Six more citizens were convicted on so-called “Ganja case”
Ganja City Court on Grave Crimes
March 01, 2019
Presiding judge: Khagani Samadov
Defendants:Elvin Allahverdiyev, Elvin Nazarov, Renat Mammadov, Vugar Khudiyev, Elman Rustamov, Neymat Heydarli.
Defenders: Amil Dosiyev, Elfar Aliyarov, Logman Abdullayev, Akif Agayev, Aydin Huseynov, Vugar Heydarov, Nazim Musayev
Victims: Samir Bayramov, Samir Nagiyev, Vugar Huseynov, Elnur Mammadov, Afgan Ismayilov, Tural Akperov, Vusal Safarov, Nidjat Allahverdiyev, Sabuhi Jafarov, Rashad Kazimov, Emin Hasanov, Asiman Mammadov, Asif Damirov, Ziyafat Hasanov, Madjid Gurbanov, Tural Garayev, Nidjat Hojayev=
On July 3, 2018, around 20:30 (8:30 pm), the armed attempt was perpetrated, in Ganja city, on a Chief of the Executive Power of the city Elmar Valiyev. At crime scene, Police arrested the suspect Yunis Safarov, Russian citizen, who seriously wounded the Chief of the Executive Power, and his bodyguard. On July 4, 2018, Yunis Safarov’s photos with the traces of tortures and beatings were disseminated in Mass Media. The origin of these photos is still unknown. Investigation bodies deny any involvement with them, and unofficial sources bring various versions in regards of the origin of these photos. According to first version, while Yunis Safarov was at Police Department, he was beaten there by a son of the Chief of Executive Power Elmir Valiyev. According to second version, Yunis Safarov was beaten and tortured by the Head of the Criminal Investigation Department colonel – lieutenant Sarkhan Ismayilov and the Chief Investigative Officer of Ganja City Main Police Department Qorkhmaz Ibrahimov. After capturing the beating to his phone, Sarkhan Ismayilov sent these photos to Elmir Valiyev – a son of Elmar Valiyev. Then, Elmir Valiyev disseminated photos in social networks for intimidation purpose.
On July 10, 2018, a protest action took place in the centre of Ganja, during which a Deputy Chief of Ganja City Main Police Department colonel Ilqar Balakishiyev and a Deputy Chief of Ganja City Nizami District Police Department colonel-lieutenant Samad Abbasov were killed.
On July 10, 2018, security agencies – the Prosecutor’s General Office, Ministry of Internal Affairs and State Security Service of the AR, widespread their joint statement, which stated that on July 10, 2018, around 20:00 h (8 p.m.), the group of radical believers, approximately 150-200 people, tried to brutally disturb public order. While ignoring police warnings, they committed unlawful actions and showed resistance to the police, by physically injuring them with the blunt and sharp cutting objects. It is also mentioned in the statement, that police detained around 40 persons at a scene, but others managed to run away. Security agencies in their statement expressed their condolences over two killed policemen, who died at the square.
Immediately, the arrests of Ganja citizens began. All detainees were brought to Ganja City Main Police Department. The criminal case was incriminated against them under following Articles: 120.2.3. (deliberate murder of a victim in connection with implementation of a given person of service activity or performance of public debt), 120.2.7 (deliberate murder of two or more persons), 220.2.1 (mass disorders), 221.3 (hooliganism committed with application of a weapon or subjects, used as the weapon), 228.4 (Illegal purchase, selling or carrying of gas weapon, cold steel, including throwing weapon) and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties) of the Criminal Code of the AR.
From July to August 2018, 5 people were killed by the special services: Rashad Boyukkishiyev, Anar Bagirov, Aga Sarkhani, Fuad Samadov and Muraz Rahimov.
According to the State Security Service, all the victims resisted during the detention and as a result they were neutralized. However, there is no any concrete evidence of the guilt of the killed. Also there is no information about internal investigation into the murders.
