arguing that only the family members of a detainee could send in parcels.

In this connection, it appears from the documents submitted by the first applicant that on 6 August 2014 her lawyer asked the investigator in charge of the case to allow her friends, A.I. and S.A., to deliver her a parcel. He pointed out that, taking into consideration that on 5 August 2014 her husband had been arrested and that her only daughter lived abroad, the first applicant did not have any other family member to do this. On 22 August 2014 the lawyer also lodged a request with the administration of the detention facility (“the administration”), complaining that on 21 August 2014 employees had refused to receive a parcel for the first applicant on the grounds that it had not been sent in by a family member.

On 22 August 2014 the first applicant lodged a request with the administration and the investigator in charge of the case, asking for a medical examination at her own expense by a doctor of her own choosing, A.G. She specified in her request that she suffered from diabetes and other serious illnesses, and that under domestic law detainees could be examined by a doctor of their own choosing.

By a letter of 4 September 2014, the deputy governor of the detention facility replied to her request, noting that there was no need for a medical examination by A.G. In this connection, he pointed out that the first applicant’s state of health was stable and being monitored by the detention facility doctors. The letter also indicated that on 19 August 2014 she had been examined by an endocrinologist from the Ministry of Health, who had recommended that she continue her previous treatment.

By a decision of 9 September 2014, the investigator dismissed her request, finding that all the necessary measures had been taken for her medical treatment in the detention facility.

On 23 September 2014 the first applicant’s cell was searched. On the same day she was deprived of her right to make phone calls for one month. She was also obliged to take a cold shower because the shower room had no hot water.

On 26 September 2014 the first applicant’s lawyer asked the administration to provide him with a copy of the administrative decision depriving the first applicant of her right to make phone calls. He did not receive any response to his request.

On 14 October 2014 the first applicant’s lawyer asked the administration to provide him with a list of medication prescribed to the first applicant during her detention. He did not receive any response to his request.

By a letter of 21 October 2014 the deputy governor of the detention facility responded to the first applicant’s complaint of being unable to receive parcels following her husband’s arrest. He noted that she had received a parcel sent in by A.I. on 23 August 2014. The letter was however silent as to the delivery of any parcels between 5 and 23 August 2014.

In a statement dated 4 May 2015 submitted by the first applicant to the Court with the applicants’ reply to the Government’s observations, she stated that she had not been provided with any documents concerning her state of health. As regards her medical treatment in detention, she stated that she had been examined on 29 December 2014 and 12 March 2015 at the Baku Diagnostic Centre by C.W., a German doctor from Charité, a university hospital in Berlin. During the examination on 29 December 2014, she had been insulted and humiliated by a doctor named R.A when C.W. had been out of the room. In March 2015 the eyesight in her left eye had drastically deteriorated. The ophthalmologist who had examined her on 31 March 2015 stated that the same process would soon begin to happen to her right eye. She further stated that in detention her weight had dropped dramatically because of her illnesses and conditions of detention.

On 31 July 2014 the first applicant was admitted to the Baku Pretrial Detention Facility of the Ministry of Justice.

She was held with four other detainees in a cell measuring 26.32 sq. m designed to hold six detainees. The cell was adequately lit. It had two windows measuring 1.2 x 1.4 metres. The sanitary facilities were separate from the rest of the cell and were adequately ventilated. She was provided with food, water, bedding, clothing and other essentials.

Upon her arrival at the detention facility on 31 July 2014, she underwent a series of medical examinations. Fluorography and electrocardiography examinations did not reveal any changes to her pathological condition. Her neuropsychological status was evaluated as satisfactory. An ultrasound examination of her abdomen and external examination of her body confirmed that she had previously undergone surgery. General and biochemical blood tests concluded that her blood sugar level was a little higher than average. Following these examinations, she was diagnosed with chronic hepatitis C, type 2 diabetes, gallstones, a single cyst in the left kidney (measuring 0.91 cm) and pseudophakia (replacement of the natural lenses of the eyes with intraocular lenses). The Government provided the Court with copies of the results of the medical tests and examinations carried out that day.

It further appears from the extracts of the first applicant’s detention facility medical records (məhkumun tibbi kitabçası) submitted by the Government that on 31 July 2014 the doctor recommended that the first applicant continue the medical treatment for diabetes prescribed by her previous doctor, the drug Galvus. She also had the rules of a diabetic diet explained to her and was provided with a blood glucose meter to monitor the level of sugar in her blood.

On 2 August 2014 the first applicant was provided with medication brought in by her relatives, including 20 Galvus Met capsules, 90 Glifer capsules, 308 Galvus tablets, 30 Beloc tablets and 17 Spasmalgon tablets. The next delivery of medication, comprising 20 Spasmalgon tablets, took place on 29 August 2014. The first applicant’s need for medication during this period was fully covered by the medication delivered on 2 August 2014. As to the provision of diabetic food from 5 to 23 August 2014, upon her arrival at the detention facility, the first applicant was registered on a list of diabetic detainees and was consequently provided with diabetic food during this period.

On 19 August 2014 she was examined by an endocrinologist in the detention facility, who recommended that she continue her previous treatment. On the same day she also underwent a blood test to determine her sugar level and the state of the hepatitis C. The Government provided the Court with copies of the results of the medical tests and examinations conducted that day.

On 23 September 2014 she was examined by a detention facility doctor. She complained of general sickness without raising any particular complaints.

On 8 and 10 October 2014 she was examined by a neurologist and a therapist. No pathological conditions were revealed.

On 19 November 2014 the first applicant refused to be examined by an ophthalmologist at the National Ophthalmology Centre in order to establish the impact of the diabetes on her eyesight. According to the Government, on 25 and 26 November and 2 and 3 December 2014 she again refused to be examined by the detention facility doctors. They submitted various records compiled by the doctors to support this claim.

On 11 December 2014 she was examined by an endocrinologist who assessed her state of health as stable. The Government did not submit any documents concerning this medical examination.

On the same day she refused to undergo various medical examinations by a virologist, endocrinologist and physician from the Ministry of Health in the presence of the members of the joint working group on human rights and members of the public committee under the Ministry of Justice. However, she refused to sign anything to say that she had refused to be examined.

On 12 December 2014 the first applicant’s lawyer lodged a request with the prosecution authorities, complaining of the deterioration of her state of health in detention and asking for a forensic medical examination. The lawyer submitted that her hepatitis C and diabetes were serious and that since her detention her weight had dropped dramatically from 61 to 47 or 48 kg. The lawyer also pointed out that, as the first applicant had not been provided with adequate medical care in detention, she refused to be examined by the detention facility doctors.

