European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF MEHDIYEV v. AZERBAIJAN

 

(Application no. 59075/09)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

18 June 2015

 

 

 

 

 

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 Mehdiyev v. Azerbaijan,

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

          Isabelle Berro, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 26 May 2015,

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

PROCEDURE

1.  The case originated in an application (no. 59075/09) 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 Hakimeldostu Bayram oglu Mehdiyev (Həkimeldostu Bayram oğlu Mehdiyev - “the applicant”), on 4 November 2009.

2.  The applicant was represented by Mr R. Hajili and S. Bishop, lawyers practising respectively in Azerbaijan and London. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3.  The applicant alleged that on 22 September 2007 he had been ill-treated and deprived of his liberty by agents of the Ministry of National Security (“the MNS”) because of his journalistic activity. The applicant further alleged that the administrative proceedings had been unfair and that his conditions of detention in a detention facility had been harsh.

4.  On 18 September 2013 complaints concerning the applicant’s alleged ill-treatment by agents of the MNS and the domestic authorities’ alleged failure to investigate his allegation of ill-treatment, the applicant’s conditions of detention in the detention facility, the lawfulness of the applicant’s detention by the MNS, the fairness of the administrative proceedings, and the alleged violation of the applicant’s right to freedom of expression were communicated to the Government, and the remainder of the application was declared inadmissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1961 and lived in Nakhchivan at the time of the events.

A.  Background

6.  The applicant was an independent journalist and worked as a reporter of the Yeni Musavat newspaper in the Nakhchivan Autonomous Republic (“the NAR”).

7.  The applicant was the author of two critical articles about the economic and political situation in the NAR published in the Yeni Musavat newspaper in August and September 2007. The articles, entitled “Food has become considerably more expensive in Nakhchivan (owing to Vasif Talibov’s “care”)” (“Naxçıvanda ərzaq xeyli bahalaşıb (Vasif Talıbovun “qayğısı” sayəsində)”) and “Vasif Talibov rebuilds his native village” (“Vasif Talıbov doğulduğu kəndi söküb yenidən tikdirir”), related in particular to the activities of the Speaker of the Parliament of the NAR, Vasif Talibov, who is also “the supreme official of the NAR” (“Naxçıvan Muxtar Respublikasının ali vəzifəli şəxsi”) under its Constitution of 29 December 1998.

8.  On 17 September 2007 the applicant also met a reporter from Radio Liberty and helped him to prepare a report about the economic and political situation in Nakhchivan.

B.  The applicant’s alleged arrest and ill-treatment by agents of the MNS

1.  The applicant’s version of events

9.  At around 2 p.m. on 22 September 2007, when the applicant was in a café in the village of Jalilkand in the Sharur District, the head (M.M.) of the district department of the MNS approached him. M.M. accused the applicant of publishing defamatory articles about the NAR, and ordered four men in uniform to arrest him.

10.  The applicant was taken to the premises of the MNS in Sharur by car. His mobile phone was taken away while he was being transported there. When they arrived at the MNS building M.M. told him to stop spreading misinformation about the NAR. He further ordered agents of the MNS to explain to the applicant “the meaning of his activity as a reporter” and left the room.

11.  Five men then began to torture the applicant. They hit him repeatedly with truncheons, kicked him and punched him in the head. Approximately an hour later, M.M. returned and asked the applicant whether he had “grown wise”. M.M. further ordered five men to make the applicant “understand his mistakes”. The applicant was then subjected to further ill-treatment.

12.  The applicant was subsequently taken to the office of M.M. who demanded that he become a member of the ruling political party (YAP - Yeni Azərbaycan Partiyası) and to write defamatory articles about opposition leaders. The applicant refused to do so.

13.  The applicant was released at 2 a.m. on 23 September 2007; his mobile phone was returned to him. Before his release, M.M. told him that if he did not “grow wise”, he would be brought back to the MNS.

14.  Following his release, the applicant immediately informed the Yeni Musavat newspaper of his arrest. According to the applicant, his relatives also took photographs of the injuries on his body. However, he was unable to see a doctor immediately, because it was night.

2.  The Government’s version of events

15.  The Government submitted that on 22 September 2007 the applicant was not arrested, detained or ill-treated, by agents of the MNS.

