Last Updated on November 11, 2020 by LawEuro
FIFTH SECTION
CASE OF HAZIYEVAND OTHERS v. AZERBAIJAN
(Applications nos. 3650/12 and 4 others – see appended list)
JUDGMENT
STRASBOURG
5 November 2011
This judgment is final but it may be subject to editorial revision.
In the case of Haziyevand others v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Latif Hüseynov,
Mattias Guyomar, judges,
and Anne-Marie Dougin, ActingDeputy Section Registrar,
Having deliberated in private on 6 October 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in five applications (nos. 3650/12, 12016/12, 69878/13, 31474/14 and 40906/15) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Azerbaijani nationals, Mr SeymurMashgulogluHaziyev(SeymurMəşğuloğluHəziyev‑“the first applicant”),Mr MagrubAgamaliogluBadalli(Məğrub AğamalıoğluBədəlli‑“the second applicant”), Mr Abdulla KhdayberdioğluYolbarsov (Abdulla XdayberdioğluYolbarsov‑“the third applicant”), Mr MammadRasimogluAzizov (MəmmədRasimoğluƏzizov‑“the fourth applicant”) and Mr Murad GulahmadogluAdilov (Murad GüləhmədoğluAdilov‑“the fifth applicant”)(“the applicants”), on various dates (see Appendix).
2. The applicants were represented by various lawyers based in Azerbaijan (see Appendix). The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.
3. The applicants complained under Article 3 of the Convention that they had been ill-treated and that the domestic authorities had failed to investigate their complaints in this respect. The first applicant also complained under Article 10 of the Convention that his right to freedom of expression had been violated. The second applicant furthermorecomplained of the unlawfulness of his deprivation of liberty and the lack during his detention of an effective procedure by which to challenge the lawfulness of his detention in breach of Article 5 of the Convention. The second applicant also complained under Article 8 of the Convention about breach of his right to respect for his private life and home.
4. On 4 May 2017 the Government were given notice of the complaints under Articles 3, 5, 8and 10 of the Convention,and the remaining parts of the applications were declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants’particulars are given in the Appendix.
A. Thefirstapplicant, MrHaziyev
1. The first applicant’s alleged ill-treatment
6. The first applicant was a journalist at an opposition-oriented newspaper, Azadlig.
7. On 15 May 2010 he was detained a few hours before an unauthorised opposition protest held in Baku. On the same day the Narimanov District Court convicted him under Article 310.1 of the Code of Administrative Offences of failure to comply with a police order and sentenced him to seven days’ administrative detention.
8. According to the first applicant, at around 2 p.m. on 17 May 2010 at the administrative detention centre of the Binagadidistrict police station a prison warder, A.A., took the applicant from his cell to another one, where there were two persons in plain clothes who were unknown to the applicant, and left him there. The applicant submitted that those persons had asked him the reason for his writing critical articles about the President of the Republic of Azerbaijan and had shouted and threatened him if he did not stop reporting on the President. Allegedly, they had pushed him towards the wall and had hit him on different parts of his body approximately ten to fifteen times (at short intervals). According to the applicant, each time he had been hit he had undergone physical pain and mental suffering. Allegedly, they had beaten him on his legs and forced him to lean against the wall for an hour with his legs spread apart, until he had fainted. After he had regained consciousness, A.A. had taken him to his cell, where he had been incapable of walking for thirty minutes and had continued to suffer physical pain.
2. The remedies used by the first applicant
9. On 27 July 2010 the applicant lodged a criminal complaint with the Binagadi district prosecutor’s office and the Binagadi district police station, asking them to open an investigation in respect of his ill-treatment on 17 May 2010 and to award him compensation for the alleged ill-treatment. He never received a reply to that complaint.
10. On 13 October 2010 he lodged a new complaint with the Binagadi district prosecutor’s office, alleging that there had been no investigation into his previous complaints of ill-treatment and requesting that he be informed of the outcome of that new complaint.
11. By a letter of 12 November 2010 the Binagadi district prosecutor’s office informed the applicant that (i)on 10 August 2010 the Binagadi district police station had decided not to open criminal proceedings, but that on 12 November 2010 that decision had been annulled by the prosecutor’s office owing to the lack of an objective and thorough criminal inquiry into the applicant’s case; and (ii)the case had been sent back to the Binagadi district police station.
12. In a letter of 15 January 2011 lodged with the Binagadi district prosecutor’s office and the Binagadi district police station, the applicant stated that he had attended the Binagadi district police station to give a statement, but that he had neither been questioned nor informed of the identity of the investigator in charge of his case. He had also requested copies of the decisions of 10 August and 12 November 2010 and had asked to be informed of the status of the pending investigation.
13. On 27 July 2011 the applicant lodged a complaint with the Binagadi District Court regarding the failure of the Binagadi district police station to conduct a proper investigation and to inform him of the outcome of the proceedings. In particular, he mentioned that he had not been questioned by the police and had not been provided with any copies of the decisions issued in respect of his case. During the hearing in respect of that complaint before the Binagadi District Court the applicant was informed that on 2 December 2010 the Binagadidistrict police station had decided not to open criminal proceedings. The applicant was also provided with copies of the decisions dated 10 August and 2 December 2010 not to open a criminal case.
14. According to the Binagadi district police station’s decision of 10 August 2010 not to open a criminal case, the investigator had relied on the testimony of three officers of the administrative detention centre of the Binagadidistrict police station – D.Z., E.M. and S.H. – who had denied the applicant’s ill-treatment allegations. According to the decision of 2 December 2010, as part of further investigational measures the same investigator had questioned A.A. (another prison officer), who had also denied the first applicant’s allegations of ill-treatment.
15. On 20 October 2011 the applicant lodged a complaint with the Binagadi District Court against the decision not to institute a criminal case. He complained that the Binagadi district police station had failed to conduct an effective investigation given that, inter alia, only the officers of the detention centre had been questioned, and not the inmates who had shared a cell with him and who had witnessed his poor physical condition after his return to the cell following his ill-treatment on 17 May 2010. He also submitted written statements by his cellmates, D.B. and E.A., regarding his physical condition after his alleged ill-treatment.
16. On 27 October 2011 the Binagadi District Court held that the decision of 2 December 2010 had been lawful. The court also referred to the absence of any comments by the applicant regarding his alleged ill‑treatment in the record that he had signed upon his departure from the detention facility.
17. In his appeal of 31 October 2011 the applicant complained that the first-instance court had not conducted a proper examination of his claims, and that in particular (i) the first-instance court had not identified whether the detention facility at which he had been kept had had security camera recordings; (ii) the first-instance court had not identified whether on 17 May 2010 the applicant had been temporarily transferred to another cell; (iii) the prosecuting authorities had not, in order to identify the perpetrators, compiled a list of the people who had entered the facility on 17 May 2010; and (iv) the first-instance court had not questioned the witnesses, including his cellmates, D.B. and E.A. The applicant also mentioned that for the purposes of the record of his departure from the detention facility he had been asked questions only about detention conditions; hence the record only contained his answers to those questions.
18. By a decision of 14 November 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision.
B. Thesecondapplicant, MrBadalli
1. The second applicant’s detention and alleged ill-treatment
19. On 25 December 2010 criminal proceedings under Article 221.3 (Hooliganism) of the Criminal Code were instituted in respect of the second applicant, who was suspected of inflicting minor bodily injury on Q.M. (his former state-appointed lawyer who had represented him in another set of proceedings).
20. On 28 February 2011 Sabail district police station issueda decision to formally recognise the applicant as an accused (təqsirləndirilən şəxs qismində cəlb etmə). On 2 March 2011 the authorities decided to mount a search for him on the grounds of his having absconded from the investigation. The copy of the decision of 2 March 2011 was not made available to the Court.
21. On 23 March 2011 officers of the Sabail district police stationNo. 39 arrested the applicant at his home. At around 6 p.m. on 23 March 2011, when he was lying sick in bed with a high fever due to a cold, eight plainclothes officers of the Sabail district police station, including N.A. and S.F., entered his house. The applicant submitted that they had demanded that he either accompany them to the police station or pay a bribe to avoid arrest. The applicant also submitted that he had objected, asking the officers to furnish him with more information and an arrest warrant, but that the officers had insulted him and that one of the officers had hit him on the head; he had then been taken to the police station in his underclothes and without shoes.
