SADIGOV proti Ázerbajdžánu

FIFTH SECTION

DECISION

Application no. 24668/15
Yadigar Sadig oglu SADIGOV
against Azerbaijan

The European Court of Human Rights (Fifth Section), sitting on 3 December 2020 as a Committee composed of:

Lado Chanturia, President,
Latif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Yadigar Sadig oglu Sadigov (Yadigar Sadıq oğlu Sadıqov – “the applicant”), on 14 May 2015,

Having regard to the decision to give notice of the complaints under Article 3 of the Convention to the Azerbaijani Government (“the Government”) and to declare the remainder of the application inadmissible,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

INTRODUCTION

1. The application concerns a complaint under Article 3 of the Convention in connection with the applicant’s placement in a metal cage during his trial.

THE FACTS

2. The applicant was born in 1968 and lives in Lankaran. He was represented by Mr K. Bagirov, a lawyer based in Azerbaijan.

3. The Government were represented by their Agent, Mr. Ç. Əsgərov.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. The applicant was an active member of the Musavat Party in Lankaran. He also worked as a deputy to the Chairman of the Musavat Party.

6. On 25 June 2013, while the applicant was at a tea house with his friends in Lankaran, a certain R.S. approached him and began insulting the opposition. According to the applicant, he realised that it was an act of provocation and he left the tea house without having a dispute with that person.

7. On 27 June 2013 police officers came to the applicant’s home and took him to the police office.

8. On the same day a record of the applicant’s arrest as a suspect was compiled by the police.

9. On 29 June 2013 the applicant was charged under Article 221.3 (hooliganism) of the Criminal Code. In particular, he was accused of beating and insulting R.S. on 25 June 2013 in front of a tea house in Lankaran.

10. On the same day the Lankaran District Court, relying on the official charge brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody, ordered the applicant’s detention pending trial.

11. On 22 October 2013 the case was sent for trial to the Lankaran District Court, which on 5 November 2013 held a preliminary hearing.

12. The trial commenced on 12 November 2013 and the applicant’s lawyer requested that the applicant be removed from the metal cage in the court room and be seated near him. The applicant himself asked the court to reject his lawyer’s request, stating that despite having been placed in the metal cage, he felt himself to be more independent there. After hearing the other parties’ observations, the court rejected the request in question.

13. On 13 January 2014 the Lankaran District Court convicted the applicant as charged and sentenced him to six years’ imprisonment.

14. The applicant lodged an appeal before the Shirvan Court of Appeal, arguing, inter alia, that the first-instance court had subjected him to degrading treatment by placing him in a metal cage during the trial.

15. On 22 July 2014 the Shirvan Court of Appeal upheld the appeal in part and amended the Lankaran District Court’s judgment. It reduced the sentence imposed on the applicant to four years’ imprisonment. The appellate court did not examine the applicant’s complaint concerning his placement in a metal cage.

16. On 26 September 2014 the applicant lodged a cassation appeal against that decision, essentially reiterating the arguments which he had made before the Shirvan Court of Appeal.

17. On 13 January 2015 the Supreme Court partially upheld the appeal and amended the Shirvan Court of Appeal’s judgment by reducing the sentence imposed on the applicant to three years and six months’ imprisonment. The Supreme Court dismissed the applicant’s complaint concerning his placement in a metal cage during the trial.

THE LAW

18. The applicant complained that his confinement in a metal cage in the courtroom during his trial before the first-instance court had amounted to degrading treatment prohibited by Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

19. The Government submitted that the applicant’s submission before the trial court, asking the court to reject his lawyer’s request concerning his removal from the metal cage, had constituted a valid waiver of his right.

20. The applicant submitted that, as he had been placed in a cage in the presence of the same judge who had previously delivered the decision concerning his pre-trial detention, he had thought that the outcome of his case had already been decided. It was for this reason that he had stated before the trial court that he did not want to be removed from the cage, as he had felt himself to be more independent inside the cage than outside it.

21. The Court finds that it is not necessary to examine the objection raised by the Government since the applicant’s complaint is in any event inadmissible for the following reasons.

22. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where the alleged violation constitutes a continuing situation against which no domestic remedy is available, the six-month period starts to run from the end of the continuing situation (see Ülke v. Turkey (dec.), no. 39437/98, 1 June 2004). The Court has previously found that where applicants are routinely confined in a metal cage in the courtroom throughout the examination of their case, this created a “continuing situation” which brought the entire period complained of within the Court’s competence (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 86, ECHR 2014 (extracts)).

23. The Court also notes that the Azerbaijani legislation lacks domestic remedies which were capable of preventing the alleged violation or its continuation or which provided adequate redress in situations where defendants were placed in a metal cage when they appeared before a court in criminal proceedings. Nor did the existing practice provide for a specific procedure to be followed by a person who wished to be released from a cage (see Natig Jafarov v. Azerbaijan, no. 64581/16, § 33, 7 November 2019).

24. In the present case the Court notes that the alleged ill-treatment complained of by the applicant, namely his placement in a metal cage in a courtroom, took place during the trial which finished on 13 January 2014, and that the applicant did not allege that this treatment had continued during the proceedings before the Shirvan Court of Appeal and the Supreme Court. Although the applicant complained before the appellate and cassation courts that his confinement in a metal cage at the hearings before the first-instance court had amounted to degrading treatment, the Court notes that the higher courts were not capable of providing redress in relation to the courtroom arrangements at the first‑instance trial (see Yaroslav Belousov v. Russia, nos. 2653/13 and 60980/14, § 114, 4 October 2016). It follows that in the absence of any effective domestic remedy against the alleged violation of the Convention complained of in the present application, the starting date for the running of the six-month period was 13 January 2014 (see Svinarenko and Slyadnev, cited above, § 87). However, the applicant lodged his application with the Court on 14 May 2015, therefore, it does not comply with the six-month rule.

25. Accordingly, the application has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 January 2021.

Martina Keller Lado Chanturia
Deputy Registrar President