CASE OF HAJIYEV v. AZERBAIJAN (European Court of Human Rights) Application no. 15996/12

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


FIFTH SECTION
CASE OF HAJIYEV v. AZERBAIJAN
(Application no. 15996/12)
JUDGMENT
STRASBOURG
22 April 2021

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

In the case of Hajiyev 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.15996/12) 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 Bakhtiyar Ilyas oglu Hajiyev (Bəxtiyar İlyas oğluHacıyev – “the applicant”), on 11 February 2012;

the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints concerning Articles 3 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 in police custody contrary to Article 3 of the Convention, lack of effective investigation of those allegations and 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 1982 and at the material time lived in Ganja. The applicant was represented by 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. The applicant’s alleged ill-treatment

5. On 24 January 2011 the Ganja city prosecutor’s office opened a criminal case against the applicant under Article 321.1 (draft evasion) of the Criminal Code.

6. The applicant was summoned for questioning to the Nizami district police office in Ganja. Upon his arrival at the police office at around 5 p.m. on 4 March 2011 he was taken to the room of police officer, A.H. According to the applicant, he requested access to his lawyer after he was informed that he would be arrested. Police officer V.S. swore at the applicant in response to his objection to the denial of his request. Afterwards, V.S. allegedly twisted his arms and hit him two to three times on his shoulder using his elbow, in the presence of A.H. and four other police officers. Thereafter the head of the Nizami district police office, A.M., instructed the officers to handcuff the applicant’s hands tightly. The applicant further submitted that officer A.H. had pushed his head down to the ground and put so much pressure on his chin with his thumb that his gums had bled. As a result of the alleged ill-treatment, the applicant felt exhausted and suffered serious pain in his head and heart and his request for medical assistance had been denied.

7. On the same day the applicant met with a lawyer, S.S., at the police office.

8. On 5 March 2011 the applicant was transferred to the temporary detention centre of the Ganja City Police Office. The applicant requested medical assistance as he was feeling unwell and he refused to allow his fingerprints to be taken, requiring the presence of his lawyer for that procedure. Allegedly in response the head of the temporary detention centre, N.M., together with two or three police officers, took him to a room where his fingerprints were taken by force. According to the applicant, in order to do that the police officers held his body, while N.M. held his neck, pushing his head down to his knees and took his fingerprints. Thereafter N.M. hit his shoulder with his elbow four to five times.

9. On 7 March 2011 following the applicant’s transfer to the pre-trial detention facility the applicant’s lawyer requested the conduct the applicant’s medical examination in view of his alleged ill-treatment. On the same day the applicant underwent a medical examination. The relevant parts of the medical report drawn up on the same day read as follows:

“… We noted redness [qızartı] under both eyes, the redness on the left part of the nose [sol burunətrafnahiyədəqızartı] and a wound that had scabbed over [qərtmək] on the right part of the neck.

According to the accused [the applicant] those injuries were inflicted on him at around 5 p.m. on 4 March 2011 at the Nizami district police office in Ganja and at around 10 a.m. on 5 March 2011 at the temporary detention centre of the Ganja City Police Office …”

10. On an unspecified date the Prosecutor General’s Office launched an investigation into the applicant’s complaint of ill-treatment.

11. The Prosecutor General’s Office questioned the applicant who complained that he had suffered physical and mental pain in police custody on 4 and 5 March 2011.

12. It follows from the decision of the Prosecutor General’s Office that on 7 March 2011 the investigator ordered the applicant’s forensic examination. The forensic report dated 15 March 2011 established the following:

“… the injuries on [the applicant]’s person – the surface [səthi] injuries ‑ (on the areas of the neck and nose) were six to nine days old and caused by a blunt object (or objects) and the degree of the injury had not been determined because it had not caused harm to his health. It is not excluded that [the applicant] could have self‑inflicted those injuries.

No injuries – in and under the eyes – that have been noted in the medical file of [the applicant] – have been established. The injuries such as bruises, light injuries would have been established during the forensic medical examination, if they existed …”

13. It follows from the decision of the Prosecutor General’s Office that on 10 March 2011 the investigator examined the registration book of the temporary detention centre which indicated that the physician M.M. had carried out the applicant’s medical examination at 10.30 a.m. on 5 March 2011 and that no injuries had been found on the applicant’s person.

14. No copy of the forensic report was made available to the Court, despite its explicit request to the Government to submit copies of the documents in the case file.

