EHRM, 19-04-2018, nr. 47145/14

The applicant submitted that there was no ‘reasonable suspicion’ that he had committed a criminal offence. He noted that although in their observations the Government had referred to ‘the expert opinions and testimonies’ as evidence proving the existence of a ‘reasonable suspicion’, neither the prosecuting authorities nor the domestic courts had referred to such evidence when they ordered the applicant's arrest and detention. In this connection, he claimed that he had been arrested and charged because of the Centre's reports on election irregularities in Azerbaijan.

The applicant further argued that his detention had not been in compliance with the requirements of Article 5 § 3 of the Convention, because the domestic courts had failed to provide ‘relevant and sufficient’ reasons justifying his pre-trial detention, and had also failed to properly consider whether alternative preventive measures could have been applied.

The Government submitted that the applicant had been arrested on the basis of the investigative measures taken following the institution of criminal proceedings. The investigation was able to collect initial evidence proving the applicant's participation in the misappropriation of a large amount of money and tax evasion in the amount of AZN 19,000 (approximately EUR 17,850 at the material time). That material and information had been further corroborated by the expert opinions and testimonies of other defendants in the criminal case, which had been sufficient to justify the applicant's arrest under domestic law. In this connection, the Government referred to documents, dated 16 December 2013 and 19 March 2014, indicating that various expert opinions had been passed on to the applicant by the investigation. Accordingly, the Government argued that there had been sufficiently specific information to justify a reasonable suspicion that the applicant had committed an offence.

The Government also argued that the courts had given relevant and sufficient reasons for their decisions establishing that there had been a risk that, if not detained, the applicant would abscond from the investigation or hinder the proper conduct of the proceedings.

Third-party comments submitted by the Council of Europe Commissioner for Human Rights, as well as by the Helsinki Foundation for Human Rights, the Human Rights House Foundation and Freedom Now concerned the situation of human rights defenders in Azerbaijan and the difficulties faced by NGOs as a result of the recent legislative amendments. A detailed description of the above-mentioned comments can be found in the Court's judgment in Rasul Jafarov (cited above, §§ 99–113).

Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty, which must be interpreted strictly. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him before the competent legal authority on ‘reasonable suspicion’ of ‘having committed an offence’ (see Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000-IX).

The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c), it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145-B). Nor is it necessary that the person detained should ultimately have been charged or brought before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling the suspicions which provided the grounds for detention. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of the criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300-A).

However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words ‘reasonable suspicion’ mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Gusinskiy v. Russia, no. 70276/01, § 53, ECHR 2004-IV). What may be regarded as ‘reasonable’ will depend upon all the circumstances (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The length of the deprivation of liberty may also be material to the level of suspicion required (see Murray, cited above, § 56).

When assessing the ‘reasonableness’ of the suspicion, the Court must be in a position to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured. Consequently, the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence (see Fox, Campbell and Hartley, cited above, § 34 in fine).

Apart from its factual aspect, which is most often in issue, the existence of such a suspicion additionally requires that the facts relied on can reasonably be considered criminal behaviour under domestic law. Thus, clearly there could not be a ‘reasonable suspicion’ if the acts held against a detained person did not constitute an offence at the time they were committed (see Włoch v. Poland, no. 27785/95, §§ 108-09, ECHR 2000-XI).

The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a prerequisite for the lawfulness of the continued detention (see, among many other authorities, Stögmüller v. Austria, 10 November 1969, p. 40, § 4, Series A no. 9, and McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006-X). Accordingly, while reasonable suspicion must exist at the time of the arrest and initial detention, it must also be shown, in cases of prolonged detention, that the suspicion persisted and remained ‘reasonable’ throughout the detention (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 90, 22 May 2014).