C.  The applicant’s administrative detention

1.  The applicant’s version of events

16.  In the morning of 23 September 2007, while the applicant was about to go and see a doctor, he was arrested by the police and taken to the Sharur District Police Office.

17.  The head of the Sharur District Police Office, M.H., shouted at the applicant, demanding to know why he had informed the press of his arrest.

18.  On the same day the applicant was taken to the Sharur District Court, which sentenced him to fifteen days’ administrative detention for obstructing the police. The applicant was not represented by a lawyer at the hearing. Two police officers testified against him. The applicant was not provided with a copy of the court decision.

19.  At the request of the applicant, after the court hearing he was taken to the Sharur Central Hospital, where he was examined by a doctor who observed numerous bruises on his body. However, he was not provided with any medical record.

2.  The Government’s version of events

20.  At around 2.30 p.m. on 23 September 2007 the applicant was approached by the police in the centre of the Jalilkand village, because he was using loud and abusive language in public. As the applicant did not comply with the police request to stop his unlawful action, an administrative offence report was drawn up and he was taken to the police station. It appears from the report that the applicant refused to sign it. The relevant part of the report of 23 September 2007 provides as follows:

“On 23 September 2007 H. Mehdiyev did not comply with the lawful request of the police, and continued to shout and use insulting language in the centre of the Jalilkand village.”

21.  On the same day the Sharur District Court found the applicant guilty under Article 310.1 (obstructing the police) of the Code of Administrative Offences, and sentenced him to fifteen days’ administrative detention. It was specified in the decision that it could be appealed against within ten days of its receipt. The relevant part of the decision of 23 September 2007 provides as follows:

“Assessing the evidence at its disposal, the court concludes that the fact that Mehdiyev Hakimeldostu Bayram oglu [the applicant] committed the above-mentioned administrative offence is proved by his confession and the statements of witnesses heard in connection with the case.

The court qualifies the administrative offence committed by Mehdiyev Hakimeldostu Bayram oglu under Article 310.1 of the Code of Administrative Offences. Therefore, he must be found guilty under this article and must be punished.”

22.  The Government produced a receipt confirming that the applicant had received a copy of the court decision at 5.30 p.m. on 23 September 2007. The receipt was dated 23 September 2007 and signed by the applicant.

D.  The applicant’s conditions of detention

1.  The applicant’s account of the conditions

23.  At around 7 p.m. on 23 September 2007 the applicant was taken to detention facility no. 8 to serve his sentence.

24.  During his detention the applicant was deprived of food and water. He was not provided with any bedding and was forced to spend nights outside on a concrete walkway. The applicants’ hands were handcuffed at all times and due to the detention facility’s proximity to the River Aras, he suffered badly from mosquito bites.

25.  At midnight on 25 September 2007, the Minister of National Security of the NAR arrived at the detention facility with two other men. They appeared to be drunk. The Minister insulted the applicant and then all of them beat him.

2.  The Government’s account of conditions

26.  The Government submitted that there was no detention facility no. 8 in the NAR and the applicant was detained in the temporary detention facility of the Ministry of Internal Affairs of the NAR.

27.  The applicant was detained alone in a cell which was 2.8 metres high, 5.2 m long, and 2.2 m wide. The cell was adequately lit and ventilated. The applicant was provided with a separate bed and bedding, as well as with other necessities. In support of their account of the conditions, the Government produced photographs of the detention facility in question and the cell in which the applicant was held.

28.  The Government also produced a medical record dated 16 December 2013 from the doctor on duty at the detention facility at the time. According to the medical record, at 7.45 p.m. on 23 September 2007 the applicant was examined by the doctor and “no pathology was revealed” (heç bir patalogiya aşkar edilmədi). The medical record of 16 December 2013 provides as follows:

“Examination by the doctor on duty:

At 7.45 p.m. on 23 September 2007 Mehdiyev Hakimeldostu Bayram oglu accompanied by two police officers came to the admission department for examination. During the examination of the citizen, no pathology was revealed. The blood pressure was 120/85 mm Hg. Practically healthy (praktiki sağlam). The doctor on duty: I.M.”

