European Court of Human Rights

 

 

 

 

FIRST SECTION

 

 

 

 

 

 

 

CASE OF JANNATOV v. AZERBAIJAN

 

(Application no. 32132/07)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

31 July 2014

 

 

 

 

 

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 Jannatov v. Azerbaijan,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 8 July 2014,

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

PROCEDURE

1.  The case originated in an application (no. 32132/07) 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 Mushfig Rahim oglu Jannatov (Müşfiq Rəhim oğlu Cənnətov - “the applicant”), on 10 July 2007.

2.  The applicant was represented by Ms S. Agayeva, 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 ill-treated in police custody and that the domestic authorities had failed to investigate his allegation of torture. He also alleged that the criminal proceedings had been unfair, because his conviction had been based solely on statements extracted under ill-treatment.

4.  On 10 November 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1971 and lived prior to his arrest in Baku.

A.  The applicant’s arrest and alleged ill-treatment

6.  On 23 June 2004 the applicant was arrested on suspicion of complicity in an armed robbery and two murders committed on 13 November 2002 by a group of individuals, including his brother. The applicant was held in the detention facility of the Organised Crime Department of the Ministry of Internal Affairs as from 23 June 2004 and was on 24 June 2004 transferred to the Ganja City Police Office.

7.  According to the applicant, he was from 23 to 26 June 2004 repeatedly subjected to ill-treatment in police custody, with the aim of extracting a confession from him. In particular, he noted that at the Ganja City Police Office he was regularly punched, kicked and beaten with a rubber truncheon two or three hours per day. He was suffocated with a plastic bag placed over his head and his suffocation lasted two or three minutes and sometimes even five minutes. He was placed twice inside a metal cupboard for several hours and was also tied to the pipe of the metal heater. He was electrocuted with telephone cables attached to his toes. The applicant was deprived of water. During this period, he was threatened with rape if he told anything about the ill-treatment to his lawyer. As to the perpetrators of his ill-treatment, the applicant noted that two police officers K.H. and K.G., the investigator J.A. and the head of the investigating department at the Prosecutor General’s Office T.K. participated in his ill-treatment. He further noted that he had been ill-treated at the request of R.R. who was at the relevant time the Deputy Prosecutor General of the Republic of Azerbaijan. In support of his claim of ill-treatment, the applicant also submitted in his observations lodged with the Court in reply to the Government’s observations two written statements, dated 6 December 2010 and 18 December 2010, from two former police officers confirming the applicant’s ill-treatment in police custody.

8.  On 25 June 2004 the applicant told his lawyer about the ill-treatment and showed her his injuries. On the same day, the applicant’s lawyer asked the investigator in charge of the case for a forensic expert examination of the applicant.

9.  On 25 June 2004 the applicant’s lawyer also sent telegrams to the Prosecutor General’s Office and the Ministry of Internal Affairs, asking for an investigation concerning the applicant’s alleged ill-treatment. She informed both authorities that the applicant had been ill-treated by the police at the Ganja City Police Office and that during her meeting with him on 25 June 2004, which had taken place before the applicant was questioned by the investigator, he had shown her injuries to his body and arm.

10.  On 25 June 2004 the investigator in charge of the case issued a decision confirming the applicant’s arrest as a suspect (şübhəli şəxs kimi tutma haddında qərar). Thereafter, the applicant was questioned by the investigator as a suspect in the presence of his lawyer. According to the record of questioning of the same date, the applicant admitted that he had known about his accomplices’ intention to rob the victims on 13 November 2002. In particular, he stated that his role had consisted in conducting surveillance over the victims’ arrival to their house by car and notifying his accomplices by mobile phone. He stated that on 13 November 2002 when the victims’ car arrived, he did not call his accomplices but went home. He learned about the murders some hours later.

11. On 26 June 2004 the applicant was questioned by the investigator as an accused in the presence of his lawyer. The applicant reiterated his previous statements.

12.  It appears from the case file that the applicant’s co-accused, his brother and P.M., who were also questioned at the Ganja City Police Office made similar statements to the police confirming the applicant’s participation in the crime. However, the texts of these statements were not available in the documents submitted to the Court.

13.  On 26 June 2004 the investigator ordered a forensic expert examination of the applicant, which was carried out the same day. The forensic report of 26 June 2004 reads as follows:

“On 26 June 2004 Mushfig Jannatov was subjected to a forensic examination at the Ganja City Police Office. According to him, he was beaten by police officers at the Ganja City Police Office. He did not ask for any medical help. He has no complaints. Objectively: the person examined is a man of medium height, normal build and slightly overweight. There are no injuries to his body.”