On the same day the investigator in charge of the case ordered a forensic medical examination of the first applicant. The experts could only examine her on 8 January 2015 in the presence of her lawyer due to her initial refusal. They issued forensic medical report no. 424/KES, which indicated that the examination had begun on 18 December 2014 and ended on 28 January 2015. The report confirmed that the first applicant suffered from a number of illnesses, including hepatitis C and diabetes. However, the experts concluded that the illnesses were not life-threatening and could be treated in detention. The relevant part of the conclusion of the report reads as follows:

“4. The illnesses revealed in L.Yunusova, being chronic in nature, do not pose any danger to her life and she does not currently need immediate and specialist treatment.

If necessary, L. Yunusova can receive outpatient treatment in her conditions of detention in respect of the hepatitis C and diabetes which were diagnosed.

L. Yunusova’s current state of health allows her to remain in detention and does not pose any danger to her life.”

In the meantime, on 29 December 2014 the first applicant underwent a number of medical tests and examinations in the presence of C.W from Charité. In particular, she underwent a general and biochemical blood test, an ultrasound examination of the abdominal cavity, a chest computed tomography (CT) scan, and electrocardiography and echocardiography examinations. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any information regarding medical recommendations or prescriptions made by the doctors following the examinations dated 29 December 2014.

On 26 January 2015 the first applicant again underwent various medical tests and examinations. She was examined by a group of doctors, including international doctors C.W., L.U. (a professor from the Budapest Metropolitan Cancer Centre) and A.B. (a gynaecologist). The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant’s medical treatment.

On 12 March 2015 she was examined in the presence of C.W. and Z.R. (the director of ExaMed Medical Centre in Budapest). On the same day, she underwent a blood test and gynaecological ultrasound examination. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant’s medical treatment.

The extracts of the first applicant’s detention facility medical records contained further information concerning her state of health from 31 July 2014 to 12 March 2015:

- On 19 and 20 September 2014 she was provided with the relevant medication brought in by her lawyer and friends.

- On 22 September 2014 she complained of constant exhaustion, general sickness and weakness.

- On 23 September 2014 she again complained of general sickness and stayed in bed. That day and the next she was examined by a prison doctor who assessed her state of health as satisfactory. In particular, it was established that her blood pressure, temperature and sugar level were within the permitted range.

- On 30 September 2014 she was provided with medication for diabetes brought in by her friends.

- On 3 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends.

- On 8 and 10 October 2014 she was examined by a neurologist and a therapist. During the examination, she complained only of frequent urination.

- On 17 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends.

- On 25, 28 and 31 October 2014 she was provided with medication brought in by her friends.

- On 15, 21, 25 and 26 November she refused to be examined.

- On 12 December 2014 she was provided with medication brought in by her friends.

- On 3, 13 and 16 December 2014 she refused to be examined.

- On 19 December 2014 she complained of a migraine and stress, but refused to be examined by a doctor.

- On 23 December 2014 she was provided with medication brought in by her friends.

- On 29 December 2014 she was examined in compliance with international standards by a group of doctors, including an international doctor.

- On 6, 7 and 10 January 2015 she did not complain about her state of health.

(Illegible)

- On 23 January 2015 she complained of headaches, but refused to be examined by a doctor.

- On 26 January 2015 she was again examined by a group of international doctors.

- (date illegible) January 2015 she again refused to be examined by a doctor and was provided with medication brought in by her friends.

- On 6 and 17 February 2015 she again refused to be examined.

- On 19 February 2015 she complained of headaches.

- On 12 March 2015 she was again examined by a group of doctors, including international doctors.

The second applicant was detained alone in a cell at the Pre-trial Detention Facility of the Ministry of National Security.

According to his lawyer, his state of health significantly deteriorated after his arrest. In particular, the domestic authorities had failed to provide him with adequate medical care in detention. He further submitted that in the absence of any information concerning the second applicant’s conditions of detention and medical care, it was impossible for him to give an account about either.

On 6 August 2014 the second applicant was admitted to the Pre-trial Detention Facility of the Ministry of National Security.

He was held in a cell measuring 8 sq. m designed to hold two inmates. He was placed alone in the cell at his own request. The cell had two beds and was adequately lit and ventilated. He was provided with hot and cold water, bedding, clothing and other essentials.

According to a letter by the governor of the detention facility dated 13 March 2015, heating was available and functioned well. The sanitary conditions were acceptable and the food served was of good quality. The second applicant also had the right to listen to the radio for five hours a day and to use the detention facility library. He was also entitled to receive one food parcel a week (weighing up to 31.5 kg) from his relatives.

Upon his arrival at the detention facility, the second applicant underwent a medical examination, during which he stated that he had suffered from arterial hypertension since 2006. However, he did not make any particular complaint about his state of health which was assessed as satisfactory.

On 7 August 2014 the second applicant underwent an electrocardiography examination which did not reveal any problems.

It further appears from a medical certificate dated 29 September 2014 from the head of the medical service of the detention facility that the second applicant’s state of health was satisfactory and that he had not sought medical attention during his pre-trial detention.

On 7 August 2014 a repeat offender, N.H., was transferred to the applicant’s cell. After being transferred, N.H. frequently subjected the first applicant to verbal and physical violence. She complained to the administration, but no action was taken.

On 19 September 2014 she lodged a request with the administration, complaining about N.H.’s unlawful behaviour. In particular, she complained that she had been subjected to physical violence and that the placement of a repeat offender in her cell was not in compliance with domestic law.

On 23 September 2014 the first applicant was subjected to verbal and physical violence by Major Y., a prison guard.

By a letter of 21 October 2014, the governor of the detention facility responded to the first applicant’s request of 19 September 2014. He claimed that she had not been subjected to violence by N.H. and that her conditions of detention complied with the established standards.

Following publication in the media of information concerning the first applicant’s alleged beating in the detention facility, on 25 September 2014 an investigator from the Sabunchu District Prosecutor’s Office ordered a forensic medical examination. He asked experts to establish whether there were any signs of ill-treatment on the first applicant’s body.

Following examinations on 29 September and 10 October 2014, the experts issued forensic medical report no. 285 dated 13 October 2014. They concluded that there were no signs of injury on the first applicant’s body.

On 22 October 2014 the investigator in charge of the case refused to institute criminal proceedings, finding that there was no evidence that the first applicant had been subjected to violence in the detention facility. The decision relied on the conclusions of the forensic medical report of 13 October 2014, statements by the first applicant’s cellmates and video footage from the detention facility.

No appeal was lodged against this decision.

Following the indication of the interim measure under Rule 39 of the Rules of Court by the Acting President of the Section on 30 September 2014, the Government responded by a letter dated 3 November 2014 submitting that the relevant domestic authorities had been immediately informed of the interim measure indicated by the Court under Rule 39. They further submitted that the applicants’ state of health was stable and did not require their transfer to an appropriate medical facility. The letter also contained an overview of the medical examinations that the applicants had undergone in October 2014, although no medical documents were attached to the letter.