E.  The applicant’s early release from administrative detention and the remedies used by him

29.  Following the applicant’s administrative detention, various Azerbaijani and international human rights organisations asked the Azerbaijani authorities for the applicant’s release. In particular, on 26 September 2007 Reporters Without Borders submitted a request to the Azerbaijani authorities to stop the applicant’s harassment because of his journalistic activities and to order his release. In respect of the applicant’s alleged ill-treatment by agents of the MNS on 22 September 2007, the request reads:

“The day before his arrest, Mehdiyev was forced into a car by national security ministry agents and held all day in a ministry building where, according to Reporters Without Borders’ sources, he was beaten because of his reports about gas and electricity problems in the region.”

On 27 September 2007 the Committee to Protect Journalists also called upon the Azerbaijani authorities to stop the applicant’s harassment because of his journalistic activities and to carry out a thorough investigation in this respect. The applicant’s alleged ill-treatment by agents of the MNS on 22 September 2007 and his administrative detention were also covered by the Azerbaijani media.

30.  On 27 September 2007 the applicant was released from administrative detention. No official reason was given for his early release from detention.

31.  According to the applicant, after his release from detention, he was treated in the Nakhchivan Republic Hospital, however all the medical institutions refused to give him an official medical certificate. The doctor who examined the applicant told him that his seventh rib was broken. In support of his claim, the applicant relied on a medical record dated 1 October 2007 in which the doctor indicated that an X-ray examination of the applicant’s seventh rib had been carried out, without providing further information. Although the name of the doctor appeared on the medical record, it was not signed or stamped and there was no information about the medical establishment in which the examination was carried out. The medical record of 1 October 2007 provides as follows:

“Mehdiyev Hakimeldostu Bayram oglu; born in 1961 in Jalilkand;

X-ray examination of the ribcage and the seventh left side rib in the back armpit (sol yeddinci qabırğasının arxa qoltuqaltı).”

32.  Relying on Articles 3, 5 and 10 of the Convention, on 3 October 2007 the applicant lodged a criminal complaint with the Sharur District Prosecutor’s Office asking for the institution of a criminal investigation. He submitted the same factual information as what he submitted to the Court (see paragraphs 9-14 above) i.e. that at around 2 p.m. on 22 September 2007 he had been arrested, at the request of the head (M.M.) of the district department of the MNS, in a café in the village of Jalilkand in the Sharur District by agents of the MNS, and had been taken to the premises of the MNS in Sharur. Once there M.M. demanded that he stop spreading misinformation about the NAR. He further ordered the agents of the MNS to explain to the applicant “the meaning of his activity as a reporter” and left the room. Five men then began to torture him. They hit him repeatedly with truncheons, kicked him and punched him in the head. Approximately an hour later, M.M. returned and asked him whether he had “grown wise”. M.M. further ordered the five men to make him “understand his mistakes”. He was then subjected to further ill-treatment and was only released at around 2 a.m. on 23 September 2007. Before his release, M.M. told him that, if he did not “grow wise”, he would be brought back to the MNS.

33.  The applicant sent his complaint by recorded delivery and it appears from the postal document submitted to the Court that the Sharur District Prosecutor’s Office received it on 4 October 2007.

34.  The applicant did not receive any reply to his complaint.

35.  On 19 October 2007 the applicant lodged the same complaint with the Prosecutor General’s Office, the Ministry of Internal Affairs and the Ombudsman. The applicant produced postal documents confirming that the letters had been sent to the above-mentioned authorities.

36.  By a letter of 25 October 2007 the Prosecutor General’s Office informed the applicant that it had forwarded his complaint to the Prosecutor of the NAR for examination.

37.  On 7 November 2007 the applicant re-submitted the same complaint to the Sharur District Prosecutor’s Office by recorded delivery. The applicant produced a postal document confirming the receipt of his letter by the Sharur District Prosecutor’s Office.

38.  By a letter of 23 November 2007, the Ministry of Internal Affairs informed the applicant that it had forwarded his complaint to the Minister of Internal Affairs of the NAR for examination.

39.  No action was taken in respect of the applicant’s above-mentioned complaints.

40.  On 9 February 2008 the applicant lodged an action with the Sharur District Court in accordance with the procedure established by Articles 449-451 of the Code of Criminal Procedure concerning appeals against actions and decisions taken by the prosecuting authorities. Relying on Articles 3, 5 and 10 of the Convention, he reiterated his previous complaints and asked the court to declare unlawful the prosecuting authorities’ failure to examine his complaint.