14.  It appears from an undated medical record from the pre-trial detention facility submitted by the Government in their observations lodged with the Court that the applicant had no health problems upon his arrival at the pre-trial detention facility.

15.  On 20 August 2004 the applicant complained to the Prosecutor General’s Office, alleging that he had been tortured in police custody. More specifically, he claimed that he had been ill-treated with the aim of extracting a confession from him. He stated that on 25 June 2004 he had shown the injuries to his body to his lawyer. He claimed that he had made self-incriminating statements during his questioning by the investigator, because he was afraid of being tortured once his lawyer had left. In this connection, the applicant asked the Prosecutor General to order his new questioning by the investigator.

16.  On 24 August 2004 another of the applicant’s lawyers asked the investigator in charge of the case for a new forensic examination. He challenged the conclusion of the forensic report of 26 June 2004, maintaining that the applicant had been tortured by the police. In particular, he claimed that the expert had lied in his report about the absence of signs of ill-treatment on the applicant’s body.

17.  On 28 August 2004 the investigator refused to order a new forensic examination, finding the lawyer’s request unsubstantiated. The relevant part of the investigator’s decision reads as follows:

“There is no need to carry out a new forensic examination, as the forensic report dated 26 June 2004 no. 343 on M. Jannatov is objective and complete, and in line with other evidence in the case...”

18.  The applicant did not receive any reply to his complaints lodged with the Prosecutor General’s Office on 25 June 2004 and on 20 August 2004, as well as to his complaints lodged with the Ministry of Internal Affairs on 25 June 2004. No investigation was carried out into his allegation of ill-treatment.

B.  The applicant’s trial

19.  The criminal proceedings before the Assize Court concerned ten accused, including the applicant. The crimes of armed robbery and murder of the two victims on 13 November 2002 constituted only part of the criminal offences to be tried by the court. Among ten accused only the applicant, his brother and P.M. were tried by the court for the commission of the crimes of armed robbery and murder of the two victims on 13 November 2002.

20.  According to the indictment lodged with the Assize Court, the applicant was accused of complicity in armed robbery and murder of the two victims. In particular, at around 10 p.m. on 13 November 2002 the applicant conducted surveillance over the victims’ arrival to their house by car and notified his accomplices by mobile phone.

21.  In the course of the proceedings before the Assize Court, the applicant proclaimed his innocence and denied having been involved in any murder. In particular, he testified that he had not known about the robbery and murder of the two victims, and had not participated in the crime. In this connection, he stated that he had not conducted surveillance over the victims’ arrival to their house by car or had not participated in any other form in the commission of the crime. He further stated that he had only learned about what had happened subsequently, during a conversation with another accused, P.M., but had not informed anyone about it because he had been afraid. As regards his statements made during the investigation on 25 and 26 June 2004, the applicant stated that his statements had been extracted under torture.

22.  The applicant’s co-accused, his brother and P.M., who admitted participating in the murders of 13 November 2002, also testified that the applicant had not been involved in the crime in question, and that their statements made during the investigation had been extracted under ill-treatment.

23.  The Assize Court heard four police officers (R.H., K.H., K.G. and R.M.) who had participated in the arrest and questioning of the applicant and his co-accused. The police officers denied having subjected the accused to any ill-treatment and testified that their statements during the investigation had not been extracted under ill-treatment.

24.  On 29 March 2005 the Assize Court convicted the applicant of complicity in aggravated murder, aggravated robbery, banditry and illegal possession of weapons and sentenced him to thirteen years’ imprisonment. The applicant’s conviction was based on his own statements, as well as the statements his brother and P.M. had made during the investigation. The court also referred to the statements that R.H., K.H., K.G. and R.M. had made at the trial hearing and “the factual circumstances of the case”. The relevant part of the judgment reads as follows:

“R.H. who was heard as a witness at the court hearing stated that the accused were taken to the police station and a conversation was held with them. At that moment, they were not subjected to torture and they confessed of their own volition.

K.H. who was heard as a witness at the court hearing stated that none of the accused was subjected to an act of violence and that A.K. and P.M. had already made self-incriminating statements before he began to involve in this case.

K.G. who was heard as a witness at the court hearing stated that he knew the accused within the framework of this case. On the basis of the information received, A.K. was invited to the police office and during the conversation held with him, he spoke in detail about the crime that they had committed in Gulustan settlement. Then P.M.’s place of residence in Baku was determined and two operational groups ... arrested P.M. and A.S. and took them to Ganja. During the conversation held with P.M., he mentioned the names of ... During all these operations, the accused were not subjected to physical force or torture and their submissions in this respect are false.

R.M. who was heard as a witness at the court hearing stated that among the accused he knew solely P.M. and after his arrest he went with him to Ramana settlement in Baku where they took weaponry and he did not use force against him...

