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MURADOVA v. AZERBAIJAN - 22684/05 [2009] ECHR 1833 (02 July 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1833.html
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[2009] ECHR 1833
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FIRST
SECTION
CASE OF MURADOVA v. AZERBAIJAN
(Application
no. 22684/05)
JUDGMENT
STRASBOURG
2
April 2009
FINAL
02/07/2009
This
judgment may be subject to editorial revision.
In the case of Muradova v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 12 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 22684/05) 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,
Ms Mahira Sadraddin qizi Muradova (Mahirə
Sədrəddin qızı Muradova
– “the applicant”), on 7 June 2005.
The
applicant was represented by Mr I. Ashurov, a lawyer practising
in Baku. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr C. Asgarov.
The
applicant alleged, in particular, that she had been subjected to an
act of police brutality and that the authorities had failed to carry
out an adequate investigation into the incident.
On
2 October 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1949 and lives in Baku.
A. Events of 15 and 16 October 2003
On
15 October 2003 presidential elections were held in Azerbaijan. The
candidate of the opposition Musavat Party lost the election.
On
the evening of the election day a group of opposition supporters
gathered in front of the Musavat Party’s headquarters in the
centre of Baku, claiming their candidate’s victory in the
election. At this time there were some violent altercations between
opposition supporters and the security forces.
At
around 2 p.m. on 16 October a number of opposition supporters started
gathering near the State Carpet Museum, in the centre of Baku, to
protest the election results. The crowd then started moving towards
Azadliq Square, the main square in the city. It was reported
that, on their way, some people in the crowd began damaging cars,
buildings, benches and other urban constructions. It was also claimed
that the organisers of this unauthorised demonstration and certain
leaders of the opposition parties were inciting their followers to
violence.
Police
officers who had been deployed at Azadliq Square were attacked by
some of the demonstrators. Shortly thereafter large numbers of riot
police and military personnel, fully equipped with helmets, shields
and truncheons, arrived in the square. The situation quickly
escalated into public disorder and violent clashes occurred between
the crowd and the police.
At
around 6 p.m. the demonstration was dispersed. Hundreds of people
were arrested during the events of 16 October and in their aftermath.
The
applicant was at Azadliq Square when the demonstration was being
dispersed and suffered a serious injury to her right eye. The parties
disagreed as to what exactly happened to the applicant on that day.
1. The applicant’s version of the facts
According
to the applicant, the number of police and military personnel
deployed at Azadliq Square far exceeded the number of demonstrators.
The police and military forces attacked the demonstrators suddenly,
without any demands to disperse peacefully or any other prior
warning. They used excessive force and clubbed anyone who happened to
be in their way. A number of people were injured and at least one man
died as a result of police brutality.
As
the police and military forces started to gain ground, people
panicked as they attempted to run from the square. The applicant also
tried to escape, but someone in the crowd pushed her from behind and
she fell to the ground. She lifted her head and saw several policemen
in helmets standing in front of her. She extended her arm in their
direction, asking them to help her stand up. At this moment one of
the policemen struck her forcefully in the right eye with a
truncheon. The applicant immediately lost the sight in her right eye.
The policeman attempted to hit her again, but she managed to evade
the second blow.
A
number of unknown individuals took her to Pharmacy no. 259, which was
located nearby. The pharmacy’s employees were trying to provide
first aid to a number of other injured people who were already there.
At
some point a number of soldiers attempted to enter the pharmacy,
apparently with the intention of attacking the people inside, but
were prevented from doing so by a person named I.G. and a pharmacy
employee. A little later an ambulance arrived and took the applicant
and four other injured people to an emergency clinic.
2. The Government’s version of the facts
The
Government stated that, during the disorder, more than twenty
peaceful civilians were injured and serious damage was inflicted on
various public and private property.
However,
the Government disputed the applicant’s version of the incident
when she had suffered her injury. With reference to the investigation
carried out by the domestic authorities (see sections C. and D.
below), they maintained that the applicant’s injury was not
caused by the police and that the injury was suffered as a result of
her falling down on a blunt object.
B. Initial medical treatment received by the applicant
On
16 October 2003 the applicant was taken to an emergency clinic. The
medical record indicated that she was diagnosed with “haemophthalmia
[bleeding into the eyeball] and contusion of the right eye; a bruised
wound of the right supraorbital ridge”. It was noted that the
applicant “suffered the injury during the well-known events
which took place in the city on 16 October 2003”.
After
receiving initial treatment, on 17 October the applicant was
transferred to the Institute of Eye Diseases, a hospital specialising
in ophthalmology. She was admitted with a diagnosis of “severe
rupture of the OD [right eye] sclera, ... hyphema [blood
in the anterior chamber of the eye], haemophthalmia, stitched
injury of the supraorbital ridge”. The applicant told the
doctors that she had suffered the injury as a result of a blow by a
police truncheon.
On
17 October 2003 urgent surgery was performed on the applicant.
Despite the surgery, she became permanently blind in her right eye.
On
4 November 2003 the applicant was discharged from the hospital. She
claimed that a few weeks later the sight in her left eye also started
to deteriorate rapidly.
C. Criminal investigation
1. Criminal complaint and interrogation of the
applicant
On
24 February 2004 the applicant filed a criminal complaint with the
Chief Prosecutor’s Office, asking that the policeman who had
hit her with the truncheon be identified and incriminated. On an
unspecified date she also lodged a petition asking to be granted the
formal status of a “victim of crime” (zərər
çəkmiş şəxs).
By
that time the Chief Prosecutor’s Office had already instituted
criminal proceedings concerning the public disorder which took place
on 16 October 2003. It appears that this criminal case concerned
the offences against public order allegedly committed by the
demonstrators, and did not concern any violations allegedly committed
by the police during the events in question. No separate criminal
proceedings were instituted on the basis of the applicant’s
complaint and her letter was admitted to the case file of the
above-mentioned criminal case.
On
13 and 16 March 2004 the applicant was interrogated by an
investigator as a witness (not as a “victim of crime”).
According to the applicant’s testimony, on 16 October 2003 she
went to the seaside park (located across the road from both the State
Carpet Museum and Azadliq Square) and sat on a bench to read a
newspaper. At around 1.30 p.m. she saw about 200 people in the park,
shouting slogans and protesting the election results. She joined this
group because she too was discontent with the election. The group
headed in the direction of the State Carpet Museum and, from there,
to Azadliq Square. About 15-20 young people in the crowd were
destroying things on their way, while some also attacked a group of
policemen standing near the museum. The applicant and others in the
crowd admonished these young people for their actions. When she
arrived in Azadliq Square she saw that more people had already
gathered there, including some opposition leaders. She also saw that
riot police and military personnel were arriving and grouping in one
corner of the square. She did not hear the police or the military
issue any demands to the crowd to disperse and leave the square.
Suddenly the crowd and the police forces clashed. The demonstrators
were throwing stones and pieces of wood and metal at the police,
while the latter advanced upon the crowd, beating the demonstrators
with rubber truncheons. When the police started gaining the upper
hand, people started panicking and running away.
The
applicant continued as follows:
“... I wanted to go home. When I was walking
between the trees [in one corner of Azadliq Square] I was pushed from
behind by people who were running past me and fell to the ground. ...
I asked an approaching policeman, who was dressed in a helmet and
black uniform and was holding a truncheon and a shield, to help me
stand up. Instead of helping me, the policeman hit me over my right
eye with the truncheon. I held my eye crying, and when I said to him:
“What have I done to you that you hit me?”, I saw him
raising his arm to hit me again. At this point I felt that some other
policemen standing nearby said something to him, and then all of them
went away from me. I could not see any rank insignia on their
shoulders. I would not be able to recognise the policeman who hit me
and the policemen who were near him. It is possible that some of the
civilians who were nearby saw [this incident], but I do not know
specifically who witnessed it. I stood up by myself and while I was
hobbling in the direction of Pharmacy no. 259, an unknown old man
took me by the arm and accompanied me to the pharmacy so that I could
get medical aid. That man left after we arrived at the pharmacy. The
pharmacy was all covered with blood, [and] there were several injured
civilians inside. At this point some soldiers approached the pharmacy
and started knocking on the window, and a grey-haired old woman who
was an employee of the pharmacy [admonished them]. At the same time,
when I.G., whom I recognised because he used to be a television
journalist, tried to open the door of the pharmacy [from inside], one
of the soldiers [who was standing outside] tried to hit him with a
truncheon but missed. The reason [I.G. wanted to open the door and go
outside] was that he wanted to call an ambulance for the injured...
After a while an ambulance took us to a hospital... In the hospital,
I received stitches on my wounded eyebrow, and the next day I was
transferred to the Institute of Eye Diseases... There I underwent an
operation which lasted about 3 hours... However, the surgery did not
help and my right eye became completely blind...”
2. First Forensic Report
On
21 March 2004 the investigator requested a forensic expert’s
opinion on the applicant’s injuries. According to the forensic
report of 28 July 2004 (“the First Forensic Report”),
issued by an expert of the Forensic Medicine and Pathological Anatomy
Department of the Ministry of Health, the forensic examination
started on 24 March 2004 and ended on 28 July 2004.
The
First Forensic Report was eight pages long and mostly consisted of
copied extracts from the applicant’s medical records. Inter
alia, the report contained the following description of the
injury:
“The size of the right eyeball has shrunk, and
[the eyeball] has sunk into the eye socket. The symmetry of the right
eye and the left eye has been disrupted and remains in a deformed
state. The circumference of the right eye’s cornea is
[diminished] in comparison with the left eye’s cornea. Its
anterior spherical shape is deformed. A [scar] is observable on the
upper side of the cornea. The round shape of the right eye’s
iris is deformed and contains a whitish substance. There is a slanted
whitish scar measuring 3x0.5 cm on the right supraorbital ridge.”