41.  The applicant did not receive any reply from the Sharur District Court.

42.  On 17 March 2008 the applicant lodged a complaint with the Supreme Court of the NAR, reiterating his previous complaints. He further complained that the Sharur District Court had failed to examine his complaint concerning the prosecuting authorities’ inaction.

43.  In the meantime, the applicant sent the same complaint to the Supreme Court of the Republic of Azerbaijan, complaining that the Sharur District Court had failed to examine his complaint. By a letter of 1 April 2008 the Supreme Court forwarded the applicant’s complaint to the Sharur District Court for examination.

44.  By a letter of 29 April 2008, the Supreme Court of the NAR informed the applicant that his complaint could not be examined by it because, as an appellate court, it examined appeals only against first-instance courts’ decisions.

45.  On 28 July 2008 the applicant made representations to the Judicial Legal Council, stating that the Sharur District Court had failed to examine his complaint.

46.  By a letter of 5 August 2008, the Judicial Legal Council forwarded the applicant’s complaint to the Sharur District Court, asking the court to examine the complaint and to take necessary measures. The Judicial Legal Council further asked the Sharur District Court to inform the applicant about the result of the examination.

47.  On 8 January 2009 the applicant applied again to the Judicial Legal Council, arguing that, despite its letter of 5 August 2008 sent to the Sharur District Court, he had not been informed of any decision taken by the Sharur District Court.

48.  By a letter of 14 January 2009, the Judicial Legal Council forwarded the applicant’s complaint to the Sharur District Court. The Judicial Legal Council’s letter of 14 January 2009 was identical in wording to its letter of 5 August 2008.

49.  On 18 June 2009 and on 6 January 2010 the applicant sent further letters to the Sharur District Court, reiterating his previous complaints.

50.  The applicant did not receive any response from the Sharur District Court.

II.  RELEVANT DOMESTIC LAW

A.  The Constitution of the Republic of Azerbaijan

51.  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.  Criminal responsibility for torture and inhuman and degrading treatment

52.  In accordance with the Criminal Code, as in force at the material time, torture of an individual who is in 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 on 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). Obstruction of the lawful professional activity of journalists by subjecting them to violence or threatening by such violence is a crime punishable by a fine or correctional measures for a term of up to one year (Article 163.1). If the same act was committed by an official making use of his service position, it is punishable by correctional measures for a term of up to two years or imprisonment for a term of up to one year with or without deprivation of the right to hold a particular position or to engage in particular activities (Article 163.2).

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

53.  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 may 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.

D.  The Code of Administrative Offences (“the CAO”)

54.  In accordance with Article 310.1 of the CAO, as in force at the material time, failure to comply with the lawful request of a policeman protecting public order is an administrative offence punishable by a fine or administrative detention for a term of up to fifteen days.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS REGARDS THE APPLICANT’S ILL-TREATMENT BY AGENTS OF THE MNS

55.  The applicant complained that on 22 September 2007 he had been ill-treated by agents of the MNS on the premises of the MNS in Sharur, and that the domestic authorities had failed to investigate his allegation of ill-treatment. He relied on Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

56.  The Government submitted without further explanation that the applicant had failed to exhaust domestic remedies in that he had not complained to the competent domestic authorities about his alleged ill-treatment. 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 particular, the Government noted that there was an inconsistency as to the date the applicant’s complaints were lodged with the domestic authorities, because there were variations in the dates indicated by the applicant in respect of some of his complaints, both in his initial application and in his observations to the Court. The Government also contested the authenticity of the applicant’s complaints lodged with the prosecuting authorities.

57.  The applicant maintained his complaint.

58.  As regards the Government’s request for the application to be declared inadmissible as an abuse of the right of petition, the Court notes that, except in extraordinary cases, an application may only be rejected as vexatious if it was knowingly based on untruths (see Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X). The Court observes that although there was an inconsistency in the applicant’s initial application concerning the dates on which some of his complaints were lodged, in his observations lodged with the Court he was able to produce postal receipts confirming the exact dates on which his complaints were lodged with the domestic authorities. The Court further considers that the fact that the Government contested the authenticity of the applicant’s complaints lodged with the prosecuting authorities, in a general way and without any evidence, could not give rise to circumstances justifying a decision to declare the application inadmissible as an abuse of the right of individual application. Therefore, the Court finds that in the present case there are no circumstances justifying a decision to declare the application inadmissible as an abuse of the right of individual application.