22. The applicant submitted that on 23 March 2011 he had been kept for three hours at the police station, where the police officers had handcuffed him and then beaten and insulted and bullied him. The applicant also claimed that one of the police officers had hit his head against the wall, so that his head had started bleeding. According to the applicant, he had not been given medicine and water, despite his having a high fever and had not been allowed to call home or been provided with a lawyer.
23. The applicant also claimed that upon his transfer to the temporary detention centre of the Sabail district police station, the doctor at that centre had noted an injury on his head and blood spots on him.
24. The doctors of the Baku Medical Emergency Service examined the applicant twice after being called by the police at 9.53 p.m. on 23 March 2011 and at 12.12 a.m. on 24 March 2011, respectively. Those medical reports were not made available to the Court. According to the decision of 15 April 2011 not to open a criminal case, a report of 4 April 2011 by the Baku Medical Emergency Service indicated that the doctors had recorded acute respiratory illness during the first medical examination and the findings of a general examination conducted during the second examination.
25. On 23 March 2011 the criminal proceedings were resumed,following the applicant’s arrest. On 24 March 2011 he was charged with the criminal offence of hooliganism under Article 221.3 of the Criminal Code. The applicant submitted that he had given self-incriminating testimony because of pressure exerted by the investigator, who had promised to release him from custody if he gave self-incriminating testimony.
26. On 25 March 2011 the applicant was released on an undertaking not to leave his place of residence.
2. The remedies used by the second applicant
27. On 28 March 2011 the applicant lodged a criminal complaint with the Prosecutor General’s Office, alleging unlawful detention, unlawful intrusion by the police into his home and ill-treatment by the police. With regard to his detention, he complained that he had never been summoned to the Sabail district police stationin connection with the criminal case instituted against him; moreover, having lived at the same address for more than twentyyears he had never been likely to abscond from the investigation or be unavailable to receive a summons, so there had never been any need for his arrest and he had been detained unlawfully without any court order. He also noted that he had not been allowed to contact his family members during his detention.
28. With regard to his alleged ill-treatment during his arrest, he stated that the officers had applied excessive physical force in taking him to the police station without regard, inter alia, for the illness he had visibly been suffering from. A fifty-year-old person with a category 1 disability, he had been lying in bed with a high fever due to his being sick at the time in question and had been taken to the Sabail district police stationhalf naked, in his underclothes and without shoes by eight police officers.
29. As regards the alleged ill-treatment in police custody,he stated that he had been handcuffed, beaten and bullied by the police officers, as a result of which he had undergone physical and mental suffering. He had sought compensation and rehabilitation following the ill-treatment.
30. The applicant was examined by a forensic expert, who produced a forensic report dated 7 April 2011. The text of the report was not made available to the Court. It follows from the investigator’s decision that the report did not reveal any sign of injuries on his person, except for injuries on his wrists caused by his handcuffing (see paragraph 31 below).
31. On 15 April 2011 an investigator of the Sabail district prosecutor’s office issued a decision refusing to open a criminal case. The investigator concluded that the applicant had not been ill-treated during his arrest and while in police custody. In that connection, he relied on the testimonies of six police officers involved in the applicant’s arrest. The police officers, who had denied the ill-treatment allegations, had stated that two of them had shown the applicant an arrest warrant and that when the applicant had refused to comply with their request to follow the officers to the Sabail district police stationhe had been taken there forcibly after additional officers had been summoned. They had furthermore stated that at the police station the applicant had not been ill-treated, but that he had been handcuffed to prevent his attacking the officers, in particular, after he had hit with hands and legs N.A., one of the police officers who had arrested the applicant. Moreover, the investigator referred to (i) the forensic report of 7 April 2011, according to which there had been no sign of injuries on the applicant’s body apart from the ones on his wrists caused by his handcuffing; and (ii) a report dated 4 April 2011 issued by the Baku Medical Emergency Service, according to which its doctors recorded acute respiratory illness during the first medical examination of 23 March 2011 and the findings of a general examination conducted during the second examination on 24 March 2011. The investigator furthermore noted that the applicant had been arrested and detained lawfully, given that the arrest had been ordered in order to ensure his appearance before the prosecuting authorities.
32. On 3 May 2011 the applicant lodged a complaint under the judicialreview procedure with the Sabail District Court against the prosecutor’s decision. He complained in particular that the investigator had failed to question his wife as a witness to his arrest at home and had not taken into account the fact that he had been subjected to psychological and physical suffering, which had been confirmed by the medical certificate on the treatment that he had received (upon his release)after a stay in the hospital of the Ministry of Internal Affairs (a state-run hospital) from 30 March until 11 April 2011. According to that medical certificate, the applicant had undergone inpatient treatment for acute asthenoneuroticsyndrome caused bya closed craniocerebral injury.
33. On 17 June 2011 the Sabail District Court dismissed the applicant’s complaint, finding the decision not to open a criminal case to have been lawful. With regard to the detention, the court relied on a letter from the deputy head of the Sabail district police stationinforming the court that at the material time the police had informed the chairman of the Sabail District Court of the transfer of the applicant to the above-mentioned temporary detention centre (see paragraph 23 above).
34. On 27 June 2011 the second applicant appealed against that decision, reiterating his previous complaints. By a decision of 21 November 2011 the Baku Court of Appeal upheld the first‑instance court’s decision.
C. Thethirdapplicant, MrYolbarsov
1. The third applicant’s arrest and alleged ill-treatment
35. According to the applicant, on 18 September 2012 he was arrested on suspicion of complicity in a theft committed on 14 September 2012 and was detained in the temporary detention facility of the Sabail district police stationNo. 9.
36. The applicant submitted that on the same date, in the room of officer A.M., he had been beaten by three police officers, who had made him sit with his legs outstretched and that an officer had then sat on a chair placed over his legs, while A.M. had beaten him on the soles of his feet with a rubber truncheon with the aim of extracting testimony against other persons allegedly involved in the theft. When he had told the officers that he did not have additional information, the officers had punched him to the ground, removed his trousers and threatened to rape him with the truncheon if he did not provide further information. Then they had continued to beat him while he was lying on the ground.
37. According to the documents in the case file the applicant was arrested as a suspected person on 20 September 2012. On 21 September 2012 he was charged with theft under Article 177 of the Criminal Code. On the same day the Sabail District Court ordered his detention for a period of two months.
2. The remedies used by the third applicant
38. On 21 September 2012 the third applicant’s sister hired a lawyer to represent the applicant. According to the applicant, the lawyer was not authorised by the investigating authorities to meet him.
39. On 22 September 2012 the applicant was transferred to the Baku Detention Centre, which allegedlyhad refused the lawyer’s request to be allowed to meet with the applicant, stating that the investigator had not given his consent or submitted written approval in that regard. The lawyer complained of a violation of the defence rights to the relevant authorities.
40. On 24 September 2012 the lawyer sent an enquiry to the temporary detention facility of the Sabail district police station, asking to be provided with information on the date of the applicant’s arrival in that facility, the state of his health on that date, the results of the medical examination of the applicant conducted following his arrival at the facility and a copy of the relevant medical records produced in that regard. He was informed by a letter dated 31 October 2012 that the requested documents were not available, since they had already been sent to the Baku Detention Centre, where the applicant had been transferred.
41. By a letter of 24 September 2012 the lawyer asked the Ministry of Internal Affairs, via its special “hotline”, to examine the security camera recordings of the Sabail District police station No. 9 in order to identify whether on 18 September 2012 the applicant had been subjected to physical force and in particular whether he had had traces of ill-treatment on him or had moved in the manner of a person suffering from physical pain while walking; the lawyer also enquired whether it might be possible for him to be provided with the relevant security camera recordings. In response, on 2 October 2012 he was informed that the Sabail district police stationpossessed the recordings in question.
42. On 25 September 2012 the applicant’s sister sent telegrams to the Sabail district police station and the Prison Service Department of the Ministry of Justice requesting assistance in addressing her brother’s complaints of ill-treatment and of his having been denied access to the lawyer of his own choice to conceal traces of his ill-treatment.