The Court observes that the applicant in the present case complained of the lack of ‘reasonable’ suspicion against him throughout the entire period of his pre-trial detention, including both the initial period following his arrest and the subsequent periods when his remand in custody was authorised and extended by court orders. In this connection, the Court notes at the outset that it has to take into account all the relevant circumstances in order to be satisfied that any objective information existed showing that the suspicion against the applicant was ‘reasonable’. The Court thus considers it necessary to take into account the general context of the facts of this particular case. Having assessed the submissions by the third parties (see reference in paragraph 47 above) and the opinions of the Venice Commission (see reference in paragraph 40 above), the Court notes that in recent years the legislative environment regarding the operation of non-governmental organisations, including the regulation of matters relating to their State registration, their funding and their reporting requirements, has, according to the submissions of the third parties, deteriorated. A number of amendments to various legislative instruments introduced additional registration and reporting procedures as well as heavy penalties. There have been long-standing problems with the State registration of NGOs in Azerbaijan (in this connection, see also Ramazanova and Others v. Azerbaijan, no. 44363/02, 1 February 2007; Nasibova v. Azerbaijan, no. 4307/04, 18 October 2007; Ismayilov v. Azerbaijan, no. 4439/04, 17 January 2008; and Aliyev and Others v. Azerbaijan, no. 28736/05, 18 December 2008, in which cases the Court found violations of Article 11 of the Convention). Despite the reforms to the registration procedures regulated by the Law on State Registration, the Court has continued to receive new applications concerning allegedly arbitrary delays in State registration of NGOs. Indeed, two of those applications were lodged by NGOs founded by the applicant, and have been communicated to the respondent Government (see applications nos. 64733/09 and 70981/11). Furthermore, the above-mentioned sources were of the view that the onerous new regulations, coupled with the reportedly intransigent and arbitrary manner in which they were being applied by the authorities, made it increasingly difficult for NGOs to operate. While the Court is not called upon to give a judicial assessment of the general situation outlined above in the context of the present complaint, it nevertheless considers that this background information is relevant to the present case and calls for particularly close scrutiny of the facts giving rise to the charges brought against the applicant (see Rasul Jafarov, cited above, § 120).

The Court further notes that the circumstances of the present case and the complaints raised under Article 5 of the Convention by the applicant are similar to those already examined by the Court in the case Rasul Jafarov v. Azerbaijan. In particular, the applicant and Rasul Jafarov were charged with the same criminal offences and there were a lot of similarities in the wording of the prosecuting authorities' decisions describing the acts attributed to them (compare paragraph 14 above and Rasul Jafarov, cited above, § 16).

The Court observes that the description of the three original charges brought against the applicant on 16 December 2013 lacked the level of coherence, order and clarity that could be expected of a document of this nature. In particular, the description consisted of a single sentence spanning about one page of printed text. It can be discerned from that description that the applicant was accused of having received since May 2013 — with the complicity of S.B. and E.M., through the Public Union, which was a registered NGO — a number of grants allocated to the Centre, which was not State-registered. He was also accused of generating profit, ‘by paying money to himself and other people involved in the projects in the guise of salaries and service fees’ (see paragraph 14 above) despite the fact that the Centre, which was not registered, did not have legal entity status (see reference in paragraph 47 above). He was further accused under Article 219 of the Tax Code of avoiding payment of taxes in the amount of AZN 19,535 (approximately EUR 18,250 at the material time), thus causing ‘significant damage to State interests protected by law, entailing grave consequences’.

It can be deduced from the above that all the misconduct attributed to the applicant essentially stemmed from the fact that he had received the grants awarded to his non-State-registered NGO (the Centre) through a different registered NGO (the Public Union). No other information or evidence supporting the suspicion was shown to exist, either at the time he was accused or throughout the entire period of his pre-trial detention. For the reasons set out below, the Court considers that the above facts relied on by the prosecuting authorities cannot be considered sufficient to satisfy an objective observer that the applicant might have committed the offences he was charged with.

The Court notes that the domestic legislation did not prohibit the functioning of non-commercial organisations (such as NGOs), as distinct from commercial organisations, in the absence of State registration (see reference in paragraph 39 above). This has previously been confirmed by the Government in their submissions before the Court in other cases (see Ramazanova and Others, cited above, § 48; Nasibova, cited above, § 24; Ismayilov, cited above, § 44; and Aliyev and Others, cited above, § 28). However, in practice, NGOs faced difficulties in functioning properly, as they could not, for instance, open bank accounts or receive funding as a legal entity. It was specifically owing to these difficulties that the applicant's organisation conducted the impugned activities in partnership with the Public Union, which was a registered NGO (see reference in paragraph 47 above).

In this connection, the Court notes that, although in the present case the criminal charges against the applicant were based on the fact that he had received the grants through a registered NGO, the Court does not see how such an action could have given rise to a reasonable suspicion that he had committed a criminal offence. Neither the domestic authorities nor the Government were able to refer to any provision of the Criminal Code which specifically criminalises the action of receiving grants through a different, State-registered NGO rather than an NGO operating without State registration. Moreover, under domestic law the breach of the legislation on giving and receiving grants constituted an administrative offence punishable by a fine and not a criminal offence (see reference in paragraph 39 above).