59.  As regards the Government’s argument that the applicant failed to exhaust domestic remedies, the Court points out that the Government raised this objection in a general way without specifying which domestic remedies the applicant had failed to exhaust. The Court considers that this general objection raises issues which are closely related to the merits of the complaint concerning the alleged failure to investigate the case. Therefore, the Court joins this objection to the merits of this complaint.

60.  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

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

62.  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).

63.  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)).

64.  Turning to the circumstances of the present case, the Court will first examine the Government’s objection concerning the exhaustion of domestic remedies. In this connection, the Court observes that the applicant lodged complaints on 3 October and 7 November 2007 with the Sharur District Prosecutor’s Office, and on 19 October 2007 with the Prosecutor General’s Office and the Ministry of Internal Affairs, concerning ill-treatment by agents of the MNS. However, no criminal inquiry was launched in this respect.

65.  The Court further observes that the applicant raised the same complaint before the domestic courts. In particular, on 9 February 2008, 18 June 2009 and 6 January 2010 he lodged complaints with the Sharur District Court concerning the prosecuting authorities’ failure to examine his complaint of ill-treatment. He also complained to the Supreme Court and the Judicial Legal Council that the Sharur District Court had failed to examine his complaint. However, no action was taken by the domestic courts. 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.

66.  As regards the merits of the complaint, the Court considers that the applicant’s complaint made before the domestic authorities contained sufficient specific information, namely the identity of the alleged perpetrators, the date, place and nature of the alleged ill-treatment (see paragraph 32 above), to constitute an arguable claim in respect of which those authorities were under an obligation to conduct an effective investigation. Moreover, domestic and international human rights organisations raised the issue of the applicant’s alleged ill-treatment by agents of the MNS before the Azerbaijani authorities and the incident was covered by the Azerbaijani media (see paragraph 29 above). However, no criminal inquiry has been carried out in the instant case into the applicant’s allegation of ill-treatment.

67.  The Court further points out that although the Prosecutor General’s Office and the Ministry of Internal Affairs informed the applicant that his complaint had been forwarded to the investigating authorities of the NAR for examination (see paragraphs 36 and 38 above), no further action was taken in this respect. In particular, the Court notes that as there was no criminal inquiry in respect of the applicant’s allegation of ill-treatment, the prosecuting authorities neither ordered the applicant’s forensic examination, nor heard the applicant, the alleged perpetrators of the ill-treatment or any other possible witness. No explanation was given by the Government of the domestic authorities’ failure to conduct an investigation in this respect (see Jannatov v. Azerbaijan, no. 32132/07, § 53, 31 July 2014). 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.

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

2.  Alleged ill-treatment of the applicant by agents of the MNS

(a)  The parties’ submissions

69.  The applicant submitted that on 22 September 2007 he had been tortured by agents of the MNS on MNS premises in Sharur. He relied on a photograph of his body taken, according to him, by his family immediately after his release from detention. In support of his claim he also produced a medical certificate dated 1 October 2007 which indicates that an X-ray examination of the applicant’s seventh rib was carried out.

70.  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. The Government relied on the medical record dated 16 December 2013 from the doctor on duty at the detention facility (see paragraph 28 above). According to that record, at 7.45 p.m. on 23 September 2007 the applicant was examined by the doctor and no pathology was revealed.

(b)  The Court’s assessment

71.  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).

72.  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 under 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).

73.  Turning to the circumstances of the present case, the Court observes that the applicant presented a detailed description of his ill-treatment by agents of the MNS. In support of his claim, he submitted a photograph of his body taken, according to him, by his family immediately after his release from detention and a medical record of 1 October 2007. He further relied on various newspaper articles and statements from human rights organisations concerning his ill-treatment by agents of the MNS.

74.  However, whereas the Court has found above (see paragraph 66 above) that the applicant’s submissions were such as to oblige the authorities to launch an official investigation, it considers that the above-mentioned evidence before it does not enable it to find to the standard of proof “beyond reasonable doubt” that the applicant was subjected to the alleged treatment by agents of the MNS on the premises of the MNS in Sharur (see Jannatov, cited above, §§ 59-60).