43. On 27 September 2012, during the appeal hearing against the first‑instance court’s decision to remand the applicant in custody, the applicant’s lawyer met the applicant for the first time. The applicant’s lawyer lodged a request with the judge of the Baku Court of Appeal, asking him to request the Prosecutor General’s Office to open a criminal case in the light of the multiple injuries found on the applicant’s legs – in particular, haematomas on the soles of his feet. Allegedly, during the appeal hearing the applicant also showed injuries on his body to the judge. The same day the judge sent a letter to the Sabail district prosecutor’s office requesting the examination of the applicant’s complaints of ill-treatment. By a decision of 27 September 2012 the appellate court upheld the order for the applicant to be remanded in custody.
44. On 28 September 2012 the applicant’s lawyer sent a letter to the head of the Baku Detention Centre informing him that he had seen the injuries on the applicant’s body and requesting that an examination of the applicant be undertaken. On 3 October 2012 the applicant again wrote to the head of the Baku Detention Centre requesting information on the outcome of his request of 28 September 2012. By a letter of 5 October 2012 the head of the Baku Detention Centre informed the applicant’s lawyer that upon the applicant’s arrival at the detention facility on 22 September 2012 no injury had been found on the applicant’s person and that he had not complained about the state of his health at the material time.
3. Inquiry into the alleged ill-treatment
45. On an unspecified date in 2012, on the basis of a request sent by the Baku Court of Appeal judge hearing the applicant’s appeal in respect of his detention, the Sabail district prosecutor’s office opened a criminal inquiryinto the alleged ill-treatment.
46. In his testimony to the prosecutor’s office the applicant mentioned that his body still bore traces of the alleged ill-treatment and that he wanted to undergo a forensic medical examination.
47. On the basis of a decision adopted by the Sabail district prosecutor’s office on 17 October 2012 on the appointment of a forensic medical expert, on 6 November 2012 the applicant was examined by a forensic expert. The forensic report issued, on 4 December 2012, reads as follows:
“…[Examination:] There is a pale brown-violet spot of an indefinite shape, measuring 3.5 by 2 cm, pigmentation on one-third of the front-inner side of the right thigh. No other injuries or traces of injuries were discovered on other parts of the body. … That pigmentation could have emerged as a result of any pathological process in progress on the skin …”
48. By a decision of 4 December 2012 the Sabail district prosecutor’s office refused to open a criminal case, finding that there was no evidence that the applicant had been ill-treated by the police. In that regard, the prosecutor’s office relied on the forensic expert’s report and the testimony of the three police officers involved in the applicant’s arrest, who denied the infliction of ill-treatment on the applicant.
49. On 1 March 2013 the applicant’s lawyer lodged a complaint with the Sabail District Court against that decision. He complained that the applicant had been ill-treated by the police while in police custody on 18 September 2012 and that the domestic authorities had failed to conduct an effective investigation in that respect. He noted, in particular, (i) that the forensic expert examination had been carried out belatedly, so most of the applicant’s bodily injuries had disappeared by the time that the examination had been undertaken; (ii) the forensic expert opinion report was not clear regarding the characteristics of the pigmentation found on the applicant’s person in that it did not clarify the symptoms and the origin of the condition, whether it was treatable and – in the event that the applicant received medical assistance – the outcome of such treatment; and (iii) the prosecutor’s office had relied mainly on the testimony of the police officers involved in the applicant’s alleged beating. On 19 March 2013 the Sabail District Court dismissed the applicant’s complaint, finding the decision notto open a criminal case lawful.
50. On 27 March 2013 the applicant’s lawyer lodged an appeal against that decision with the Baku Court of Appeal, reiterating his previous complaints. He also added that the applicant was mentally ill, and had thus been in a particularly fragile condition while in police custody.
51. By a decision of 1 April 2013 the Baku Court of Appeal upheld the first-instance court’s decision, dismissing the applicant’s appeal as unsubstantiated.
D. Thefourthapplicant, MrAzizov
1. The fourth applicant’s alleged ill-treatment
52. The applicant was a member of the NIDA civic movement (hereinafter “NIDA”), whose members had participated in demonstrations of January and February 2013 held in Baku to protest against the death of soldiers serving in the Azerbaijani army.
53. On 11 January 2013, a day before one of the above-mentioned demonstrations, the applicant was arrested by police officers and taken to the Sabail district police station No. 9. The applicant submitted that officers had questioned him about his role in the planning of the demonstration and had punched and kicked him and beaten him with a truncheon, before releasing him on 12 January 2013.
54. On 7 March 2013 the applicant was arrested by plainclothes officers of the Ministry of National Security (hereinafter “the MNS”) in Baku city centre allegedly without any explanation. The applicant submitted that they had dragged him into a car, punched him in the head several times, and taken him to his home in order to conduct a search of it.
55. The applicant submitted that on 8 March 2013, while questioning him, two MNS officers had forced him to give a statement incriminating himself and other members of NIDA by threatening to arrest his father and to cause complications in respect of his case. In his statement he mentioned, inter alia, that NIDA had been involved in an attempted coup d’état; his statements were aired on some national television channels the same day.
56. On 9 March 2013 he was charged under Article 234.1 of the Criminal Code with the criminal offence of illegal possession of a quantity of narcotic substances exceeding that necessary for personal use without any intent to sell them (Qanunsuz olaraq narkotik vasitələri, psixotrop maddələri və ya onların prekursorlarını hazırlama, istehsal etmə, əldə etmə, saxlama, daşıma, göndərmə və ya satma). In September 2013 he was charged with further criminal offences under Articles 28 (Preparing to commit a criminal offence), 220.1 (Mass disorder) and 228.3 (Illegal possession of weapons by an organised group) of the Criminal Code.
57. By a decision of 9 March 2013 the Nasimi District Court ordered that the applicant be remanded in custody in the Baku Detention Centre. According to the applicant, his family had been informed of his whereabouts on 9 March 2013. On an unspecified date during his detention at the MNS, his family appointed a lawyer of their choice. From 7 March until 18 March 2013 the applicant was detained at the MNS; on 18 March 2013 he was transferred to the Baku Detention Centre. The applicant met his lawyer for the first time on an unspecified date after his transfer to the Baku Detention Centre.
58. On 14 March 2013 during a cross-examinationwith his co-accused, R.H., another member of NIDA, the applicant retracted his testimony incriminating R.H. and other members of NIDA, stating that he had given his earlier incriminating testimony under duress. The applicant submitted that in response to that retraction, the questioning officers had threatened him in the presence of R.H. and interrupted the questioning to take him to another room. According to the applicant, MNS officers M.G. and A.M. had then handcuffed his hands behind his back, slapped him in the face, and punched, kicked and beaten him with truncheons and as a result, he had limped on his right leg for four days, his ear had started to hurt, and his hearing ability had been temporarily damaged.
59. According to the applicant, after his transfer to the Baku Detention Centre hehad received, at his own request, medical treatment for his ear pain and hearing problems. The medical document in this connection was not made available to the Court.
2. Remedies used by the fourth applicant with regard to the alleged ill‑treatment
60. On 16 April 2013 the applicant lodged a complaint with the Prosecutor General’s Office, requesting that a criminal case be opened in respect of the alleged ill-treatment inflicted on him on 11 January, 7 March, and 14 March 2013. He asked the Prosecutor General’s Office to question witnesses – including B.G. (another member of NIDA who had been arrested together with him by police officers on 11 January 2013) and R.H. ‑ on his behalf and to obtain the security camera recordings of the Sabail District police station No. 9 and the MNS of 11 January and 14 March 2013 respectively. He also mentioned that the bruises on his person and his limp had cleared up by the time of his transfer to Baku Detention Centre and that it had been impossible for him to obtain medical certification of his injuries owing to his having been denied access to his family and the lawyer appointed by his family, except in respect of the pain in his left ear and his hearing problems (for which he had sought medical treatment at the Baku Detention Centre). The applicant declined the offer of an examination by a forensic expert, stating that the injuries to his person had already cleared up.
