Preliminary objection dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 6-1 and 6-3-b;Violation of Art. 6-1 and 6-3-c;Violation of Art. 6-1 and 6-3-d;Violation of Art. 6-2;Non-pecuniary damage - award

Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE .

The first applicant , Mr Panah Huseyn ( also sometimes referred to as PERSON ) , was a prominent member of ORG . The second applicant , Mr PERSON ( commonly known as PERSON ) , was a prominent member of ORG and the editor - in - chief of the opposition - oriented newspaper PERSON . The third applicant , Mr PERSON , was a deputy chairman of ORG . The fourth applicant , Mr PERSON ( commonly known as PERSON ) , was a deputy chairman of ORG .

The respective political forces with which the applicants were affiliated were founders of the election coalition PERSON , formed with the aim of supporting the main opposition candidate , PERSON , the chairman of ORG , in the presidential elections of DATE .

Mr PERSON lost the elections of DATE .

On TIME of DATE a group of opposition supporters gathered in front of ORG headquarters in the centre of GPE , claiming victory for their candidate in the election . At that time there were some violent altercations between opposition supporters and the security forces .

At TIME on DATE a number of opposition supporters started gathering near ORG , in the centre of GPE , to protest against the election results . The crowd then started moving towards FAC , the main square in the city . It was reported that , on the way , some people in the crowd began damaging cars , buildings , benches and other urban constructions . It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence .

It has been claimed that some police officers who had been deployed at FAC were attacked by some of the demonstrators . Shortly thereafter large numbers of riot police and military personnel , fully equipped with helmets , shields and truncheons , arrived in the square with the aim of dispersing the demonstration . The situation quickly escalated into public disorder and violent clashes occurred between the crowd and the police . It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question .

The applicants , among other persons , were considered by the ORG authorities to be the organisers of the demonstration . At TIME all of the applicants , except PERSON , had appeared on a tribune in FAC . Mr PERSON gave a speech to the people gathered in the square , while the CARDINAL other applicants did not . PERSON was in the headquarters of his political party at that time and , according to his own statements , was unable to go to FAC ( although he wished to do so ) , because the exits from the headquarters were reportedly blocked by State security forces .

At TIME the demonstration was completely dispersed . CARDINAL people were arrested during the events of DATE and in their aftermath .

On DATE ORG instituted criminal proceedings ( case no . CARDINAL ) concerning the events of CARDINAL and QUANTITY DATE . CARDINAL persons arrested in connection with those events were eventually prosecuted in the context of those proceedings . The proceedings concerned only the actions of the organisers of the demonstration and those participating in it , and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration ( see Muradova v. GPE , no . CARDINAL , § § CARDINAL and CARDINAL , DATE ) .

In the context of the above - mentioned criminal proceedings , on the dates specified below all of the applicants were arrested and charged with criminal offences .

The first applicant , Mr PERSON , was arrested at his home on DATE by a number of police officers of ORG of ORG ( “ the ORG ” ) . He was taken to the ORG ’s detention facility .

According to the second applicant , Mr PERSON , on DATE several police officers in plain clothes unsuccessfully attempted to arrest him . Thereafter , in order to avoid being arrested , the applicant sought refuge in ORG until DATE . He left the ORG after he received assurances from the police that he would not be arrested . However , on DATE he was arrested and taken to ORG no . CARDINAL .

As for the third applicant , Mr PERSON , on DATE ORG remanded him in custody , on the basis of a request by ORG . The applicant was not present personally and was not represented at that hearing . On DATE he was arrested pursuant to the detention order .

The fourth applicant , Mr PERSON , was arrested at his home on DATE and taken to the ORG ( see ORG v. GPE , no . CARDINAL , LAW DATE , CARDINAL DATE , for a more detailed description of the circumstances of the fourth applicant ’s arrest and detention ) .

Following their arrests , the first , third and fourth applicants were not given immediate access to a lawyer ( see section B.CARDINAL below ) .

All of the applicants were formally charged with offences of “ organising public disorder ” and “ use of violence against ORG officials ” under ORG CARDINAL , CARDINAL and CARDINAL of LAW . On the basis of relevant requests by ORG , all of them were remanded in custody pursuant to a court order , with their detention subsequently being extended until the trial .

The first applicant was kept in the ORG ’s detention facility until DATE . Thereafter , he was transferred to another detention facility . According to him , during DATE of his detention in the ORG he was repeatedly ill - treated . He was also informed that several of his relatives , including his brother , had been detained . He was not allowed access to a lawyer until DATE ( see below ) . After his transfer to another detention facility , for an unspecified period of time he was kept in solitary confinement and was not allowed to possess writing accessories , books , a radio or newspapers .

In DATE the first applicant , together with several other detained persons ( none of whom are applicants in the present case ) , lodged a complaint with ORG , alleging that they had been ill - treated during DATE of their detention and seeking to have criminal proceedings opened against the perpetrators . On DATE their complaint was rejected as unsubstantiated . In particular , in respect of the first applicant , it was noted that he had not made any allegations of ill - treatment in the immediate aftermath of his initial questioning , that the various allegations he had made at different times had been inconsistent , and that , when given the opportunity to undergo an examination by a forensic expert , he had refused to do so , stating that there were no injuries on his person . It was concluded that no evidence of illtreatment had been produced .

During the trial proceedings ( described in section C. below ) , the first applicant complained before the trial court that he had been tortured in the ORG . Responding to a number of specific questions put to him in connection with his allegations , he mentioned that he had been handcuffed and punched in his chest and kidneys and that it had been hinted to him that his son would be ill - treated , but he expressly refused to provide any further details of the alleged torture , stating generally that he had “ never seen such cruelty ” . He also refused to mention any names of the alleged perpetrators because “ they were not important people ” , and instead accused the President , the Minister of ORG and the Head of ORG of “ making orders ” to ill - treat him . He also mentioned that , from what he had heard , many other people had also been ill - treated . It appears that the trial court dismissed his complaints of ill - treatment as unsubstantiated .

According to the second applicant , during the first DATE of his detention in ORG no . CARDINAL , he was held in a single cell and was not given access to writing materials , books , newspapers or a radio .

The fourth applicant ’s ill - treatment was the subject of an earlier case examined by ORG ( see ORG , cited above ) .

NORP Throughout the period from the beginning of the criminal proceedings until DATE , the investigation into the accusations against the applicants , as well as other accused persons , was carried out within the framework of criminal case no . DATE .

On DATE the head of the investigation team issued a decision severing a new criminal case ( no . CARDINAL ) from criminal case no . CARDINAL . The new case concerned CARDINAL accused persons in total , including the CARDINAL applicants and PERSON , PERSON and PERSON PERSON . The following reasons were given for the decision :

“ The investigation has gathered sufficient evidence to prove the named persons guilty of having committed the offences with which they are charged . The criminal prosecution in respect of the other accused persons is continuing ...

The especially large volume of material in the case file and the large number of incidents comprising the case would make it necessary to prolong the pre - trial investigation and pre - trial detention . This would create difficulties in ensuring the rights and lawful interests of the accused persons in respect of whom sufficient evidence has been obtained and , at the same time , would result in an unacceptable delay in referring the case to the trial court .

Accordingly ... it is appropriate to sever a new criminal case from criminal case no . DATE ... , to complete the pre - trial investigation in respect of the severed case and to refer it to the trial court . ”

It appears that the pre - trial investigation in respect of criminal case no . DATE was formally declared completed on DATE , DATE .

Below is the information on the legal assistance received by the applicants , the lawyers who represented them , and the circumstances in which they were given access to the investigation file after completion of the pre - trial investigation and before the trial proceedings , inasmuch as this can be discerned from the material available in the case file .

Following his arrest on DATE , the first applicant , PERSON Huseyn , was not allowed access to a lawyer until DATE . From that date on , he was represented by PERSON .

Following the completion of the pre - trial investigation on DATE , the applicant and his lawyer , PERSON , were given access to the prosecution ’s case file and on DATE and DATE , respectively , they signed a record on familiarisation with the material in the case file . According to the applicant , his lawyer was granted access to the entire case file for only one working day .

Subsequently , starting from an unspecified date during the trial , Mr ORG was also represented by another lawyer , PERSON .

After his arrest , the second applicant , PERSON , was represented by a ORG - appointed lawyer . The lawyer was subsequently replaced by CARDINAL lawyers whom the applicant retained in DATE and DATE . CARDINAL of these lawyers was PERSON .

It appears that , following the termination of the pre - trial investigation , PERSON was given access to the case file and signed a record on familiarisation with the material in the file , dated DATE . Mr ORG himself was also given access to the case file . According to him , he was given TIME to study the file , which was insufficient to become fully familiar with all the evidence , consisting of CARDINAL volumes of documents ( amounting to CARDINAL pages ) and CARDINAL video cassettes ( each containing about TIME of video material ) .

