Student’s arrest and detention for allegedly filming a dance and uploading it to the Internet was not lawful

In judgment in the case of Rustamzade v. Azerbaijan (application no. 38239/16) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights.
The case concerned a student’s arrest and detention in 2013 for allegedly filming some friends dancing in a park and uploading the video of it to YouTube. He was charged with hooliganism and spent one year in pre-trial detention. He was convicted in 2014 as charged, as well as of mass disorder and arms offences which had in the meantime been added to the list of charges, and sentenced to eight years’ imprisonment. The Court found in particular that the facts relied on in the domestic proceedings could not reasonably be considered to constitute criminal behaviour as defined under domestic law or as interpreted by the higher courts. Mr Rustamzade had therefore been arrested and detained without a reasonable suspicion that he had committed a criminal offence.
The applicant, Ilkin Bakir oglu Rustamzade, is an Azerbaijani national who was born in 1992 and lives in Baku (Azerbaijan). In the first few months of 2013 Mr Rustamzade, an economics student and civil society activist, actively participated in a number of demonstrations held in Baku criticising the government for deaths of soldiers in the army. Against that background, on 1 March 2013 he allegedly made a video recording of friends performing what had become a popular dance at the time in Azerbaijan, the “Harlem Shake”.
The video, later uploaded to YouTube, shows seven people dancing in a park, one of whom makes sexually suggestive movements near a bronze statue. Mr Rustamzade was arrested and charged in May 2013 with hooliganism. He was accused of a “manifest disrespect towards society” and breaching public order by making the video recording and uploading it to the Internet. He denied the charges against him. At the prosecuting authorities’ request, the court ordered his detention pending trial for two months on the ground that there was a risk of his absconding and reoffending.
Despite his repeated appeals, the courts extended his detention until his conviction in May 2014 of hooliganism as well as of a number of other criminal offences which had in the meantime been added to the list of charges, including mass disorder and various arms offences. He was sentenced to eight years’ imprisonment. A separate application (no. 22323/16) concerning the criminal proceedings against Mr Rustamzade is still ongoing before the European Court
Relying in particular on Article 5 §§ 1 and 3 (right to liberty and security), Mr Rustamzade complained that he had been arrested and detained without a reasonable suspicion that he had committed a criminal offence and that the courts had failed to justify his pre-trial detention.
Mr Rustamzade maintained that the accusations against him had been groundless, submitting that even the video recording of the dance had not been available in the case file examined by the courts when they had ordered and extended his detention. The Court noted that the Government had not specified whether the material in the case file against the applicant had contained witness statements, facts or evidence that would satisfy the objective observer that he had committed a criminal offence.
In any case, it was not at all clear from the decisions of the prosecuting authorities and the domestic courts how the video recording of a dance and its subsequent uploading to YouTube could be considered a grave breach of public order, which constituted one of the elements of the criminal offence of hooliganism under domestic law. Nor had it been argued in the proceedings that the applicant’s filming of the dance had been accompanied by violence or destruction / damage of others’ property, another constituent element of hooliganism as defined in the Criminal Code.
Both the Plenum of the Supreme Court and the Constitutional Court had confirmed this interpretation of the domestic law in decisions concerning hooliganism. The Court therefore concluded that the facts relied on could not reasonably be considered to constitute criminal behaviour as defined under domestic law or as interpreted by the higher courts. Mr Rustamzade’s pre-trial detention had not therefore constituted “lawful detention” effected “on reasonable suspicion” of his having committed an offence, in violation of Article 5 § 1.
Given that finding, the Court held that there was no need to examine separately the complaint under Article 5 § 3 about the reasons for his continued pre-trial detention.) The Court held that Azerbaijan was to pay Mr Rustamzade 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,500 in respect of costs and expenses. (hudoc.echr.coe.int)

Comments

Post a Comment

Editorial

Editorial
George Kazoleas, Lawyer

Top Stories

Ombudsman inquiry on Commission President’s text messages is a wake-up call for EU

Image
The European Ombudsman inquiry into the Commission’s handling of a request for text messages between its President and the CEO of a pharmaceutical company is a wake-up call for all EU institutions about ensuring accountability in an era of instant messaging. One year after the initial request by a journalist, the Commission has still not clarified whether messages reported to concern major vaccine procurement deals exist and whether the public is entitled to see them. The Ombudsman had asked the Commission, in a finding of maladministration in January, to conduct a more thorough search for the text messages. The Commission’s recent response failed to say whether it had looked directly and correctly for the text messages and if not, why not. While the response recognised that work-related text messages can be EU documents, it reiterated that the Commission’s internal policy is, in effect, not to register text messages. The Ombudsman has closed  the inquiry  and upheld...
Read more

Daily Mail publisher wins case against ‘success fees’ paid to lawyers (ECtHR)

Image
Obligation on publisher of the Daily Mail to pay substantial “success fees" in defamation and breach of privacy cases was excessive. The case Associated Newspapers Limited v. the United Kingdom (application no. 37398/21) concerned the fact that Associated Newspapers Limited the publisher of the Daily Mail and the Mail on Sunday had been obliged to pay extensive costs incurred by claimants who had successfully sued it in privacy and/or defamation proceedings following articles it had published in print or online in 2017 and 2019.  Since one of the claimants had entered into a conditional fee arrangement (CFA) with his legal representative, and both had taken out “after-the-event” (ATE) insurance, Associated Newspapers Limited had been liable not only for their base costs, but also for fee uplifts including the “success fee” in the CFA and for their ATE insurance premiums.  In Chamber judgment (12.11.2024) in the case, the European Court of Human Rights held, unanimously, that t...
Read more

ECtHR elects a new Vice-President of the Court and two new Section Presidents

Image
The European Court of Human Rights has elected on 23.9.2024 a new Vice-President of the Court – Judge Ivana Jelić (elected in respect of Montenegro). She will take up her duties on 1 November 2024.  The Court has also elected at the same date two new Section Presidents – Judges Lado Chanturia (elected in respect of Georgia) and Ioannis Ktistakis (elected in respect of Greece). They will also take up their duties on 1 November 2024. Ivana Jelić was born on 17 March 1975 in Podgorica, Montenegro and was elected Judge of the European Court of Human Rights on 12 July 2018. Lado Chanturia was born on 14 April 1963 in Tsalenjikha, Georgia, was elected Judge of the European Court of Human Rights on 8 January 2018 and is Vice-President of Section since 18 May 2023. Ioannis Ktistakis was born on 3 January 1971 in Thebes, Greece and was elected Judge of the European Court of Human Rights on 8 March 2021. (source/photo: echr.coe.int) Read more here
Read more

Intellectual property: the figurative sign consisting of the phrase ‘RUSSIAN WARSHIP, GO F* *K yourself’ in Russian and English cannot be registered as an EU trade mark

Image
In its Judgment in Case T-82/24 (Administration of the State Border Guard Service of Ukraine v EUIPO) (RUSSIAN WARSHIP, GO F**K YOURSELF) the General Court ruled that the figurative sign consisting of the phrase ‘RUSSIAN WARSHIP, GO F* *K yourself’ in Russian and English cannot be registered as an EU trade mark. That phrase, which has become a symbol of Ukraine’s fight against Russian aggression, is not perceived as an indication of a commercial origin.  The Administration of the State Border Guard Service of Ukraine (Kyiv, Ukraine) requests the General Court of the European Union to annul the decision of the European Union Intellectual Property Office (EUIPO) of 1 st December 2023, which refused registration of the following figurative sign as an EU trade mark: ‘RUSSIAN WARSHIP, GO F* *K yourself’ That mark is a war cry uttered by the Ukrainian border guard on Snake Island on 24th February 2022, the first day of the full-scale Russian invasion of Ukraine. Registration was sou...
Read more

The banks Crédit agricole and Credit Suisse participated in a cartel in the sector for suprasovereign bonds, sovereign bonds and public agency bonds denominated in US dollars

Image
According to the Judgment of the General Court in Cases T-386/21 (Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission) and T-406/21 (UBS Group and Credit Suisse Securities (Europe) v Commission), the banks Crédit agricole and Credit Suisse participated in a cartel in the sector for suprasovereign bonds, sovereign bonds and public agency bonds denominated in US dollars (‘SSA Bonds’).  The General Court of the European Union confirms the Commission’s finding of an infringement and maintains the amount of the fines imposed in 2021. In 2018, the European Commission initiated proceedings for infringement of the competition rules involving Deutsche Bank, Bank of America, Crédit agricole and Credit Suisse (now UBS Group [1] ).  In 2021, the Commission found that those banks had entered into an agreement on the secondary market for suprasovereign, sovereign and agency bonds denominated in dollars (SSA bonds). According to the Commission, traders employed by ...
Read more

European Ombudsman asks Commission to publish details of its handling of senior staff move to law firm

Image
The European Ombudsman has asked the European Commission to publish details about how it has handled the planned move by a former director in its competition department to the Brussels office of a US corporate law firm as a partner. Any restrictions that have been placed on the activities of the former director to mitigate potential conflicts of interest should be made public without delay, said the Ombudsman. She noted that public information about the move came from the law firm and gives the impression that the Commission has allowed a senior official to work for a company that anticipates major benefits from their inside knowledge.  The Ombudsman also noted that the Commission declined to give details about the individual’s professional experience despite the fact that the law firm itself has put out a press release detailing it. The Ombudsman has previously criticised a tendency in the EU administration to underestimate the potential negative effects of staff moves to th...
Read more

A national court is not required to apply a decision of its constitutional court that infringes EU law (ECJ)

Image
In its Judgment of 26.9.2024 in Case C-792/22 (Energotehnica) the Court of Justice ruled as regards the right to an effective remedy that a national court is not required to apply a decision of its constitutional court that infringes EU law. In such a case, the national court may not be penalised.  Following the death of an electrician by electrocution during a maintenance operation, an administrative procedure was initiated against his employer. At the same time, criminal proceedings for negligence and manslaughter were initiated against the supervisor. The victim’s next of kin also became civil parties to the criminal proceedings.  The administrative court hearing the dispute concluded that the present case did not involve an ‘accident at work’. It annulled the administrative penalties imposed on the employer. According to national legislation, as interpreted by the Romanian Constitutional Court, that administrative decision prevents the criminal court from reconsidering whe...
Read more