The Government subsequently provided the Court with monthly information reports concerning the applicants’ state of health and medical treatment in detention. All the monthly reports submitted were one or two pages long. They began in a standard format and said that “the applicants’ state of health is stable and does not require [their] transfer to a specialist medical facility”. They were not accompanied by any medical documents.

The reports sent by the Government from November 2014 to June 2015 contained the same information in respect of the first applicant’s state of health and medical treatment as they submitted in their observations of 27 May 2015. As regards the second applicant’s state of health and medical treatment, all the reports contained the two following sentences:

“Over the past month, the second applicant’s state of health was under constant medical supervision, and it was assessed as satisfactory; no deterioration in his health has been noted.

(date), the second applicant passed [his] latest general medical examination, which did not reveal any deterioration in his health.”

As regards the subsequent reports, the two-page report dated 30 July 2015 indicated that on 13 July 2015 the first applicant had been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. recommended that the first applicant take Harvoni and she started treatment with this drug on 14 July 2015. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached to the information report.

The two-page report dated 7 September 2015 indicated that on 14 August 2015 the first applicant had again been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. prescribed the drug Velmetia for the regulation of her blood sugar level. As regards the second applicant, in addition to the above-mentioned two sentences, the report indicated that on 3 August 2015 at a court hearing, the second applicant had asked for medical help. His blood pressure had been 210/110 mm Hg and could be stabilised following the intervention of the emergency services. The hearing had been postponed upon a doctor’s advice. No medical documents were attached to the information report.

The one-page report dated 6 October 2015 indicated that the first applicant had finished her medical treatment with Harvoni. The report also contained information relating to her blood pressure and sugar level. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached.

The reports dated 19 November and 2 December 2015 contained information relating to the first applicant’s blood pressure and sugar level and indicated that on 3 and 7 October 2015 the first applicant had refused to be examined by the doctors. On 30 October 2015 she had been examined by C.W, at whose request she had been transferred to the medical department of the Prison Service. As regards the second applicant, he had been examined by C.W on 30 October 2015. His blood pressure had been 224/122 mm Hg and he had been prescribed with the relevant medical treatment. On 2 November 2015 he had been transferred to the medical department of the Prison Service, where he had received the necessary medical treatment. Following this treatment, his blood pressure had lowered to 160/110 mm Hg. No medical documents were attached to the information report.

On an unspecified date the criminal investigation was completed and the applicants’ case was referred to the Baku Assize Court for trial.

On 13 August 2015 it convicted and sentenced the applicants to eight and a half and seven years’ imprisonment respectively.

On an unspecified date the applicants appealed against this judgment to the Baku Court of Appeal.

It appears from the information submitted by the Government that on an unspecified date the medical department of the Prison Service requested the Baku Court of Appeal to change the second applicant’s detention pending trial due to his emotional state and the possible repeat of hypertensive crisis. The Government did not provide the Court with a copy of this request.

On 12 November 2015 the Baku Court of Appeal granted the request and ordered the second applicant’s release. The Court was not provided with a copy of this decision.

On 9 December 2015 the Baku Court of Appeal quashed the Baku Assize Court’s judgment of 13 August 2015 and gave the applicants a conditional sentence of five years’ imprisonment. The first applicant was released from the court.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1974.

In 2003 the applicant, his wife and two children (born in 1992 and 1999) settled in Germany. Between 2003 and 2008 the applicant held various managerial positions in German companies. He was also a co-owner and the president of the limited liability company L., registered in Ukraine. That company was run by a director employed under contract.

On 27 May 2005 the applicant sent a request to the official representative of the Ministry of Home Affairs of Ukraine in Frankfurt am Main enquiring whether certain business activities undertaken by the director of company L. had been lawful.

By a letter dated 8 July 2005 the applicant was informed that the Ministry of Internal Affairs had not found any wrongdoing on the part of the director.

On 14 April 2008 the Kyiv Police Department instituted criminal proceedings against the applicant in connection with a financial fraud allegedly committed by him in April 2005. The investigator stated that the applicant, as co-owner and president of company L., had concluded an agreement for the sale of a car, had received the payment from the purchaser, but had failed to supply the car; the applicant was assisted by the director of that company who, allegedly, had not been aware of the applicant’s malicious intent. The investigator found that the fraudulent actions of the applicant had been confirmed by both victim and witness statements and also by the documents examined. Among the persons testifying as witnesses concerning the specifics of the business and managerial relationships between the applicant and company L., the investigator also questioned the applicant’s mother, who stated that the applicant had not lived in Ukraine for several years as he and his family had moved to Germany.

On 19 April 2008 the investigator decided to put the applicant on the national list of wanted persons, stating that the latter had not lived at the registered place of his residence in Ukraine and his whereabouts were unknown.

In November 2008 the applicant arrived in Ukraine on personal business.

According to the applicant, on 13 November 2008, when he arrived at the migration service department in Kharkiv to exchange his international travel passport for a new one, he was arrested and escorted to Kyiv.

At 1.30 a.m. on 14 November 2008 the applicant was questioned by the investigator in the Shevchenkivskyy District Police Department of Kyiv in connection with the charges against him. The questioning session terminated at 4.17 a.m. in the morning. During the questioning the applicant stated, among other things, that he was temporarily unemployed.

At 4.20 a.m. on 14 November 2008 the investigator, relying on Articles 106 and 115 of the Code of Criminal Procedure of 1960 (“the CCP”), decided to arrest the applicant for seventy-two hours on suspicion of having committed the crime. He drew up an arrest report citing Article 106 of the CCP concerning the grounds for arresting a person without a court order.

On 17 November 2008 the Shevchenkivskyy District Court of Kyiv (“the District Court”) considered the investigator’s request to place the applicant in pre-trial detention. Relying on Article 165-2 of the Code of Criminal Procedure, the District Court found that before taking its decision concerning the application of a preventive measure, it needed to examine in more detail the personality of the applicant, his place of employment and residence, his family status and the risk of his absconding. The court therefore extended the applicant’s preliminary detention to ten days.

On 20 November 2008 the investigator instituted another set of criminal proceedings against the applicant and the director of company L. on the grounds that they had obtained a loan from a bank on the basis of forged documents and had later misappropriated these funds.

On 24 November 2008 the District Court again examined the investigator’s request to detain the applicant in custody. During the hearing the applicant contended that before his arrest he had not been aware of the criminal proceedings or of the fact that he had been placed on the national list of wanted persons. He argued that the investigator had not served him with a summons. Having deliberated, the court found that there had been no evidence suggesting that the applicant might abscond from justice, obstruct the investigation or continue any criminal activity. It therefore released the applicant. The prosecutor appealed.