On DATE , at CARDINAL of the preliminary hearings in ORG , which had commenced on DATE ( see paragraph CARDINAL below ) , Mr ORG lodged an application refusing the services of all CARDINAL lawyers representing him on the ground that these lawyers had not been able to defend him adequately . He requested leave to defend himself in person but , according to the Government , subsequently asked for a new lawyer . On DATE ORG accepted the application and decided that the applicant should be provided with a new ORG - appointed lawyer . The lawyer , PERSON , was appointed at DATE around DATE . During the trial , another lawyer , PERSON , was retained by the applicant .

Following his arrest on DATE , the third applicant , PERSON PERSON , was not allowed access to a lawyer until DATE . From this date on , it appears that he was represented by a number of lawyers throughout the proceedings .

Following the completion of the pre - trial investigation on DATE , the applicant and several of his lawyers ( Mr PERSON , Mr N. GPE , Mr PERSON and Mr O. Kazimov ) were given access to the prosecution ’s case file . On DATE the applicant , and on CARDINAL , DATE and DATE each of the lawyers , signed a separate record on familiarisation with the material in the case file .

Mr PERSON was appointed as Mr Mammadov ’s lawyer on DATE .

On DATE Mr PERSON complained to ORG , by telegram , that he had not been allowed to meet the applicant . Eventually , he was able to meet the applicant for the first time on DATE .

There is no information in the case file as to whether Mr ORG or the applicant were given access to the prosecution ’s case file following the completion of the pre - trial investigation .

As noted above , CARDINAL persons were prosecuted , in the framework of criminal case no . DATE , for their involvement in the events of CARDINAL and DATE . Subsequently , this case was split , dividing the accused persons into CARDINAL separate groups ( CARDINAL of which groups comprised the newly severed criminal case no . DATE concerning the applicants ) , and each group was tried separately . The first CARDINAL trials concerned the cases of those who were accused of participating in mass disorder and use of violence against officials . All those trials were conducted by either ORG or ORG and were completed in DATE and DATE . All the defendants in those trials were found guilty and were sentenced to either imprisonment , suspended periods of imprisonment or restriction of liberty .

DATE and last trial in criminal case no . CARDINAL concerned the persons who were accused of organising the mass disorder , including the CARDINAL applicants in the present case . This trial took place after the first CARDINAL trials .

The trial was conducted by ORG . It commenced with several preliminary hearings , the first of which took place on DATE . The CARDINAL - judge panel hearing the case was composed of Judges PERSON ( presiding ) , PERSON and PERSON .

During a preliminary hearing on CARDINAL DATE , the applicants’ lawyers complained to ORG about an alleged danger to their personal safety , notifying the court about an incident which had taken place after the preliminary hearing of DATE . According to the lawyers , CARDINAL of them had been harassed and assaulted by a number of police officers outside the courthouse when they were giving an interview to a television journalist . To support this allegation , CARDINAL of the lawyers produced some items of clothing damaged during the altercation and photographs depicting the incident . They characterised the alleged incident as a form of undue pressure put on them by the authorities and asked the court to take measures to ensure their personal safety . The presiding judge replied that the court could not be concerned with any incidents taking place outside its courtroom and that the lawyers should use the relevant avenues of redress if they wished to complain about any alleged harassment outside the court hearings . The court nevertheless decided to notify “ the relevant authorities ” about the ORG allegation . However , from the material available in the case file , it is unclear which specific steps were taken by the court in this regard .

Furthermore , the first applicant , PERSON , lodged an application objecting to the participation in the trial of one of ORG judges , Judge PERSON , noting that the judge ’s son worked at ORG and was subordinate to the head of the investigation team dealing with his case . The other defendants joined the application . On DATE ORG rejected the application , finding that , although Judge PERSON ’s son indeed worked at ORG , he had never been personally involved in the applicants’ case .

Subsequently , the first applicant , joined by other defendants , also objected to the participation in the trial of Judge PERSON . They pointed out that Judge PERSON was the brother of PERSON N. GPE , an investigator from ORG who , during the period from DATE to DATE , had been a member of the investigation team dealing with the applicants’ case . The first applicant argued that , owing to Judge PERSON ’s brother ’s direct involvement in the case , he would not be able to hear the case as an impartial judge . On DATE ORG rejected that application , noting that Mr PERSON had indeed been one of the CARDINAL members of the investigation team working on criminal case no . DATE . However , he had been removed from the team on DATE . Subsequently , after the new case no . DATE ( concerning the applicants ) had been severed from case no . CARDINAL , Mr N. GPE had not been included in the investigation team dealing with this new case . For these reasons , ORG concluded that claims concerning the lack of impartiality of Judge PERSON could not be objectively justified .

NORP Throughout the trial in ORG , the applicants lodged a number of other applications . According to them , the court ’s interim decisions rejecting those applications were either not given to them or were made available to them only after significant delays . Moreover , the applicants requested permission to verify the transcripts of court hearings after each hearing in order to be able to comment on alleged irregularities and “ falsifications ” contained in them . However , they were given access to the transcripts only at the very end of the trial .

DATE . During the course of the trial , ORG examined large volumes of testimonial evidence , as well as video recordings and other materials . Below is a brief summary of the evidence heard and the manner in which it was ultimately assessed in ORG judgment .

The majority of prosecution witnesses were police officers deployed at FAC on DATE . The investigation also produced records of pre - trial questioning of some of the persons who had been convicted at earlier trials in connection with the events of CARDINAL and DATE , and a number of other civilian witnesses .

It appears that the absolute majority of prosecution witnesses were called to merely provide a general description of the events of CARDINAL and DATE in order to establish the fact of public disorder . Their testimonies were aimed at showing that the demonstrators had collected clubs , stones and other objects from the headquarters of ORG and other opposition parties , that they had used these objects as weapons against the police and military forces and that they had damaged a variety of public and private property . These witness testimonies did not directly mention the applicants as either organisers of or participants in those violent actions . In addition , the prosecution produced some expert evaluations of various forms of damage to private and public property .

As to the applicants’ specific role in the events of DATE , in order to establish that they had directed and incited the NORP violent actions , the prosecution produced pre - trial depositions of several police officers who had specifically described , inter alia , how they had seen the applicants arriving at FAC on DATE , publicly proclaiming the election victory of PERSON and inciting the demonstrators to violence from the tribune in the square .

Prior to the scheduled examination of these witnesses , on DATE the first applicant , joined by all the other defendants , complained that the pre - trial depositions of some of those witnesses had been identical word for word and asked for this evidence to be excluded . He pointed out that , according to the relevant records , some of these depositions had been taken by the same investigator at the same time on DATE . He argued that this was either physically impossible or in breach of LAW , which required that witnesses be questioned separately , and that , in either case , this evidence should not be admitted . It is not clear whether the ORG ever gave any decision concerning this objection , but it admitted the relevant depositions as evidence .

At the trial hearings , each of the police officers concerned testified separately and was cross - examined by the applicants and their lawyers . In particular , police officer ORG stated , inter alia , that when the public disturbance had started at FAC , some of the defendants , including the second and third applicants , had been inciting the crowd to violence and making such declarations as “ PERSON [ PERSON ] has been elected President , we are now in power , do not be afraid of anyone , soon we will overtake the entire city , resist anyone who confronts you ... ” .

From the record of the court hearings , it appears that , during the cross - examination , the defence were able to reveal a number of alleged inconsistencies between the accounts given by ORG during the hearing and in his pre - trial deposition ( concerning such specific details of his testimony as , for example , whether he had actually seen any of the defendants appear on the tribune or not , or whether any of the defendants had actually used any phrases such as “ Beat the police ! ” ) . The defence read out ORG ’s pretrial deposition at the hearing with the aim of pointing out these alleged inconsistencies . Likewise , according to the defence , cross - examination of most of the other witnesses of this type revealed alleged inconsistencies between their statements at the trial and in their pre - trial depositions . As appears from the transcript of the trial hearings , when confronted with these alleged inconsistencies , some of the witnesses stated that their pre - trial statements had not been properly recorded , while others reverted back to their pre - trial statements and retracted any inconsistent statements which they had made during the hearing prior to cross - examination .

It appears from the transcript of the court hearings that CARDINAL witnesses of this type were heard . In its judgment of CARDINAL DATE ORG separately summarised the testimonies of CARDINAL of those witnesses and relied on them as proving the applicants’ guilt . The judgment addressed neither the objections raised by the applicants as to the admissibility of these witness testimonies , nor any objections concerning the inconsistencies allegedly revealed in their testimonies during crossexamination by the defence .

The prosecution also relied on testimony obtained during pre - trial questioning from a number of other persons convicted in connection with the events of CARDINAL and DATE . These persons had already been convicted at first - instance trials conducted by ORG in DATE . Inasmuch as this can be discerned from ORG judgment of DATE in the applicants’ case , the court relied on testimonies of CARDINAL witnesses of this type .

According to the records produced by the prosecution , in the course of questioning as accused persons at the pre - trial investigation stage of criminal case no . DATE , these persons had described , in various degrees of detail , that they had witnessed the applicants at FAC inciting the demonstrators to violent resistance during the events of DATE .