61. On 4 June 2013 the Prosecutor General’s Office refused to open a criminal case. It relied mainly on the lack of bodily injuries on the applicant and the testimony of some of the officers involved in the fourth applicant’s arrest and detention, who denied the ill-treatment allegations.
62. In an appeal of 9 September 2013 against the decision not to open a case, the applicant submitted that the investigation had failed to properly examine his complaint of ill-treatment.
63. On 27 September 2013 the Sabail District Court dismissed the applicant’s complaint, finding the decision not to open a criminal case lawful.
64. On 30 September 2013 the applicant lodged an appeal with the Baku Court of Appeal against that decision, reiterating his previous complaints.
65. On 7 October 2013 the Baku Court of Appeal dismissed the applicant’s appeal, upholding the first-instance court’s decision.
E. Thefifthapplicant, MrAdilov
1. The fifth applicant’s alleged ill-treatment
66. The applicant is an opposition activist and co-founder of the youth organisation of the opposition Popular Front Party.
67. At around 4 p.m. on 11 August 2014, when the applicant and an acquaintance were driving in the latter’s car in the district of Sabirabad, they were stopped by up to ten plainclothes officers of the Narcotics Department of the Ministry of Internal Affairs (“the NDMIA”) and the Sabirabad District police station. The applicant submitted that they had dragged him out of the car, punched and hit him in the head and body, handcuffed him and dragged him into their car. The applicant furthermore submitted that on their way to the Sabirabad District police station, one of the officers sitting next to him in the back seat had slipped narcotic substances into his pockets. After travelling between two and two and a half kilometres the car had stopped in the middle of the road, a search of the applicant had been conducted and narcotic substances had been found on his person. According to the search record, 3.93 grams of marijuana and 113.17 grams of hashish were found on him. He refused to sign the search record.
68. The applicant submitted that after his arrival in the Sabirabad District police station, in the office of V.S., the head of the Criminal Investigation Department, he had been beaten by five officers of the NDMIA and two other police officers after he had refused to testify that the drugs found on his person had belonged to him. He had been beaten with a truncheon on the soles of his feet, back, legs and thigh for about an hour and had been insulted.
69. On 12 August 2014 the applicant was questioned as a suspect and on 13 August 2014 he was charged with criminal offences under Article 234.4.3 (The illegal preparation, production, possession, storage, transportation and sale of a large quantity of narcotic substances) of the Criminal Code. During questioning, the applicant complained of having been beaten at the Sabirabad District police station with the aim of extracting a confession from him.
2. The inquiry into the fifth applicant’s alleged ill-treatment
70. On 13 August 2014 the fifth applicant lodged a complaint of ill‑treatment with the Narimanov District Court, which had ordered that he be remanded in custody. The same day the court sent a letter to the Prosecutor General’s Office, asking that the fifth applicant’s ill-treatment complaints be examined.
71. On 15 August 2014 the applicant was transferred to the Baku Detention Centre. According to the medical record drawn up on 16 August 2014, during the applicant’s arrival at the Baku Detention Centre, the applicant had a big violet bruise on the upper one-third portion of the inner side of his left thigh. The record also noted the applicant’s comment about being beaten during his arrest and detention in police custody.
72. On the basis of the applicant’s testimony of 12 August 2014 and a request lodged by the Narimanov District Court, the Prosecutor General’s Office conducted a criminal inquiry into the complaint of ill-treatment.
73. On unspecified dates a forensic examination was ordered and the applicant underwent forensic examination. According to the forensic expert report dated 5 September 2014, no bodily injury was found on the fifth applicant’s person. The copy of the report was not made available to the Court.
74. By a decision of 2 October 2014 the Prosecutor General’s Office declined to open a criminal case. According to the decision, the testimony of the officers involved in the applicant’s detention and a forensic expert report dated 5 September 2014, which had found no bodily injury on the applicant had indicated that his claims were unsubstantiated.
75. On 22 December 2014 the applicant’s lawyer received a copy of that decision, having complained to the prosecutor’s office on 26 November 2014 that the applicant had not been provided with a copy of it.
76. On 5 January 2015 the applicant lodged a complaint with the Sabail District Court against the decision of the Prosecutor General’s Office not to open a criminal case. He complained, inter alia, that in the course of the criminal inquiry the prosecutor’s office had not enquired whether the applicant had been carrying any bodily injury upon his entering the Baku Detention Centre; that an acquaintance of the applicant, who had observed the treatment of the applicant during his arrest on 11 August 2014 had not been questioned as a witness; and that the prosecutor’s office had relied mainly on the testimony of the police officers who had ill-treated the applicant.
77. On 16 January 2015 the Sabail District Court dismissed the applicant’s complaint, holding that the decision of the Prosecutor General’s Office not to open a criminal case had been justified. It also held that given the fact that the indictment on drug charges in the applicant’s case had already been sent to the Lankaran Serious Crimes Court, which had been designated to examine his case on the merits, that court could hear the applicant’s complaint of ill-treatment.
78. On 19 January 2015 the applicant lodged an appeal, complaining that the Sabail District Court’s decision had been insufficiently reasoned and that referring the applicant’s complaint to another court had been unjustified. He also asked the appellate court to request the Baku Detention Centre to provide the court with the reports on the medical examinations of the applicant conducted upon his transfer to that facility.
79. On 30 January 2015 the Baku Court of Appeal dismissed the applicant’s appeal, upholding the first-instance court’s decision.
80. According to the applicant, on an unspecified date his lawyer lodged a request with the Baku Detention Centre, asking it to provide him with the report on the medical examination that the applicant had undergone upon his arrival at this facility. He did not receive response to this request.
81. On 5 February 2015 theLankaran Serious Crimes Court, in charge of the criminal case against the applicant, asked the Baku Detention Centre to respond to the enquiries of the applicant’s lawyer. In a letter of 17 February 2015 the head of the Baku Detention Centre informed the court that the applicant, who had entered the detention facility on 15 August 2014, had had a big violet bruise on the upper third of the inner side of his left thigh and that according to the record drawn up upon his arrival, the applicant had stated that he had sustained this injury as a result of police violence while being arrested and held in police custody.
II. RELEVANT DOMESTIC LAW
82. The relevant domestic law concerning the prohibition of ill-treatment is summarised in the case of MustafaHajili v. Azerbaijan (no. 42119/12, §§ 26-28, 24 November 2016).
83. The following are the provisions of the Code of Criminal Procedure (“the CCrP”), as in force at the material time, relevant to the second applicant’s detention.
84. Under Article 150.1 (Detention of a person in order to bring charges) of the CCrP, if the evidence collected in respect of a criminal case gives grounds to suppose that a person has committed a criminal offence, and if that person lives in another country or his or her whereabouts are not known, the investigator or prosecutor may issue a decision to detain him or her. In the event that a person hides from the prosecuting authorities or intentionally fails to comply with a summons, the investigator or the prosecutor shall issue a “wanted” notice, in addition to a decision to detain the person in order to charge him or her.
85. Under Article 150.2 of the CCrP, any official of a criminal inquiry authority, investigator or prosecutor who traces a suspect shall execute the relevant decision to detain that suspect in order to charge him or her and shall immediately inform the relevant investigator or prosecutor of that step.
86. Under Article 150.3 of the CCrP, the length of the detention of a suspect to bring charges against him or her cannot exceed forty-eight hours. To remand a detained person in custody, he or she must be brought before the court within forty-eight hours of his or her detention in order for the court either to order that preventive measure or to release him or her.
87. Article 178 (Enforced appearance) of the CCrPreads as follows:
“178.1. Enforced appearance shall entail bringing a person by force to the authority conducting criminal proceedings and forcibly ensuring his participation in investigative or other procedures.
178.2. This measure may be applied to a person participating in criminal proceedings and summoned by the authority conducting criminal proceedings only in the following circumstances:
178.2.1. if he fails without good reason to attend in response to a compulsory summons of the authority conducting criminal proceedings;
178.2.2. if he evades receipt of a summons from the authority conducting criminal proceedings;
178.2.3. if he hides from the authority conducting criminal proceedings;
178.2.4. if he has no permanent place of residence.