On the same day, the investigator ‒ relying on Article 151 of the CCP ‒ obtained from the applicant a written undertaking not to abscond from his registered place of residence in Kharkiv, Ukraine.

On 27 November 2008 the investigator, relying on Article 178 of the CCP, seized the applicant’s old and new international travel passports.

On 4 December 2008 the Kyiv Court of Appeal dismissed the prosecutor’s appeal and upheld the decision of 24 November 2008, noting that no evidence had been presented concerning attempts by the applicant to abscond from justice and that the gravity of charges alone did not provide sufficient grounds for detaining the applicant in custody.

On 6 May 2009 the applicant complained to the prosecutor on account of his unlawful arrest and detention and the violation of procedural rules by the investigator. He also stated that as a result of the procedural measures undertaken by the investigator he had not been able to see his wife and children, who lived outside Ukraine, nor to pursue his professional life. The applicant did not receive any reply to his complaint.

On 6 July 2009 the applicant challenged before the District Court the investigator’s decisions to initiate criminal proceedings against him.

On 31 July 2009 the District Court allowed the applicant’s claim, finding that the available evidential material was not sufficient to give rise to criminal proceedings against the applicant. The prosecutor appealed against that decision.

On 21 August 2009 the Kyiv Court of Appeal quashed the decision of 31 July 2009 and remitted the case to the District Court for fresh consideration.

On 3 November 2009 the District Court dismissed the applicant’s claim, finding that the impugned decisions issued by the investigator were lawful. The applicant appealed.

On 4 December 2009 the Kyiv Court of Appeal upheld the decision of 3 November 2009.

On 8 December 2011 the investigator closed both sets of criminal proceedings, finding that the charges against the applicant had not been proved and that there had been no corpus delicti. The preventive measure (a written undertaking not to abscond) was lifted.

On 9 December 2011 the investigator returned the seized international travel passports to the applicant.


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicant was born in 1955 and lives in Istanbul.

On 2 October 2004 the Büyükçekmece Magistrates’ Court issued a search warrant allowing the gendarmerie to conduct searches of public places and suspected persons in a designated area.

Late at night on the same day, the gendarmerie carried out a search at the Sancak Hotel, which is owned by the applicant. The records drawn up afterwards noted that during the course of the search, a certain M.Ş. had approached the plain-clothes officers outside the hotel and told them that he had a girl inside. It was then established that M.Ş. trafficked women. He and a woman in the hotel were both taken to the gendarmerie headquarters.

The search records, which were prepared a few hours after the search and signed by the hotel’s manager, showed that five women of foreign nationalities had been staying at the hotel with some men and that they had all been taken to the gendarmerie headquarters.

On 3 October 2004 the gendarmerie questioned several men as suspects and five women as victims. They all confirmed that they had been staying at the hotel for prostitution purposes. Some of the women were asked whether they knew of any complicity between the traffickers and the management of Sancak Hotel, to which they responded in the negative.

On the same day the applicant was arrested and taken into the custody of the gendarmerie on suspicion of facilitating prostitution.

On 4 October 2004 the applicant gave statements to the gendarmerie. He denied having provided premises for prostitution. He argued that he did not allow procurers into his hotel and had never seen M.Ş. before.

On the same day, the gendarmerie also questioned the hotel’s manager, who stated that both he and the applicant were very strict about keeping procurers out of their hotel.

On 30 May 2005 the Büyükçekmece Public Prosecutor issued an indictment against the applicant and three other persons. He accused them of failure to obey an order from an official authority under Article 526 § 1 of the Criminal Code (Law no. 765) in force at the time, on the ground that they had provided premises for prostitution in their hotels.

On 1 June 2005 the Misdemeanours Act (Law no. 5326) and the new Code of Criminal Procedure (Law no. 5271) entered into force.

On 10 June 2005 the Büyükçekmece Magistrates’ Court assessed the case without holding a hearing. Establishing that the accused had provided premises for prostitution in their hotels, it held that the applicant had failed to obey the orders of an official authority as charged and should be punished accordingly. It then sentenced him to an administrative fine of 100 Turkish liras (TRY) pursuant to Section 32 of the Misdemeanours Act (Law no. 5326).

The applicant objected to that decision, arguing that his defence rights had been restricted in that the court had sentenced him to the fine solely on the basis of the statements taken previously by the police, and without hearing him in person. He maintained that he accepted clients into his hotel in compliance with the relevant regulation and that he could not be expected to refuse to offer accommodation to foreign nationals or to question their motives for staying there.

On 3 February 2006 after examining the case on the basis of the case file, the Bakırköy Assize Court upheld the decision of the Magistrates’ Court. That decision was final.

On 24 May 2006 an official letter was sent to the applicant. It was indicated on the envelope that the applicant was invited to a hearing concerning his case, which would be held on 10 July 2006. The envelope did not show any confirmation that the letter had been served on him.

The applicant’s lawyer stated that he had received a copy of the final decision at the registry of the Büyükçekmece Magistrates’ Court on 11 July 2006. In support of his claim, he submitted a copy of the Assize Court’s decision, on which a lawyer working at his office had noted that he had been served with the copy in person on that date. That document was later stamped and certified as an authentic copy by the registry of the domestic court.

Following communication of the present application, on 21 December 2009 a public prosecutor prepared an assessment report, summarising the events in the case. He concluded that the final decision had been served on the applicant on 26 May 2006.

On 2 January 2014 both the applicant and the Government were asked under Rule 54 § 2 (c) of the Rules of Court to provide the Court with a document indicating the notification date of the final decision by 16 January 2014 at the latest. The parties did not respond to that request.

On 3 November 2017 the Government were once again asked to provide documents regarding the commencement of the six-month timelimit, in particular the content of the envelope from the Büyükçekmece Magistrates’ Court dated 24 May 2006 and the document in support of the public prosecutor’s claim that the final decision had been served on the applicant on 26 May 2006. On 30 November 2017 the Government informed the Court that they could not find the requested documents.


CASE OF VUGAR ALIYEV AND OTHERS v. AZERBAIJAN

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election)

The applicants’ dates of birth and places of residence are given in the Appendix.

The applicants were nominated by the Karabakh Election Bloc as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single-mandate electoral constituencies (see Appendix).

As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, the applicants on various dates submitted sheets containing the signature of more than 450 voters collected in support of their candidacy to their respective Constituency Electoral Commissions (“ConECs”).

Before a decision by a ConEC on registering an applicant as a candidate, the signature sheets and the other registration documents submitted by the applicants had first to be verified by special working groups (işçi qrupu) established by the ConECs. None of the applicants were invited to participate in the examination of their sheets of signatures by the ConEC working groups.