During the trial hearings , these witnesses were called to be questioned about their pre - trial statements . According to the relevant trial transcripts and ORG judgment of DATE , having taken to the witness stand at the oral hearings , CARDINAL of these witnesses openly retracted their pre - trial statements against the applicants , noting that they had been forced to make those statements under torture , ill - treatment and other forms of duress applied to them during their pre - trial detention .

NORP In reply to these allegations , ORG noted that the ORG complaints of ill - treatment had been addressed at their own respective trials and had been found to be unsubstantiated . The court found that , since these ORG statements had already been relied on as sound evidence at those trials , the assessment of this evidence was a “ res judicata matter ” . In such circumstances , the court decided to accept these ORG pre - trial statements as good evidence , and refused to attach weight to the fact that the witnesses had subsequently retracted them at their own trials and at the ORG trial .

The prosecution also submitted depositions of several other civilian witnesses who had not been convicted in connection with the events of DATE . According to the records produced by the prosecution , during the pre - trial investigation these witnesses had made statements similar to those made by the witnesses mentioned above . However , again , during the questioning at the public hearing , CARDINAL of those witnesses retracted their earlier statements and claimed that they had been forced to make them under threat of ill - treatment or by means of actual ill - treatment .

According to the trial transcript , witness ORG noted that he had been detained for a period of DATE after the events of DATE and , during that time , had been coerced into giving false testimony against the defendants ( mostly against the second applicant ) . He noted that he had been threatened with prosecution and imprisonment for participating in the events of DATE , had been refused any water during his questioning and had otherwise been intimidated with the purpose of making him sign a pre - printed witness statement prepared by an investigator .

In order to assess the allegations of ill - treatment made by these witnesses , ORG heard evidence from investigators and police officers who had questioned them . They stated that they had not ill - treated these witnesses during pre - trial questioning . Furthermore , the court noted that the ORG pre - trial statements were corroborated by other evidence . On that basis , the court found that the allegations of ill - treatment were unfounded and that , therefore , the statements contained in the pre - trial depositions of these witnesses should be accepted and relied on as evidence incriminating the applicants .

ORG partially granted the ORG requests to obtain the attendance of witnesses prepared to testify on their behalf . From the judgment , it appears that CARDINAL such witnesses testified . Most of these witnesses were the applicants’ political companions or other persons affiliated with their political parties .

In its judgment , ORG summarised all of these ORG testimonies noting that all of them denied that the applicants had carried out the specific acts attributed to them , such as planning any violent actions in advance , verbally inciting the crowd to violence or organising the distribution of clubs and stones to demonstrators . It further noted that the witnesses had insisted that , on the contrary , the police had used excessive violence against the demonstrators and that , in their speeches , the applicants had called the demonstrators to refrain from attacking the police and responding to any provocation .

ORG then went on to dismiss these testimonies as unreliable , using the following reasoning :

“ Having examined the testimonies of these witnesses heard at the request of [ the defendants ] , the court established that , as indicated above , these persons were members or employees of the [ political ] parties headed by the defendants and , as they worked with [ the defendants ] , they were persons subordinate to and associated with [ the defendants ] . Some of their statements were even contradictory . In particular , while replying to the questions , [ GPE ] stated , on the one hand , that the people speaking from the tribune had not been inciting people to violence and , on the other hand , that he had not heard the speeches as he had been standing QUANTITY away from the tribune and had not been able to even see who had been speaking . [ GPE ] stated that she had been at the square by herself , while [ ORG ] stated that [ GPE ] had been there with him .

Moreover , the circumstances described by them have been refuted by the above - mentioned comprehensive , reliable and mutually corroborative evidence consisting of testimonies of victims and witnesses , video recordings , material evidence and court judgments in force . Therefore , the court considers that [ the defence witnesses’ ] testimonies are groundless . ”

In addition , a number of videos depicting the events of DATE were viewed during the court hearings .

DATE . The videos submitted by the prosecution were intended to show the allegedly violent actions of the demonstrators . Some of the images seen on the videos contradicted the testimonies of certain prosecution witnesses . Some of the defendants’ lawyers ( for example , PERSON ) claimed that they had seen the video evidence for the first time at the court hearings , as it had not been made available to them by the prosecution before the trial , and that they had therefore been unprepared for the examination of this evidence .

It appears that , following an application by the defence , ORG also admitted additional video evidence submitted by the defence , which was intended to demonstrate the allegedly excessive use of force by the police and military while suppressing the demonstration .

Assessing the video evidence , ORG noted that the video depicted the violent actions of the demonstrators as well as the distribution to them of bludgeons , stones and other “ weapons ” in an organised manner .

On DATE ORG announced that the presentation of evidence was complete and that it would proceed to hear the parties’ oral submissions , inviting the prosecution to make their closing address first . The prosecution asked for an adjournment until DATE to prepare their speech . On DATE the prosecution asked for another adjournment until DATE . The prosecution delivered their closing address during CARDINAL hearings on CARDINAL and DATE .

Following the prosecution ’s speech , on DATE the court invited the defendants to deliver their respective closing addresses . However , in response to this invitation , almost all of the applicants’ lawyers , taking the floor one after the other , refused to take part in the oral submissions and make a closing address for the defence , providing the court with the following explanations for their refusal .

The first applicant ’s lawyer , PERSON , speaking first , noted that , throughout the proceedings , he had not been given adequate time and facilities to prepare his client ’s defence . He had not been allowed to fully study the investigation file before the trial and had not been given access to some of the prosecution evidence , such as video recordings , in order to be able to adequately plan his defence tactics . He further noted that , during the proceedings , the defence lawyers had come under various forms of pressure and had even been physically assaulted when arriving at one of the preliminary hearings . He claimed that the lawyers had regularly received various threats from unspecified persons aimed at preventing them from adequately defending the applicants . Although the lawyers had repeatedly brought this matter to ORG attention , and had even specifically complained about the incident involving the physical assault on them , the court had failed to take any action and had ignored the difficulties faced by them . He further argued that , in reality , the outcome of the trial had been predetermined and politically motivated and that the trial itself was being held only as a show , since even before its conclusion the President had publicly declared that the applicants were criminals and would be punished . He stated that , in such circumstances , the lawyers themselves felt vulnerable and frightened . He stated that , for these reasons , he was unable to adequately defend his client and was therefore unable to submit an oral argument . He apologised to his clients , the first applicant and PERSON Ibrahimov , and noted that it would be best if the defendants were allowed to prepare and deliver the oral arguments themselves .

Mr Panahov , counsel for the first and second applicants , gave a similar explanation . He also noted that he was not able to provide effective assistance to his clients because , inter alia , he had never been given access to the investigation file . He claimed that after the completion of the pre - trial investigation the lawyers had been pressured into signing records on familiarisation with the material in the case file so that the case could be sent for trial quickly . Although he had specifically complained about this during the preliminary hearings , ORG had ignored this matter . Like PERSON , PERSON also noted that the lawyers were concerned for their personal safety , and that this affected their ability to provide adequate assistance to their clients .

Other lawyers concurred with everything stated by their colleagues and gave similar explanations for their refusal to give a closing address .

DATE . Following this , the first applicant spoke to the court , on behalf of himself and the other defendants , asking for permission to make their defence speeches in person . He noted that , following their ORG refusal to take part in the oral submissions , they were essentially left without any legal assistance . He requested the court to allow them sufficient time to prepare their closing addresses .

In response , Judge PERSON stated that the defendants would be allowed to exercise a right of reply ( replika ) . Judge PERSON noted that procedural law allowed a defendant to give a closing address in person only if he or she was unrepresented by counsel . Judge PERSON commented that counsel could not shirk their duty to defend their clients .

At the next hearing , on DATE , the first applicant , on behalf of himself and the other defendants , lodged a formal application in writing , requesting the court to allow them to make their defence speeches themselves .

The court rejected the application as groundless . It noted that the defence lawyers had provided effective and adequate legal assistance to their clients . It further noted that the lawyers had been given ample opportunity to consult the investigation file but had themselves failed to do so , that it was the ORG duty to participate in oral arguments , that they could not refuse to assist their clients at this stage of the proceedings , and that they had no good reason for shirking their duties .

It appears that only the fourth applicant ’s lawyers delivered a closing address on behalf of their client , despite the fact that the fourth applicant had joined the first applicant ’s request for permission to give the closing address in person .

ORG then proceeded to invite the parties to exercise their right of reply . The prosecution waived that right .

Prior to the defendants’ speeches in reply , the third applicant asked the court not to place any time - limits on them , taking into account the fact that no closing addresses had been delivered on their behalf during the oral submissions . The presiding judge noted that this would be taken into account .

Exercising his right of reply , the first applicant spoke for TIME . The presiding judge interrupted him CARDINAL times , reminding him that a reply should be brief ( no longer than TIME ) , and ultimately cut short his speech despite the applicant ’s protests .

Likewise , all the other applicants attempted to deliver long speeches while exercising their right of reply , but were interrupted and ultimately stopped by the presiding judge after TIME , on the ground that a reply should be brief .