In any event, the Court observes that the prosecuting authority claimed that the alleged action of receiving grants by the applicant through a registered NGO should result in its categorisation as an illegal commercial (‘entrepreneurial’) activity. However, the Court notes that the domestic law provided clear definitions of commercial and non-commercial activities, the differentiating factor being whether or not the purpose of the activities was the generation of profit. Non-commercial activity was not subject to profit tax or value-added tax (see reference in paragraph 39 above).

The Court also observes that it was undisputed that the grants in question were awarded for the purposes of financing the monitoring of the presidential election of October 2013. The authorities never claimed that the actual purposes for which the grants had been awarded were illegal, or that any of the actual activities conducted by the applicant using grant funds had been illegal. Therefore, the money was received on the basis of grant agreements indicating the specific non-commercial purposes on which the funds were to be spent, as required by the Law on Grants (see reference in paragraph 39 above). Moreover, the donors had never claimed that the money had been spent otherwise than as designated in the relevant agreements. These circumstances favour the presumption that the applicant was engaging in non-commercial activities which were not prohibited by law and were not aimed at generating profit.

The Court further notes that the prosecuting authorities never demonstrated the existence of any information or evidence showing that the applicant might have used the money for generating profit or for purposes other than those indicated in the grant agreements, or that the purposes indicated in the grant agreements were both commercial and illegal. Likewise, the Government failed to demonstrate that any other witness statements, documents or other evidence or information existed which could serve as a basis for the suspicion that the applicant had engaged in criminal activities. In this connection, the Court observes that, although the Government referred to documents, dated 16 December 2013 and 19 March 2014, indicating that various expert opinions had been passed on to the applicant by the investigation, they failed to provide the Court with these expert opinions. In any event, it has not been demonstrated that any such evidence was ever presented by the prosecuting authorities to the domestic courts ordering and extending the applicant's pre-trial detention (compare Ilgar Mammadov, cited above, §§ 96–99; Yagublu v. Azerbaijan, no. 31709/13, § 60, 5 November 2015; and Rasul Jafarov, cited above, § 129). In this regard, the Court also takes note of the decision of the Plenum of the Supreme Court of 3 November 2009. That decision required domestic courts to subject prosecuting authorities' applications for remand in custody to close scrutiny and to verify the existence of a suspicion against the accused by making use of their power under Article 447.5 of the CCrP to request and review the ‘initial evidence’ in the prosecution's possession (see reference in paragraph 39 above). However, in the present case, the above directives were not taken into account (compare Ilgar Mammadov, cited above, § 97, and Yagublu, cited above, § 61).

In such circumstances, the Court finds that the applicant could not have been reasonably suspected of having committed the criminal offence of ‘illegal entrepreneurship’ under Article 192.2.2 of the Criminal Code, because there were no facts, information or evidence showing that he had engaged in commercial activity or committed the offence of ‘tax evasion’ under Article 213 of the Criminal Code, as in the absence of such commercial activity there could be no taxable profit under the simplified regime. Furthermore, the above-mentioned facts were not sufficient to give rise to a suspicion that the applicant had sought to ‘obtain unlawful advantage for himself or for third parties’, which was one of the constituent elements of the criminal offence of ‘abuse of power’ under Article 308 of the Criminal Code (compare, mutatis mutandis, Lukanov v. Bulgaria, 20 March 1997, § 44, Reports of Judgments and Decisions 1997-II).

As for the additional charges under Articles 179.3.2 and 313 of the Criminal Code brought against the applicant on 19 March 2014, the Court notes that they were brought after the latest domestic court order of 6 March 2014 extending the applicant's pre-trial detention. All previous decisions ordering and extending the applicant's pre-trial detention had been based solely on the original charges under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code. The new charges were therefore of no significance as regards assessing the reasonableness of the suspicion underpinning the applicant's detention during the period falling within the scope of the present case. The Government have not argued otherwise (compare Rasul Jafarov, cited above, § 131).

The Court is mindful of the fact that the applicant's case was taken to trial. That, however, does not affect the Court's findings in connection with the present complaint, where it is called upon to consider whether the deprivation of the applicant's liberty during the pre-trial period was justified on the basis of the information or facts available at the relevant time. In this respect, having regard to the above analysis, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual's arrest and continued detention. Accordingly, during the period the Court is considering in the present case, the applicant was deprived of his liberty in the absence of a ‘reasonable suspicion’ of his having committed a criminal offence.

Accordingly, there has been a violation of Article 5 § 1 of the Convention.

Having regard to the above finding, the Court does not consider it necessary to examine separately under Article 5 § 3 of the Convention whether the domestic authorities provided relevant and sufficient reasons justifying the necessity of the applicant's continued pre-trial detention (see Ilgar Mammadov, cited above, § 102; Yagublu, cited above, § 64; and Rasul Jafarov, cited above, § 135).