178.3. Children under the age of fourteen, pregnant women, persons who are seriously ill and victims bringing a private criminal prosecution may not be forcibly brought before an authority conducting criminal proceedings …”
THE LAW
I. JOINDER OF THE APPLICATIONS
88. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment, in accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
89. The applicants complained that they had been ill-treated and that the domestic authorities had failed to conduct an effective investigation into their ill-treatment. The applicants relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
90. The Court notes that thesecomplaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Alleged failure to carry out an effective investigation
(a) The parties’ submissions
91. The applicants maintained their complaints.
92. The Government submitted that the domestic authorities had conducted an effective investigation into the applicants’ allegations of ill‑treatment.
93. The Government furthermore submitted that the first applicant had not acted diligently by lodging his criminal complaint with the investigating authorities two months after his release and had not submitted any medical evidence that he had sustained any injury during his detention. Theprosecuting authorities had not been able to obtain the video recordings from security cameras situated in the detention facilitywhere the first applicant had been heldowing to the expiry of the time-limit (one month) for keeping those recordings.
(b) The Court’s assessment
94. The Court refers to the principles established in its case‑law as to the procedural limb of Article 3 set out in the El-Masrijudgment (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 182‑85, ECHR 2012), which are equally pertinent to the present cases.
95. The applicants’ complaints made before the domestic authorities contained enough specific information – the date, place and nature of the alleged ill-treatment to constitute an arguable claim in respect of which those authorities were under an obligation to conduct an effective investigation (see Mammadov and Others v. Azerbaijan, no. 35432/07, § 124, 21 February 2019; NicolaeVirgiliuTănase v. Romania [GC], no. 41720/13, § 115, 25 June 2019; and Volodina v. Russia, no. 41261/17, § 77, 9 July 2019).
96. In the present cases the investigating authorities conducted criminal inquiries and refused to open criminal cases. Their decisions were upheld by the domestic courts.
97. The Court notes that despite its explicit requestthe Government has not provided the relevant case files relating to the present cases.
98. In view of the available material in its possession and the parties’ submissions the Court notes that the criminal investigations in each of the present cases have been plagued by a combination of the same or similar defects. The domestic authorities failed to take effective investigative measures and all steps reasonably available to them to secure the evidence concerning the applicants’ allegations, despite explicit requests lodged by the latter for them to do so. In particular, in certain cases: the investigating authorities failed to question the applicant (the first applicant, see paragraph 12 above) or the key witnesses on behalf of the first (see paragraph 17 above), second (see paragraph 32 above), fourth (see paragraph 60 above) and fifth (see paragraph 76 above) applicants, despite the latter requesting them to do so; the forensic examination was conducted only after a delay, which allegedly hindered the proper documentation of the claimed injuries (a delay of two months in the third applicant’s case, see paragraph 47 above and around a month in the fifth applicant’s case, see paragraph 73 above); the third applicant’s complaints regarding the quality of the forensic report were not addressed properly (see paragraph 49 above); and the security camera recordings from the police stations or detention facilities where the first (see paragraph 17 above), third(see paragraph 41 above) and fourth (see paragraph 60 above) applicants had been detained were not obtained or examined. Moreover, despite the first applicant’s specific procedural requests, the investigating authorities did not examine whether he had been temporarily transferred to another cell, where he had allegedly been attacked by two plainclothes persons nor did they compile a list of people who had allegedly entered the detention facility on the date of the alleged ill-treatment (see paragraph 17 above).
99. Furthermore,the third and fourth applicants complained that following their alleged ill-treatment they had not been allowed – despite their lodging relevant requests – to contact their families nor been given access to their lawyers (specifically, the lawyers of their own choice) for some period of time after their detention, which had allegedly resulted in the disappearance of the traces of the impugned ill-treatment on their persons. For example, the third applicant submitted that he had been allowed to meet the lawyer of his own choice only around ten days after the alleged ill‑treatment in question. The Court emphasises that contact with family members and access to a lawyer are among the significant legal safeguards against ill-treatment (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008; Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 255, 13 September 2016; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 112, 12 May 2017).
100. Moreover, in the third applicant’s case, the criminal complaint lodged by his lawyer with the investigating authorities was ignored. It is only following the Baku Court of Appeal’s request (see paragraph 45 above) that the investigating authorities examined the third applicant’s ill‑treatment allegations andhis forensic medical examination was ordered.
101. The investigating authorities also failed to keep the first and fifth applicants informed of the progress of the investigation in a timely manner and the applicants did not have proper access to their case files, despite their lodging requests and complaints in this connection. For example, the first applicant was provided with the decisions dated 10 August and 2 December 2010 not to open a criminal case only during the court proceedings that he launched in June 2011 concerning the investigator’s failure to conduct an investigation in respect of his case. As regards the fifth applicant, he was also provided with the decision dated 2 October 2014 not to open a criminal case in a very belated manner, and received his medical record of 15 August 2014 concerning his initial examination at the detention facility only in February 2015, following multiple requests lodged by him in this connection. Those applicants were thus deprived of the possibility to acquaint themselves with the progress of the proceedings and safeguard their procedural interests in an effective manner.
102. Moreover, in the present cases, the domestic authorities, having refused to institute criminal cases, did not provide any plausible explanation as to why the pieces of evidence in support of the applicants’ claims were considered less credible than, inter alia, the statements of the witnesses against the applicants – in particular the representatives of the state authorities (see Mustafa Hajili v. Azerbaijan, no. 42119/12, § 52, 24 November 2016).
103. The foregoing considerations are sufficient to enable the Court to conclude that the investigations into the applicants’ claims of ill-treatment were ineffective.
104. There has accordingly been a violation of Article 3 of the Convention under its procedural limb in respect of all the applicants.
2. Alleged ill-treatment of the applicants
(a) The parties’ submissions
105. The applicants maintained their complaints.
106. The Government submitted that the applicants had not been subjected to inhuman or degrading treatment. Theapplicants had failed to submit any evidence, including medical documents, to show that they actually had been ill-treated. The medical documents submitted by the applicants did not indicate any injuries on their persons. Besides, the first applicant had failed to comment on his ill-treatment in the document recording his release from detention facility and that he had lodged his criminal complaint belatedly.
(b) The Court’s assessment
107. The Court refers to the principles established in its case‑law as to the substantive limb of Article 3 set out in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88 and 101, ECHR 2015), which are equally pertinent to the present cases.
(i) In respect of the first applicant, Mr Haziyev
108. The first applicant complained that he had been beaten by two persons in plain clothes who had been strangers to him in a detention facility cell,where he had been taken by a prison warder. He did not complain of having visible injuries following the alleged ill-treatment; moreover, the domestic authorities did not cite any delay on the part of the applicant, contrary to the Government’s submissions, as grounds for dismissing his complaint. He produced statements by two witnesses (former cellmates) supporting his version of the events in question (see Jannatov v. Azerbaijan, no. 32132/07, § 59, 31 July 2014).
109. Given the circumstances, and having regard to the parties’ submissions and all the material in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the first applicant was subjected to treatment contrary to Article 3, as alleged.
110. The Court would, however, like to emphasise that its inability to reach any conclusions as to whether there was, in substance, any treatment prohibited by Article 3 of the Convention derives, at least in part, from the failure of the domestic authorities to react effectively to the first applicant’s complaints at the relevant time (see Gharibashvili v. Georgia, no. 11830/03, § 57, 29 July 2008, andLopata v. Russia, no. 72250/01, § 125, 13 July 2010).
111. Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the first applicant’s alleged ill‑treatment while in detention.
(ii) In respect of the second applicant, Mr Badalli
112. The second applicant mainly complained that he was beaten by police officers during his arrest and while in police custody on 23 March 2011 (see paragraph 36 above).
113. In this connection, the forensic report of 7 April 2011 issued following the forensic medical examination of 28 March 2011 did not establish any signs of injuries on the second applicant’s person, except for the injuries on his wrists reportedly caused by handcuffs. According to a report of 4 April 2011 issued by the Baku Medical Emergency Service, physicians who had examined the second applicant twice in police custody shortlyafter his detention had recorded only acute respiratory illness. The Court notes that in his complaints lodged with the domestic authorities the second applicant mentioned that he had already been suffering from respiratory illness (with symptoms of high fever) when he had been taken to the Sabaildistrict police station.