Following this , the trial hearings ended after each of the defendants was allowed to speak CARDINAL more time , in order to make their final plea .

On DATE ORG convicted the applicants of organising public disorder ( Articles CARDINAL and CARDINAL of LAW ) and organising acts of violence against ORG officials ( ORG CARDINAL and CARDINAL of LAW ) .

The first and fourth applicants were each sentenced to DATE and CARDINAL months’ imprisonment . The second and third applicants were each sentenced to DATE imprisonment .

In DATE and DATE the applicants appealed to ORG against their conviction . In particular , in his appeal , the first applicant complained of , inter alia , breaches of his rights to an impartial tribunal , adequate time and facilities for preparation of his defence , effective representation , equality of arms and presumption of innocence . He also complained of errors by the trial court in the procedure for the admission and assessment of evidence . The second and fourth applicants made similar complaints in their appeals .

The third applicant ’s appeal was shorter than those of the other applicants and was phrased in more general language . Among other things , he complained of the following :

“ The conviction should be quashed as being illegal , unsubstantiated and unfair and I should be acquitted . In particular :

NORP The judicial examination was carried out in breach of my rights as an accused person .

NORP The judicial examination was carried out in breach of my lawyer ’s rights .

NORP The judicial examination was carried out in breach of my right to make a closing statement and in breach of my lawyer ’s right to make a closing statement .

The court has not examined all the relevant factual circumstances necessary for the conclusions reached .

The factual findings in the judgment have not been proven . ...

The grounds for my claims concerning the illegality , lack of substantiation and unfairness of the conviction will be presented by me at the [ appeal ] hearings . ”

All of the appeals were drafted by the applicants themselves in their own handwriting .

By a decision of CARDINAL DATE , delivered after a preliminary hearing , ORG granted the ORG request to hold a public hearing on the merits of their appeals , but rejected their requests to conduct a fresh “ judicial examination ” of the case by means of renewed crossexamination of the witnesses and defendants and admission of new evidence . It also decided to provide the applicants with ORG - appointed lawyers for appeal proceedings , appointing the same lawyers who had represented the applicants at first instance . The extent of the actual assistance provided by these lawyers during the appellate proceedings is not clear .

By a judgment of CARDINAL DATE ORG upheld ORG judgment . It reiterated the lower court ’s findings and rejected , in CARDINAL sentence , the complaints made by the applicants in their appeals as unsubstantiated .

The first applicant lodged a cassation appeal against that judgment . The cassation appeal consisted of CARDINAL pages and was drafted by the applicant himself in his own handwriting . The appeal was very detailed in respect of all the alleged defects in the proceedings before ORG and ORG . The other applicants also lodged cassation appeals , drafted by themselves in their own handwriting .

On DATE ORG upheld the lower courts’ judgments .

In DATE all of the applicants were released from serving the remainder of their prison sentences pursuant to a presidential pardon decree .

The applicants submitted a number of publications containing statements by high - ranking ORG officials and public authorities , which allegedly breached their presumption of innocence . Some of those statements are summarised below .

On DATE the Milli Majlis ( ORG ) adopted a resolution “ on Unconstitutional Actions of the Müsavat , PERSON and GPE NORP Parties , and ORG ” , denouncing the above - mentioned parties and holding them responsible for “ unlawful actions ” and mass disturbances resulting in loss of life and injuries inflicted on civilians and members of law - enforcement authorities , as well as for damage to public and private property . Among others , the resolution identified PERSON ( the leader of PERSON ) , ORG ( one of the defendants tried together with the applicants ) and “ a group of other members and supporters of the opposition ” as organisers of the above disturbances . The resolution was published in official newspapers .

On DATE the official newspaper PERSON published a report by the ORG - owned press agency AzerTAG concerning a press conference held by ORG on DATE . During this press conference , the Head of ORG conveyed the ORG ’s official position concerning the events of CARDINAL and DATE and informed the media that criminal proceedings had been instituted in this connection and that a number of persons had been arrested . Among other things , he stated as follows :

“ ... on CARDINAL and DATE the destructive opposition , at the direct instigation of the leaders of the PERSON , PERSON and GPE NORP Parties PERSON , PERSON , PERSON [ ORG ] , ORG and others , began committing pre - planned unlawful actions which resulted in mass disorder . ”

The same issue of the newspaper contained a declaration by the Head of ORG , denouncing the opposition . The following was stated :

“ On CARDINAL and DATE certain riotous anarchist and extreme reactionary groups , following direct orders by PERSON , ORG and PERSON [ ORG ] , committed terrible criminal acts in GPE . ...

... we are confident that ... the persons who committed crimes ... and oversaw these extreme reactionary acts will bear criminal responsibility and receive deserved punishment . Moreover , we are assured that the PERSON , PERSON and GPE NORP Parties , which organised these criminal actions , will be banned and that the leaders of those political entities ( PERSON , NORP ORG , PERSON , ORG ) will be held criminally liable . ”

On DATE PERSON published a declaration by the PERSON , in which she criticised the opposition and the actions of the demonstrators during the events of CARDINAL and DATE and called upon all compatriots to adhere to civil unity and peaceful behaviour . The declaration was silent about the alleged reports of excessive and repressive use of force by the law - enforcement authorities during or in the aftermath of the events of DATE and DATE .

On DATE PERSON published an almost fullpagelong “ Press statement by ORG and ORG of GPE concerning the events that took place in GPE on CARDINAL and DATE ” . The statement began with praise for the law - enforcement authorities’ success in combating crime in DATE and the ORG ’s progress in building a democratic ORG governed by the rule of law . It continued with words of disapproval about the “ radical opposition ” , which did not “ want to accept the positive developments and existing realities ” and was attempting to “ cast a shadow ” on the Government ’s successes and to disrupt stability in the country . It further continued :

“ The extremist circles of the opposition , having realised in advance that they would lose in the free and fair elections and having become fully assured of this during the voting conducted in a democratic and transparent manner , once again resorted to destructive actions . Leaders of the PERSON and NORP Parties PERSON and ORG , their supporters , and leaders of the ORG , including PERSON , who is under an international search warrant for the crimes committed by him , and ORG [ ORG ] , as well as other members of that party , have particularly distinguished themselves in this undertaking .

It must be noted that , starting from DATE , for the purpose of participating in the mass disturbances planned by the [ above - mentioned ] persons , active members of those parties as well as persons predisposed to crime were brought to [ GPE ] , and money was distributed to some of them in exchange [ for their participation ] .

[ The narration continues with a description of the opposition demonstration held on DATE , where claims of election irregularities and unfairness were first voiced . ]

The false accusations and lies deliberately disseminated by the above - mentioned party leaders after the election , as well as their call to [ demonstrators ] to commit illegal actions , provided an impetus for further actions resulting in a grave breach of public order in the capital . ... ”

NORP The statement continued with a detailed description of the events of CARDINAL and DATE and with a flat denial of any allegations of excessive and repressive use of force by the police during the dispersal of the demonstration , as well as any allegations of torture and ill - treatment of arrested persons . It also stated that only a small number of arrested persons , consisting of the main organisers and perpetrators of the illegal actions referred to , had eventually been prosecuted .

On DATE PERSON published an article by the Deputy Minister of ORG , entitled “ Stability and tranquility in GPE will be protected , the rule of law will be firmly respected ” . Almost the entire article consisted of condemnation and harsh criticism of the political opposition ’s actions during the events of CARDINAL and DATE . The author repeatedly used such descriptions as “ criminal ” , “ reactionary ” , “ destructive ” , “ radical ” and “ violent ” with reference to the opposition in general , and in particular to ORG and its leader PERSON . The author expressly stated that ORG , its leaders and other opposition forces supporting them had engaged in “ actions of criminal character ” , had openly declared their intention to capture ORG power by unlawful means , had distributed bludgeons to their supporters and had ordered them to engage in violent actions and vandalism and to disrupt the stability of the country . Within the above account , the article contained the following statements :

“ ... PERSON Huseyn[ov ] ... threatened bloodshed , and attempted to create a situation of mass psychosis . Not only PERSON Huseyn[ov ] engaged in such subversive action . While delirious ideas of ‘ ripening a revolutionary situation’ came from PERSON and PERSON , they were conveyed to society by the likes of ORG [ ORG ] , ORG , PERSON , PERSON ] , PERSON [ ORG ] and PERSON . ”

On DATE , before ORG judgment in the ORG case was delivered , the official newspaper ORG published a long interview given by the President to ORG . Among a wide range of other issues discussed during the interview , the President also made the following statement :

“ The attempt of the opposition to change the election results by means of violence was a criminal act . I stress again that the detained persons who are referred to as the opposition are being tried not for being members of the opposition , but for having committed unlawful acts . ”

The relevant provisions of LAW ( “ the CCrP ” ) provided as follows :

“ CARDINAL . In the circumstances provided for in ORG CARDINAL , CARDINAL and CARDINAL of this Code that preclude the participation in criminal proceedings of a judge , juror , prosecutor , investigator , preliminary investigator , defence counsel , victim ( private prosecutor ) , civil claimant , civil defendant , representative of a witness or a witness , court clerk , interpreter , specialist or expert , they shall request to withdraw . ”

“ CARDINAL . An objection to a judge ( or judicial formation ) must state reasons . If an objection is not supported by specific reasons , it shall be left unexamined by the court . An objection to a judge may be considered justified and be granted unconditionally if there exists CARDINAL of the following grounds precluding a person ’s participation in the criminal proceedings as a judge :

if the judge has any relationship of kinship or other dependence with any participant in the criminal proceedings or with a representative or counsel of such participant ;

In any of the cases covered by LAW , the judge shall disqualify himself or herself . ”

“ CARDINAL . Upon completion of the judicial examination , the presiding judge shall announce the beginning of the oral arguments .