In the first half of August 2018, due to events in Ganja, General Prosecutor of the Azerbaijan held a meeting whereat he informed that 77 persons involved in Ganja events were brought to justice, 13 were declared wanted, and 5 (whose names were mentioned above) were killed during special operation.
When preliminary investigation ended, the case was transferred for a review to Ganja City Court on Grave Crimes. Despite the fact, that according to jurisdiction, the court had to be held in Ganja, the judges of Ganja Court on Grave Crimes were travelling to Baku, and the trial itself was held at Baku City Sabunchi District Court.
All detainees of ‘Ganja case’ were divided into groups, and each group had its own court proceedings. We describe below, the court proceeding of one of these groups that consists of 6 people: Elvin Allahverdiyev, Elvin Nazarov, Renat Mammadov, Vugar Khudiyev, Elman Rustamov, and Neymat Heydarli.
The defendants (Elvin Allahverdiyev, Elvin Nazarov, Renat Mammadov, Vugar Khudiyev) were accused in crime under the Article 220.1 (organization of riots) of the Criminal Code of Azerbaijan Republic. Two defendants (Elman Rustamov and Neymat Heydarli) were charged with crimes under articles 220.1 and 315.2 (the use of violence dangerous to life or health against official authority on duty) of the Criminal Code of the Republic of Azerbaijan.
During the trial the defendant Elvin Allahverdiyev did not plead himself guilty in crime under the Article 220.1 of the Criminal Code of AR. According to Elvin Allahverdiyev’s testimony he declared that he had been living with his family in Mingachevir where he was selling tea at the local market. He found out about action to support Yunis Safarov from one of the social media site where he has an account. On the 9th of July 2018 the accused later on Elvin Nazarov called him to inform about the guests from Sumgayit and Mingachevir who should come to participate in the action. Elvin was asked of he could advise whereto accommodate the guests who would be picked up by Nazarov and Vugar Khudiyev. In the evening, July 10, they all arrived to Ganja. Have parked their car in front of the local authority building they decided to pray (namaz) in “Shah Abbas” Mosque. However, the policemen on duty demanded them to step away. Elvin Nazarov obeyed. Whereas Elvin Allahverdiyev along with Renat Mammadov went to the park to drink tea. In about 40 minutes three of them returned to Mingachevir. They have phoned a few times to Vugar Khudiyev who did not answer on their calls. On the 11th of July Elvin Allahverdiyev was informed about V. Khudiyev’s arrest by Vugar’s brother. Later on, at 10 p.m., Allahverdiyev, Nazarov and Mammadov went to the Kapaz District Police Department in the city of Ganja to pass a package to detainee V. Khudiyev. On their question concerning Vugar’s detention the police replied that he was incriminated administrative charges. Elvin Allahverdiyev and Elvin Nazarov were about to return to their car when they noticed the policemen detaining Renat Mammadov. Both of them were also detained and brought to the Police Department. According to the police explanation they came to Ganja on the 10th of July to take part in action. They substantiated their participation by the following: the former head of Ganja administration Elmar Valiyev who survived the assassination attempt, had expressed his disrespect to the citizens-believers when stepped in mosque in his shoes and ordered to destroy flyers with Koran citations. They confirmed that they arrived to Ganja to participate in peaceful demonstration, however they were not able to take part since they had been detained by the police. Elvin Allahverdiyev also stated that he found out about the action from social media and he had never either called up anyone to take part or published any information concerning Yunis Safarov.
Elvin Nazarov, accused of committing a crime under Article 220.1. CC AR, also pleaded not guilty. During the trial E. Nazarov admitted that he had an account on Facebook and declared to be engaged in private commercial business. He also said that he had found out about Elmar Valiyev’s attempt assassination and the 10th of July action from the social media; however, he had never done any public calls. Indeed, he had a desire to take part in the action, that’s why he arrived to Ganja from Mingachevir around 8 p.m. on the 10th of July 2018. Elvin Nazarov insisted that the police stopped him when he was going to pray in “Shah Abbas” mosque. After that E.Nazarov returned to Mingachevir. On the 11th of July, he along with Elvin Allahverdiyev and Renat Mammadov went to Ganja in order to pass a package to earlier detainee Vugar Khudiyev. Coming back from the police department they were detained by the police. E.Nazarov confirmed that he wanted to participate in the action but he was not informed about its illegality. Nevertheless his desire to participate in action was aimed at ceasing Elmar Valiyev’s disrespectful behavior toward religious people and preventing Valiyev’s return to his administrative post.