The ConECs on various dates (see Appendix) issued decisions to refuse the applicants’ requests for registration as a candidate, after the ConEC working groups had found that some of the voter signatures were invalid and that the remaining valid signatures had numbered fewer than 450. Signatures were found to be invalid on several grounds in each case, including: (a) falsified or repeat signatures (“signatures made repeatedly by the same individuals who had already signed sheets in the name of other individuals”); (b) incorrect personal information on voters (birth date, identity card number, and so on); (c) signatures by persons whose identity cards had expired; (d) signatures belonging to voters registered outside the constituency; (e) uncertified corrections in signature sheets; (f) withdrawal by the signature collector of his or her own signature certifying a list, invalidating the entire list of 50 signatures; and (g) unspecified “other grounds”; and so on.

None of the applicants were invited to the ConEC meetings where decisions to refuse their requests for registration were taken. In each case, despite the requirements of the law, all the relevant working group documents (expert opinions, minutes of the meeting, records and tables of results of the examination), as well as the ConEC decision itself, were only made available to the applicants after the decision to refuse their registration had been taken. In many cases, some of the documents were never made available to the applicants or were only made available to them as late as during the subsequent judicial proceedings in the Baku Court of Appeal.

Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision. They made some or all of the following complaints:

(a) the findings of the ConEC working groups that such large numbers of signatures were invalid had been factually wrong, unsubstantiated, and arbitrary. Some of those findings of fact could easily have been rebutted by simply contacting the voter in question and confirming the authenticity of his or her signature. However, the ConECs had not taken any steps to corroborate their findings with any reliable evidence, such as contacting and questioning a number of voters randomly selected from the group whose signatures were suspected of being false. There were no specialist handwriting experts among the members of the ConEC working groups and therefore their findings on the authenticity of some signatures had been highly subjective and arbitrary;

(b) the ConEC decisions to declare the signatures invalid had been arbitrary and in breach of the substantive and procedural requirements of the law. Relying on various provisions of the Electoral Code, the applicants argued that unintentional and rectifiable errors in the signature sheets could not serve as a reason to declare a voter signature invalid. If the errors found could be rectified by making the necessary corrections, the Electoral Code required the ConEC to notify the particular candidate of this within twentyfour hours and to provide him or her with an opportunity to make corrections in the documents before deciding on his or her registration as a candidate. The ConECs had, however, declared large numbers of signatures invalid in the case of each applicant on the basis of easily rectifiable errors, without informing the candidates in advance and giving them an opportunity to make necessary corrections;

(c) the procedure followed by the ConECs had also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicants had not been informed in advance of the time and place of the examination of the signature sheets and their presence had not been ensured. Contrary to the requirements of Article 59.13 of the Electoral Code, the applicants had also not been provided with a copy of the minutes of the examination of the validity of the signature sheets at least twenty-four hours prior to the ConEC meeting dealing with their respective requests for registration. Subsequently, none of the applicants had been invited to the ConEC meetings, which had deprived them of the opportunity to argue for their position;

(d) some of the grounds for invalidation were not provided by law and therefore to declare signatures invalid on these grounds had been unlawful. For example, the Electoral Code did not allow the invalidation of a signature merely because the voter’s identity document had recently expired;

(e) in some cases, various local public officials and police officers had applied undue pressure on voters or signature collectors to “withdraw” their signatures on the grounds that they had been tricked to sign in the candidate’s favour “by deceptive means”.

The CEC arranged for another examination of the signature sheets by members of its own working group. None of the applicants was invited to participate in that examination process. The CEC working group found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law.

In each case, the number of signatures found to be invalid by the CEC working group differed from the number given by the particular ConEC working group, with differences often being significant. Furthermore, in almost every case the grounds for declaring signatures invalid given by the CEC had been different from the grounds given for the same signature sheets by the ConEC. In most cases a certain number of the total signatures were also declared invalid on the grounds that they had “appeared” to have been falsified, that is, “made by the same person in the name of other people” (“ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”).

On various dates, the CEC rejected the applicants’ complaints (see Appendix). None of the applicants were invited to attend the CEC meeting dealing with their complaint. Moreover, in each case, all the relevant CEC documents (including the working group documents) were only made available to the applicants after the CEC decision had been taken, while in some cases such documents were never given to them at all, or were given as late as at the stage of judicial appeal proceedings.

On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the decisions of the electoral commissions. They reiterated the complaints they had made before the CEC concerning the ConEC decisions and procedures. They also raised some or all of the following complaints concerning the CEC’s decisions and procedures:

(a) contrary to the requirements of electoral law, the CEC had failed to notify them of its meetings and ensure their presence during the examination of the signature sheets and their complaints;

(b) contrary to the requirements of electoral law, some or all of the relevant CEC documents had not been made available to them, depriving them of the opportunity to mount an effective challenge to the CEC decisions;

(c) the decisions of the electoral commissions had been based on expert opinions that had contained nothing more than conjecture and speculation (for example, that the signatures had “appeared” (“ehtimal ki”) to have been falsified), instead of properly established facts;

(d) in those cases where the applicants had submitted additional documents in support of their complaints, the CEC had ignored those submissions and failed to take them into account.

Relying on a number of provisions of domestic law, and directly on Article 3 of Protocol No. 1 to the Convention, the applicants claimed that their right to stand for election had been infringed.

On various dates (see Appendix), the Baku Court of Appeal dismissed appeals by the applicants, finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the CEC.

The applicants lodged cassation appeals with the Supreme Court, reiterating their previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the cases and had delivered unreasoned judgments.

On various dates (see Appendix), the Supreme Court dismissed the applicants’ appeals as unsubstantiated, without examining their arguments in detail, and found no grounds to doubt the findings of the electoral commissions or of the Baku Court of Appeal.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1988 and is detained in Saransk.

On 3 August 2009 the applicant was arrested on suspicion of the rape of a girl, who was also a minor.

On 5 August 2009 the Staroshaygovskiy District Court of the Mordovia Republic remanded him in custody. He remained in pre-trial detention pending investigation and trial on the grounds that he was accused of a serious crime, might reoffend, abscond, destroy evidence, threaten witnesses, or interfere with the investigation.

On 24 December 2010 the Supreme Court of the Mordovia Republic found him guilty as charged.

On 4 October 2010 the applicant, acting for himself, submitted his first letter to the Court.

On 4 August and 4 October 2010 he provided two powers of attorney authorising Mr Frimu, one of his cellmates, to represent him before the Court.


CASE OF GAHRAMANLI AND OTHERS v. AZERBAIJAN

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque

The applicants were born in 1975, 1957 and 1955 respectively and live in Baku.

The applicants stood as candidates for the opposition parties in the parliamentary elections of 7 November 2010 in the single-mandate Khatai First Electoral Constituency No. 33. Mr Fuad Gahramanli was nominated by the coalition of the Popular Front and Musavat parties, Mr Zalimkhan Mammadli by the Classic Popular Front Party and Mr Namizad Safarov by the Karabakh electoral bloc.