As to the applicant’s statements that he did not participate in the crime committed by the criminal group, that he was not behind the robbery of V.G.’s house, that he had no knowledge about the organisation of the crime, that he did not possess a weapon, that his statements made at the investigation stage were extracted under physical force, were contradicted by the fact that different members of the criminal group were armed and other members were aware of the use of these weapons in the crimes committed and shared tasks between them, that their composition was stable and there was a close relationship between them, that the committed crimes were attacks accompanied by the use of physical force, that by his own statement and the statements of the accused P.M. and I.J. [the applicant’s brother] made during the investigation and by the submissions of R.H., K.G., K.H. and R.M., heard at trial as witnesses, the court takes a critical stance on his statements and considers them an attempt to escape heavy responsibility.

At the same time, as the [the applicant’s] confession made during the investigation was confirmed by the statements given by P.M. and I.J. during the investigation, and bearing in mind that his confession is confirmed by the factual circumstances of the case and is not rebutted by any arguable argument or evidence, the court attaches more weight to his confession than to his other statements given before the court or during the investigation and accepts his confession as reliable evidence...”

25.  On 20 April 2005 the applicant appealed against this judgment, proclaiming his innocence. He complained that there was no evidence that he had participated in the murders of 13 November 2002, arguing that both his brother and P.M. had testified in court that he had not participated in the commission of this crime. The applicant also maintained that his conviction had been exclusively based on statements extracted under ill-treatment during the investigation, and that the court had unlawfully relied on these statements when convicting him.

26.  On 27 May 2005 the Court of Appeal upheld the Assize Court’s judgment of 29 March 2005, without considering the applicant’s specific complaints concerning his conviction. The relevant part of the judgment reads as follows:

“...The first-instance court correctly interpreted the criminal acts of the accused ... and sentenced them to punishments which are within the limits of the provisions of the relevant law...

The panel of the court, which did not find any grounds for reducing the sentences of the other persons convicted, for the discontinuation of the criminal proceedings against them or for their acquittal, considers that the Assize Court’s judgment in respect of the persons convicted is lawful and reasoned and that the sentence applied is fair. The judgment should therefore remain unchanged and the appeal should not be allowed...”

27.  On 15 November 2006 the applicant lodged a cassation appeal reiterating his previous complaints. In particular, he argued that his guilt had not been established and that the lower courts had relied on unlawfully obtained evidence when convicting him.

28.  On 27 February 2007 the Supreme Court upheld the lower courts’ judgments.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  The Constitution of the Republic of Azerbaijan

29.  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. ...”

30.  Article 63 (IV) of the Constitution provides:

“Unlawfully obtained evidence shall not be used in the administration of justice.”

31.  Article 66 of the Constitution provides:

“Nobody may be forced to testify against himself or herself, his or her [spouse], children, parents, brother, sister...”

B.  Criminal responsibility for torture and inhuman and degrading treatment

32.  In accordance with the Criminal Code, as in force at the material time, torture of an individual who is under detention or otherwise deprived of his or her liberty is a crime punishable by imprisonment for a term of seven to ten years (Article 113). Infliction of physical or psychological suffering to an individual by way of systematic beating or other violent actions performed by a public official in his official capacity is a crime punishable by imprisonment for a term of five to ten years (Article 133). Compelling, by a prosecutor or an investigator, of a suspect, an accused, a victim, a witness to testify or of an expert to deliver a forensic report is a crime punishable by imprisonment for a term up to three years (Article 293.1). If the same actions were carried out under torture, the perpetrators are punishable by imprisonment for a term of five to ten years (Article 293.2).

C.  The Code of Criminal Procedure (“the CCrP”)

33.  In accordance with Article 37 of the the CCrP, criminal proceedings are instituted on the basis of a complaint by the victim of an alleged criminal offence. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings could challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or his counsel may challenge actions or decisions of the prosecuting authorities concerning, inter alia, refusal to institute criminal proceedings or to terminate criminal proceedings. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). The judge’s decision may be challenged before an appellate court in accordance with the procedure established in Articles 452 and 453 of the CCrP.

34.  Nobody may be forced to testify against himself or herself, or against his or her close relatives (Article 20.1). A suspect or an accused has the right to refuse to testify against himself or herself, or against his or her close relatives (Articles 90.7.10 and 91.5.10).