The
report concluded, on the basis of previous medical records and
diagnoses, that the applicant had indeed suffered injuries to her
right eye, resulting in irreversible deformation of her face, which
were not life threatening but nevertheless qualified as severely
harmful to health. It was noted that “[based on the available
materials] it cannot be excluded that these injuries ... were caused
on 16 October 2003 by a blow (blows) from a narrowly-shaped hard
blunt object ... in the circumstances described by the applicant ...
or other circumstances”. However, the expert was unable to
reach a definitive conclusion as to the cause of the injury, noting
that such a conclusion could be made by a medical board comprised of
experts specialised in ophthalmology.
In
the meantime, prior to the delivery of this forensic report, on
25 May 2004 the applicant wrote a letter to the Chief
Prosecutor, complaining, inter alia, that, instead of
taking a formal procedural decision ordering a forensic examination,
the investigator had simply informed her about the request for a
forensic examination by a letter. She also complained that the
appointed forensic expert had delayed the examination and avoided
examining her in person under various pretexts. On 21 July 2004
she wrote another letter to the Chief Prosecutor, reiterating the
above complaints. It appears that none of these letters were
answered.
According
to the applicant, she had not seen the First Forensic Report prior to
the receipt of the Government’s observations in the present
proceedings before the Court.
3. Second Forensic Report
On
13 September 2004 the investigator ordered another forensic
examination. The experts were asked, inter alia, the following
specific questions:
“4. To determine whether the loss by M.
Muradova of the vision in her right eye was the direct result of the
initial injury or of any errors committed during the subsequent
medical treatment.
5. To determine whether the injury sustained
by M. Muradova was caused in the circumstances described by her, i.e.
as a result of falling down during the incident or as a result of
being struck with a truncheon by a policeman.”
According
to the forensic report of 25 October 2004 (“the Second Forensic
Report”), this examination was carried out from 13 September
2004 to 22 October 2004 by a board of four experts of the Forensic
Medicine and Pathological Anatomy Department of the Ministry of
Health, including one expert specialised in ophthalmology.
The
Second Forensic Report was seven pages long. The report consisted
almost entirely of copied extracts from the First Forensic Report and
the applicant’s medical records. It was noted that she had
received adequate medical treatment both in the emergency clinic and
the Institute of Eye Diseases and that the medical personnel had
committed no errors.
The
body of the report did not contain any analysis as to possible causes
of the injuries sustained by the applicant.
In
the conclusion part of the report, the following answers were given
to the questions asked (see paragraph 31 above):
“4. The full loss by M. Muradova of the
vision in her right eye was caused by the trauma suffered by her.
5. No damage typically attributatle to a
police truncheon have been discovered on M. Muradova’s person.”
According
to the applicant, she had not seen the Second Forensic Report prior
to the receipt of the Government’s observations in the present
proceedings before the Court.
4. Discontinuation of the criminal investigation
On
26 November 2004 the investigator issued a decision to discontinue
the criminal investigation.
According
to this decision, in addition to the applicant, a total of eight
witnesses had been questioned in connection with the applicant’s
complaint. All of these witnesses were shown a photo of the applicant
and none of them recognised her.
Six
of the witnesses were policemen who had been present at or near
Azadliq Square during the dispersal of the unauthorised demonstration
of 16 October 2003. All of them testified that they had not
known the applicant, that they themselves had not hit the applicant
with a truncheon, and that they had not seen any woman being hit by a
policeman during the events of 16 October 2003. They also surmised
that the applicant had suffered her injury as a result of her own
actions, i.e. falling down while running away from Azadliq Square, or
being pushed by people in the crowd.
The
remaining two witnesses, A.V. and R.G., were employees of Pharmacy
no. 259. They were both male. Both of them testified that they had
been at work on 16 October 2003, that they had not seen any injured
woman brought to the pharmacy on that day, had not known the
applicant and had not seen how she had sustained her injury.
The
decision further stated that none of the police or military personnel
present at Azadliq Square during the events of 16 October 2003 had
been presented to the applicant for identification, because in her
testimony she had stated that she would not be able to recognise the
person who had allegedly caused her injury.
Further,
according to the investigator, the Second Forensic Report “stated
that ... [the applicant’s injuries] were a result of her
falling down and her head striking an outstanding blunt object
located on the ground, and that there were no damage on her person
typically attributable to a blow from a police truncheon”.
The
investigator concluded that it could not be established that the
applicant had been struck by a policeman and determined that the
applicant had received the injuries as a result of her own actions.
Accordingly, it was found that no crime had been committed (cinayət
hadisəsinin olmaması) and
that the applicant’s petition to be recognised as a “victim
of crime” should be rejected. For these reasons, the
investigator decided to discontinue the investigation into the
applicant’s allegations.
According
to the Government, the applicant was sent a copy of this decision by
a letter of 26 November 2004. According to the applicant, she was
never informed of this decision.
D. Civil action
In
the meantime, in March 2004 the applicant lodged a civil action with
the Sabail District Court against the Ministry of Internal Affairs,
claiming monetary compensation for her injury. On 15 March 2004 the
Sabail District Court refused to examine the case, noting that
compensation claims against the State should indicate the Ministry of
Finance as a co defendant and should be lodged with the Nasimi
District Court.
On
an unspecified date the applicant lodged her civil claim with the
Nasimi District Court, indicating the Ministry of Internal Affairs
and the Ministry of Finance as co-defendants and claiming
compensation for her injury.
By
a letter of 18 May 2004, the Chief Prosecutor’s Office informed
the Nasimi District Court that a criminal investigation in respect of
the applicant’s allegations was in progress.
On
7 June 2004 the Nasimi District Court held its first hearing and
heard the submissions of the applicant and co-defendants. The
applicant gave her account of the incident leading to her injury and
reiterated her claim. The counsel for the first defendant, the
Ministry of Internal Affairs, submitted that the applicant had filed
a criminal complaint which was pending before the investigation
authorities. He further argued that the police had been entitled to
use force against the crowd during the events of 16 October 2003
because the manifestation had been unauthorised and its participants
had been causing public disorder. In any event, he maintained that
the police had not inflicted any injuries on the applicant and that
her claims were unsubstantiated. The counsel for the Ministry of
Finance submitted that he was in accord with the submissions of the
first defendant.
On
18 June 2004 the Nasimi District Court heard oral testimonies by
three witnesses who testified on behalf of the applicant.
Mr
I.G. (the man whom the applicant mentioned in her testimony, cited in
paragraph 25 above) testified as follows (the trial transcript
omitted the questions asked by the parties’ counsels during
cross-interrogation, but contained the record of the witness’s
answers to them):
“On 16 October 2003 I saw M. Muradova, who was
wounded in her eye, in Pharmacy no. 259. At that time, some policemen
tried to enter the pharmacy and, when I wanted to open the entrance
door, they tried to kick me. I did not see who had hit M. Muradova
and cannot say anything in this respect.
[Answers to cross-interrogation by the applicant’s
counsel:]
- No, I did not see the claimant M. Muradova
being hit by a policeman.
- Yes, as M. Muradova was injured, I called
an ambulance on that day.
- Yes, when I saw M. Muradova at Azadliq
Square, her eye had already been put out and her face was covered
with blood.
- Yes, when I opened the door of the
pharmacy, [they] wanted to kick me, but I evaded the kick by quickly
closing the door.
[Answer to cross-interrogation by the defendant’s
counsel:]
- No, I did not see the claimant M. Muradova
being hit by a policeman.”
Ms
A.A. testified as follows:
“[People] were gathering at Azadliq Square at
around 2 p.m. on 16 October 2003. At that time I was near the
Government House [located on Azadliq Square], and I saw the police
and special forces attack the people who had gathered at Azadliq
Square without any warning and start to beat them with truncheons. I
was there on that day and I saw the claimant, whose name I learnt
thereafter, falling to the ground as a result of being pushed [in the
crowd] and [I saw] police officers in black uniforms, wearing
protective helmets on their heads and holding truncheons in their
hands. She [the applicant] extended her arm towards those police
officers and asked them to help her stand up, but one of the police
officers struck her forcefully in her right eye with his truncheon.
When the police officer attempted to hit her again, she evaded the
blow by moving away her head. Then some civilians took her to
Pharmacy no. 259 which was located nearby. She was given some first
aid in the pharmacy and thereafter she and other injured people in
the pharmacy were taken to hospital by ambulance.
[Answers to cross-interrogation by the applicant’s
counsel:]
- Yes, I was among those who gathered at
Azadliq Square on 16 October 2003.
- Yes, M. Muradova, whom I had not known
before, was there on that day.
- Yes, on 16 October 2003 I saw that M.
Muradova fell to the ground and that one of the police officers hit
her with the truncheon that he was holding.
- Yes, M. Muradova’s eye was injured as
a result of the blow inflicted by the police officer.
- Yes, she was given medical aid in the
‘Green Pharmacy’ located nearby and was then taken to a
hospital by an ambulance.
[Answer to cross-interrogation by the defendant’s
counsel:]
- No, I would not be able to recognise the
police officer who hit M. Muradova.
- Yes, I had known [G.G.] before, but I saw
M. Muradova for the first time at [Azadliq Square].”
Ms
G.G. testified as follows:
“I had not known the claimant before. I was an
observer in Polling Station no. 246 during the presidential election
of 15 October 2003. At around 2-3 p.m. on 16 October 2003, near
Azadliq Square, I saw M. Muradova fall to the ground and ask some
masked police officers with truncheons in their hands not to hit her,
but one of the police officers hit M. Muradova with his truncheon
and, as a result, her eye was injured. I bought medication for [the
applicant] from the ‘Green Pharmacy’.
[Answers to cross-interrogation by the applicant’s
counsel:]
- Yes, on 16 October 2003 I saw M. Muradova,
whose name I learnt later, falling to the ground at Azadliq Square.
- Yes, on 16 October 2003 one of the police
officers who were at Azadliq Square hit M. Muradova in the eye area
with his truncheon.
- No, I had not known M. Muradova before.
- Yes, one man brought M. Muradova, I saw
that her eye was bleeding.
[Answer to cross-interrogation by the defendant’s
counsel:]
- Yes, I was told that the medication
necessary for M. Muradova was available at the ‘Green
Pharmacy’, located nearby.”
On
the same day, 18 June 2004, the Nasimi District Court delivered its
judgment, dismissing the applicant’s claim. Having regard to
the medical records, the court noted that the applicant had suffered
an injury to her eye. However, it considered that she failed to
substantiate her allegation that the injury had been inflicted by a
police officer. In particular, the court assessed the witness
testimonies as follows:
“During the hearing Ms G.G., heard by the court as
a witness, testified that she had not personally known M. Muradova
previously. ... At around 2-3 p.m. on 16 October 2003 she saw that M.
Muradova fell to the ground and that she asked the masked policemen,
holding truncheons in their hands, not to hit her. However, one of
the policemen hit M. Muradova with his truncheon. As a result, M.
Muradova suffered an injury to her eye. [The witness] bought some
medication for M. Muradova from the ‘Green Pharmacy’.
Ms A.A., a witness, gave a similar testimony.
Mr I.G., a witness, testified that on 16 October 2003 he
saw M. Muradova with an injured eye in Pharmacy no. 259. ... He did
not see who had beaten the applicant.
In accordance with Article 77.1 of the Code of Criminal
Procedure of the Republic of Azerbaijan, each party must prove any
allegations which it makes in support of its claims and objections.
During the hearing, M. Muradova has failed to prove the
allegations she made in her judicial claim.
The court finds that the testimonies of witnesses heard
during the trial cannot serve as a ground for upholding the
applicant’s claim.
Having assessed the above, the court concludes that the
claim must be rejected as unsubstantiated.”
On
17 September 2004 the Court of Appeal upheld the first-instance
court’s judgment, noting, without any further elaboration, that
the applicant had been unable to prove her allegations.
On
2 February 2005 the Supreme Court upheld the lower courts’
judgments.
II. RELEVANT DOMESTIC LAW
A. Use of force
1. Law on Police of 8 October 1999
Police
officers may use special equipment in respect of offenders in the
event of, inter alia, a mutiny or mass unrest (Article 26.II).
“Special equipment” is defined as truncheons,
arm-restraining instruments, tear gas, rubber bullets, water cannons
and other means (Articles 1). Physical force, special equipment or
firearms may be used when absolutely necessary in a manner
proportionate to the danger posed. Loss of life caused by such
absolutely necessary use of physical force, special equipment or
firearms cannot be considered as a violation of the right to life
(Article 26.VI). The police authorities must perform an enquiry into
every incident involving the use of physical force, special equipment
or firearms and issue a relevant opinion concerning its lawfulness
(Article 26.VII). Unlawful use of force by a police officer entails
the officer’s responsibility under the relevant legislation
(Article 26.IX).
Police
officers may use physical force, special equipment or firearms only
in the event of absolute necessity or necessary self-defence, after
all other means of coercion have failed to produce the required
result, and depending on the gravity of the offence and the
personality of the offender (Article 27.I.1). Persons injured as a
result of the use of physical force, special equipment or firearms
must be provided with necessary medical aid (Article 27.I.5). The
police officer must inform the relevant police authority, in writing,
about the instances in which he or she used physical force, special
equipment or firearms (Article 27.I.7). The relevant prosecutor must
also be informed about such use of force within 24 hours (Article
27.I.8).
2. Law on Status of Internal Troops of 8 February 1994
Military
servicemen must issue a prior warning about their intention to use
physical force, special equipment, firearms or combat equipment, and
allow sufficient time for compliance with their demands prior to
resorting to such use of force. However, exceptions are made in cases
where issuance of such prior warning would be untimely or impossible,
or where a delay in the use of force would create danger to human
health or life or other serious consequences. Military servicemen are
required to provide first aid to injured persons and to inform the
relevant prosecutor about any cases of injuries or death resulting
from the use of force. Use of force by military servicemen in excess
of their competence entails their responsibility under the relevant
legislation (Article 19).
If
necessary, the following special equipment may be used in cases of
mass unrest: rubber truncheons, tear gas, light- and noise-emitting
distracting devices, water cannons, armoured vehicles and service
dogs (Article 21).
B. Criminal procedure
Under
Articles 39.1.1 and 41.1 of the Code of Criminal Procedure of 2000
(“the CCrP”), criminal proceedings may not be instituted
and, if instituted, must be discontinued at any stage of the
pre-trial proceedings if it is found that no crime has been committed
(cinayət hadisəsi olmadıqda).
If
there are sufficient grounds to consider that a person has sustained
direct moral, physical or material damage as a result of an act
proscribed by criminal law, this person shall be recognised as a
“victim of crime” (zərər çəkmiş
şəxs) (Article 87.1). If there are not sufficient
grounds for recognising a person as a “victim of crime”
at the time of institution of criminal proceedings, a decision to
grant “victim of crime” status shall be taken (either by
a preliminary investigator, investigator, prosecutor or court) as
soon as the existence of such grounds is established (Article 87.4).
A
person recognised as a “victim of crime” has, inter
alia, the following procedural rights: to submit materials to the
criminal case file; to request the status of a private prosecutor at
any pre-trial stage; to make objections to the actions of the
criminal prosecution authority; to lodge petitions; to have access to
transcripts and documents in the case file; to be informed about and
to obtain copies of the procedural decisions of the criminal
prosecution authority (including a decision to discontinue the
criminal proceedings); to lodge appeals against procedural actions or
decisions, etc. (Article 87.6). In contrast, a person participating
in the proceedings as a witness is entitled to have access only to
those transcripts and documents which are related to him or her
(Article 95.6.8).
Parties
to criminal proceedings (and other persons involved in such
proceedings in cases specified in the CCrP) are entitled to complain
about procedural actions or decisions by the criminal prosecution
authority. Procedural actions or decisions by the preliminary
investigator or the investigator may be appealed to the supervising
prosecutor and the procedural actions or decisions of the latter may
be appealed to the hierarchically superior prosecutor (Articles
122.2.1 and 122.2.2). Certain types of procedural actions or
decisions (of the preliminary investigator, investigator or
supervising prosecutor) stipulated in Article 449.3 of the CCrP may
be appealed directly to the supervising court (Article 122.2.3).
The
following persons may lodge complaints against the procedural actions
or decisions of the criminal prosecution authority directly with the
supervising court: (1) the accused person (or a suspect) and his or
her representative; (2) the aggrieved party (victim of the crime) and
his or her representative; and (3) other persons whose rights have
been violated by the impugned action or decision (Article 449.2). A
decision to discontinue the criminal proceedings may be appealed,
inter alia, to a supervising court (Article 449.3.5).
Articles
264-272 of the CCrP provide for a procedure of carrying out expert
examinations. In particular, Article 268.1.4 provides that a person
suspected or accused of committing a criminal offence has a right,
inter alia, to procure an “alternative expert
examination” and request that the results of such examination
be admitted to the criminal file.
C. Civil procedure
66. Under
Article 77.1 of the Code of Civil Procedure of 2000 (“the
CCP”), each party in civil proceedings bears the burden of
proving the grounds for their respective claims and objections.
67. Under
Article 254.1.4 of the CCP, a judge must suspend the civil
proceedings if it is impossible to examine the claim prior to the
completion of another set of constitutional, civil, criminal or
administrative proceedings precluding such examination.
68. Under
Article 265.4 of the CCP, if upon examination of a civil claim a
court discloses an appearance of criminal elements in the actions of
the parties to the case or other persons, it must deliver a special
ruling (xüsusi qərardad)
informing a public prosecutor thereof.
III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS
A. Basic principles on the use of force adopted by the
UN
The
relevant extracts from the Code of Conduct for Law Enforcement
Officials (adopted by the UN General Assembly Resolution 34/169 of 17
November 1979) reads:
Article 3
“Law enforcement officials may use force only when
strictly necessary and to the extent required for the performance of
their duty.”
Article 5
“No law enforcement official may inflict,
instigate or tolerate any act of torture or other cruel, inhuman or
degrading treatment or punishment, nor may any law enforcement
official invoke superior orders or exceptional circumstances such as
a state of war or a threat of war, a threat to national security,
internal political instability or any other public emergency as a
justification of torture or other cruel, inhuman or degrading
treatment or punishment.”
The
relevant extracts from the Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials (adopted by the Eighth UN
Congress on the Prevention of Crime and the Treatment of Offenders,
Havana, Cuba, 27 August to 7 September 1990) read:
“... 2. Governments and law enforcement
agencies should develop a range of means as broad as possible and
equip law enforcement officials with various types of weapons and
ammunition that would allow for a differentiated use of force and
firearms. These should include the development of non-lethal
incapacitating weapons for use in appropriate situations, with a view
to increasingly restraining the application of means capable of
causing death or injury to persons. For the same purpose, it should
also be possible for law enforcement officials to be equipped with
self-defensive equipment such as shields, helmets, bullet-proof vests
and bullet-proof means of transportation, in order to decrease the
need to use weapons of any kind.
3. The development and deployment of
non-lethal incapacitating weapons should be carefully evaluated in
order to minimize the risk of endangering uninvolved persons, and the
use of such weapons should be carefully controlled.
4. Law enforcement officials, in carrying out
their duty, shall, as far as possible, apply non-violent means before
resorting to the use of force and firearms. They may use force and
firearms only if other means remain ineffective or without any
promise of achieving the intended result.
5. Whenever the lawful use of force and
firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in
proportion to the seriousness of the offence and the legitimate
objective to be achieved;
(b) Minimize damage and injury, and respect
and preserve human life;
(c) Ensure that assistance and medical aid
are rendered to any injured or affected persons at the earliest
possible moment; ...
6. Where injury or death is caused by the use
of force and firearms by law enforcement officials, they shall report
the incident promptly to their superiors, in accordance with
principle 22.
7. Governments shall ensure that arbitrary or
abusive use of force and firearms by law enforcement officials is
punished as a criminal offence under their law.
8. Exceptional circumstances such as internal
political instability or any other public emergency may not be
invoked to justify any departure from these basic principles. ...
... 22. Governments and law enforcement
agencies shall establish effective reporting and review procedures
for all incidents referred to in principles 6 and 11 (f). For
incidents reported pursuant to these principles, Governments and law
enforcement agencies shall ensure that an effective review process is
available and that independent administrative or prosecutorial
authorities are in a position to exercise jurisdiction in appropriate
circumstances. In cases of death and serious injury or other grave
consequences, a detailed report shall be sent promptly to the
competent authorities responsible for administrative review and
judicial control.
23. Persons affected by the use of force and
firearms or their legal representatives shall have access to an
independent process, including a judicial process. In the event of
the death of such persons, this provision shall apply to their
dependants accordingly.
24. Governments and law enforcement agencies
shall ensure that superior officers are held responsible if they
know, or should have known, that law enforcement officials under
their command are resorting, or have resorted, to the unlawful use of
force and firearms, and they did not take all measures in their power
to prevent, suppress or report such use.”
B. Reports by international bodies and human rights
NGOs
The
relevant extracts from Functioning of democratic institutions in
Azerbaijan, Report of the Committee on the Honouring of
Obligations and Commitments by Member States of the Council of Europe
(Monitoring Committee), by co-rapporteurs Mr Gross and Mr Martínez
Casañ (12 January 2004, Doc. 10030), read:
“D. Post-election events
34. Security forces maintained a heavy
presence around Musavat headquarters since early afternoon on polling
day. In the evening supporters of the Musavat party gathered in front
of the party’s office and this meeting, although not authorized
by the authorities, was described as rather peaceful. Shortly after
the closing of the poling stations, Musavat supporters announced the
victory of the leaders of the party. Some turmoil started and the
demonstration was strongly repressed by policemen. Alleging they had
to enter the party office to arrest party officials, security forces
started to use force against the protesters and violent fights
followed.
35. Once the preliminary final results had
been announced on the following day, the Musavat party denounced them
as unrealistic and falsified and called for a demonstration in the
main square of the capital. During the demonstration, the
demonstrators stole a police vehicle and charged against the police
forces killing a policeman. In the clashes which followed, several
persons, both demonstrators and policemen, were seriously wounded.
Several other sources indicated that four persons died during the
clashes.”
The
relevant extracts from The Organisation for Security and Cooperation
in Europe, Office for Democratic Institutions and Human Rights
(OSCE/ODIHR) Report from the Trial Monitoring Project in Azerbaijan
2003-2004 (4 February 2005) read:
“In the immediate aftermath of the elections,
demonstrations took place on 15 and 16 October, which resulted in
violent clashes between security forces and demonstrators in Baku.
On the evening of 15 October in front of the Musavat
Party Headquarters, members of the OSCE/ODIHR Election Observation
Mission witnessed police attacking peaceful pro-opposition
supporters. On 16 October, several thousand demonstrators and
pro-opposition supporters gathered in Azadliq Square in the centre of
Baku to protest what they considered to have been a stolen election.
On their way to the square demonstrators were witnessed
vandalizing buildings and vehicles, and attacking police forces with
metal bars and stones. At the square, demonstrators were rapidly
surrounded by police and security forces, which used overwhelming
force to disperse the crowd. Security forces were witnessed beating
demonstrators with truncheons after they had been detained and no
longer posed any danger or as they were fleeing the area. Video tape
recordings provide evidence of the scale of excessive force and
brutality used by government forces to overwhelm the demonstrators.
The violence was followed by a wave of detentions.
According to officials, the detainees were persons involved in the
violent activities or responsible for organizing the violence. ...
The Minister of Interior reported that over 600 persons were detained
following the violent clashes. ...
The majority of the people detained in connection with
the elections were later released without charge. In total, 129
persons were charged with criminal offences in connection with the
post-election clashes, of whom 125 had been brought to trial at the
time this report was prepared. ...
At the time of the writing of this report, the
OSCE/ODIHR was unaware of any cases of charges having been brought
against police officers or other officials for brutality or excessive
use of force against demonstrators.”
The
relevant extract from the 2003 Report of the International Helsinki
Federation for Human Rights reads:
“On the evening of 15 October and the following
day, clashes between the police (and the military) and protesters
grew into a massively violent confrontation as the opposition
protested the flawed elections. The police and the military
surrounded the Azadliq (Liberty) Square using tear gas, rubber
bullets, police dogs and truncheons on protesters. They brutally beat
protesters, even after they had fallen to the ground, injuring scores
of people, as well as members of the press. Many police officers were
also injured. At the time of this writing the number of casualties
was not year clear: depending on sources, two to four deaths were
reported, along with dozens of injuries, including a five-year old
child. Azerbaijani authorities maintained that the mass unrest was
instigated by the opposition leaders in order to destabilize
Azerbaijan, but according to numerous accounts, the police actions
were unprovoked.”
The
relevant extract from the 2004 Report of the International Helsinki
Federation for Human Rights reads:
“On 16 October, opposition activists tried to
conduct an unapproved meeting at Azadliq, the central plaza in Baku.
They were beaten by the police. One of the activists, 52-year old
Hamidaga Zahidov, was beaten to death by police, while hundreds of
others were injured. The protesters resisted by throwing stones and
injuring dozens of policemen. In the ensuing criminal investigation,
police cruelty was not investigated at all. Moreover, in a joint
statement by the Ministry of Internal Affairs and the Prosecutor’s
Office, the opposition was accused for being responsible for the
death of a protester.”
The
relevant extract from the 2003 Country Report on Human Rights and
Practices of the US Department of State, released by the Bureau of
Democracy, Human Rights, and Labor on 25 February 2004, reads:
“On October 16, a large crowd gathered for an
unsanctioned demonstration in downtown Baku that turned violent.
Protestors marched from Musavat headquarters to Azadliq Square and
along the way beat dozens of security officers, destroyed security
forces’ vehicles, and damaged government buildings. As several
thousand security forces surrounded the square, a group of protestors
attacked the security forces, who stormed the demonstrators with tear
gas and truncheons, while unknown demonstrators drove a stolen
military truck into police lines. Security forces responded with
excessive force, beating many demonstrators, sometimes to the point
of unconsciousness and even after they were trying to leave the area
or were detained, killing one and reportedly injuring at least 300
persons.”
The
relevant extracts from the Human Rights Watch press release of 17
October 2003 (Azerbaijan: Post-Election Clashes Turn Deadly)
read:
“Thousands of opposition protesters took to the
streets of Baku, the capital, at 2:00 p.m. yesterday. The
demonstration quickly grew violent, in part because once the
protesters began to congregate, police and military forces
immediately surrounded them. The protesters drove away members of the
security forces there and marched to Baku’s Azadliq (Freedom)
Square. During their march, protesters severely beat some police
officers and soldiers, who remain hospitalized. The protesters also
destroyed a number of police and military vehicles, and damaged
government buildings along the way.
Soon after the opposition protesters arrived at Azadliq
Square, several thousand riot police and military troops surrounded
the entire plaza. Riot police and military stormed the opposition
protest, using tear gas, rubber bullets, police dogs and truncheons.
From the roof of a nearby building, a Human Rights Watch researcher
saw police and military troops chase down protesters, surround them
and viciously beat them. Many of the protesters continued to be
beaten after they had fallen to the ground. Human Rights Watch
observed a number of civilian pro-governmental supporters
participating in the beatings with the security forces.
Police beat to death at least one person, Hamidagha
Zakhidov, 52, whose body Human Rights Watch viewed after the
protests. His body was completely black and blue, and his head
smashed and bloody...
So far, an estimated 300 persons have sustained serious
injuries during the clashes, according to local hospital officials
and other sources. Many of the wounded were unable to walk and had to
be carried away from the square. Human Rights Watch has conducted
interviews with more than a dozen of the wounded, all of who describe
being surrounded by groups of riot police and military troops who
beat them severely, leaving many unconscious. ... Also among the
injured are several dozen police and army personnel.”
The
relevant extract from the Human Rights Watch World Report 2005
(Events of 2004, Country Summary: Azerbaijan) reads:
“Post-Election Trials
Over one hundred opposition party members and supporters
were tried on charges relating to the post-election violence. Only
four were released on bail, the rest remained in pre-trial detention
for up to six months. Azerbaijani courts convicted all of the
defendants, sentencing forty-six people to custodial sentences
ranging from two to six years. The remainder were released on three-
to five-year suspended prison sentences. On October 22, the Court of
Grave Crimes sentenced seven opposition leaders to between
two-and-a-half and five years in prison for their role in the
post election violence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that she had been subjected to an act of police
brutality which had caused her serious physical and mental suffering
and that the domestic authorities, including the investigative
authorities and courts, had failed to carry out an effective
investigation into the incident capable of identifying and punishing
the police officer responsible, despite the fact that her allegations
had been clearly corroborated by the testimony of several
eyewitnesses. The substance of this complaint falls to be examined
under Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. The parties’ submissions
The
Government submitted that the applicant had not exhausted all
available domestic remedies.
Firstly,
the Government argued that the applicant had failed to submit a
constitutional complaint against the Supreme Court’s final
decision of 2 February 2005.
Secondly,
the Government noted that the applicant had not appealed against the
investigator’s decision of 26 November 2004 in accordance with
the procedure established by Articles 122 and 449 of the CCrP. The
Government maintained that the applicant had been duly informed about
this decision and, in support of this assertion, produced a copy of
the letter signed by the investigator, addressed to the applicant and
dated 26 November 2004.
The
applicant submitted that a complaint to the Constitutional Court was
an extraordinary remedy which she was not required to exhaust prior
to applying to Strasbourg.
The
applicant further submitted that she had never been informed about
the investigator’s decision of 26 November 2004. She claimed
that she became aware of the existence of this decision only when the
Government’s observations in the present case had been
forwarded to her. Therefore, she could not have been expected to
appeal against it.
2. The Court’s assessment
The
Court reiterates that the only remedies to be exhausted are those
which are effective. It is incumbent on the Government claiming
non exhaustion to satisfy the Court that the remedy was an
effective one, available both in theory and in practice at the
relevant time, that is to say, that it was accessible, was one which
was capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success. Once this
burden of proof has been satisfied, it falls to the applicant to
establish that the remedy advanced by the Government was in fact
exhausted, or was for some reason inadequate and ineffective in the
particular circumstances of the case, or that there existed special
circumstances absolving him or her from this requirement (see Akdivar
and Others v. Turkey, 16 September 1996, § 68, Reports of
Judgments and Decisions 1996 IV).
Moreover, the rule of exhaustion of domestic remedies
must be applied with some degree of flexibility and without excessive
formalism. This rule is neither absolute nor capable of being applied
automatically. In reviewing whether it has been observed, it is
essential to have regard not only to the existence of formal remedies
in the legal system of the State concerned, but also to the
general legal and political context in which they operate, as
well as the particular circumstances of the individual case. This
means, inter alia, that the Court must examine whether, in all
the circumstances of the case, the applicant did everything that
could reasonably be expected of him or her to exhaust available
domestic remedies (see Melnik v. Ukraine, no. 72286/01, §
67, 28 March 2006, and Hummatov v. Azerbaijan, nos. 9852/03
and 13413/04, § 91, 29 November 2007).
As
regards the applicant’s failure to lodge a complaint with the
Constitutional Court, the Court reiterates its previous finding to
the effect that lodging such a complaint was not one of the remedies
to be exhausted prior to lodging an application with the Court. The
Constitutional Court lacked adequate accessibility because, in order
to exercise a right of individual petition before the Constitutional
Court, individuals were required on a domestic level to have had
recourse to another remedy (additional cassation procedure before the
Plenum of the Supreme Court) which was ineffective within the meaning
of Article 35 § 1 of the Convention (see Ismayilov v.
Azerbaijan, no. 4439/04, §§ 39-40, 17 January 2008).
The Court finds no reason to depart from that finding in the present
case and, therefore, rejects this part of the Government’s
objection.
As
to the applicant’s alleged failure to challenge the
investigator’s decision on discontinuation of the criminal
investigation under the procedure provided by Articles 122 and 449 of
the CCrP, the Court considers that this part of the Government’s
objection raises issues concerning the effectiveness of the criminal
investigation which are closely linked to the merits of the
complaint. Thus, it considers that these issues should be joined to
the merits and fall to be examined below under the substantive
provision of the Convention.
The Court further notes that this complaint is not
otherwise manifestly ill-founded within the meaning of Article 35 §
3 of the Convention and is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
Government did not contest that the applicant had suffered an injury,
but maintained that she had not been subjected to ill-treatment. The
Government concurred with the findings of the domestic investigation,
namely that it could not be established that the applicant suffered
her injury as a result of actions by the police.
The
Government argued that the applicant was unable to substantiate her
allegations. In particular, she was unable to identify the police
officer who had allegedly hit her. When interrogated by the
investigator in connection with her criminal complaint, she noted
that she did not know whether there were any people who had witnessed
the incident.
Subsequently,
however, upon examination of her civil claim by the domestic courts,
she was “suddenly” able to present two eyewitnesses (A.A.
and G.G.) who had allegedly seen the entire incident. According to
the Government, there were inconsistencies between the testimonies of
A.A. and G.G., and between those testimonies and the applicant’s
version of events. In particular, the applicant’s and the two
witnesses’ respective testimonies differed as to what had
happened after the police officer had allegedly hit the applicant for
the first time and as to how the applicant was accompanied to the
pharmacy. While, according to some testimonies, the applicant evaded
the second blow herself, according to others the police officer was
allegedly told by other police officers to abstain from hitting her.
Also, the testimonies differed as to whether the applicant went to
the pharmacy accompanied by “an old man” or accompanied
by a group of people including A.A. or G.G. The Government therefore
maintained that the witness testimonies in favour of the applicant
were unreliable, and such was also the conclusion of the domestic
civil courts who were “better placed in evaluation of
evidence”. The Government also noted that, in accordance with
Article 77.1 of the CCP, the burden rested on the applicant to prove
the grounds of her civil claim and that she had failed to do so.
The
Government further submitted that an effective criminal investigation
had been carried out at the domestic level and that the investigator
of the Chief Prosecutor’s Office had taken all necessary steps
to investigate the applicant’s allegations. The investigator
questioned “possible witnesses to the act”, including
police officers who had been “on duty” at Azadliq Square
on 16 October 2003 and employees of the pharmacy where the applicant
had been allegedly taken immediately after the incident. All these
witnesses had testified that they had not seen the applicant.
Moreover,
the investigator ordered two forensic examinations of the applicant,
of which she had been duly informed and which she had personally
attended. The forensic experts had concluded that the injuries to the
applicant’s face could not have been inflicted by a truncheon.
It was open to the applicant to challenge the conclusions of the
State forensic experts by requesting an “alternative expert
examination” in accordance with Article 268.1.4 of CCrP, which
she had not done.
The
Government concluded that the investigation had been correctly
discontinued because it was not established that there had been a
criminal act. For the same reasons, the applicant had not been
recognised as a “victim of crime” during the
investigation.
The
applicant submitted that she had been subjected to an act of police
brutality which had been completely unprovoked by her. The clubbing
she received amounted to inhuman and degrading treatment under
Article 3 of the Convention. She further submitted that the domestic
authorities failed to proceed with a prompt, comprehensive and
effective official investigation capable of leading to the
identification and punishment of the police officers responsible.
The
applicant submitted statements by three witnesses (A.A., G.G. and
I.G.) in which the latter essentially repeated their testimonies
given in the domestic proceedings, which corroborated the applicant’s
version of the incident (see paragraphs 50-52 above). The applicant
denied that there had been any contradictions between the testimonies
of these witnesses. On the other hand, the investigation authorities
had failed to question the relevant witnesses and did not make a
genuine attempt to identify the police officer who had ill-treated
her. Furthermore, the applicant denied ever seeing the two
forensic reports produced by the Government prior to the proceedings
in the Court. She maintained that she had been completely prevented
from effectively participating in the investigation and, despite
repeated attempts to meet the investigator in person after the
initial interrogation, had not been allowed to do so. As noted above,
she also insisted that, prior to the proceedings before the Court,
she had never been informed about the existence of the decision of 26
November 2004 on discontinuation of the criminal investigation and
questioned the authenticity of the copy of this decision submitted by
the Government to the Court.
2. The Court’s assessment
(a) General principles
(i) As to the substantive limb of Article
3
As the Court has stated on many occasions, Article 3
enshrines one of the most fundamental values of democratic societies.
Even in the most difficult circumstances, such as the fight against
terrorism and organised crime, the Convention prohibits in absolute
terms torture and inhuman or degrading treatment or punishment.
Unlike most of the substantive clauses of the Convention and of
Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions
and no derogation from it is permissible under Article 15 § 2
even in the event of a public emergency threatening the life of the
nation (see Selmouni v. France [GC], no. 25803/94, § 95,
ECHR 1999 V, and Assenov and Others v. Bulgaria, 28
October 1998, § 93, Reports 1998 VIII).
Ill-treatment
must attain a minimum level of severity if it is to fall within the
scope of Article 3. The assessment of this minimum depends on all the
circumstances of the case, such as the duration of the treatment, its
physical or mental effects and, in some cases, the sex, age and state
of health of the victim (see Ireland v. the United Kingdom, 18
January 1978, § 162, Series A no. 25; Kudła v.
Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and
Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III).
The Court has considered treatment to be “inhuman”
because, inter alia, it was premeditated, was applied for
hours at a stretch and caused either actual bodily injury or intense
physical and mental suffering. It has deemed treatment to be
“degrading” because it was such as to arouse in the
victims feelings of fear, anguish and inferiority capable of
humiliating and debasing them (see Kudła, cited above, §
92).
The Court is sensitive to the subsidiary nature of its
role and recognises that it must be cautious in taking on the role of
a first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nevertheless, where allegations are made under Article 3
of the Convention, the Court must apply a particularly thorough
scrutiny even if certain domestic proceedings and investigations have
already taken place (see, mutatis mutandis, Ribitsch
v. Austria, 4 December 1995, § 32, Series A no. 336,
and Avşar v. Turkey, no. 25657/94, §§
283-84, ECHR 2001 VII (extracts)).
(ii) As to the procedural limb of Article
3
Where
an individual raises an arguable claim that he or she has been
seriously ill-treated by the police in breach of Article 3, that
provision, read in conjunction with the State’s general duty
under Article 1 of the Convention to “secure to everyone within
their jurisdiction the rights and freedoms defined in ... [the]
Convention”, requires by implication that there should be an
effective official investigation. This investigation should be
capable of leading to the identification and punishment of those
responsible. Otherwise, the general legal prohibition of torture and
inhuman and degrading treatment and punishment would, despite its
fundamental importance, be ineffective in practice and it would be
possible in some cases for agents of the State to abuse the rights of
those within their control with virtual impunity (see Assenov and
Others, cited above, § 102, and Labita
v. Italy [GC], no. 26772/95, §
131, ECHR 2000 IV).
The
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill founded conclusions to close their investigation or as the
basis of their decisions (see Assenov and Others, cited above,
§ 103 et seq.). They must take all reasonable steps available to
them to secure the evidence concerning the incident, including, inter
alia, eyewitness testimony and forensic evidence (see, Tanrıkulu
v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et
seq., and Gül v. Turkey, no. 22676/93, §
89, 14 December 2000). Any deficiency in the investigation which
undermines its ability to establish the cause of injuries or the
identity of the persons responsible will risk falling foul of this
standard.
(b) Application of these principles in the
present case
The
Court notes that the applicant suffered serious injuries to her right
eye and right supraorbital ridge on 16 October 2003. The materials
available in the file are sufficient to establish that the applicant
was at Azadliq Square on that day at the time when the unauthorised
demonstration took place and when it deteriorated into a riot,
leading to a clash between the law-enforcement authorities and the
protesters. This finding is supported, in particular, by the
applicant’s statements, her medical records of 16 October 2003
and witness testimonies (see paragraph 108 below), and is undisputed
by the Government and domestic authorities, who never expressly cast
doubt on the fact of the applicant’s presence at Azadliq Square
during the events of 16 October 2003.
Moreover,
it is not disputed in the present case that the authorities resorted
to the use of force, by using truncheons, tear gas and other means in
order to disperse the protesters and quell the disorder. It is
likewise undisputed that a number of protesters and law-enforcement
officers were injured in the course of these events. However, in so
far as the applicant is concerned, the Government disputes that her
injury resulted from such use of force.
It
is therefore necessary to determine whether the authorities are
responsible for the applicant’s injuries and, if so, whether
this amounted to ill-treatment under Article 3 of the Convention. The
Court will first have regard to the standard of proof applicable in
the present case.
(i) Distribution of burden of proof
The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing this evidence, the Court has
generally applied the standard of proof “beyond reasonable
doubt”. However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Ireland v. the United
Kingdom, cited above, § 161).
The
Court observes that the applicant was not detained during or after
the events of 16 October 2003. As such, the situation in the present
case differs from those cases where injuries are sustained while in
detention or otherwise under the control of the police, in which
cases the burden of proof clearly rests on the authorities to provide
a satisfactory and convincing explanation as to the cause of the
injuries (see, among many authorities, Selmouni
v. France [GC], no. 25803/94, §
87, ECHR 1999 V; Salman v. Turkey [GC], no.
21986/93, § 100, ECHR 2000 VII; Pruneanu v. Moldova,
no. 6888/03, § 44, 16 January 2007; and
Mammadov v. Azerbaijan, no. 34445/04, § 60,
11 January 2007).
Furthermore,
the present case should also be distinguished from those cases where
it was not disputed that applicants’ injuries resulted from the
use of force by agents of the State in the course of a specific
security operation involving either persons resisting arrest,
disobedient prison inmates or unauthorised demonstrators. In those
cases, the Court has held that the burden rested on the Government to
demonstrate solely that such use of force was not excessive (see, for
example, Zelilof v. Greece, no. 17060/03, §§
46-47, 24 May 2007; Kurnaz and Others v. Turkey, no. 36672/97,
§§ 53-55, 24 July 2007; Vladimir
Romanov v. Russia, no. 41461/02,
§§ 60-61, 24 July 2008; Saya
and Others v. Turkey, no. 4327/02, §
20, 7 October 2008; Balçık and Others v. Turkey,
no. 25/02, §§ 30-31, 29 November 2007; and
Matko v. Slovenia, no. 43393/98,
§§ 101 104, 2 November 2006).
In the present case, the very fact that the injuries resulted from
the use of force by the police is in dispute (compare with Stoica
v. Romania, no. 42722/02, §§ 48 and 66, 4 March 2008).
However,
the Court considers that the applicant has been able to produce
sufficiently strong evidence supporting her version of the incident
and giving rise to a prima facie case of ill-treatment at the
hands of the police. In particular, her medical records of 16 and 17
October 2003 confirm the allegation that she sustained serious
injuries on 16 October 2003 in the course of the disorder at Azadliq
Square. She also produced two witness statements which directly
corroborated her allegation that the injury had resulted from a blow
by a police truncheon (see paragraphs 51-52 above), and another
statement which indirectly corroborated her allegation and was
consistent with her version of the incident (see paragraph 50 above).
The Court is not convinced by the Government’s argument that
the statements of A.A. and G.G. were inconsistent with each other and
with the applicant’s allegations. Specifically, both of these
witnesses clearly and repeatedly stated that they had seen a police
officer hit the applicant in her face with a truncheon. In this
respect, the Court does not see any contradiction or inconsistency
with the main thrust of the applicant’s allegation –
namely, that the injury was inflicted by the police. Even if there
are some variations in the witnesses’ recollection of the part
of the events that followed the alleged blow by the truncheon, they
are not mutually exclusive and are so insignificant that, on their
own, they are incapable of rendering these testimonies unreliable and
should not affect the overall assessment of evidence. Taking into
account the fact that these witnesses testified before the domestic
authorities several months after the incident, the Court notes that
the passage of time inevitably takes a toll on a witness’s
capacity to recall events with great detail and accuracy (compare
with İpek v. Turkey, no. 25760/94, § 116, ECHR
2004 II (extracts)). In any event, at no time have these
witnesses’ independence and credibility been questioned at the
domestic level and it has never been established that any of these
witnesses committed perjury in court (see also paragraph 122 below).
In such circumstances, the Court finds no reasons why their
testimonies should not have been accepted.
Moreover,
in the particular circumstances of the present case, special
importance should be attached to the fact that the injury was
sustained while the applicant was within the area in which the
law enforcement authorities were conducting an operation during
which they resorted to the use of force for the purpose of quelling
mass unrest. In this connection, the Court notes that Article 3 does
not prohibit the use of force in certain well-defined circumstances.
However, such force may be used only if indispensable and must not be
excessive (see Kurnaz and Others, cited above, § 52, and
Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April
2007). Recourse to physical force which has not been made strictly
necessary by a person’s own conduct diminishes human dignity
and is in principle an infringement of the right set forth in Article
3 of the Convention.
Having
regard to the materials in the case file and publicly available
sources describing the events of 16 October 2003 (see
paragraphs 71-77 above), the Court notes, first of all, that the
information available is rather scant and lacks great detail, as a
result of which it is difficult to reconstruct an exact and detailed
sequence of events. However, certain facts can be discerned to the
extent sufficient for the purposes of the analysis in the present
case. In particular, it appears that a number of protesters had
indeed vandalised public and private property and attacked those
police units which had already been deployed in the area. The Court
accepts that such behaviour may well quickly degenerate into a riot,
necessitating an intervention by the security forces. Nevertheless,
it also appears that a number of protesters were uninvolved in the
hostilities and did not resist the authorities or engage in other
acts of violence. The latter observation is supported by the reports
that, out of the estimated thousands of protesters, around 600 were
arrested and ultimately around 125 were brought to trial on criminal
charges in connection with the violence (see paragraphs 72 and 76-77
above).
It
also appears that the authorities brought in reinforcements and
allowed the protesters to gather at Azadliq Square before surrounding
them and commencing the operation to quell the disorder. Thus, when
the authorities resorted to the use of force, their operation was
essentially confined to this limited area of the city. The Court also
observes that the operation involved not only riot police, but also
military forces. All of them were fully equipped with helmets,
shields, truncheons and other special equipment. The authorities were
able to deploy them in large numbers (several thousands, according to
various reports) within a fairly short period of time. The Court
considers that the authorities’ ability to intervene in such a
manner required a certain degree of preparation. Moreover, having
regard to the fact that some protests and skirmishes between the
protesters and the police had already begun on the night before the
events of 16 October, the authorities must have had some prior
warning of impending difficulties and a possible escalation of
violence. It therefore does not appear that the authorities were
called upon to react in a completely random and unprepared manner
(see Rehbock v. Slovenia, no. 29462/95, § 72, ECHR
2000 XII) and should have been able to anticipate any
developments and take at least some measures to evaluate and avoid
unnecessary risks and to refrain from applying force in an
indiscriminate and disorderly manner.
Against
this background, and given that the applicant suffered a particularly
serious injury while she was within the area where force was used by
the authorities, and emphasising in particular that she has supported
her allegations with sufficiently strong and concordant evidence, the
Court considers that the applicant has made a prima facie case
of ill-treatment by the police which called for an effective official
investigation into her allegations. The burden therefore rests on the
Government to provide a satisfactory and convincing explanation as to
the cause of the applicant’s injuries.
(ii) Establishment of the cause of the
applicant’s injuries and assessment of the severity of
ill-treatment
The
Court reiterates that when the authorities resort to the use of
force, there should exist some form of independent monitoring of the
action taken in order to ensure accountability for the force used,
including the issue of its proportionality (see, mutatis mutandis,
Satık and Others v. Turkey, no. 31866/96, § 58,
10 October 2000). In ensuring such accountability, it must be
verified whether the operation was properly regulated and organised
in such a way as to minimise to the greatest extent possible any risk
of serious bodily harm to individuals (see Kurnaz and Others,
cited above, § 56).
Judging
by the sheer numbers of people involved and injured, it is undeniable
that on 16 October 2003 there occurred a particularly large-scale
confrontation between a large number of protesters and
law-enforcement officers, which involved a high degree of violence on
both sides. Therefore, the situation called for a particularly
thorough scrutiny of the actions of not only those protesters who
acted violently, but also of the law-enforcement authorities.
However, in their observations the Government merely stated that
force had to be used against the protesters, without providing any
explanation or documentation which could shed light on the exact
nature and scale of the force used. They have not submitted any
evidence to show that any monitoring of the authorities’
actions was ever carried out at the domestic level. They have not
produced any official reports on the incident, setting out in detail
the sequence of events, assessing the necessity and proportionality
of the force used, and analysing the possibility (or impossibility)
of utilising less violent or non-violent means. While a criminal
investigation was formally instituted to investigate the violent
actions of the protesters, it is unclear from the materials submitted
by the parties whether any such formal inquiry was made into the
actions of the law-enforcement authorities. In connection with the
present case, the Court considers that such an inquiry would have
enhanced the effectiveness of the investigation into the applicant’s
individual complaint and enabled the investigation authorities to
view her allegations in a proper context.
The
Court further observes that the Government’s explanation as to
the cause of the applicant’s injuries was essentially limited
to reiterating the findings of the domestic authorities. In
particular, they argued that the applicant’s allegations had
been effectively discredited in the course of the domestic
investigation.
With
regard to the cause of the applicant’s injury, the Government
argued that the domestic forensic experts had concluded that this
injury had not been caused by a police truncheon. The Court notes
that the parties were in disagreement as to whether the applicant had
actually been examined in person by the forensic experts appointed by
the authorities. While the documents available in the case file
indicate that the applicant was at least informed of the
investigator’s decision to request the first forensic
examination, it is not clear from the copies of both the First and
Second Forensic Reports whether, in both cases, the experts had
actually examined the applicant in person or whether they simply
relied on the applicant’s earlier medical records. However, the
determination of this issue is not necessary in the light of the
following.
The
Court reiterates that the fact of the applicant’s injury and
its seriousness are confirmed by the applicant’s medical
records of 16 and 17 October 2003. The only ostensible
purpose of requesting subsequent forensic examinations was to obtain
an expert opinion as to whether the injury could have been caused by
a police truncheon. The Court observes that the First Forensic Report
was issued more than nine months, and the Second Forensic Report more
than one year, after the injury had been suffered, and five months
and eight months, respectively, after the applicant had lodged her
criminal complaint. No explanation was offered to justify these
delays. The Court reiterates, in this respect, that a failure to
secure the forensic evidence in a timely manner is one of the
important factors in assessing the overall effectiveness of an
investigation into allegations of ill-treatment (see Mammadov,
cited above, § 74).
The
Court further notes that the First Forensic Report did not exclude
the possibility that the injury had been caused by a “narrowly shaped
hard blunt object ... in the circumstances described by the
applicant”. Noting that a police truncheon quite obviously fits
the definition of a “narrowly-shaped hard blunt object”,
the Court interprets the above conclusion as implying that the injury
could possibly have been caused by such a truncheon. However, the
expert was reportedly unable to give a more definitive assessment as
to the cause of the injury, so another forensic examination was
requested.
According
to the Government and the domestic investigation authorities, the
Second Forensic Report definitively excluded the possibility of the
injury being caused by a police truncheon. The Court, however, does
not share this view. It observes that the Second Forensic Report
provided terse and, at the same time, vague and imprecise answers to
the specific questions asked. In particular, as to the cause of
injury, the report stated that it was due to a “trauma suffered
by her”, without explaining the cause of such trauma.
Furthermore, in reply to the specific question as to whether the
specific injury to her eye could have been caused by a police
truncheon, it offered the rather vague answer that “no
damage typically attributable to a police truncheon [had] been
discovered on [the applicant’s] person”. However, the
report offered no substantiation for such an answer and left it
unsupported by any analysis or argumentation based on forensic
science. In the Court’s opinion, such lack of substantiation
defeated the very purpose of the forensic examination and rendered
its conclusions arbitrary. For these reasons, the Court considers
that the Second Forensic Report cannot be regarded as reliable
evidence providing a convincing explanation for the applicant’s
injuries.
Moreover,
as to the Government’s argument that the applicant could have
requested an “alternative expert examination”, the Court
observes that Article 268.1.4 of the CCrP granted the right to make
such a request only to suspected and accused persons in criminal
proceedings (see paragraph 65 above). In the present case, the
applicant was neither a suspect nor an accused, so the argument
appears to be misplaced. The Court also notes that, in support of
this argument, the Government has not submitted any evidence or
documents showing the practical availability at the relevant time of
the necessary facilities for such “alternative expert
examination” and, more importantly, any examples where
conclusions of such an examination had been admitted by the
prosecution authorities to the criminal file as valid forensic
evidence. In any event, the Court reiterates that, in cases of
alleged ill-treatment, it is the responsibility of the investigation
authorities, and not the applicant, to secure independent and
reliable forensic evidence (see paragraph 101 above).
The
Court stresses again that, according to the available medical
records, the applicant suffered extensive damage to the right eye and
the right supraorbital ridge, caused by a hard blunt object. It
cannot be argued that such injuries could not have been caused by a
truncheon unless an expert is able to present convincing arguments to
the contrary, substantiated by his or her specific knowledge of the
forensic science. As mentioned above, this has not been done in the
present case. The Court therefore considers that the injuries
sustained by the applicant could well have been caused by a
truncheon.
Furthermore,
the applicant was able to present two witnesses in the domestic civil
proceedings, who made statements directly supporting her allegations.
As noted above, the Court does not find any major discrepancies in
those testimonies (see paragraph 108 above). The Court notes further
that none of the witnesses testifying in the applicant’s favour
had ever been accused of committing perjury in court. Their
statements had not been proven to be false or misleading and their
personal integrity and credibility had not been called into question
in the domestic proceedings. Bearing this in mind, and having further
regard to the domestic court’s assessment of this evidence, the
Court is astonished by the lack of legal reasoning in the domestic
court’s judgment and its inability to provide any assessment of
these statements in the present case. The civil court dismissed these
statements as groundless in a single sentence, without offering a
hint of analysis or any other insight as to why it considered that
they could not “serve as a ground” for upholding the
applicant’s claim (see paragraph 53 above). The Government’s
argument that a different standard of proof applies in civil cases is
an irrelevant explanation for the lack of effort by the civil court
in the present case to assess the factual circumstances of the case
and to provide legal reasoning for its decisions.
As
to the Government’s argument that the applicant had failed to
inform the criminal investigation authorities about the existence of
these witnesses (in particular, A.A. and G.G.), the Court notes that
the examination of the civil claim took place about three months
after the applicant’s interrogation by the investigator on 16
March 2004, during which period the applicant might have become aware
of the existence of this evidence. Moreover, following the initial
interrogation by the investigator, the applicant was allegedly unable
to participate effectively in the criminal investigation and to
submit additional evidence (see also paragraphs 130-31 below). The
Court also notes that, as in cases under Article 2 of the Convention,
whatever mode or form of investigation is employed at the domestic
level in respect of Article 3 complaints, once the matter has come to
the attention of the authorities, they must act of their own motion
and cannot leave it to the applicant to take responsibility for the
conduct of investigatory procedure (see, mutatis mutatis,
Gongadze v. Ukraine, no. 34056/02, § 175, ECHR
2005 XI). In the particular circumstances of
the present case, the Court considers that, once the applicant was
able to produce additional evidence during the civil proceedings, she
brought this matter to the attention of the State. The Court observes
that, as admitted by the Goverment, Article 254.1.4 of the CCP
required that a civil court must suspend the proceedings if it was
impossible to examine the claim prior to completion of the criminal
proceedings precluding such examination. Nevertheless, in the present
case, the court in fact proceeded with the examination of the claim
and delivered a judgment on the merits. Under Article 265.4 of the
CCP, if on examination of a civil claim a court disclosed an
appearance of criminal elements in the actions of the parties to the
case or other persons, it was to deliver a special ruling (xüsusi
qərardad) informing a public
prosecutor thereof. Yet, although the applicant’s civil claim
clearly implied that she had been a victim of a criminal offence and
whereas the civil court was actually informed that a criminal
investigation was pending in connection with the same incident, it
failed to comply with its obligations under Articles 254.1.4 and
265.4 of the CCP. No explanation was offered by the Government as to
why the civil court had not issued a special ruling in the present
case, by means of which the investigation authorities could have been
informed, inter alia,
about the existence of new witnesses in the case.
124. Moreover,
the Court observes that, by a letter of 18 May 2004, the Chief
Prosecutor’s Office informed the Nasimi District Court of the
fact that criminal proceedings were pending in respect of the same
allegations as the applicant had made in the civil proceedings.
Accordingly, both the civil court and the criminal investigation
authorities were informed that each of them was conducting separate
proceedings in respect of the same allegations of ill-treatment, yet
each failed to inquire about the outcome of the other proceedings.
Such lack of diligence is especially startling on the part of the
investigation authorities, who are under an obligation to take
whatever reasonable steps they can to secure all available evidence
concerning the allegations of ill-treatment (see Mammadov,
cited above, § 74). Had the investigator inquired about the
outcome of the civil proceedings, he would have been aware of the
fact that the applicant had presented new evidence in support of her
allegations.
125. In
the light of such lack of diligence on the part of the domestic
investigation authorities, the applicant’s failure to inform
the investigator about A.A.’s and G.G.’s statements
cannot be held against her, as what she had done was sufficient to
bring this evidence to the authorities’ attention. The
authorities’ failure to take due account of these witnesses’
statements in the framework of the criminal investigation largely
contributed to the ineffectiveness of the investigation.
126. Furthermore,
the investigation authorities have not made any attempts to seek and
hear testimony of those persons whom the applicant expressly
identified, either by name or description, in her testimony of 13 and
16 March 2004 (see paragraph 25 above), namely I.G. (who also later
testified during the civil hearing) and a grey-haired woman who was
an employee of Pharmacy no. 259. Moreover, although the applicant
specifically stated that she had been taken to the emergency clinic
from the pharmacy, the investigation authorities have sought neither
the emergency clinic’s records as to ambulance calls on 16
October 2003, nor the testimonies of the doctors, paramedics and the
driver of the ambulance which took the applicant to the clinic. No
explanation was provided by the Government for the authorities’
failure to do so. Statements by these witnesses might very well have
helped in determining the veracity of the applicant’s
allegations.
127. Instead,
the investigation authorities limited themselves to questioning eight
other witnesses who were, in the Court’s opinion, very
remotely, if at all, connected to the alleged incident. Based on the
available documents, it appears that these witnesses were questioned
about one year after the alleged incident and were simply shown a
single photograph of the applicant for identification purposes.
128. Six
of those witnesses were police officers present at Azadliq Square or
nearby areas on 16 October 2003. In the absence of any other
explanation, it appears that they were chosen at random from among
the scores of police officers who were there on that day. It has not
been shown in what possible way the testimonies of these random
police officers might have been helpful in establishing the facts of
the case. In any event, the Court considers that these police
officers’ denials should not be taken at face value, given the
fact that a finding of the applicant’s ill-treatment could
render them or their colleagues liable criminally or otherwise
(compare with Mammadov,
cited above, § 75; Afanasyev v. Ukraine, no.
38722/02, § 76, 5 April 2005; and
Akkoç v. Turkey, nos. 22947/93 and 22948/93,
§ 89, ECHR 2000 X).
129. The
investigator also relied on statements by A.V. and R.G., who
claimed to be employees of Pharmacy no. 259. Having been shown a
photograph of the applicant, these witnesses did not recognise her
and denied having seen her in their pharmacy on 16 October 2003.
Their statements contradicted the applicant’s version of events
and the statements by A.A., G.G. and I.G. The Court notes, however,
that the applicant was never given an opportunity to confront A.V.
and R.G. personally in order to challenge their credibility and the
veracity of their statements. Moreover, due to the investigator’s
failure to obtain statements from A.A., G.G. and I.G. and to attempt
to identify and interrogate other relevant witnesses (see paragraph
126 above), the investigation was deprived of the benefit of
evaluating the statements of A.V. and R.G. in the light of more
numerous witness statements which corroborated the applicant’s
allegations. For these reasons, the Court has serious doubts as to
the reliability of A.V.’s and R.G.’s statements and
considers that they also fail to stand up to scrutiny.
130. Moreover,
the Court considers that there were a number of other factors which
contributed to the ineffectiveness of the domestic investigation and,
as such, undermine the plausibility of the explanations provided by
the Government in the present case. In particular, despite serious
allegations of ill-treatment, the applicant was not recognised as a
“victim of crime”, which significantly restricted her
ability to participate in the investigation and challenge the
investigator’s actions (see paragraphs 61-62 above). Also,
the investigation was dilatory. The State forensic experts took
inexplicably lengthy periods of time to conduct the forensic
examinations requested by the investigation authorities. Whereas, as
shown above, no effective steps had been taken to investigate the
circumstances of the incident, it took around nine months before the
investigator decided to discontinue the investigation.
131. Lastly,
although in the present case the Government produced a copy of
the investigator’s letter of 26 November 2004 notifying the
applicant of the decision to discontinue the investigation (see
paragraph 81 above), this letter was not post-marked and the
Government put forward no other evidence that this letter, together
with the decision of 26 November 2004 on discontinuation of the
investigation, had actually been sent to the applicant or otherwise
delivered to her. The Court therefore finds that the applicant was
not duly informed of this decision. In such circumstances, she was
deprived of the possibility to request a court to review the
lawfulness of this decision, a means by which she could have
challenged, inter alia, the reliability of the two
forensic reports and complained about other shortcomings committed by
the investigation authorities, including their failure to obtain
crucial witness statements.
132. Having
regard to the above, the Court considers that the domestic
authorities failed to conduct an effective and independent
investigation into the circumstances surrounding the injuries
sustained by the applicant on 16 October 2003 and that the
explanations provided by the Government cannot be
regarded as satisfactory and convincing. Having regard to the
applicant’s allegations, corroborated by sufficiently strong
and concordant evidence, and in view of the absence of a plausible
explanation by the Government, the Court finds that the applicant’s
injuries resulted from the use of force by the police and,
specifically, from her being struck by a truncheon wielded by an
unidentified police officer.
As
to whether the force used on the applicant was excessive, the Court
accepts, without passing a definitive judgment on this issue, that
the authorities may have been justified, to a certain extent, in
using a certain degree of force against the riotous protesters for
the purpose of restoring order. However, in the circumstances of the
present case, the Court is solely concerned with whether the force
used against the applicant was excessive. In this connection, the
Court notes that the Government have not furnished any arguments
which would provide a basis to explain or justify the degree of force
used against the applicant. There is no evidence showing that the
applicant was somehow engaged in any violent behaviour during the
demonstration. She was never arrested or prosecuted for resistance to
the authorities during the events of 16 October 2003. At the time of
the incident, she was trying to leave Azadliq Square, in an apparent
attempt to avoid danger. There is nothing to indicate that her
conduct somehow provoked or made it necessary for the police to use
force on her. Accordingly, the force used against the applicant was
unnecessary and excessive.
Moreover,
the Court finds that the injuries sustained by the applicant
establish the existence of serious physical pain and suffering. These
injuries had lasting consequences for her health, as she became
permanently blind in her right eye. The ill-treatment and its
consequences must have also caused the applicant considerable mental
suffering diminishing her human dignity. In these circumstances, the
Court considers that the ill-treatment complained of was sufficiently
serious to attain a minimum level of severity falling within the
scope of Article 3 and to be considered as inhuman and degrading
treatment.
(iii) Conclusion
Based
on its findings in paragraph 131 above, the Court rejects the part of
the Government’s objection as to exhaustion of domestic
remedies which has been joined to the merits. As to the merits, the
Court reiterates its finding that on 16 October 2003 the applicant
was subjected to treatment which can be described as inhuman and
degrading, and concludes that the investigation into the applicant’s
complaints fell short, for various reasons noted above, of the
requirements of Article 3 of the Convention.
There
has therefore been both a substantive and a procedural violation of
Article 3 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE
CONVENTION
The
applicant complained that the domestic criminal investigation had
been ineffective and that the civil proceedings instituted by her had
been unfair. She submitted that the courts had not been objective in
their assessment of the facts and had failed to redress the grievance
which she bore as a result of the beating by the police. She relied
on Article 6 of the Convention and, in substance, on Article 13 of
the Convention.
Article
6 of the Convention provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article
13 of the Convention provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
parties’ submissions were either the same as, or substantively
similar to, their submissions in respect of the procedural limb of
Article 3 of the Convention.
The
Court notes that these complaints are linked to the complaint
examined above and must therefore likewise be declared admissible.
However,
in the light of its finding of a violation of the procedural limb of
Article 3 on account of the ineffectiveness of the investigation
conducted by the domestic investigation authorities and courts, the
Court considers that no separate issues arise under Articles 6 and 13
of the Convention and finds that it is not necessary to examine these
complaints separately.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The
applicant claimed a total of 850,000 New Azerbaijani manats (AZN) in
respect of non-pecuniary damage, noting that the injuries inflicted
on her and the resulting loss of eyesight produced in her feelings of
fear, anxiety and nervousness.
The
Government did not comment on this claim.
The
Court considers that the applicant has undoubtedly suffered
non-pecuniary damage which cannot be compensated solely by the
findings of violations. The Court also has regard to the fact
that the applicant has suffered a particularly serious injury which
had permanent consequences for her health. In the specific
circumstances of the case, ruling on an equitable basis, the Court
awards 25,000 euros (EUR) in respect of non-pecuniary damage, plus
any tax that may be chargeable.
B. Costs and expenses
The
applicant also claimed AZN 1,800 for the costs and expenses incurred
before the domestic courts and the Court. This claim was not itemised
or supported by any documents.
The
Government did not comment on this claim.
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 were
reasonable as to quantum. In the present case, having regard to the
fact that the applicant failed to produce any supporting documents,
the Court dismisses the claim for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the application admissible;
Holds that there has been a violation of Article
3 of the Convention both under its substantive and procedural limbs;
Holds that there is no need to examine
separately the complaints under Articles 6 and 13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 25,000 (twenty five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into New Azerbaijani manats 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 2 April 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