The constituency was divided into thirty-five electoral precincts, with one polling station in each precinct. It is apparent that there were a total of eight candidates running for election in the constituency.

According to the official election results, Mr H.M., the candidate nominated by the ruling Yeni Azerbaijan Party, won the election with 9,805 votes. Mr Zalimkhan Mammadli finished second with 1,893 votes, Mr Fuad Gahramanli third with 1,571 votes and Mr Namizad Safarov last with 157 votes.

On 10 November 2010 the applicants, together with one other candidate, jointly lodged nearly identical complaints with the Constituency Electoral Commission (the “ConEC”) and the Central Electoral Commission (the “CEC”). They complained that the election results had not reflected the true opinion of the voters because there had been numerous instances of electoral fraud and irregularities on election day, and they requested the annulment of the election results in their constituency. They alleged that:

(a) In all the constituency polling stations, employees of the Khatai District Executive Authority and people affiliated with Mr H.M. had, in an organised manner, brought a number of persons not registered as voters into constituency polling stations to cast voting ballots;

(b) There had been instances of ballot-stuffing in numerous polling stations;

(c) The number of ballots cast in all the polling stations had been more than three times higher than the number of voters who had come to cast votes in all the polling stations;

(d) In one polling station, observers and consultative members of precinct electoral commissions (“PECs”) (commission members with no voting rights) had been prevented from participating in the vote-counting process.

The applicants also requested that their presence be ensured at the commission hearings concerning their complaints.

In support of their allegations, the applicants submitted to the electoral commissions more than a hundred statements (akt) made by election observers documenting specific instances of the irregularities complained of.

The applicants submitted copies of approximately fifty of the abovementioned statements to the Court concerning alleged irregularities in Polling Stations nos. 4, 5, 6, 9, 10, 11, 13, 14, 16, 18, 19, 20, 21, 23, 24, 25, 28, 29, 30, 33, 34 and 35. Some examples of those statements are summarised below.

Two observers in Polling Station no. 34 claimed to have witnessed an incident of ballot-box stuffing by two PEC members. They noted that, although fewer than 240 voters had been counted throughout the day, a total of 534 ballots had been found in the ballot box and officially counted.

Three observers in Polling Station no. 9 witnessed an incident where the PEC chairman had given a stack of several pre-marked ballots to a voter, who then accidentally dropped them on the floor near the ballot box. Despite this, the ballots were gathered up and put into the ballot box in plain view of all those present. In a separate statement, the same three observers noted two other incidents of similar ballot-box stuffing allegedly initiated by the PEC chairman.

Three observers in Polling Station no. 19 noted that, although a total of only 259 voters had been counted throughout the day, the number of ballots found inside the ballot box at the end of the day had exceeded 400.

One consultative member of the PEC and two observers in Polling Station no. 18 noted that they had been prevented from standing at a place where they could observe, in an unobstructed manner, the checking of voters’ forefingers for election ink. This had presumably been done by persons in charge in the precinct,

Three observers in Polling Station no. 25 noted that, although a total of only 235 voters had been counted throughout the day, 496 ballots had been found in the ballot box. The ballot box contained clumps of ballots, suggesting that ballot-box stuffing had taken place.

Observers in a number of other polling stations had also noted similarly significant differences between the numbers of ballots in the ballot boxes and the numbers of voters who had been observed casting votes throughout the day.

According to the applicants, they did not receive any reply from the ConEC and their complaint had been examined by the CEC only.

On 13 November 2010 the CEC extended the statutory three-day period for examining the complaint for an indefinite period of time, noting that “additional enquiries” were required.

On 21 November 2010, R.I., the member of the CEC’s expert group who had been charged with dealing with the complaint delivered his opinion, stating that the complaint should be dismissed as unsubstantiated.

By a decision of 21 November 2010, the text of which was essentially a repetition of the opinion delivered by the expert R.I., the CEC dismissed the applicants’ complaint as unsubstantiated. It appears that the applicants were not present at the CEC hearing.

In its decision, the CEC noted that the applicants should first have taken their complaints to the relevant PECs. They could then have appealed against the decisions of the various PECs to the ConEC, and only then should they have complained to the CEC, whereas ‒ in breach of the above procedure ‒ they had applied directly to the CEC. The CEC nevertheless decided to examine the complaint on the merits.

As to the merits of the complaint, the CEC found, in particular, that “the majority of the observers’ statements [as submitted by the applicants] were of a general character and did not reflect the principle that an observation must be based on fact”. It furthermore found that a number of the statements contained an assessment of the alleged irregularity based solely on observers’ “subjective opinions”. As an example of this, the CEC mentioned the statement of three observers from Polling Station no. 25 (see paragraph 17 above).

Furthermore, the CEC noted that the information in the observers’ statements which the applicants submitted ‒ of which there were more than hundred ‒ was refuted by the statements of over one hundred other observers from “all thirty-five polling stations” who had not registered any breaches of electoral law that could affect the election results. According to the CEC, some of those observers represented the opposition. In particular, the CEC mentioned the names of a number of observers from Polling Stations nos. 3, 4, 6, 8, 9 and 15 who, according to the CEC, “had confirmed that no breaches of the electoral legislation had been observed”. Moreover, the CEC noted that PEC members in all the polling stations had stated that, on election day, they had not received any statements or complaints by any observer or candidate concerning any election irregularities and that the election process in their respective polling stations had been lawful and conducted under adequate conditions.

In conclusion, the CEC found that the examination of the written evidence refuted the allegations made by the applicants and that no grounds for invalidating the election results could be established.

On 25 November 2010 the applicants, together with one other candidate, lodged an appeal against the CEC decision with the Baku Court of Appeal. In the appeal, they reiterated the complaints made to the CEC about the alleged irregularities on election day. They also complained that ‒ contrary to the requirements of Article 112-1.7 of the Electoral Code ‒ their presence at the CEC hearing had not been ensured and that the CEC had deliberately not investigated the serious allegations of electoral fraud and irregularities.

By a judgment of 26 November 2010 the Baku Court of Appeal dismissed the applicants’ appeal, mostly reiterating the CEC’s reasoning. In particular, it noted that the applicants and their observers had not immediately complained of the alleged irregularities directly to the relevant PECs on election day. It furthermore found that the CEC had properly investigated the allegations and had found that they had been refuted by a number of other observers representing various political parties, including opposition parties, who had stated that no serious irregularities had taken place in any polling station.

A copy of the Baku Court of Appeal’s judgment was made available to the applicants on 30 November 2010.

In the meantime, on 22 November 2010 the CEC had sent its final election results record and other relevant documents for review and final approval by the Constitutional Court. On 29 November 2010 the Constitutional Court confirmed the country-wide election results, including the election results in the applicants’ constituency, as final.