The applicant maintained that his Convention rights had been restricted for purposes other than those prescribed in the Convention. In particular, his arrest and detention had had the purpose of punishing him as a government critic, silencing him as an election observer, NGO activist and human rights defender, paralysing civil society in the country and destroying the election monitoring network that he had established. In that connection, he submitted that he was the Chairman and one of the co-founders of the main non-governmental organisation specialising in the monitoring of elections in the country which regularly criticised the government for election irregularities. Moreover, various international organisations and instances often relied on the results of the election monitoring conducted by the Centre.

The applicant also drew the Court's attention to the fact that criminal proceedings were instituted in connection with alleged irregularities in the financial activities of the Centre only a few days after the issue of the the Centre's preliminary report concerning the results of the last presidential elections.

Lastly, the applicant argued that his detention and prosecution could not be viewed in isolation. It was part of a targeted repressive campaign against human rights defenders and NGO activists, who were arrested and detained on the basis of similar fabricated accusations.

The Government argued that, as in the cases of Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011) and Khodorkovskiy and Lebedev v. Russia (nos. 11082/06 and 13772/05, 25 July 2013), the applicant's allegations in the present case were too wide and far-reaching. He was not complaining of an isolated incident, but was trying to demonstrate that the whole legal machinery of the respondent State had been misused ab initio, and that from beginning to end the authorities had been acting in bad faith and with blatant disregard for the Convention. In essence, the applicant was trying to persuade the Court that everything in their case was contrary to the Convention, and that the criminal proceedings against him were therefore invalid. That allegation was a serious one, because it assailed the general presumption of good faith on the part of the public authorities and required particularly weighty evidence in support.

However, according to the Government, none of the accusations against the applicant were political. He had not been an opposition leader or a public official. The acts which had been imputed to him did not relate to his participation in political life, real or imaginary — he had been prosecuted for a common criminal offence.

The Government also submitted that the Court may be prepared to admit that some political groups or government officials had their own reasons for the applicant's prosecution, but it is not sufficient to conclude that the applicant should not have been convicted otherwise. Elements of ‘improper motivation’ which may exist in the present case do not make the applicant's prosecution illegitimate ‘from beginning to the end’: the fact remains that the accusations against the applicant were serious, that the case against him had a ‘healthy core’, and that even if there was a mixed intent behind his prosecution, this did not grant him immunity from answering the accusations.

Lastly, the Government pointed out that the allegation that the applicant had been arrested because of his public statement following the last presidential elections is nothing but speculation. In that connection, they submitted that he had not been arrested immediately after the elections, but following a thorough investigation by the relevant authorities. Accordingly, the restrictions imposed by the State in the present case had not been applied for any purpose other than one envisaged by that provision, and strictly for the proper investigation of serious criminal offences allegedly committed by the applicants.

Submissions by the third parties, which pertain to both the complaints under Articles 5 and 18 of the Convention, can be found in paragraph 47 above.

The Court notes that the general principles concerning interpretation and application of Article 18 of the Convention have recently — after the judgments adopted in the cases of Khodorkovskiy v. Russia (cited above) and Khodorkovskiy and Lebedev v. Russia (cited above) to which the Government referred (see paragraph 88 above) — been set out by the Grand Chamber in its judgment in Merabishvili v. Georgia ([GC], no. 72508/13, 28 November 2017):

The Grand Chamber further found that a right or freedom is sometimes restricted solely for a purpose which is not prescribed by the Convention. But it is equally possible that a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention; in other words, that it pursues a plurality of purposes (see Merabishvili, cited above, § 292). In these circumstances, a restriction can be compatible with the substantive Convention provision which authorises it because it pursues an aim permissible under that provision, but still infringe Article 18 because it was chiefly meant for another purpose that is not prescribed by the Convention; in other words, if that other purpose was predominant. Conversely, if the prescribed purpose was the main one, the restriction does not run counter to Article 18 even if it also pursues another purpose (see Merabishvili, cited above, § 305). Which purpose is predominant in a given case depends on all the circumstances. In assessing that point, the Court will have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and bear in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (see Merabishvili, cited above, § 307).