75.  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 on the part of State authorities derives to a large extent from the failure of the domestic authorities to carry out an effective investigation at the relevant time (see Gharibashvili v. Georgia, no. 11830/03, § 57, 29 July 2008; Lopata v. Russia, no. 72250/01, § 125, 13 July 2010; and Jannatov, cited above, § 61).

76.  Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment by agents of the MNS.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS REGARDS THE APPLICANT’S CONDITIONS OF DETENTION

77.  The applicant complained that his conditions of detention from 23 to 27 September 2007 had been harsh in that he had been deprived of food and water, had not been provided with any bedding, had been forced to spend nights outside on a concrete walkway, and his hands had been handcuffed at all times. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

78.  The Government submitted that the applicant was detained in the temporary detention facility of the Ministry of Internal Affairs of the NAR, where the conditions of detention met all the standards. The applicant was detained alone in a cell measuring 2.8 m by 5.2 m by 2.2 m. The cell was adequately lit and ventilated. The applicant was provided with a separate bed and bedding, as well as with other necessities. In support of their account of conditions there, the Government produced photographs of the detention facility in question and the cell in which the applicant was held.

79.  The applicant maintained his complaint.

80.  The Court observes at the outset that the applicant did not contest the authenticity of the photographs of the detention facility submitted by the Government. It appears from the photographs that the applicant was detained in a cell measuring at least 8 sq. m, that he was provided with a separate bed and bedding, and that the toilet was separated from the rest of the cell. Moreover, although the applicant maintained his complaint concerning his conditions of detention, he failed to submit any evidence in support of his account of the conditions of detention.

81.  Therefore, having regard to all the material in its possession, the Court finds that this complaint is inadmissible as manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLES 5 AND 10 OF THE CONVENTION

82.  The applicant complained that on 22 September 2007 he had been unlawfully deprived of his liberty by agents of the MNS. He further complained that his ill-treatment and arrest by agents of the MNS on account of his journalistic activity had constituted an unlawful interference with his right to freedom of expression.

83.  The Government submitted that on 22 September 2007 the applicant had not been arrested or detained by agents of the MNS. They further submitted that there had been no interference with the applicant’s right to freedom of expression.

84.  Whereas the Court considers that these complaints are so closely related to the issue under Article 3 of the Convention that they must be declared admissible, it reiterates its finding above that it has not been possible to establish beyond reasonable doubt the involvement of State authorities on 22 September 2007 (see paragraphs 74-75 above) and that the applicant was arrested, taken to the premises of the MNS in Sharur, and ill-treated there.

85.  In these circumstances the Court cannot but conclude that there has been no violation of Articles 5 and 10 of the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

86.  The applicant complained that his right to a fair trial had been violated in the administrative proceedings. In particular, he complained that he had not been represented by a lawyer at the hearing of 23 September 2007 before the Sharur District Court, and that he had not been offered the opportunity to call witnesses on his behalf under the same conditions as witnesses against him.

87.  The Government submitted that the applicant had failed to exhaust domestic remedies, in that he had not lodged an appeal against the Sharur District Court’s decision of 23 September 2007.

88.  The Court considers at the outset that it is not necessary in the circumstances of the present case to examine whether Article 6 § 1 of the Convention is applicable to the administrative proceedings under its criminal head. The Court observes that, even assuming that this was the case, the applicant failed to exhaust domestic remedies in respect of his complaints concerning the fairness of the administrative proceedings. In this connection, the Court notes that it appears from the receipt submitted to the Court by the Government that at 5.30 p.m. on 23 September 2007 the applicant was provided with a copy of the Sharur District Court’s decision of 23 September 2007 (see paragraph 22 above). The applicant, however, failed to appeal against this decision. Moreover, the applicant did not state whether there were special circumstances in the present case which would dispense him from the obligation to appeal against this decision.

89.  The Court thus finds that the applicant failed to exhaust domestic remedies without good reason, and his complaints raised under Article 6 of the Convention must accordingly be rejected under Article 35 §§ 1 and 4 of the Convention.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

90.  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

91.  The applicant claimed 1,500 United States dollars (USD) in respect of pecuniary damage for expenses relating to his medical treatment.

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

93.  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.