On 1 December 2010 the applicants lodged an appeal with the Supreme Court against the Baku Court of Appeal’s judgment. They reiterated the complaints and arguments raised before the CEC and the Baku Court of Appeal. They also complained of the following:

(a) as to the CEC’s and the appellate court’s remark that the irregularities allegedly observed on election day had not been communicated to the PECs immediately on that same day, the applicants noted that it had been precisely the conduct of the PECs ‒ which had created a hostile environment for opposition observers and had themselves been largely responsible for those irregularities ‒ that had made it impossible or difficult for the applicants and their observers to attempt to deal with the irregularities at the PEC level;

(b) both the CEC and the Baku Court of Appeal had given more weight to the statements of pro-Government observers, which had assessed the election process positively, than to those of the applicants’ observers. The CEC and the Baku Court of Appeal did not explain the reasons for doing so. Moreover, while the CEC noted that positive statements about the conduct of the election had been made even by some observers from opposition parties, the applicants claimed the CEC had simply fabricated the existence of such statements by purported pro-opposition observers.

On 6 December 2010 the Supreme Court dismissed the applicant’s appeal, agreeing with the lower court’s reasoning. It also added that the applicants’ appeal and the Baku Court of Appeal’s judgment had to be assessed in the light of Article 63.4 of the Law on the Constitutional Court, which stated that the Constitutional Court’s decisions were final and could not be subject to quashing, amendment or official interpretation by any authority or person. In this regard, the Supreme Court reasoned as follows:

“The results of the [parliamentary] elections of 7 November 2010 were recognised as valid by [the CEC’s] election results record of 22 November 2010 and the candidates elected as members of parliament from all 125 electoral constituencies were determined.

The aforementioned results record was approved by the CEC decision of 22 November 2010, and [on the same date] the final election results record, together with the [ConEC] results records and additional documents, were submitted to the Constitutional Court for verification and approval of the election results.

By a decision of the Plenum of the Constitutional Court on the results of the [parliamentary] elections of 7 November 2010 ..., dated 29 November 2010, the CEC’s final results record of 22 November 2010 was deemed compliant with the requirements of Articles 100.2, 100.12, 108.2 and 171.2 of the Electoral Code of the Republic of Azerbaijan, and the election results concerning 125 electoral constituencies, including Khatai First Electoral Constituency no. 33, were approved, that decision becoming final at the moment of its delivery.

It follows from that decision that the Constitutional Court did not establish any circumstances that may have taken place during the voting or the determination of the election results that could have prevented the establishing of the will of the voters in Khatai First Electoral Constituency no. 33.

Taking into account the fact that the aforementioned decision [of the Constitutional Court] is final and not subject to quashing, amendment or official interpretation by any authority or person, the court considers that the judgment of the appellate court [dismissing the applicants’ complaints] must be upheld.”


CASE OF BARTKUS AND KULIKAUSKAS v. LITHUANIA

No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The first applicant was born in 1976 and lives in Žagarė and the second applicant was born in 1957 and lives in Šiauliai.

In December 2010 the first applicant bought a house at an auction organised by the State and registered his property rights in the State Property Register. At the time, the former owners of the house, Z.B. and his wife G.B., were living there. The auction was organised as a result of a debt of Z.B.

In January 2011 the first applicant lodged a claim with the court, asking to evict Z.B. and G.B. and for an award in respect of pecuniary damage.

On 21 December 2011 the Šiauliai District Court held that the first applicant was the lawful owner of the house and that Z.B. and G.B. were unlawfully occupying the premises. The court held that Z.B. and G.B. had to be evicted and decided to award the applicant 1,000 Lithuanian litai (LTL – approximately 289 euros (EUR)) for every month from 28 December 2010 until the eviction of Z.B. and G.B. from the house. It appears that by May 2017 EUR 5,013 had been recovered from Z.B. and G.B. and paid to the first and the second applicants, the remaining amount to be paid being EUR 5,070.

On 4 April 2012 the Šiauliai District Court issued a writ of execution and on 5 April 2012 it was received by the bailiff’s office.

On 6 April 2012 the bailiff sent a letter to Z.B. and G.B. and asked them to vacate the house, the letter was received by Z.B. on 13 April 2012.

In May 2012 G.B. lodged a complaint against the bailiff but on 6 June 2012 the Šiauliai District Court dismissed it. G.B. then lodged a separate complaint which was also dismissed by the Šiauliai Regional Court on 24 September 2012.

In October 2012 the first applicant asked the bailiff to ensure that the police were present during the forced eviction; to ensure that the access to the house was not impeded by the dog; the first applicant also asked the bailiff to get the information from the Children’s Rights Protection Service because Z.B. claimed that his minor granddaughter had been living in the house. The first applicant also asked the police to oblige the residents of the house to terminate their unlawful actions; to oblige them to remove their dog from the area; to warn the unlawful residents of the house of their responsibility for material damage and to fine them.

In October 2012 the bailiff asked the authorities about the permanent place of residence of Z.B.’s granddaughter. The authorities stated that Z.B.’s daughter and granddaughter were living together in Vilnius. This was later confirmed by Z.B.’s daughter herself.

On 13 November 2012 the bailiff informed Z.B. and G.B. that the eviction would take place on 23 November 2012. On 15 November 2012 Z.B. asked the bailiff to suspend the eviction because G.B. was ill. At first the bailiff refused to suspend the enforcement action but on 22 November 2012, after having received medical documents about G.B.’s state of health, he postponed the eviction until 14 December 2012.

On 20 November 2012 Z.B. lodged a complaint against the bailiff, also asking the court to apply interim measures – to suspend the eviction proceedings owing to G.B.’s illness and the presence of his minor granddaughter in the house. On 22 November 2012 the Šiauliai District Court decided to apply interim measures and to suspend the eviction proceedings until the complaint against the bailiff was examined.

The complaint against the bailiff was examined on 19 December 2012 by the Šiauliai District Court, which decided to dismiss Z.B.’s complaint. The court held that the writ of execution had been issued on 4 April 2012 (see paragraph 8 above) and that the bailiff had urged Z.B. and G.B. to vacate the house before 15 May 2012; thus he had given them thirty-nine days. The court further held that Z.B. had complained about the bailiff’s eviction notice about the forced eviction but had also asked that the execution proceedings be suspended and the eviction postponed. The court held that Z.B. had already asked the bailiff to suspend the eviction but the bailiff had refused to satisfy this request. The court also stated that Z.B. had complained about the bailiff’s eviction notice of 13 November 2012 (see paragraph 13 above). The bailiff had informed the animal shelter, the police and the Children’s Rights Protection Service; he had thus acted in accordance with domestic law. The court decided to annul the interim measures applied by the decision of the Šiauliai District Court (see paragraph 14 above).