35.  Information, documents and other items, if there is no doubt as to their accuracy, their source and the circumstances in which they were obtained, may be accepted as evidence (Article 125.1). Article 125.2 of the CCrP provides that information, documents and other items cannot be accepted as evidence in a criminal case if they have been obtained in the following circumstances: if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings have been deprived of their rights protected by law, or those rights have been restricted through a violation of their constitutional human and civil rights and liberties or of other requirements of the Code (Article 125.2.1); through the use of violence, threats of violence, deceit, torture or other cruel, inhuman or degrading acts (Article 125.2.2); or where the rules governing investigation or other procedures have been seriously violated (Article 125.2.7). Article 125.3 of the CCrP provides that information, documents and other items obtained in the circumstances described in Article 125.2 of the Code are to be regarded as invalid and may not be used to prove any circumstance with a view to determining a charge correctly.

36.  Article 126.6 of the CCrP provides that a confession may be accepted as grounds for charging an accused only if confirmed by all the evidence in the case.

37.  The following are the relevant provisions of the CCrP concerning the review of domestic judicial decisions and the reopening of domestic proceedings following a finding by the Court of a violation of the Convention:

Article 455: Grounds for review of judicial decisions in connection with the violation of rights and freedoms

“455.0. The following are grounds for review of judicial decisions in connection with the violation of rights and freedoms:

...

455.0.2. finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings, simplified pre-trial proceedings or proceedings involving a complaint under the private prosecution procedure, conducted by courts of the Republic of Azerbaijan; ...”

Article 456: Procedure for review of judicial decisions in connection with the violation of rights and freedoms

“456.1. The Plenum of the Supreme Court of the Republic of Azerbaijan is vested with the competence to review judicial decisions in connection with the violation of rights and freedoms.

456.2. Where grounds exist under Articles 455.0.1 and 455.0.2 of this Code, the Plenum of the Supreme Court examines the cases only on points of law, in connection with the execution of judgments of the Constitutional Court of the Republic of Azerbaijan and the European Court of Human Rights. After a judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court, the President of the Supreme Court assigns the case to one of the [Supreme Court] judges for preparation and presentation of the case at the Plenum [of the Supreme Court]. The case shall be reviewed at a hearing of the Plenum of the Supreme Court no later than three months after the judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court ...”

Article 459: Decision taken after review in connection with the finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings conducted by courts of the Republic of Azerbaijan

“459.0.  Having conducted a review in cases stipulated by Article 455.0.2 of this Code, the Plenum of the Supreme Court has competence to deliver one of the following decisions:

459.0.1. to quash, fully or partially, judicial decisions of the first-instance, appellate and cassation courts, as well as judicial decisions delivered under the procedure of additional cassation ... and to remit the criminal case, the case materials of simplified pre-trial proceedings, or the case materials of proceedings involving a complaint under the private prosecution procedure, for re-examination by the relevant first-instance or appellate court;

459.0.2. to amend a decision of the court of cassation and/or additional cassation in situations stipulated in Articles 421.1.2 and 421.1.3 of this Code;

459.0.3. to quash a decision of the court of cassation and/or additional cassation and to deliver a new decision.”

D.  The decision of the Plenum of the Supreme Court “on Court Judgment” of 27 December 1996

38.  The relevant part of the decision of the Plenum of the Supreme Court reads as follows:

“It should be taken into consideration that in accordance with Article 66 of the Constitution of the Republic of Azerbaijan, close relatives of the accused cannot be forced to testify against him. Thus, when they refuse to testify in court, the testimony they gave as witnesses during the investigation may be used only if the content of that Article of the Constitution has been explained to them while under questioning during the investigation...

If the accused retracts his statements made during the investigation in court, the court must examine the reasons for [the retraction] ...”

E.  The decision of the Plenum of the Supreme Court “on the Activities of Courts in the Field of the Protection of Human Rights and Liberties in the Administration of Justice” of 10 March 2000

39.  The relevant part of the decision of the Plenum of the Supreme Court reads as follows:

“6. Unlawfully obtained evidence cannot be used in the administration of justice. For this reason, when examining cases, courts ... shall not under any circumstances use unlawfully obtained evidence. The court, if it considers that evidence submitted by the prosecution or the investigating authority has been unlawfully obtained, shall give an opinion on the acts of the person having violated the law and excludes in all cases [those items] from the body of evidence in the case...”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40.  The applicant complained that he had been tortured in police custody at the Ganja City Police Office and that the domestic authorities had failed to investigate his allegation of torture. 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

41.  The Government submitted that the applicant had failed to exhaust domestic remedies, in that he had not challenged the investigator’s decision of 28 August 2004 refusing to order a new forensic examination. The Government also submitted that the applicant’s application should be declared inadmissible as an abuse of the right of individual application, because he had intended to mislead the Court in submitting in his application that the forensic report of 26 June 2004 had confirmed the existence of signs of ill-treatment on his body.