If any of the participants in the oral arguments requests time for preparation of the arguments , the presiding judge shall announce an adjournment and specify its duration . ”

“ CARDINAL . The oral arguments shall consist of speeches made successively by the public prosecutor , the victim ( or private prosecutor ) or his or her representative , the civil claimant or his or her representative , the accused ( only if there is no defence counsel participating in the proceedings ) or his or her defence counsel , and the civil defendant or his or her representative .

In their oral arguments , the parties may not refer to evidence which has not been examined during the judicial examination of the case . If the party needs new evidence in order to justify a conclusion reached [ in its closing address ] , it shall submit an application to reopen the judicial examination , indicating which facts require additional investigation and on the basis of what evidence . ...

The court may not set a time - limit on the oral arguments , however the presiding judge may interrupt a party delivering an oral argument if that party ’s submissions concern circumstances irrelevant to the criminal charge in question . ”

“ After the oral arguments of all participants in the proceedings have been submitted , the public prosecutor , the victim ( or private prosecutor ) , the accused and his or her defence counsel shall have the right to speak CARDINAL more time each in order to make brief objections or observations in response to the arguments put forward by the parties . ”

“ CARDINAL . Upon completion of the closing addresses and replies , the accused shall be allowed a final plea . No questions can be put to the accused during the final plea .

The court may not set a time - limit on the accused ’s final plea . The presiding judge may interrupt the accused if he or she refers to circumstances clearly irrelevant to the criminal charge in question .

If the accused , in his or her final plea , discloses new circumstances which are significant for the comprehensive , thorough and objective determination of the criminal charge by the court , the court shall reopen the judicial examination . ”

Under LAW CCrP , the finding of a violation of the provisions of LAW by ORG is a ground for reopening the proceedings . Pursuant to LAW , in this case , the Plenum of the ORG examines the case exclusively on points of law . After the examination of the case , the Plenum of ORG may decide to quash the lower ORG rulings and remit the case to the relevant lower court , or to vary the decision of the courts of cassation or other courts , or to quash the decision of the courts of cassation or other courts and deliver a new decision ( LAW CCrP ) .

The following are the relevant extracts from the report by ORG ) , on ORG in GPE DATE ( “ the OSCE Report ” ) :

“ CARDINAL . SUMMARY OF POST - ELECTION DEVELOPMENTS

Post - election violence

... In the immediate aftermath of the elections , demonstrations took place on CARDINAL and DATE , which resulted in violent clashes between security forces and demonstrators in GPE .

On TIME CARDINAL DATE in front of ORG , members of the OSCE / ODIHR Election Observation Mission witnessed police attacking peaceful pro - opposition supporters . On DATE , CARDINAL demonstrators and pro - opposition supporters gathered in FAC in the centre of GPE to protest what they considered to have been a stolen election . On their way to the square demonstrators were witnessed vandalizing buildings and vehicles , and attacking police forces with metal bars and stones . At the square , demonstrators were rapidly surrounded by police and security forces , which used overwhelming force to disperse the crowd . Security forces were witnessed beating demonstrators with truncheons after they had been detained and no longer posed any danger or as they were fleeing the area . Video tape recordings provide evidence of the scale of excessive force and brutality used by government forces to overwhelm the demonstrators .

The violence was followed by a wave of detentions . According to officials , the detainees were persons involved in the violent activities or responsible for organizing the violence . However , the detentions took place in all parts of the country and included many individuals with no clear connection to the violence . The Minister of Interior reported that CARDINAL persons were detained following the violent clashes . ...

Administrative and criminal charges

The majority of the people detained in connection with the elections were later released without charge . In total , CARDINAL persons were charged with criminal offences in connection with the post - election clashes , of whom CARDINAL had been brought to trial at the time this report was prepared .

Among the people charged with criminal offences were several prominent members of the opposition including [ among others , PERSON , PERSON , PERSON and PERSON ] ...

At the time of the writing of this report , the OSCE / ORG was unaware of any cases of charges having been brought against police officers or other officials for brutality or excessive use of force against demonstrators .

AIM AND NORP

The cases of all CARDINAL persons tried in connection with the post - election violence were monitored under the OSCE Trial Monitoring Programme . ...

OSCE - trained trial monitors observed all first instance hearings and CARDINAL appeals . The PERSON - trained trial monitors participated in CARDINAL training sessions on national and international fair trial standards and trial monitoring techniques in DATE and DATE . In addition , an international expert , PERSON , ORG , Judge ( GPE ) , observed the final set of trials , which began on DATE The information contained in this report stems mainly from the direct observations of the trial monitors and the international expert . However , the information on arrest and the pre - trial period is based upon submissions made in court by the defendants and defence counsel and interviews with defendants and defence counsel . In the case of ORG CARDINAL , a detailed questionnaire was prepared by the international expert and completed by defence counsel .

BASIC INFORMATION ON THE POST - ELECTION CASES

... The cases of the CARDINAL persons that were brought to trial were heard in CARDINAL groups . For the purpose of this report they are referred to as Trial Groups DATE . ...

Trials concerning the events of DATE

The trials in the other ORG all concerned the events that took place on FAC on DATE and were all tried before ORG . The defendants in ORG DATE and CARDINAL - CARDINAL were charged with participating in mass disturbances , organization of , or active participation in , actions causing a breach of public order and resistance to , or acts of violence against , a State Agent .

The defendants in the final ORG , ORG CARDINAL , included the most prominent members of the opposition parties who were tried in connection with the post - election violence . Whereas the defendants in all the other ORG were charged with participating in mass disturbances , the defendants in ORG CARDINAL were charged with organizing mass disturbances . In addition , they were also charged with resistance to , or acts of violence against , a State Agent . ...

FINDINGS AND ANALYSIS

C. RIGHT TO LEGAL COUNSEL BEFORE TRIAL

... [ ORG examples exist where defendants claim that they were not provided with access to legal counsel until after having been charged or remanded in custody . ... In Trial Group CARDINAL , defendant PERSON [ Huseyn ] made a written statement to the effect that he did not have access to his lawyer from his arrest on DATE until DATE . He complained that he had been forced to renounce his right to legal counsel . In this case the defendant stated in court that during his detention in ORG he was forced to sign a paper rejecting the services of a lawyer and a paper confessing that he had used force against police officers .

In respect of Trial Group CARDINAL , whilst it appears that some defendants did have access to legal representation within a short period of time after being taken into custody , in some cases access was denied after the initial meeting .

PERSON RIGHT TO ADEQUATE TIME AND FACILITIES TO PREPARE A DEFENCE

In Trial Group CARDINAL , the evidence comprised CARDINAL volumes of criminal case materials , testimonial evidence , data on the cause of damage , testimonies of the victims , and CARDINAL video cassettes . The material was not made available to the defence lawyers until DATE . Even then , CARDINAL copy of the case materials was made available to the defendants , thus restricting the preparation of their defences , particularly during the trial when the defendants were kept apart from each other in separate cells . On numerous occasions during the hearing of ORG CARDINAL , the defendants complained to the court about the difficulties that they were encountering in preparing crossexamination of witnesses as a result of being in isolation and having to share the single copy of case materials .

In addition to difficulties created by CARDINAL copy of the case materials being made available to the defendants , the defence lawyers complained that they had been denied copies of the rulings which the court had made in the preliminary stages of the trial . The defence advocates reported that of CARDINAL motions that had been lodged by the defence , copies of CARDINAL decisions were provided by the court .

PERSON FROM TORTURE AND ILL - TREATMENT , AND THE RIGHT NOT TO BE COMPELLED TO TESTIFY OR CONFESS GUILT

Allegations of Torture and Ill - Treatment of Defendants

Allegations of torture and ill - treatment were made in all but CARDINAL of ORG . In ORG CARDINAL - CARDINAL the allegations were made primarily against law enforcement officials in temporary detention , although there were also allegations of mistreatment at the time of detention . The types of ill - treatment described either in court or directly to PERSON trial monitors included threatening to harm close relatives , denying food and water , tying to chairs , interrogating and video recording detainees whilst they were naked , threatening with firearms , hitting , punching , kicking , beating with truncheons , bottles and sticks , forcing detainees to stand outside in the rain for TIME , burning with cigarettes , injecting with unknown substances , and threats of rape ...