114. In support of his assertion that he had been subjected to mental and physical suffering the second applicant, who was released from police custody on 25 March 2011, submitted the medical certificate issued to him in respect of his treatment at the hospital of the Ministry of Internal Affairs from 30 March until 11 April 2011. According to the medical certificate, the second applicant underwent inpatient treatment for acute asthenoneuroticsyndrome caused by a closed craniocerebral injury. In that connection, the Government submitted that in the medical certificate in question there was no indication ofany causal link between the medical treatment received and the alleged ill-treatment and that the second applicant’s inpatient treatment had been related to his previous illnesses, especially having regard to the fact that he had a category 1 disability as a war veteran since the early 1990s. The second applicant did not comment on that particular issue. The medical certificate in question does not contain any information on the causes and timing of the alleged injury. However, as can be seen from the case file, prior to his arrest and detention the second applicant had already a category 1 disability. No other injuries that would match the second applicant’s description of having been beaten and kicked were described in the medical certificate.
115. As regards the bruises on the second applicant’s wrists, both parties submitted that they had been marks made by handcuffs. That was confirmed by the forensic report of 7 April 2011. The Government argued that given the circumstances of the present case the use of handcuffs had been a justified response to the second applicant’s violent behaviour in police custody.According to the Sabail district prosecutor office’s decision of 15 April 2011 notto open a criminal case, the second applicant had been handcuffed in order to prevent him from continuing his alleged attack against the police officers. The domestic courts reviewing the second applicant’s complaintcontented themselves with brieflynoting in their decisions that the second applicant had been handcuffed on account of the resistance that he had shown against the police officers, without giving any description of the circumstances surrounding the handcuffing, including the duration of the handcuffing or an analysis of the lawfulness of the handcuffing in the present case. Accordingly, the information made available to the Court by the parties is rather scant and lacks detail, as a result of which it is difficult to establish the precise circumstances surrounding the second applicant’s handcuffing, in particular, when and for how long the second applicant remained handcuffed.
116. The Court reiterates that the use of handcuffs or other measures of restraint does not normally give rise to an issue under Article 3 of the Convention in the event thatthe measure has been imposed in connection with lawful arrest or detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In that regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or try to abscond or cause injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports of Judgments and Decisions 1997-VIII, and Svinarenko and Slyadnevv. Russia [GC], nos. 32541/08 and 43441/08, § 117, ECHR 2014 (extracts)). However, the manner in which the applicant is subjected to the measure at issue should not go beyond the threshold of the minimum level of severity envisaged by the Court’s case-law under Article 3 of the Convention (see, among other authorities, Archip v. Romania, no. 49608/08, § 52, 27 September 2011).
117. Given the circumstances, and having regard to the parties’ submissions and all the material in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the second applicant was subjected to treatment contrary to Article 3 of the Convention, as alleged.
118. The Court would, however, like to emphasise that its inability to reach any conclusions as to whether there has been, in substance, treatment prohibited by Article 3 of the Convention derives, at least in part, from the failure of the domestic authorities to react effectively to the second applicant’s complaints at the relevant time (seeGharibashvili, cited above,§ 57, and Lopata,cited above, § 125).
119. Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the second applicant’s alleged ill‑treatment.
(iii) In respect of the third applicant, Mr Yolbarsov
120. The third applicant presented a very detailed description of his allegations of his ill-treatment in police custody on 18 September 2012 by police officers with the aim of extracting information from him (see paragraph 36 above).
121. In support of his allegations of ill-treatment, the third applicant referred to the forensic report of 4 December 2012 which noted “a pale brown-violet spot of an indefinite shape, measuring 3.5 by 2 cm, pigmentation on one-third of the front-inner side of the right thigh. That pigmentation could have emerged as a result of any pathological process in progress on the skin.”
122. The Government submitted that the forensic report did not clearly identify whether or not the time of the alleged infliction of injury corresponded to the period spent by the third applicant in custody.
123. Despite the Court’s explicit request, the Government failed to submit copies of all the documents relating to the domestic proceedings, including a copy of the forensic report.
124. The Court notes that the forensic examination was ordered and carried out in a very belated manner – around two months after the alleged incident. Prompt forensic examination is crucial, as signs of injury may often disappear rather quickly and certain injuries may heal within weeks or even a few days(see Rizvanov v. Azerbaijan, no. 31805/06, § 59, 17 April 2012). It is for this reason that the Court cannot accept the Government’s arguments based on the belated forensic report of 4 December 2012 that it was impossible to determine the origin of the pigmentation. In view of the above, the Court considers that the medical forensic report, despite certain shortcomings, constitutes reliable medical evidence and that, for the purposes of the present complaint, its content is sufficient to conclude that the third applicant suffered injury, as alleged.
125. The Court has already established that despite their procedural requests to meet the third applicant the day after his detention, the third applicant’s family and lawyer were only allowed to meet him around ten days after the alleged ill-treatment, when he was taken to the court which had ordered his remand in custody. Given his lack of access to the outside world, the Court considers that the third applicant could not have obtained any medical evidence in support of his allegation of ill-treatment during the period when he was detained on the premises of the detention facility.
126. The third applicant’s statements aresupported by his sister, as well as by his lawyer, who allegedly observed injuries on the applicant’s person during his first meeting with him, which took place around ten days after his detention. The third applicant’s own version of the events and the complaints lodged by his lawyer and sister were consistent and plausible. The shortcomings in the medical report are not in themselves sufficient to discredit the statements of the third applicant and his lawyer, taking into account the overall circumstances of the case.
127. In the instant case, having regard to the fact that (i) there was witness evidence regarding injuries (even if it came from the first applicant’s lawyer and a member of his family);(ii) the third applicant was only allowed to have access to his lawyer ten days after the alleged ill‑treatment took place;(iii) the events complained of lied wholly within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, (see Bouyid, cited above, § 83);and (iv) the third applicant’s version of events has been consistent and plausible (see Mammadov and Others, cited above, § 116), whereas the Government have failed to submit sufficient information or evidence calling into question the third applicant’s version of events, the Court accepts the third applicant’s account of events and concludes that he was subjected to ill-treatment in police custody, which was not made strictly necessary by his conduct.
128. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb in respect of the third applicant.
(iv) In respect of the fourth applicant, Mr Azizov
129. The fourth applicant firstly complained that on 11 January 2013 he had been punched and kicked and beaten with a truncheon while in police custody. The applicant, who was allegedly released from police custody on 13 January 2013, did not submit any medical evidence to the Court regarding the presence of alleged injuries on his person. However, he presenteda detailed description of his alleged ill-treatment supported by the statement of analleged eyewitness.
130. He furthermore claimed that on 7 March 2013 he had been punched in the head several times and that on 8 March 2013, while questioning him, two MNS officers had forced him to give a statement incriminating himself and others by threatening to arrest his father and to cause complications in respect of his case.
131. The fourth applicant also claimed that as a result of,inter alia, his being beaten with truncheons on 14 March 2013 in the detention facility of the MNS, he had limped on his right leg for four days, his ear had started to hurt, and his hearing ability had been temporarily damaged.
132. He submitted that he had sought medical treatment at the Baku Detention Centre in respect of the pain in his left ear and his hearing problems. The domestic authorities in their decisions had not made any assessment of his specific complaint relating to pain in his ear. The Government neither commented on nor submitted any case-file material in this respect.
133. He refused to undergo forensic examination,stating that the injuries on his person had disappeared by the time he had been offered the opportunity to undergo such an examination. Hesubmitted that it had been impossible for him to obtain medical certification in respect of his injuries sustained on 14 March 2013 owing to his having been denied access to his family and the lawyer of his own choice, with whom hehad only met after his transfer to Baku Detention Centre.
134. Given the circumstances, and having regard to the parties’ submissions and all the material in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the fourth applicant was subjected to treatment contrary to Article 3 of the Convention, as alleged.
135. The Court would, however, like to emphasise that its inability to reach any conclusions as to whether there has been, in substance, treatment prohibited by Article 3 of the Convention derives, at least in part, from the failure of the domestic authorities to react effectively to the fourth applicants’ complaints at the relevant time (seeGharibashvili, cited above, § 57, andLopata, cited above, § 125).
136. Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the fourth applicant’s alleged ill‑treatment.
(v) In respect of the fifth applicant, Mr Adilov
137. The fifth applicant alleged that he had been beaten during his arrest and while in police custody on 11 August 2014 with the aim of extracting a confession from him. In this connection, he produced a medical record drawn up after his arrival and initial medical examination at the Baku Detention Centre– four days after his arrest and alleged ill-treatment. The medical record established the existence of a large violet bruise on the upper third portion of the inner side of his left thigh. That record also contained a comment made by the fifth applicant that he had been beaten during his arrest and while in police custody on 11 August 2014. That document was not relied on by the investigating authorities in the domestic proceedings concerning the fifth applicant’s complaint of ill-treatment and was obtained by the fifth applicant independently following the decision not to open a criminal case in respect of his ill-treatment claims (see paragraph 81 above). In their observations, the Government did not comment on that document, nor did they dispute its authenticity. Admittedly, that certificate was not issued by a forensic expert and did not provide a detailed forensic description of the injuries or attempt to determine their cause using forensic methods. Nevertheless, it certified that the fifth applicant had contusions of the left thigh.
138. Moreover, the prosecuting authorities had been informed of the fifth applicant’s complaints of ill-treatment at least on 12 August 2014, the day after the alleged incident (see paragraph 69 above). The applicant underwent forensic examination. However, the Government failed to provide the Court with the case file materials, including a copy of the forensic report of 5 September 2014, which reportedly found no bodily injury on the fifth applicant’s person. It is unclear when the forensic examination was ordered and carried out. The Court notes in this respect that prompt forensic examination is crucial, as signs of injury may often disappear rather quickly and certain injuries may heal within weeks or even a few days. It is for this reason that the Court cannot accept the Government’s arguments based on the forensic report of 5 September 2014. The Government did not submit any comments concerning the medical record of 15 August 2014 and did not put forward any satisfactory and convincing explanation by producing any evidence likely to cast doubt on the fifth applicant’s account of events. It is undisputed that the police arrested the fifth applicant and took him to the Sabirabad district police station on 11 August 2014. In view of the above, the Court considers that the medical record of 15 August 2014, despite certain shortcomings, constitutes more reliable medical evidence than the forensic report of 5 September 2014 and that, for the purposes of the present complaint, its content is sufficient to conclude that the fifth applicant suffered an injury to the left thigh.
139. Furthermore, the fifth applicant’s version of events was also corroborated by thewitness statement supporting his allegation that he had been beaten during his arrest (see paragraph 60 above). Given the circumstances, the Court does not see any contradiction or inconsistency in the applicant’s submission that the injury described in the medical record of 15 August 2014 had been inflicted by the police on 11 August 2014. The concordant evidence produced before the Court is sufficient to establish at least a presumption of the fact that the police officers beat the applicant, as alleged. In the Court’s opinion, neither the Government in their submissions, nor the domestic authorities in their respective decisions, provided a convincing rebuttal of that presumption.
140. Therefore, the Court has no reason to doubt the fifth applicant’s account of events and finds that the injury found on his body was sustained as a result of the ill-treatment by the police on 11 August 2014,which was not made strictly necessary by his conduct.
141. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb in respect of the fifth applicant.
(c) Conclusion
142. The Court finds a substantive violation of Article 3 of the Convention in respect of the third and fifth applicants and no violation of that provision in respect of the remaining applicants concerned.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
143. The second applicantcomplained of unlawfulness of his deprivation of liberty and the lack during his detention of an effective procedure by which to challengeits lawfulness in breach of Article 5 of the Convention, which in its relevant parts reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his 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;
…
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful…”
A. Admissibility
144. The Court notes that these complaintsare not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Alleged violation of Article 5 § 1 of the Convention
(a) The parties’ submissions
145. The second applicant complained that there had been neither any legal basis nor practical need for his arrest and that his arrest could not be regarded as being based on a reasonable suspicion that he had committed a crime.He furthermore argued that the investigator had had no grounds to arrest and detain him without a court order. He had never been informed of the criminal proceedings against him and had never received any summons to appear before the investigating authorities and could not, therefore, be accused of having attempted to obstruct them and be detained in that regard. He had a permanent abode, where he had lived fortwenty-four years.
146. Furthermore, the second applicant complained that neither during his arrest nor during the hearing on the lawfulness of his detention did he receive any case file relating to his arraignment at the police station on 23 March 2011.
147. The Government submitted that the second applicant’s arrest and detention had been effected for the purpose of bringing him before the relevant legal authority on reasonable suspicion of having committed an offence and that his detention had been implemented in a manner in accordance with the relevant provisions of the CCrP, since he had absconded from the investigation by not appearing when summoned by the investigator. Furthermore, he had been released on 25 March 2011 as a result of his giving an undertaking not to leave his place of residence.
(b) The Court’s assessment
148. On25 December 2010 a criminal case was opened against the second applicant in respect of charges of hooliganism (Article 221.3 of the Criminal Code)and on 28 February 2011 a decision to recognise him as an accused had been delivered.On 2 March 2011 the investigating authority issued a “wanted” notice for the second applicant on the grounds that he had absconded from the investigation, and on 23 March 2011 he was arrested at his home. He was detained for two days in police custody.
149. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 of the Convention requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention that is arbitrary can be compatible with Article 5 § 1, and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention.The detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities or where the domestic authorities neglected to attempt to apply the relevant legislation correctly (see among other authorities, S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, §§ 74-76, 22 October 2018).
150. The second applicant complained that, in violation of the domestic law, he had been arrested without a court order on the basis of the investigator’s decision of 2 March 2011 to search and arrest him. The investigator’s decision in question was not made available to the Court. The Court notes that under Articles 150 (Detention of the person to bring charges) and 178 (Enforced appearance) of the CCrP, an investigator was entitled to order a“wanted” notice and the arrest and enforced appearance of the suspect. However, that could only be donein the event that the evidence in the relevant case indicated that there was a reasonable suspicion that the person in questionhad committed a criminal offenceand lived in another country, or that that person’s address (or whereabouts) was unknown and that he or she was hiding from the prosecuting authorities or had intentionally failed to comply with a summons to appear before the prosecuting authorities.
151. In that connection, the secondapplicantfirstly alleged that there was no reasonable suspicion that he had committed a crime. The Government contested those arguments. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c) it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145‑B, and Erdagöz v. Turkey, 22 October 1997, § 51, Reports 1997‑VI). The words “reasonable suspicion” mean the existence of facts or information that would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182, and Cebotari v. Moldova, no. 35615/06, § 48, 13 November).
152. The second applicant was suspected of hooliganism by inflicting on Q.M. minor bodily injury, when the investigator ordered a “wanted” notice and his arrest. It is not disputed that that type of action was considered as a criminal offence under domestic law. Moreover, the Court takes note of the forensic report attesting to the existence of an injury on the face of Q.M., whom the second applicant had allegedly attacked, although it does not follow from the decisions available to the Court that the domestic authorities reviewing the second applicant’s complaint referred to that forensic report.
153. In view of the above, even assuming that in the present case there could be a reasonable suspicion of the second applicant’s involvement in the offence in question, the Court takes note of the second applicant’s further complaint that he had not been duly notified and summoned to the criminal proceedings against him prior to his arrest and that the domestic authorities had failed to address his specific arguments in that regard. The Government submitted that there had been good reasons for the second applicant’s arrest. However, they failed to submit any case-file material (including the investigator’s decision of 2 March 2011) or any detailed information or evidence to the Court to the effect that the second applicant had been served a summons in connection with the criminal proceedings against him. Furthermore, the domestic courts did not provide any information in their decisions on how the second applicant had evaded justice and had obstructed the proceedings by maliciously failing to act upon the investigator’s summonses. They relied on the investigator’s orders on a “wanted” notice and the arrest of the second applicant, without assessing the latter’s specific argument that he had not been duly notified and summoned to appear at the criminal proceedings against him prior to his arrest(see, among other authorities, Ladent v. Poland, no. 11036/03, §§ 49-58, 18 March 2008).