42.  The applicant maintained his complaint.

43.  As to the Government’s request to declare the application inadmissible as an abuse of the right of petition, the Court notes that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X). The Court considers that although the applicant’s submissions in his initial application concerning the content of the forensic report of 26 June 2004 are inconsistent with the text of the report, they do not give rise to circumstances justifying a decision to declare the application inadmissible as an abuse of the right of individual application.

44.  As regards the Government’s argument that the applicant failed to challenge the investigator’s decision of 28 August 2004, the Court considers that this argument is irrelevant, because the investigator’s decision was not about the refusal to institute a criminal inquiry or the termination of a criminal inquiry that the applicant should be expected to challenge in order to exhaust the domestic remedies, but it was about a particular procedural action of the investigator, namely his refusal to order a new forensic examination.

45.  The Court further considers that in so far as the Government’s submissions concerning the applicant’s failure to challenge the investigator’s decision of 28 August 2004 may also be understood as a general objection concerning non-exhaustion of domestic remedies, it raises issues which are closely related to the merits of the complaint. Therefore, the Court joins this objection to the merits of this complaint.

46.  Having regard to this, the Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Alleged failure to carry out an effective investigation

47.  The parties did not make any specific observations on this point.

48.  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 v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

49.  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)).

50.  Turning to the circumstances of the present case, the Court will firstly examine the Government’s objection concerning the exhaustion of domestic remedies. In this connection, the Court observes that the applicant lodged complaints, on 25 June 2004 and on 20 August 2004 with the Prosecutor General’s Office and on 25 June 2004 with the Ministry of Internal Affairs, on his alleged ill-treatment by the police. However, no criminal inquiry was launched in this respect.

51.  The Court further observes that the applicant raised the same complaint before the trial and appeal courts providing the domestic authorities with the opportunity to put right the alleged violation. However, the Assize Court contented to hear only four police officers who denied in a general way the ill-treatment of the accused. No further action was taken by the court. As to the appellate courts, they ignored the applicant’s allegation of ill-treatment. In these circumstances, the Court considers that the applicant cannot be said to have failed to exhaust domestic remedies in respect of his complaint of ill-treatment.

52.  As to the merits of the complaint, the Court considers that the applicant’s complaint made before the domestic authorities contained enough specific information - the date, place and nature of the ill-treatment - (see paragraphs 7-18 above) to constitute an arguable claim in respect of which those authorities were under an obligation to conduct an effective investigation. However, no criminal inquiry has been carried out in the instant case into the applicant’s allegation of ill-treatment.

53.  In this connection, the Court notes that it is true that the applicant was examined by a forensic expert immediately following his lawyer’s complaint. However, the Court also observes that the conclusion of the forensic expert was challenged by the applicant’s lawyer. In any event, the Court notes that the forensic examination is only one of the means for the investigation to secure the evidence during the examination of an ill-treatment allegation. The Court notes that in the present case as there was no criminal inquiry in respect of the applicant’s allegation of ill-treatment, the applicant, alleged perpetrators of the ill-treatment, other police officers, the applicant’s lawyers, the applicant’s cellmates or any other possible witness were not heard by the investigator. No explanation was given by the Government as to the domestic authorities’ failure to conduct an investigation in this respect. The foregoing considerations are sufficient to enable the Court to conclude that there was no effective investigation of the applicant’s claim of ill-treatment.

54.  There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

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

(a)  The parties’ submissions

55.  The applicant submitted that he had been tortured in police custody at the Ganja City Police Office between 24 June 2004 and 26 June 2004 with the aim of extracting a confession from him. In this connection, the applicant relied on his lawyer’s complaints to the Prosecutor General’s Office and the Ministry of Internal Affairs, in which she confirmed the existence of signs of ill-treatment on his body. The applicant also submitted in his observations in reply to the Government’s observations two written statements, dated 6 December 2010 and 18 December 2010, from two former police officers, confirming the applicant’s ill-treatment in police custody.

56.  The Government submitted that the applicant’s allegations were unfounded and that he had failed to submit any evidence in support of his allegation of torture. In particular, the forensic report of 26 June 2004 concluded that there was no injury on the applicant’s body. The Government further relied on an undated medical record from the pre-trial detention facility, according to which the applicant had no health problems upon his arrival at the pre-trial detention facility. Finally, the Government noted that the written statements from two former police officers submitted to the Court are irrelevant, because the applicant had never submitted these statements to the domestic courts. The Government also noted that one of the two police officers had never worked at the Ganja City Police Office and he retired in 1995, therefore he could not witness the applicant’s alleged ill-treatment by the police.

(b)  The Court’s assessment

57.  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, cited above, § 93).

58.  The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. 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)). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In particular, where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-11, Series A no. 241-A, and Selmouni, cited above, § 87).

59.  The Court observes that in the present case the applicant presented a very detailed description of his ill-treatment in police custody. According to statements by the applicant’s lawyer and by two former police officers, one of which worked at the Ganja City Police Office at the relevant time, they noticed several injuries to the applicant’s body. However, the applicant’s forensic examination did not establish any bodily injury. Nor did the applicant’s medical record contain reference to any injury to his body. Nor has the applicant submitted to the Court any other evidence, as photographs, confirming the presence of any injury on his person (compare with Rizvanov v. Azerbaijan, no. 31805/06, § 48, 17 April 2012, and Najafli v. Azerbaijan, no. 2594/07, § 37, 2 October 2012).

60.  In these circumstances, having regard to the parties’ submissions and all the materials in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the applicant was subjected to treatment contrary to Article 3, as alleged.

61.  The Court would, however, like to underline that its inability to reach any conclusions as to whether there has been, in substance, treatment prohibited by Article 3 of the Convention derives, at least in part, from the failure of the domestic authorities to react effectively to the applicant’s complaints at the relevant time (see Lopata v. Russia, no. 72250/01, § 125, 13 July 2010, and Gharibashvili v. Georgia, no. 11830/03, § 57, 29 July 2008).

62.  Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment while in police custody.

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

63.  Relying on Articles 6, 7 and 13 of the Convention, the applicant complained that the criminal proceedings against him had been unfair because he had been convicted solely on the basis of the evidence he alleged had been extracted under ill-treatment. The Court considers that the present complaint falls to be examined solely under Article 6 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.  Admissibility

64.  The Court notes that 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

(a)  The parties’ submissions

65.  The Government submitted that, contrary to the applicant’s allegations, his conviction had not been based on the incriminating statements extracted from him in police custody in breach of Article 3 of the Convention. The applicant’s conviction had been based mainly on the statements that his brother and P.M. had made to the police. In this connection, they contended that the statements of P.M. and the applicant’s brother had been taken during the investigation in compliance with the relevant domestic legislation. The Government lastly argued that the applicant had not made any self-incriminating statements which could have been used against him at trial.

66.  The applicant submitted that his conviction had been exclusively based on self-incriminating statements extracted under torture during the investigation, as well as on statements of P.M. and his brother extracted under ill-treatment during the investigation. In support of his claim, the applicant submitted the written statements by P.M. and his brother, in which they confirmed that their statements against the applicant had been extracted under ill-treatment during the police investigation.

(b)  The Court’s assessment

67.  The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting States in the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140).

68.  It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, evidence obtained unlawfully in terms of domestic law - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see, among other authorities, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V, and Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002-IX).

69.  In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. It must be examined in particular whether the applicant was given the opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Khan, cited above, §§ 35 and 37, and Allan, cited above, § 43). Where the reliability of evidence is in dispute, the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Allan, cited above, § 47, and Bykov v. Russia [GC], no. 4378/02, § 95, ECHR 2009).

70.  The Court reiterates that, even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Salduz v. Turkey [GC], no. 36391/02, § 50, 27 November 2008).

71.  Turning to the circumstances of the present case, the Court notes at the outset that the applicant was convicted of complicity in the commission of grave criminal offences, namely the crimes of armed robbery and murder of the two victims on 13 November 2002, and was sentenced to thirteen years’ imprisonment. It appears from the documents submitted to the Court that during the criminal investigation the applicant was questioned only twice, at the beginning of the criminal investigation, respectively on 25 June 2004, as a suspect, and on 26 June 2004, as an accused and in his statements the applicant admitted that his role had consisted in conducting surveillance over the victims’ arrival to their house by car and notifying his accomplices by mobile phone. The applicant’s brother and P.M., in their statements made during the investigation which were not submitted to the Court, also confirmed the applicant’s involvement in the crime. The applicant was however never again questioned during the investigation after 26 June 2004, despite his express request for a new questioning (see paragraph § 15 above). Moreover, it does not transpire from the case file that other further investigative actions, such as the determination of the applicant’s whereabouts at the moment of the commission of the crime or organisation of a face-to-face confrontation between the applicant and his co-accused, which could have given more information about the applicant’s participation in the crime was carried out during the investigation. In particular, taking into account the fact that the applicant was convicted of his role consisting in conducting surveillance over the victims’ arrival and notifying his accomplices by mobile phone, it is regrettable that the investigation did not establish whether at the time of the commission of the crime the applicant’s mobile phone had been within the coverage of the area where he should have conducted surveillance and whether he had called his accomplices after such a surveillance.

72.  The Court further observes that the domestic courts relied on the statements made during the investigation by the applicant, his brother and P.M. when convicting the applicant. These statements constituted the evidence on the basis of which the domestic courts found that the applicant was a member of an organised armed criminal group and participated in the commission of the crimes of armed robbery and two murders on 13 November 2002. However, the applicant denied his statements made during the investigation in court, alleging that they had been extracted under torture. The applicant’s brother and P.M. also denied in court their statements concerning the applicant made during the investigation, alleging ill-treatment and stating that the applicant had not been involved in the commission of the crime. The domestic courts also referred to the statements that four police officers (R.H., K.H., K.G. and R.M.) had made at the trial hearing while they convicted the applicant (see paragraph 24 above).

73.  In this connection, the Court notes that although the domestic courts referred to the statements made by police officers R.H., K.H., K.G. and R.M. at the trial hearing when finding the applicant guilty of the commission of the crimes of armed robbery and two murders on 13 November 2002, none of these statements incriminated directly or indirectly the applicant. In particular, in their submissions R.M. stated that he had known only P.M. among the accused and K.G. described the circumstances of arrest and questioning of three accused (A.K., P.M. and A.S.) without mentioning the applicant. As to the statements made by R.H. and K.H., they stated in a general way that the accused had not been subjected to ill-treatment in police custody without further explanation. The Court thus considers that the statements that the applicant, his brother and P.M. had made during the investigation were the decisive evidence against the applicant, without which securing a conviction of the applicant would not have been possible. The Court points out in this regard that the Government also accepted that the applicant’s conviction was mainly based on the statements that his brother and P.M. had made to the police (see paragraph 65 above).

74.  In these circumstances, the Court notes that it will examine firstly the quality of the statements the applicant, his brother and P.M. had made to the police, including whether the circumstances in which they were obtained cast doubt on their reliability or accuracy, and secondly whether the applicant was given the opportunity to challenge the authenticity of the above-mentioned evidence and to oppose its use against him in the domestic proceedings (see, Bykov, cited above, § 90, and Lisica v. Croatia, no. 20100/06, §§ 51-54, 25 February 2010).

75.  As regards the first question, the Court observes that the domestic courts relied on the applicant’s statement made during the investigation, in which he admitted his involvement in the crime. However, in the present case although the Court could not establish a substantive violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment while in police custody, it found that its inability to reach any conclusions in substance derived from the failure of the domestic authorities to conduct an effective investigation into the applicant’s allegation of ill-treatment (see paragraphs 47-62 above). Nevertheless the Court reiterates that particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003; Jalloh v. Germany [GC], no. 54810/00, §§ 99-104, ECHR 2006-IX; and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006).

76.  As to the statements that the applicant’s brother and P.M. had made during the investigation, the Court notes that they denied their statements made during the investigation in court, alleging ill-treatment and stating that the applicant had not participated in the commission of the crime. In this connection, the Court reiterates that a higher degree of scrutiny should be applied to the assessment of statements by co-accused, because the position in which the accomplices find themselves while testifying is different from that of ordinary witnesses. They do not testify under oath, that is, without any affirmation of the truth of their statements which could have rendered them punishable for perjury for wilfully making untrue statements (see Vladimir Romanov v. Russia, no. 41461/02, § 102, 24 July 2008). The Court notes in this regard that where doubts arise as to the reliability of a certain source of evidence, the need to corroborate it by evidence from other sources is correspondingly greater (see Lutsenko v. Ukraine, no. 30663/04, § 49, 18 December 2008).

77.  Having regard to the above, the Court considers that these statements, on which the domestic courts’ guilty verdict was based, were of questionable quality as evidence.

78.  As to the second question, the Court observes that the applicant raised the question of authenticity of the evidence and its use against him before all the domestic courts. However, this point was not adequately considered by the domestic courts.

79.  In this connection, the Court observes that the Assize Court accepted the statements that the applicant, his brother and P.M. had made during the investigation as valid and reliable evidence while disregarding their statements at trial. In particular, in order to exlude the applicant’s statement made at trial, the Assize Court relied on the statements P.M. and the applicant’s brother had made during the investigation and the “factual circumstances of the case”.

80.  As to the “factual circumstances of the case”, the Court observes that the Assize Court failed to specify and explain which “factual circumstances of the case” could lead it to exclude the applicant’s testimony in court in favour of the statement he made during the investigation.

81.  As regards the Assize Court’s reliance on the statements that the applicant’s brother and P.M. had made during the investigation, the Court reiterates that the notion of a fair and adversarial trial presupposes that, in principle, a tribunal should attach more weight to a statement given at the trial hearing than to a record of his or her pre-trial questioning produced by the prosecution, unless there are good reasons to find otherwise. Although it is not the Court’s task to verify whether the domestic courts made any substantive errors in that assessment, it is nevertheless required to review whether the courts gave reasons for their decisions in respect of any objections concerning the evidence produced (see Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 211, 26 July 2011, and Erkapić v. Croatia, no. 51198/08, § 75, 25 April 2013). The Court observes that the Assize Court referred to the statements that the applicant’s brother and P.M. had made during the investigation without considering the applicant’s complaint on their authenticity and their use in the proceedings against him. In particular, the Assize Court did not explain why it relied on the statements that the applicant’s brother and P.M. had made during the investigation rather than their statement made at trial which were in line with the applicant’s statement made at trial.

82.  As to the appellate courts, they did not consider the applicant’s complaint and their judgments are silent in this respect. In these circumstances, the Court is not convinced that the applicant had an effective opportunity to challenge the authenticity of the evidence and to oppose its use in the domestic proceedings, as his complaints in this respect were not adequately considered by the domestic courts.

83.  The Court considers that the foregoing considerations are sufficient to enable it to conclude that the quality of the evidence used at trial against the applicant and the domestic courts’ failure to address the applicant’s objection regarding its use against him, rendered the proceedings as a whole unfair.

84.  Accordingly, there has been a violation of Article 6 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

85.  The applicant complained that his pre-trial detention had been unlawful.

86.  The Court points out that the date of the “final decision” for the purposes of Article 35 § 1 of the Convention in connection with a period of pre-trial detention is to be taken as the date on which the charge is determined by a court at first instance, not the date on which a conviction becomes effective (see, among many other authorities, Maltabar and Maltabar v. Russia (dec.), no. 6954/02, 28 June 2007). In this case, the applicant was convicted on 29 March 2005, and consequently the six-month time-limit concerning this complaint started running on that date. Taking into consideration the fact that the application was lodged with the Court on 10 July 2007, the Court notes that this complaint was lodged out of time and does not comply with the six-month rule.

87.  Accordingly, this complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

88.  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

89.  The applicant claimed 196,000 US dollars (USD) in respect of pecuniary damage, including USD 4,000 for expenses borne by his family in order to visit him while in prison and USD 192,000 for loss of earnings.

90.  The Government contested the applicant’s claim, submitting that he had failed to substantiate his allegations.

91.  The Court points out that under Rule 60 of the Rules of the 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.

92.  As to the applicant’s claim for pecuniary damage, the Court does not find any causal link between the damage claimed and the violations found. Accordingly, the Court rejects the applicant’s claims in respect of pecuniary damage.

2.  Non-pecuniary damage

93.  The applicant claimed USD 1,000,000 in respect of non-pecuniary damage.

94.  The Government contested the amount claimed as unsubstantiated and excessive.

95.  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. However, the amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 10,000 under this head, plus any tax that may be chargeable on this amount.

96.  The Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). As has been found above, the criminal proceedings in the present case did not comply with the requirements of fairness. In these circumstances, the most appropriate form of redress would, in principle, be the reopening of the proceedings in order to guarantee the conduct of the trial in accordance with the requirements of Article 6 of the Convention (see, mutatis mutandis, Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV; Shulepov v. Russia, no. 15435/03, § 46, 26 June 2008; Maksimov v. Azerbaijan, no. 38228/05, § 46, 8 October 2009; and Abbasov v. Azerbaijan, no. 24271/05, §§ 41-42, 17 January 2008). The Court notes in this connection that the Code of Criminal Procedure of the Republic of Azerbaijan provides for a review of domestic criminal proceedings by the Plenum of the Supreme Court and remittal of the case for re-examination, if the Court finds a violation of the Convention (see paragraph 37 above).

B.  Costs and expenses

97.  The applicant also claimed USD 8,000 for costs and expenses incurred before the domestic courts and the Court. This claim was not itemised or supported by any documents.

98.  The Government submitted that the applicant had failed to substantiate his claim.

99.  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 notes that the applicant was represented before the Court and it is undisputed that the representative provided relevant documentation and observations, as requested by the Court. In these circumstances, the Court finds it appropriate to award the applicant EUR 2,000 in respect of costs and expenses (see Rzakhanov v. Azerbaijan, no. 4242/07, § 92, 4 July 2013).

C.  Default interest

100.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaints under Articles 3 and 6 of the Convention admissible and the remainder of the application inadmissible;

 

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

 

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

 

4.  Holds that there has been a violation of Article 6 of the Convention;

 

5.  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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two 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;

 

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

Done in English, and notified in writing on 31 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen                                                                   Isabelle Berro-Lefèvre
       Registrar                                                                              President