Renat Mammadov was also accused of committing a crime under Article 220.1. CC AR, but he pleaded not guilty. According to Renat Mammadov’s testimony he has been living with his family in Mingachevir where he works as a taxi driver. July 10, 2018, due to his child illness he spent all day at the hospital. Information concerning the action was sent him via WhatsApp message. He discussed the matter with his friends Elgun and Elnar who advised him not to be involved in the coming up action. The very same day, July 10, at about 5 p.m., he received a phone call from unknown person who ordered a taxi to Ganja meeting. He was not sure who had called him but he figured out that it was either Elvin Allahverdiyev or Elvin Nazarov. Indeed, he brought them both from Mingachevir to Ganja. R.Mammadov stopped his car near the Traffic Police Department, and together with his passengers went on foot towards the executive power administrative building. 150-200 m away from the place they were stopped by the police and asked to leave the territory. They did and immediately returned to Mingachevir. The next day they went again to Ganja to deliver a food package to detainee Vugar Khudiyev, They were detained by the police on the spot. During the trial Renat Mammadov stayed that he did not have any intention to take part in the action and just brought E. Allahverdiyev and E.Nazarov to Ganja. Renat just wanted to watch the event. R. Mammadov declared that he didn’t participate in demonstration and either expressed any slogans or committed any acts of violence.
Vugar Khudiyev was accused of committing a crime under Article 220.1. CC AR, though he pleaded not guilty. According to Vugar Khudiyev’s testimony he was unemployed and lived in his grandmother’s house. On July 10, 2018, he along with his acquaintance Eirus and two other strangers came to Ganja. After have visited sacred place they went to the park to drink tea. Later on, in the evening they decided to go to mosque to pray where they were arrested by the police. When asked about their purpose of arriving to Ganja they replied that they had wanted to visit a sacred place. They were detained near the mosque and brought to the Police department. V.Khudiyev stated that he had not had any intention to participate in action on the 10th of July 2018, and did not make any slogans.
Elvin Rustamov was also accused of committing a crime under Article 220.1. CC AR but he pleaded not guilty. According to Elvin Rustamov’s testimony he came into the Internet club in the afternoon on July 10, 2018, where he spent 3-4 hours and then headed toward the store department in order to go to Dalimammadli City of Goranboy region. That day, everybody were talking about the protest action. He was not acquainted with the action organizer. E. Rustamov saw many young people next to the administrative building and being curious he stopped nearby. In a matter of five minutes he was detained by the police although he denied his participation in the protest action. He declared that he hadn’t known anyone, hadn’t thrown stones, and neither had shown resistance nor injured anyone.
Neymat Heydarli was also accused of committing a crime under Article 220.1. CC AR but he pleaded not guilty. According to Neymat Heydarli’s testimony he stated that he had heard the news about the action of July 10, 2018 on the Internet, and he hadn’t made any declarations. That day he arrived to Ganja to see his mother who had been living with her father, his grandfather. While he was walking on Sabir Street he was approached by the policemen and asked what he had been doing there. N. Heydarli replied that he had arrived from Terter City. The policemen wondered if he was going to take part in the protest action. Despite the fact that he provided explanation concerning the purpose of his visit he was detained and brought to the Police department around 7 p.m. He has been already in the Police department when the action started, and obviously couldn’t participate in demonstration; he was not aggressive, and didn’t make any declaration or injure anyone.
At the trial all victims were police officers who gave practically identical testimonies. According to the criminal case evidences, all accused ones were provided very positive references from their home towns. The fact that all of them have dependent minor children was taken into account and it offered the peculiar mitigating circumstance.