Allegations of Torture and Ill - Treatment of Witnesses

In addition to reported torture and mistreatment of defendants , there were numerous allegations of torture and ill - treatment of witnesses : [ summary of alleged first - hand accounts of ill - treatment follows ] . ...

As a result of the alleged ill - treatment several witnesses claimed during the trials that their statements were to be considered falsified ...

ORG OF THE USE OF EVIDENCE OBTAINED BY TORTURE OR OTHER ILL - TREATMENT

... Allegations of torture and ill - treatment were made in all the Trial Groups except Trial Group CARDINAL and Trial Group CARDINAL . In every instance , the judgments state that the allegations were not proved . The only exception was ORG in which the judgment does not even refer to the allegations of torture .

In addition , statements that were alleged to have been made under duress were expressly relied upon as evidence in ORG , CARDINAL , DATE , DATE , DATE , DATE and DATE and DATE . In general , the response of the courts to the numerous motions by the defence that statements made in temporary detention facilities were obtained by torture or other illtreatment consisted of ordering medical examinations and calling law enforcement officials as witnesses .

Witnesses

... The approach of the court in ORG CARDINAL to determining whether to admit the evidence of witnesses who alleged that they had been tortured was flawed . On the evidence given to the court by these witnesses , no reasonable tribunal should have come to the conclusion that it was sure , beyond reasonable doubt , that such torture did not take place . The court did not ... carry out any proper investigation into the allegations of torture and placed far too much reliance on the findings of other courts in previous trials . In effect , the court considered itself bound to come to the same conclusions as the other courts , without questioning the reasoning behind those other decisions or examining in detail all the evidence that was available to the other courts when determining the issues and comparing that evidence with the evidence which was available to it in the case of ORG CARDINAL .

J. RIGHT TO A PUBLIC HEARING

... All court hearings in the post - election related cases were , ostensibly , held in public . However , numerous restrictions and impediments interfered with this right .

In Trial Group CARDINAL , for example , access to the court room was strictly monitored and limited by the court security staff . On numerous occasions during the trial the defendants and their lawyers protested to the court that members of the public were being prevented from entering the court room , despite the obvious availability of seats in the court room .

Although the trials were held in public , a number of factors contributed detrimentally to public access to the trials :

• The public galleries were far too small to accommodate all those who wished to observe the hearings and , in a number of trials , relatives of the defendants could not gain access . Trying defendants together in groups of CARDINAL to CARDINAL aggravated this problem .

• People were generally admitted to the public gallery of ORG only after they had provided court officials with a copy of their identification cards and their personal details had been written down by court officials .

• ORG did not post information about scheduled hearings or otherwise make this information available to the public . As a result , the PERSON had to contact the court by phone in order to obtain information about the date and time of pending hearings . In CARDINAL instances , court secretaries stated that they were not authorized to provide such information .

• In some instances , members of opposition newspapers , including PERSON and ORG were not admitted to the courtroom by court officials . In some cases , journalists were refused entry without grounds and in other cases lack of space in the public gallery was cited as the reason .

PERSON RIGHT TO TRIAL BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL

... In respect of Trial Group CARDINAL , CARDINAL members of the court had not disclosed that they were related to people who were , or had been , involved in the preliminary investigation or prosecution of the offences . Whilst no evidence was adduced to show that the judges were biased as a result of this relationship , it was unsatisfactory that the judges concerned had not disclosed their relationships with others involved in the investigation and prosecution of the offences . The failure to make this disclosure , until it was brought to the attention of the court by the defendants and their lawyers , did not engender confidence as to the impartiality of the judges .

In respect of Trial Group CARDINAL , the judges rarely refused a motion by the prosecutor for an adjournment , when on occasion there seemed no justification for granting CARDINAL . In particular , the court granted an application made by the prosecution to adjourn the case for DATE , so that he could prepare his closing speech , without calling upon the prosecutor to give reasons for such a long delay . The defendants objected strongly to such a long adjournment , but the court seemed to pay no attention to the concerns of the defendants or to any prejudice that such a long adjournment might cause them .

Again , in respect of Trial Group CARDINAL , on many occasions the court declined to give rulings in respect of motions made by the defendants or their advocates , ruling instead that it would postpone consideration of such motions until later in the case . Of particular concern was the decision of the judges to postpone consideration of crucial questions such as the number of witnesses that the court would allow to be called at the request of the defence . This left the defendants in a state of uncertainty as to which evidence they would be allowed to present in their defence . Plainly , this may have prejudiced the way in which the defendants were able to present their cases . Moreover , the court did limit the number of witnesses called at the request of the defence ...

L. RIGHT TO A FAIR HEARING

... In respect of Trial Group CARDINAL , the defendants frequently complained to the court that the fact that they were segregated when taken back to prison at the end of the court hearing , together with the limitation of having CARDINAL copy of the court materials among them , made it very difficult for them to prepare their cases , particularly cross - examinations of the witnesses . In the questionnaires completed by the defence lawyers , many complaints were made in relation to the refusal by the court to provide copies of documents and video tape recordings to the defendants and lawyers . The lawyers also complained that they were not given an opportunity of viewing the video tapes together with their clients .

Presumption of Innocence

... In DATE following the post - election violence , statements were made to the press by the President - elect and by representatives of ORG , ORG , ORG and ORG , in which unlawful acts were attributed to the leaders and members of the PERSON , ORG and PERSON parties . ...

Disclosure by prosecution of material information

... In respect of Trial Group CARDINAL , on numerous occasions the defence lawyers complained to the court that the prosecution had concealed from the court video tape recordings of the events on DATE which would have assisted the defence . In particular , it was argued that the prosecution had failed to disclose recordings which would have shown that some of the defendants did not make speeches from the tribune and were not responsible for inciting or inflaming the demonstrators . No proper enquiry was made by the court into this issue . The prosecution was not called upon by the court to provide any evidence to rebut the defence suggestion . The matter should have been investigated thoroughly by the court , and the prosecution should have been required to satisfy the court that full disclosure of all material had been made .

The right to call and examine witnesses

... In most of the trials observed the judges examined only evidence submitted by the prosecution , including QUANTITY of witnesses ( mainly soldiers and law enforcement officials ) and videotape and photographs of groups of people breaking windows , damaging cars and beating law enforcement officials . At the same time , in breach of the principle of equality of arms and adversarial proceedings , defence lawyers were not given an equal possibility to rebut criminal charges , to bring attention to circumstances releasing the defendant from criminal responsibility or mitigating circumstances . The court dismissed almost all motions of the defence for consideration of additional evidence on behalf of the defendant . ...

In respect of Trial Group CARDINAL , the court did allow the defence to adduce tape recordings showing that violence had been used by the police and other government forces towards the demonstrators . However , the court severely restricted the number of witnesses called at the request of the defence . The defendants indicated to the court that they wished for CARDINAL witnesses to be called to give evidence to prove , amongst other things , that the defendants had not been responsible for providing articles to be used as weapons by the demonstrators , that the defendants had not addressed the crowd in FAC except to call upon them not to use violence and not to react to provocation by the police , and , more generally , that the defendants had not planned or orchestrated the civil disorder which broke out on DATE . In addition , the defendants requested the court to call a number of senior officials from the police and other government agencies , including ORG and ORG . The defendants submitted that these witnesses should be examined by the court with a view to showing that it was the police and government authorities who had initiated the violence and who had , in effect , incited the demonstrators to react in the way that they did . The court refused to call these senior officials ...

PERSON RIGHT TO A PUBLIC AND REASONED JUDGMENT

The right to a reasoned judgment

... In respect of Trial Group CARDINAL , OSCE observers assessed that there was not sufficient evidence upon which the court could base a reasoned conclusion that it was certain the defendants organized , orchestrated or were parties to the disorder which took place on the DATE . The evidence of witnesses who purported to identify the various defendants as being involved in inciting the crowds to violence and other particular acts was so poor and so discredited in the trial that no reasonable tribunal could have relied upon it . More particularly , the evidence of those prosecution witnesses who purportedly saw the defendants participating in the disturbance and carrying out particular acts to incite the crowd was so discredited in the course of cross - examination that it could not possibly be relied upon to found the convictions . In its judgment , the court failed to consider the overwhelming number of previous inconsistent statements that the majority of the prosecution witnesses had made in the course of the investigation . So many of the prosecution witnesses gave evidence which was wholly inconsistent with the accounts that they had previously given , that it became impossible to view the evidence of the witnesses implicating the defendants as credible . Conversely , the court failed to attach sufficient importance to the evidence that was called on behalf of the defendants , dismissing the evidence of many of the defence witnesses on spurious and inadequate grounds .