154. The Court furthermore holds that the mere fact of being on a “wanted list” does not mean that the person in question has gone into hiding. The important factor in measuring the risk of absconding is the actual behaviour, not the formal status of a person on a wanted list (see YevgeniyGusevv. Russia, no. 28020/05, § 85, 5 December 2013).
155. Against this background, the Court considers that when issuing the order for the second applicant’s detention the investigating authority failed to apply the relevant domestic legislation correctly – in particular, Article 150 of the CCrP – as it erroneously found that the second applicant had been obstructing the proceedings and evading justice when he had not been duly notified of those proceedings. Having regard to the abovementioned, the Court finds that the second applicant’s detention failed to comply with “a procedure prescribed by law”.
156. Having regard to the above considerations, the Court finds that the second applicant’s detentionwas incompatible with the requirements of Article 5 § 1 of the Convention. There has therefore been a violation of Article 5 § 1 of the Convention in respect of thesecond applicant.
2. Alleged violation of Article 5 § 4 of the Convention
157. The second applicant complained of the lack of an effective procedure during his detention by which he could have challenged the lawfulness of his detention.
158. The Government did not submit any comment in that connection.
159. The Court notes that the substance of the second applicant’s complaint under Article 5 § 4 is the absence of judicial review for the period of forty-eight hoursduring which hewas deprived of his liberty under the scope of the warrant to appear. At the end of that period, the applicant was officially released and subjected to an undertaking not to leave his place of residence.
160. In this context Article 5 § 4 of the Convention deals only with those remedies that must be made available during a person’s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The provision does not deal with other remedies that may serve to review the lawfulness of a period of detention that has already ended – including, in particular, a short-term detention such as that in the present case (see Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003‑X).
161. Accordingly, the Court does not find it necessary to examine the merits of the second applicant’s complaint under Article 5 § 4 of the Convention (compare Slivenko, cited above, § 159).
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
162. Relying on Article 8 of the Convention, the second applicant complained that, during his arrest, police officers had entered his flat without a search warrant and had violated his right to respect for his private life and home.
163. Having regard to its findings under Article 5 of the Convention with regard to the same set of facts (see paragraphs 150-158 above), the Court considers that there is no need to give a separate ruling on the admissibility and the merits of the complaint under Article 8 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
164. The first applicant complained that there had been a violation of his freedom of expression,given that he had been ill-treated in order to prevent him from carrying out his journalistic activities, and that there had been no effective investigation in that respect. The applicant relied on Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
165. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
166. The first applicant maintained his complaints.
167. The Government submitted that the first applicant’s right to freedom of expression had not been violated. There had been no interference with the first applicant’s freedom of expression on account of the alleged ill-treatment. Hehad not shown due diligence in pursuing his complaint before the national authorities. The national courts had duly examined hisclaims, in compliance with the domestic legislation and the Convention.
2. The Court’s assessment
168. The Court notes that it was not possible to establish beyond reasonable doubt that the first applicant was subjected to treatment contrary to Article 3 as alleged (see paragraph 111 above). As regards the first applicant’s complaint that his right to freedom of expression was violated on account of the domestic authorities’ failure to conduct an effective investigation into the attack on him, the Court notes that these allegations arise out of the same facts as those already examined under Article 3 of the Convention and the Court has already found a violation of Article 3 under its procedural limb because of the ineffectiveness of the investigation into the alleged ill-treatment of the applicant (see UzeyirJafarov v. Azerbaijan, no. 54204/08, §§ 71-72, 29 January 2015).
169. Having regard to those findings, the Court considers that the first applicant’s complaint under Article 10 of the Convention raises no separate issue and, that being so, it is not necessary to examine thatcomplaint separately.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
170. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
171. The first applicant claimed 1,500 euros (EUR) in respect of pecuniary damage.
172. The Government submitted that the first applicant had failed to substantiate his claims under this head.
173. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
2. Non-pecuniary damage
174. The third applicant claimed EUR 25,000 and the other applicants EUR 20,000 each in respect of non-pecuniary damage.
175. The Government submitted that the applicantshad failed to substantiate their claims under this head and that finding aviolation would constitute sufficient reparation.
176. The Court considers that the applicants have suffered non‑pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the third and fifth applicants the sum of EUR 12,000 each, the second applicant the sum of EUR 9,750 and the first and fourth applicants the sum of EUR 7,500 each under this head, plus any tax that may be chargeable on those amounts.
B. Costs and expenses
177. The applicants each claimed the following amounts for legal costs incurred in the proceedings before the domestic courts and/or the Court: the first applicant EUR 6,214 for two lawyers, the second applicant EUR 2,000, the third applicant EUR 1,800, the fourth applicant EUR 3,484 and the fifth applicant EUR 3,625. The applicants submitted the relevant contracts concluded with their respective representatives or invoices in support of their claims. The third applicant furthermore claimed EUR 449 for translation costs.
178. The Government held in respect of the first, fourth and fifth applicants that under therespective legal contracts, payment for each activity undertaken by the representativesshould have been made within twenty days of such activity being undertaken; however, no single itemof evidence of payment in that respect had been submitted by the applicants.
179. The Government furthermorenoted that the legal contract submitted by the first applicant was void and could thus not prove the costs and expenses claimed by him. According to the Government, the contracthad been concludedafter the procedural steps taken by the first applicant,that is, the contractprovided for the lodging of the complaints with the domestic authorities, which hadin fact been dated later than the date of the “contract”.
180. The Government also submitted that the third applicant’s signatures on the legal contract and other enclosed documents differed from each other. Moreover, having regard to the fact that the third applicant was mentally disabled, the Government questioned the validity of the submitted documents.
181. The Government considered that the amounts claimed by the applicants were unsubstantiated and excessive, asking the Court to apply a strict approach in respect of the applicants’ claims.
182. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present cases, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award to the first applicant the sum of EUR 3,000 to cover costs under all heads and to each of the other applicants the sum of EUR 2,000 to cover costs under all heads. The Court rejects the third applicant’s claim in respect of translation fees for lack of proper substantiation and itemisation.
C. Default interest
183. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declaresthe complaints under Articles 3, 5 and 10 of the Convention admissible and the remainder of the applications inadmissible;
3. Holdsthat there has been a violation of Article 3 of the Convention under its substantive limb in respect of the third and fifth applicants;
4. Holds that there has been no violation of Article 3 of the Convention under its substantive limb in respect of the remaining applicants concerned;
5. Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of all the applicants;
6. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the second applicant;
7. Holds that there is no need to examine the complaint under Article 5 § 4 of the Convention in respect of the second applicant;
8. Holds that there is no need to examine separately the admissibility and the merits of the complaint under Article 8 of the Convention in respect of the second applicant;
9. Holds that there is no need to examine the complaint under Article 10 of the Convention in respect of the first applicant;
10. Holds
(a) that the respondent State is to pay the applicants, within three months, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 12,000 (twelve thousand euros) to each of the third and fifth applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 9,750 (nine thousand seven hundred and fifty euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 7,500 (seven thousandfive hundred euros) to each of the first and fourthapplicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iv) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to him, to the first applicant in respect of costs and expenses, to be paid directly into his representatives’ bank accounts;
(v) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to them, to each of the second, third, fourth and fifth applicants in respect of costs and expenses, to be paid directly into their representatives’ bank accounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
11. Dismissesthe remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 5 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie Dougin Mārtiņš Mits
Acting Deputy Registrar President
APPENDIX
Nos. |
Applications
nos. |
Lodged on | Applicant’s name
year of birth |
Represented by |
| 1. | 3650/12 | 28/12/2011 | Seymur HAZIYEV
1982 |
Rashid Hacili
FarizNamazli |
| 2. | 12016/12 | 29/12/2011 | Magrub BADALLI
1956 |
IntigamAliyev |
| 3. | 69878/13 | 30/09/2013 | Abdulla YOLBARSOV
1991 |
Khalid Bagirov |
| 4. | 31474/14 | 07/04/2014 | Mammad AZIZOV
1992 |
FarizNamazli |
| 5. | 40906/15 | 29/07/2015 | Murad ADILOV
1983 |
YalchinImanov |
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