15. The Prosecutor General’s Office questioned M.M., the physician of the temporary detention centre of the Ganja City Police Office. The latter stated that he had examined the applicant at around 10 a.m. on 5 March 2011 at the temporary detention centre and had not found any injuries on the applicant’s person. In reply to a question relating to the fact that the applicant was found to have redness under both eyes and around his nose and to have a wound covered by a scab measuring 0.5 by 1 cm on the right side of his neck at the time of his admission to the pre-trial detention facility, M.M. indicated that during the applicant’s medical examination on 5 March 2011 he had noted the redness on the applicant’s face, including under the eyes, but that that was characteristic of the state of nervousness and he had not considered the scabbed-over wound on the applicant’s neck to be an injury.

16. The Prosecutor General’s Office also questioned the head of the medical unit of the pre-trial detention facility, H.G. He testified that he had examined the applicant on 7 March 2011, upon his admission to the detention facility, and made notes in the medical record that there had been redness under both eyes and around his nose and a wound that had scabbed over on his neck. H.G. further submitted that the redness could have been caused by psychological tension, illness, high blood pressure or a number of other reasons, and that the wound that had scabbed over on the applicant’s neck had been seven to ten days old at the time of the examination, and therefore he had not reported them to the head of the detention centre.

17. The Prosecutor General’s Office further questioned various police officers who denied the wrongdoing.

18. On 17 March 2011 the Prosecutor General’s Office refused to open a criminal case finding the applicant’s allegations unsubstantiated. On 5 April 2011 the applicant received a letter dated 17 March 2011 from the Prosecutor General’s Office informing him about this decision. The applicant was provided with a copy of the decision, following his lawyers’ requests in this regard. A copy of the original decision was not made available to the Court and only an English translation of an extract of that decision was submitted by the applicant.

19. On 1 June 2011 the applicant lodged a complaint against the decision of the Prosecutor General’s Office of 17 March 2011 with the Sabail District Court. He complained in particular that he had not been provided with a copy of the decision to refuse to open a criminal case and of the forensic report. He also complained that his lawyers, who had met with him in the detention facilities in the wake of his ill-treatment, had not been questioned as the witnesses on his behalf and that the prosecuting authorities had not duly assessed the evidence in support of his allegations.

20. By a decision of 20 July 2011, the Sabail District Court dismissed the applicant’s complaint, finding the decision refusing to open a criminal case lawful.

21. The applicant lodged an appeal with the Baku Court of Appeal against the first-instance court’s decision. He reiterated his complaints.

22. On 1 September 2011 the Baku Court of Appeal upheld the first‑instance court’s decision.

II. Seizure of the applicant’s case file

23. On 8 August 2014 criminal proceedings were instituted against Mr I. Aliyev, who represented the applicant before the Court. On 8 and 9 August 2014 the investigating authorities seized a large number of documents from Mr I. Aliyev’s office, including all the case files relating to ongoing proceedings before the Court (see Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, 20 September 2018). The file relating to the present application was also seized in its entirety.

24. On 25 October 2014 the investigating authorities returned to Mr Aliyev’s lawyer a number of the case files concerning the applications lodged before the Court, including the file relating to the present application.

RELEVANT LEGAL FRAMEWORK

25. 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

26. The applicant complained that he had been ill-treated by the police and that his complaint in that connection had not been effectively investigated as required by 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

27. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged ill-treatment of the applicant by the police

(a) The parties’ submissions

28. The applicant maintained his complaint.

29. The Government submitted that the applicant had failed to submit evidence that he had been subjected to ill-treatment in police custody and further submitted that the forensic expert had established that the injuries noted on the applicant’s person could have been self-inflicted.

(b) The Court’s assessment

30. 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.

31. The Court observes at the outset that the parties dispute whether the applicant was subjected to the use of force by the police at all. In particular, the Government rejected the applicant’s allegation of ill-treatment, contenting themselves with a statement that the applicant had resisted lawful arrest and denying the infliction of any force on the applicant, whereas the applicant maintained his complaint.

32. The applicant presented a detailed description of his allegations of ill-treatment by the police. In particular, he complained that on 4 March 2011 the police officers hit his shoulder with their elbows two to three times and later pushed his head down to the ground and applied so much pressure to his chin that his gums bled. According to him, on 5 March 2011 police officers held his neck and different parts of his body, pushed his head down to his knees in order to take his fingerprints and later an officer hit his shoulder with his elbow four to five times.