Z.B. submitted a separate complaint against the decision of the Šiauliai District Court (see paragraph 15 above), complaining that the court had made a purely formalistic assessment of his minor granddaughter’s living arrangements in the house and that it had not commented on the fact that the bailiff had ignored his wife’s illness. On 28 March 2013 the Šiauliai Regional Court held that the illness of G.B. had not come on suddenly, that there were no minors living in the house and that there were no grounds to suspend the execution of the eviction order.

The bailiff submitted a separate complaint against the decision of the Šiauliai District Court (see paragraph 14 above). On 25 January 2013 the Šiauliai Regional Court dismissed the bailiff’s complaint holding that G.B.’s illness had been grounds to suspend the eviction proceedings.

On 3 April 2013 the bailiff informed Z.B. and G.B. that the eviction would take place on 16 April 2013. On that day Z.B. stated that his mother was living in the house and, because she was not on the list of persons who could be evicted, the eviction could not take place. The bailiff decided to suspend the eviction.

On 16 April 2013 Z.B. lodged a complaint with the court, stating that the bailiff’s actions had been arbitrary and asking to remove him from the case. This complaint was dismissed by the Šiauliai District Court on 23 April 2013.

On 22 April 2013 the first applicant complained to the bailiff about the latter’s inactivity on 16 April 2013 (see paragraph 18 above). The first applicant claimed that the bailiff had to enter the house and evict Z.B. and G.B. by force and that Z.B.’s mother had to be taken care of by the police or other relevant authorities.

On 2 May 2013 the bailiff decided not to satisfy the first applicant’s complaint. The bailiff held that he could only evict those persons that were listed on the writ of execution, and Z.B.’s mother was not one of them. The bailiff agreed with the first applicant that Z.B. had been avoiding the eviction but stated that he had tried to defend the first applicant’s interests by suggesting to the latter to apply to the Šiauliai District Court so that it broadened the list of persons to be evicted.

The first applicant then lodged a complaint before the Šiauliai District Court, complaining about the bailiff’s inactivity.

On 14 June 2013 the first applicant sold the house to the second applicant.

Consequently, on 19 June 2013 the Šiauliai District Court replaced the first applicant with the second applicant in the proceedings (see paragraph 22 above).

On 16 August 2013 the Šiauliai District Court satisfied the second applicant’s complaint. The court held that when the execution actions had been protracted, the interests of a creditor had been breached, and thus the main role in the execution proceedings had been played by the bailiff. Only the persons listed on the writ of execution could be evicted, and any other persons were considered to be only temporarily present and had to immediately leave the premises. Only the court and not the bailiff could postpone the eviction. The court held that the bailiff had failed to perform the execution of the eviction properly and that he had had no grounds to suspend or postpone the execution. The court thus annulled the bailiff’s order of 16 April 2013 to suspend the eviction and the order of 2 May 2013 by which the bailiff dismissed the first applicant’s complaint (see paragraphs 18 and 21 above).

Z.B. submitted a separate complaint. On 31 October 2013 the Šiauliai Regional Court dismissed it.

On 7 November 2013 the bailiff issued an order for forced eviction.

On 18 November 2013 the forced eviction took place, with the participation of the bailiff, the locksmith and two police officers. However, Z.B. and G.B. did not participate in it and when the second applicant entered the house, all their furniture and other belongings were still there. The next day, the bailiff drew up a document by which the second applicant was assigned as the property manager of the goods that had been left in the house and that had been seized.

In December 2013 Z.B. lodged a complaint against the bailiff regarding the forced eviction. On 3 January 2014 the Šiauliai District Court held that the eviction had been lawful and that the bailiff had acted in accordance with domestic law.

Z.B. submitted a separate complaint, which was dismissed by the Šiauliai Regional Court on 27 March 2014.

The Government submitted that on 11 February 2014 the bailiff ordered Z.B. and G.B. to collect their goods that had not been seized (see paragraph 28 above) from the house on 17 February 2014 at the latest. As this order had not been executed, on 26 March 2014 the bailiff issued a property-seizure order with the aim of selling the goods off.

Z.B. and G.B. lodged a complaint in respect of the bailiff’s decision to issue the property-seizure order (see paragraph 31 above). On 26 May 2014 the Šiauliai District Court dismissed their complaint, holding that in accordance with domestic law the evicted person had to take his or her property. If he or she failed to collect the property within three months from the date when it had been transferred to the property manager, it could be sold and the income given to the debtor. In the present case, the second applicant had become the property manager on 18 November 2013 (see paragraph 28 above), the property seizure act had been drawn up on 19 November 2013, and the property had to be taken by Z.B. and G.B. before 17 February 2014. After this date the sale of the property would become lawful.

On 30 and 31 October 2014 the bailiff announced a public auction concerning the movable property of Z.B. and G.B. It was also suggested to the debtors’ representative that they could approach the second applicant and take back their property that had not been seized.

Z.B. applied to the Šiauliai District Court to have interim measures applied to prevent the bailiff from selling their movable property. Z.B. explained that he wanted either to lodge a complaint against the bailiff in accordance with the out-of-court settlement procedure or to lodge a claim with the court. Z.B.’s application was accepted by the Šiauliai District Court on 3 December 2014. Z.B. was also instructed to lodge any such complaint against the bailiff under the out-of-court settlement procedure or a claim with the court before the deadline of 17 December 2014 and to pay the applicable court fees. According to the Government, Z.B. failed to pay the court fees, and the interim measures were therefore annulled on 9 June 2015.

On 17 June 2015 the Šiauliai District Court rejected another complaint lodged by Z.B. against the bailiff, the second applicant and third parties regarding the annulment of the negative consequences caused by the unlawful actions of the bailiff and compensation for non-pecuniary damage. The court stated that Z.B. had asked it to rule that some personal belongings could not be sold at auction. The court held that Z.B. and G.B. had not taken advantage of the opportunity to name buyers who might have had an interest in taking part in the auction that had been subsequently carried out. Z.B. had failed to explain why he had not taken his belongings within the threemonth time-limit; moreover, he had not even provided a description of his alleged personal belongings. The court therefore dismissed Z.B.’s complaint.

On 8 April 2013 G.B. lodged an application for interim measures, asking to prohibit the use of the house and other buildings in the garden and complaining of the result of the auction – the first applicant purchasing the house (see paragraph 5 above) – and asking for the result of the auction and the purchase agreement to be annulled.

On 16 May 2013 this application was dismissed by the Panevėžys Regional Court and on 5 September 2013 by the Court of Appeal.

G.B. lodged another application for interim measures, complaining of the results of the auction. Her application for interim measures was dismissed by the Panevėžys Regional Court on 10 September 2013 and her complaint about the result of the auction was dismissed by the Panevėžys Regional Court on 9 December 2013.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of their pre-trial detention.