94.  As regards the applicant’s claim for compensation for pecuniary damage, the Court observes that the applicant did not submit any documentary evidence supporting his claim for pecuniary damage. Accordingly, the Court rejects the applicant’s claim in respect of pecuniary damage.

2.  Non-pecuniary damage

95.  The applicant claimed USD 100,000 in respect of non-pecuniary damage.

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

97.  The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violation 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 10,000 euros (EUR) under this head, plus any tax that may be chargeable on this amount.

B.  Costs and expenses

98.  The applicant also claimed 6,500 Azerbaijani manats (AZN) for costs and expenses incurred before the domestic courts and the Court. In particular, he claimed AZN 4,000 for costs and expenses incurred before the Court and AZN 2,500 for costs and expenses incurred in the domestic proceedings. In support of his claim the applicant submitted a contract concluded between him and two lawyers on 2 November 2008.

99.  The Government considered that the claim was unsubstantiated and excessive. In particular, the Government submitted that the applicant’s complaints in the domestic proceedings were lodged before the conclusion of the contract of 2 November 2008 and they were not signed by his lawyer. They further submitted that the amount claimed for costs and expenses incurred before the Court was also excessive.

100.  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. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads.

C.  Default interest

101.  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

1.  Declares unanimously the complaints under Articles 3, 5 and 10 of the Convention, in so far as they relate to the incidents of 22 September 2007, admissible and the remainder of the application inadmissible;

 

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

 

3.  Holds, by six votes to one, that there has been no violation of Article 3 of the Convention under its substantive limb;

 

4.  Holds, by six votes to one, that there has been no violation of Articles 5 and 10 of the Convention;

 

5.  Holds unanimously

(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 4,000 (four 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 unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Søren Nielsen                                                                      Isabelle Berro
       Registrar                                                                              President

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sicilianos is annexed to this judgment.

I.B.L.
S.N.




PARTLY DISSENTING OPINION OF JUDGE SICILIANOS

1.  With all due respect, I am unable to subscribe to the opinion of the majority in the present case according to which there has been no violation of Article 3 of the Convention under its substantive limb. As noted in paragraph 73 of the judgment, “the applicant presented a detailed description of his ill-treatment by agents of the MNS. In support of his claim, he submitted a photograph of his body taken, according to him, by his family immediately after his release from detention and a medical record of 1 October 2007” (see also paragraphs 9-14 and 31 of the judgment). It seems to me that those elements constitute prima facie evidence of ill-treatment. All the more so as the alleged ill-treatment of the applicant drew extensive media coverage (see paragraph 29).

2.  According to the case-law of the Court, when the applicant provides a detailed description of the ill-treatment to which he has allegedly been subjected, especially by indicating its place, time and duration and when those allegations are consistent, it is up to the Government “to refute the applicant’s allegations by providing their own plausible version of events and submitting evidence to corroborate their version” (see, among other authorities, Barabashchikov v. Russia, no. 36220/02, §§ 49-50, 8 January 2009). In the present case, the Government did not provide any explanation whatsoever regarding the applicant’s allegations, but simply denied the facts (see paragraph 15 of the judgment).

3.  In these circumstances, bearing in mind the authorities’ obligation to account for injuries caused to persons within their control in custody, and in the absence of any convincing and plausible explanation by the Government, the Court should have considered, in my view, that it could draw inferences from the Government’s conduct and should have found it established to the standard of proof required in the Convention proceedings that the injuries sustained by the applicant were the result of the treatment of which he complained and for which the Government bore responsibility (see Barabashchikov v. Russia, cited above, § 50; Selmouni v. France [GC], no. 25803/94, § 88, ECHR 1999-V; Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 30, 20 July 2004; Mikheyev v. Russia, no. 77617/01, §§ 104-105, 26 January 2006; and Dedovskiy and Others v. Russia, no. 7178/03, §§ 78-79, 15 May 2008).

4.  Furthermore, as is clear from paragraphs 84 and 85 of the judgment, the conclusion that there has been no violation of the substantive limb of Article 3 of the Convention inexorably brought the Court to yet another conclusion, namely that there has been no violation of Articles 5 and 10 either. Given the direct link between those issues - the violation of Article 3 under its substantive limb, on the one hand, and the violation of Articles 5 and 10, on the other - I am also unable to share the Court’s conclusions under Articles 5 and 10.