33. The Court notes in particular the discrepancies of the parties’ views concerning the origins of the injuries reflected in the forensic report of 15 March 2011. According to the report, as it transpired from the decision of the investigating authorities, “the surface injuries on the neck and around the nose” had been caused by a blunt object (or objects) six to nine days prior to the examination and could have been self-inflicted by the applicant. Moreover, according to the statements of the detention facilities’ two physicians who examined the applicant upon his admission to their respective facilities, the redness under the eyes and around the nose, reflected in the medical examination report of 7 March 2011, could have had various causes such as stress and nervousness.

34. However, the Court notes that despite its explicit request to the Government to submit copies of the documents in the case file, the applicant’s medical file, including the forensic report, was not produced to the Court and the case file available to the Court, including the domestic courts’ decisions in this regard, did not address conclusively the question relating to the origins of the recorded injuries. In this context, the Court reiterates that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them (see Bouyid, cited above, § 83).

35. In the present case the evidence produced before the Court is sufficient to establish at least a presumption of the fact that the applicant was subjected to ill-treatment, 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.

36. Therefore, the Court has no reason to doubt the applicant’s account of events and finds that the injuries found on his body were sustained as a result of the ill-treatment by the police, which was not made strictly necessary by his conduct. There has accordingly been a violation of Article 3 of the Convention under its substantive limb.

2. Alleged failure to carry out an effective investigation

(a) The parties’ submissions

37. The applicant maintained his complaint.

38. The Government contested the applicant’s complaint. They submitted that the domestic authorities had conducted an effective investigation into the applicant’s allegations of ill-treatment.

(b) The Court’s assessment

39. 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, §§ 182-85, ECHR 2012), which are equally pertinent to the present case.

40. The Court observes that the applicant raised arguable claims –supported by medical evidence – that he had been beaten by the police while in police custody on 4 and 5 March 2011. The domestic authorities launched a criminal investigation into his alleged ill-treatment. It remains to be assessed whether the criminal investigation was effective, as required by Article 3 of the Convention.

41. In that connection, the Court observes that there were numerous shortcomings in the criminal investigation carried out by the domestic authorities.

42. Firstly, and most importantly, the investigating authorities failed to explain the origins of the injuries found on the applicant (see paragraph 9 above).

43. Moreover, the applicant complained that the prosecuting authorities had not questioned the witnesses on his behalf, including his lawyers who had allegedly observed his physical condition in the wake of the alleged ill‑treatment. The domestic authorities, having refused to institute a criminal case, had failed to provide a relevant explanation as to why the pieces of evidence in support of the applicant’s claims were considered less credible than, inter alia, the statements of the witnesses against the applicant, in particular the police officers (see Mustafa Hajili v. Azerbaijan, no. 42119/12, § 52, 24 November 2016).

44. The Court further notes that the applicant was provided with a copy of the decision of 17 March 2011, refusing to open a criminal case, on 24 June 2011, following his lawyer’s requests in that connection. Furthermore, the applicant complained to the domestic courts of not having been provided with a copy of the forensic report of 15 March 2011 and it is not clear from the case file when he was provided with it. The Court notes the importance of access to the case file – without it, the applicant might be deprived of the possibility to acquaint himself with the progress of the proceedings and to safeguard his procedural interests in an effective manner.

45. 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 34 OF THE CONVENTION

46. By a fax of 9 September 2014, Mr Aliyev, who was the representative of the applicant before the Court, lodged a new complaint on behalf of the applicant, arguing that the seizure from his office of the entire case file relating to the applicant’s pending case before the Court had amounted to a hindrance to 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

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

B. Merits

48. In the case of AnnagiHajibeyli, 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 AnnagiHajibeyli 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.

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

III. APPLICATION OF ARTICLE41 OF THE CONVENTION

50. 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

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

52. The Government submitted that the amount claimed by the applicant was unsubstantiated.

53. 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 thus 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 12,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

54. 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.

55. The Government submitted that the amount claimed by the applicant was unsubstantiated and excessive. In that connection, the Government asked the Court to apply a strict approach in respect of the applicant’s claims.

56. 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. 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.

C. Default interest

57. 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 a 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 that the respondent State has failed to comply with its obligations under Article 34 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, 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), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the representative’s bank account;

(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;

6. 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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