During the trial the accused Vugar Khudiyev stated that, whilst detained in the Kapaz District Police Department of the city of Ganja he was subjected to terrible torture. According to Vugar Khudiyev’s testimony “The police attempted to break my spine-cord. They severely beat me but failed to break. They tied my hands and feet, and tied me up to a chair. They asked if I knew Rashad Boyukkishiyev. I answered that I hadn’t known him. I was so severely beaten so they finally broke my ribs. For two months I could not get up. Some guys, I knew, at Kurdakhani (The Detention Facility No. 1) asked a doctor to examine me, however, when the doctor found out that I was accused in “The Ganja case” he said that all doctors had been ordered not to examine those who accused in that case. I had been detained before the action actually started and it was a 15-day-administrative-detention. I was said that in 15 days I should return to Mingachevir and no longer come to Ganja.”
During the trial Vugar Khudiyev testified that he along with others was brought to the police headquarter where they had been severely treated, and the police informed them all about 15-day-detention. On lawyer’s question “Wasn’t a15-day-detention issued by Court?” on which Khudiyev replied “there was not any court, we were told by the police”. Khudiyev also testified that he hadn’t had a lawyer, his legitimate rights hadn’t been explained. As a result of terrible assault Khudiyev experienced partial memory loss.
The accused Neymat Heydarli trial filed a motion asking to demonstrate video filming that action-demonstration. The motion was granted. Heydarli was not captured on video; the presiding judge and all members of the process have watched it.
At the trial Elvin Nazarov told that he hadn’t been allowed to be visited by his family members during the 7-month-period. He showed his wrists with visible marks of torture. E. Nazarov described how he had been tortured: with his hands tied up he was pushed on the floor, and a man weighing about 150 kg sat on his handcuffed wrists. Handcuffs cut deep inside his hands. He was covered in blood. The other accused were also talking about the police brutal tortures.
March 1, 2019, the Ganja City Court on Grave Crimes found all six accused guilty of the charges and sentenced:
– Elvin Allahverdiyev to 7 years imprisonment;
– Elvin Nazarov to 7 years imprisonment;
– Vugar Khudiyev to 7 years imprisonment;
– Renat Mammadov to 6 years imprisonment;
– Elman Rustamov to 8 years imprisonment;
– Neymat Heydarli to 8 years imprisonment.
Commentary by expert lawyer:
The court sentence is unlawful and unjustified.
Article 12 of the Constitution of Azerbaijan reads: “Ensuring the rights and freedoms of citizen, a decent standard of living for citizens of the Republic of Azerbaijan is the highest priority of the state.” The rights and freedoms of citizens set forth in the Constitution of the Republic of Azerbaijan, in conformity of domestic and international law (laws, by-laws, international conventions).
Everyone is from birth endowed with inviolable, indefeasible and inalienable rights (Article 24 of the Constitution of the Azerbaijan Republic). One of the most important rights is the right to liberty and security of person. The right to liberty may be limited only in accordance with legally established procedure, that is through detention, retention in custody or imprisonment. The right to freedom is also regulated in Article 14 of the Criminal Procedure Code of the Azerbaijan Republic (CPC AR). “No one may be detained and placed in custody except on the grounds stipulated by the Code and other law of the Republic of Azerbaijan” (Article 14.2 of the Code of Criminal Procedure of the Azerbaijan Republic).
In addition to the norms of domestic law, the right to freedom is defined in International law. So, Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states:
“1. Everyone has the right to liberty and security of person. No one may be deprived of liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; “
Article 9 of the International Covenant on Civil and Political Rights also protects citizens from arbitrary arrest.
What does “reasonable suspicion” referred to in article 5 of the European Convention? In the judgment of the European Court of Human Rights in the case “Vloch versus Poland” of the 11thof May 2011, the Court describes this concept as follows, «In addition to the factual aspect, the existence of a ‘reasonable suspicion’ within the meaning of Article 5(1) (c) requires that the facts are to be sufficient in order to apply to one of the sections of the Criminal Code relating to criminal conduct. Thus, it is clear that a suspicion cannot be justified if the acts or facts attributable to the detainee did not constitute a crime at the time of their commission. In this case, it should be clarified whether the applicant’s detention was “lawful” within the meaning of subparagraph c) 1Article 5. The Convention mainly refers to domestic law but it also requires that any measure of deprivation of liberty be in conformity with the purpose of Article 5: to protect the individual from arbitrariness. (para. 109 of the Ordinance).
In the case commented above, investigators had no reasonable suspicion to detain the accused. Most of the defendants were detained either prior the beginning of action or in places distanced from the one where the action was held, i.e. they had no involvement in the alleged crime.
Article 220.1 of the Criminal Code of the Azerbaijan Republic states: “Organization of mass disorders accompanied by violence, pogroms, arson, destruction of property, use of firearms, explosives or explosive devices, as well as armed resistance to the authorities, or participation in such disorders shall be punishable by imprisonment for a term of four to twelve years”. The sentence doesn’t clarify what property was destroyed by the participants of the action, what kind of arson took place, who among the participants had firearms, explosives, etc. In addition, video footage from the square where the action took place was shown in court. Many of the defendants were not on the video. Then how can one accuse a person of a crime that he did not commit? In this case, the accused did not participate in the action, therefore, they could not use intentional physical force called violence or use of any weapons. The investigating body, as well as the court, did not prove the involvement of the accused in this crime and did not take into account that the investigation did not have reasonable grounds, which should have been further supported by concrete and irrefutable evidence.
According to Article 25.3 the Code of Criminal Procedure of the Azerbaijan Republic, judges and jurors reach decision on criminal cases or other materials related to criminal prosecution based on their inner conviction and legal consciousness, which are based on the study of evidence presented by the parties to the criminal proceedings in the court session. The prosecution was unable to submit to the court irrefutable evidence testifying to the involvement of the accused in the crime. According to Article 28.5 of the CPC of the AR, the court decision on the guilt of an accused party in committing a crime cannot be based on inferences and must be confirmed by a set of related and sufficiently relevant evidences.
According to Article 39.2 of the CPC of the AR, the criminal prosecution initiated against a person also ceases due to the fact that he or she was not involved in the crime committed or when the guilt was not proven. The prosecution failed to prove involvement of the accused in the incriminated crime, and the presented to the court evidences did not have sufficient grounds to convict them. All these circumstances are grounds for acquittal of the accused.
The testimony of the accused, victims and witnesses contained contradictions that the court did not eliminate. If the court was unable to eliminate these contradictions, it had to interpret them in favor of the accused and terminate the case, or make an acquittal. As mentioned above, there were no defendants on the video shown during the trial. During the trial the defendants admitted that they did not participate in the action (although they wanted to) and were detained before the action started or they were far from the square where the action took place. These serious issues were not taken into account interpreted in favour of the accused by the court.
It is also important to underline that all victims and key witnesses in the case are police officers.
The accused were not informed of their right to silence at the time of arrest. According to Article 66 of the Constitution of the Azerbaijan Republic, no one may be forced to testify against himself, his spouse, children, parents, brother or sister. This right is enshrined in article 6 (right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
At the trial, all the defendants told about the severe torture to which they had been subjected during the preliminary investigation. The defendants stated that they confessed during the investigation under torture. They described in detail all the torture, everything that happened to them. However, the court, in its verdict, stated that the accuser’s testimonies were of a protective nature and not accepted by the court.
The judgment of the European Court of Human Rights, Saunders v. the United Kingdom of 17 December 1996, states, “In any event, bearing in mind the concept of fairness in Article 6 (art. 6), the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature – such as exculpatory remarks or mere information on questions of fact – may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful. It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is put in the course of the criminal trial.
During the court all the accused told about tortures, which were applied towards them during preliminary investigation. Tortures are prohibited by local and international legislation. Article 15.2 of the Code of Criminal Procedure of the AR, prohibits during criminal investigation:
15.2.1. the use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment;
15.2.2. the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;
15.2.3. taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights.
Article 3 of European Convention prohibits tortures, inhuman or degrading treatment. Physical inviolability of a person (torture, illegal arrests, and personal searches) are indicators of the democracy in the society. According to general rule, treatment which Article 3 of European Convention prohibits, contradicts domestic rule by itself.
If the fact of unlawful and abnormal treatment occurs, the complaint on it should be reviewed by national criminal courts. Even during the hardest cases, such as the fight with terrorism and organised crimes, state authorities must abstain from any actions that might be viewed as the treatment prohibited by law. Such treatment is never allowed, cannot be justified even as effective method for fights with criminality.
It is the responsibility of the government to ensure that no-one is subjected to illicit treatment. Thus, if a person claims in his defence, that he was subjected to such treatment, there should be effective official investigation with a goal to establish persons responsible and their punishment. Such treatment must reach its minimum level to fall under described Article. The assessment of this minimum level is rather relative, it depends on all circumstances of the case, particularly, its duration, its influence on a physical and psychological condition, and in some cases on the sex, age, and health condition of the victim of such treatment. (Precedents of European Court on Human Rights, Michel de Salvia, 2004).
Most important in “Ganja case” is the use of torture against detainees and compel to testify against themselves.
On 10 December 1984, the UN General Assembly (Resolution 39/46) adopted the Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, which defined the concept of torture and stated that States under the Charter must take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction.
The Convention excluded all circumstances, whether a state of war or a threat of war, internal political instability or any other public emergency, stating that they could not be invoked as a justification of torture. The Convention was adopted with reference to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, as well as to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, adopted by the UN General Assembly on 9 December 1975.
Despite the existence of domestic and international law norms prohibiting torture, the Ganja court on serious crimes did not conduct any thorough and detailed investigation of the facts of torture, which were revealed by all the defendants and were repeatedly reported in mass media, stated by human rights activists at press conferences on the events in Ganja. Moreover, the court ignored this issue in any way in the indictment handed down in the case. Thus, the circle of persons involved in the acts of torture was not established, and the perpetrators of this crime were not brought to criminal responsibility.
Attention should also be paid to the testimony of victims that claimed to be police officers. Almost all of them spoke about the fact that they received different kind of injuries during the action. However, most of them could not identify offenders. Some of the defendants were detained before the action began and were not in the square during the confrontation between demonstrators and the police officers. At the trial the police said that the defendants had “intentions to disturb public order”. In order to find out whether the “intent” is an act of crime, attention should be paid to a matter of wording of what “crime» is. A crime is an act prohibited by criminal law under threat of punishment. (https://ru.wikipedia.org/wiki/Преступление).
An act, in criminal law, is an act of conscious and volitional conduct in the form of action or inaction, which has led to socially dangerous consequences. An act is an obligatory sign of the event of a crime and the objective side of the crime as its element (https://ru.wikipedia.org/wiki/Деяние_в_уголовном_праве).
It is clear from the foregoing that in order for an offence to be treated under criminal law it should correspond to an act as it is called differently in jurisdiction. The investigating authorities detained the defendants because of their “intention” to participate in the action on 10 July 2018. If there is no act or crime, there is no liability.
A number of important questions remained open and uninvestigated during the trial; why were the policemen ordered to be on duty on the day of the action without appropriate equipment, while the other days they were carrying handcuffs, Makarov pistol, and more? Why wasn’t security organized for the highest ranks of the police department? Why could Rashad Boyukkishiyev, who is the main suspect in the attack and the murder of a high-ranking official, go to the square with a huge dagger in his hands without hiding it, approach the police officers and strike a deadly blow? Has an internal command investigation been conducted into the killing of officers by the intelligence services?
Thus, a number of substantive and procedural rules of domestic and international law, as well as judicial precedents of the European Court of Human Rights, which were binding on States parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms, had been violated in respect of the accused