The approach of the court to the evidence of defence witnesses was flawed and demonstrated a biased and prejudiced attitude against them . The evidence presented by defence witnesses was crucial to the defence case and yet , in its judgment , the court dealt with the evidence in a superficial manner and rejected the evidence of all the witnesses without giving any separate or detailed analysis of the grounds for rejecting the evidence of each witness . ... ”

Annex CARDINAL of the OSCE Report concerned specific observations relating to ORG CARDINAL only . At the beginning , the annex reproduced the allegations of torture and ill - treatment made by the defendants and witnesses during the trial , including the allegations made by the first applicant , Mr Huseyn , during the trial ( see paragraph CARDINAL above ) . The annex then continued with the ORG direct observations and remarks concerning the trial itself :

“ ... In respect of Trial Group CARDINAL , OSCE observers and the independent expert assessed that there was not sufficient evidence upon which the court could base a reasoned conclusion that it was certain the defendants organized , orchestrated or were parties to the disorder which took place on the DATE . The evidence of witnesses for the prosecution was so poor and so discredited in the trial that no reasonable tribunal could have relied upon it to found the convictions . In its judgment , the court failed to consider the overwhelming number of previous inconsistent statements given by the majority of the prosecution witnesses , making it impossible to view their evidence against the defendants as credible .

For example , one of the key questions for the court to determine was whether the defendant ORG made a speech from the tribune in FAC on DATE . If the court could not be satisfied about the veracity and accuracy of the prosecution evidence on this question , then the case against this defendant was fundamentally flawed and no reasonable tribunal could have convicted him . CARDINAL of the witnesses relied upon by the prosecution to prove that ORG made a speech from the tribune gave evidence to the court that PERSON came to FAC from the port side of FAC in a white car . However , a video recording shown to the court made it clear that defendants PERSON and PERSON came to FAC in a black Mercedes car and that the car came from the side of FAC where FAC was and not from the port side . The court failed to give this matter any proper consideration and failed to take it into account when assessing the probative value , if any , that should be attached to the evidence of the witness . In all the evidence in the case , no reasonable tribunal could have been satisfied that the defendants PERSON or PERSON acted in the way suggested by the prosecution .

Many of the witnesses relied upon by the prosecution made pre - trial statements to investigators which were identically worded , and had identical punctuation and typographical errors . This raises serious concern as a clear indication that the investigators were preparing the statements themselves , rather than recording faithfully the evidence of the witness . Another concern was that according to records of interrogations , investigators seemed to have interrogated CARDINAL witness at the same time on DATE . Accordingly , this meant that either : ( CARDINAL ) the records of interrogation were inaccurate or that they had been falsified ; or ( CARDINAL ) if the records were correct , that witnesses had been interrogated together , in breach of LAW . Although no satisfactory explanation was given for this , the court failed to carry out any adequate investigation of this matter and failed to give it any proper consideration when assessing the probative value of the evidence .

At the request of the defendants , the court summoned a great number of witnesses , all of whom gave evidence which , if accepted , materially assisted the defendants and cast a real doubt on the prosecution case . In its judgment , however , having summarised the evidence of the defence witnesses in a wholly inadequate manner , the court dismissed their evidence in its entirety by stating as follows : [ a quotation of the text quoted in paragraph CARDINAL above follows . ]

This brief judgment failed to attach sufficient importance to the evidence on behalf of the defendants , dismissing it on spurious and inadequate grounds . The approach of the court to the evidence of defence witnesses was flawed and demonstrated a biased and prejudiced attitude against them . The evidence presented by defence witnesses was crucial to the defence case and yet , in its judgment , the court dealt with the evidence in a superficial manner and rejected the evidence of all the witnesses without giving any separate or detailed analysis of the grounds for rejecting the evidence of each witness . ”

Extracts from a number of reports by international bodies and human rights NGOs , describing the violent clashes between demonstrators and law - enforcement authorities during the events of CARDINAL and DATE , have previously been quoted in the PERSON case ( cited above , § § DATE ) .

Among other similar reports by international NGOs , the report by ORG , entitled Crushing Dissent : Repression , Violence and GPE ’s Elections ( DATE Vol . CARDINAL , No . MONEY ) ) , contains lengthy summaries of numerous first - hand accounts by persons arrested in connection with the events of CARDINAL and DATE concerning the alleged acts of torture and ill - treatment they had been subjected to while in detention . The relevant statements were made by the alleged victims in interviews personally conducted by ORG researchers during the organisation ’s CARDINAL missions to GPE from DATE .


CASE OF TIMUS AND TARUS v. THE REPUBLIC OF MOLDOVA

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in DATE and DATE respectively and live in PERSON .

The present case concerns the circumstances surrounding the killing of the applicants’ DATE brother PERSON during a police operation on DATE .

NORP On that date at TIME three plain - clothed police officers ( N. , B. and C. ) entered a QUANTITY apartment block to arrest a person suspected of armed robbery . According to their information , the suspect in question was supposed to be visiting his ex - girlfriend TIME , who lived on the fourth floor of the building .

At the same time , PERSON was coming down the stairs from the fourth floor with a group of CARDINAL friends . None of them was the suspect wanted by the police . CARDINAL young women ( S. and PERSON ) and a young man ( PERSON ) were at the front of the group and they passed the police officers between the third and second floor .

Upon passing the first part of the group CARDINAL of the police officers immediately apprehended PERSON and PERSON were several storeys up and saw the police officers as they approached the rest of the group . CARDINAL police officers rushed after PERSON , who started to run back up the stairs . They apprehended him on the fifth floor . Shortly afterwards , CARDINAL of the police officers shot him in the back of the head at very close range . He died instantly .

An investigation followed , during which all the witnesses and police officers were questioned . There were CARDINAL versions of events : that of the group of friends coming down the stairs with the victim ( the witnesses ) , and that of the police officers .

The ORG version was that QUANTITY police officers , N. and C. , were armed with pistols which they were holding upwards . Upon passing the first part of the group , the officers saw that there was someone else upstairs and ran in that direction , leaving the first part of the group with police officer PERSON then told police officer PERSON to come upstairs with the rest of the group . After apprehending PERSON somewhere on the fifth floor , police officers PERSON and PERSON started to beat him up . All the members of the group recounted an almost identical description of what they had heard and the conversation that had taken place between the QUANTITY police officers and PERSON . According to them , one of the police officers ( B. ) called PERSON by his first name and told him to follow them . In response , he addressed PERSON by his first name and told him to stop beating him up . Sounds of someone being beaten up were heard and PERSON threatened to report his injuries to a forensic doctor . The manner in which he said this last sentence was very specific , as he used a mixture of both NORP and NORP words and the witnesses recounted it in the same manner . It later transpired that police officer PERSON and PERSON already knew each other , as in DATE the latter had been arrested by the former for bicycle theft .

NORP The encounter between police officers PERSON and C. and PERSON took place on the fifth and top floor . CARDINAL of the witnesses PERSON and PERSON were the closest to the scene at the time , being held by police officer PERSON on the fourth floor . The fourth floor was separated from the fifth floor by CARDINAL flights of stairs going in opposite directions joined by an intermediate landing . PERSON ( who also already knew police officer PERSON ) started to shout at him , telling him to leave PERSON alone . She called him by his first name and tried to get past police officer PERSON in order to help PERSON . In her struggle with police officer PERSON she could partly see what was happening on the fifth floor . PERSON was also there . According to them , police officer PERSON grabbed PERSON by his right hand while officer PERSON grabbed him by his left hand and started to make his way down the stairs from the fifth floor to the landing between the fifth and fourth floors . At CARDINAL from last step , PERSON was facing the handrail and grabbed it . The police officers who were behind him bent him over and , according to CARDINAL of the witnesses , held both his hands behind his back . According to another witness , CARDINAL of his hands was on the handrail while the other was held by a police officer behind his back . Police officer C. was holding his pistol at the back of PERSON head while he was bent over . Police officer PERSON punched him in the ribs and he repeated again that he would be reporting his injuries to a forensic doctor . Immediately afterwards , he was shot in the back of the head by police officer C. at very close range . He collapsed on the landing between the CARDINAL flights of stairs , with his feet on the stairs and his body on the landing . Blood started to spurt out of his head wound . PERSON shouted : “ He shot him straight in the head ! ” and her first reaction was to try to stop him losing any more blood with her hands . In what appeared to be an attack of hysteria she started to scream and to attack police officer PERSON and shouted “ Why did you do that ? ” Another female friend in the group approached her from behind , hugged her and tried to pull her away from the body .

According to the witnesses , PERSON did not have anything in his hands after collapsing to the ground . Police officer PERSON asked officer C. : “ What the hell did you do ? ! ” C. did not respond with anything intelligible but remained still , holding his head in his hands . CARDINAL of the witnesses said they heard him respond in a low voice : “ I did n’t want to do that ” . He was very pale . According to the witnesses he did not have any visible injuries and could walk perfectly well . Immediately afterwards , officer PERSON ordered all the witnesses to go into PERSON ’s apartment on the fourth floor . He and police officer PERSON pushed everybody into her apartment and closed the door . Police officer PERSON was holding the doorknob so that nobody could leave . Many of the neighbours started to look out of their apartments but the police officers ordered them all to close their doors and stay inside .

