CASE OF HASANOV v. AZERBAIJAN (European Court of Human Rights) Application no. 31793/10

The application concerns the applicant’s alleged ill-treatment contrary to Article 3 of the Convention, and lack of effective investigation of those allegations, alleged interference with the applicant’s journalistic activities contrary to Article 10 of the Convention, and alleged hindrance in the exercise of his right of individual petition as guaranteed by Article 34 of the Convention.


FIFTH SECTION
CASE OF HASANOV v. AZERBAIJAN
(Application no. 31793/10)
JUDGMENT
STRASBOURG
22 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Hasanov v. Azerbaijan,

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

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

Having regard to:

the application (no. 31793/10) 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 an Azerbaijani national, Mr Elchin Yusif oglu Hasanov (Elçin Yusif oğlu Həsənov ‒ “the applicant”), on 9 June 2010;

the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints concerning Articles 3, 10 and 34 of the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 25 March 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The application concerns the applicant’s alleged ill-treatment contrary to Article 3 of the Convention, and lack of effective investigation of those allegations, alleged interference with the applicant’s journalistic activities contrary to Article 10 of the Convention, and alleged hindrance in the exercise of his right of individual petition as guaranteed by Article 34 of the Convention.

THE FACTS

2. The applicant was born in 1977 and lives in Sumgayit. The applicant, who had been granted legal aid, was represented by Mr I. Aliyev, a lawyer based in Azerbaijan.

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

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

I. Alleged ill-treatment of the applicant and remedies used by the applicant

5. The applicant was a journalist at the material time.

6. On 30 April 2009 the applicant was outside Sabail district police office no. 39, reporting on the detention of a number of youth activists following the dispersal by police of a demonstration in Baku on the same date. Other journalists were also present at the scene to report on the events, as well as some representatives from international organisations. The applicant was wearing a special blue vest identifying him as a journalist and had a journalist’s badge on his chest.

7. According to the applicant, while he was recording the events outside the police office, two police officers and a person wearing plain clothes kicked him and punched him in his stomach and head, as a result of which he lost consciousness for a few minutes.

8. On the same date the applicant sought medical assistance at the Sumgayit Centre for Medical Emergencies. However, the parties have not submitted to the Court any medical report concerning the medical assistance which the applicant allegedly received at the centre.

9. On an unspecified date the applicant lodged a criminal complaint with the investigating authorities, requesting that a criminal case be opened in respect of his claims.

10. On 26 June 2009 the Baku police office carried out an inquiry and refused to open criminal proceedings into the applicant’s allegations of ill treatment.

11. On 10 July 2009 the Sabail district prosecutor’s office quashed the decision of 26 June 2009 and re-opened the criminal inquiry.

12. On 17 July 2009 the applicant underwent a forensic medical examination. The forensic report was not made available to the Court. Reportedly, the forensic report did not establish that there were any injuries on the applicant’s body (see paragraph 13 below).

13. On 17 July 2009 the Sabail district prosecutor’s office issued a decision refusing to open a criminal case, finding the applicant’s complaints unsubstantiated. The decision referred to the testimonies of four police officers who had stated that they had not applied any physical force against the applicant, and the forensic report of 17 July 2009, which had not established that there were any injuries on the applicant’s body. Moreover, according to the decision, the medical records concerning the medical assistance which the applicant had received on 10 May 2009 following his complaint that he had been injured had been submitted for a forensic assessment. There was no description of the content of the medical report in the decision. In addition, according to the decision, although photographs and video footage showed the applicant lying on the ground, his external appearance and clothes gave no indication that he had been beaten, and it was unclear how he had fallen to the ground.

14. The applicant lodged with the Prosecutor General’s Office a complaint against the decision of the Sabail district prosecutor’s office refusing to open a criminal case. By a letter of 25 August 2009, the Prosecutor General’s Office informed him that there were no grounds to quash the decision of the Sabail district prosecutor’s office.

15. On 15 September 2009 the applicant lodged with the Sabail District Court a criminal complaint against the decision refusing to open a criminal case, pointing out: that his forensic examination had taken place belatedly; that the witnesses on his behalf had not been examined; and that the pieces of evidence in the case file, such as the photographs and video footage, had not been assessed properly. He also added that his right to freedom of expression had been violated.

16. On 18 September 2009 the Sabail District Court dismissed the applicant’s complaint.

17. On 20 November 2009 the applicant appealed.

18. On 9 December 2009 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the Sabail District Court’s decision.

II. Seizure of the applicant’s case file

19. On 8 August 2014 the applicant’s lawyer, Mr I. Aliyev, was arrested on charges of tax evasion, illegal entrepreneurship and abuse of authority. During the search of his office, a number of documents were seized by State authorities, including all the case files relating to applications before the Court that were in Mr I. Aliyev’s possession as a representative. On 25 October 2014 some of the seized documents were returned to Mr Javad Javadov, Mr. I. Aliyev’s counsel. By a fax dated 28 August 2014, Mr I. Aliyev informed the Court of the seizure of the case files, claiming a breach of Article 34 of the Convention in respect of all the applications affected. In his letters sent to the Court in September 2014, Mr I. Aliyev reiterated the complaint concerning the seizure of the case files.

RELEVANT LEGAL FRAMEWORK

20. The relevant domestic law concerning the prohibition of ill-treatment is summarised in the case of Mustafa Hajili v. Azerbaijan (no. 42119/12, §§ 26-28, 24 November 2016).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

21. The applicant complained that he had been ill-treated and that his complaints in this regard had not been effectively investigated as provided for in 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

22. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article35 of the Convention. It must therefore be declared admissible.

B. Merits

1. Alleged ill-treatment of the applicant

(a) The parties’ submissions

23. The applicant maintained his complaint.

24. The Government submitted that the applicant had failed to prove that he had been subjected to ill-treatment. They argued that the forensic report had not established that there had been any injury on his body, nor could the photographs and video footage produced by the applicant prove that he had been subjected to any ill-treatment. He had not submitted other medical reports confirming that he had sustained injuries during the confrontation with the police.

(b) The Court’s assessment

25. The Court refers to the principles established in its case-law regarding the substantive limb of Article 3 set out in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-87, ECHR 2015), which are equally pertinent to the present case.

26. The Court observes at the outset that the parties are in dispute about whether any force was used against the applicant by the police officers in question and the person in plain clothes. In particular, the Government rejected the applicant’s allegation of ill-treatment, whereas the applicant maintained his complaints, stating that he had been kicked in the stomach and punched in the face.

27. The Court notes that the applicant presented a description of his allegation of ill-treatment. However, he did not submit medical evidence indicating that he had sustained injuries. In this connection, he claimed that as the forensic assessment had been ordered belatedly ‒ three months after the alleged incident ‒ it could not establish that he had been injured. Despite the Court’s explicit request, the Government failed to produce a copy of the applicant’s forensic report. However, the Court observes that although the applicant sought medical assistance at the Sumgayit Centre for Medical Emergencies on the day of the alleged incident, he did not submit a copy of the relevant medical report or any information on the content of that report or the nature of the injuries which he had allegedly sustained.

28. As regards the video footage in the case file, it shows police officers dispersing people gathered in front of the police office, including journalists. A few seconds later the footage shows the applicant lying on the ground, holding his stomach and surrounded by people who are requesting medical assistance for him. However, the footage does not show the precise circumstances of the incident as it relates to the applicant, in particular, how the applicant fell to the ground and how the police officers and the person in plain clothes were involved in the incident.

29. In these circumstances, 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 applicant was subjected to treatment contrary to Article 3 of the Convention, as alleged.

30. However, the Court emphasises 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 domestic authorities’ failure to react effectively to the applicant’s complaint at the relevant time (see Lopata v. Russia, no. 72250/01, § 125, 13 July 2010, and Gharibashvili v. Georgia, no. 11830/03, § 57, 29 July 2008).

31. Accordingly, there has been no violation of Article 3 of the Convention under its substantive limb.

2. Alleged failure to carry out an effective investigation

(a) The parties’ submissions

32. The applicant maintained his complaint.

33. The Government submitted that the domestic authorities had conducted an effective investigation into the applicant’s allegations of ill-treatment. On 10 July 2009 the Sabail district prosecutor’s office had quashed the Baku police office’s decision of 26 June 2009 refusing to open a criminal case into the applicant’s initial complaint and had ordered that his case be investigated further. The prosecuting authorities had ordered a forensic examination and had questioned the relevant witnesses. The decision refusing to open a criminal case had been based on the testimonies of the police officers, the forensic expert’s report and medical records from the hospital where the applicant had sought medical assistance.

(b) The Court’s assessment

34. The Court refers to the principles established in its case-law regarding the procedural limb of Article 3 set out in El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, §§ 182-185, ECHR 2012), which are equally pertinent to the present case.

35. The Court observes that the applicant raised an arguable claim – supported by video footage – that he had been allegedly beaten by two police officers and a person in plain clothes on 10 May 2009, which required therefore an effective official investigation. While the obligation to investigate effectively is one of means and not of results, the Court notes that as in many previous similar cases examined by the Court against Azerbaijan, the criminal inquiry in the present case have been plagued by a combination of the same or similar defects.

36. Notably, the forensic examination was ordered and carried out on 17 July 2009, around three months after the alleged incident on 10 May 2009. As the Court has held on several occasions, a failure to secure forensic evidence in a timely manner is one of the most important factors in assessing the overall effectiveness of an investigation into allegations of ill treatment (see Mammadov v. Azerbaijan, no. 34445/04, § 74, 11 January 2007; Rizvanov v. Azerbaijan, no. 31805/06, § 59, 17 April 2012; and Muradova v. Azerbaijan, no. 22684/05, § 117, 2 April 2009). A 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, cited above, § 59).

37. The Court further notes that the investigating authorities limited themselves to questioning four police officers who testified against the applicant’s claims, without questioning other eyewitnesses who were present at the scene in order to find out what had happened and how the applicant fell on the ground.

38. The foregoing considerations are sufficient to enable the Court to conclude that the investigation into the applicant’s claim of ill-treatment was ineffective. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

39. The applicant complained that there had been a violation of his freedom of expression, since the ill-treatment to which he had been subjected had been to prevent him from carrying out his journalistic activities, and that there had been no effective investigation in that regard. 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.”

40. The Government contested that argument.

41. Having regard to its findings under Article 3 of the Convention, the Court considers that there is no need to give a separate ruling on the admissibility and the merits of the applicant’s complaint under Article 10 of the Convention (see Uzeyir Jafarovv. Azerbaijan, no. 54204/08, §§ 71-72, 29 January 2015).

III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

42. By a fax of 9 September 2014, Mr Aliyev, who was the applicant’s representative before the Court, lodged a new complaint on the applicant’s behalf, arguing that the seizure from his office of the entire case file relating to the applicant’s case which was pending before the Court had amounted to a hindrance of the exercise of the applicant’s right of individual petition under Article 34 of the Convention, which reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

A. The parties’ submissions

43. The submissions made by the applicant and the Government were similar to those made in respect of the same complaint in the case of Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 57-60, 22 October 2015).

B. The Court’s assessment

44. In the case of Annagi Hajibeyli, having examined an identical complaint based on the same facts, the Court found that the respondent State had failed to comply with its obligations under Article 34 of the Convention (ibid., §§ 64-79). The Court considers that the analysis and the finding that it made in the judgment of Annagi Hajibeyli also apply to the present case, and it sees no reason to deviate from the finding that depriving the applicant and his lawyer of access to the case file constituted in itself an undue interference and a serious hindrance of the effective exercise of the applicant’s right of individual application.

45. The Court therefore finds that the respondent State has failed to comply with its obligations under Article 34 of the Convention.

46. Thus, the applicant’s right as guaranteed by Article 34 of the Convention has been violated.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. Article41 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

48. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

49. The Government submitted that the applicant’s claim was unsubstantiated.

50. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should therefore be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 7,500 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

51. The applicant claimed EUR 3,000 for legal costs incurred in the proceedings before the domestic authorities and the Court. He submitted the legal contract concluded with his representative.

52. The Government submitted that the applicant’s claim was unsubstantiated and excessive. In that connection, the Government asked the Court to apply a strict approach in respect of the applicant’s claim.

53. 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 case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 850 covering costs under all heads, an amount already paid in legal aid by the Council of Europe.

C. Default interest

54. 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. Declares the application admissible;

2. Holds that there has been no violation of Article 3 of the Convention under its substantive limb;

3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

4. Holdsthat there is no need to examine the complaint under Article 10 of the Convention;

5. Holdsthat the respondent State has failed to comply with its obligations under Article 34 of the Convention;

6. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 22 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                                Lado Chanturia
Deputy Registrar                                President

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