In the latter judgment, after having addressed the question of proof in relation to complaints under Article 18 of the Convention (see Merabishvili, cited above, §§ 310–15), the Court found the following concerning the standard of proof:

The Court considers it necessary to note at the outset that it has already found that the applicant's arrest and pre-trial detention were not carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention (see paragraphs 56–66 above), as the charges against him were not based on a ‘reasonable suspicion’ within the meaning of Article 5 § 1 (c) of the Convention (contrast Merabishvili, cited above, § 318, Khodorkovskiy, cited above, § 258, and compare Lutsenko, cited above, § 108; Ilgar Mammadov, cited above, § 141; and Rasul Jafarov, cited above, § 156). Therefore, the present case should be distinguished from the cases with plurality of purposes in which a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention (see Merabishvili, cited above, §§ 318–54).

However, the mere fact that the restriction of the applicant's right to liberty did not pursue a purpose prescribed by Article 5 § 1 (c) is not in itself a sufficient basis to conduct a separate examination of a complaint under Article 18 unless the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case. Therefore, it remains to be seen whether there is proof that the authorities' actions were actually driven by an ulterior purpose, namely for silencing and punishing the applicant as a civil society activist for his activities in the area of electoral monitoring.

In that connection, the Court reiterates that there is no reason for it to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof to such allegations (see Merabishvili, cited above, § 316), as depending on the circumstances of the case, an ulterior purpose cannot always be proven by pointing to a particularly inculpatory piece of evidence which clearly reveals an actual reason (for example, a written document, as in the case of Gusinskiy) or a specific isolated incident. In the present case, as in the cases of Ilgar Mammadov (cited above) and Rasul Jafarov (cited above), the Court considers that it can be established to a sufficient degree that proof of an ulterior purpose derives from a juxtaposition of the lack of suspicion with contextual factors.

Firstly, the general circumstances to which it has had regard in connection with its assessment of the complaint under Article 5 § 1 (see paragraph 54 above) are equally relevant in the context of the present complaint. In the Court's view, the general context of the increasingly harsh and restrictive legislative regulation of NGO activity and funding cannot be simply ignored in a case like the present one, where such a situation has led to an NGO activist being prosecuted for an alleged failure to comply with legal formalities of an administrative nature while carrying out his work.

Secondly, the Court takes note of the numerous statements by high-ranking officials and articles published in the pro-government media, where local NGOs and their leaders were consistently accused of being a ‘fifth column’ for foreign interests, national traitors, foreign agents, and so on (see reference in paragraph 38 above). They were harshly criticised for contributing to a negative image of the country abroad by reporting on the human rights situation in the country. What was held against them in these statements was not simply an alleged breach of domestic legislation on NGOs and grants, but their activity itself.

Thirdly, the applicant's situation cannot be viewed in isolation. Several notable human rights activists who have cooperated with international organisations for the protection of human rights, including, most notably, the Council of Europe, were similarly arrested and charged with serious criminal offences entailing heavy imprisonment sentences. These facts, taken together with the above-mentioned statements by the country's officials, support the applicant's and the third parties' argument that his arrest and detention were part of a larger campaign to crack down on human rights defenders in Azerbaijan, which had intensified over the summer of 2014 (see reference in paragraph 47 above).

The Court also attaches weight to the timing of the institution of criminal proceedings in connection with alleged irregularities in the financial activities of the Centre, only a few days after the issue of the Centre's preliminary report concerning the results of the last presidential elections. In that connection, it cannot accept the Government's submission that there had been no link between the applicant's electoral monitoring activity and his arrest which had been ordered following a thorough investigation by the relevant authorities. The Court has already found that there is nothing in the case file to show that the prosecution authorities had any objective information giving rise to a bona fide suspicion against the applicant at the time when they instituted criminal proceedings against him or arrested him. Moreover, the Court cannot overlook the fact that the charges against the applicant specifically referred to the grants received by him since May 2013 (see paragraph 14 above), which were awarded for the purposes of financing the monitoring of the presidential election of October 2013. The Court has also found that there was no evidence and it was not claimed by the donors that the grants in question had been used for any other purpose than the monitoring of the presidential election of October 2013 (see paragraph 61 above).

Nor can the Court accept the Government's assertion that the accusations against the applicant could not be politically motivated because he had not been an opposition leader or a public official. It is undisputed that the applicant was a well-known civil society activist and the Chairman of the main non-governmental organisation specialising in the monitoring of elections in the country.

The totality of the above-mentioned facts and circumstances indicates that the actual purpose of the impugned measures was to silence and punish the applicant as a civil society activist for his activities in the area of electoral monitoring. In the light of these considerations, the Court finds that the restriction of the applicant's liberty was imposed for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence, as prescribed by Article 5 § 1 (c) of the Convention.

The Court considers this a sufficient basis for finding a violation of Article 18 of the Convention, taken in conjunction with Article 5.