According to the police officers , when PERSON ran up the stairs , they thought he was the suspect they had been after . They claimed to have been convinced that the victim was the suspect they were looking for and that they only realised their mistake after he had been shot . However , during a confrontation which took place later , police officer PERSON admitted he had known PERSON for DATE . The following description of the police ORG version of events was made after a video reconstruction of the scene , which was filmed during the investigation with the participation of police officer C. on DATE . Police officer PERSON recounted an identical version of events .

Police officer PERSON chased PERSON and approached him from behind on the landing of the top , fifth floor . He put his hand on his shoulder , called him by the name of the wanted suspect , announced that he was a police officer and asked him to come with him . At that moment PERSON turned around and punched police officer PERSON in the face with his right fist and attempted to run down the stairs . When he punched police officer PERSON he did not have anything in his hand . Police officer PERSON was pushed into a wall on his right and lost his balance . However , police officer PERSON , who had already approached them from behind , managed to apprehend PERSON by pulling his left arm near his shoulder ( in his initial statement police officer PERSON stated that he had apprehended him by the collar of his jacket ) . The apprehension took place on the top CARDINAL steps of the flight of stairs leading to the fifth floor . Police officer C. was behind PERSON on a higher step , holding his hand with his left hand and holding his pistol pointed upwards in his right hand . At that moment , without changing his position , PERSON stabbed police officer C. in the right thigh with a knife , which he had been holding in his right hand in reverse grip . Then , without changing the position of the knife , PERSON attempted to turn to his left and to stab police officer C. in the face . According to police officer C. , PERSON had been standing upright . Fearing for his life , police officer C. pulled the trigger of the pistol he was still holding upwards and shot him in the upper neck . The police officers did not say how the victim ’s body ended up on the landing between the fifth and fourth floor CARDINAL or CARDINAL steps lower , but it is reasonable to infer that it rolled down by itself before slumping at the bottom of the stairs .

A criminal investigation was formally initiated on DATE . According to a report describing the scene , PERSON body was lying in a pool of blood on the intermediate landing between the fourth and fifth floors . There was an open small pocket knife with a lock mechanism with a blade QUANTITY long in the palm of his right hand . His feet were on the first CARDINAL steps of the flight of stairs leading to the fifth floor . There were traces of blood on those steps . The report contains pictures of areas stained with blood , such as the landing where the body was lying , the walls around it , and the landing between the third and the fourth floor , where blood had run down from above . No traces of blood appear to have been found above the steps on which the victim ’s feet were located . On the wall above the sixth step of the flight of stairs going down to the fourth floor from the landing where the body was lying , there was a bullet hole QUANTITY above the step , exactly opposite where the witnesses alleged the victim had been shot when facing the handrail .

During the investigation , the PERSON prosecutor ’s office obtained several forensic reports which found , inter alia , that the entry wound was on PERSON upper left neck and the exit wound was on the right side of his forehead above his eyebrow . According to the forensic report , the shot was fired at such close range that gunshot residue was present on the victim ’s skin around the entry wound . Another forensic report found that the police officer who had shot him had had an injury to his right thigh made by a knife wound and the other police officer who had allegedly been punched in the face by PERSON had had a bruise on his face . Another expert report did not find any fingerprints on the knife found in PERSON palm after his death .

On DATE the PERSON prosecutor ’s office decided to discontinue the criminal investigation on the grounds that the police officer who shot PERSON had acted in self - defence . The prosecutor ’s office was based on the police ORG version of events . The applicants challenged the above decision before ORG .

On DATE a deputy Prosecutor General quashed the above decision on the grounds that it was based exclusively on the police ORG version of events and that no consideration was given to the ORG statements . The investigator had failed to determine the exact place of the shooting and the victim ’s position in relation to the shooter . Moreover , no ballistics test had been conducted in order to determine the trajectory of the bullet .

In the reopened investigation some of the witnesses were re - questioned . CARDINAL of them , PERSON , changed his statements and submitted that he had not seen or heard anything , but later claimed that he had only done so because he had been pressured and threatened to do so by the accused police officers .

A ballistics test was carried out with the help of an assistant standing where the police officers alleged the victim had been standing at the time of shooting . The assistant had a cabbage placed on his shoulder , near his head . Through a hole pierced in the cabbage , a thread was led to the bullet hole in the wall , which was considerably lower than the cabbage . Taking into consideration the positions of the entry and exit wounds on the victim ’s head , it was concluded that , at the moment of the shooting , the victim had been bent over and not standing upright as suggested by the police officers in their version of events .

On DATE the PERSON prosecutor ’s office again discontinued the criminal proceedings on similar grounds as the first time , namely on the basis of the police ORG version of events . It does not appear that the prosecutor attempted to reconcile the findings of the ballistics test with the police ORG version of events concerning the circumstances of PERSON shooting . The applicants appealed .

On DATE a hierarchically superior prosecutor dismissed the ORG appeal . They appealed to an investigating judge .

On DATE an investigating judge from ORG upheld the ORG appeal , quashed the decisions of DATE and DATE and ordered a re - investigation of the case . He concluded that the investigation had been incomplete and that the conclusions reached by the investigators were inconsistent with the evidence in the case file . The investigating judge also noted that no confrontations had been carried out between all the witnesses and the accused officers , no importance had been attached to the fact that no fingerprints had been found on the knife the victim had allegedly stabbed police officer C. with , and that the investigation had not been conducted within a reasonable time .

Following the investigating judge ’s decision , the applicants applied to ORG with a request to have the case removed from the PERSON prosecutor ’s office on account of its bias and to have it transferred to another prosecutor ’s office . On DATE a deputy ORG rejected the ORG request as ill - founded .

On DATE the PERSON prosecutor ’s office questioned witness PERSON again . On CARDINAL DATE witness PERSON was questioned again . He submitted having seen police officer PERSON stabbing police officer C. in his thigh with a knife before being forced into PERSON ’s apartment after the shooting . According to him , this took place CARDINAL and the fourth floor and he had mentioned it during his initial questioning , but no record had been made . Confrontations were organised between PERSON and police officer PERSON and between PERSON and police officer PERSON on DATE , during which each party maintained their statements .

On DATE witness PERSON took a lie - detector test to determine whether his statement about police officer B. stabbing police office C. with a knife was truthful . The test result was negative , i.e. PERSON ’s statement was not truthful .

On DATE the PERSON prosecutor ’s office again discontinued the criminal investigation on similar grounds as the previous occasions . The results of the lie - detector test were added to the decision . The applicants appealed against it and argued that the results of the liedetector test were inadmissible because the test had been carried out by colleagues of the accused police officers rather than by independent experts .

On DATE the hierarchically superior prosecutor dismissed the ORG appeal . They appealed to an investigating judge .

On DATE an investigating judge from ORG upheld the ORG appeal , again finding that the investigation had been incomplete . The judge also declared the results of the lie - detector test inadmissible .

On DATE , without conducting any further investigative measures , a prosecutor from the PERSON prosecutor ’s office again discontinued the criminal investigation . The content of the decision was identical to that of the decision of DATE , including reference to the lie - detector test .

On DATE an investigating judge from ORG again upheld the ORG appeal , quashed the decisions of DATE and DATE and ordered a reopening of the investigation .

On DATE a prosecutor from the PERSON prosecutor ’s office again discontinued the criminal investigation .

On DATE an investigating judge from ORG again upheld the ORG appeal , quashed the decisions of CARDINAL DATE and DATE and ordered a reopening of the investigation . The investigation appears to be pending to date .


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in Batman .

On DATE the applicant was arrested by gendarmerie officers while he was leaving Batman . He was then transferred to ORG of ORG on suspicion of involvement in the activities of the ORG ( ORG , an illegal organisation .

On DATE the applicant was brought before the Batman public prosecutor and the judge at ORG . The judge remanded the applicant in custody .

On an unspecified day the Batman public prosecutor issued a decision of non - jurisdiction and sent the case file to the public prosecutor ’s office at ORG .

On DATE the public prosecutor filed a bill of indictment against the applicant , along with other persons , charging him with membership of the ORG under LAW of the former LAW .

On DATE ORG held the first hearing on the merits of the case .

On DATE the Fourth Chamber of ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment .

NORP Throughout the proceedings , the applicant and his representative requested several times that the applicant be released pending trial . At the end of each hearing ORG rejected the applicant ’s requests , having regard to the nature of the offence , the state of the evidence and the content of the case file .

NORP On DATE ORG quashed the judgment of the first - instance court . The case was subsequently remitted to ORG .

On DATE ORG ordered the applicant ’s release pending trial .

On DATE ORG once again convicted the applicant under LAW of the former LAW and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE ORG quashed the judgment of DATE .

Pursuant to Law no . CARDINAL of DATE , published in ORG on DATE , abolishing ORG , the case against the applicant was transferred to ORG .

On DATE ORG decided that the proceedings against the applicant should be terminated on the ground that the statutory timelimit under LAW had expired . This decision to terminate the case became final as neither the applicant nor the public prosecutor appealed .

The relevant domestic law and practice in force at the material time are outlined in PERSON and GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .