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RIZVANOV v. AZERBAIJAN - 31805/06 [2012] ECHR 692 (17 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/692.html
Cite as:
[2012] ECHR 692
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FIRST
SECTION
CASE OF RIZVANOV v. AZERBAIJAN
(Application
no. 31805/06)
JUDGMENT
STRASBOURG
17
April 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Rizvanov v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić, President,
Peer
Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31805/06)
against the Republic of Azerbaijan lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by an
Azerbaijani national, Mr Sarvan Samad oglu Rizvanov (Sarvan
Səməd oğlu Rizvanov –
“the applicant”), on 27 July 2006.
2. The
applicant was represented by Mr I. Aliyev, a lawyer practising in
Azerbaijan. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç.
Asgarov.
3. The
applicant alleged, in particular, that he had been the victim of
police brutality during a demonstration and that the domestic
authorities had failed to investigate the incident effectively.
On
7 January 2008 the case was
communicated to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1966 in Gabala, Azerbaijan and
lives in Germany.
A. The alleged ill-treatment
At
the time of the events in question, the applicant was a journalist
working at the Turan Information Agency based in Baku.
On
9 November 2005 a group of political parties representing the
opposition held an authorised demonstration at Gabala Square in Baku.
The applicant, who was covering the demonstration, was wearing a
special blue vest identifying him as a journalist.
At
the edge of the square where the demonstration was held, there was a
tall metal construction resembling a staircase. The applicant, who
was taking pictures of the demonstration, climbed up this
construction to get a better view. During a number of previous
demonstrations in the same square, the construction had been used by
journalists for the same purpose.
While
the applicant was taking pictures, the Deputy Head of the Yasamal
District Police Office, Colonel C. M., hit him with a truncheon
several times. This event was witnessed by a number of journalists
and other people standing nearby.
Shortly
after this incident, C. M. approached a group of journalists and
remarked: “I hit him softly, if I hit him hard he would die.”
One of the journalists managed to record the remark on tape.
On
10 November 2005 the applicant went to hospital to seek medical
treatment. He was given certain medical advice for outpatient
treatment verbally but was not given a written prescription. The
doctor who examined him issued a medical certificate which read as
follows, in the relevant parts:
“Full diagnosis: contusion (əzilmə)
of the left leg, contusion (əzilmə) of the left
upper arm.
According to the patient, at around 3 p.m. on 9 November
2005 he was injured during a demonstration... The patient received
treatment and [medical] advice. This certificate was issued on 10
November 2005.”
B. The criminal proceedings
On
11 November 2005 the applicant lodged a criminal complaint with the
Prosecutor General’s Office and the Ministry of Internal
Affairs. He complained that C. M. had used excessive and unjustified
force against him, that several people had witnessed this and that he
had a tape recording of C. M.’s admission that he had hit the
applicant with a truncheon. Other journalists’ organisations,
including the Azerbaijani Press Council, also wrote to the Prosecutor
General’s Office and the Ministry of Internal Affairs asking
them to punish the person responsible for the applicant’s
ill treatment.
According
to the Government, the applicant’s complaint of 11 November
2005 was received by the Prosecutor General’s Office on
14 November 2005 and was subsequently transferred to the Yasamal
District Prosecutor’s Office, which received it on 28 November
2005.
On
1 December 2005, at a prosecutor’s request, the applicant was
examined by a forensic expert who discovered no injuries which might
have been inflicted on 9 November 2005 on the applicant’s
person. In particular, the forensic report, issued on the same day,
read as follows:
“[Examination:] There is a clear-contoured dark
blue-violet bruise (qançır)
of an indefinite shape, measuring 3.5x2.5 cm, on the upper one-third
portion of the outward side of the left thigh. No other injuries or
traces of injuries were discovered on other parts of the body,
including the left upper arm. ...
[Conclusion:] 1. The forensic examination of [the
applicant] revealed one bruise on the upper one-third portion of the
outward side of his left thigh; the bruise was caused by a blunt
object (it is impossible to make more specific observations about the
type of the blunt object because the injured area bears no signs of
individual characteristics of the object that came into contact with
it); the time [of infliction of the injury] is approximately two to
four days prior to the examination; [the injury] is not harmful to
health...
2. It is impossible to determine whether [the applicant]
had sustained any injuries on 9 November 2005 because no injuries or
traces of injuries inflicted on that day have been observed during
the forensic examination and because the certificate [of 10 November
2005] issued in his name did not specify objective signs of injury
(in other words, the observation of “contusions” (əzilmə)
in that certificate was not supported by description of objective
criteria of an injury such as a bruise (qançır),
abrasion (sıyrıq), wound (yara), and so on).”
On
3 December 2005 the Deputy Prosecutor of the Yasamal District
Prosecutor’s Office issued a decision not to institute criminal
proceedings. The prosecutor had examined two witness testimonies,
submitted by two journalists, in support of the applicant’s
version of events, and the submissions of C. M., who argued that he
had not used excessive force on the applicant, but that he had asked
him to climb down from the metal construction due to a risk of it
collapsing and injuring people standing in the vicinity. Two police
officers had testified in support of C. M.’s version of events.
The prosecutor also had regard to the forensic report of
1 December 2005 and concluded that the available evidence
did not disclose any appearance of a criminal act.
The
applicant lodged a complaint against that decision with the Yasamal
District Court. He argued that the prosecutor’s decision was
unsubstantiated. In particular, the prosecutor had not taken into
consideration the witness testimonies, the medical certificate of
10 November 2005, the tape recording and the photos submitted on
his behalf. He also disputed the impartiality of the forensic report
of 1 December 2005, on which the prosecutor had largely relied.
In support of his claim, the applicant submitted the medical
certificate of 10 November 2005, the tape recording and the
photos.
On
26 January 2006 the Yasamal District Court dismissed the applicant’s
complaint and found that the prosecutor’s decision of
3 December 2005 had been lawful and properly substantiated. The
court noted that C.M. had acted within his competence and performed
his duties in bringing the applicant down from the metal construction
in order to ensure the safety of the people nearby. The court also
relied on the forensic report of 1 December 2005, noting that no
injuries which might have been inflicted on 9 November 2005 were
discovered on the applicant’s body.
The
decision contained no reference to the evidence submitted by the
applicant, the medical certificate of 10 November 2005, the tape
recording and the photos. It appears from the transcripts of the
hearing that the court did not hear evidence from any witnesses.
On
27 January 2006 the applicant appealed against the decision,
reiterating his previous complaints.
On
8 February 2006 the Court of Appeal upheld the Yasamal District
Court’s decision of 26 January 2006.
C. The civil proceedings
On
22 March 2006 the applicant lodged a civil action against C. M.,
claiming compensation for damage to his human dignity and
professional reputation. He also asked the court to forward the case
materials to the prosecution authorities for a new examination of the
question of C. M.’s criminal liability.
On
10 April 2006 the Yasamal District Court refused to admit the
applicant’s claim. The court considered that the claim was, in
essence, the same as his previous criminal complaint, which had
already been rejected by a final decision of the domestic courts.
Following
a series of appeals by the applicant, on 5 October 2006 the Supreme
Court upheld the lower courts’ decisions in the part relating
to the complaint against the alleged hitting of the applicant.
However, the Supreme Court quashed the decision in the part relating
to the compensation for the alleged damage to the applicant’s
human dignity and professional reputation, finding that this claim
should be examined by the courts.
On
15 July 2007 the Yasamal District Court delivered a judgment on the
merits. The court dismissed the applicant’s compensation claim,
noting that he had failed to prove that C. M. had caused any
non-pecuniary damage to him.
On
3 October 2007 the Baku Court of Appeal upheld the judgment of 15
July 2007.
The applicant lodged an appeal on points of law. On 29 December 2007
the Baku Court of Appeal refused to admit his appeal. The court
noted, in particular, that the appeal had not been signed by an
authorised person and that the applicant was not represented by a
lawyer as required by the domestic law.
On
25 June 2008 the Supreme Court upheld the Baku Court of Appeal’s
inadmissibility decision of 29 December 2007.
In
the meantime, in August 2006 the applicant applied to the Judicial
Legal Council with a request to institute disciplinary proceedings
against a judge of the Yasamal District Court who had originally
refused to admit his civil action. The Judicial Legal Council refused
to entertain this request. The applicant subsequently applied to the
domestic courts complaining about that refusal, but his complaints
were unsuccessful.
II. RELEVANT DOMESTIC LAW
A. The Constitution of the Republic of Azerbaijan
Article
46 (III) of the Constitution of the Republic of Azerbaijan reads as
follows:
“No one shall be subjected to torture or
ill-treatment. No one shall be subjected to degrading treatment or
punishment. ...”
B. Law on Police of 28 October 1999
Police
officers may use special equipment when, inter alia, there is
an assumption that as a result of dangerous activities a person could
cause damage to himself or people around him (Article 26.II).
“Special equipment” includes truncheons, arm-restraining
instruments, tear gas, rubber bullets and water cannons (Article 1).
Physical force, special equipment or firearms may be used when
absolutely necessary in a manner proportionate to the danger posed.
The police authorities must carry out an enquiry into every incident
involving the use of physical force, special equipment or firearms
and issue an 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 conduct
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 the 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 twenty four hours
(Article 27.I.8).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had been subjected
to an act of police brutality which had caused him serious physical
and mental suffering and that the domestic authorities had failed to
carry out an effective investigation capable of identifying and
punishing the police officer responsible. Article 3 of the Convention
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The
Government argued that the applicant had failed to exhaust domestic
remedies. In particular, the Government noted that the applicant had
failed to lodge a proper cassation appeal in the civil proceedings
concerning his claim for compensation for alleged non-pecuniary
damage caused to him.
The
applicant disagreed with the Government’s submissions.
The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use first the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. The existence of the remedies must
be sufficiently certain, in practice as well as in theory, failing
which they will lack the requisite accessibility and effectiveness.
Article 35 § 1 also requires that the complaints intended to be
brought subsequently before the Court should have been made to the
appropriate domestic body, at least in substance and in compliance
with the formal requirements laid down in domestic law, but not that
recourse should be had to remedies which are inadequate or
ineffective (see Akdivar and Others v. Turkey, 16 September
1996, §§ 65-67, Reports of Judgments and Decisions
1996 IV).
The
Court observes that, in the present case, the applicant lodged a
criminal complaint with the prosecution authorities and lodged a
civil action with the domestic courts.
As
to the Government’s objection in respect of the civil
proceedings concerning the applicant’s claim for compensation,
the Court notes that this remedy cannot be regarded as sufficient in
terms of a Contracting State’s obligations under Article 3 of
the Convention in a case like the present concerning alleged
ill-treatment by the police, as it is aimed at awarding damages
rather than identifying and punishing those responsible
(see Gladyshev v. Russia, no. 2807/04, § 49, 30 July
2009, and Yaşa v. Turkey, 2 September
1998, § 74, Reports of Judgments and Decisions 1998 VI).
The Court, therefore, dismisses the Government’s objection.
In
so far as the Government’s submissions can also be understood
as an objection concerning non-exhaustion of domestic criminal
remedies, the Court notes that the issue of the effectiveness of the
criminal investigation carried out in the present case is closely
linked to the merits of the complaint. Thus, the Court decides to
join this issue to the merits and will examine it below under the
procedural limb of Article 3.
The
Court notes that otherwise this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Alleged ill-treatment of the applicant by the police
officer
(a) The parties’ submissions
The
Government submitted that the applicant had not been ill-treated by
the police officer. They relied on the forensic report of
1 December 2005, according to which no injuries dating from
9 November 2005 were discovered on the applicant’s
body. The Government also stated that the medical certificate of
10 November 2005 was not reliable as medical evidence, because
it did not properly identify the type of injuries and did not attempt
to establish their cause.
The
Government further submitted that even assuming that the police had
used force against the applicant, this force should not be
characterised as excessive. In particular, the applicant had failed
to comply with the police officer’s lawful request to climb
down from the metal construction, where he posed a danger to himself
and others. In this respect, the Government argued that the police
could use truncheons if there was a risk that as a result of his
dangerous activities a person could cause damage to himself and
others.
The
applicant submitted that he had been ill-treated and that the police
officer had used excessive force against him without any
justification. In this respect, he relied on the witness testimonies,
photos, the tape recording and the medical certificate of 10 November
2005.
(b) The Court’s assessment
The Court reiterates that 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).
In assessing evidence, the Court adopts the standard
of proof “beyond reasonable doubt”. Such proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see, among
many other authorities, Avşar v. Turkey, no. 25657/94, §
282, ECHR 2001 VII (extracts)). 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 Muradova v.
Azerbaijan, no. 22684/05, § 99, 2 April 2009, and Avşar,
cited above, §§ 283-84).
Turning
to the circumstances of the present case, the Court observes at the
outset that the parties are in dispute not only about the question of
whether the force used against the applicant was excessive, but also
whether the applicant was subjected to the use of force by the police
at all (compare with Muradova, cited above, § 107).
The
Court considers that the applicant has been able to produce
sufficiently strong evidence supporting the fact that he was
subjected to the use of force by the police. In particular, the
applicant produced a medical certificate delivered on 10 November
2005, a day after the incident. Admittedly, this certificate was not
issued by a forensic expert and did not provide a detailed forensic
description of the injuries or attempt to determine their cause using
forensic methods. Nevertheless, it certified that the applicant had
contusions of the left leg and left upper arm. Moreover, the day
after, the applicant promptly lodged a criminal complaint which
required the authorities to seek a proper forensic examination which
would confirm the fact of the injuries. However, the official
forensic examination was ordered and carried out in a very belated
manner, twenty-one days after the alleged incident. Prompt forensic
examination is crucial as signs of injury may often disappear rather
quickly and certain injuries may heal within weeks or even a few
days. It is for this reason that the Court cannot accept the
Government’s arguments based on the belated forensic report of
1 December 2005, which concluded that it was impossible to determine
whether the applicant had been injured on 9 November 2005 (see also
paragraphs 58-59 below). In view of the above, the Court considers
that the certificate of 10 November 2005, despite certain
shortcomings, constitutes more reliable medical evidence than the
forensic report of 1 December 2005 and that, for the purposes of the
present complaint, its content is sufficient to conclude that the
applicant suffered injuries to the left leg and left upper arm.
Moreover,
the applicant produced witness testimonies which supported his
allegation that he had been hit by C.M. The applicant’s version
of events was also supported by the photos and the tape recording
submitted by him. In particular, on the tape recording C.M. himself
admitted to other journalists that he had hit the applicant. The
submitted photos also confirmed C.M.’s presence at the place of
the incident with a truncheon in his hand. In these circumstances,
the Court does not see any contradiction or inconsistency in the
applicant’s submission that the injuries described in the
medical certificate of 10 November 2005 were inflicted by the
police on 9 November 2005. The concordant evidence produced before
the Court is sufficient to establish at least a presumption of the
fact that a policeman hit the applicant with a truncheon during the
demonstration. In the Court’s opinion, neither the Government
in their submissions, nor the domestic authorities in their
respective decisions, provided a convincing rebuttal of this
presumption.
The
Court will consequently examine whether the use of force against the
applicant was excessive. In this respect, the Court attaches
particular importance to the circumstances of the use of force (see
Güzel Şahin and Others v. Turkey, no. 68263/01, §
50, 21 December 2006, and Timtik v. Turkey, no. 12503/06,
§ 49, 9 November 2010). When a person is confronted by
the police or other agent of the State, recourse to physical force
which has not been made strictly necessary by the person’s own
conduct diminishes human dignity and is in principle an infringement
of the right set forth in Article 3 of the Convention (see Kop v.
Turkey, no. 12728/05, § 27, 20 October 2009, and Timtik,
cited above, § 47).
The
Court cannot accept the Government’s submission according to
which, even assuming that the police had used force against the
applicant, this force was justified and not excessive because the
applicant failed to comply with the police officer’s lawful
request. The Court cannot overlook the fact that the applicant
was subjected to the use of force by the police during an authorised
demonstration which he was covering as a journalist, wearing a
special blue vest which marked him out as such. It is undisputed that
the applicant did not use violence against the police or pose a
threat to them. Moreover, despite the Government’s arguments to
the contrary, it has not been convincingly established at the outcome
of the criminal inquiry and other domestic proceedings that, by using
the metal construction as a viewpoint, the applicant was actually
creating serious danger for the people in the square and that the
police had actually given him a warning in this respect and a
reasonable opportunity to comply with it, prior to resorting to the
use of force. In this connection, the Court also takes into account
the applicant’s submissions that the same metal construction
had been used by journalists in the same manner and for the same
purpose before. In such circumstances, the Court considers that the
Government have not shown convincingly that the recourse to physical
force against the applicant had been made strictly necessary by his
own conduct. Therefore, it cannot but conclude that the use of force
was excessive and unnecessary.
The
Court considers that the relatively minor character of injuries
sustained by the applicant that did not require any serious medical
interventions suggests that he did not experience any serious or
prolonged physical pain or suffering. Nevertheless, the ill-treatment
complained of was such as to arouse in the applicant feelings of
fear, anguish or inferiority and capable of humiliating and debasing
him and, therefore, was sufficiently serious to attain a minimum
level of severity to be considered as inhuman and degrading treatment
under Article 3.
Accordingly,
there has been a violation of Article 3 of the Convention under its
substantive limb.
2. Alleged failure to carry out an effective
investigation
(a) The parties’ submissions
The
Government submitted that the domestic authorities conducted an
effective investigation into the applicant’s allegations of
ill-treatment. They noted that there was some delay in the criminal
inquiry owing to the time necessary for the transfer of the
applicant’s criminal complaint to the Yasamal District
Prosecutor’s Office (see paragraph 13 above). Nevertheless, the
forensic medical examination of the applicant was carried out within
a “short term” (three days) after the receipt of the
complaint by the Yasamal District Prosecutor’s Office and the
investigation was effective. The Government further submitted that
the domestic authorities had examined the relevant evidence, while
some of the evidence (photos, tape recordings, and so on) presented
by the applicant had been obtained in a “doubtful manner”
not stipulated by law.
The
applicant submitted that the domestic authorities failed to carry out
an effective investigation into his allegations of ill-treatment. He
noted that the domestic courts had ignored all the evidence proving
the police brutality against him. He also submitted that the forensic
report of 1 December 2005 had been drawn up nineteen days after
his complaint to the prosecution authorities and, therefore, it could
not be considered reliable.
(b) The Court’s assessment
Where
an individual raises an arguable claim that he or she has been
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).
An
investigation into 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 (see Batı and Others v. Turkey,
nos. 33097/96 and 57834/00, § 134, ECHR 2004 IV
(extracts)).
The
Court observes that a criminal inquiry was carried out in the present
case. It remains to be assessed whether it was effective, as required
by Article 3.
The
Court notes that the investigation authorities refused to give any
importance to the medical certificate of 10 November 2005. On the
other hand, even though the applicant brought his claim of
ill-treatment to the Prosecutor General’s Office in a prompt
manner, only two days after the incident, the authorities failed to
order a forensic examination until twenty one days after the
incident. The Court cannot accept the Government’s explanation
of the delay by the fact that the applicant’s complaint had to
be transferred to the Yasamal District Prosecutor’s Office,
which had taken some time. The Court notes that this delay by the
prosecution authorities cannot in any event be attributable to the
applicant, but to the domestic authorities. The applicant’s
complaint was not handled with sufficient diligence, as no relevant
procedural steps were taken in this regard until 1 December
2005.
In
this connection, the Court reiterates that a failure to secure the
forensic evidence in a timely manner is one of the most important
factors in assessing the overall effectiveness of an investigation
into allegations of ill treatment (see Mammadov v.
Azerbaijan, no. 34445/04, § 74, 11 January 2007).
As stated above, in the present case, prompt forensic examination was
crucial as signs of injury might have disappeared rather quickly,
resulting in the complete or partial loss of evidence before the
forensic examination was carried out. A timely medical examination
could have enabled the medical expert to reach a definitive
conclusion as to the existence and time of infliction of the
injuries. However, in the present case, on the one hand the
investigation authorities refused to attach any importance to the
medical certificate of 10 November 2005 owing to its “incomplete”
nature, while on the other hand they failed to procure a “proper”
forensic report in a timely manner. In the Court’s opinion,
this deficiency alone undermined the overall effectiveness of the
investigation.
There
were also other deficiencies. In particular, the prosecutor heard two
witnesses who testified in support of the applicant’s claim and
two police officers who testified against his claim. However, the
reasoning provided for the decision to discontinue the investigation
did not contain any assessment of the witness testimonies in favour
of the applicant. The prosecutor did not provide any explanation as
to why these testimonies were considered less credible than the
police officers’ statements against him. Furthermore, the
investigation authorities ignored other evidence presented by the
applicant, such as the tape recording and the photos, which prima
facie appeared to be relevant. No credible explanation was given
either by the domestic authorities or the Government as to why these
submissions were not admitted and assessed.
The
foregoing considerations are sufficient to enable the Court to
conclude that the investigation into the applicant’s claim of
ill-treatment fell short of the requirements of Article 3 of the
Convention. In these circumstances, the Court dismisses the
Government’s objection as to the exhaustion of domestic
remedies and finds that there has been a violation of Article 3 of
the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that the domestic criminal investigation had
been ineffective.
Article
13 of the Convention provides:
“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 this complaint is 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, the Court considers that no separate issues arise under
Article 13 of the Convention and finds that it is not necessary to
examine this complaint separately.
III. ALLEGED VIOLATIONS OF ARTICLES 6 AND 10 OF THE CONVENTION
The
applicant complained that the domestic civil
proceedings had been unfair. He also complained that he had been
ill-treated by the police with the aim of preventing him from
carrying out his journalistic work.
The
relevant part of Article 6 of the Convention reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article
10 of the Convention provides:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
The
Government submitted that the applicant had failed to exhaust
domestic remedies. In particular, his appeal on points of law against
the Court of Appeal’s judgment of 3 October 2007 was rejected
by the Supreme Court owing to non-compliance with the procedural
requirements for lodging such an appeal. The Government also noted
that the applicant has never raised a complaint alleging a violation
of his freedom of expression before the domestic courts.
The
applicant maintained his complaints.
In
respect of the complaint under Article 6, the Court observes that the
applicant failed to exhaust domestic remedies in respect of the civil
proceedings, as he had failed to lodge a cassation appeal in
compliance with the procedural requirements. It follows that this
complaint must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies
In
respect of the complaint under Article 10, even assuming that the
applicant has exhausted domestic remedies, the Court in any event
considers, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, that this complaint does not disclose
any appearance of a violation of this provision. It follows that it
is inadmissible under Article 35 § 3 (a) as manifestly
ill-founded and must be rejected pursuant to Article 35 § 4 of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN
CONJUNCTION WITH ARTICLES 3 AND 10
The
applicant further complained that he had been
discriminated against by the police based on his participation, as a
journalist, in the opposition demonstration.
75. However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court
considers that this part of the application does not disclose any
appearance of discrimination as alleged by the applicant. It follows
that it is inadmissible under Article 35 § 3 (a) as manifestly
ill-founded and must be rejected pursuant to Article 35 § 4 of
the Convention.
V. 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
1. Pecuniary damage
The
applicant claimed 2,000 euros (EUR) in respect of pecuniary damage
for expenses for his medical treatment.
The
Government contested the claim, noting that the applicant had failed
to substantiate his allegation.
The
Court points out that under Rule 60 of the Rules of Court, any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, failing
which the Court may reject the claim in whole or in part.
In
the present case, even assuming that there is a causal link between
the damage claimed and the violations found, the Court observes that
the applicant did not submit any documentary evidence supporting this
claim. In particular, he has not submitted any receipts,
prescriptions or any other documents certifying his expenses for
medical treatment.
For
the above reasons, the Court rejects the applicant’s claims in
respect of pecuniary damage.
2. Non-pecuniary damage
The
applicant claimed EUR 10,000 in respect of non pecuniary damage.
The
Government contested the amount claimed as unsubstantiated and
excessive.
The
Court considers that the applicant has suffered non-pecuniary damage
which cannot be compensated for solely by the finding of violations
and that compensation should thus be awarded. Making its assessment
on an equitable basis, as required by Article 41 of the Convention,
the Court awards the applicant the sum of EUR 4,500 under this head,
plus any tax that may be chargeable on this amount.
B. Costs and expenses
The
applicant claimed EUR 750 for the costs and expenses incurred before
the domestic courts in the criminal proceedings, EUR 2,000 in the
civil proceedings and EUR 2,000 in the disciplinary proceedings that
he instituted against a judge of the domestic court. He also claimed
EUR 2,700 for the costs and expenses incurred before the Court. The
applicant also claimed EUR 2,550 for translation expenses and EUR 500
for postal expenses. In support of his claims, he
submitted several contracts for legal services rendered in the
proceedings before the domestic courts and the Court. According to
these contracts, the amounts due were to be paid in the event that
the Court found a violation of the applicant’s rights.
The
Government considered that the claim was unsubstantiated and
excessive. In particular, the Government submitted that the applicant
had failed to produce all the necessary documents in support of his
claims and that the costs and expenses had not
actually been incurred, because the amount claimed had not been paid
by the applicant.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
The
Court rejects the applicant’s claims in respect of the costs
and expenses incurred in the domestic civil proceedings and the
disciplinary proceedings against a judge, as those claims are not
relevant to the complaints declared admissible in the present case.
As to the remainder of the claims, the Court notes at
the outset that, although the applicant has not yet actually paid the
legal fees, he is bound to pay them pursuant to a contractual
obligation. Accordingly, in so far as the lawyer is entitled to seek
payment of his fees under the contract, the applicant may claim
reimbursement of those fees (see Namat
Aliyev v. Azerbaijan, no.
18705/06, § 109, 8 April 2010). However, having
regard to the legal services stipulated in the contracts for legal
services submitted by the applicant and the amount of legal work
necessary in the present case, the Court considers that the amounts
claimed in respect of legal fees are excessive and should be
satisfied only partially. Likewise, as to the claim relating to
translation and postal expenses, the Court observes that not all the
documents submitted by the applicant were relevant and clear in their
substance and it was not shown that the entire amount claimed in
respect of these expenses was reasonably and necessarily incurred. In
these circumstances, having regard to the documents in its possession
and the above criteria, the Court considers it reasonable to award
the sum of EUR 3,000, covering costs under all heads.
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
Joins to the merits the Government’s
objection as to non-exhaustion of domestic criminal remedies and
rejects it;
Declares the complaints under
Articles 3 and 13 admissible and the remainder of the application
inadmissible;
Holds that there has been a
violation of Article 3 of the Convention as regards the ill-treatment
by the police;
Holds that there has been a
violation of Article 3 of the Convention as regards the lack of
effective investigation into the applicant’s allegations of
ill-treatment;
Holds that there is no need
to examine the complaint under Article 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, the following amounts, to be converted into
Azerbaijani manats at the rate applicable at the date of settlement:
(i) EUR
4,500 (four thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
